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A San Francisco Superior Court judge on Wednesday brushed aside a call to disqualify the entire bench from same-sex marriage cases, saying the presiding judge’s involvement in a suit over domestic partner benefits didn’t create a conflict of interest. “Public perception is the cornerstone of our system,” acknowledged Judge Richard Kramer. But he dismissed the claim that the stake held by Presiding Judge Donna Hitchens and her partner, Judge Nancy Davis, in a Sacramento suit would shake public confidence. After a coordination hearing that lasted for about two hours Wednesday, Kramer concluded that cases that began as five separate suits — one in Los Angeles — should be coordinated in San Francisco Superior Court. Kramer’s recommendation goes to the California Judicial Council, which decides on coordination. Deputy Attorney General Robert Wilson, whose office asked that the cases be coordinated, took no position on where the litigation should land. But the Alliance Defense Fund’s Robert Tyler, also backing coordination, pushed to have the cases heard in another venue — such as Sacramento. Tyler cited the fact that Hitchens and Davis are among the interveners in a pending Sacramento County case, Knight v. Davis, 03AS05284. The Alliance Defense Fund is representing a plaintiff in that case, arguing that a state law expanding domestic partners’ rights violates a voter-passed state marriage law — one of the same laws being challenged in the same-sex marriage cases. If that law falls, Knight v. Davis would become moot — so Hitchens and Davis have a direct interest in the outcome of the same-sex marriage litigation, Tyler argued. Likening Hitchens to a “boss” with control over judicial assignments, Tyler concluded “there is certainly a taint” over the whole bench in San Francisco. Kramer seemed doubtful from the start. At one point, he suggested Hitchens’ participation in the litigation so far — routing the coordination petition his way — doesn’t appear controversial. “Does it change your view,” he asked Tyler, “if you know that I do all petitions for coordination?” Citing Canon 2 of the state’s code of judicial ethics, Tyler said, “The test is whether a reasonable person could entertain a doubt” that a judge would be able to act with integrity and impartiality — “not if there’s an actual conflict of interest.” “You do have the standard correct,” Kramer allowed. But he noted that the PJ will change before the next judicial assignments are made. “Doesn’t the fact that Judge Hitchens will not make the next round of assignments obviate that problem?” Judges have direct interests in cases in their counties’ courts “all the time,” Kramer said, adding that colleagues have been class members in class actions before him. “It doesn’t affect me at all that a colleague has an interest.” And in the Sacramento case, Kramer said, Hitchens and Davis would benefit no more than other couples who stood on the sidelines. Later Wednesday, Tyler said, “the judge made the wrong decision,” adding that he plans to look into whether he can appeal. But Kramer sided with Tyler and Deputy AG Wilson on another issue, saying coordination would help avoid administrative problems, inconsistent results, duplication and wasted resources. While attorneys for the city and same-sex couples argued against coordination, they said they were pleased that Kramer is allowing discovery to proceed and matters to be filed, though no hearings to be held, while the Judicial Council considers his recommendation.

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