All seven California Supreme Court justices recused themselves today from a dispute over the sale of state buildings, including the building that houses the Supreme Court.
The Sixth District Court of Appeal last week stayed the sale, which outgoing Gov. Arnold Schwarzenegger has proposed as a way to raise $2.3 billion for the cash-strapped state. The governor, whose term ends Jan. 2, is asking the Supreme Court to take the unusual step of intervening while the case is pending before the court of appeal.
"All members of the Supreme Court recuse themselves in the matter of Schwarznegger v. California Court of Appeal, Sixth Appellate District, No. S189114," the court stated in a two-paragraph order signed by Justice Marvin Baxter. The order stated that the court will follow its usual procedure of appointing justices from the court of appeal to sit pro tem, based on alphabetical rotation and availability.
Finding seven available pro tems on short notice during the holidays could be a little dicey, though. All Sixth District justices are certain to recuse, and the First District justices work in the same building as the Supremes, so they're likely to bow out too, unless they want to imply publicly that high court justices were mistaken about their recusal obligations. And there's at least one Third District justice who isn't going to touch this with a 10-foot pole. A court spokeswoman said late Tuesday that the court expects to announce the appointments this week.
Chief Justice Ronald George, in whose honor Schwarzenegger named the complex earlier today, was out of the country, but had left instructions that he be recused from the case if it came before the court, according to a court spokesman.
It's rare but not unheard of for all the Supreme Court justices to recuse themselves from a case. It happened 20 years ago in a -- you guessed it -- Supreme Court building case.
[Update: Horvitz & Levy's David Ettinger notes that the Second District justices would presumably recuse themselves, too, because the Ronald Reagan State Office Building, where they are seated, is also part of the sale (with the exception of Division Six in Santa Barbara). A back-of-the-envelope count leaves 39 eligible justices from the Third, Fourth and Fifth districts (justices with less than one year's experience aren't eligible for pro tem duty under Supreme Court rules, others like Judicial Council members Richard Huffman, Douglas Miller and Tani Cantil-Sakauye have obvious conflicts.)]
[Later update: The pro tems were named Wednesday, reports Horvitz's Ettinger. Justice Patricia Benke of the Fourth District will be act as chief justice for the case. Based on the alphabetical reocourt of appeal, it would appear that only Justices Coleman Blease and Cantil-Sakauye were unavailable or conflicted.]