Judge O’Connell Recuses, Reverse Bench Slaps Chief Judge Kozinski In Class Action Intervention

December 20th, 2013

Remember when Chief Judge Kozinski objected in a class action case involving the Nissan Leaf, even though the case was before a district judge in the Los Angeles? Well, according to a report from Alison Frankel ($), Judge O’Connell has recused.

In Thursday’s order, O’Connell laid out the problem: “(Kozinski), although appearing in his personal capacity, serves as the Chief Judge of the 9th Circuit Court of Appeals,” she wrote. “In his professional capacity, the objector sits on panels that decide appeals from this court, makes decisions regarding sitting by designation on the court of appeals, and reviews complaints of judicial misconduct involving district judges within the circuit.” That relationship, she said, might lead to doubts about her impartiality. “For example, if the court were to disapprove the settlement, a reasonable person might question whether the court’s actions were a result of the objector’s participation in the lawsuit,” O’Connell wrote. “If the court were to approve the final settlement, a reasonable person might question whether the court was favoring the other side.” As a result, she said, the canons of judicial conduct required her recusal.
O’Connell is actually the second judge to step aside from the Nissan case after Kozinski surfaced as an objector. U.S. District Judge Dean Pregerson, who oversaw the LEAF case through preliminary approval of the settlement, recused himself last month, citing his “social relationship” with objectors and previous discussions with Kozinski about the battery in his LEAF.
Surely not every judge in the 9th Circuit has spoken with Judge Kozinski about his electric car, so Pregerson’s grounds for recusal didn’t seem like a big problem. But every judge in the circuit could cite the same concerns as O’Connell, a former California state court judge and assistant U.S. attorney, who has been on the bench for less than a year.┬áIs there any judge in the 9th Circuit, in other words, who can hear this case?
Judge Kozinski declined my invitation to comment on the recusal. Class counsel Jordan Lurie and Nissan counsel Paul Cauley didn’t get back to me.
For once, Kozinski was speechless.