In a general opinion, Court favors giving initiative proponents authority to defend measures

By Brian Leubitz

As I mentioned yesterday, today the California Supreme Court has ruled on the certified question from the 9th Circuit regarding standing.  I’ll get into more details in a bit, but here is the general ruling from the court:

In response to the question submitted by the Ninth Circuit, we conclude, for the reasons discussed above, that when the public officials who ordinarily defend a challenged state law or appeal a judgment invalidating the law decline to do so, under article II, section 8 of the California Constitution and the relevant provisions of the Elections Code, the official proponents of a voter-approved initiative measure are authorized to assert the state’s interest in the initiative’s validity, enabling the proponents to defend the constitutionality of the initiative and to appeal a judgment invalidating the initiative.

Here is the full opinion (PDF), more in a bit.

What does this mean? Well, it ends the easy way out of the case.  Standing is a threshold question, that must be resolved before the judge or judges in the case get to the merits of the case. Standing is appealable, but a decision by a lower court in a case as controversial as this to duck the question would hardly give the US Supreme Court any motivation to enter the fray themselves.  In this situation, the question of standing is really a state law question anyway.  The California Supreme Court should really be the body deciding who represents the state.  

In this situation, both the Governor and the Attorney General declined to defend Prop 8, as they both felt it was unconstitutional. The Proponents defended the measure in the trial court as intervenors, but the decision to appeal isn’t one that can typically be done by intervenors.  So, if they were allowed to appeal, they would have to be granted some special standing.  This decision is not specific to Prop 8 at all, rather it just says that when California’s elected officials refuse to defend a ballot measure in court, the Proponents of the measure are “authorized to assert the state’s interest in the initiative’s validity.”

In other words, the 9th Circuit is now on the clock for their decision on the merits.  This is not necessarily a bad thing.  AFER has built up a strong legal team and they constructed a good record at the trial court. They have the money to proceed all the way to the Supreme Court on Perry v Brown, lord knows with all the fundraising AFER has been doing, they have the money. But hey, if you are Chad Griffin, the man behind AFER, why not ask for some more money, because, well, AFER is really, really good at that. In his reaction to the case that seems to have been pre-written, Griffin seems to be relishing the fight (and asking for more money.)

Our federal lawsuit for marriage equality is back on the fast track!

Now that the California Supreme Court has finally issued its advisory opinion that the Prop. 8 Proponents have standing to appeal, we can expect a speedy ruling from the Ninth Circuit Court of Appeals.  We are on the cusp of achieving what we have been fighting for. For countless couples like our plaintiffs, Kris Perry & Sandy Steir and Paul Katami & Jeff Zarrillo, marriage equality cannot come quickly enough.

Help us win the freedom to marry for couples like Kris & Sandy and Paul & Jeff. Make a donation today so we can continue our fight for full federal marriage equality. (donation link)

Look, I know that it is in AFER’s best interest to move forward for this case, but I think celebrating this decision looks kind of silly.  There was much discussion of the possibility of marriages beginning again this year, but that doesn’t seem all that likely at this point.  The 9th Circuit now will rule on the merits of the case, and we’ll wait longer for this case to proceed.

So, no quick way out.  Now, given that this case has taken so long, one of the AFER arguments to bring the litigation over the objection of many LGBT organizations, that we cannot tolerate a measure like this for one day longer now looks rather stark.  The question I have now is given that we’re still looking at many more layers, could we have gotten it done at the ballot box? I suppose we won’t know, as it won’t be on the 2012 vote. I’m pretty sure we would have won, but it would have cost more.  And the impact of a Sup. Ct. win on this case would have an impact for the entire nation.

But, we’re still rolling the dice here, no matter what we do.  So, let it ride!

California Supreme Court will rule on question from 9th Circuit regarding standing

by Brian Leubitz

A quick public service announcement here. A ruling from the California Supreme Court is due tomorrow on the question of standing for the Prop 8 proponents:

The California Supreme Court will decide Thursday whether to allow supporters of Proposition 8 to defend California’s ban on same-sex marriage.

Based on the tenor of the justices’ questions during arguments in September, it appeared likely the Supreme Court would permit Proposition 8’s legal team to defend the voter-approved law, which would push the ongoing legal battle forward in a federal appeals court.

The Supreme Court is addressing the narrow question of whether Proposition 8 sponsors have a right to appeal a federal judge’s ruling declaring the law unconstitutional when the governor and attorney general refuse to do so. The 9th U.S. Circuit Court of Appeals asked the state’s high court to rule on that issue before addressing the central questions in the legal challenge to the same-sex marriage ban. (SJ Merc)

As a reminder, this question has nothing whatsoever to do with the merits of the case.  And while I’m not that big of a fan of reading the tea leaves, the fact remains that the Court did seem sympathetic to the Proponent’s standing claim.  And while a denial of standing would seemingly end the case and allow Californians to marry, as Chad Griffin of AFER points out, we really can win either way.

Here’s the great news: No matter what happens, we win. Either the Federal District Court ruling that declared Prop. 8 unconstitutional stands, or our case proceeds on its merits with the strong likelihood of reaching the U.S. Supreme Court. Because there is no reason to justify discrimination against gay and lesbian Americans, we are confident that the higher courts will affirm our District Court victory.

So, I guess we’ll just wait a few more hours, or a few more months, or a few more years, but time is on our side.  The clock is ticking towards full marriage equality.

You can view both online

by Brian Leubitz

UPDATE: The good folks at Prop 8 Trial Tracker have liveblogged the Prop 8 hearing.  Check it out, and then begin waiting for the ruling…

Well, not that they really have anything to do with each other, with the exception of the fact that Lynn Woolsey has supported marriage equality from way back in the day.  Woolsey voted against DOMA in 1996, as did many California Democrats. In fact of the 67 House no votes on DOMA, my quick counting showed at least 16 Californians, or nearly double the percentage of Californians in the House.

Anyway, as you probably know, Woolsey is retiring after this term, and she is sitting down with Michael Krasny of KQED’s forum to talk about her career right about now.  You can listen in the Bay Area on 88.5FM or stream it live online.  The program starts at 9AM, but you can catch the podcast later this afternoon as well.

No, the Prop 8 case is also up today.  The Supreme Court will consider whether the proponents of Prop 8 have standing to appeal Judge Vaughn Walker’s decision.  

The California Supreme Court will hear arguments Tuesday on whether conservatives who sponsored Proposition 8 are entitled to appeal last year’s federal ruling that overturned the 2008 same-sex marriage ban.

The court’s ruling, due 90 days after argument, will determine whether all initiative sponsors in California are legally entitled to defend their measures in state court when the governor and the attorney general refuse. (LA Times)

To be sure, it is far from clear which way this decision will go.  Prior case law, from my reading, seems to lean in the favor of no, they can’t appeal and do not have standing.  However, the issue is a little gray, and that’s why the question was certified to the CA Supreme Court.  Unfortunately, the Court did not choose to expedite the process, but we should have a decision before December or so.

However, you can also watch the argument live on CalChannel, either on your cable provider or online at calchannel.com.  The hearing starts at 10AM.

In a ruling that will surprise exactly nobody, the Prop 8 legal team’s hail mary pass fell incomplete nowhere near the closest receiver:

A federal judge on Tuesday refused to invalidate last year’s ruling against Proposition 8, deciding the gay jurist who overturned the same-sex marriage ban had no obligation to step aside because of a possible conflict of interest.

The decision by Chief Judge James Ware of the U.S. District Court in San Francisco left the ruling by retired Judge Vaughn R. Walker in place. Walker’s decision remains on hold pending a separate appeal to the U.S. 9th Circuit Court of Appeals. (LA Times)

I suppose this means that we’ll not need to probe the minds of every individual judge on every civil rights case to determine who is the most “unbiased.”  I’m thinking they could have hired Spock to mind meld with every judge upon confirmation.

UPDATE: Check the full decision here: Denial of Motion to Vacate 06-14-2011, but suffice it to say that Judge Ware didn’t find too much of the proponents argument convincing.

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.

Well, the rumors that Judge Vaughn Walker were out there for a long time, and he never really denied it.  The Chronicle, among others, published that information during the trial, and it was basically an known fact.  However, Judge Walker has now acknowledged that he has been in a long term relationship with a man, and that apparently is entirely different.   He might, you know, be interested in marrying some day, and so the thought processes of the Prop 8 attorneys goes, he should have recused himself from the case.  They’ve filed a motion saying just that and asking for a new trial.

Eight months later, Proposition 8’s proponents and their attorneys have taken a new position. They filed a motion Monday seeking to vacate Chief U.S. District Judge Vaughn Walker’s historic ruling, a move they said was prompted by the now-retired jurist’s recent disclosure that he is in a long-term relationship with another man.

Lawyers for the ban’s backers argue that the judge’s relationship status, not his sexual orientation, gave him too much in common with the couples who successfully sued to overturn the ban in his court. The judge should have recused himself or at least revealed the relationship to avoid a real or perceived conflict of interest, the lawyers say.(Sac Bee (AP))

This is really rather incredible.  First, they are essentially arguing that only those who are unaffected by civil rights cases can hear those cases.  So…diversity, yeah, that’s a waste of time.  Our bench should just be white straight men (WSM) so that they can hear all the cases. Never mind that we all bring a perspective to our daily life, only WSMs are unbiased enough to hear civil rights cases.  And really, we should be looking into some of those WSMs as well.  Gender discrimination case? Well, that WSM has a daughter who might have been excluded, better eliminate him too.  You know, maybe we should just go to a court judged entirely by people locked up in a room, so that they don’t have any other interests.  We can raise children from the age of 5 in a state of unattached freedom, so that they never care about anything, and then they can grow up to be our judges.  How does that sound?

Of course, it is pretty hard to imagine that this will actually go anywhere:

Indiana University Law School professor Charles Geyh, an expert on judicial ethics, said that without more evidence that Walker stood to personally benefit if same-sex marriages were legal in California, he found it difficult to imagine that the particulars of the judge’s same-sex relationship provided gay marriage opponents with an avenue for reversing his ruling.

“It really implies it would be fine if he were essentially surfing at bars and had a new partner every night because he wouldn’t want to be married,” he said. “I don’t see that as advancing their cause.”(SacBee (AP))

In the end, Prop 8 isn’t about stable relationships, or encouraging the reasonable public policy of rewarding that stability.  No, it is a punitive measure against those that they don’t like.  It is simply homophobia, and it doesn’t belong in California, and it doesn’t belong in our nation.

UPDATE: I’m a big fan of the dean of UC-Irvine’s nascent law school, Erwin Chemerinsky.  He really knows how to get to the nub of an argument, and explain it to you in a very real way.  Here is an example of that:

“I know of no instance in which a judge has been disqualified because of his or her race, religion, sexual orientation or gender,” Chemerinsky told TIME. “This would mean that no African-American judge could have heard a challenge to segregation laws or no woman judge a challenge to a law discriminating based on sex. No court ever has suggested any such thing, nor will it. This is simply a personal attack on Judge Walker in an effort to embarrass him. As was said in another context long ago, Have they no shame?” (Time Magazine)

A while back, the Prop 8 plaintiffs asked the 9th Circuit to lift their stay that continued enforcement of that odious legislation.  Given the situation at the time, with the changed facts of the lengthy California Supreme Court delay and the President’s determination that DOMA was unconstitutional, you’d think that maybe now would be the time to act on the District Court’s decision and let the marriages continue.

However, today they announced that they would not be doing that.

Having considered all of the factors set forth in Nken v. Holder, 129 S. Ct. 1749, 1756 (2009), and all of the facts and circumstances surrounding Plaintiffs’ motion to vacate the stay pending appeal, as well as the standard for vacatur set forth in Southeast Alaska Conservation Council v. U.S. Army Corps of Engineers, 472 F.3d 1097, 1101 (9th Cir. 2006), we deny Plaintiffs’ motion at this time. (h/t Poliglot)

I’m not sure I have any words to describe this, save one: heartless.  Perhaps the Court should tell that directly to Ed and Derrence.

Last week, the plaintiffs in the Prop 8 litigation asked the 9th Circuit to lift the stay against enforcement of Judge Walker’s decision.  With the President’s decision to stop defending DOMA’s constitutionality, the legal team fighting Prop 8 felt that situations had changed enough to reconsider the stay.

The bigger issue seems to be in the way that the Supreme Court has defined the standard for these types of stays.  Traditionally, the party seeking the stay has to show not only a likelihood of prevailing on the merits but also that nobody will face undue prejudice due to the stay.  Of course, as we know, same-sex couples are facing unnecessary and painful delays.

But the issue that I found most intriguing, and that the City and County of San Francisco focused on in their brief (PDF) was the question of jurisdiction.  The 9th Circuit has already questioned whether the proponents of Prop 8 have standing to appeal, and the threshhold for a stay is fairly high. So, should there really be a stay?

As the Supreme Court has held, when jurisdiction is unsettled a stay of judgment cannot be maintained.  Here, this Court’s certification order makes plain that Proponents have not, to date, met their burden. The stay should be lifted unless  and until Proponents establish that this Court has the power to hear their appeal. (SF Brief)

Well, today, the LA Times joined the act, calling for marriages to resume in a speedy manner.

Although the federal courts expedited their handling of the lawsuit challenging Proposition 8, the issues are far from resolved. And now that the California Supreme Court has been asked to weigh in, the case could be delayed for another year or more.

Enough already. Gay and lesbian couples should be allowed to wed while the case works its way through the system. (LAT)

Amen.

Yeah, you heard that right. September 2011.  So, we’ll be waiting for a while. Here’s what the Court said:

 The request, pursuant to California Rules of Court, rule 8.548, that this court decide a question of California law presented in a matter pending in the United States Court of Appeals for the Ninth Circuit, is granted. For the purposes of briefing and oral argument, defendant-intervenors Dennis Hollingsworth, Gail J. Knight, Martin F. Gutierrez, Mark A. Jansson, and ProtectMarriage.com (collectively “Proponents”) are deemed the petitioners in this court. (Cal. Rules of Court, rule 8.520(a)(6).) In order to facilitate expedited consideration and resolution of the issues presented, and to accommodate oral argument in this matter as early as September, 2011, the normal briefing schedule is shortened, pursuant to California Rules of Court, rule 8.68, as follows: The opening brief on the merits is to be served and filed on or before Monday, March 14, 2011. The answer brief on the merits is to be served and filed on or before Monday, April 4. A reply brief may be served and filed on or before Monday, April 18. Any person or entity wishing to file an amicus curiae brief must file an application for permission to file such brief, accompanied by the proposed brief, on or before Monday, May 2, 2011. Any party may serve and file an omnibus reply to any or all amicus curiae briefs on or before Monday, May 9, 2011. The court does not contemplate any extension of the above deadlines. Votes: Cantil-Sakauye, C.J., Kennard, Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ.

We will likely have a decision by the end of the year on standing.  If the Supreme Court rules that the proponents have standing, then we’ll be talking about another few months.  If they say there isn’t standing, then in all likelihood Judge Walker’s decision will stand for California.

I’ll save you from another discussion of the general standing question, as there are many such blog posts around the internet, some of which I’ve written myself. Just google “Prop 8 standing” for more information, and you’ll be flooded with information.

The Courage Campaign launched a campaign asking same-sex couples who are waiting to tell their stories.  You can find more info about that here.

One final comment.  The continued dragging on of this case means that real families are still denied equal rights.  It is a tragedy and a travesty. I’m a political hack, but at some point, we need to win this one at the ballot.

It’s been quiet for a while in the Prop 8 federal litigation, but today might bring some changes on that front. According to the LA Times (h/t Prop 8 Trial Tracker), the California Supreme Court will decide whether they will respond to the question that the 9th Circuit certified to them:

The California Supreme Court will decide Wednesday whether to plunge back into the legal battle over same-sex marriage.

The state high court, meeting in closed session, will review a request by the U.S. 9th Circuit Court of Appeals to determine whether Proposition 8’s sponsors have legal authority to defend the ballot measure. (LAT)

The 9th Circuit asked the California Supreme Court a question of state law, basically whether the proponents of a ballot measure have any special standing to defend the measure they helped to pass.  The question has always been somewhat murky, both at the state and federal levels.  A response on this question could have some pretty far-ranging impacts beyond the Prop 8 litigation.

But for now, we’ll just wait and see.