The liberal blog Empty Wheel has an interesting post on which three Ninth Circuit judges might be on the appellate panel (edit: just to be clear, I mean the Ninth Circuit merits panel, not the motions panel that will hear the stay denial in the next few days):
There has not yet been a formal panel assigned to the appeal, but . . . there is a tradition and protocol generally followed in the 9th Circuit that may give us an idea of the panel that will be deciding this seminal case.In the 9th Circuit, when a case goes up on appeal, and it has been there before to a given panel on any issue, that panel has the option of taking the full appeal when it is filed. Well, the Perry case has indeed already been up to the 9th previously on an interlocutory appeal of a discovery issue during the trial process, and that appeal was decided by a panel consisting of Judges Wardlaw, Fisher and Berzon. I think there is a very decent chance the standard 9th protocol is followed here and the full appeal is assigned to the previous panel of Wardlaw, Fisher and Berzon, which makes sense in terms of judicial economy since they are already up to speed on the parties and the case facts and posture.
So who are these judges, and what is the book on them? Well, that is where the fun comes in. They are all three Clinton appointees, and two of them, Marsha Berzon and Ray Fisher, clerked for Justice Brennan. Solid liberal credentials for sure, and Kim Wardlaw may actually be even more enlightened. If the appeal gets assigned to this panel, it would be in excellent hands and I would like very much the chances for upholding Judge Walker’s decision in favor of marriage equality for all.
Berzon/Fisher/Wardlaw would be an incredibly good panel for the anti-Prop. 8 (pro-SSM) side. At the same time, such a liberal panel draw would tend to make Supreme Court review of this case much more likely.
Chris Travers says:
Which judges would hear an appeal en banc if necessary? I know the 9th doesn’t usually have every circuit judge in such a hearing. Any chance they could go super-en-banc?
August 12, 2010, 6:00 pmruuffles says:
This blogger is talking about the appeal on the merits, not on the stay. Wouldn’t the appeal of the denial of a stay be heard by the motions panel? This month it’s Leavy, Hawkins, and Thomas. See this other blog for analysis.
http://electionlawblog.org/archives/016619.html
You have to give the B/F/W panel props for their unanimous reversal of Judge Walker’s earlier ruling though.
edit: Another “expert” in a MSM article pointed out that the judges who would be sympathetic to the pro-SSM side would be sympathetic to the standing arguments of the other side.
August 12, 2010, 6:01 pmJ. Aldridge says:
Something disturbing when constitutional law relies on who picked who!
August 12, 2010, 6:01 pmSteve says:
The standing issue seems very difficult for the intervenors to overcome, regardless of how conservative or liberal a panel they draw.
August 12, 2010, 6:07 pmK. Chen says:
I’m not sure if you’ve noticed, but our entire political (and by extension, legal) system is dependent on who picked who.
Its not a bug, its a feature.
August 12, 2010, 6:08 pmOrin Kerr says:
Steve,
I’m not so sure.
August 12, 2010, 6:09 pmOrin Kerr says:
K. Chen,
I think your “by extension” aside seems to miss the foundations of our constitutional form of government. If it all boils down to who picked who, why have judges? Or maybe you think we should at least have elected judges?
August 12, 2010, 6:10 pmDissenting Reason says:
It is Leavy, Hawkins, and Thomas.
August 12, 2010, 6:16 pmChris Travers says:
Who picked Judge Walker?
August 12, 2010, 6:16 pmChris Travers says:
I think this may depend on whether the panel wants to decide this case in terms of greater applicability. I’m hoping they don’t and will use standing as a way out.
August 12, 2010, 6:18 pmK. Chen says:
Professor, that ship sailed when the administrative state rose up if not earlier. Political officers (the President, Congress) choose other officers who sit on such minor entities as the FCC, FEC.
I’d also argue further that if you look deep down at the American system of governance, we treat in a real way all policy questions as legal questions and legal questions as policy questions. Similar to how trying to divide what is religion and what is culture is an exercise in futility.
August 12, 2010, 6:18 pmOrin Kerr says:
K Chen,
I think you’re completely wrong on both fronts.
Best,
August 12, 2010, 6:21 pmOrin
Ronald C. Den Otter says:
Electing judges is a terrible idea if one cares about judicial independence. The founders got that one right.
Orin, I must say, all of this is exciting. A real legal drama, but w/out the really good-looking lawyers that we see on television :)
Serious question. If the 9th Circuit doesn’t overturn Walker’s decision, and I’m not talking about the stay, is there any chance that the Court won’t hear the case?
And w/ respect to the stay, if the 9th Circuit sides w/ Walker and the Court decides that issue, which justices will vote which way? Didn’t you predict 5-4?
August 12, 2010, 6:21 pmDissenting Reason says:
I’m not sure why Judge Walker wants to piss off Justice Kennedy, but it seems like that’s what this will accomplish.
August 12, 2010, 6:25 pmJ. Aldridge says:
Wrong question. The question is why was he picked? I think there is heavier emphasis of choosing a judge today based on the apparent notion he will support a certain legal outcome then back in 1990.
August 12, 2010, 6:26 pmruuffles says:
His random selection is quite possibly the best irony in this case so far, with Boies-Olson running a close second.
August 12, 2010, 6:26 pmDilan Esper says:
J. Aldridge:
Something disturbing that the result of your civil or criminal case depends on who is on the jury.
Wait, there’s nothing disturbing. Our cases are decided by human beings, not robots, and pose difficult issues that reasonable people disagree on. So it’s not surprising that who ends up on the tribunal might influence the result.
August 12, 2010, 6:30 pmAnon21 says:
In an ordinary case, maybe. In a blockbuster case like this one, I think the composition of the 9th Circuit panel is unlikely to influence the chances of a cert grant. The Justices will be voting entirely tactically, based on their views on the merits and their best guesses as to which way Kennedy is leaning.
August 12, 2010, 6:30 pmJ. Aldridge says:
Juries traditionally sit in judgment, not judges.
August 12, 2010, 6:34 pmRonald C. Den Otter says:
Damn, who made Kennedy king? :)
August 12, 2010, 6:35 pmDissenting Reason says:
You mean, who made Walker king.
August 12, 2010, 6:36 pmOrin Kerr says:
Anon21,
I’ll stick to my guns on this one.
August 12, 2010, 6:36 pmK. Chen says:
Well, I’m going to have to defer to de Toqueville for my rebuttal:
Democracy in America- Chapter Six: Judicial Power In The United States And Its Influence On Political Society.
So long as a system has officers in positions of power “who picked who” will always matter. It matters even more in a common law system – if we wanted judge to wield less discretionary power, there is always the Code Justinian.
August 12, 2010, 6:36 pmDissenting Reason says:
I’ll stick to my guns on this one.
You know, I created this handle just to disagree with Orin. Even I do not agree with Orin. I mean, his crystal ball is pretty good.
August 12, 2010, 6:38 pmOrin Kerr says:
K. Chen,
That de Toqueville quote has nothing to do with your first point and very little to do with your second point. Of course, quoting de Toqueville is always cool. But I don’t think it gets you where you want to go.
August 12, 2010, 6:39 pmRonald C. Den Otter says:
No, I meant Kennedy.
August 12, 2010, 6:40 pmCurious Reader says:
Professor Kerr,
Everyone here, I think, would enjoy hearing more about your thoughts on the standing issue.
I, for one, do not understand how the logic of Judge Walker’s opinion applies only to the appeal. As far as I can tell, all of the cases he cites are ones where the State defended a policy in the district court, and then chose not to appeal. For each of those cases, then, there was an actual controversy in the district court. Here, however, the State has consistently refused to defend Prop 8 — both in the district court and on appeal. If the intervenors do not have standing to appeal, why did they have standing to defend Prop 8?
In my opinion, this seems like yet another shady move by Judge Walker. Actually, I view it as his third attempt to arrogate power over this case. The first was modifying the rules to allow cameras in the courtroom. The second was attempting to insulate his decision from appeal by casting his legal conclusions as factual findings. And now third, rendering a decision on the merits but later arguing that nobody has standing to appeal.
August 12, 2010, 6:41 pmDissenting Reason says:
Kennedy isn’t king; he’s a swing vote on the Supreme Court. Apparently, Judge Walker is the king of California.
August 12, 2010, 6:41 pmOrin Kerr says:
Curious Reader,
I am just as perplexed by the standing point as you are. I’m not an expert on the standing cases, so maybe I’m missing something. But I don’t see how there can be a case or controversy for a district judge to hold a trial, find facts, and enjoin a state law but then no way for anyone involved in the case to appeal the ruling. It seems, well, kind of nutty: I don’t think I have never come across a case that could be decided by a district court but not appealed by the losing side.
August 12, 2010, 6:45 pmCrazyTrain says:
If I’m defendants/appellants (which I am not), I’d petition for an initial hearing en banc. I think there’d be an outside chance at success. Indeed, I’d ask for an initial hearing by the full 9th Circuit (a super en banc, which has never happened) just to make it interesting. Why should the outcome of such an important case depend on who is on the panel.
August 12, 2010, 6:45 pmDissenting Reason says:
It seems, well, kind of nutty: I don’t think I have never come across a case that could be decided by a district court but not appealed by the losing side.
Precisely. And how do you hide that within “trial court discretion”? Come on. You can’t rig the game that way.
August 12, 2010, 6:48 pmAnon21 says:
Walker’s argument seems to be (without commenting on its merits) that there is a perfectly ordinary way for the losing side to appeal: the actual defendants could decide to do so. Since they’ve apparently decided not to, no appeal will occur, but it certainly could.
That seems straightforward enough. The part that seems slippery here is the precise status of the intervenors. I don’t know much about the law of intervention, so I can’t evaluate Walker’s claim that they have the privilege of arguing on the State’s behalf in his court, but not standing to appeal.
August 12, 2010, 6:52 pmleo marvin says:
Do you mean The Supreme Court might take the case because of the known leanings of the panel, or because of the more extreme holding and reasoning that might emanate from such a panel?
August 12, 2010, 6:53 pmJohn D says:
From the Perry team’s filing, for all you law buffs:
Emphasis mine.
August 12, 2010, 6:54 pmOrin Kerr says:
But how did Walker have any authority to decide the case if the actual defendants didn’t try to defend the law in the district court? If the state defended the law below, lost, and decided not to appeal, I can understand how intervenors might not have the right to appeal. But I was under the impression that the state decided not to defend the law. What I don’t quite follow is how the intervenors can create a case or controversy enough to empower Walker to decide the case but not enough to allow an appeal.
August 12, 2010, 6:57 pmAnderson says:
I don’t see how there can be a case or controversy for a district judge to hold a trial, find facts, and enjoin a state law but then no way for anyone involved in the case to appeal the ruling.
Well, when you put it that way ….
Re: who picked who, Prof. Kerr has already said that the panel’s composition makes it more or less likely whether cert is granted, so clearly, personalities, and not just the law, do matter. Now we’re just talking to what degree … just haggling over price, as the joke has it.
August 12, 2010, 6:58 pmK. Chen says:
It obviously has nothing to do with the administrative state, but I think its rather on point to the policy-politics-law divide – or rather, the lack of one. De Toqueville’s observations (and endorsement) of American democracy saw that the courts had vast political power – and they gain that political power in the form of striking down laws which in turn also allows them to rebuke the legislature, and they gain that power as the inevitable result of following their constitutional (that is, legal) duties. There are furthermore no laws that are outside the theoretical grasp of the courts. To the courts at the very least, politics and law are bound up together, the control of one flows from another.
I don’t have a quote at hand, but mere observation of the world outside should show us that policy questions are decided by laws. How do we balance between the haves and the have nots? Tax laws for one. How do we handle caring for the sick and injured in our society? We pass laws concerning health care.
August 12, 2010, 6:59 pmjiffy says:
Two questions:
1. Is there a possibility of the motions panel trying to hold on to the merits as it did in the original constitutional challenge to Prop 209?
2. I see the incongruity of saying that the intervenors had standing to defend Prop 209 in the District Court but not in the 9th Circuit. On the other hand, in the District Court it was the the Prop 8 opponents who were seeking relief, and therefore needed standing to sue. The principles of standing don’t seem to apply to defendants. And what would the consequence have been if Walker had found that the proponents had no “standing” to intervene. A default judgment? How would that have been appealed? Now, the intervenors are the ones seeking relief in the Court of Appeals, so it seems the standing question might be different.
August 12, 2010, 6:59 pmAnon21 says:
I’m not certain. Perhaps the theory is that state officials have a duty to defend the constitutionality of a challenged state law in the first instance, but that having once lost, the decision to appeal is within the discretion of the state officials. Of course, this duty would come from state law, so it’s hard to see how it could be directly relevant to any Article III issue.
Perhaps the California state officials did not formally decline to defend the law, they just entered appearances and declined to put forward any evidence on their side. If so, they may technically have participated sufficiently to create a case or controversy independent of the intervenors’ actions. That doesn’t seem quite right, but the case or controversy requirement presumably doesn’t require a spirited case on both sides, just an absence of active collusion.
August 12, 2010, 7:02 pmDissenting Reason says:
What I don’t quite follow is how the intervenors can create a case or controversy enough to empower Walker to decide the case but not enough to allow an appeal.
And that analytical move is safeguarded by the legal doctrine of “abuse of discretion”: Judge Walker’s view is that such a decision is discretionary and may only be overturned as an “abuse of discretion”. Is that defensible?
August 12, 2010, 7:02 pmSteve says:
Judge Walker’s decision supports the proposition thus:
The plain-English explanation is that the standard for allowing someone to intervene under Rule 24, in a situation where a case or controversy already exists before the court, is looser than the standard for finding a case or controversy in the first place. Well, maybe that wasn’t plain English after all, but the idea is that a party may have a sufficient interest in a case to intervene even without having a true “injury in fact.”
Diamond v. Charles might be an interesting read for anyone curious about the concept.
August 12, 2010, 7:03 pmAnderson says:
Re: Prof. Kerr’s concerns, the trial court never ruled on the intervenors’ standing. It had a case or controversy before it, so there was no need to rule on their standing.
Being sympathetic to Prof. Kerr’s point, I was surprised that the intervenors might lack appellate standing, but the cases cited at the 6:54 comment above, and in the order denying the stay, sure do seem to establish that as a real possibility. So I’ve learned something new today.
… Anyone care to help a lazy brother out? What did the state do in the trial proceedings? Did it file an answer and then just decide not to oppose the Rule 56 motion by plaintiffs?
In a pure question-of-law case, I’m sure that even filing a Rule 56 motion that goes unanswered is not an automatic win for the plaintiff. So the state’s failure to defend didn’t deprive the trial court of a case or controversy.
August 12, 2010, 7:07 pmK. Chen says:
Glancing at Rule 24, the wording seems to imply that there is already a case with two opposing sides. (“unless existing parties adequately represent that interest. ” “motion to intervene must be served on the parties as provided in Rule 5. “)
August 12, 2010, 7:10 pmDissenting Reason says:
Diamond v. Charles involved a criminal statute that criminalized abortion in Illinois. Illinois refused to defend its statute on appeal, and doctors who filed a class action to represent fetuses who survive abortion wanted to pursue an appeal to uphold the criminal law.
That’s a little more tangential than the organizers and financiers of a victorious ballot initiative that amends the state constitution.
August 12, 2010, 7:12 pmAnderson says:
… This standing issue is a HUGE hole in the whole amendment-by-referendum scheme.
As I grok it, ballot propositions are supposed to let the voters bypass the state gov’t and amend the constitution directly.
But if the state decides not to defend in federal court, then a district judge can strike down the proposition, and poof! no appeal, no further review.
The voters can of course then vote out the offending officials, but that seems to kinda defeat the purpose of the whole proposition thingie.
… I’m not a fan of direct democracy on the large scale myself — count me with the Framers on that one — but objectively, I gotta say, it kinda stinks.
August 12, 2010, 7:12 pmjiffy says:
Well, I guess the theory is that the adverse party–the state (through the Governor in his official capacity)–was present in the trial court and therefore a case or controversy existed, whether or not the Governor and AG chose to actually mount a defense. Walker had discretion to allow the proponents to intervene so that there was someone to present the pro-Prop 8 case. But if the state refuses to appeal, the proper parties are not present for the appeal and there is no case or controversy.
August 12, 2010, 7:14 pmAnderson says:
Glancing at Rule 24, the wording seems to imply that there is already a case with two opposing sides
Well yes, that’s why it’s called “intervention.”
August 12, 2010, 7:15 pmDissenting Reason says:
Just to be clear, the doctors there were suing on behalf of fetuses that had no right to sue and the doctors were not potentially subject to prosecution.
August 12, 2010, 7:15 pmSlippery Slope says:
It can’t be true that a district court doesn’t have power to provide relief just because the defendant either (1) doesn’t appear; (2) appears but stands mute; or (3) appears and admits liability. (The third, by the way, is basically a consent decree, which no one has every suggested is not within the Article III authority for a court to enter).
In order for there to be a case or controversy, the question is whether the person seeking to change the status quo has injury and whether the court can grant relief by ordering the defendant to do (or not do) something within its power, not how hard the defendants fight. In this case, the plaintiffs were injured (since they couldn’t marry) and sought to change the status quo. The court found they were entitled to that relief and ordered the defendants to stop injuring them.
The district court’s decision is not a recommendation; it is not is automatically subject to review (like some magistrate judge decisions). It is an order. It is final and, unless stayed or appealed, governs primary conduct of the defendants.
Now the proponents of Prop 8 want to change the status quo by seeking to undo the district court’s order. But if they can’t establish their injury in the district court’s order, then they don’t have the right to invoke further judicial authority (i.e., the appeal).
August 12, 2010, 7:15 pmmark says:
One of the very purposes of the initiative process is for the People to act when their elected representatives did not. What result if the people pass a constitutional initiative the elected representatives (Or, at least the Governor and Attorney General.) disagreed with? (Say, politicians’ salaries will be forfeit for the time between when a budget is constitutionally required to be passed and when it actually is passed.) A politician who was directly affected by the new constitutional provision sues and the elected representatives do not defend the law.
Do we have a default judgment invalidating the constitutional provision? Is there no one else who has standing? If so, have we not discovered another path to frustrate the will of the people?
August 12, 2010, 7:18 pmDave N. says:
The Ninth Circuit has an interesting en banc process. Circuit Rule 35-3 provides:
Interestingly, the original panel does not get any preferential treatment in the en banc process. In fact, in the one en banc case I have argued, the en banc court overturned a 2-1 panel decision on a 10-1 vote (and none of the original panel sat on the en banc panel).
I would also note that the Ninth Circuit reserves the right to sit as a full court. Perry v. Schwarzenegger might be a good candidate for this treatment.
August 12, 2010, 7:19 pmDissenting Reason says:
But if they can’t establish their injury in the district court’s order, then they don’t have the right to invoke further judicial authority (i.e., the appeal).
That’s a bit of a Catch-22. Walker made factual findings after trial that there was no harm and now says there is no harm to constitute standing. Then why hear the case at all? Why not simply conduct the standing analysis up front? Especially since neither side wanted a trial? This looks fishy.
August 12, 2010, 7:20 pmK. Chen says:
Right, my point being that intervention follows a suit before the court, and does not lead to one (say, an appeal). There will case to file a motion concerning, and no parties to serve if the Prop 8 proponents want to intervene again. Its easy to avoid this by phrasing your relevant law something along the lines of “Once granted such status, a party or intervenor, subject to any limitations imposed by the presiding officer, shall be treated like any other party to the proceedings, with the same rights and obligations attendant thereto.” (Apparently Connecticut law, but I didn’t check the validity of the internet source)
August 12, 2010, 7:22 pmDissenting Reason says:
Right, my point being that intervention follows a suit before the court, and does not lead to one (say, an appeal).
How does that defend Walker’s exercise of discretion?
August 12, 2010, 7:26 pmK. Chen says:
But wait, there is a federalism complication here. We’re not on yet another path frustrating the will of the People, the Federal government (representatives of the People generally) is frustrating the will of California’s People, who are using a state originated initiative system. The federal government pushing the state around is not exactly an earth shattering proposition.
August 12, 2010, 7:27 pmDissenting Reason says:
Interesting Ed Whelan post:
In his denial of Prop 8 proponents’ stay request, Walker relies heavily on the fact that no state defendant has yet filed an appeal of his final ruling. If a state defendant—such as Imperial County—had done so, he appears to concede, it would be clear that the Ninth Circuit would have jurisdiction to reach the merits of the Prop 8 proponents’ appeal.
It is Walker’s denial of Imperial County’s motion to intervene that prevented Imperial County from directly appealing Walker’s final ruling. (Instead, Imperial County has filed a notice of appeal of Walker’s denial of its motion to intervene.) And his long delay in denying that motion prevented Imperial County from pursuing an expedited appeal that, if successful, would have made Imperial County and its officers intervenor-defendants by the time of Walker’s final judgment.
August 12, 2010, 7:29 pmcboldt says:
– Walker made factual findings after trial that there was no harm and now says there is no harm to constitute standing. Then why hear the case at all? Why not simply conduct the standing analysis up front? –
August 12, 2010, 7:30 pmHis ruling is that the proposition causes harm, but reversing the proposition causes no harm. He had to hear the case in order to unwind the harmful proposition.
In other words, the current “standing” inquiry is the reverse of the inquiry at trial.
Steve says:
I guess I was right to surmise that you’d find any precedent instantly distinguishable.
But let’s not confuse the issues here. The question was whether it can really be true that a party can be allowed to intervene at the trial court level and defend a statute on the merits, but then lack standing to defend the same statute on appeal. Diamond v. Charles makes clear that the answer is yes.
August 12, 2010, 7:30 pmBack to Basics says:
You guys are all missing the obvious. Despite the government defendants conceding Prop. 8′s invalidity, the Court still had a duty to make its own determination in that regard. It is dereliction of duty for a judge to say, “Well, since the state won’t defend the law, I’m going to automatically find it unconstitutional.” And of course, even though the state defendants didn’t defend Prop. 8, they were indispensible parties, seeing as the state, not the Prop. 8 committee, is the entity violating Plaintiffs’ rights. The Prop. 8 folks were allowed to intervene merely to make the case the government wouldn’t, so as to aid the District Court in making its ruling. One need not have Article III standing to intervene. Therefore, the Prop. 8 folks are only in this case as a sidecar to the state’s standing. If the state defendants choose not to appeal, the Prop. 8 folks have no one on whom to piggyback their way to the appeal, unless they can establish their own standing. This is basic federal civil procedure, guys.
August 12, 2010, 7:32 pmDissenting Reason says:
No, it doesn’t. Diamond v. Charles is about non-parties representing the hypothetical interests of non-legal persons.
August 12, 2010, 7:32 pmJohn D says:
One purpose of the trial was to establish whether Yes on 8 would be harmed should Prop 8 be invalidated. Yes on 8 claimed that they would be harmed, however, they declined to specify what harm might fall to them or how that unspecified harm might come about.
There was always the possibility in the trial that Yes on 8 could have come up with some credible argument that they would be harmed were Prop 8 overturned. I’ve never seen such an argument, so I can’t advance one. That was their job.
Since Walker’s finding in the case was that overturning Prop 8 benefited the plaintiffs and did no harm to the intervenors, I don’t see why he needs to ask the question all over again when applying his decision to the motion for a stay. Do we need a new evidentiary trial to show again that there is no harm?
August 12, 2010, 7:33 pmDissenting Reason says:
This is basic federal civil procedure, guys.
So is the difference between Rule 23 (class actions) and Rule 24(a) & (b).
August 12, 2010, 7:34 pmK. Chen says:
I’m not sure what you’re asking. What I was trying to get at is that rule 24 does appear not contemplate an intervening party initiating a suit at any stage – the suit has to exist first, and there seems to be nothing that shows that federal law contemplates an intervenor being granted any further rights or standing. Its a one off deal, unless someone has some case law or statutes saying otherwise?
August 12, 2010, 7:37 pmDissenting Reason says:
Since Walker’s finding in the case was that overturning Prop 8 benefited the plaintiffs and did no harm to the intervenors, I don’t see why he needs to ask the question all over again when applying his decision to the motion for a stay.
The Catch-22 is that they are unable to seek review of the harm determination because the harm determination eliminates their standing. They lack standing to review the decision that deprived them of standing. If Walker’s view is correct, then abuses of judicial discretion are unreviewable so long as district court judges are clever enough. I don’t remember the “clever enough” standard from Civ Pro.
August 12, 2010, 7:38 pmbmaz says:
I am with Mr. Kerr. I understand the Arizona Official English and Diamond cases, but would point out that there was already an interlocutory appeal where DIs were an appealing party where the state did not play and there was not standing issue. Not saying there couldn’t have been, or that such is equivalent to where we are now, not in the least, but I think there is enough headroom for the 9th to allow this to proceed. Or not; who knows. I am more actually concerned the Supremes would use this as a dodge to bounce the whole bailiwick (including the trial court portion). I just do not know; it is an absolutely fascinating question though. My knee jerk and gut is with Mr. Kerr, hard to see how it doesn’t progress, but I have much more trepidation on that now that I used to not very long ago.
August 12, 2010, 7:38 pmAnon21 says:
That isn’t true. Since the decision that they lack standing is in effect a final judgment–disposing of their “case” on Article III grounds, they should be able to appeal that. And then maybe if they won on that issue, they would have to go back to the district court, and appeal on the merits? That’s where it gets confusing. Perhaps they can consolidate the appeal of the standing with a conditional appeal on the merits, and if the 9th Circuit decides they do have standing, it can reach the merits.
August 12, 2010, 7:46 pmSee Also says:
How is this unlike the situation (not the uncommon) in which both parties to an appeal before the Supreme Court agree the lower court erred and SCOTUS appoints some amicus to defend the decision below?
It seems to me there is standing in the dct because all that matters is that the plaintiffs have standing; intervenors don’t need standing, particularly when they are on the far side of the “v.” On appeal, intervenors (who were defendants below) become plaintiffs of sorts. And only plaintiffs need standing, never defendants.
August 12, 2010, 7:47 pmK. Chen says:
That doesn’t sound quite right, a party can still seek a writ of mandamus to correct a lower judge’s ruling that they lacked standing.
August 12, 2010, 7:49 pmCalderon says:
So I haven’t read any of the comments or the linked article, but the statement that “there is a tradition and protocol generally followed in the 9th Circuit that may give us an idea of the panel that will be deciding this seminal case” seems wrong to me.
I thought the standard followed by all circuits as to whether the same panel that hears one appeal also hears subsequent appeal is something like the amount of overlap in the issues between the two appeals and whether judicial efficiency would be served by having the same panel hear the second appeal. If the first panel only decided a discovery issue, likely having little or nothing to do with the merits, there would not seem to be a reason for the first panel to hear this merits appeal. But maybe I’m wrong and just the Seventh Circuit follows that standard …
August 12, 2010, 7:50 pmDissenting Reason says:
Since the decision that they lack standing is in effect a final judgment–disposing of their “case” on Article III grounds, they should be able to appeal that.
That is not a direct appeal of the harm determination made at trial.
And an appeal of a denial of a motion for a stay is procedural, not substantive, even if outcome determinative. It still counts as interlocutory, not final, because the judgment has been stayed for 7 days.
August 12, 2010, 7:51 pmSteve says:
In his denial of Prop 8 proponents’ stay request, Walker relies heavily on the fact that no state defendant has yet filed an appeal of his final ruling. If a state defendant—such as Imperial County—had done so, he appears to concede, it would be clear that the Ninth Circuit would have jurisdiction to reach the merits of the Prop 8 proponents’ appeal.
Judge Walker’s opinion denying Imperial County’s motion to intervene explained at length that Imperial County would not have standing to appeal, so it is ridiculous for Ed Whelan to claim that Walker “concedes” that an appeal by Imperial County would have created jurisdiction. Since I don’t know if this particular order is available online, I will do my best to excerpt it briefly below:
August 12, 2010, 7:54 pmDissenting Reason says:
That is still not a direct appeal of the harm determination itself.
August 12, 2010, 7:54 pmSuperSkeptic says:
“They are all three Clinton appointees, and two of them, Marsha Berzon and Ray Fisher, clerked for Justice Brennan. Solid liberal credentials for sure, and Kim Wardlaw may actually be even more enlightened.”
I appreciate Professor Kerr tipping us off to the potential bias of the quoted blog post, but this clever turn of phrase regarding enlightenment surely would have alerted even the most incautious reader.
August 12, 2010, 7:55 pmDissenting Reason says:
But Judge Walker allowed the County of San Francisco to intervene.
August 12, 2010, 7:58 pmSteve says:
You’re flatly misstating the holding. The desire to represent the interests of unborn children was but one of the standing arguments the intervenor raised. But regardless, the question in both cases is the same: is it possible for a party to have sufficient grounds to intervene under Rule 24, but lack standing to prosecute an appeal after they lose? The answer is clearly yes, and none of the factual distinctions you hope to draw will change that answer.
August 12, 2010, 7:59 pmDave N. says:
Actually if Dissenting Reason is right about Imperial County, and Imperial County will likely appeal the refusal of Judge Walker to let it intervene, the narrowest construct would be for either the Ninth Circuit or the Supreme Court to vacate Judge Walker’s entire ruling on procedural grounds and remand it so that Imperial County could make whatever legal arguments it wanted to make — and then Imperial County would be in a position to appeal Judge Walker’s ruling.
August 12, 2010, 7:59 pmK. Chen says:
Well, you posited that the decision was “unreviewable” and clearly it is in fact reviewable. If I’m understanding you correctly, the issue is that party X claimed standing. The judge denied them standing, on the grounds that there was no harm to them. The remedy is mandamus, the grounds for mandamus is that the judge’s finding was in error. Thus, the sticking point gets reviewed, is available for further appeal, and the justice system lives another day. Or am I missing something?
August 12, 2010, 8:00 pmDissenting Reason says:
Those doctors were non-parties to the case.
Well, the point is that those doctors were not criminally burdened by the statute (they had no personal interest) and they were representing the hypothetical interests of those who have no right to sue.
That’s a very different case than this one.
August 12, 2010, 8:02 pmRonald C. Den Otter says:
You take some comments far too literally. That’s why I put a smilely face after the first one. My point was that Kennedy is the key player in this drama; hardly a secret.
August 12, 2010, 8:03 pmDissenting Reason says:
It’s not a direct appeal. My understanding is that on the mandamus review, the appellate court would just adhere to the standing analysis, rather than exploring the circumstances at trial that make abuse of discretion relevant on a direct appeal. If you have support that my understanding is incorrect, I’d be happy to look at it.
August 12, 2010, 8:05 pmDissenting Reason says:
I was just kidding around. Perhaps I should have used a smiley face, too. :)
August 12, 2010, 8:06 pmSteve says:
They were intervenors, just like in the Prop 8 case. At this point I think you’re just trolling and I’m going to stop responding to your comments.
That’s an interesting point, but here’s why I think it can’t happen. Imperial County conceded that they had no interest in litigating the case and that they didn’t intend to make any arguments other than those advanced by the Prop 8 proponents. Their sole intent was to be able to bring an appeal in the event the State defendants declined to do so. So even assuming they should have been allowed to intervene, there’s no need to redo the trial because nothing would have changed, by Imperial County’s own admission. If Judge Walker was wrong in keeping them out of the case, their rights are fully vindicated by allowing them to prosecute an appeal in the here and now.
Also, as a general observation, appellate courts may be inclined to punt in difficult cases, but typically they only order an entire trial to be redone as a last resort.
August 12, 2010, 8:10 pmDissenting Reason says:
The change would be that Judge Walker would not have been able to insulate his abuse of discretion from appellate review, which is a due process concern.
August 12, 2010, 8:12 pmDave N. says:
Steve,
I realize the entire trial would not be redone. My vacate and remand thought had to do with putting Imperial County in a posture where it could appeal the merits of Judge Walker’s ruling, which I doubt would change (absent deletion of his standing comments).
August 12, 2010, 8:13 pmK. Chen says:
My understanding is that mandamus (or whatever bland sounding thing the FRCP calls it now) is held to the abuse discretion standard. Otherwise it seems you’d be implying that seeking mandamus relief for a ruling on a question of standing would be decided by assuming the question of standing was ruled correctly.
August 12, 2010, 8:19 pmDissenting Reason says:
No, my contention is that it would be a review of an abuse of discretion in applying the standing prongs given the harm determination, not a review of an abuse of discretion in making the harm determination.
August 12, 2010, 8:23 pmBack to Basics says:
“The change would be that Judge Walker would not have been able to insulate his abuse of discretion from appellate review”
Insulating from appellate review? What on Earth are you talking about? Any party with standing to appeal can do so at whim. Judge Walker is hardly responsible for the positions taken by the Governor and Attorney General. If the prospect of no appeal upsets you, take it up with them and quit whining about basic appellate procedure.
August 12, 2010, 8:28 pmK. Chen says:
Alright, I can see no reason why that would be true.
August 12, 2010, 8:28 pmDissenting Reason says:
It is equally true that Judge Walker’s decision to convene a trial and televise it was neutral and fair.
August 12, 2010, 8:33 pmCrazyTrain says:
Also, I am not sure that EmptyWheel is correct. Although a 3-judge panel that previously decided an appeal does indeed get asked by the clerk whether it wishes to take back a case that is up on appeal again***, I don’t believe that is correct when the 3 judge panel is simply the motions panel for the month deciding a routine motion such as what was decided here (the motion to stay the videotaping of the case). In fact, I think that panel would not get first opportunity to hear the merits appeal.
*** In death cases, I believe, the same panel is required to take the case except that judges, when they go senior, usually get off those panels and stop hearing death cases altogether
August 12, 2010, 8:35 pmDissenting Reason says:
Do you happen to be in possession of any evidentiary support other than your opinion or gut instinct that I might review, please?
August 12, 2010, 8:35 pmSteve says:
I don’t think it would be parsed that finely. Since the only reason Imperial County wanted to intervene was to prosecute an appeal on the merits, the question of whether they should have been allowed to intervene and whether they have standing to prosecute an appeal on the merits are pretty much one and the same.
August 12, 2010, 8:39 pmDissenting Reason says:
Is there any basis for this belief that appellate judges do not parse things finely? I’m really not getting it.
August 12, 2010, 8:41 pmK. Chen says:
I have no evidence, having no desire to plumb the depths of westlaw for the exact details on the procedural device, but my position seems to be the more likely one. The requirements for a writ of mandamus, as I remember them, are a lack of alternative adequate means, and a showing that the petitioner has clear right to the writ. In this case, since you can’t appeal your lack of standing, mandamus is your sole remedy, and then you argue whatever grounds grant you that remedy. In this case, the argument would be that the finding there was a lack of harm was in error, an error that rises to an abuse of discretion.
Moreover, its simple common sense: the sole use of the writ is for a superior court to push around an inferior court when they screw something up. What in the world would stop the superior court from examining exactly what it is the lower court is alleged to have screwed up?
EDIT: What leads you to believe that the appellate court will have to look at the question as narrowly as you’ve defined it?
August 12, 2010, 8:44 pmTravis says:
The CCSF was allowed to intervene because it showed particularized harm done by Prop. 8 – to wit, a reduction in economic activity and hence tax revenues.
August 12, 2010, 8:44 pmDissenting Reason says:
Judge Walker held, in denying Imperial County’s motion to intervene, just as the County of San Francisco did on the other side, that “the current state defendants adequately represent Imperial County’s interest as a matter of law. Accordingly, Imperial County is not entitled to intervention.” Clearly, the Attorney General and the Governor did not adequately represent Imperial County’s interests. They put on no case at trial and refuse to appeal.
August 12, 2010, 8:50 pmspasticblue says:
That’s because Imperial County (in the realm of marriage) is by law bound to follow the dictates of the state. Marriage law is not a local issue in CA and therefore Imperial County has no interest separate from the state. “….as a matter of law, only the state itself has an interest in California marriage law.”
As you may remember, this came up before in Lockyer.
August 12, 2010, 8:57 pmTravis says:
What particularized harm would befall Imperial County if Prop. 8 were to be overturned? And no, “Christ doesn’t like teh gay” does not count as particularized harm.
August 12, 2010, 8:58 pmDissenting Reason says:
What particularized harm would befall Imperial County if Prop. 8 were to be overturned?
Imperial County lacked the opportunity to make any such factual presentation at trial because the Attorney General and Governor were expected to make its case for it, as Judge Walker held.
August 12, 2010, 9:00 pmTravis says:
Bzzzt. They never argued particularized harm, only that they wanted to intervene because a majority of their constituents supported the law.
August 12, 2010, 9:02 pmspasticblue says:
Imperial County in its motion admitted that it would not add anything to the trial! It was not going to introduce any evidence or be an active participant in the trial. So I don’t know what your point is.
August 12, 2010, 9:04 pmDissenting Reason says:
Actually, Imperial County argued that it had significantly protectable interests warranting intervention and that the Attorney General and Governor would not mount a vigorous defense.
August 12, 2010, 9:09 pmDissenting Reason says:
As a legal matter, you don’t need a particularized harm to intervene; Imperial County never presented any facts of a particularized harm at trial because its motion to intervene was denied by Judge Walker.
August 12, 2010, 9:12 pmspasticblue says:
Imperial County intended to intervene in order to be able to appeal if the state defendants did not. It did not intervene in order to, as you said, “make any such factual presentation at trial.” So, if the county never intended to make an argument at trial, what does it matter that they weren’t given an opportunity to make an argument at trial?
August 12, 2010, 9:16 pmDissenting Reason says:
Once you have intervened, you may present evidence or cross-examine witnesses. We have no way of knowing what Imperial County would have done in response to developments at trial or what statistics they may have helpfully adduced. Imperial County was not required to put an intended trial strategy in its motion for intervention; that no intended trial strategy is present in Imperial County’s motion for intervention is wholly irrelevant.
August 12, 2010, 9:20 pmTravis says:
You’re just quite simply wrong, Dissenting Reason.
The only interest Imperial County argued was their responsibility toward performing duties of marriage. Quite correctly, Judge Walker pointed out that Imperial County’s role in that area is entirely ministerial and without the slightest shred of discretion. County officials must follow the laws of the State of California vis-a-vis marriage, and are not entitled to decide which of them they want to abide by or not.
August 12, 2010, 9:21 pmDissenting Reason says:
The only interest Imperial County argued was their responsibility toward performing duties of marriage.
It was a motion for intervention. Imperial County met the applicable standard under the relevant precedents. In any event, your summary of Imperial County’s motion for intervention is inaccurate.
August 12, 2010, 9:25 pmNickM says:
Imperial County is now subject to an injunction. Do they have a right to seek appellate review of it?
Nick
August 12, 2010, 9:26 pmTravis says:
No, Imperial County isn’t subject to an injunction. The State of California is subject to an injunction. Its legislatively-created political subdivisions are not sovereign.
Are you seriously arguing that if a state government is enjoined from doing something, every county, city and township has standing to appeal that injunction?
August 12, 2010, 9:28 pmspasticblue says:
It’s not that IC didn’t mention its trial stategy in it motion. It’s that the county admitted in its motion that it would not be an active participant in the trial, and was intervening in case the Prop 8 Proponants did not have standing to appeal.
August 12, 2010, 9:29 pmLior says:
To summarize: the “Case or Controversey” was between plaintiffs and the State. Defendants, however, refused to mount a defense. At that point the judge could have entered default judgement for plaintiffs, and “Yes on 8″ would have been in no position to appeal.
Rather, “Yes on 8″ was allowed to intervene and argue in defense of Prop 8. Yes on 8 never argued that they should have joined as defendants, and it seems they also didn’t identify any actual harm (as opposed to philosophical harm) they would suffer from an adverse ruling.
The question now is whether this makes them an actual party to the case (and hence able to appeal).
Let me ask this: can an “amicus in support of defendants” appeal an adverse ruling, when no defendant chooses to do so?
An obvious solution to the current mess isf or California to amend its Constitution, so that the State Government is required to defend the Constitution of California against claims it conflicts with the Federal Constitution, stating that if the Governor and Attorney General do not wish to do so they must hire an outside counsel.
August 12, 2010, 9:29 pmDissenting Reason says:
One wouldn’t need to make such an argument if when counties seek to join litigation, their motions for intervention are properly granted.
August 12, 2010, 9:29 pmDissenting Reason says:
I think this IS the law in California.
August 12, 2010, 9:31 pmTravis says:
http://www.leginfo.ca.gov/calaw.html
Cite, please.
August 12, 2010, 9:33 pmDissenting Reason says:
The NRA, which was not a party to McDonald v. Chicago, was allowed oral argument time on the Due Process issue because Alan Gura was viewed as too wedded to the Privileges or Immunities theory to adequately represent the Due Process theory. The NRA was basically an amicus in support in that case.
August 12, 2010, 9:35 pmLior says:
Exactly. But McDonald had to appeal the adverse ruling in the Circuit Court before the NRA could intervene on his side. Had McDonald chosen not to appeal to the Supreme Court the NRA couldn’t have done it for him.
August 12, 2010, 9:39 pmDissenting Reason says:
CALIFORNIA CONSTITUTION
ARTICLE 5 EXECUTIVE
SEC. 13. Subject to the powers and duties of the Governor, the
August 12, 2010, 9:39 pmAttorney General shall be the chief law officer of the State. It
shall be the duty of the Attorney General to see that the laws of the
State are uniformly and adequately enforced. The Attorney General
shall have direct supervision over every district attorney and
sheriff and over such other law enforcement officers as may be
designated by law, in all matters pertaining to the duties of their
respective offices, and may require any of said officers to make
reports concerning the investigation, detection, prosecution, and
punishment of crime in their respective jurisdictions as to the
Attorney General may seem advisable. Whenever in the opinion of the
Attorney General any law of the State is not being adequately
enforced in any county, it shall be the duty of the Attorney General
to prosecute any violations of law of which the superior court shall
have jurisdiction, and in such cases the Attorney General shall have
all the powers of a district attorney. When required by the public
interest or directed by the Governor, the Attorney General shall
assist any district attorney in the discharge of the duties of that
office.
Dissenting Reason says:
That wasn’t my point. My point was actually that McDonald’s lawyer objected to the NRA being given time. In other words, (1) there was a case; and (2) an amicus was permitted to make the winning argument. Given that the NRA had no right to be there and was in fact opposed, that would seem to make it a stronger answer to your specific question.
August 12, 2010, 9:42 pmTravis says:
Except Jerry Brown never declined to enforce Prop. 8 and, in fact, did carry out its mandate after passage.
True, he declined to defend it against a federal constitutional claim, but I don’t see where the California Constitution requires him to assert, against personal belief, the federal constitutionality of legislation.
August 12, 2010, 9:44 pmDissenting Reason says:
No defense is not uniform and adequate enforcement. AG Brown would have defended a controversial state law that he personally agreed with.
August 12, 2010, 9:48 pmDissenting Reason says:
And, that law was subject to a ballot initiative, too: Prop 23.
August 12, 2010, 9:49 pmTravis says:
Being the Constitutionally-prescribed and duly elected “chief law officer of the state” would seem to give Jerry Brown authority and discretion in this matter, wouldn’t it?
August 12, 2010, 9:51 pmDissenting Reason says:
In a world in which putting on absolutely no defense on behalf of someone who wants you to put on a defense (and would otherwise do it themselves, but is prevented because you stand in the way) equals “adequate representation” and “zealous advocacy,” you are absolutely right.
August 12, 2010, 9:58 pmSteve says:
So much whining. What argument should the Attorney General have made that the intervenors were incapable of making, I wonder? What evidence should he have presented that the intervenors were incapable of presenting?
AG Brown explained his position quite clearly in his answer to the complaint:
I think Proposition 14, which declared the right of California citizens to engage in housing discrimination, is quite rightly regarded as infamous today. And it did indeed violate the Federal Constitution.
August 12, 2010, 10:07 pmDissenting Reason says:
Except, by implication, Brown is impugning all the of the judges on the California Supreme Court who held that Prop 8 was legal. In that adjudication, AG Brown could have made a 14th Amendment Equal Protection Clause argument. He did not. Instead, he made an argument about inalienable rights and he lost. By refusing to defend Prop 8, he was refusing to enforce a California Supreme Court opinion that found against his novel legal theory. By refusing to defend the rule of that decision (not just the ballot initiative itself), AG Brown was not upholding the rule of law; he was defying it. He was refusing to enforce a judicial decision that directly bound him as a party.
August 12, 2010, 10:14 pmspasticblue says:
You do realize that there are 2 different constitutions that operate in the state of California, right?
August 12, 2010, 10:33 pmDissenting Reason says:
Yes. And the California Attorney General has the obligation to defend the California Constitution and the rule of law of the California Supreme Court, even when it is in conflict with the federal Constitution. State Attorney Generals do this every day. Sometimes they win. Sometimes they lose. That’s the job.
August 12, 2010, 10:37 pmTony Sidaway says:
I wouldn’t be the first person to suggest that California might want to amend its constitution to require the state to retain independent attorney for cases in which the Attorney General agrees with and supports a challenge. Perhaps another one for a ballot initiative?
However that still wouldn’t mean that an appeal would follow, unless a party could come forward with standing to appeal and willing to do so.
August 12, 2010, 10:37 pmTony Sidaway says:
“And the California Attorney General has the obligation to defend the California Constitution and the rule of law of the California Supreme Court, even when it is in conflict with the federal Constitution.”
Possibly. Myself, I’m not sure I can get that out of “It
August 12, 2010, 10:43 pmshall be the duty of the Attorney General to see that the laws of the State are uniformly and adequately enforced,” which is the wording from Article 5 of the California Constitution which you highlighted above. At least, not to the extent of defending laws he thinks harm the very people those laws are supposed to protect. It seems to me that he would have some discretion in determining the meaning of the word “adequately.”
Dissenting Reason says:
My point is AG Brown was estopped and bound from taking a different position, given the result of Strauss v. Horton.
August 12, 2010, 10:45 pmJason L. says:
Dissenting Reason, I agree as a matter of policy that there should be some recourse for intervenors when the state decides not to appeal a decision. With regard to this, however,
IANAL, but think you’re going too far on what the AG’s duties are, as well as confusing state and federal law. The AG is not obligated to be the CA SC’s jurisprudential emissary; he merely has to defend the status quo or find someone else who will.
He especially doesn’t have to be a jurisprudential emissary when the court whose emissary you might like him to be is a state court and he’s arguing a case in federal court. The CA SC opinion held that Prop 8 did not violate the state constitution on grounds contained within the CA Constitution; whether it violated the 14th Amendment or any other piece of federal Constitutional law was not at issue. Independent of the CA SC’s judgement, a federal judge has invalidated Prop 8, and thus the status quo is now that Prop 8 violates the U.S. Constitution. Since the U.S. Constitution has priority over the CA Constitution w/r/t the AG’s duties, his duty now is to abide by the U.S. Constitution.
The issue of standing complicates things in this particular case. Usually there would be parties harmed by the district court’s ruling that would have standing to appeal. CA citizens who wanted the freedom to sell or rent their property as they saw fit can point to harm from an anti-Prop 14 ruling.
If no one can be found who is harmed by a ruling, then it’s heuristically likely that the ruling is for the best. I also think that it would offend everyone’s sense of justice if the intervenors in Perry were denied a writ of mandamus to reconsider the finding that they were not harmed on the basis that as the district court found that they were not, they therefore lack standing. If the law really works that way, then everyone would probably agree that the law needs to be changed. Have judges ever pulled stunts like this? Especially in a high-profile case like Perry, it’s inconceivable that the 9th Circuit would pull this kind of move.
August 12, 2010, 10:47 pmspasticblue says:
Like I said before, you do realize that there are 2 constitutions that operate in CA–Strauss was a case involving the CA Constitution, and Perry involves the US Constitution. They are not the same issues.
August 12, 2010, 10:48 pmJason L. says:
But at that point, Prop 8 was presumptively federally constitutional. The current status of the law is that Prop 8 is federally unconstitutional.
August 12, 2010, 10:51 pmDissenting Reason says:
Like I said before, AG Brown could have made a 14th Amendment argument in Strauss, he chose not to (that was purpose of my usage of the term “estopped”). Instead, he made an inalienable rights argument, which some legal scholars claimed was equivalent to a federal rights argument, anyway. Once Strauss was handed down, he was obligated to defend its rule of law. That includes in federal court in response to a claim that Prop 8 violates the federal Constitution. (“No, it doesn’t, it is consistent with the California Constitution, whose guarantees of inalienable rights in its Declaration are more robust that those guaranteed by the federal government and applied to the States through the 14th Amendment.”) He might have lost, but he still was bound by the California Supreme Court to make that argument.
August 12, 2010, 10:59 pmDissenting Reason says:
That wasn’t the current status at the start of the trial, when AG Brown decided to offer no defense. Nor was it the current status when Judge Walker prevented Imperial County from joining the case.
August 12, 2010, 11:01 pmJason L. says:
Sure, on that point, I agree. If an AG thinks he is incapable of giving a vigorous defense of the law, then he should do the equivalent of recusing himself and find someone else to defend whatever law is being challenged. I’m just talking about what his duties are at this juncture.
August 12, 2010, 11:12 pmTony Sidaway says:
Hmm, this was a trial in a District court in which the plaintiffs alleged that Proposition 8 contravened the US constitution. The Supreme Court of California had tried the different proposition that the Proposition was against the California constitution. These are different questions, so I don’t see how estoppel can arise or how the Attorney General can be obliged to make arguments before a different court that he did not make before the California court, or vice versa. These are different jurisdictions and different questions.
I do agree with the general feeling of unease about the possibility that the case might end at the District Court level for want of an appellant with standing, but I don’t really see a valid argument to the effect that Brown should have defended the case. In fact Brown conceded to the District Court that the Proposition was against the Federal constitution (Judge Walker’s ruling, p3 at 22-23) and I can’t for the life of me see what’s wrong with that.
August 12, 2010, 11:14 pmJakeD says:
Brown’s “duty” is that he should resign in shame for not offering any defense of the California Constitution.
August 12, 2010, 11:17 pmMalvolio says:
Everyone should pause for a moment and consider the backlash that would occur if the original Perry intervenors were denied standing and the State of California declined to appeal the District Court’s decision.
The sovereign will of 37 million Californians would have been thwarted by the whims of two men, one a well-known whack-job, the other an obscure, unelected, and low-level judge whose neutrality is in question. Even if you don’t personally agree with those characterizations, you have to admit: most people will.
Right now, gay rights are on the cusp. All but the most rabid opponent of SSM is willing to concede on some kind of civil-union. Anti-homosexual bigotry is socially on a par with anti-black racism. A observer might conclude that in a few years, a same-sex married couple will be as uncontroversial as a mixed-race married couple.
The suit against Prop 8 threatens to snatch defeat from the jaws of victory. If the Supreme Court eventually upholds Walker’s decision, that would be bad enough for gay rights. The always-evocative “shoved down our throats” argument will gain tremendous resonance and all the political and social momentum gained since Lawrence will be dissipated.
But this? If Brown refuses to defend his own state’s constitution and then the 9th Circuit refuse to listen to anyone else? The next day, there will be a proposed Amendment (“Each State shall define marriage …”) that even people like myself who support gay marriage would have trouble opposing.
August 12, 2010, 11:48 pmJason L. says:
Malvolio, I think you need to chill out. If most people really bought into the idea that a (likely) gay judge is incapable of being objective when sexual-orientation-related cases appear on his docket, then most people would not support equal marriage rights.
Also, the particular circumstances surrounding the legal recognition of same-sex marriage isn’t especially well correlated to subsequent popular opinion. California’s democratically-elected legislature passed a SSM bill, but then the voters enact Prop 8. Same goes for Maine, where sizable majorities in both houses (>60%) and a popular governor enacted SSM, only to have the voters overturn it. In CT, MA, and IA, however, where courts mandated SSM, no credible threats of popular rejection of the courts’ decision have emerged. The “backlash” theory has scant evidence in its favor.
More importantly still is the speed at which public opinion is shifting in favor of SSM. You might hear “shoved down our throats” complaints for a few years, but a few election cycles later, many of those complainers will have died and many more open-minded young people will have reached the age of majority. This isn’t like abortion, where support has remained largely unchanged since Roe v. Wade. In fact, fully 1/5 of persons under 30 support SSM and simultaneously oppose abortion.
People running and commenting on this blog are probably around the 99.9th percentile in terms of legal-mindedness. Most folks, even the top 5% of folks as regards an understanding of legal issues, just care about results.
August 13, 2010, 12:11 amJakeD says:
Judge Walker’s neutrality is not in question solely based on his homosexuality (he’s a liberal too).
August 13, 2010, 12:18 amJustin says:
“Clearly, the Attorney General and the Governor did not adequately represent Imperial County’s interests. They put on no case at trial and refuse to appeal.”
Exactly wrong. They merely didn’t represent Imperial County’s interests in the way in which YOU would have liked.
The theme of Dissenting Reason’s posts in this thread is that the rules must be unfair because he doesn’t like the result.
August 13, 2010, 12:21 amJustin says:
Malvolio, so sorry we have offended you. We’ll all just put our lives and marriages on hold in case the voters someday decide to like us. Meanwhile, I suggest that you refrain from further postings until we can hold a vote on your right to free speech.
August 13, 2010, 12:26 amLior says:
@Dissenting Opinion:
But the question isn’t whether there was a right to intervene. It is obvious that, should there be an appeal,”Yes on 8″ will be allowed to intervene again and argue the merits. The question is whether there can be an appeal in the first place.
The question is whether “Yes on 8″ can appeal judge Walker’s ruling, notwithstanding the fact that they were not a party to the case, and when the actual party on whose side they intervened (i.e. the State) doesn’t wish to appeal. In McDonald a similar situation could have arisen if, after McDonald lost in the Circuit Court (where the NRA filed a amicus brief supporting him), he had decided to give up and not appeal to the Supreme Court, but the NRA would have filed an appeal anyway. In fact, the NRA had a stronger case for intervention than “Yes on 8″, in that members of the NRA stood to gain directly by a ruling in their favour (their ability to own guns would increase), while “Yes on 8″ could point to no personal stake for them in the litigation, except for their notional interest that the laws they support be declared Constitutional.
The actual parties in Perry v. Schwarzenegger were Perry (et al) and, well, Schwarzenegger (et al). The injunction issued by the court against the enforcement of Prop 8 is binding on “Schwarzenegger” (i.e. the State of CA), not on “Yes on 8″ (who aren’t in the business of issuing marriage licenses). If CA doesn’t wish to appeal, I don’t see how anyone else can do it for them.
The solution is either to change the Constitution of CA so that the state government has to appeal, or to change the interpretation of Article III so that any citizen (or, at least, any State) can raise serious Constitutional Controversies (“does the 14th Amendment include a right to gay marriage?”) in Federal court.
August 13, 2010, 12:31 amLior says:
By the way, even if this case (Perry v. Schwarzenegger) won’t make it to the Circuit Court, there is still hope for the voters of CA.
What they need is first for the 9th Circuit or the Supreme Court to publish a contrary opinion in another case (for example, the Supreme Court could rule that gay marriage is not a federal issue at all in any appeal from the DOMA case in NY). Next, they need to vote themselves a different Governor and Attorney General. At that point the new officers of the state could file a lawsuit trying to quash (?) the injunction.
August 13, 2010, 12:35 amJason L. says:
What if he were a conservative, would that raise questions about his neutrality? Or should judges be completely apolitical? That is, they should not expose themselves to learning about political developments, current or historical, lest they have a moment of weakness and allow themselves to form an opinion?
And last time I checked, being appointed by Reagan, blocked by Nancy Pelosi, and then successfully rammed down liberals’ throats by H.W. Bush, coupled with a generally pro-business history of judgements, is strong evidence for one’s being a conservative rather than a liberal.
As for his (likely) homosexuality making him biased, do heterosexuals not have a sexual orientation, just like whites don’t have an ethnicity and men don’t have a gender? Either SSM affects heterosexual marriage and/or the upbringing of heterosexuals’ children, or it doesn’t. If it does, then being heterosexual makes a judge biased as well. And if it doesn’t, why does anyone care whether people of the same sex marry each other?
August 13, 2010, 12:58 amJakeD says:
No, Justin, the Governor and Attorney General were obligated to defend the California Constitution against these plaintiffs alleging due process and Equal Protection violations.
August 13, 2010, 1:01 amJustin says:
No, JakeD, they were not. They have discretion to decide which laws to defend against a challenge under the US Constitution.
August 13, 2010, 1:05 amMalvolio says:
I don’t think you’re sorry at all. I think you’re just trying to be sarcastic.
But your underlying point seems to be, since you are morally in the right, that makes it a good idea to do things that will make your cause fail.
I had this exact conversation in person in the aftermath of In re Marriage. My gay friends were saying that the will of the voters didn’t matter because Truth, in the form of the California Supreme Court, was on their side. Well, the Truth may have been on their side, but the voters weren’t and we had Prop 8.
Now, we have Walker’s decision on Perry. Maybe that will survive the higher echelons of judiciary. I doubt it but maybe. Let’s say it does.
We already know what happens next.
We have already seen what happens when the highest court in the jurisdiction overturns laws forbidding SSM on constitutional grounds: the voters amend the Constitution. What happened in California, one of the most liberal states in the country, in 2008 can and will happen nationwide in 2011.
Justin, have all the fun you want being smug. But if you think you might enjoy being married more than being smug, then you better hope that the 9th Circuit squashes this nonsense right now because if this does go to the Supreme Court, you’ll be putting your lives and marriages on hold for the next 20 or 30 years.
August 13, 2010, 1:06 amyankee says:
Fortunately, the Framers made the Constitution all but impossible to amend.
August 13, 2010, 1:15 amJohn Herbison says:
From page 6 of Judge Walker’s memorandum opinion:
The Defendant-Intervenor proponents of Proposition Hate took a position at trial regarding the prospect of harm to heterosexual marriages which is tantamount to cavilling: “Evidence?!! We don’t need to show you no stinkin’ evidence!!”
It seems these busybodies’ dogma has now been run over by their karma.
August 13, 2010, 1:21 amSteve says:
Well, but the Prop 8 proponents had the unqualified right to intervene as a matter of federal law, so that wouldn’t happen. But yeah, if it did, oh noes the backlash.
There have been few, if any, cases that precipitated a greater backlash than Brown v. Board of Education, but you know what, I wouldn’t give it back and neither would any other genuine supporter of civil rights.
At any given point in history, the vast majority of people opposed to gay marriage hold that opinion because they believe gay marriage is wrong. The number of people who don’t have a problem with gay marriage but are outraged enough to deny people their rights by an issue of process is miniscule by comparison, and that kind of anger never lasts for long. Do you see a lot of abortion-rights supporters advocating for the appointment of anti-Roe Justices to the Supreme Court because they believe, above all else, that a different branch of government should make the decision?
August 13, 2010, 1:24 amJustin says:
Malvolio, bring on your little amendment. It will be a cold day in hell when a federal marriage amendment gets a 2/3 vote in Congress, much less 3/4 of the states. Keep dreaming.
August 13, 2010, 1:39 ambmaz says:
Quite frankly, I am not sure if any amendment could make it through the gauntlet to enactment at this point, but it sure as heck isn’t this one. You are right, not happening.
August 13, 2010, 1:57 amK. Chen says:
I wouldn’t be so sure. Perhaps more to the point is theres no guarantee that SCOTUS won’t find a way to rule narrowly or dodge the bullet entirely, and thus we could see another rash state one man one woman constitutional amendments (the ones we already have I would describe as “backlash”). Which is I suppose, too bad for them, but why should Californian gay men and women wait?
I suspect gay marriage could go the way of abortion – with a weak majority support and a minority that will devote its lifetime to destroying it and anyone who supports it, which could certainly be worse for everyone.
August 13, 2010, 2:31 amDissenting Reason says:
Not really.
August 13, 2010, 2:46 amDissenting Reason says:
I’m a supporter of same-sex marriage. ???
August 13, 2010, 2:48 amAlessandra says:
Then I take it you would completely endorse a NAMBLA member judge to rule on a case concerning men marrying underage males? Or a judge who practiced female circumcision on his own daughter to rule on a case concerning the same matter? Or a judge who ran a porn business to rule on issues concerning pornography?
Jason: As for his (likely) homosexuality making him biased,
Why are you talking about a likely homosexuality? First, what you call “likely” has been reported in the media as an open secret.
Second, isn’t your view that people who do not endorse and normalize a homosexuality psychology are wrong, filled with animus, and ignorant? Why must this judge then hide what kind of sexual psychology he has if it is a homosexual one? People with a heterosexual sexuality do not go around hiding or denying that they are heterosexual.
Curiously enough, and also very telling, it is only homosexuality zealot judges that need to lie, deny or conceal their homosexuality at the same time that they base all their marriage rulings on an argument that there is nothing wrong with having a homosexual psychology. Why hide it, why lie about it then?
August 13, 2010, 5:29 amGuy says:
I think you’re right, at least insofar as cert is essentially guaranteed if Walker’s decision is upheld, and a liberal panel is more likely to uphold it.
August 13, 2010, 7:13 amGuy says:
How is that any different from legislative (more properly called legislator) standing? (Which doesn’t exist)
August 13, 2010, 7:31 ambhaal says:
Judges are supposed to stick to precedent and decide cases, incrementally, never say more than they have to and strictly obey the limiting doctrines of standing, ensure that there is a controversial issue and test their own jurisdiction. That’s the price they pay for essentially being able to force their own opinions onto everybody else, without being elected.
Take a step back and look at this rationally and objectively – a law has been struck down on grounds that are at least plausible in a State that narrowly upheld this law. The elected representatives of the State have declined to defend it in court, taking a decision about California’s precious resources that they are specifically elected to make.
The backers of the ballot measure achieved their objective by amending the State Constitution in accordance with their wishes. Once that was done the enforcement of that law passed out of their hands, to the people’s elected representatives. Who on earth are they, who haven’t been elected or scrutinised or appointed by anyone to take a decision contrary to the will of the those representatives? This is exactly the kind of issue that doctrines such as standing were meant to solve and I hope that even Scalia will sign on to that.
August 13, 2010, 8:17 amRandy says:
Alessandra: If the defendants believed that Walker was biased, they should have filed a motion to recuse. They did not. Either they were that incompetent, or they didn’t believe they had enough evidence to make it stick.
And if Walker refused, they could have appealed that decision. Furthermore, I don’t recall you or anyone else saying that Walker was biased *before* the decision was released. It’s always easy to complain after the horse has left the gate.
In any case, the fact that they didn’t file settles the matter.
August 13, 2010, 9:20 amJakeD says:
Justin:
We’ll have to agree to disagree then.
Randy:
It doesn’t settle the matter as far as Congress is concerned.
August 13, 2010, 9:46 amTravis says:
As far as Congress is concerned? What, as in impeachment?
You seriously think impeaching Chief Judge Walker is an option? Same-sex marriage opponents are crazier than I thought.
August 13, 2010, 10:07 amL says:
This doesn’t seem likely to me, especially in the long term. Even pro-choicers, if they’re being honest, can recognize that if you believe an embryo or a fetus is a person, abortion harms people. There is no real argument that gay marriage harms people. Opponents make their claims, but the evidence doesn’t back it up, and it all boils down to hurt feelings. Given time and demographic shifts and the sky’s refusal to fall, rabid opposition to same-sex marriage will eventually fall to the levels of rabid opposition to mixed-race marriage.
August 13, 2010, 10:16 amL says:
To be fair, I recall hearing some accusations of bias when he wanted to televise the proceedings. I didn’t understand that, myself. Why would televising the proceedings show bias? Why would it favor one side or the other? I can only think of one answer, but I don’t feel sure it’s right. I’m sure someone here can help me.
August 13, 2010, 10:27 amNickM says:
I don’t think you understand what the phrase “subject to an injunction” means.
Nick
August 13, 2010, 11:04 amJakeD says:
Travis:
Impeachment is one option; we only need 2/3 of Congress to vote on a federal Constitutional Amendment against same-sex marriage too. The Supreme Court (especially if this is finally “a bridge too far” for Justice Kennedy) could fashion quite a response as well. There are lots of option.
August 13, 2010, 11:07 amJakeD says:
L:
Judge Walker had to be slapped down because he violated the set rules in place for televising proceedings (and, more importantly, because it was a ruse for intimidating the pro-marriage side, just like publishing the names and addresses of financial contributors).
August 13, 2010, 11:10 amJakeD says:
BTW: if standing is such a big deal, why won’t Walker simply allow Imperial County to intervene in order to appeal? He’s not worried about what will happen on appeal, is he? Or, can’t ProtectMarriage.com find at least one “member” who was engaged to an opposite sex bi-sexual who has not left said member for someone of the same sex now that gay marriage is legal?
August 13, 2010, 11:19 amRonald C. Den Otter says:
You should have :) :)
August 13, 2010, 11:25 amK. Chen says:
How long is the long term? Most of us who fret about backlash are worried by a single relatively short spike of anti-gay legislation, as typified by the 30-odd constitutional amendments. Said rabid minority doesn’t have to endure past their generation to make our lives considerably miserable.
As to the harm issue – that is a particular narrow way of viewing the problem that doesn’t address the concern. This is a cultural conflict, and some of the subcultures within the United States do not grok gay marriage at all, and they don’t approach the problem within the sense of harm the same way you (or gay marriage proponents) do. The “fact” of the harmlessness of gay marriage is filtered through a lot of baggage.
August 13, 2010, 11:59 amtony says:
There was a case or controversy in the district court because the state defendants– except for the Attorney General– did not offer judgment, agree to a consent judgment, refuse to enforce Prop 8, or otherwise take action that would terminate the case or controversy. They simple sat there silently and agreed to abide by the judge’s determination of the merits. And in the meantime they enforced Proposition 8.
August 13, 2010, 12:12 pmyankee says:
It’s a good thing we never let married judges rule on the legal rights and obligations of married couples.
I heard lots of people complaining. Since it seemed extremely likely that Walker would rule in favor of SSM, opponents set out to discredit the decision in advance. Had he surprised everyone by ruling for the defendants, they simply would have turned around and said said “not even a homosexual judge in San Francisco would buy that sophistry!”
August 13, 2010, 12:22 pmTravis says:
You’re utterly deluded if you think the House will vote to indict, and the Senate will vote to convict, a long-standing, GOP-appointed chief district judge because he ruled gay marriage bans to be unconstitutional. Where’s the high crime or misdemeanor?
You’re also utterly deluded if you think there’s two-thirds majorities to pass a federal marriage amendment. Hell, a flag-burning amendment can’t even make it through Congress.
August 13, 2010, 12:28 pmL says:
This is not what I was talking about. I’m not talking about whether he was right or wrong for allowing the televising of the trial. I see that as basically procedural minutia. I’m talking about why people thought his decision reflected bias.
So there’s why you think it was bias. I don’t get it. Why does it intimidate the Prop 8 proponents any more or less than it does the plaintiffs?
And then I would ask – even if you think televising the proceedings harms one side over the other, do you really think that was CJ Walker’s intent? I would ask it, but I won’t, because I’m pretty sure your burning hatred for Walker is matched only by your uncanny ability to see inside his head and read his innermost thoughts.
As has been explained, Imperial County has no interest separate from the interest of the State of California. Might as well ask, if AG Brown wasn’t going to defend it, why didn’t CJ Walker allow some Deputy AG to defend it instead?
Other than innuendo about CJ Walker’s own sexual preference, you have no idea how he feels personally about this issue. I have no idea whether trial judges worry about getting reversed on appeal. I kind of doubt it; it would make being a trial judge an extremely stressful job.
Ha ha, probably not. Btw, are you trying to beat your own record for most nonsensical use of scare quotes?
August 13, 2010, 12:30 pmL says:
I take this back. For some reason I thought I was responding to Wallace. I will ask: do you think that was Walker’s intent?
I take this back too. Again, for some reason, I thought I was responding to Wallace. My fault entirely. He’s not even in this thread.
August 13, 2010, 1:01 pmJustin says:
For all you who think SSM is going down at the Supreme Court, I got news for ya. Justice Kennedy is approaching retirement and surely thinking about his legacy. He has the choice of going down in history as a respected justice whose courageous vote vindicated equality, or as the man behind a small-hearted smack-down of people who just want to get married, in an anti-gay decision bound to be overturned in 20 years anyway.
August 13, 2010, 4:04 pmJosh Bornstein says:
Justin,
I think your prediction re Justice Kennedy is more wishful thinking than based on past behavior. (Of course, I do hope you are correct.) Ever since the Sup. Ct issued its injunctive relief in Bush v. Gore that essentially handed the election to Bush, I’ve had little confidence in this aspect of the court and how the justices handle requests for injunctive orders.
I have a side-question. If the 9th Circuit refuses to stay Walker’s order permitting gay marriages during the appeals process, it can go to the Sup. Ct, which could then also issue an order staying such marriages. No question there. But what if the 9th instead “sits” on the request for a stay? (ie, allowing gay marriages while that appellate court mulls over the request for injunctive relief). Can a party say, “Hey, decide already. If you won’t; I’ll skip you guys and head right to the Supreme Court.”? Would the SC allow this, or reject such a request out-of-hand, since the appellate court had not yet acted? Or would the SC issue an order to the 9th, saying, “You must decide re the stay within the next [X] days.”?
If the 9th could sit on their decision and thereby preclude the SC from acting on any request for a stay, is there a limit to how long the 9th could do this? Anything statutory? Or is it just a “reasonable court” standard?
If the 9th was allowed to do this, I could see it end up taking months to make a decision, which of course would allow hundred, thousands, or tens of thousands more gay marriages in the meantime. Since this fact escapes no one, I assume that this procedural slight-of-hand is not allowed, although I almost never have worked in the federal appellate court system, and have little idea of the applicable FRCP.
August 13, 2010, 5:37 pmK. Chen says:
I would guess that mandamus is the proper remedy on the grounds that the 9th dawdling is an abuse of the 9ths discretion – and there wouldn’t be a snowball’s chance in hell of it happening short of the 9th being obviously dilatory or refusing to follow its own published local rules. The underlying issue of gay marriage wouldn’t be the issue – it’d be an attack on the courts for being busy, which the Supreme Court has every incentive not to allow as a legitimate line of assault.
I’d also point out, even if an incredibly cynical group of appellate judges were inclined to do something so abusive, it’d be a severe blow to their legitimacy that would bite them repeatedly in the ass in the just slightly less short and long runs. Judges don’t get where they are without being able to put aside their particular desires on a particular issue in perspective to the big picture.
August 13, 2010, 7:08 pmbmaz says:
Meh, the appellate panel set an accelerated briefing schedule on the stay with response to DI motion for stay due tonight and reply (if any) due Monday. Quite clear they are going to rule on or before the 18th when Walker’s stay expires. So, this is not an issue.
August 13, 2010, 8:40 pmGuy says:
What would impeaching Judge Walker even accomplish? It’s not like it would nullify his ruling.
August 14, 2010, 7:41 amGray Peterson says:
9th Circuit isn’t going to sit on the decision. My prediction is that they will decide on August 17th (likely ruling against the stay). The Prop 8 Proponents will then petition Justice Kennedy for a stay.
August 14, 2010, 2:34 pmJustin says:
Here’s a wrinkle to keep in mind. One of the judges on the 9th Circuit motions panel this month is Judge Thomas out of Montana. The President floated his name as a potential SCOTUS-nominee. Methinks Judge Thomas’s view on the stay issue is going to be colored heavily in that regard. He might rule for the stay in hopes of avoiding the wrath of the Senate’s social conservatives.
August 14, 2010, 9:15 pm