November 16, 2016
In the writ proceeding started the day after the election to challenge Proposition 66, the speed-up-the-death-penalty initiative that appears to have been approved by the voters (as of this evening, it is leading by over 270,000 votes), the Supreme Court today entered an order announcing the recusal of Chief Justice Tani Cantil-Sakauye and Justice Ming Chin.
The new law requires action by the Judicial Council, so the petition in Briggs v. Brown names the Council as one of four respondents. The Chief Justice and Justice Chin are the Council’s Chair and Vice-Chair, respectively. Today’s order says that they “are disqualified from participating in the matter under Canon 3E(5)(e)(i) of the California Code of Judicial Ethics.” That provision states that an appellate justice is disqualified if “[t]he justice . . . is a party or an officer, director, or trustee of a party to the proceeding.”
Supreme Court justices usually do not explain their reasons for recusing or not recusing themselves. We probably could have figured out the reason in this case, but it’s nice not to have to speculate.
The recusals won’t necessarily require the immediate appointment of any Court of Appeal justices to serve temporarily on the Supreme Court. At this initial stage, when the court is deciding whether to hear the writ petition on its merits, section IV.J. of the court’s Internal Operating Practices and Procedures provides for pro tem appointments only when “four justices cannot agree on a disposition.” If the court does take the case, then two Court of Appeal justices will take the Chief’s and Justice Chin’s places.