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Appeal Denied

U.S.
Sep 26, 2000
530 U.S. 1301 (2000)

Summary

holding that recusal was not required where son of Chief Justice was partner at a law firm that represented one of the parties in matters pending before another court

Summary of this case from Armenian Assembly of America, Inc. v. Cafesjian

Opinion

SEPTEMBER 26, 2000


No. 00-139 MICROSOFT CORP. v. UNITED STATES ET AL. Appeal from D.C.D.C.; and

No. 00-261 NEW YORK EX REL. SPITZER, ATTORNEY GENERAL OF NEW YORK, ET AL. v. MICROSOFT CORP. C.A.D.C. Cir. In No. 00-139, direct appeal is denied, and case is remanded to the United States Court of Appeals for the District of Columbia Circuit. The Clerk is directed to issue the judgment forthwith. In No. 00-261, certiorari before judgment is denied. Reported below: No. 00-139, 97 F. Supp.2d 59.


Microsoft Corporation has retained the law firm of Goodwin, Procter Hoar in Boston as local counsel in private antitrust litigation. My son James C. Rehnquistis a partner in that firm, and is one of the attorneys working on those cases. I have therefore considered at length whether his representation requires me to disqualify myself on the Microsoft matters currently before this Court. I have reviewed the relevant legal authorities and consulted with my colleagues. I have decided that I ought not to disqualify myself from these cases.

Title 28 U.S.C. § 455 sets forth the legal criteria for disqualification of federal magistrates, judges, and Supreme Court Justices. This statute is divided into two subsections, both of which are relevant to the present situation. Section 455(b) lists specific instances in which disqualification is required, including those instances where the child of a Justice "[i]s known . . . to have an interest that could be substantially affected by the outcome of the proceeding." § 455(b)(5)(iii). As that provision has been interpreted in relevant case law, there is no reasonable basis to conclude that the interests of my son or his law firm will be substantially affected by the proceedings currently before the Supreme Court. It is my understanding that Microsoft has retained Goodwin, Procter Hoar on an hourly basis at the firm's usual rates. Even assuming that my son's nonpecuniary interests are relevant under the statute, it would be unreasonable and speculative to conclude that the outcome of any Microsoft proceeding in this Court would have an impact on those interests when neither he nor his firm would have done any work on the matters here. Thus, I believe my continued participation is consistent with § 455(b)(5)(iii).

Section 455(a) contains the more general declaration that a Justice "shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." As this Court has stated, what matters under § 455(a) "is not the reality of bias or prejudice but its appearance." Liteky v. United States, 510 U.S. 540, 548 (1994). This inquiry is an objective one, made from the perspective of a reasonable observer who is informed of all the surrounding facts and circumstances. See ibid.; In re Drexel Burnham Lambert Inc., 861 F.2d 1307, 1309 (CA2 1988). I have already explained that my son's personal and financial concerns will not be affected by our disposition of the Supreme Court's Microsoft matters. Therefore, I do not believe that a well-informed individual would conclude that an appearance of impropriety exists simply because my son represents, in another case, a party that is also a party to litigation pending in this Court.

It is true that both my son's representation and the matters before this Court relate to Microsoft's potential antitrust liability. A decision by this Court as to Microsoft's antitrust liability could have a significant effect on Microsoft's exposure to antitrust suits in other courts. But, by virtue of this Court's position atop the Federal Judiciary, the impact of many of our decisions is often quite broad. The fact that our disposition of the pending Microsoft litigation could potentially affect Microsoft's exposure to antitrust liability in other litigation does not, to my mind, significantly distinguish the present situation from other cases that this Court decides. Even our most unremarkable decision interpreting an obscure federal regulation might have a significant impact on the clients of our children who practice law. Giving such a broad sweep to § 455(a) seems contrary to the "reasonable person" standard which it embraces. I think that an objective observer, informed of these facts, would not conclude that my participation in the pending Microsoft matters gives rise to an appearance of partiality.

Finally, it is important to note the negative impact that the unnecessary disqualification of even one Justice may have upon our Court. Here — unlike the situation in a District Court or a Court of Appeals — there is no way to replace a recused Justice. Not only is the Court deprived of the participation of one of its nine Members, but the even number of those remaining creates a risk of affirmance of a lower court decision by an equally divided court.


I would note probable jurisdiction in this case. 15 U.S.C. § 29(b). The case significantly affects an important sector of the economy — a sector characterized by rapid technological change. Speed in reaching a final decision may help create legal certainty. That certainty, in turn, may further the economic development of that sector so important to our Nation's prosperity.

I recognize that there are competing considerations. A Court of Appeals proceeding would likely narrow, focus, and initially decide the legal issues now presented here. It would thereby facilitate any later deliberation in this Court. Nonetheless, I believe this Court can consider the issues fully now by taking additional briefs and by granting additional time for oral argument, if necessary. Consequently, I would hear the appeal.


Summaries of

Appeal Denied

U.S.
Sep 26, 2000
530 U.S. 1301 (2000)

holding that recusal was not required where son of Chief Justice was partner at a law firm that represented one of the parties in matters pending before another court

Summary of this case from Armenian Assembly of America, Inc. v. Cafesjian

concluding that son's representation of party in unrelated proceedings did not require recusal

Summary of this case from Rubashkin v. United States

denying direct appeal and denying certiorari

Summary of this case from Shapiro v. City of Carlsbad

rejecting motion for recusal under Section 455 based on his son's representation, in another case, of a party before the Court

Summary of this case from Philip Morris USA Inc. v. United States Food & Drug Administration

discussing his son's representation of Microsoft in another matter, but deciding not to recuse himself because no “well-informed individual would conclude that an appearance of impropriety exists”

Summary of this case from Hurles v. Ryan

discussing his son's representation of Microsoft in another matter, but deciding not to recuse himself because no “well-informed individual would conclude that an appearance of impropriety exists”

Summary of this case from Hurles v. Ryan

setting forth the facts regarding his son's representation of Microsoft in a different matter, and concluding that those facts did not require his recusal in a case brought by Microsoft on the same subject matter because "a well-informed individual would [not] conclude that an appearance of impropriety exists" based on those facts

Summary of this case from Hurles v. Ryan

declining to recuse from Microsoft antitrust case under either § 455 or § 455(b) where son represented Microsoft in other antitrust matters that were potentially affected by case's outcome

Summary of this case from Perry v. Schwarzeneggre

In Microsoft Corp. v. United States, Chief Justice Rehnquist analyzed whether he should recuse himself from the case because his son worked for the firm representing Microsoft and was an attorney for Microsoft in different antitrust litigation.

Summary of this case from Fields v. Am. Airlines, Inc.

declining to recuse from Microsoft antitrust case under §§ 455 or (b) where son represented Microsoft in other antitrust matters that were potentially affected by case's outcome; "[e]ven assuming that my son's nonpecuniary interests are relevant under the statute, it would be unreasonable and speculative to conclude that the outcome of any Microsoft proceeding in this Court would have an impact on those interests when neither he nor his firm would have done any work on the matters here"

Summary of this case from Salazar v. United States

discussing his decision not to recuse himself in a case where his son was a partner at the firm representing Microsoft Corporation and was one of the attorneys working on the case, as he explained that he had no "interest that could substantially be affected by the outcome of the proceeding" and no "well-informed individual would conclude that an appearance of impropriety exists"

Summary of this case from Neroni v. Grannis

expressing doubt that 28 U.S.C. § 455 requires recusal in support of Justice Rehnquist's decision to stay on the case despite his son's partnership in a firm that was appearing before the Court

Summary of this case from Matthews v. Stolier

In Microsoft Corp. v. United States, 530 U.S. 1301 (2000), Chief Justice Rehnquist declined the invitation to disqualify himself under Section 455(a) even though his son was a partner in a law firm whose clients include Microsoft. Explaining that his son's personal and financial concerns were not affected by the decision in the pending litigation, Chief Justice Rehnquist stated that he "[does] not believe that a well-informed individual would conclude that an appearance of impropriety exists simply because [his] son represents, in another case, a party that is also a party to litigation in [the Supreme] Court."

Summary of this case from U.S. v. Bobo
Case details for

Appeal Denied

Case Details

Full title:APPEAL DENIED

Court:U.S.

Date published: Sep 26, 2000

Citations

530 U.S. 1301 (2000)

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