Perry vs. Schwarzenegger: on to the Ninth?

[Kulindahr]

From the most recent Prop 8 thread:

The 9th Circuit expedited things in its ruling today. It will hear oral arguments in December.

The timeline is now:

•Yes on 8 Appeal brief - Sept 17th
•Response brief - Oct 18th
•Reply to response brief - Nov 1
•Oral Arguments - Dec 6th
•Decision - 2011

"Filed order (EDWARD LEAVY, MICHAEL DALY HAWKINS and SIDNEY R. THOMAS) Appellants' motion for a stay of the district court's order of August 4, 2010 pending appeal is GRANTED. The court sua sponte orders that this appeal be expedited pursuant to Federal Rule of Appellate Procedure 2. The provisions of Ninth Circuit Rule 31-2.2(a) (pertaining to grants of time extensions) shall not apply to this appeal. This appeal shall be calendared during the week of December 6, 2010, at The James R. Browning Courthouse in San Francisco, California.

The previously established briefing schedule is vacated. The opening brief is now due September 17, 2010. The answering brief is due October 18, 2010. The reply brief is due November 1, 2010. In addition to any issues appellants wish to raise on appeal, appellants are directed to include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing. See Arizonans For Official English v. Arizona, 520 U.S. 43, 66 (1997). IT IS SO ORDERED. [7441574] (JS)"

Seems the standing issue is going to be important.

The 'Lectric Law Library has this to say about standing:

There are three requirements for Article III standing: (1) injury in fact, which means an invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical; (2) a causal relationship between the injury and the challenged conduct, which means that the injury fairly can be traced to the challenged action of the defendant, and has not resulted from the independent action of some third party not before the court; and (3) a likelihood that the injury will be redressed by a favorable decision, which means that the prospect of obtaining relief from the injury as a result of a favorable ruling is not too speculative.

So the first thing the defenders of Prop 8 have to do is show why the Ninth should even listen to them. That's a mixed bag for the original plaintiffs; if the "Prop8ers" don't get a hearing, Judge Walker's decision stands for his jurisdiction, and it stops there -- until some other suit somewhere. That would be a victory for those in California, but for those who hope it will go on to be won before SCOTUS, a disappointment.

It's hard to see how they're going to show injury in fact. If this appeal is to happen, they're going to have to do some fancy gymnastics. It would be nice to be able to listen in as they try to fashion something to which the justices will pay attention.

Actually I hope they come up with something -- I want this to at least make the Ninth.

 

[rareboy]

People might also want to check out the following:

http://prop8trialtracker.com/

 

[TickTockMan]

It looks like it'll still be a ruling of no standing.

That's somewhat frustrating. If they don't have standing, why does this need to be stayed for months? Why the delay in simply dismissing this? I'd understand if the case were being heard, but this seems to accomplish nothing if the case never gets heard in front of the Ninth.

It does seem to be cruel and unusual punishment.

 

[Kulindahr]

^ I can't believe some of the stuff there. The brief asking for a stay had some points worth considering, but half of it was garbage -- no smackdown at all.

What I don't get is the question about Olson fighting to keep the case from going to the Ninth -- where's that from?

 

[Kulindahr]

It looks like it'll still be a ruling of no standing.

That's somewhat frustrating. If they don't have standing, why does this need to be stayed for months? Why the delay in simply dismissing this? I'd understand if the case were being heard, but this seems to accomplish nothing if the case never gets heard in front of the Ninth.

Maybe they're being given the benefit of the doubt. The first brief they file has to defend their standing; it could all end right there.

 

[braex27]

A finding of no standing is a serious one because it effectively stops the appeal dead in its tracks - unless a situation is very clear, a Court will usually exercise strong caution in finding no standing.

In my view, the 9th will probably hear the standing issue as a preliminary issue before launching into substantive arguments.

 

[evanrick]

Why cant the appeals court just affirm the lower court? What is so hard about that? End the fucking process already...

 

[braex27]

Because they presume ignorance before hearing arguments. It has to do with judicial impartiality, and all that jazz.

There are some court systems in other democracies which take over the duties of the prosecutor, well in criminal cases anyway. But that isn't how it works in the US of A.

Am I mistaken to recall that is how it works in Francophone countries?

I believe that the US, like Australia and the UK, has an adversarial system of law, in which the parties are tasked with presenting the evidence, the arguments and the legal precedents for the Court's consideration.

Countries such as France (please correct me if I am wrong) have an inquisitorial system of law in which the judge takes a much more active role in the proceedings - the judge will actively pursue a line of questioning to extract the information or evidence he or she needs to render a decision. I think I may have over-simplified.

Having looked at this case, I would have thought one of the challenges facing the 9th is the fact that what is currently on appeal is a question of law, and not one of fact - that is, the 9th is being asked to consider whether a law is constitutionally valid. My experience with appeals concerning questions of law are that they are far more difficult than those in which all that is required is an application of the law to the facts.

It saddened me to hear that the 9th had granted the stay when on my review of the case, Yes on Prop 8 could not have reasonably shown any prejudice which would have been caused to the appeal if Judge Walker's judgment was permitted to operate pending appeal. It is not as though Yes on Prop 8 could have shown that every gay and lesbian couple in California would get married during that period, therefore rendering any success on appeal nugatory!

*sigh*

At least the 9th expedited the appeal timetable. Fingers crossed for a fantastic decision in 2011.

 

[MercuryJones]

What I don't get is the question about Olson fighting to keep the case from going to the Ninth -- where's that from?

I think much of what happens in such cases is posturing, and you can't always assume what's being said reflects true intent or desire. It's a game to be played, but fortunately we have two fantastic players on our side.

 

[MercuryJones]

The Box Turtle Bulletin points out today that the expedited appeal was taking the case "sua sponte" – on its own initiative – since, as it states, Prop8 backers have no standing to make this appeal.

That seems a good thing to me. The court is recognizing they have no standing, but is taking the decision through all the steps anyway. As nice as it would be to have the whole thing end, the due-diligence loving part of me wants the case to go through every step so it can't be argued that it was just "one man" deciding it - no matter how flawed that argument is.

BTB also notes that the court ordered the Prop8 proponents “to include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing.”

BTB further notes that the court demanded Prop8 proponents address Arizonans For Official English v. Arizona, a 1997 case in which the Ninth was "slapped down" by the SCOTUS for violating Article III of the U.S. Constitution after an Arizona PAC stepped in to defend a constitutional amendment passed as part of a ballot initiative, but declared unconstitutional in Federal District Court.

 

[Kulindahr]

It saddened me to hear that the 9th had granted the stay when on my review of the case, Yes on Prop 8 could not have reasonably shown any prejudice which would have been caused to the appeal if Judge Walker's judgment was permitted to operate pending appeal. It is not as though Yes on Prop 8 could have shown that every gay and lesbian couple in California would get married during that period, therefore rendering any success on appeal nugatory!

Thanks for that -- you crystallized some unfocused nagging thoughts about the stay. I suppose the Prop8ers would have said that if even one couple got married, it would "harm" the majority who voted for the measure by thwarting their will....

Though isn't it fairly standard for a court to leave things as they are until a case is heard, unless that can be shown to cause harm?

The Box Turtle Bulletin points out today that the expedited appeal was taking the case "sua sponte" – on its own initiative – since, as it states, Prop8 backers have no standing to make this appeal.

That seems a good thing to me. The court is recognizing they have no standing, but is taking the decision through all the steps anyway. As nice as it would be to have the whole thing end, the due-diligence loving part of me wants the case to go through every step so it can't be argued that it was just "one man" deciding it - no matter how flawed that argument is.

BTB also notes that the court ordered the Prop8 proponents “to include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing.”

BTB further notes that the court demanded Prop8 proponents address Arizonans For Official English v. Arizona, a 1997 case in which the Ninth was "slapped down" by the SCOTUS for violating Article III of the U.S. Constitution after an Arizona PAC stepped in to defend a constitutional amendment passed as part of a ballot initiative, but declared unconstitutional in Federal District Court.

But the Arizona-English case made clear that if the appellants have no standing, the court can't rule. So that demand for the Prop8ers to address the Arizona-English case is saying that they need to prove the Ninth can even listen to the case.

That says to me that the Ninth isn't taking a position one way or another on standing. They accepted the case sua sponte to expedite things; they could have required the Prop8ers to prove standing before even scheduling for briefs and arguments. It almost sounds to me like they really want to hear the case, and are saying to the Prop8ers that they have a limited amount of time to come up with something to establish that they may do so without SCOTUS slapping them down again -- like, go to some relevant California state official and get him/her to tack name and office to the appeal (if that can be done at this point).

If they can't show standing, the rest of the process would be meaningless, as far as I can see -- SCOTUS would just tell them once again they exceeded their reach.

 

[MercuryJones]

That says to me that the Ninth isn't taking a position one way or another on standing. They accepted the case sua sponte to expedite things; they could have required the Prop8ers to prove standing before even scheduling for briefs and arguments. It almost sounds to me like they really want to hear the case, and are saying to the Prop8ers that they have a limited amount of time to come up with something to establish that they may do so without SCOTUS slapping them down again -- like, go to some relevant California state official and get him/her to tack name and office to the appeal (if that can be done at this point).

My ininformed read is that the courts are bending over backwards to show an openness to listen. Sort of like giving someone every possible reminder and opportunity to succeed to do something you know they're going to fail at, but you can walk away saying you gave them a fair chance.

 

[scream4ever]

"like, go to some relevant California state official and get him/her to tack name and office to the appeal (if that can be done at this point)."

The dates for the 9th Circut hearing are before any new officials would take office, so that isn't possible anymore.

 

[Kulindahr]

"like, go to some relevant California state official and get him/her to tack name and office to the appeal (if that can be done at this point)."

The dates for the 9th Circut hearing are before any new officials would take office, so that isn't possible anymore.

What does new officials taking office have to do with anything? Any current relevant official would provide the standing they need.

 

[Kulindahr]

Schwarzenegger and Brown have declined to order a defense of Proposition 8.

No other state officials could lend standing?

 

[Kulindahr]

The California Department of Justice isn't authorized to by the Attorney General, Jerry Brown.

I'm not sure of the details. It may be that he specifically ordered the department not to pursue a defense.

I'm not complaining but it seems unconstitutional for an executive branch not to defend the constitution under which they preside. The requirement is probably in the oath of office of the governor and attorney general to defend the Constitution of California, which whether we like it or not has been ruled by the Supreme Court of California to be valid and constitutional regarding Proposition 8. It essentially is in my view the executive branch of the California government taking upon itself judicial powers. Brown believes the proposition is unconstitutional in federal constitutional law. I'm not even sure legally that's his call to make, or is it?

I'm pretty sure it isn't the governor's call to make; it would seem to be in his job description to send someone to defend it, or at least to appeal it. What I would expect is that the governor would tell the AG, "You think it isn't constitutional under the U.S. Constitution. Fine, but the way we establish that is to appeal it. So go and sign onto the appeal, and submit a brief that says it isn't our place to decide if the law can stand, but it's our law, so we want you to examine it."

But what do I know about how that works?

 

[Stardreamer]

I suppose the Prop8ers would have said that if even one couple got married, it would "harm" the majority who voted for the measure by thwarting their will....

The way I'm understanding it they are claiming that the homosexual couples who would get married would be 'harmed' since their status of their marriages would be in question till the case is settled. Its laughable really but they can't really come up with any harm to themselves.

 

[TickTockMan]

The way I'm understanding it they are claiming that the homosexual couples who would get married would be 'harmed' since their status of their marriages would be in question till the case is settled. Its laughable really but they can't really come up with any harm to themselves.

Since when do we not have a right to "harm" ourselves?



Even what they came up with is really weak.

 

[Kulindahr]

The way I'm understanding it they are claiming that the homosexual couples who would get married would be 'harmed' since their status of their marriages would be in question till the case is settled. Its laughable really but they can't really come up with any harm to themselves.

That's not an inconsequential point: if Walker's order went forward and couples got married, but then SCOTUS reversed, those marriages would be suddenly void.

It's a weird situation, for sure. If they were honest, they'd tell the court "It gives us the heebie-jeebies", and get some medical experts to testify that getting the heebie-jeebies constitutes harm.

 

[Kulindahr]

Since when do we not have a right to "harm" ourselves?

FDA

and a lot more alphabet-soup government agencies.

Add seat belt laws, helmet laws, fireworks regulations....