Former Otter lawyer charges bias at 9th Circuit

Monte Neil Stewart, the attorney who represented both Idaho and Nevada in oral arguments at the 9th Circuit Court of Appeals in same-sex marriage cases, has leveled a highly unusual charge at the 9th Circuit: That the three-judge panel selected to hear Idaho’s and Nevada’s cases wasn’t selected through a “neutral” process, and instead was purposely stacked with judges favorable to same-sex marriage in order to achieve an outcome favorable to the plaintiffs. “We bring the issue of bias in the selection process to the Circuit’s attention with respect and with a keen awareness that questioning the neutrality of the panel’s selection could hardly be more serious,” Stewart wrote in legal filings with the 9th Circuit, requesting a full en banc review of Nevada’s case. “But the sensitivity of raising uncomfortable questions for this circuit must be balanced against the interests of ordinary Nevadans, who deserve a fair hearing before a novel interpretation of constitutional law deprives them of the right to control the meaning of marriage within their State.” Stewart was Gov. Butch Otter’s private attorney for Idaho’s unsuccessful appeal to the 9th Circuit, after a U.S. magistrate judge overturned Idaho’s ban on same-sex marriage in May as unconstitutional. In his most recent legal filings in Idaho’s case, Otter replaced Stewart with Washington, D.C. attorney Gene Schaerr. Otter’s office wouldn’t say Tuesday if Stewart still represents Idaho or the governor in any capacity. Otter spokesman Mark Warbis also declined to comment on whether Otter supports Stewart’s bias claim. Same-sex marriage becomes officially legally in Idaho at 9 a.m. on Wednesday, when county clerks statewide can begin issuing marriage licenses to same-sex couples. The same three-judge panel heard the same-sex marriage cases from Idaho, Nevada and Hawaii. It found that state bans on same-sex marriage violate the equal protection requirements of the United States Constitution. Stewart contended that a statistical analysis he had completed by an expert statistician shows it’s highly unlikely that 9th Circuit Judges Stephen Reinhardt and Marsha Berzon would be selected to hear Nevada’s case, after also sitting on, in Reinhardt’s case, four other cases in the past five years dealing with gay rights, and in Berzon’s, five other cases. “Sophisticated statistical analysis validates the reasonable person’s sense that something is amiss,” Stewart wrote. “Judges Reinhardt and Berzon are publicly perceived to be favorably disposed to arguments for expanding the rights of gay men and lesbians, more so than all or nearly all other judges in this Circuit. That perception gives rise to an appearance of an uneven playing field.” Carl Tobias, a law professor at the University of Richmond in Richmond, Va., who has closely followed same-sex marriage cases around the country, said a biased selection process is “virtually unheard of” in federal appeals courts. “The three-judge panels are randomly drawn,” Tobias said. “It is virtually unheard of that the people in charge of the process would game the system. My whole sense of the federal appeals courts is that the judges are too professional to allow that to happen.” In an en banc review, a larger, 11-judge panel would re-hear the case already decided by the court’s three-judge panel. Over the summer, Idaho requested an en banc review initially, rather than a three-judge panel, but the court denied the request.