Judge Unlikely to Be Disqualified in Abortion Videos Case

SAN FRANCISCO (CN) – A federal judge indicated Thursday he will likely nix an anti-abortion activist’s push to disqualify a judge who was weighing contempt charges against him for violating a court order.

“Your facts don’t fit into any of the cases I’ve seen where a recusal makes sense,” U.S. District Judge James Donato told abortion opponent David Daleiden’s attorney at Thursday’s hearing in the Northern District of California.

Daleiden, who heads the anti-abortion group Center for Medical Progress, sought to disqualify U.S. District Judge William Orrick III just as Orrick was deciding whether to slap Daleiden and his attorneys with sanctions for releasing secretly taped videos of an abortion trade group’s meeting in violation of a court order.

Orrick issued an injunction barring disclosure of the videos in February 2016, finding the safety and privacy of the National Abortion Federation’s members outweighed the center’s First Amendment right to disclose information it obtained under false pretenses. To get into the meetings, Daleiden and others posed as a fake biomedical company.

Donato received the motion to disqualify Orrick on a random assignment, and he signaled on Thursday that arguments in favor of disqualification appear flimsy at best.

Daleiden claims Orrick should be disqualified based on his previous work with a Planned Parenthood-affiliated health clinic, his wife’s “liking” Facebook posts by abortion rights groups, and Orrick’s comments during a May 25 hearing.

Donato asked how a spouse’s publicly stated views could serve as evidence of judicial bias.

Daleiden’s attorney, Catherine Short, replied that Orrick appearing in his wife’s Facebook profile photo as she “likes” posts that are “highly derogatory towards the defendant” gives the appearance of bias, adding that Orrick has never stated equivocally that his wife’s views are not his own.

“It’s 2017,” Donato snapped. “Do you really have to say in this day and age that my wife is an independent person? When do we assume that a spouse has the same view as her husband?”

Turning to Orrick’s prior work as board member and secretary of Good Samaritan Family Resource Center, a health clinic that serves immigrants in San Francisco, Donato asked how that makes the judge biased in this case.

Short answered that before he became a federal judge, Orrick failed to disclose his continued work with Good Samaritan after 1999. Orrick served in a key role as secretary of the organization in 2001 when it agreed to start hosting a Planned Parenthood clinic, she said.

“It hosts a clinic, provides rent-free space,” Short said. “Good Samaritan refers to the clinic as a key partner.”

Donato asked Short if she would concede that Good Samaritan does not fund Planned Parenthood, and that the two groups are separate and independent entities. After some hesitation, Short acknowledged the judge’s declaration of facts.

Addressing Orrick’s comments at a May 25 conference to discuss the violation of his injunction, Short said the judge clearly showed bias against the defendant when he said Daleiden would be “well advised . . . that he is obligated to follow the Court’s orders, not try to skate around them and cause real harm to human beings.”

Short said Orrick’s comments show that he believes that “Daleiden’s intention was to harm people by releasing the videos.”

“You’re reading an awful lot into a short comment on the record,” Donato replied.

In an opposition brief, the National Abortion Federation called the motion to disqualify “an obvious attempt to derail the contempt proceeding,” adding that the motion is also untimely because it’s based on evidence known to the defendants as far back as 2015.

“It’s as plain as day,” federation attorney Derek Foran said in court on Thursday. “No objectively reasonable, thoughtful person could reach the conclusion that Judge Orrick was biased or appears to be biased.”

Daleiden and the center also filed a motion to disqualify Orrick in a separate lawsuit in which Planned Parenthood accused the center of conspiracy and fraud for releasing secretly taped and heavily edited videos of conversations with its employees in 2015.

Donato said he would likely issue a ruling on the motions to disqualify Orrick for both cases since the facts at issue are essentially the same. Donato said the parties could expect a ruling to come “promptly.”

In a separate criminal case in state court, a San Francisco judge dismissed 14 counts of invasion of privacy against Daleiden and his co-defendant Sandra Merritt on Wednesday. The pair still face conspiracy charges for posing as researchers to infiltrate and secretly record the National Abortion Federation meetings in 2014 and 2015.


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