BREAKING: 9th Circuit rules on the Prop 8 case

January 4, 2011 at 11:14 am 141 comments

By Adam Bink

Update 13: Olson said he would be submitting briefs et al to the CA Supreme Court if/when it is allowed.

Update 12: I’m on a press call with Ted Olson et al. I’ll update with any interesting info.

Update 11: Here’s a quick reaction that Shannon sent over e-mail. We’ll see you at 2:30 PM PST for Q&A.

This will delay the day that Proposition 8 is gone for good, but hopefully not for long.  The Ninth Circuit asked the California Supreme Court to decide whether initiative proponents can force the state to defend an initiative that has been struck down by a federal court.  There is nothing in California law that gives initiative proponents such an extraordinary power.  Both Kamala Harris and Jerry Brown were very clear when they ran for office as Attorney General and Governor that no more state money should be spent on appealing a federal court ruling that Proposition 8 violates the equal protection rights and the core fundamental rights of hundreds of thousands of its citizens.  Their opponents expressed the opposite view, and the voters spoke.  That should be the end of the matter.

I am confident the California Supreme Court will hold that California law does not give initiative proponents any special power to override the decisions of the state’s elected representatives.  In the meantime, however, Proposition 8 remains on the books, and every day that goes by, LGBT people in California are denied the freedom to protect their families and express their love and commitment through marriage.

Update 10: We have a special treat coming to help answer all of your questions. I asked Shannon Minter, the Legal Director at National Center for Lesbian Rights and the lead attorney on the original In re Marriage Cases ruling at the California Supreme Court, to stop by here at 2:30 PM PST and answer some questions. The format will be similar to the chat we hosted several months ago.

So, check back here at 2:30 PM PST/5:30 PM EST with your best questions in hand, and we’ll field ’em.

To read Shannon’s earlier chat on the case, you can find that here.

Update 9: On the question of how the CA Supreme Court could rule, they could rule that proponents have standing; do not have standing; or make no ruling at all. If they rule there is standing, then the 9th Circuit would make a ruling on the merits (constitutionality) of the case. If they rule there is no standing, the case could be thrown out without a ruling on the constitutionality, as Arizonans for Official English v. Arizona was by the US Supreme Court, where the Court specifically said it makes no ruling on the constitutionality while remanding a lower court decision. Robert will have more on what he sees as most likely to come out of the CA Supreme Court.

Update 8: Robert Cruickshank of Calitics, who often guests here, will have another analysis piece coming at 12:30 PM PST.

Update 7: After talking to a few con law experts in the field, some analysis. At issue is whether ballot initiative proponents (e.g. ProtectMarriage.com) are allowed to defend initiatives in a case when the State (e.g. the Attorney General and the Governor) decline to do so. That we’ve known all along. On the table is that the question of “standing” is a federal one. Our side argued that even if California law allows initiative proponents to defend a ballot initiative under state law, standing could still not be conferred in the federal courts. If the California Supreme Court decides that initiative proponents like ProtectMarriage.com cannot defend the initiative in state court, then it’s more doubtful it would be able to do so in federal court. And that is the reason the 9th Circuit is asking for clarification from the California Supreme Court re state law.

Update 6: With thanks to Kathleen, here’s a Scribd version to read through:

View this document on Scribd

Update 5: Folks are asking about the timeline. There’s nothing on the timeline of a CA Supreme Court decision. There is this:

The case is withdrawn from submission, and further proceedings in this
court are stayed pending final action by the Supreme Court of California. The
parties shall notify the Clerk of this Court within three days after the Court accepts
or rejects certification, and again within three days if the Court renders an opinion.
The panel retains jurisdiction over further proceedings.
IT IS SO ORDERED.

Update 4: Here’s the meat of the ruling. I bolded the key parts:

“Filed Order for PUBLICATION (STEPHEN R. REINHARDT, MICHAEL DALY HAWKINS and N. RANDY SMITH) for certification to California State Supreme Court. Before this panel of the United States Court of Appeals for the Ninth Circuit is an appeal concerning the constitutionality under the United States Constitution of Article I, § 7.5 of the California Constitution (“Proposition 8”). Because we cannot consider this important constitutional question unless the appellants before us have standing to raise it, and in light of Arizonans for Official English v. Arizona, 520 U.S. 43 (1997) (“Arizonans”), it is critical that we be advised of the rights under California law of the official proponents of an initiative measure to defend the constitutionality of that measure upon its adoption by the People when the state officers charged with the laws’ enforcement, including the Attorney General, refuse to provide such a defense or appeal a judgment declaring the measure unconstitutional. As we are aware of no controlling state precedent on this precise question, we respectfully ask the Supreme Court of California to exercise its discretion to accept and decide the certified question below. (See order for full text) The Clerk is hereby directed to transmit forthwith to the Court the original and ten copies of this order and accompanying memorandum, as well as a certificate of service on the parties. Cal. R. Ct. 8.548(d). The clerk shall also transmit the following along with this request: ten copies of the district court Findings of Fact / Conclusions of Law / Order (704 F. Supp. 2d. 921 (N.D. Cal. 2010)); ten copies of the Permanent Injunction issued by the district court (docket entry 728 in No. C 09-2292-VRW (N.D. Cal. Aug. 12, 2010)); a copy of the video recording of the oral argument heard in these appeals on December 6, 2010; the briefs of the parties and intervenors in this appeal; and the briefs amicus curiae filed by (1) the Center for Constitutional Jurisprudence and (2) Equality California in No. 10-16696. The Clerk shall provide additional record materials if so requested by the Supreme Court of California. Cal. R. Ct. 8.548(c). The case is withdrawn from submission, and further proceedings in this court are stayed pending final action by the Supreme Court of California. The parties shall notify the Clerk of this Court within three days after the Court accepts or rejects certification, and again within three days if the Court renders an opinion. The panel retains jurisdiction over further proceedings. IT IS SO ORDERED. [7598921] (RP)”

On the issue of standing for Imperial Valley (h/t Karen Ocamb):

FILED PER CURIAM OPINION (STEPHEN R. REINHARDT, MICHAEL DALY HAWKINS and N. RANDY SMITH) AFFIRMED; DISMISSED. The district court order denying the motion to intervene is AFFIRMED. Movants’ appeal of the district court order concerning the constitutionality of Proposition 8 is DISMISSED for lack of standing. The deadline for filing a petition for panel rehearing or rehearing en banc is hereby EXTENDED until the deadline for such petitions in No. 10-16696, which will be 14 days after an opinion is filed in that appeal. The Clerk is DIRECTED to stay the issuance of the mandate in this case until the mandate issues in No. 10- 16696. AFFIRMED in part; DISMISSED in part. FILED AND ENTERED JUDGMENT. [7598965] (RP)

Update 3: The filing can be found here.

Update 2: Reading through the documents, the 9th Circuit has issued a question to the CA Supreme Court asking if proponents have standing. No decision on the merits yet. More soon.

Update: According to the American Foundation for Equal Rights, the 9th Circuit ruled that Imperial County is denied standing in the process.

The breaking news is that the 9th Circuit will rule any minute on the Prop 8 case. The filings are being uploaded and I’m sorting through. I will update this post from the top.

Entry filed under: 9th Circuit Court of Appeals, Prop 8 trial, Trial analysis.

Incoming IA Governor Branstad opposes judicial impeachment Analysis: 9th Circuit Appears Ready to Grant Proponents Standing to Appeal

141 Comments Add your own

  • 1. Wine Country Lurker Grrl  |  January 4, 2011 at 11:16 am

    Holy crap! (And subscribe)

    Reply
    • 2. Lesbians Love Boies  |  January 4, 2011 at 11:17 am

      What Wine Country Lurker Grrl said!

      Reply
      • 3. Michelle Evans  |  January 4, 2011 at 11:20 am

        Heck of a way to kick off the New Year! Hadn’t expected anything so quickly.

        Reply
        • 4. Gregory in Salt Lake City  |  January 4, 2011 at 11:24 am

          Hi Michelle…loved all your holiday posts : )

          Reply
    • 5. Ed Cortes  |  January 4, 2011 at 11:32 am

      checkin’ da box…

      Reply
  • 6. Meagan  |  January 4, 2011 at 11:16 am

    omggg subscribing

    Reply
  • 7. Gregory in Salt Lake City  |  January 4, 2011 at 11:16 am

    Yikes!!!!! subs

    Reply
    • 8. Meagan  |  January 4, 2011 at 11:17 am

      I’m kind of loving the simultaneous exclamations and subscriptions.

      Reply
    • 9. Gregory in Salt Lake City  |  January 4, 2011 at 11:19 am

      lol….looks like a few of us got an “electric shock!”

      Reply
  • 10. Ronnie  |  January 4, 2011 at 11:17 am

    (grasps wireless mouse tightly)……<3…Ronnie

    Reply
    • 11. Lesbians Love Boies  |  January 4, 2011 at 11:20 am

      Make sure your spare batteries for that mouse are charged!

      Reply
      • 12. Ronnie  |  January 4, 2011 at 11:21 am

        lol…I charged 8 of them last night….<3…Ronnie

        Reply
    • 13. Mouse  |  January 4, 2011 at 11:53 am

      Eeek!

      Reply
  • 15. Kathleen  |  January 4, 2011 at 11:17 am

    Scribd is misbehaving. I’m getting these uploaded as fast as possible. So far, we have an ORDER asking the CA State Supreme Court to certify a question on Proponents’ standing. And the Motion to intervene by Imperial County has been denied.

    Reply
    • 16. Lesbians Love Boies  |  January 4, 2011 at 11:18 am

      We love you Kathleen! Big hugs!

      Reply
      • 17. Gregory in Salt Lake City  |  January 4, 2011 at 11:20 am

        what LLB said!! : D

        Reply
      • 18. Sagesse  |  January 4, 2011 at 11:20 am

        What LLB said. It’s a delay, but covers all the bases.

        Reply
      • 19. DazedWheels  |  January 4, 2011 at 11:27 am

        Echoing love and hugs to Kathleen!

        Can anyone summarize what process the California Supreme Court will likely follow to answer the certified question? Will they need to have hearing, receive testimony, etc, or is it just something they can do by a show of hands and a Tweet?

        Reply
  • 20. Peterplumber  |  January 4, 2011 at 11:22 am

    sribing

    Reply
  • 21. Franck  |  January 4, 2011 at 11:23 am

    Okay, too fast, too fast. I was about to go to bed after a long day at work when that bomb dropped… Now I’m too excited to sleep. ARGH.

    – Franck P. Rabeson
    Days spent apart from my fiancé because of DOMA: 1292 days, as of today.

    Reply
  • 22. Susan R Barnes  |  January 4, 2011 at 11:26 am

    Holding my breath, crossing my fingers, perched like a bird above my keyboard, waiting…

    Reply
  • 23. Peterplumber  |  January 4, 2011 at 11:26 am

    And Reinhartd’s essay on why he failed to recuse himself is now published.

    Reply
    • 24. John B.  |  January 4, 2011 at 11:38 am

      Do you have a link to Reinhardt’s explanation of why he didn’t recuse himself? I can’t find anything.

      Reply
      • 25. Peterplumber  |  January 4, 2011 at 11:49 am

        Here is the short version:
        Docket Text:
        Filed MEMORANDUM REGARDING MOTION TO DISQUALIFY for PUBLICATION (STEPHEN R. REINHARDT) Shortly before the hearing of this appeal, the defendants-intervenorsappellants (“Proponents”) requested that I recuse myself under 28 U.S.C. § 455(a) and § 455(b)(5)(iii). Under § 455(a), I must recuse myself if “a reasonable person with knowledge of all the facts would conclude that [my] impartiality might reasonably be questioned.” United States v. Nelson, 718 F.2d 315, 321 (9th Cir. 1983). Under § 455(b)(5)(iii), my recusal is required if my wife has an “interest” that could be “substantially affected” by the outcome of this proceeding. I denied Proponents’ motion with a brief statement and promised a further explanation in due course.1 Now that our panel has completed the immediately pressing matters regarding the appeal, I provide my further reasons. (see order for full text) is, indeed, important that judges be and appear to be impartial. It is also important, however, that judges not recuse themselves unless required to do so, or it would be too easy for those who seek judges favorable to their case to disqualify those that they perceive to be unsympathetic merely by publicly questioning their impartiality. See H.R. Rep. No. 93-1453 (1974) (providing legislative history of federal recusal statute) (“At the same time, in assessing the reasonableness of a challenge to his impartiality, each judge must be alert to avoid the possibility that those who would question his impartiality are in fact seeking to avoid the consequences of his expected adverse decision.”). Were I to be recused because of the facts Proponents cite, it would not be merely from serving on the present panel but from voting on whether to rehear the case en banc and taking part in any en banc proceedings held by this court. My wife has no tangible interest in this case’s outcome, and I do not believe that my impartiality in this case can reasonably be questioned on the basis of either her public statements or the ACLU/SC’s involvement in any judicial proceedings. For these reasons, I deny Proponents’ motion. [7599026] (RP)

        Reply
      • 26. Kathleen  |  January 4, 2011 at 11:50 am

        Reply
      • 27. StevenJ  |  January 4, 2011 at 12:04 pm

        Refusal to recuse here:

        http://www.afer.org/wp-content/uploads/2011/01/REINHARDT-Refusal-to-Recuse.pdf

        Reply
  • 28. Dave in ME  |  January 4, 2011 at 11:28 am

    Just subscribing to look at this stuff later!

    Dave in Maine

    Reply
  • 29. Lesbians Love Boies  |  January 4, 2011 at 11:31 am

    So nothing? Calif. Supreme court has to decide if anyone can even appeal?

    Does that make Judge Walker’s ruling stand for now?

    Can people start planning weddings?

    !!!

    Reply
    • 30. nightshayde  |  January 4, 2011 at 12:05 pm

      I got some rainbow ribbon with which to wrap the bouquets (only had green ribbon before). I should get to work on those…

      *hopes to need them sooner rather than later*

      Reply
  • 31. Heather  |  January 4, 2011 at 11:31 am

    Ok – for those of us who really don’t read leagal-ese – is this a good thing or bad thing? Are they calling into question whether those appealing the overturn of Prop 8 have standing or…help?

    Reply
    • 32. Gregory in Salt Lake City  |  January 4, 2011 at 11:32 am

      Please o please o please translate!

      Reply
    • 33. Em  |  January 4, 2011 at 11:48 am

      I second – or third, or whatever! – the request for a translation from legal jargon into something we can explain to others who don’t read here but rely on our relays of the info posted here.
      Thanks!

      Reply
    • 34. SA  |  January 4, 2011 at 11:49 am

      “Standing” means “do you have the right to bring a case into court.” If you drive over my foot, I have the standing to bring a civil suit against you for my lost wages. If you drive over my neighbor’s foot, I am unlikely to have standing to bring a civil suit against you… unless my neighbor is also my home care aide, or my best employee, or some other role that means my interests were directly damaged by you.

      A central question in this appeal has been “if the Governator and AG Brown refused to appeal Judge Walker’s decision overturning Prop 8, who else has the right, or standing, to appeal?” If no one else has legal standing, there is, legally, no legitimate appeal.

      AFAIK there were two main appellants (or “entities appealing”) in this case: Imperial County, where the clerk didn’t want to issue gay marriage licenses, and the Pro-8 people, claiming to represent the voters.

      The Supremes just tossed out Imperial County, I would guess at least in part because their part of the appeal was brought by a sole county clerk, not by an actual county official (see the recaps of the first part of the Appeals Court arguments regarding that). So they have no standing to be part of an appeal.

      As of the last time I refreshed, there wasn’t a ruling on the Pro-8 people claiming to represent the voters. The argument against their standing is basically, you folks are private citizens, not elected officials. The elected officials have declined to appeal Walker’s decision. If any John or Mary off the street can step in claiming to represent “the voters” in a lawsuit, we’ll have total chaos.

      So if they get tossed out as well, there will be no one left backing the appeal, legally speaking. No backers, no appeal.

      Reply
      • 35. Lesbians Love Boies  |  January 4, 2011 at 11:52 am

        Very well written – I understand now! Thanks SA.

        Can they appeal the standing issue to the Supreme Court is the CA Supreme court says no.?

        Reply
        • 36. SA  |  January 4, 2011 at 12:11 pm

          That is a good question, and I don’t know the answer, as I am also not a lawyer (just someone who reads a lot of law, for a layperson). :)

          Reply
  • 37. Ann S.  |  January 4, 2011 at 11:32 am

    And Imperial County is OUTTA HERE! Yay, and good riddance to the deputy county clerk.

    As to the other, I’ll just say that I’m surprised and a little disappointed at the certifciation to the CA Supreme Court, because of the delay this may cause. It also seems to me that standing under CA law is, as Boies said, necessary but not sufficient.

    But on the plus side, maybe they’re exhausting all avenues so that their final ruling will better withstand appeal.

    Many thanks, as usual, to Kathleen for her diligence in uploading documents for us.

    Reply
    • 38. Elizabeth Oakes  |  January 4, 2011 at 1:50 pm

      My feelings exactly, Ann. The delay is maddening, but my impression is they are trying to be very deliberate here. My question is whether or not the CA Supremes determination can screw up the appeal to SCOTUS. That would be a Mongolian cluster right there. And does anyone know anything about our new Chief Justice now that Ronald George is gone?

      Reply
      • 39. Kathleen  |  January 4, 2011 at 1:53 pm

        Elizabeth, can you clarify your question about how this might impact an appeal to SCOTUS? I don’t understand what your concern is.

        Reply
  • 40. dtwirling  |  January 4, 2011 at 11:36 am

    So…. refresh my memory…

    If the Supreme Court comes back in 3-6 days, saying that the proponents don’t have the right to appeal… does that mean Judge Walker’s ruling stands and the stay is lifted?

    Reply
    • 41. dtwirling  |  January 4, 2011 at 11:39 am

      You know, if the 9th Circuit times this just so, it’ll be mid-January when the Supremes answer the question… add on a month, and it might be Valentine’s Day 2011 when this whole shebang gets decided. I don’t typically get all mushy over the holiday, but I do see the poetic justice of the possibility.

      Reply
  • 42. Jessie Odell  |  January 4, 2011 at 11:36 am

    Yes it means Judge Walkers Decision Stands. It also means that the judge will have to decide if they are going to hear it again. If he says no, then it’s a no.

    Reply
    • 43. nightshayde  |  January 4, 2011 at 11:39 am

      So if the proponents are denied the right to appeal to the 9th, do they get to appeal THAT ruling to the SCOTUS?

      Reply
      • 44. Lesbians Love Boies  |  January 4, 2011 at 11:41 am

        Isn’t that the problem? There are no proponents now – CA Supreme Court needs to decide if anyone can appeal the case since the Gov and AG won’t?

        Reply
      • 45. JPM  |  January 4, 2011 at 11:41 am

        Yes.

        Reply
  • 46. Guest  |  January 4, 2011 at 11:38 am

    I’m still annoyed that stays are always granted for people opposing marriage equality (and in California’s case, those who voted to take away existing rights of a minority) but stays are rarely/never granted for those on the pro-marriage equality side. And then they introduce a bunch of delays (which may or may not be necessary, the point is it takes a freaking long time).

    Reply
  • 47. canyonlady  |  January 4, 2011 at 11:40 am

    good news…let them have standing, then the 9th can uphold Walker’s ruling. We’ll see how quickly the Cal Supremes respond though.

    Funny thing…Arnold and Jerry did not defend (though they did file answers to the complaint, which is a defense…hmm, maybe that will be an issue?), but the proponents did, and couldn’t defend it. They did a terrible, terrible job, largely because there is no rational basis for denying same sex marriage.

    State not defending was actually a better defense than what was presented, ironically.

    Reply
  • 48. ElusiveJ  |  January 4, 2011 at 11:41 am

    Not being someone who speaks legal-ese, it sounds like the news here is that we will have a decision about whether same sex marriage is legal in California in 3-6 days. Am I right?

    Reply
    • 49. JPM  |  January 4, 2011 at 11:43 am

      No. Much more likely 3-6 months than 3-6 days. No one knows how long the California Supreme Court will take to render an opinion, and then the ball will be tossed back into the Ninth’s court.

      Reply
      • 50. JonT  |  January 4, 2011 at 11:59 am

        … and if standing is rejected, you can bet that will be appealed to SCOTUS.

        I think we are still along ways off from resolution.

        Reply
    • 51. adambink  |  January 4, 2011 at 11:53 am

      No. There is no apparent timeline on the CA Supreme Court movement.

      Reply
    • 52. Blaise Pascal  |  January 4, 2011 at 12:00 pm

      No, it’ll likely be longer.

      What has happened is that the 9thCircuit does not know if, legally, the appellants (the anti-marriage folks) have the right to appeal (or even to have defended the amendment in the first place). They feel that the question of “standing” depends on California law, not Federal law. So they are politely asking the California Supreme Court to tell them what California law says on the matter. The 9th Circuit won’t do any more on the case until the California Supreme Court deals with their questions.

      The California Supreme Court has the right to decline to answer their questions. If so, the 9th circuit has to try to figure out if the appellants have standing without help from the California courts. If the California Supreme Courts do decide to answer the questions, the 9th circuit has those answers to help guide their own decision on standing.

      The “3 days” bits mean that the 9th circuit wants to be notified within 3 days of any decision by the California courts: within 3 days of the courts deciding whether or not to consider their questions, and within 3 days of the courts actually answering their questions. But the California courts aren’t lime-limited by this order as to when they will make their decisions or render an opinion.

      So it’s a waiting game again.

      Reply
      • 53. ElusiveJ  |  January 4, 2011 at 12:06 pm

        Got it. Thank you for the explanation.

        I have to say I’m not shocked that they decided Imperial County doesn’t have standing. Based purely on the attitude and questions asked in the hearing I was sort of expecting it.

        Reply
        • 54. Elizabeth Oakes  |  January 4, 2011 at 1:52 pm

          “Where’s Dolores?” IN THE ROUND FILE.

          And well deserved. Yaay.

          Reply
      • 55. Ann S.  |  January 4, 2011 at 12:09 pm

        I think that’s correct.

        I just want to add that the standing question depends partly on state law, and partly on federal law. Even if the CA Supreme Court comes back and says that there is standing under California law, I believe the question remains whether that is sufficient to give standing under Article III of the US Constitution.

        If the CA Supreme Court decides to request briefs on this question and then hold oral arguments — which I suppose is possible — this could take several months, I think.

        As far as what the 9th Circuit is doing in the meantime, they are probably giving their attention to other cases, and may well not have considered yet what their ruling on the merits would be if they find that there is standing. If they find that there is no standing, they will have to consider what their ruling should be. Remember that the argument has been made that the entire trial has to be vacated if there is no standing. But if there is no standing it is highly unlikely they will rule on the merits, nor should they.

        So, yes, it’s a waiting game again.

        Reply
  • 56. SA  |  January 4, 2011 at 11:42 am

    So Imperial County is denied… what about the pro-8 folks claiming to represent the voters’ will or whatever? [waits breathlessly]

    Reply
  • 57. canyonlady  |  January 4, 2011 at 11:43 am

    Let’s have this decided on the merits, not technical stuff. There are 5 votes on SCOTUS to overrule Prop 8.

    Reply
    • 58. nightshayde  |  January 4, 2011 at 11:45 am

      … we hope.

      Reply
      • 59. Kalbo  |  January 4, 2011 at 5:22 pm

        I’m very confident there is at least 5 of 9! So yeah, I’m hoping they do get standing so the 9th, and later the Supremes, can rule on full equality for us once and for all.

        For decades major gay rights groups were too timid to bring bring up these cases in the courts. We’ve got the best ruling we could have ever asked for with Walker, so let’s go for it! I just turned 30, and I want to get on with my life already … ^_^

        Reply
  • 60. Joel  |  January 4, 2011 at 11:44 am

    Thank you, thank you for being on top of this breaking news. Now, could somebody explain what it means?

    Reply
  • 61. Andrew_SEA  |  January 4, 2011 at 11:44 am

    I am still clueless… (not a “legal” person here)

    1) Imperial county has no standing.
    2) Case referred to CA Supreme Court?

    What does this mean?

    I assume – “No standing” means Judge Walker’s ruling stands unless the CA SC decides no?

    Now we have to wait more time for CA SC to do ??

    I don’t mind waiting… I want the judgement to be thorough, but a list of pros-n-cons would help. lol

    I almost spit out my water reading this… :-)

    Reply
    • 62. nightshayde  |  January 4, 2011 at 11:50 am

      IANAL … but I believe there were two groups both trying to appeal. One group was Imperial County (now been told to go home & shut up), and the other was the ProtectMarriage group who sponsored the ballot proposition in the first place.

      Imperial County’s right to standing has been denied. The 9th Circuit is now asking the California Supreme Court if ProtectMarriage can be denied standing as well or if they should be allowed to continue the appeal process.

      In the short term and in JUST California, it would be dandy if nobody was given standing & Judge Walker’s rulling stands. In the longer term and much broader scope, it might be better if ProtectMarriage DOES get standing & has to stick with the testimony/evidence (or lack thereof) they presented at the trial.

      If this goes to the SCOTUS, does either side get to present any more evidence, or do they still have to rely solely on the evidence & testimony from the original trial?

      Reply
      • 63. SA  |  January 4, 2011 at 11:55 am

        Listen to Nina Totenburg on NPR sometime – at SCOTUS, all the justices can grill both sides of any appeal on any aspect of the matter they want.

        Reply
    • 64. Physicalist  |  January 4, 2011 at 11:54 am

      My reading (not a lawyer):

      The US Court of Appeals wants the CA SC to say whether ballot initiative supporters (like the Pro-8 folks) have legal standing to appeal.

      If CA SC says “Yes,” then the US Appeals will decide whether the Walker decision should be overturned.

      If CA SC says “No,” then presumably the appeal will be denied by the Appeals Court for lack of standing, but that decision will presumably be appealed to SCOTUS.

      Reply
  • 65. JonT  |  January 4, 2011 at 11:45 am

    Really? I notice that the standing issue has been referred to the California state court for their opinion. I thought this would add months to any possible decision.

    Guess I could be wrong.

    Reply
    • 66. JonT  |  January 4, 2011 at 12:04 pm

      And I guess I wasn’t.

      Looks like somebody jumped the gun when they posted that ‘9th Circuit will rule any minute on the Prop 8 case.‘ :)

      In reality, now we have to wait for the CA supreme court to rule on proponents standing. If rejected, then we get to wait for the appeal to SCOTUS. So we are still a ways of from a final decision, one way or another.

      But, thanks for the adrenaline rush anyways Adam :)

      Reply
    • 67. mcc  |  January 4, 2011 at 12:06 pm

      Will there be hearings/arguments before the CA supreme court about this or will the CA supreme court just rule?

      Reply
      • 68. Kathleen  |  January 4, 2011 at 12:23 pm

        That will be up to the CA Supreme Court.

        Reply
  • 69. Lesbians Love Boies  |  January 4, 2011 at 11:48 am

    Has the 9th Judges spent this time ONLY dealing with the issue of standing? Or could they also be ready on the appeal (only if they have someone who can legally appeal?!)

    Reply
    • 70. Peterplumber  |  January 4, 2011 at 11:54 am

      I am no expert, but I think they have an opinion. But if the Proponants do nto have standing, then they do not need to issue thier opinion.

      Reply
    • 71. Mouse  |  January 4, 2011 at 12:07 pm

      I think the whole point of hearing both the standing and merits at the same time suggests that they probably have or are close to a decision on the merits, but they don’t want to do anything with that until the standing issue is resolved.

      If there’s no standing, there’s no case to have a decision about.

      Reply
      • 72. Ann S.  |  January 4, 2011 at 12:15 pm

        Mouse, I don’t think I’d make that conclusion about their being close to a decision on the merits. They won’t take up their own and their clerks’ time with that unless they have to, and they don’t have to if there’s no one with standing.

        Reply
  • 73. Kevin  |  January 4, 2011 at 11:50 am

    This is, altogether, not great news. Reinhardt thoroughly excoriated Olson and Boies in his concurrence, saying that it was incomprehensible why anyone mounting a 14th amendment challenge to a voter initiative, ultimately requiring appellate review, would proceed with defendants who would be barred from arguing in an appellate court. Moreover, he somewhat aggressively attacks their decision to enjoin two counties and then rely on the AG to ensure the applicability of the law to other counties.

    The CA SC is not likely to resolve this issue in anything resembling the near future.

    In short, nothing in today’s orders addresses the merits; the matter is stayed pending the CA SC’s answer, which puts potential same-sex marriages in CA that much further in the future.

    Reply
    • 74. JonT  |  January 4, 2011 at 12:05 pm

      Agreed :(

      Reply
    • 75. SA  |  January 4, 2011 at 12:18 pm

      Kevin – can you explicate your comment a bit? I had trouble following the part about Reinhardt (one of the appellate judges, right?) excoriating Olson and Boies (the anti-8 lawyers, right?).

      Reply
    • 76. Menergy  |  January 4, 2011 at 12:25 pm

      Perhaps you meant “Cooper” (the Prop 8 defendants’ attorney) and not Olson/Boies, the plaintiffs’ team? I don’t recall any excoriation (severe criticism or censure) of the pro-same-sex-marriage side at all.

      Reply
      • 77. Kathleen  |  January 4, 2011 at 8:15 pm

        I think Kevin is referencing Reinhardt’s concurrence:

        Reply
  • 78. canyonlady  |  January 4, 2011 at 11:54 am

    They don’t have to get to the merits if the appealing parties have no standing. The appeal would simply be dismissed. I assume, though I don’t know for sure, that if the appeal is dismissed on lack of standing, whether SCOTUS would hear an appeal of the dismissal, particularly if the Cal Supreme Court said the proponents had no standing in the case. SCOTUS does not like to take cases when standing is not there.

    End result could be as easy as dismissing the appeal AND lifting the stay. Letting marriage proceed in CA only.

    Or if there is standing, finding against proponents and lifting stay, though SCOTUS might reinstate stay.

    There are two wrinkles that i don’t have time to research (a) why were the proponents allowed to intervene if they did not have status (did trial judge rule on that issue, did Boies and Olson object to proponents being in the case, so was the issue waived regardless of what the Cal Supremes say?), and (b) didn’t the state and counties ‘defend’ by filing answers, and just not asking questions at trial.

    Reply
    • 79. Kevin  |  January 4, 2011 at 12:06 pm

      One does not need Article III standing to intervene at trial; intervention is governed by procedural rules (FRCP 24). Other rules govern pleadings and answers. The AG answered a pleading that was certified by the court. This doesn’t constitute a defense.

      Reply
      • 80. canyonlady  |  January 4, 2011 at 12:09 pm

        absence of the answer would have been a default. Answer is a defense. I’ll look at Rule 24. If Plaintiffs did not object….waiver?

        Reply
        • 81. Ann S.  |  January 4, 2011 at 12:16 pm

          Intervention is different than carrying on the defense on your own. The governor and AG were nominal defendants in the trial, but they are not party to the appeal, so the proponents would have to be “promoted” from intervenors (their status at trial) to defendants, so to speak.

          Reply
    • 82. Kathleen  |  January 4, 2011 at 12:41 pm

      The state and counties answered the complaint – essentially going through, point by point, either conceding to the points made (e.g., agree that plaintiffs were denied marriage licenses) or offering no opinion (as in whether Prop violates the constitution). The exception was AG Brown, who agreed with plaintiffs’ contention that Prop 8 is unconstitutional. So, while defendants formally answered the complaint, they all chose not to mount a defense.

      However, the named defendants were technically present in the case, even if they didn’t defend. This meant there was a ‘case or controversy’ as required for Article III standing and Proponents were allowed to intervene for the purposes of defending the complaint. But without the named defendants being willing to appeal the decision, there is a question of whether there is anyone with standing to appeal. Another way to look at it is that whether a party is allowed to intervene in an existing case or whether that party qualifies to make the case themselves are two different questions.

      Reply
  • 83. Kathleen  |  January 4, 2011 at 11:57 am

    Sorry for the delay in getting these up, folks. Seems the problem is my Acrobat reader. It has been acting flaky ever since I downloaded and read a HRC tax filing yesterday, but I didn’t realize the full extent of the problem until just now. I think all the documents are now uploaded to the Scribd account.

    I’m going to shut down my computer to see if this sorts it out (quitting Acrobat isn’t solving it – it still keep crashing) and then hopefully will be back soon to answer questions.

    Reply
  • 84. DazedWheels  |  January 4, 2011 at 12:01 pm

    I liked this part of Reinhardt’s memorandum:
    “… Proponents’ contention that I should recuse myself due to my wife’s opinions is based upon an outmoded conception of the relationship between spouses. …”

    Reply
    • 85. Dude  |  January 4, 2011 at 12:25 pm

      Subtext being that their attitude about SSM is also “based upon an outmoded conception of the relationship between spouses”. Nice.

      Reply
  • 86. adambink  |  January 4, 2011 at 12:04 pm

    Some updates above folks. I’ll be culling more analysis from some experts as the day goes on.

    Reply
    • 87. nightshayde  |  January 4, 2011 at 12:31 pm

      May I humbly suggest a change of the title for this thread? People may stumble across this and get their hopes up prematurely.

      Reply
  • 88. mcc  |  January 4, 2011 at 12:05 pm

    So do I understand correctly, the upshot they’re saying that Team NOM has no right to appeal under federal law but might have a right to appeal under state law?

    Reply
    • 89. nightshayde  |  January 4, 2011 at 12:10 pm

      I think they’re saying that they’re not sure if team NOM has a right to appeal under federal law, but that they can more easily say “no” if they don’t have a right to appeal under state law. If they DO have a right to appeal under state law, then the question of federal standing becomes a little more complex.

      Reply
      • 90. Ann S.  |  January 4, 2011 at 12:17 pm

        Yes, that’s about it.

        Reply
    • 91. Physicalist  |  January 4, 2011 at 12:15 pm

      In order for Team NOM to have a right to appeal, they need to be able to speak for the state (or have a particularized interest in the case).

      The US Appeals Court is asking the CA court whether Team NOM has that status.

      They’re asking California: “Is it OK for these guys to represent you in defending this ballot initiative through the appeal process? Or can only the Governor or Attorney General represent the state?”

      Reply
    • 92. Kathleen  |  January 4, 2011 at 12:22 pm

      Proponents argued that there whether or not they have standing to defend/appeal an initiative in federal court is controlled by how the individual state views their rights to defend/appeal. In their briefs and oral arguments Proponents pointed to a case (out of NJ?) that gave standing to legislators to defend in federal court BECAUSE the NJ State Supreme Court had said these legislators had standing. I don’t recall the case name off hand.

      The 9th Circuit therefore has asked the California State Supreme Court whether California State law views Proponents as having standing to appeal a voter initiative.

      Boies said, in oral arguments, that even if the CA Supreme Ct were to certify, this is not sufficient – that even when state law permits proponents’ defense of the initiative, this does not necessarily mean they meet the criteria set out for Article III standing in federal court.

      I haven’t read the opinion yet, but it seems to me this is an extremely (overly?) cautious move on the part of the judges. If California says they don’t have standing, it takes the matter out of their hands. But even if California says ‘yes’ it seems it wont’ answer the question for them as to whether Proponents have Article III standing.

      Reply
      • 93. TomTallis  |  January 4, 2011 at 12:25 pm

        It seems to me that the 9th Circuit has not been able to come up with a rationale to give the proponents standing and is looking to the CaSC to cover their butts.

        Reply
      • 94. Ann S.  |  January 4, 2011 at 12:48 pm

        Karcher v. May.

        Reply
      • 95. Ann S.  |  January 4, 2011 at 12:50 pm

        Sorry to be so terse. I believe Karcher v. May is the NJ case you referred to. I agree that the answer from the CA Supremes, if “yes”, is necessary but not sufficient for the proponents to have standing.

        I think it’s more a matter of them crossing their Ts and dotting their Is. Reinhardt and Hawkins don’t want to get spanked by the SCOTUS again.

        Reply
        • 96. Kathleen  |  January 4, 2011 at 1:15 pm

          Thanks for the name. Having now read the opinion, it looks to me as though the 9th Circuit agrees with Proponents on this – if not on the holding of Karcher per se, at least the principle put forth. They appear to be saying that if the CA Supreme Court says California law grants Proponents the particularized interest necessary to defend an initiative, then that will be sufficient to grant Article III standing.

          I’ll be interested to find out if Plaintiffs decide to appeal a decision that Proponents have standing to the Supreme Court – either separately, or as part of a response to an appeal by Proponents on the merits. And if the issue comes up to the Supremes, I’ll be interested to see if they agree on this point. My gut tells me no.

          Reply
          • 97. Ann S.  |  January 4, 2011 at 1:21 pm

            Hmmm, I didn’t read it that way, but I read rather hastily so I could well be wrong.

            My gut says that whatever the ruling on standing it will be appealed, and that the Supremes will rule that there is no standing. The latter is a WAG*, though.

            *WAG=wild-assed guess

          • 98. Kathleen  |  January 4, 2011 at 1:40 pm

            Re-read it, Ann. I’m interested in your opinion. IT seems to me that they will grant standing if the California Supreme Court says California law backs their right to defend.

          • 99. Ann S.  |  January 4, 2011 at 1:46 pm

            I did, and I now agree.

            Now I MUST try to do a bit of work before 2:30.

  • 100. elliom  |  January 4, 2011 at 12:10 pm

    Wikipedia entry for Certified question:

    http://en.wikipedia.org/wiki/Certified_question

    Reply
  • 101. ChrisB  |  January 4, 2011 at 12:13 pm

    If the CASC decides the intervenors DO have standing, and then the 9th rejects their appeal, doesn’t that ruling then hold for all of the areas included in the 9th Circuit? In other words, since this is a federal level appeals court, their decision would be binding on the territory they are responsible for?

    Wouldn’t it overturn Arizona’s Prop 102, Nevada’s Question 2, Montana’s Initiative 96, Oregon’s Ballot Measure 36, Idaho’s Amendment 2, Alaska’s various measures, and potentially Hawaii’s Amendment 2?

    Or would each of those have to be adjudicated separately, using this decision as precedent (assuming it goes the right way)?

    I realize the likelihood of en banc and SCOTUS appeals, but at least initially, this would have a broad effect.

    Reply
    • 102. Ann S.  |  January 4, 2011 at 12:19 pm

      It will depend on how broadly they rule. It’s quite possible they could make a ruling that binds only California, due to its unique circumstances.

      Reply
      • 103. nightshayde  |  January 4, 2011 at 12:24 pm

        “Unique circumstances” being that Prop 8 overturned an existing right whereas the other states on the list never had legalized marriage equality to begin with?

        Reply
        • 104. TomTallis  |  January 4, 2011 at 12:27 pm

          Also that there are 18,000 married gay couples in California and countless other otherwise identically situated couples who would marry if they could. That’s a clear violation of equal protection (except for Scalia, of course).

          Reply
          • 105. Ann S.  |  January 4, 2011 at 12:51 pm

            Those are the most likely reasons they might differentiate CA from other states. They could no doubt think of others.

    • 106. Kathleen  |  January 4, 2011 at 8:24 pm

      @ChrisB, to answer your question – even if the decision is broad enough to be useful in the other states within the 9th’s jurisdiciton, your second proposition is true, i.e., they would each have to be adjudicated separately, relying on this decision to try the case.

      Reply
  • 107. Toasty Tuesday: Gitting ‘Er Done « Queer Vegan Runner  |  January 4, 2011 at 12:15 pm

    […] get married. Obviously, we don’t actually have a lot of control over this but things as of a few minutes ago are looking optimistic. Yay! However, this goal is much more than just the piece of paper we would […]

    Reply
  • 108. canyonlady  |  January 4, 2011 at 12:16 pm

    courts want to be involved only when absolutely required.

    Reply
    • 109. nightshayde  |  January 4, 2011 at 12:25 pm

      I’m envisioning a gigantic judicial game of “hot potato.”

      Reply
      • 110. Joel  |  January 4, 2011 at 2:20 pm

        Except that the hot potato they’re throwing back and forth is our lives. Sour cream and chives, anyone?

        Reply
  • 111. James Sweet  |  January 4, 2011 at 12:27 pm

    Just to clarify my understanding, even if the CA Supreme Court comes back and says, “Nope, no standing,” they can still seek certiorari from SCOTUS, right?

    Reply
    • 112. Kathleen  |  January 4, 2011 at 8:12 pm

      Yes, they can appeal the decision denying them standing.

      Reply
  • 113. Bluprntguy  |  January 4, 2011 at 12:28 pm

    Just a clarification re: update #7. I think it’s clear that proponents have the ability to “defend” initiatives. I think the issue is whether they have standing to “appeal”.

    Reply
  • 114. Dude  |  January 4, 2011 at 12:31 pm

    I noticed this article just disappeared from the main page. What’s going on?

    Reply
    • 115. Dude  |  January 4, 2011 at 12:33 pm

      And it’s back. Nevermind.

      Reply
    • 116. nightshayde  |  January 4, 2011 at 12:34 pm

      It’s still listed on the main page for me, but it’s now the 2nd post.

      From the comments here, you can click on the new thread under “Recent Posts” on the right-hand side, or click on the title of the new thread just above where the comments start.

      Reply
  • 117. Steven  |  January 4, 2011 at 12:35 pm

    did the 9th Circuit of Appeals gave a time frame when they wanted to hear from CA Supreme Court?

    Reply
    • 118. Kathleen  |  January 4, 2011 at 1:07 pm

      No. That will be up to the CA Supreme Ct.

      Reply
    • 119. Ann S.  |  January 4, 2011 at 1:17 pm

      The 9th Circuit doesn’t get to dictate that to the CA Supreme Court. The CASC isn’t even required to issue an opinion, although I think it’s likely that they will.

      Reply
  • 120. adambink  |  January 4, 2011 at 12:36 pm

    Everyone, NCLR Legal Director and In re Marriage Cases lead attorney Shannon Minter will be joining us live at 2:30 PM PST to take your questions in the comments. Feel free to stop by then. If you recall, Shannon joined us for an earlier chat with his colleague Chris Stoll to answer outstanding questions on standing, timeline, constitutionality, etc.

    Reply
  • 121. PoxyHowzes  |  January 4, 2011 at 12:40 pm

    @DazedWheels: I also noted this language in Reinhardt’s memo because I think it relates (indirectly) to one of the points made by Olsen & Boies — that states in general and CA in particular no longer base their concept of Civil Marriage on anticipated or supposed gender-specific roles.
    IANAL, and I’m paraphrasing from memory, but I think the confluence of the Judges thoughts on recusal and the arguments in the case are, well, “interesting.”

    Reply
    • 122. DazedWheels  |  January 4, 2011 at 12:43 pm

      You expressed this much better than I could have, but that’s what I was thinking, too.

      Reply
  • 123. canyonlady  |  January 4, 2011 at 12:45 pm

    the state and county parties DID defend. Answering the complaint is a defense. They may not have put on witnesses, but there is nothing that requires them to do that, or to cross-examine witnesses the plaintiffs put on. Had they not answered, there would have been a default entered, possibly.

    And most cases give the state discretion to not appeal.

    If this were a case involving racial minorities and the state chose not to appeal (let’s say the Japanese internment in the 1940’s) because the state realized it was WRONG, would anyone be this upset that the KKK had been allowed to intervene but not appeal?

    Reply
    • 124. James Sweet  |  January 4, 2011 at 12:56 pm

      If this were a case involving racial minorities and the state chose not to appeal (let’s say the Japanese internment in the 1940′s) because the state realized it was WRONG, would anyone be this upset that the KKK had been allowed to intervene but not appeal?

      If it were the 50s? Yep. Sure would.

      Reply
  • 125. SA  |  January 4, 2011 at 12:56 pm

    Anybody have a take on a quote pulled out by the Chronicle:

    “The federal panel – Judges Stephen Reinhardt, Michael Hawkins and N. Randy Smith – made its preference plain. California’s initiative process, which grants lawmaking authority to the people, “would appear to be ill-served,” the judges said, if elected officials could nullify a voter-approved initiative by refusing to defend it.”

    Reply
    • 126. Bluprntguy  |  January 4, 2011 at 1:10 pm

      I think the Supreme Court has said the People’s interest is ill served by the Constitution on numerous occasions, but that the Court’s power is limited. Didn’t the George lambast the initiative process after the Strauss ruling?

      I don’t see this CA Supreme Court inventing standing for Proponents unless it’s specifically part of the Constitution – which it isn’t. If the People wish for Proponents to have the right to appeal, then they can amend the CA Constitution to specifically provide that right. They haven’t done so.

      Reply
    • 127. Kathleen  |  January 4, 2011 at 1:11 pm

      They made a point of this during oral arguments. They seemed to view the governor’s refusal to defend/appeal as a way to exert a veto power when the Constitution grants him none.

      I concur with all the other people here who think the entire initiative process in CA is majorly screwed up.

      Reply
      • 128. Bluprntguy  |  January 4, 2011 at 1:18 pm

        Agreed. The initiative process is majorly screwed up, but I still think it’s up to the People to fix it, not the courts.

        Reply
  • 129. Rhie  |  January 4, 2011 at 1:01 pm

    Scrib

    Reply
  • […] Please welcome Shannon Minter and Chris Stoll, who are joining us today to answer Prop 8 legal questions from the Prop 8 Trial Tracker community following today’s 9th Circuit ruling. […]

    Reply
  • 131. RebeccaRGB  |  January 4, 2011 at 2:41 pm

    This part of Shannon’s comment stuck out at me (emphasis mine):

    Both Kamala Harris and Jerry Brown were very clear when they ran for office as Attorney General and Governor that no more state money should be spent on appealing a federal court ruling that Proposition 8 violates the equal protection rights and the core fundamental rights of hundreds of thousands of its citizens. Their opponents expressed the opposite view, and the voters spoke. That should be the end of the matter.

    Ha ha ha. That’s right, NOM, one by one, each of your remaining excuses for your bigotry is coming back to bite you.

    Reply
  • 132. Leslie Basden  |  January 4, 2011 at 2:52 pm

    Would be nice to find a link for the discussion today…

    Reply
    • 133. Ann S.  |  January 4, 2011 at 2:54 pm

      GO TO THE NEWEST THREAD.

      Reply
  • 134. Top Posts — WordPress.com  |  January 4, 2011 at 4:14 pm

    […] BREAKING: 9th Circuit rules on the Prop 8 case By Adam Bink […]

    Reply
  • 135. Steven  |  January 4, 2011 at 5:38 pm

    Be warned by this link.. I went to NOM site to see what they are saying about the Prop 8’s partial decision/request. ONE WORD: they are spining it in their favor……. OR better yet LYING………………..

    http://www.nationformarriage.org/site/apps/nlnet/content2.aspx?c=omL2KeN0LzH&b=5075187&ct=8992937&notoc=1

    Reply
    • 136. Kathleen  |  January 4, 2011 at 5:42 pm

      maroons.

      Reply
    • 137. Ronnie  |  January 4, 2011 at 5:44 pm

      Lying is a sin…..REPENT…REPENT….(spits on NOM)…..<3…Ronnie

      Reply
    • 138. JonT  |  January 4, 2011 at 5:45 pm

      Oh, the spin is strong with this one :)

      But that’s all they really got, so… Nothing to see here, move along. :)

      Reply
  • 139. Mandi  |  January 4, 2011 at 6:13 pm

    Scribing

    Reply
  • 140. Richard A. Jernigan  |  January 4, 2011 at 7:55 pm

    Sorry I missed everything. I had a heavy schedule today–three assignments with reports to submit online, and new tires with Sulu’s oil change. Am just now getting to catch up with things.

    Reply
  • 141. Edward Gould  |  January 4, 2011 at 9:46 pm

    I have not been a fan of California ballot initiatives since they came up with the idea. Its one thing to take issues to the people about whether expressway X should be built but allowing people to vote on basic human rights is just so wrong on so many levels. Does the courts “verdict” maybe ruling is a better term have any long term meanings on the initiatives in general?

    Reply

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