Judge A. Wallace Tashima also vacated the June 30, 2011 hearing, and ordered the clerk of the U.S. District Court for the NMI to reschedule argument on the motion on a date subsequent to July 1, 2011 before a different judge.
Attorney Bruce Jorgensen, who is representing “John Doe” and “Jane Roe,” is asking the federal court to schedule a status conference, and to lift the stay order on the proceedings of the case.
“I was a member of the Ninth Circuit motions panel that denied defendants’ motion to stay the district court proceedings pending their interlocutory appeal,” said Tashima in his two-page written order on Tuesday.
Tashima further explained that “because the instant motion presents essentially the same issues that was before the appellate motions panel — whether these proceedings should remained stayed pending defendants’ appeal — I conclude that I should recuse myself.”
Citing Canon 3C of the Code of Conduct for United States judges, particularly (1) (e), Tashima said “the provision is somewhat ambiguous and does not clearly address my situation.”
He added, “Although I now encounter the case in a different judicial capacity — as a judge sitting by designation on the district court, rather than as a federal appellate judge — I do not hold a different ‘judicial position’ than before.”
“Nonetheless, as a member of the appellate panel, I clearly ‘expressed an opinion concerning the merits’ of the issue that this motion presents.
Thus, out of an abundance of caution, I have concluded that I should recuse myself under subsection (e). Further, I note that the parties can not waive any disqualification under subsection (e),” Tashima said, referring Code of Conduct for United States Judges, Canon 3D.
Through Jorgensen, the anonymous retirees sued Gov. Benigno R. Fitial and officials of the Retirement Fund in their official capacities, to place the pension agency under federal receivership.
Fitial, in his official capacity, responded through Assistant Attorney General Meaghan Hassel-Shearer, that the request for a status conference and motion to lift stay order should be denied because there are outstanding motions before the U.S. Court of Appeals for the Ninth Circuit “that directly affect this case.”
