I suppose I shouldn’t be surprised by anything in the Prop 8 trial anymore, but to be honest, I really thought that the attorneys for the proponents were better than this.  No, I’m not imputing any skills to Andy Pugno other than self-aggrandizement, but despite their backward ideals, some of the attorneys on the pro-8 team weren’t all that bad.  Sure, they were given a pretty bad case and told to make some lemonade out of rotten lemons, but the lemonade was only half as rancid as it could have been.

I was unable to make it to the courthouse like I had hoped to cover the hearings today, but thanks to both Arisha and Rick at P8TT and the good folks on the AFER twitter feed, I was able to keep pretty good tabs on the argument.  In short, the proponents wanted to wipe out the first trial because Judge Walker was in a long-term same-sex relationship and “might want to get married.”  They also discussed the question of who controls the video tape from the trial.  And as I was reading the information coming in minute by minute, on both the video and the motion to vacate, one idea came to mind:

Hail Mary.

Before the hearing today, if you asked most any attorney of note, bringing up the old “he’s gay!” argument was something of a sign of discomfort with the way they put on the original case.  Pugno and friends essentially acknowledged that perhaps they could have done it better.

If you look at it legally, they still have a lot of appellate options remaining.  And much of the case boils down to “questions of law” to which appellate courts review de novo, that is they look at them completely fresh.  Judge Walker’s determinations are essentially given no deference there.  However, Judge Walker also listed a slew of “findings of fact.”  These are not reviewed fresh, but are only overturned if they are “clearly erroneous.”  (I’ll leave the question about whether those are really findings of fact for another day.)

So, if you take that his findings of fact are really that, then sure, you’d really, really want a new trial.  But there are several very important questions of law that much of the case turns upon in Judge Walker’s decision.  Those are reviewed fresh, and Team Prop 8 doesn’t seem to like their hand on that one.

So, they brought this motion to vacate, hoping to get a do-over for that rancid lemonade they made last year.  Who knows what their rationale was, but it all stunk of desperation.

Judge Ware’s questioning cut right to the heart of the issue.  What is a judge really obligated to disclose, and what are they allowed to take upon themselves to determine their own bias (or lack thereof)?  Judge Ware brought up a series of hypotheticals that really put the lie to the Prop 8 team’s argument.  I’ll let you go back to the live-blogging this morning to catch those, but suffice it to say, Mr. Cooper was not in an enviable position.

Surely the Prop 8 attorneys thought this through enough to figure out that this wasn’t going anywhere.  After all, vacating that decision would have had profound impacts on cases going far beyond the issue of LGBT rights.  It was, at best, a long shot.  But perhaps a long shot with rewards that were worth the risk for them.

In theory, perception shouldn’t really make a difference in a legal proceeding.  That is extraneous, and shouldn’t be taken into account by the jurists reviewing the case.  And I have confidence in our judiciary that it won’t be.  But, I’m pretty sure if you were able to ask the participants in the Scopes Monkey Trial if perception matters, you would get a very different response. In cases of historical import, perception matters, and I can’t imagine that today did anything for those who wish to hold back the arc of history as it wends its way toward justice.

Back in January, I wrote up a little ditty about Asm. Nancy Skinner’s AB 153 bill to require sales taxes collection for major retailers who mostly exist online, but have sizable presences in California.  Of course, this is really directed at Amazon.com, the world’s biggest internet retailer.

The good news is that the bill passed the Assembly, after a modification requiring affiliate payments of over $500,000 rather than $10,000.  The change is relatively minor, irrelevant to Amazon, but actually could end up making a difference for some growing e-businesses.

You’ll not be surprised that I’m mostly interested in this for the revenue purposes.  Sure, I pay my use tax (or guess at it anyway), but to be honest, few people do this.  To get that revenue, it really has to be done at the seller’s side.

And that is where this bill comes in, requiring online retailers who use so-called “affiliates” to drive them business.  Basically, these are California folks (um, like me) who drive traffic to Amazon who then get a cut of sales.  New York has already used this legislation, and it is now pending in court.  We are breaking no new ground other than in a quantitative aspect.

But there is still the other argument, which is really more compelling to a wider swath of people that the lack of taxation on internet retailers is just a blow to small businesses in the state who do have to collect their local sales taxes.  Scott Hauge, the president of Small Business California, made this point quite well in an op-ed that originally appeared in the San Jose Merc back in March:

Unfortunately, a tax loophole being exploited in our state hurts small businesses and creates a competitive disadvantage in the marketplace. Out-of-state, online-only vendors don’t collect state sales taxes like brick-and-mortar stores are required to do. This loophole has given out-of-state, online-only retailers an unfair competitive advantage over retailers in our own community.  As a result, the brick-and-mortar small businesses that employ our family members, participate in our communities and are critical to our economy’s recovery are operating at a loss, and jobs are at risk.

At its core, this is an issue of basic fairness. California businesses are being priced out of the marketplace because they are following the law and collecting the sales tax as required by law. All the while, online-only retail giants like Amazon.com are refusing to collect the sales tax by exploiting a loophole and passing on the liability to remit the sales tax to their consumers, many of whom have no idea the compliance burden falls on them to track and issue payment.

The result has meant that online-only retailers abusing an outdated system to get around collecting the sales tax can offer an artificially lower price. That’s not fair, not right and not the way the marketplace should work. It is no way to do business in a 21st century economy.

Fortunately, our state has an opportunity to close the loophole, modernize the system and ensure small businesses are able to compete. Lawmakers can support Assembly Bill 153 by Assemblywoman Nancy Skinner that will require out-of-state, online-only retailers to comply with the same requirements to collect sales taxes that California businesses must follow. (SBCal)

In the end, I think what should ultimately happen with the internet is that there should be some sort of federal sales tax which then gets divided down to the states.  Or…you know, totally overhaul the taxation system that would allow us to rely more on progressive taxation and less on the more regressive sales taxes.  But that last hope seems rather distant at this point.

In the short-term, the Senate should quickly pass AB 153 and get it to the Governor’s desk.  Amazon has threatened to cut off their California affiliates, but as they showed in New York (but not Colorado) they are a bit more cautious on the big states.  Lets get this done, both for the revenue as well as the simple fairness of requiring the same taxation for all businesses.