Kline’s Strange Route to Gay-Marriage Panel

When the First District handed down its ruling in California’s marriage cases a few weeks back, more than a few cynics marveled at the (relative) good fortune of the pro-gay-marriage folks. After all, Justice J. Anthony Kline only wound up hearing the case after two of the justices who normally would have been tapped recused themselves. Then Kline turned out to be the only champion on the panel — and a particularly vociferous one at that — for the notion that the state should be forced to allow same-sex marriage.

Kind of curious ourselves, we put in a few calls to the AOC to find out how Kline got in on the case. Turns out, he wasn’t the first choice for a sub.

Normally, three of the four justices in Division Three would have been on the case. When Stuart Pollak and Peter Siggins recused themselves, that left William McGuiness and Joanne Parrilli as givens. But there was still one seat left to fill. Enter a “random” assignment system that had been in place for years — and which has since been abandoned.

Marcia Taylor, division director for appellate and trial court services for the AOC, said that since at least 1999, the court would go down names listed in random order to find the next recusal-free person. (How was that list drawn up? Taylor said she wasn’t sure if it was by a computer or some other method.) At any rate, she said Justice James Marchiano, who used to specialize in medical malpractice and insurance defense as a lawyer and who was a Democrat appointed by a Republican governor, was the next sub on the list. But he recused himself. After that came Kline.

That all happened before the appeal court changed its ways about six months ago. Now, Taylor said, they’ve moving to an alphabetical list like the Supreme Court uses. She maintained the change wasn’t the result of complaints really, though she said it had been pointed out that a justice who had recently subbed might wind up at the top of the heap too soon when a fresh list was generated, which happened every few years. Using the alphabet should avoid that.

As for what drove Pollak, Siggins and Marchiano away from this very controversial case? We haven’t heard back from Pollak or Marchiano yet (we’ll update you if we do), but the explanation Siggins offered Friday afternoon was pretty straightforward. He served as Gov. Arnold Schwarzenegger’s legal secretary and then chief of staff right before his appointment, and as such had had some involvement on the state’s side of the case, defending the ban on same-sex marriage that’s currently engrained in California law.

Pam Smith

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