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Monday, August 16, 2010

9th Circuit Grants Stay Pending Appeal in Prop. 8 Case

The Court of Appeals for the 9th Circuit has granted a stay pending an expedited appeal of the District Court Order which held that California Prop. 8 violated the U.S. Constitution. The Court specifically ordered the supporters of Prop. 8 to brief if they had standing to appeal:
Appellants’ motion for a stay of the district court’s order of August 4, 2010 pending appeal is GRANTED. The court sua sponte orders that this appeal be expedited pursuant to Federal Rule of Appellate Procedure 2. The provisions of Ninth Circuit Rule 31-2.2(a) (pertaining to grants of time extensions) shall not apply to this appeal. This appeal shall be calendared during the week of December6, 2010, at The James R. Browning Courthouse in San Francisco, California.

The previously established briefing schedule is vacated. The opening brief is now due September 17, 2010. The answering brief is due October 18, 2010. The reply brief is due November 1, 2010. In addition to any issues appellants wish to raise on appeal, appellants are directed to include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing. See Arizonans For Official English v. Arizona, 520 U.S. 43, 66 (1997).

Obviously it is interesting that the Court has ordered briefing on the standing issue, although the parties certainly would have done so anyway.

Equally interesting is the political impact, because there will be a new Governor and Attorney General elected in California, and possibly seated (not sure of California law on this, but Schwarzennegger was sworn into office on November 17, 2003).

The standing issue may go away if the new Governor or Attorney General chooses to defend the constitutionality (but not necessarily the wisdom - heh) of Prop. 8. And the position on the lawsuit clearly now is an issue in those elections.

This unquestionably was the correct decision as to a stay. Contrary to the glib arguments that there is no likelihood of success on appeal, the District Court Order is the outlier; that doesn't mean that the 9th Circuit will overturn it on the merits, but clearly there is a reasonable likelihood of the result being overturned.

The argument that there was no harm was weak, because the 9th Circuit certainly saw what happened in the state court process, where the California Supreme Court, though upholding Prop. 8, had to grapple with what to do with same sex couples who had married in the interim. The 9th Circuit didn't need that headache, and neither did society. Given the expedited schedule, the relatively short delay in such marriages resulting from a stay was not enough to overcome the legal chaos similar to what happened in the state courts.

The standing issue seems too cute by half, and in any event, the 9th Circuit must understand that the elections may moot the issue.

Perry v. Schwarzennegger - 9th Cir. - Order Granting Stay Pending Appeal

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  1. Delaying the inevitable? I suspect they will affirm, but nothing is certain.

  2. I don't know when the new governor is inaugurated but a Calif friend reminds me that "Arnold was seated in November because there had been a special election recalling Gray Davis."

  3. well, a few procedural questions.

    First, um, even if there is an election, isn't the appeal time limited?

    Second, aren't they required to believe the appellant is likely to win on appeal--not that they just have a decent shot?

  4. strange...i thought it was the DUTY of the government in california to uphold the constitution...not an option...

  5. California Constitutional officers are sworn in on January 3rd, 2011. This will definitely impact the governor's race and the AG race, as both Dem candidates hold the same positions as the current officeholders and would not defend the law, while the GOP candidates would defend the law in court. But that would only affect further appeals, either en banc at the 9th or to SCOTUS.

  6. @A.W.: Since all previous Supreme Court and 9th Circuit precedent supports the right to define marriage as one man-one woman (Baker v. Nelson, et al), there is a good likelihood of the case being overturned.