Posts filed under ‘Briefs’

Prop 8: New briefs in support of plaintiffs’ arguments on standing issue

H/t to Kathleen

By Adam Bink

Several briefs were filed today in support of the arguments made by the Perry plaintiffs on the standing issue. The first is from California Attorney General Kamala Harris. Notable excerpts (bolding mine):

An initiative’s official proponents have a great interest in the validity of a successful measure, but a limited role in California’s initiative process.Our law does not protect their post-adoption interest by giving proponents the authority to represent the state’s interest against a challenge to the validity of a measure that has become state law. And our law does not afford official proponents any legal right, arising solely from their role as proponents, that is injured by a judgment invalidating a law adopted by initiative. Instead, once an initiative measure is approved by the voters, a court considering a challenge to the measure’s validity may grant the measure’s proponents leave to intervene and participate in its defense, or as amicus curiae, but only to represent their own interests as individuals, not those of the state.


The limited role of initiative proponents in stimulating an initiative process is defined by statute. The voters, by adopting an initiative, do not elect initiative proponents to represent the state. In addition, the initiative power is a reservation of the legislative power of government. It does not encompass the executive authority to enforce the law once passed, or to defend the state’s interest in the validity of state law. Finally, to the extent that California courts have granted official proponents permissive leave to intervene in cases challenging the validity of a law adopted by initiative, they have done so to allow proponents to represent their own interests, not those of the state. The interests of the state are necessarily represented by the public officials exercising executive powers and against whom relief is sought.

The Attorney General “has charge, as attorney, of all legal matters in which the State is interested . . . ,” and “shall attend the Supreme Court and prosecute or defend all causes to which the State or any state officer is a party in his or her official capacity.” (Gov. Code, §§ 12511, 12512.) Accordingly, the Attorney General must give consent to a private person to sue in the name of the people. (People ex rel. Ferguson v. Bd. of Sup’rs,etc. (1869) 36 Cal. 595, 605.) She is the only person to whom authority is given by law to appear for the people in this Court. (People ex rel. Livingston v. Pacheco (1865) 29 Cal. 210, 213 [“A private person has not the right or power to use at his election, the name of the people for the purpose of obtaining redress for private wrongs”].) It is also clear that the Governor and Attorney General exercise discretion in performing these executive functions, particularly those involved in conducting litigation on behalf of the state. The Attorney General “is invested with a discretion which a private citizen may not coerce or court control.” (City of Campbell v. Mosk (1961) 197 Cal.App.2d640, 647-648.) Nor may a court annul the Attorney General’s decision,except in the event of extreme abuse of discretion. (Id. at p. 651.) Part of this discretion is to decide, with respect to asserting the interest of the state 18 in litigation, what is and what is not in the public interest. (Id. at p. 648.)The courts of appeal have consistently held that: The decision of the Attorney General whether to participate in a lawsuit, where the State has no financial interest at stake nor possible liability, is a decision purely discretionary and . . .exclusively within the province of the Attorney General’s office and not subject to judicial coercion. People v. Karriker (2007) 149 Cal.App.4th 763, 786 [quoting State of California v. Superior Court (1986) 184 Cal.App.3d 394, 398].)


State law protects no interest of initiative proponents as initiative proponents in the validity of a law they proposed for the same reasons that state law does not authorize initiative proponents to assert the state’s interest in the validity of state law. The exercise of the reserved legislative power by the electors ends with the adoption or rejection of the initiative measure, and any rights of initiative proponents necessarily end there, or earlier, with submission of a ballot argument. (See, ante, at pp. 11-12, 15.) Any continuing interest that proponents may have in defending an initiative enactment is recognized, at the discretion of the court considering an enforcement challenge, by granting permissive leave to intervene or to address the court as amicus curiae, but it is not protected as a matter of right. (See, ante, at pp. 21-25.) To the extent that the people, state officials, or the state itself have an interest in the validity of an adopted initiative, the authority to represent that interest lies with the public officials responsible for enforcing the law, and ultimately with the Governor and Attorney General. 13 (See, ante, at pp. 16-21.)

On pages 18-19, Harris also cites several cases in which the California Attorney General declined to appeal cases, or in others, did not defend statutes (citing AG Thomas Lynch’s decision to not defend Proposition 14 and also file an amicus brief arguing it was unconstitutional under the Equal Protection Clause. The whole thing, an extremely well-written brief, is worth reading. For even the layperson, there are simple and clear arguments citing numerous examples in case law.

The second is from a coalition of progressive faith groups, including a Metropolitan Community Church alliance, Progressive Jewish Alliance, Pacific Association of Reform Rabbis, Unitarian Universalist Association, and several other denominations. I am running out the door so I can’t read thru this one, but wanted to get the brief up. Both briefs can be found in their entirety below.

View this document on Scribd
View this document on Scribd

May 2, 2011 at 5:39 pm 39 comments

Prop 8 sponsors file motion to vacate Judge Walker’s ruling following disclosure of his sexual orientation

By Adam Bink

They really are grasping at straws now:

The sponsors of California’s same-sex marriage ban said Monday that the recent disclosure by the federal judge who struck down Proposition 8 that he is in a long-term relationship with another man has given them new grounds to have his historic ruling overturned.

Lawyers for the ban’s backers filed a motion in San Francisco’s U.S. District Court, arguing that Chief U.S. District Judge Vaughn Walker should have removed himself from the case or at least disclosed his relationship status because his “impartiality might reasonably be questioned.”

“Only if Chief Judge Walker had unequivocally disavowed any interest in marrying his partner could the parties and the public be confident that he did not have a direct personal interest in the outcome of the case,” attorneys for the coalition of religious and conservative groups that put Proposition 8 on the November 2008 ballot wrote.

They are now asking the judge who inherited the case when Walker retired at the end of February to vacate Walker’s August 2010 decision. The 9th U.S. Circuit Court of Appeals already is reviewing the legal merits of Walker’s ruling at the request of Proposition 8’s proponents.

Lawyers for the two same-sex couples who successfully sued for the right to marry in Walker’s court were reviewing the motion and did not have immediate comment.


Lawyers for Protect Marriage, the coalition of religious and conservative groups that sponsored Proposition 8, however, have not previously raised his sexual orientation as a legal issue.

Protect Marriage general counsel Andy Pugno said that changed when the judge this month told a group of courthouse reporters about his 10-year relationship. The issue is not that Walker is gay, but that his relationship status made him too similar to the same-sex couples who sued for the right to marry, Pugno said.

“We deeply regret the necessity of this motion. But if the courts are to require others to follow the law, the courts themselves must do so as well,” Pugno added.

Walker said at the time that he did not consider his sexual orientation to be any more a reason for recusal than another judge’s race or gender normally would be.

I wonder if Pugno and Co. would say that being a woman would imperil a female judge’s impartiality in a case on abortion. Or that conservative Supreme Court Justice Thomas should recuse himself on civil rights cases.

In all seriousness, the vision that the proponents of Prop 8 have for the country and our legal system is a dystopia.

Update: The motion can be found here (h/t Kathleen).

Update 2: Reading through, the hearing on this is set for July 11th at 9 AM in San Francisco. You can bet I’ll be there providing coverage.

Update 3: Checking in with some top legal minds who are colleagues and friends, there seems to be universal consensus that this was a mistake will piss off the 9th Circuit and probably judges everywhere. The reason why is simple: judges don’t like having their impartiality, or the impartiality of their colleagues, questioned. It’s a very slippery slope: married men who have marital troubles making ruling on divorce proceedings, women ruling on domestic abuse or abortion cases, African-Americans ruling on discrimination. Really, the slippery slope includes pretty much everyone. If there are accusations of bias, let’s see hard evidence. Otherwise, Andy Pugno dug an even deeper hole.

April 25, 2011 at 4:46 pm 257 comments

Prop 8 proponents file reply brief on motion to release video

h/t to Kathleen for the Scribd link

By Adam Bink

Today, the proponents of Prop 8 filed a response to the Olson/Boies/Boutrous motion to unseal video recordings of the trial (as well as other briefs such as that filed by City/County of San Francisco).

Proponents’ arguments center on:

1) Whether or not the Supreme Court’s order extends merely to live streaming in federal courthouses, or all video dissemination beyond. Plaintiffs and, it appears, The Media Coalition argue that the order extended only to concurrent live streaming, while opponents argue it extends to all broadcasts in any form during and after the district court trial.

2) Countering the First Amendment argument (right to recordings) advanced by plaintiffs by noting that the Supreme Court has already dismissed this argument in the original ruling, and that the plaintiffs now appear to be saying that the Supreme Court is violating the First Amendment.

3) Arguing that witness intimidation could still happen as a result of the release of the video, and that certain people only agreed to testify as a result of Judge Walker’s reassurance that video recordings would remain private.

4) Arguing, oddly, that plaintiffs have no use for the recordings, and citing the City/County of San Francisco brief to make this point:

Appellees ask in the alternative that they be allowed to retain theircopies of the trial recordings. Opp. 10-11. But now that the trial is over and theappeal has been briefed and argued to this Court, there is no reason to anticipatethat Appellees will need access to the trial recordings again. Indeed, San Franciscoconfesses that “[n]o party currently seeks to use the video footage.” S.F. Opp. 1.

5) Their conclusion:

For the foregoing reasons and the reasons stated in our opening brief, the Court should order that former judge Walker cease further disclosures of the trialrecordings in this case, or any portion thereof, and that all copies of the trialrecordings in the possession, custody, or control of any party to this case or former judge Walker be returned promptly to the Court and held by the court clerk underseal. The Court should also deny Appellees’ motion to unseal the trial recordings.

The full brief can be found here:

View this document on Scribd

April 21, 2011 at 12:58 pm 54 comments

Olson and Boies file motion to release Prop 8 tapes

By Adam Bink

As noted in the comments yesterday, in response to what was filed by the Prop 8 proponents, Olson and Boies filed a motion with the 9th Circuit to release the videotapes:

SAN FRANCISCO — Lawyers for two same-sex couples who sued to overturn California’s gay marriage ban want a federal appeals court to make videotapes of the case’s lower court trial public.

The lawyers filed a motion Friday arguing that the recordings should be treated like other public records.

They’re asking the 9th U.S. Circuit Court of Appeals to lift a seal that has been in place since the 2009 trial.

The move comes in response to efforts by the ban’s sponsors to persuade the 9th Circuit to order the trial’s now-retired judge to return his personal copy of the proceedings.

Their legal team says former U.S. District Judge Vaughn Walker acted improperly while recently giving talks on the history of cameras in courtrooms when he played a clip of one of their witnesses being cross-examined.

The tapes should be part of the public record. As I wrote earlier, the proponents don’t want America to see the faces of discrimination. Shame on them.

April 16, 2011 at 7:37 am 79 comments

Two new Prop 8 developments, and Courage Campaign’s amicus curiae letter to the California Supreme Court

By Adam Bink

This afternoon, as noted in the comments on the previous thread, two moves in the Perry case.

The first is that Attorney General Kamala Harris on behalf of the state of California filed a motion with the 9th Circuit encouraging the Court, as the AFER team did, to lift the stay:

“For 846 days, Proposition 8 has denied equality under the law to gay and lesbian couples,” Attorney General Harris said. “Each and every one of those days, same-sex couples have been denied their right to convene loved ones and friends to celebrate marriages sanctioned and protected by California law. Each one of those days, loved ones have been lost, moments have been missed, and justice has been denied.”

A copy of her filing can be found here. There is no word from the 9th Circuit yet.

The second is that the California Supreme Court denied the motion to shorten time as submitted by the Olson/Boies/AFER legal time:

“The application of respondents Kristin M. Perry, Sandra B. Stier, Paul T. Katami, and Jeffrey J. Zarrillo to shorten the briefing schedule and application to set oral argument for May 23, 2011 is denied.”

Disappointing and frankly outrageous, to say the least. The Court will drag its feet on this for at least 6 months while couples wait and some, especially those who are older and becoming ill (not to mention their families) will literally suffer waiting for the Court to take its time.

The more I think about it, the more I realize that the Court really doesn’t see us out here. They have their schedules and their timing. It makes me feel like other eras in our nation’s history- civil rights and AIDS and earning the right of women to vote- when we have to roll up our sleeves and PUSH to get them to notice people suffering. In this case, it’s the same-sex couples and their families- straight and LGBT- out here, literally dying while waiting for the Court to take 6 freaking months just to hear oral arguments.

That is the reason Courage Campaign will be filing an amicus curiae letter with the California Supreme Court this week (a decision we made before today’s news). The letter is intended not just to encourage the Court to speed up, but to start telling the stories of couples who suffer while waiting. A copy can be found here.

Yes, the Court denied the motion. That is ever more reason to sign. Why? Because if the Court insists on its schedule and summer recess and 6-9 month period, then it’s ever more reason to demonstrate how many people are opposed to it, for the sake of couples who are forced to wait.

Please sign our amicus curiae letter to the California Supreme Court to make them see us, and these stories, out here. Help us show how many people know that people are suffering while the Court takes its summer recess. Below is an e-mail blast we sent this morning to our members.

Courage Campaign
Dear Adam, 

This week, we’re filing an amicus curiae letter to the Supreme Court of the State of California asking them to speed it up. We’re taking this step because couples are literally getting sick and dying while the Court is dragging its feet, and we’ve had it.

When the Court announced that it would look into the question sent to them by the Ninth Circuit regarding whether Prop 8 proponents had standing, they announced a schedule that would have the oral argument in “late September 2011.”  That isn’t good enough.

Help us show the California Supreme Court what happens when they drag their feet. Can you co-sign our amicus curiae letter to the California Supreme Court?

In the letter, we describe some of the heartbreaking stories of over 400 Courage Campaign members who wrote in to tell us how they are impacted by these delays.  Stories like those of Derence Kernek, who wants to marry his partner of over forty years before Alzheimer’s robs his partner, Ed, of the ability to even recognize Derence.

Four months really could mean the difference between getting a chance to marry and a lifetime of regrets. Throughout the trial process, the federal courts have moved along with breakneck speed, but now the California Supreme Court is slamming on the brakes.  For so many Californians, this could have devastating consequences.

Tell the California Supreme Court: Marriage can’t wait! Please co-sign to our letter to the California Supreme Court and forward it on to five of your friends.

We need the Court to see how painful any additional delay could be for so many Californians.

Thank you for your continued commitment to equality.


Rick Jacobs

Founder and Chair, Courage Campaign

March 1, 2011 at 2:11 pm 91 comments

Breaking: Olson and Boies file requests for the California Supreme Court to expedite Prop 8 case, and 9th Circuit to lift stay

By Adam Bink

This morning, Ted Olson and David Boies on behalf of the American Foundation for Equal Rights announced they are filing a request with the California Supreme Court to expedite the Perry v. Schwarzenegger (Prop 8) case and hear oral arguments by the end of May, before summer recess. They are also filing a “Motion to Vacate Stay Pending Appeal” with the 9th Circuit to lift the stay while the California Supreme Court takes its time. As you may recall, one week ago the California Supreme Court announced it would consider the question from the 9th Circuit regarding proponents’ standing, and would hear oral arguments in September.

The motion to the California Supreme Court can be found here, and to the 9th Circuit can be found here.

As I posted here at the time, a six-month delay (with, I’m told, likely another few months until an actual decision) is an unacceptable delay.

In response to the news, Courage Campaign asked our members and you to submit your story or that of someone you know who is forced into hardship by waiting for the court to take its time. We collected a total of over 430 stories, are hosting a call for media later today to fulfill the purpose Shane described in the e-mail: get these stories out to the media and the courts.

Stories like Riverside’s Derence Kernek and his partner Ed, who have known each other for 40 years but Ed was diagnosed with Alzheimer’s Disease this past year. They want to wed before Ed loses the ability to remember the occasion.

Stories like San Francisco’s Shane Mayer and John Quintana– engaged late last year, but Shane’s father was recently diagnosed with cancer and wants to be at his son’s wedding.

Stories like Riverside’s Sylvia, who is 72 and her partner and she were planning to marry until Prop 8 came along. They had been waiting as domestic partners for many years. Sylvia’s partner passed away last year while the case was winding its way through the courts.

Stories like Santa Rosa’s Erica Mikesh and her partner, Melissa, who thought about marrying prior to the passage of Prop 8, but decided they should decide on their own time when it’s right to marry, and never believed it would pass. Now they are being punished for their patience and for waiting.

These are the stories of what is happening out there while the California Supreme Court takes its time. Courage Campaign encourages the courts to grant the Olson/Boies requests to hold oral arguments by the end of May and lift the stay, and we will start to show the court, media, and public the human faces of what happens while they take over 6 months to move on the case.

February 23, 2011 at 10:22 am 107 comments

BREAKING: Yes on 8 attorneys move to disqualify Judge Reinhardt from 9th Circuit’s three-judge panel

By Eden James

A motion has been filed by (Yes on 8) to disqualify Judge Stephen Roy Reinhardt from the three-judge panel that will hear the appeal on Monday.

The reason? Judge Reinhardt’s wife is Ramona Ripston, Executive Director of the ACLU of Southern California. According to the Yes on 8 attorneys, the ACLU of Southern California has been actively involved in the litigation opposing Prop 8.

The AP just filed the following:

In papers filed with the 9th U.S. Circuit Court of Appeals in San Francisco, lawyers for Proposition 8’s supporters said Judge Stephen Reinhardt’s “impartiality might reasonably be questioned” because his wife heads the Southern California chapter of the American Civil Liberties Union.

“So long as a judge’s impartiality might reasonably be questioned, recusal is required,” they wrote in a motion asking Reinhardt to disqualify himself. “The facts of this case would plainly lead a reasonable person to conclude that Judge Reinhardt’s impartiality might reasonably be questioned.”

Here is the statement verbatim from their motion (sorry for the formatting; I’m pasting it from the doc Scribd below):

On November 28, 2010, this Court identified Circuit Judges Reinhardt, Hawkins, and N.R. Smith as the members of the panel assigned to this case. Judge Reinhardt is married to Ramona Ripston, the long-time Executive Director of the ACLU of Southern California (hereinafter, “ACLU/SC”).1 See Ramona Ripston, Executive Director, ACLU/SC, at

As Executive Director, Ms. Ripston is “responsible for all phases of the organization’s programs, including litigation, lobbying and education.” Id. Under Ms. Ripston’s leadership, “ACLU/SC has taken a lead role” in what it calls “the fight to end marriage discrimination” in California. ACLU/SC 2007-2008 Annual Report 24, at

ACLU/SC represented several same-sex couples and organizations in In re Marriage Cases, in which the California Supreme Court held that California’s pre-Proposition 8 statutory definition of marriage as the union of a man and a woman violated the State Constitution. See In re Marriage Cases, 43 Cal. 4th 757, 768-69, 786 (2008).

Following that decision, ACLU/SC put Proposition 8 “at the forefront of [its] civil-rights agenda, sparing no effort to defeat Prop. 8 [and] challenge its passage.” ACLU/SC 2008-2009 Annual Report 8, at After Proposition 8’s passage ACLU/SC represented petitioners before the California Supreme Court in Strauss v. Horton, the unsuccessful state-law challenge to the validity of Proposition 8. 46 Cal. 4th 364, 374 (2009).

The same day the California Supreme Court issued its decision in Strauss, Ms. Ripston issued a public statement on behalf of ACLU/SC, vowing that “[a] renewed effort to overturn Proposition 8 begins today.” Statement by ACLU/SC Executive Director Ramona Ripston on California Supreme Court Decision (May 26, 2009), at Ms. Ripston later signed a letter on behalf of ACLU/SC explaining that as part of that effort, “LGBT people and our closest allies are first going to have to talk to close friends and family about … why this fight [for same-sex marriage] matters. Even if those people are already on our side, we need to talk to them to convince them to join the fight.” Prop 8: Focusing on the Wrong Question (July 14, 2009), at

ACLU/SC has taken an active role in this litigation. It appears that Plaintiffs’ attorneys engaged in “confidential discussions” with Ms. Ripston and ACLU/SC’s legal director before filing this lawsuit. See Chuleenan Svetvilas, Challenging Prop 8: The Hidden Story, CALIFORNIA LAWYER, Jan. 2010, at And ACLU/SC has been actively involved in this very case. Indeed, it represented, as counsel in the court below, parties seeking to intervene as plaintiffs, see Our Family Coalition et al. Motion to Intervene as Party Plaintiffs, Doc. No. 79 at 2 (July 8, 2009), and amici urging the court to decide the case in favor of Plaintiffs and to rule that Proposition 8 is unconstitutional. See Brief of Amici Curiae American Civil Liberties Union et al., Doc. No. 62 at 2 (June 25, 2009); Brief of Amici Curiae American Civil Liberties Union et al., Doc. No. 552 at 2 (Feb. 3, 2010).3

Indeed, in the accompanying motions for leave to file these amicus briefs, the statement of amici interest specifically lists ACLU/SC as an affiliate of an amicus curiae. See Motion for Leave to File Brief of Amici Curiae American Civil Liberties Union et al., Doc. No. 61 at 3 (June 25, 2009) (identifying “the ACLU Foundation of Southern California” as one of “the three California affiliates of the ACLU”); Motion for Leave to File Brief of Amici Curiae American Civil Liberties
Union et al., Doc. No. 551 at 3 (Feb. 3, 2010) (same).

When the district court issued the ruling under review in this Court, the ACLU issued a public statement praising the decision and emphasizing that the ACLU, along with two other groups, had “filed two friend-of-the-court briefs in the case supporting the argument that Proposition 8 is unconstitutional.” ACLU Hails Historic Decision and Urges Efforts in Other States to Ensure Success on Appeal (August 4, 2010), at The press release quoted Ms. Ripston as “rejoic[ing]” in the decision striking down Proposition 8, asserting that it “affirms that in America we don’t treat people differently based on their sexual orientation.” Id. Ms. Ripston’s statement was reported in the national media. See, e.g., Daniel B. Wood, Proposition 8: Federal Judge Overturns California Gay Marriage Ban, CHRISTIAN SCIENCE MONITOR, Aug. 4, 2010, at

At the same time, Ms. Ripston stated that the district court’s ruling was not the end of the matter, emphasizing that “it’s a long road ahead until final victory.” ACLU Hails Historic Decision and Urges Efforts in Other States to Ensure Success on Appeal (August 4, 2010), at Specifically, as one of her colleagues put it in the same public statement, “[i]n order to give this case the best possible chance of success as it moves through the appeals courts, we need to show that America is ready for same-sex couples to marry by continuing to seek marriage and other relationship protections in states across the country.” Id. (emphasis added).5

Much, much more on the motion that Kathleen has Scribd, per the usual:

View this document on Scribd

This move by the Yes on 8 attorneys was foreshadowed yesterday when the right-wing National Review Online called for Reinhardt’s disqualification. Ed Whelan wrote:

The Code of Conduct for United States Judges requires that a judge “disqualify himself … in a proceeding in which the judge’s impartiality might reasonably be questioned.” How is it possible that Reinhardt’s impartiality in this case couldn’t reasonably be questioned when his wife took part in confidential discussions with plaintiffs’ lawyers over whether they should pursue the case? And, no, it’s no answer to say that Reinhardt is already so biased in favor of plaintiffs that his wife’s role couldn’t make a difference.

In fairness to Reinhardt, he may not yet be aware of Ripston’s consulting role. But once he becomes aware, how can he not disqualify himself? And isn’t Boutrous, as an officer of the court, obligated to disclose his consultation with Ripston and to move for Reinhardt’s disqualification?

More to come, as news develops.

December 2, 2010 at 12:27 am 81 comments

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