3 Eastern District judges recuse in toxic label litigation

Three judges in the U.S. Eastern District of California have recused themselves from the same case over five days. The unusual sequence of orders is not related to recent revelations that 131 federal judges across the country oversaw cases in which they had a financial interest in one or more litigants.

The triple recusal case is about the labeling of foods that contain acrylamide under Proposition 65. An intervenor, the Council for Education and Research in Toxics, moved to remove U.S. Eastern District Chief Judge Kimberly J. Mueller in August, stating she had conflicts involving her husband, the president of a large Sacramento real estate company. California Chamber of Commerce v. Becerra, 2:19-cv-02019-JAM-JDP (E.D. Cal., filed Oct. 7, 2019).

Mueller had overseen the case for two years at that point. On Sept. 24, she complied. The judge wrote she did not feel she had any legally compelling reason to recuse, except that aggressive tactics by an intervenor in the case invaded her privacy. Mueller also wrote the plaintiff only sought to remove her after several adverse rulings.

University of Pittsburgh School of Law professor Emeritus Arthur D. Hellman said recusal orders like the one Mueller wrote are extremely rare.

"I don't think I've seen anything like it, a judge recusing herself because of the litigant's behavior," Hellman said.

Berkeley attorney Richard E. Flamm, who specializes in judicial ethics, said aggressive bids to remove a judge can backfire.

"If I'm the judge and I think a law firm that's appearing in front of me is purposely doing something to try to get me off the case, I'm not going to allow that gambit to succeed," Flamm said.

He added, "Usually when a judge recuses themselves, they don't say why. That's one of the things that complicates the field. There's tens of thousands of recorded decisions explaining why judges shouldn't get off a case, and virtually no decisions talking about when they should."

The next two recusals illustrate Flamm's point. District Judge John A. Mendez recused on Sept. 27. Senior U.S. District Judge Morrison C. England Jr. recused on Sept. 29.

Neither gave a specific reason, though England referenced "the provisions of 28 U.S.C. § 455." This is federal code mandating a judge must disqualify if they have personal bias for or against a litigant, have a financial interest in a party or other similar reasons. On Friday, the court assigned the case to District Judge Dale A. Drozd.

Mueller also sealed over a dozen documents relating to the motion to recuse her. Reached last week, an attorney for the plaintiff said he was going to file a motion with the new judge to unseal the documents. Raphael Metzger of Metzger Law Group in San Diego said the documents would show the need for Mueller to recuse. He did not respond to a subsequent email seeking further comment.

But the attorney for other proposed intervenors did. New York-based Aida Poulsen represents an environmental group known as the Healthy Living Foundation and Penny Newman, an activist who was a key member of the Proposition 65 effort when voters passed it in 1986.

"On March 29, 2021, Judge Mueller has issued a preliminary injunction that prohibited a requirement to warn consumers about presence of this dangerous carcinogen in their food, finding that it violates corporations' rights against compelled commercial speech, and siding with the plaintiff who represents the industrial lobby," Poulsen wrote in an emailed statement. "The Ninth Circuit Court imposed an emergency stay of this injunction."

She added, "HLF trusts that the court will unseal the pleadings and supporting documents of public health advocates, which are largely based on information in free public access, sources like Yelp, California Secretary of State's website, Judge Mueller's own press appearances and disclosures, public records, corporate websites, and therefore by definition are devoid of invasion of privacy ... it is important to provide the public with access to court records in the case of such high public concern."