tag:blogger.com,1999:blog-1522121129844880066.post776169904394957308..comments2023-10-24T11:23:31.580-04:00Comments on Le·gal In·sur·rec·tion: Prop 8 Stay Still In Effect Until August 18William A. Jacobsonhttp://www.blogger.com/profile/16433685588536441422noreply@blogger.comBlogger9125tag:blogger.com,1999:blog-1522121129844880066.post-55304636835291187992010-08-13T15:12:11.578-04:002010-08-13T15:12:11.578-04:00Time magazine today:
[quote]ut if the appellate ...Time magazine today:<br /><br />[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.<br />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."<br />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]<br /><br /><br />http://www.time.com/time/nation/article/0,8599,2010377,00.html?xid=rss-topstories&utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+time%2Ftopstories+%28TIME%3A+Top+Stories%29#ixzz0wVyUt0AYcfhttps://www.blogger.com/profile/06415260679597997353noreply@blogger.comtag:blogger.com,1999:blog-1522121129844880066.post-28598738646118717052010-08-13T09:33:55.350-04:002010-08-13T09:33:55.350-04:00btw, ed whelan has more on the subject here: http:...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<br /><br />Worth a read.<br /><br />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.A.W.https://www.blogger.com/profile/10876021589516844048noreply@blogger.comtag:blogger.com,1999:blog-1522121129844880066.post-68849275735603100852010-08-13T08:40:16.878-04:002010-08-13T08:40:16.878-04:00cf
Actually calling Diamond more clearly applicab...cf<br /><br />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.<br /><br />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.<br /><br />Yniguez should have at least been discussed.A.W.https://www.blogger.com/profile/10876021589516844048noreply@blogger.comtag:blogger.com,1999:blog-1522121129844880066.post-76993260336074501112010-08-13T00:29:23.414-04:002010-08-13T00:29:23.414-04:00A.W. the Az case and another clearly more applicab...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.cfhttps://www.blogger.com/profile/06415260679597997353noreply@blogger.comtag:blogger.com,1999:blog-1522121129844880066.post-77284591417302554552010-08-12T23:13:36.104-04:002010-08-12T23:13:36.104-04:00Oh btw, small point on the issue of standing. Ther...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)<br /><br />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.<br /><br />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.<br /><br />http://www.law.cornell.edu/supct/html/95-974.ZO.html<br /><br />Shouldn’t that precedent, right on point, at least been discussed–if only to dismiss the issue?<br /><br />Btw, it took me about 30 minutes total, using a combination of google and fastcase, to find it.<br />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.<br /><br />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.A.W.https://www.blogger.com/profile/10876021589516844048noreply@blogger.comtag:blogger.com,1999:blog-1522121129844880066.post-61135891825480661352010-08-12T17:32:05.310-04:002010-08-12T17:32:05.310-04:00No--not intervention. You need an extraordinary wr...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 casecfhttps://www.blogger.com/profile/06415260679597997353noreply@blogger.comtag:blogger.com,1999:blog-1522121129844880066.post-4262500387382591132010-08-12T17:04:18.261-04:002010-08-12T17:04:18.261-04:00What an interesting observation. I wonder if it is...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.cfhttps://www.blogger.com/profile/06415260679597997353noreply@blogger.comtag:blogger.com,1999:blog-1522121129844880066.post-84315784591260745942010-08-12T16:54:35.023-04:002010-08-12T16:54:35.023-04:00did some quick checking on the law. you can find ...did some quick checking on the law. you can find the legal standard for intervention of right, here.<br /><br />http://www.law.cornell.edu/rules/frcp/Rule24.htm<br /><br />So you have to have three elements:<br /><br />1. an interest<br /><br />2. that will be impacted by the litigation<br /><br />3. and you will not be adequately represented by the current parties.<br /><br />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.<br /><br />that interest is obviously impacted here, so that second prong is easy.<br /><br />and the third prong is easy; ahnold and company are not fighting it.<br /><br />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.<br /><br />and there are some grown ups in the 9th circuit.A.W.https://www.blogger.com/profile/10876021589516844048noreply@blogger.comtag:blogger.com,1999:blog-1522121129844880066.post-45760066691073277202010-08-12T16:17:29.494-04:002010-08-12T16:17:29.494-04:00yeah, i am really starting to feel this whole thin...yeah, i am really starting to feel this whole thing is foul, from start to finish.A.W.https://www.blogger.com/profile/10876021589516844048noreply@blogger.com