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Thursday, August 12, 2010

Prop 8 Stay Still In Effect Until August 18

The federal judge who ruled that California Prop. 8 violated the U.S. Constitution, and who temporarily stayed his ruling pending further arguments, has now denied the motion to stay entry of judgment of his decision.

Judge Vaugh R. Walker just entered an Order which would allow California officials to begin issuing marriage certificates to same-sex couples. BUT, he stayed all further proceedings until August 18 to give time for an application to the 9th Circuit.
None of the factors the court weighs in considering a motion to stay favors granting a stay. Accordingly, proponents’ motion for a stay is DENIED. Doc #705. The clerk is DIRECTED toenter judgment forthwith. That judgment shall be STAYED until August 18, 2010 at 5 PM PDT at which time defendants and all persons under their control or supervision shall cease to apply or enforce Proposition 8.
There are some interesting issues raised by the stay. Judge Walker found that the parties seeking a stay may not have "standing" to appeal, meaning that they may not have a protectable interest since state officials were not also appealing:
Proponents’ intervention in the district court does not provide them with standing to appeal.... As it appears at least doubtful that proponents will be able to proceed with their appeal without a state defendant, it remains unclear whether the court of appeals will be able to reach the merits of proponents’ appeal. In light of those concerns,proponents may have little choice but to attempt to convince either the Governor or the Attorney General to file an appeal to ensure appellate jurisdiction. As regards the stay, however, the uncertainty surrounding proponents’ standing weighs heavily against the likelihood of their success.
This highlights the unusual nature of the litigation, in which state officials charged with enforceing state law refused to defend Prop. 8 in federal court. The consequences are not that predictable, as the case makes its way up on appeal. Some possibilities are that the 9th Circuit could deny a stay and the appeal on this basis; or alternatively it calls into question whether there ever should have been a trial since no party with standing opposed the lawsuit.

As to the second part of the test for a stay, Judge Walker again emphasized that the State was not claiming any harm:
Both plaintiffs and the state defendants have disavowed the harms identified by proponents.
The posture in which this case is being presented on appeal makes the course of an appeal very unusual. There is a collusive aspect to the litigation, in which none of the parties Judge Walker deemed to have standing actually had a controversy.

I'm not prepared to take a position yet on how this standing issue will affect the appeal, it's just too complicated; but it is clear that there are some serious legal issues before an appeals court or the U.S. Supreme Court would even reach the merits of whether Prop. 8 violated the U.S. Constitution.

Perry v. Schwarzennegger - Judge Walker Order Re Stay
Related Posts:
Ted Olson May Be Too Smart By Half
Deconstructing Marriage
Fed Judge Finds Calif. Prop. 8 Unconstitutional

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  1. yeah, i am really starting to feel this whole thing is foul, from start to finish.

  2. did some quick checking on the law. you can find the legal standard for intervention of right, here.


    So you have to have three elements:

    1. an interest

    2. that will be impacted by the litigation

    3. and you will not be adequately represented by the current parties.

    i have read through the hornbook from friedenthal on the subject and from what they are saying, the interest prong is read really broadly. i think they would have a very credible argument that they have an interest in seeing that this amendment doesn't get struck down if only because they worked so hard to get it passed.

    that interest is obviously impacted here, so that second prong is easy.

    and the third prong is easy; ahnold and company are not fighting it.

    i really think it is time for the 9th circuit to be the grown ups and put a stop to this mess. this judge's conduct has been pretty risable the entire course of this case.

    and there are some grown ups in the 9th circuit.

  3. What an interesting observation. I wonder if it is possible for a non-party to file an extraordinary writ to compel dismissal on that ground.

  4. No--not intervention. You need an extraordinary writ--in this case to the Ninth Circuit. A writ of prohibition which orders the district court not to exercise jurisdiction in a particular case

  5. Oh btw, small point on the issue of standing. There is direct case law to the contrary. Yniguez v. State of Ariz., 939 F.2d 727 (C.A.9 (Ariz.), 1991)

    In that case proponents of an Arizona initiative were given standing for purposes of appeal because the state was no longer willing to defend the case. In short, it was JUST LIKE THE CURRENT CASE.

    Now, the SC got ahold of it, they cast serious doubt on the viability of this standing claims but didn’t actually overrule them because the found the case was in fact mooted based on other reasons.


    Shouldn’t that precedent, right on point, at least been discussed–if only to dismiss the issue?

    Btw, it took me about 30 minutes total, using a combination of google and fastcase, to find it.
    you think the judge had no idea this precedent existed? or do you think he just didn’t want to deal with it, because he already made up his mind.

    And i think as a matter of policy, that is the right decision. The whole point of the initiative process in california is to go past all the politicians and let the people decide. But this federal judge has said that now the governor--or maybe the governor and the Attorney General--have the ability to effectively veto the law by refusing to fight for it. That does not respect the constitution of california.

  6. A.W. the Az case and another clearly more applicable one are discussed by Link. And you could have found that simply by clicking on the hyperlink in Prof Jacobson's post.

  7. cf

    Actually calling Diamond more clearly applicable is a dubious thing. if you mean in the sense that the S.C. didn't cast some doubt on it, fair enough. but the facts in the Yniguez case are actually identical in every relevant respect.

    Bluntly i feel that the suggestion in the S.C. appeal on that case that the 9th circuit ruled incorrectly is wrong. If you do not credit the proponents of an initiative like this, then you are in essence giving a veto to the state officials over their own state constitutions.

    Yniguez should have at least been discussed.

  8. btw, ed whelan has more on the subject here: http://www.nationalreview.com/bench-memos/243232/prop-8-proponents-motion-ninth-circuit-stay-standing-ed-whelan

    Worth a read.

    This judge is out of control. Its time for some adult supervision in the 9th circuit. i know some of those judges out there can do it, its time for one of them to step up. this ruling needs to be vacated because the judge should have disqualified himself from the start.

  9. Time magazine today:

    [quote]ut if the appellate judges agree with Walker that the proponents lack standing to appeal, the case may never reach the appellate courts at all, at least not on its merits. That would mean a win for gay marriage in California, as it rejoins the five other states (and D.C.) where gay marriage is legal. But it would also mean that the case would have much less national importance. The first federal decision — Walker's — ruling in favor of gay marriage would remain the only one, and would have no direct impact on marriage laws in any other state.
    And to add another twist, at least one constitutional-law scholar in California is suggesting that by trumpeting the issue of standing, Walker has opened a hornet's nest he may have been better off leaving undisturbed. "If the proponents don't have standing to appeal, then it's entirely plausible that the courts will rule that they did not properly have standing to go to trial," Vikram Amar, a law professor at the University of California at Davis, told TIME Thursday evening. "This is an issue he glossed over when he allowed them to intervene in the trial."
    Amar says that if the Ninth Circuit agrees with Walker that the proponents don't have standing to appeal, the judges may well decide they shouldn't have been allowed to intervene in the case at all. If they do, he says, they could decide to vacate the trial entirely, sending it back to Walker to start over. The governor and attorney general would be unlikely to intervene — but on the other hand, come November, voters will choose new candidates for both of those offices.[/quote]