January 13, 2011

An un-recusal

Canon 3(E)(4)&(5) of the California Code of Judicial Ethics states specific rules about when an appellate justice should disqualify himself or herself. And judges will occasionally explain why they are not disqualifying themselves from a case, as Ninth Circuit Court of Appeals Judge Stephen Reinhardt did recently. But what to make of a Supreme Court justice who recuses herself and then later un-recuses herself?

In Voices of the Wetlands v. State Water Resources Control Board, Justice Carol Corrigan recused herself when the Supreme Court granted review and deferred action nearly three years ago. She was recused again when the court two years ago made another deferral order and when it then ordered briefing in September 2009. (The parties’ briefing was completed in June 2010; the last response to an amicus brief was filed in October.) Yesterday, however, she un-recused herself. The court entered an order stating, “Having examined the materials subsequently filed in this court, and having concluded that there is no basis for requiring her further recusal in this matter, Justice Corrigan will participate in all further proceedings in this matter before this court.”

Un-recusal is not unprecedented. Just last year, the Supreme Court found no due process violation in a previously recused trial judge hearing a criminal case. (People v. Freeman (2010) 47 Cal.4th 993.)

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