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Prop. 8 waiting game: Three big issues hang over case
Lisa Keen - Keen News Service | Tue, 08/10/2010 - 9:57am | Login to
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ENLARGE
Judge Vaughn Walker
The waiting game around the Proposition 8 challenge in a federal court
in San Francisco grows curiouser and curiouser.
U.S. District Court Judge Vaughn Walker issued his decision in the
case on Aug. 4, ruling that the voter-approved amendment to the state
constitution that barred same-sex marriages in California is
unconstitutional. He said it violates the federal Constitution’s
guarantees of equal protection and due process. He also issued a
temporary “stay” – or delay of the enforcement of his decision.
Now, people interested in the case are waiting again – this time, for
Judge Walker’s decision on whether to approve a permanent “stay” until
the Ninth Circuit U.S. Court of Appeals can weigh in on the merits of
the case.
That decision – on whether to extend the stay on when to make his
ruling enforceable -- could come any day now. Some thought it might
come as early as last Friday, when briefs were due from attorneys
challenging Proposition 8. Those attorneys – from the Ted Olson-David
Boies legal team and the city of San Francisco -- did not support a
stay.
But the bigger surprise last Friday was that California Gov. Arnold
Schwarzenegger and state Attorney General Jerry Brown also opposed the
stay. Schwarzenegger had twice vetoed bills from the legislature that
sought to allow marriage licenses for same-sex couples. As governor,
he and the attorney general are, technically speaking, the defenders
of the state constitution, including Proposition 8. In court, they
were identified as the defendants.
In the Perry v. Schwarzenegger lawsuit, however, the state declined to
defend Proposition 8. And in the governor’s brief concerning the stay,
his attorneys say there is no burden on the state to implement
Walker’s ruling now and that “implementing the Court’s order now,
without further delay, serves the public interest.” A briefer document
from Attorney General Brown essentially agrees.
If Walker denies the request for the extended stay, then same-sex
couples can begin seeking marriage licenses again in California – at
least until a higher court reverses Walker’s ruling – something that
may or may not happen.
Jon Davidson, legal director for Lambda Legal Defense and Education
Fund, told reporter Karen Ocamb at LGBTPOV.com that Schwarzenegger and
Brown’s filings opposing a stay “have dramatically changed the
likelihood” that Walker will grant the stay.
“This is an unusual situation,” Davidson said, because the state,
which Walker’s ruling orders to stop enforcing Proposition 8, has
asked Walker to deny the stay.
More importantly, Davidson noted, the Olson-Boies team and San
Francisco argue that Yes on 8 may have no right to appeal Walker’s
ruling.
When the California government declined to defend Proposition 8, Yes
on 8, the coalition that campaigned for the amendment, took over that
role. Yes on 8 was identified in court as “defendant-intervenor” and
“proponents.”
Because the government-defendants, California’s government, are
apparently not going to appeal Walker’s decision, Davidson said,
“there will be a legal question of whether, when those who are ordered
to do something don’t appeal, someone not ordered to do anything has
any right to appeal.”
“To understand this,” Davidson told Ocamb, “one has to appreciate a
few things about federal courts.”
“Federal courts can only hear cases where there is what’s called a
‘case or controversy,’ ” Davidson said. So, to have an appeal heard,
the party that requests the appeal must show that it has a “direct
stake in the outcome” of the appeal decision. And, Davidson said, it
must also show that it has been “injured” by the lower court ruling in
a “concrete manner that is particularized to that party and different
from citizens at large who may not like the judge’s ruling.”
In a case involving Arizona’s constitutional amendment declaring
English the “official language” of the state, Davidson said, the U.S.
Supreme Court said it had “grave doubts” about whether proponents of
that ballot initiative could appeal lower court decisions that found
the initiative unconstitutional. The Arizona government did not
appeal. In that case, Arizonans for Official English v. Arizona, the
Supreme Court, in 1997, decided the case on other grounds, “but its
comments strongly indicate that the proponents may have no right to
appeal if the other defendants do not,” Davidson said.
“A definitive ruling on whether the proponents have a right to appeal
if the defendants do not,” Davidson said, “is not likely to be made in
connection with” the ruling about the Proposition 8 stay. But, he
said, “Judge Walker or a higher court may comment on the issue” and
“…if [Yes on 8 has] no right to appeal, they obviously can’t show they
likely would prevail on an appeal.”
So, if the California government -- the defendants -- do not appeal
Walker’s ruling on the merits of the case within 30 days from the day
the judge actually “enters” his judgment in the case (which has not
yet happened), “then the plaintiffs and San Francisco could file a
motion to dismiss the appeal that has already been filed by [Yes on 8]
on the ground that the proponents have no right to appeal.”
Therefore, three issues are now in waiting:
• Whether Walker will issue a more extended stay
• Whether the government will file an appeal on the merits
• Whether the Ninth Circuit will take the appeal filed by Yes on 8
If the Ninth Circuit does take Yes on 8’s appeal, it will first be
heard by a three-judge panel and then, almost certainly, by the Ninth
Circuit sitting en banc. While, in some circuits, sitting en banc
means every judge of the circuit hears the case, in the Ninth’s
unusually large circuit, Davidson said, it means “a panel of 11
randomly assigned” judges.
If the Ninth Circuit refused to hear an appeal from Yes on 8, the
group could appeal to the U.S. Supreme Court. The group, Davidson
said, “could ask the Supreme Court to decide whether they have a right
to appeal. “
“If the Supreme Court declines to hear that, the case is over,”
Davidson said. “If the Supreme Court agrees to consider the question,
it could decide that [Yes on 8 has] no right to appeal and, again, the
case would be over.”
But if the Supreme Court said Yes on 8 does have a right to appeal,
Davidson said, it would “likely” send the case back to the Ninth
Circuit for three judges to rule on the merits of the appeal,
“resulting in a delay of the final determination of the validity of
Prop 8 for some time.”
Davidson said that even if Walker does deny Yes on 8’s request for a
stay, he could extend his temporary stay for a brief period of time (a
week or so) in order to give the proponents time to ask for a stay
from the Ninth Circuit while there’s a temporary stay in place.
“The Ninth Circuit would then apply the same test as Judge Walker did
in deciding whether or not to issue a stay of Judge Walker’s order
pending the appeal,” Davidson said. “If they deny a stay as well, the
proponents could ask Supreme Court Justice Anthony Kennedy (who
reviews such matters arising out of the Ninth Circuit) to issue a stay
pending the appeal. If he also denies a stay, the proponents could
seek a stay from the full Supreme Court.”
Meanwhile, at least a couple of dates are penciled in. The Ninth
Circuit has given Yes on 8 until Nov. 12 to file its appeal brief, and
given the plaintiffs until Dec. 13 to file their response. Davidson
said Yes on 8 would then have until Jan. 12 to file any brief in
response to plaintiffs.
Any oral argument of the appeal, Davidson said, would “not likely”
happen until late 2011.
“It is not unusual for it to take more than a year from the date of
argument until the appeal is decided by the Ninth Circuit,” Davidson
said. “Once the case is decided, the losing party can seek review” en
banc, and “that could add another year or more before the case is even
in a position for a party to seek Supreme Court review.”
“Thus, if the appeal is not dismissed, it is possible that a request
to the Supreme Court to hear the case might not even have been made by
the time of the November 2012 elections,” Davidson said. “If an effort
to repeal Prop 8 is made that year and succeeds, it could ‘moot’ the
case (meaning that there would no longer be any ‘live’ dispute because
Prop 8 would no longer be in effect) and the appeal could be dismissed
for that reason.”
_________________
--Ian
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I have one who's mid-20s that is a LOT less mature - even tho I would get major disagreement on that opinion - than one who's just now passed 20! Case in point, the older one refuses to listen to anything that contradicts their preconceived opinion and the younger one is in the process of buying a house... which we just provided some well-deserved and needed additional down-payment funds to help with. The younger one has made different life choices and is much farther ahead in life because of it. Before anyone thinks the younger one is getting any preferential treatment, we've been very careful to make certain they've all been given the same support, encouragement, access to funds, actual funds, etc. To wit, the older one is now on the 4th expensive vehicle (we're talking BMW, Benz type vehicles that are WAY nicer than anything my wife or I drive)... previous ones have all been wreaked or destroyed somehow... and part of the "issue" now is that funding has been totally stopped... wreak/destroy it, deal with it! We're not paying anymore...
