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Tuesday, January 22, 2013

Justice Baxter Recuses Himself from Harris v. City of Santa Monica

According to an article at, California Supreme Court Justice Marvin Baxter has recused himself from Harris v. City of Santa Monica in the wake of a lawsuit filed against his daughter that could be affected by the Supreme Court ruling. 
Tuesday's order gave no reason for Baxter's recusal. But last week two San Francisco employment attorneys filed a pregnancy discrimination suit against [Baxter's daughter, Laura Baxter-Simons], an East Bay attorney, alleging she violated California's Fair Employment and Housing Act by terminating a pregnant housekeeper.  
If Baxter's recusal leaves the Court without a four-vote majority, the Court may have to appoint a pro tem justice and then re-hear oral argument, unless the parties waive it. I cannot guess whether that will be necessary. 

But based on my reading of the justices at oral argument, Harris is likely to be a close decision. Baxter asked only one question at oral argument. Assuming that he would have been a vote for the defense, his recusal will be a problem only if the vote would have been 4-3 for the defense, which would leave the Court now split evenly at 3-3. If the Court takes no action to appoint a pro tem in the next couple of weeks, that may indicate that the majority (or plurality) consists of a more broad coalition, or that the plaintiff already has four votes.  

The Court's opinion is due on March 4, 2013, unless the Court gives itself additional time, for example by ordering further briefing, as it did last year in Brinker v. Superior Court.  

Regardless, the State Bar of California will present a webinar on the result within a week or two of the decision. Both Paul Cane, who argued as amicus for the defense, and David deRubertis, who argued for the plaintiff, have agreed to speak. Stay tuned for more information.

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