FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KRISTIN M. PERRY; SANDRA B.
STIER; PAUL T. KATAMI; JEFFREY J.
ZARRILLO,
Plaintiffs-Appellees,
CITY AND COUNTY OF SAN
FRANCISCO,
Plaintiff-Intervenor-Appellee,
v.
ARNOLD SCHWARZENEGGER, in his
official capacity as Governor of
California; EDMUND G. BROWN, JR.,
in his official capacity as Attorney
General of California; MARK B.
HORTON, in his official capacity as
Director of the California
Department of Public Health &
State Registrar of Vital Statistics;
LINETTE SCOTT, in her official
capacity as Deputy Director of
Health Information & Strategic
Planning for the California
Department of Public Health;
PATRICK O’CONNELL, in his official
capacity as Clerk-Recorder for the
County of Alameda; DEAN C.
LOGAN, in his official capacity as
Registrar-Recorder/County Clerk
for the County of Los Angeles,
Defendants,
537
538 PERRY v. SCHWARZENEGGER
and No. 10-16696
DENNIS HOLLINGSWORTH; GAIL J. D.C. No.
KNIGHT; MARTIN F. GUTIERREZ; 3:09-cv-02292-
HAK-SHING WILLIAM TAM; MARK VRW
A. JANSSON; Northern District of
PROTECTMARRIAGE.COM-YES ON 8, A California,
PROJECT OF CALIFORNIA RENEWAL, San Francisco
as official proponents of
MEMORANDUM
Proposition 8,
REGARDING
Defendants-Intervenors-Appellants.
MOTION TO
DISQUALIFY
Filed January 4, 2011
Before: Stephen Reinhardt, Michael Daly Hawkins, and
N. Randy Smith, Circuit Judges.
ORDER
REINHARDT, Circuit Judge
Shortly before the hearing of this appeal, the defendants-
intervenors-appellants (“Proponents”) requested that I recuse
myself under 28 U.S.C. § 455(a) and § 455(b)(5)(iii). Under
§ 455(a), I must recuse myself if “a reasonable person with
knowledge of all the facts would conclude that [my] impar-
tiality might reasonably be questioned.” United States v. Nel-
son, 718 F.2d 315, 321 (9th Cir. 1983). Under § 455(b)(5)(iii),
my recusal is required if my wife has an “interest” that could
be “substantially affected” by the outcome of this proceeding.
I denied Proponents’ motion with a brief statement and prom-
ised a further explanation in due course.1 Now that our panel
1
The parties were notified of the composition of the panel only a week
before the hearing. The recusal request was filed two days later and I
issued my denial order the following morning.
PERRY v. SCHWARZENEGGER 539
has completed the immediately pressing matters regarding the
appeal, I provide my further reasons.
I
The chief basis for the recusal motion appears to be my
wife’s beliefs, as expressed in her public statements and
actions, both individually and in her capacity as Executive
Director of the American Civil Liberties Union of Southern
California (ACLU/SC). She has held that position for 38
years, during 20 of which we have been married, although
over one year ago she announced her retirement effective next
month.
My wife’s views, public or private, as to any issues that
may come before this court, constitutional or otherwise, are of
no consequence. She is a strong, independent woman who has
long fought for the principle, among others, that women
should be evaluated on their own merits and not judged in any
way by the deeds or position in life of their husbands (and
vice versa). I share that view and, in my opinion, it reflects
the status of the law generally, as well as the law of recusal,
regardless of whether the spouse or the judge is the male or
the female. My position is the same in the specific case of a
spouse whose views are expressed in the capacity of an offi-
cer, director, or manager of a public interest or advocacy
organization that takes positions or supports legislation or liti-
gation or other actions of local, state, or national importance.
Proponents’ contention that I should recuse myself due to
my wife’s opinions is based upon an outmoded conception of
the relationship between spouses. When I joined this court in
1980 (well before my wife and I were married), the ethics
rules promulgated by the Judicial Conference stated that
judges should ensure that their wives not participate in poli-
tics. I wrote the ethics committee and suggested that this
advice did not reflect the realities of modern marriage—that
even if it were desirable for judges to control their wives, I
540 PERRY v. SCHWARZENEGGER
did not know many judges who could actually do so (I further
suggested that the Committee would do better to say
“spouses” than “wives,” as by then we had as members of our
court Judge Mary Schroeder, Judge Betty Fletcher, and Judge
Dorothy Nelson). The committee thanked me for my letter
and sometime later changed the rule.2 That time has passed,
and rightly so. In 2011, my wife and I share many fundamen-
tal interests by virtue of our marriage, but her views regarding
issues of public significance are her own, and cannot be
imputed to me, no matter how prominently she expresses them.3
It is her view, and I agree, that she has the right to perform
her professional duties without regard to whatever my views
may be, and that I should do the same without regard to hers.
Because my wife is an independent woman, I cannot accept
Proponents’ position that my impartiality might reasonably be
questioned under § 455(a) because of her opinions or the
views of the organization she heads.
Nor can I accept the argument that my wife’s views consti-
tute an “interest” that could warrant my recusal under
§ 455(b)(5)(iii), as such a reading would require judges to
recuse themselves whenever they know of a relative’s
strongly held opinions, whether publicly expressed or not. See
2
Judge Roger J. Miner of the Second Circuit has recounted a similar
experience:
When I first became a judge, I acquainted my wife with then-
applicable 1972 ABA Model Code, which provided that a judge
“should encourage members of his [note the archaic “his”] family
to adhere to the same standards of political conduct that apply to
him.” My wife, a well-known political activist at that time,
responded: “Consider me encouraged,” and went on to lead some
statewide and national campaigns. The encouragement to adhere
to judicial conduct rules now applies only in regard to the judge’s
own political campaign.
Roger J. Miner, Judicial Ethics in the Twenty-First Century: Tracing the
Trends, 32 Hofstra L. Rev. 1107, 1130-31 (2004) (brackets in original).
3
See generally Mary Matalin and James Carville, All’s Fair: Love, War,
and Running for President 63 (Paperback ed. 1995).
PERRY v. SCHWARZENEGGER 541
§ 455(b)(5)(iii) (requiring recusal whenever a relative “[i]s
known by the judge to have an interest that could be substan-
tially affected by the outcome of the proceeding”). I likewise
cannot conceive how such an “interest” could be said to exist
by virtue of the fact that the ACLU/SC as an organization has
expressed positions regarding the subject at issue in this case.
The ACLU/SC is devoted to advocating for numerous social
issues, many of which come before the court, of which same-
sex marriage is but one. To suggest that because my wife
heads the ACLU/SC she has an “interest” cognizable under
§ 455(b)(5)(iii) in cases regarding which the organization has
expressed a position would be to suggest that I must recuse
myself from cases implicating the constitutionality of the
death penalty, school prayer, and affirmative action, among
many others. Moreover, because § 455(b)(5)(iii) applies not
only to the interests of a judge’s spouse, but to the interests
of any “person within the third degree of relationship to
either” a judge or a judge’s spouse, § 455(b)(5), such a read-
ing would require a judge’s recusal when various other rela-
tives, such as great-grandchildren and nephews-in-law, head
a public interest organization that has expressed a position
concerning a case. I cannot agree that § 455(b)(5)(iii) requires
judges to recuse themselves whenever a relative, close or oth-
erwise, plays a prominent role in a public interest organization
that, as part of a broad and general mission, takes a position
on a subject that is at issue in a case, or on a case itself.
II
A
Proponents additionally suggest that I must recuse myself
due to specific ACLU/SC litigation activities. I have long had
a policy regarding any conceivable conflict that might result
from such activities. I do not participate in any actions by this
court when the organization of which my wife is the Execu-
tive Director makes any appearance or files any brief, amicus
or otherwise, before this court. The clerk’s office was notified
542 PERRY v. SCHWARZENEGGER
of this policy many years ago and it has been implemented in
numerous cases. In fact, it is impossible to know how many
times I have actually recused myself from such cases because
the Clerk’s office automatically assigns cases covered by my
policy to panels of which I am not a member rather than to
a panel I am on, as a result of this directive. Later, if there is
an en banc call, I advise the Clerk to record the fact that I am
recused and to notify the court.
In regard to the ACLU/SC’s past litigation activities, Pro-
ponents first argue that my recusal is required due to the
ACLU/SC’s participation in prior California state court cases
pertaining to same-sex marriage. These were cases that did
not involve the federal constitutional issue raised in the case
before us—the only substantive issue presented here. Recusal
is not required merely because a relative was or is involved
in other litigation concerning the same general subject matter
that is before the court. See Microsoft Corp. v. United States,
530 U.S. 1301 (2000) (statement of Rehnquist, C.J.) (declin-
ing to recuse from Microsoft antitrust case under either
§ 455(a) or § 455(b)(5)(iii) where son represented Microsoft
in other antitrust matters that were potentially affected by
case’s outcome). That the ACLU/SC participated in proceed-
ings before a different court, that involved legal questions dis-
tinct from the one now before us—cases that were concluded
before the appeal of this suit—neither provides a basis to
question my impartiality nor creates an “interest” of my
wife’s that could be “substantially affected” by these proceed-
ings.
Proponents further argue that my recusal is required due to
the ACLU/SC’s limited activities in the court below. Propo-
nents rely on two connections to the litigation that is now
before this court. The first such action to which Proponents
point is that my wife and the ACLU/SC’s then-legal director
attended a meeting with one of Plaintiffs’ lawyers and a sup-
porter of Plaintiffs’ lawsuit prior to the filing of that action in
the district court. At that meeting the ACLU/SC was asked to
PERRY v. SCHWARZENEGGER 543
support the lawsuit and vigorously declined. Surely, that pro-
vides no cause for my recusal.
The second is that recusal is required because the
ACLU/SC ultimately joined in two amicus briefs and an
unsuccessful intervention motion—the latter on behalf of sev-
eral Bay Area gay rights groups—filed in the district court by
six civil rights organizations and signed by the lawyer for one
of the other groups. The two briefs that the ACLU/SC joined
were among twenty-four amicus briefs filed in the district
court on behalf of 122 organizations and private individuals.
The two briefs were not cited in any way in the district court’s
findings of fact and law, and the ACLU/SC had no further
connection with the case in the district court and none at all
as the case came before us.4
This limited participation in the district court does not
endow my wife or the ACLU-SC with any “interest that could
be substantially affected by the outcome of the proceeding.”
§ 455(b)(5)(iii). Proponents do not explain the nature of the
interest that they believe my wife or the ACLU/SC possesses
by virtue of the ACLU/SC’s tangential filings in the district
court, and no such interest exists. At best, it could be said that
through the filings the ACLU/SC has made clear its position
regarding how this case should be decided. However, as
explained above, the fact that my wife heads an organization
that has adopted a position concerning this case, whether the
position is expressed by my wife or in any other manner, can-
not warrant my recusal. And the suggestion that either my
wife or the ACLU/SC could benefit in any tangible way from
this court’s ultimate decision simply because the ACLU/SC
signed on to peripheral lower court filings is highly “unrea-
sonable and speculative.” Microsoft Corp., 530 U.S. at 1302
(statement of Rehnquist, C.J.).5 This conclusion is consistent
4
As a matter of interest, 49 amicus briefs were filed in this court, on
behalf of 282 individuals and organizations.
5
Had the ACLU/SC filed a brief in this court, it could conceivably be
argued that the organization had an interest in the outcome of our delibera-
544 PERRY v. SCHWARZENEGGER
with the recusal policy adopted by seven of the nine then-
sitting Supreme Court Justices, which does not require recusal
under § 455(b)(5)(iii) due to a relative’s participation in lower
court proceedings absent certain “special factor[s]” not pres-
ent here, such as the relative’s service as lead counsel below
or the possibility that a relative’s compensation could be sub-
stantially affected by the case’s outcome. Statement of
Recusal Policy, 114 S. Ct. 52, 53 (1993).6 The policy is based
on the Justices’ construction of § 455(b)(5)(iii), and makes
clear that under that provision no recusal is required where,
as here, a relative’s participation in a lower court proceeding
had no substantial effect on any interest held by that relative.
Here, that clearly was the case with respect to the ACLU’s
actions in the lower court. In sum, my wife neither had an
interest cognizable under § 455(b)(5)(iii) nor could any such
interest be substantially affected by the outcome of the case
in this court.
tions, on the theory that it could then seek to claim a portion of the credit
for any favorable decision this court issued in order to attempt to raise
funds or solicit new members. Although I find such arguments highly
questionable, in order to avoid any possible claim of conflict of interest
I have, as stated above, always recused myself from cases in which the
ACLU/SC participated in any way in this court, including filing a brief,
amicus or otherwise. However, even this tenuous “interest” is not present
where, as here, the ACLU-SC was one of 122 organizations and individu-
als to have joined an amicus brief in the lower court, but made no filing
of any kind with this court. The lower court filings could under no circum-
stances have created an “interest” cognizable under § 455(b)(5)(iii), let
alone an “interest” that could have been “substantially affected by the out-
come of the proceeding.” § 455(b)(5)(iii).
6
The Justices’ recusal policy emphasizes that “one unnecessary recusal
impairs the functioning of the Court,” id., a consideration that applies to
this court’s proceedings only to the extent that an en banc vote might ulti-
mately be affected by a judge’s unnecessary recusal. However, because
the Court’s conclusion that a relative’s participation in lower court pro-
ceedings does not merit a Justice’s recusal absent “special factors” is
based on its construction of the recusal statute, it is clearly applicable to
the recusal decision of this court’s judges.
PERRY v. SCHWARZENEGGER 545
B
Nor does § 455(a) require recusal. It is significant that none
of § 455(b)(5)’s criteria for recusal based on a family mem-
ber’s involvement in a case applies here.7 As the Supreme
Court has explained,
it is unreasonable to interpret § 455(a) (unless the
language requires it) as implicitly eliminating a limi-
tation explicitly set forth in § 455(b). It would obvi-
ously be wrong, for example, to hold that
“impartiality could reasonably be questioned” sim-
ply because one of the parties is in the fourth degree
of relationship to the judge. Section 455(b)(5), which
addresses the matter of relationship specifically,
ends the disability at the third degree of relationship,
and that should obviously govern for purposes of
§ 455(a) as well.
Liteky v. United States, 510 U.S. 540, 553 (1994). Congress
gave careful consideration to the question of when a judge
must recuse himself due to a relative’s participation and, in
§ 455(b)(5), identified the specific circumstances in which a
judge must do so. Section 455(a) cannot be read so broadly
as to render that determination meaningless by proscribing
under that provision what is permissible under § 455(b)(5).
Cf. Baker & Hostetler LLP v. U.S. Dep’t of Commerce, 471
F.3d 1355, 1357-58 (D.C. Cir. 2006) (Kavanaugh, J., On
Motion for Recusal) (concluding that because “[i]n
§ 455(b)(3) . . . Congress clearly and specifically addressed
the effect of prior government service on a judge’s recusal
obligations,” recusal under § 455(a) due to prior government
service may be required only under “rare and extraordinary
circumstances.”).
7
That is to say, that my wife is not a party to this case, § 455(b)(5)(i);
is not a lawyer in this proceeding, § 455(b)(5)(ii); and does not have an
interest that could be substantially affected by this proceeding’s outcome,
§ 455(b)(5)(iii).
546 PERRY v. SCHWARZENEGGER
That is not to say that there could be no special factors or
unforeseeable circumstances that might render § 455(a) appli-
cable where Congress, in adopting the limitations of
§ 455(b)(5), failed to consider certain types of actions or
where new practices have arisen due to changes in the prac-
tice of law or other societal developments. Proponents point
to no such special factors or unforseen, let alone unforesee-
able circumstances here, and none exist of which I am aware.
However, even if one were to ignore the existence of clear
rules governing a case such as this in § 455(b)(5), my recusal
under § 455(a) would still be appropriate only if a reasonable
person with knowledge of all the facts would reasonably
believe that, by virtue of my marriage, I might approach and
decide this case differently than I would have otherwise
approached and decided it. See Cheney v. Dist. Ct., 541 U.S.
913, 928-29 (2004) (Memorandum of Scalia, J.); Nelson, 718
F.2d at 321. As stated above, my wife has no “interest” in the
outcome of this case that might be substantially affected by its
outcome, over and beyond the interest of any American with
a strong view concerning the social issues that confront this
nation. Similarly, the organization she heads, not having par-
ticipated in any filings before this court, has no more to gain
from the outcome of this case than any other person or entity
with strong views on the subject but not directly involved
with the litigation.8 As to the fact of my wife’s views on the
subject before us or any other subject that may come before
us, or the views of any organization she heads, she is an inde-
pendent person who need not obtain my approval or agree-
ment to advocate for whatever social causes she chooses. The
8
As noted, supra at 540-41, I recuse myself as a matter of personal pol-
icy whenever the organization my wife heads appears or files an amicus
brief in the court on which I sit. I do so to avoid an appearance that the
organization might benefit from a decision in which I play a part; as
explained supra n.5, no such benefit and no such appearance could arise
in a case such as this where the organization does not appear before this
court in any way or manner, and where its only participation in the district
court was as one of 122 organizations and individuals to sign on to an
amicus brief.
PERRY v. SCHWARZENEGGER 547
views are hers, not mine, and I do not in any way condition
my opinions on the positions she takes regarding any issues.
Therefore, a reasonable person with full knowledge of all the
facts would not reasonably believe that I would approach a
case in a partial manner due to her independent views regard-
ing social policy, whether those views are publicly expressed
and advocated for, or not, and whether advocated for by her
in her private capacity or in her capacity as head of the
ACLU/SC. I have been a federal judge for 30 years and have,
during that time, publicly expressed my views regarding the
constitution and its meaning on many occasions, including a
number that predate my marriage. See, e.g., Stephen R. Rein-
hardt, Symposium: The Conflict Between Text and Precedent
in Constitutional Adjudication, 73 Cornell L. Rev. 434
(1988). A reasonable person familiar with my judicial record
throughout my career, and the other facts relevant to this
recusal inquiry, would not reasonably believe that either my
wife’s beliefs or her organization’s filings in the court below
would play any role whatsoever in my handling of the present
case. I therefore decline to recuse myself under § 455(a).
III
It is, indeed, important that judges be and appear to be
impartial. It is also important, however, that judges not recuse
themselves unless required to do so, or it would be too easy
for those who seek judges favorable to their case to disqualify
those that they perceive to be unsympathetic merely by pub-
licly questioning their impartiality. See H.R. Rep. No. 93-
1453 (1974) (providing legislative history of federal recusal
statute) (“At the same time, in assessing the reasonableness of
a challenge to his impartiality, each judge must be alert to
avoid the possibility that those who would question his impar-
tiality are in fact seeking to avoid the consequences of his
expected adverse decision.”). Were I to be recused because of
the facts Proponents cite, it would not be merely from serving
on the present panel but from voting on whether to rehear the
case en banc and taking part in any en banc proceedings held
548 PERRY v. SCHWARZENEGGER
by this court. My wife has no tangible interest in this case’s
outcome, and I do not believe that my impartiality in this case
can reasonably be questioned on the basis of either her public
statements or the ACLU/SC’s involvement in any judicial
proceedings. For these reasons, I deny Proponents’ motion.