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Analysis: 9th Circuit Appears Ready to Grant Proponents Standing to Appeal

9th Circuit Court of Appeals Prop 8 trial Trial analysis

by Robert Cruickshank

The 9th Circuit Court of Appeals today issued a “ruling” of sorts on the appeal of Judge Vaughn Walker’s ruling that found Prop 8 to be unconstitutional*. The “ruling” was actually a certification of a question to the California Supreme Court about the all-important matter of whether Prop 8 proponents have standing to appeal Judge Walker’s decision. Here’s the question they want answered:

Whether under Article II, Section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure possess either a particularized interest in the initiative’s validity or the authority to assert the State’s interest in the initiative’s validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so.

We understand that the Court may reformulate our question, and we agree to accept and follow the Court’s decision.

A further reading of the document suggests that the 9th Circuit is ready to rule that Prop 8 proponents DO have standing to appeal. In turn, that would enable the 9th Circuit to decide whether Prop 8 is a violation of the 14th Amendment (and obviously it is), a decision that would have major ramifications across California and the country. Here’s what the 9th Circuit said:

If California does grant the official proponents of an initiative the authority to represent the State’s interest in defending a voter-approved initiative when public officials have declined to do so or to appeal a judgment invalidating the initiative, then Proponents would also have standing to appeal on behalf of the State….

We are aware that in California, “All political power is inherent in the people,” Cal. Const. art. II, § 1, and that to that end, Article II, section 8(a) of the California Constitution provides, “The initiative is the power of the electors to propose statutes and amendments to the Constitution and to adopt or reject them.” We are also aware that the Supreme Court of California has described the initiative power as “one of the most precious rights of our democratic process,” and indeed, that “the sovereign people’s initiative power” is considered to be a “fundamental right.”…

The power of the citizen initiative has, since its inception, enjoyed a highly protected status in California. For example, the Legislature may not amend or repeal an initiative statute unless the People have approved of its doing so….

Similarly, under California law, the proponents of an initiative may possess a particularized interest in defending the constitutionality of their initiative upon its enactment; the Constitution’s purpose in reserving the initiative power to the People would appear to be ill-served by allowing elected officials to nullify either proponents’ efforts to “propose statutes and amendments to the Constitution” or the People’s right “to adopt or reject” such propositions. Cal. Const. art. II, § 8(a). Rather than rely on our own understanding of this balance of power under the California Constitution, however, we certify the question so that the Court may provide an authoritative answer as to the rights, interests, and authority under California law of the official proponents of an initiative measure to defend its validity upon its enactment in the case of a challenge to its constitutionality, where the state officials charged with that duty refuse to execute it.

So what does that all mean? Let me boil it down. Basically, California’s constitution and various CA Supreme Court decisions in the last few decades have indicated that the initiative power is a right inherent to the people of the state, and does not stem from the Legislature. It sets up the people as a kind of fourth branch of government, with its own sovereign power. And therefore, if the Governor and the Attorney General refuse to defend a proposition in court, that could essentially nullify the fundamental rights of the voters. Since ballot initiatives stem from the people, presumably the people – in the form of the initiative proponents – DO have standing to defend Prop 8 in court and to appeal it to the 9th Circuit in order to preserve the people’s initiative power.

But because such a ruling would have a significant impact on future legal battles over California ballot initiatives, the 9th Circuit is deferring to the CA Supremes. The CA Supremes could say “yes, the proponents do have standing” or “no, the proponents do not have standing,” or they could simply not respond at all. The first and third options are more likely, and based on the CA Supremes’ longstanding (and I believe flawed) unwillingness to interfere with ballot initiatives, the CA Supremes will probably conclude that the Prop 8 proponents do indeed have standing to appeal.

In which case, the 9th Circuit would then rule on the issue of Prop 8’s constitutionality. I am guessing that their ruling will be to uphold Judge Walker, otherwise they would just say Prop 8 is constitutional and moot the question of standing. Still, that’s just my view, and we should prepare for any outcome.

The 9th Circuit also concurrently ruled that Imperial County does not have standing to appeal Judge Walker’s decision, a ruling that was widely expected in the wake of the farcical appearance before the 9th Circuit court by Imperial County officials.

The CA Supremes can take as long as they want in answering the 9th Circuit. It could be days, weeks, or months. Whatever the outcome, it shows again the need to reform our initiative process. One reason our state government fails is that we’ve essentially set up a fourth branch of government – the people – that can negate anything done by the other three branches, but without any real checks or balances on the powers of that fourth branch.

In American constitutions, at least until the present day, the power of the people has been limited and bounded to ensure that all rights are protected. The right clearly wants to undo that convention, and give the people the power to trump the Constitution by mob rule. Whatever the outcome of the Prop 8 case, it’s time to bring some sense and sanity to ballot initiatives here in California.

*Somehow I doubt that the 14th Amendment will be read out on the House floor this week by Republicans, who hate the 14th Amendment and want to pretend it doesn’t exist.

Robert Cruickshank worked at the Courage Campaign from November 2007 to November 2010, when he stepped down as Public Policy Director. His analysis represents his views alone.

156 Comments

  • 1. Lesbians Love Boies  |  January 4, 2011 at 5:34 am

    scribin

  • 2. Ed Cortes  |  January 4, 2011 at 5:39 am

    me too

  • 3. Lauren  |  January 4, 2011 at 5:40 am

    “Though the will of the majority is in all cases to prevail, that will, to be rightful, must be reasonable; that the minority possess their equal rights, which equal laws must protect, and to violate would be oppression.” -Thomas Jefferson

  • 4. Bluprntguy  |  January 4, 2011 at 5:43 am

    I disagree with some of the assumptions. The 9th circuit said in the ruling that "the [California] Constitution’s purpose in reserving the initiative power to the People would appear to be ill-served by allowing elected officials to nullify either proponents’ efforts to “propose statutes and amendments to the Constitution” or the People’s right “to adopt or reject” such propositions." You immediately jump to the conclusion that the CA Supreme Court would find this to be the case and confer standing to the proponents of initiatives.

    I think the CA Supreme Court has, on more than one occasion, said the People's interest is ill served by the CA Constitution, but has refused to let the Court rectify the situation by "ruling from the bench." If the Constitution (or a law) does not specifically confer standing to Proponents, I find it highly doubtful that the CA Supreme Court would choose to do so. If the right to appeal is something the People want initiative sponsors to have, the People are free to amend the constitution to specifically provide that right.

  • 5. Kathleen  |  January 4, 2011 at 5:47 am

    Just scribin' – need to read the decision before I'll know whether I agree with this analysis.

  • 6. atty79  |  January 4, 2011 at 5:49 am

    Thanks for the summary. I agree with your conclusion as well. I think the 9th wants to rule in our favor but doesn't want to leave a huge procedural hole for the US Supremes to drive through and avoid ruling on the merits.

    A curious question came up in my mind as I was reading the 9th Cir's order. If the "Fourth Branch" of government in CA is so powerful, then wouldn't that run afoul of Article IV's republican form of government guarantee. I know the courts have addressed this question regarding the initiative process before, but the way that the 9th Cir describes it seems to take the initiative process into a whole new arena. The 9th Cir's view of the initiative process made the separation of powers in CA sound like a farce. Who needs a republic when you can have a 'democratic' despotism (or plutocracy, would probably be more apt).

  • 7. James Sweet  |  January 4, 2011 at 5:50 am

    In American constitutions, at least until the present day, the power of the people has been limited and bounded to ensure that all rights are protected. The right clearly wants to undo that convention, and give the people the power to trump the Constitution by mob rule.

    Oh man, it kills me to pass up a chance to criticize the Right in America, but I think Cruickshank's got it slightly wrong here. Short-sighted elements on both the Left and the Right have at times in the past wanted to give far more power to popular majority than is wise. Of course, in the very recent past, it's been mostly the Right, but it's not always been the case. False faith in the popular majority is a bipartisan disease.

    In any case, Cruickshank's criticisms of California's initiative process are spot on. It's a freakin' travesty. Popular vote has never been a good way to decide policy, except on a very small scale (and even then it is questionable).

    For virtually every civil rights victory ever, the popular majority has been dragged kicking and screaming by the judiciary.

  • 8. Kathleen  |  January 4, 2011 at 5:50 am

    I just wanted to comment on this one statement "otherwise they would just say Prop 8 is constitutional and moot the question of standing"

    I disagree. Standing is a threshold question. Without someone with standing appealing Walker's decision, the Court can't simply rule on the merits and moot the question of standing. The Court says so itself,, "Because we cannot consider this important constitutional question unless the appellants before us have standing to raise it…" (pdf pg 2)

  • 9. DazedWheels  |  January 4, 2011 at 5:52 am

    Subscribing so I don't miss anything.

  • 10. Bluprntguy  |  January 4, 2011 at 5:58 am

    Reinhardt's concurrence is interesting as well:
    http://www.ca9.uscourts.gov/datastore/general/201

  • 11. Ronnie  |  January 4, 2011 at 5:58 am

    me three…..<3…Ronnie

  • 12. Mikiebear  |  January 4, 2011 at 5:58 am

    ugh, this initiative didnt even stem from the people of california, it stemmed from a national organization and was voted by the californian people which narrowly passed thanks to misleading campaigning and religiously blind naive citizens. The defendants of this case arent even hired by californians nor is it defended by californians.

    This is all just ridiculous, it is obvious that America's political system is bullshit. Im so sick of America, the republican agenda, the democratic agenda, the gay agenda, the christian agenda, the corporate agenda, the national deficit.

    Didnt mexico city legalize gay marriage? Canada? Europe? America is not only falling behind economically, being overtaken by countries like brazil, but it is also falling behind socially thanks to all the agendas and no solutions.

  • 13. cc  |  January 4, 2011 at 5:58 am

    *Somehow I doubt that the 14th Amendment will be read out on the House floor this week by Republicans, who hate the 14th Amendment and want to pretend it doesn’t exist."

    I'm sorry but wasn't it Republicans, specifically Log Cabin Republicans that brought the fight against DADT into the court room? Please let’s stop and finally put an end to over generalizing people based on preserved assumptions of groups! We are better than that!

    Signed:
    A Lipstick Bisexual who’s in a monogamous 5 year relationship with a Lipstick Lesbian Soldier!

  • 14. Tyler  |  January 4, 2011 at 5:59 am

    If I were Olson/Boies, I'd let CA Supreme just find that proponents have standing and just get to a decision on the merits already!

  • 15. Rhie  |  January 4, 2011 at 6:00 am

    Same

  • 16. Ann S.  |  January 4, 2011 at 6:02 am

    me four — will be interested to read the analysis now.

  • 17. Gregory in Salt Lake  |  January 4, 2011 at 6:05 am

    looking forward to reading your analysis!

  • 18. Gregory in Salt Lake  |  January 4, 2011 at 6:05 am

    clicking box

  • 19. Lightning Baltimore  |  January 4, 2011 at 6:06 am

    I believe that was directed at Republican congressmen and women, who appear to be 100% (or close) opposed to marriage equality, and, thus, Amendment XIV.

  • 20. AndrewPDX  |  January 4, 2011 at 6:07 am

    Me five?

    Liberty, Equality, Fraternity
    Andrew

  • 21. Ann S.  |  January 4, 2011 at 6:13 am

    Kathleen, that stood out to me, too, and I agree with you. I'm not really familiar with what goes on in judicial chambers, but they may not even have formally discussed the merits yet. I imagine they're too busy to spend much time on questions that may not come before them.

  • 22. Ann S.  |  January 4, 2011 at 6:15 am

    I wouldn't. If there's no standing to appeal, Walker's ruling stands. That's as good as a decision on the merits as far as California goes.

  • 23. JonT  |  January 4, 2011 at 6:18 am

    'I am guessing that their ruling will be to uphold Judge Walker, otherwise they would just say Prop 8 is constitutional and moot the question of standing. Still, that’s just my view, and we should prepare for any outcome.'

    I am not sure I agree with this. If it turns out that the pro-prop8 people do not have standing to appeal, then the 9th circuit cannot make any other ruling beyond that.

    So, Walker's decision would stand. I do not think they can rule on the constitutionality of prop8, one way or another, without a ruling that proponents have to right to appeal in the first place.

  • 24. Sagesse  |  January 4, 2011 at 6:21 am

    Scribin' to read later.

  • 25. Straight Ally #3008  |  January 4, 2011 at 6:23 am

    The real problem is that evidently anything, including a vote on basic rights, can be put on the ballot in California, and change the constitution without any check by the legislature, counties, etc. Can you imagine if the California process applied to the U.S. Constitution? We'd be the Republic of Gilead by now.

  • 26. JonT  |  January 4, 2011 at 6:23 am

    :) Should have read all the comments before posting my own (in which I said basically the same thing :).

    I agree with this view. Without standing, there can be no ruling on the merits by the 9th.

  • 27. Kathleen  |  January 4, 2011 at 6:31 am

    Having read the decision, I concur that the 9th Circuit seems poised to rule that Proponents have standing if the CA Supreme Court says they have the particularized interest necessary to defend. The opinion says this would qualify them under both their alternative arguments – particularized state-created interest or by directly asserting the state's interest in defending a voter-approved initiative – to appeal.

    There was one thing that caught my eye – "The parties agree that “Proponents’ standing” – and therefore our ability to decide this appeal – “‘rises or falls’ on whether California law” affords them the interest or authority described in the previous section." (pdf pg 10)

    I'll have to go back and read the briefs cited, but this appears to contradict what Boies argued during the hearing. He specifically said that if California law conferred an interest on proponents, that would be a necessary but not sufficient fact.

  • 28. Bob  |  January 4, 2011 at 6:37 am

    well looks like we got some action on prop8,,,

    I say with the response this gets, we're ready,, if the right wants mob rule, let them have a taste of it…… just to remind them what that would be like, cause if they want us to fight right out for equality,, we will,,,,

    bring it on,,, in short time they'd remember what the other levels of gov't and the courts are there for………

    I tell you the country would be in a panic if they had to bring troops to restore order in the streets,,,,,,

  • 29. Ann S.  |  January 4, 2011 at 6:39 am

    I've re-read parts of it, and I agree — they said that if the CA Supreme Court says they have a particularized interest, then they have standing. So apparently they disagree with Boies that this is necessary but not sufficient — they think it would be sufficient.

    I guess we knew that Reinhardt and Hawkins, at least, are in favor of broader standing, so it's not entirely surprising that they should want to rule in favor of standing and reach the merits. Reinhardt makes this quite clear in his concurrence.

    I was also a bit puzzled by the "rises or falls" language. At first I thought, "well, rises isn't the same as prevails", but now I'm less sure that they made that distinction.

  • 30. Kathleen  |  January 4, 2011 at 6:43 am

    I'd like California, at minimum, to put in place a process similar to DC, where certain things can't be voted on (e.g.,basic rights) and a determination of whether a particular initiative violates the prohibition is made ahead of the vote. Then, if initiative proponents want to litigate the denial, they can do it before there's a vote on it.

  • 31. Anonygrl  |  January 4, 2011 at 6:54 am

    This is starting to look like a good thing to me. The 9th seems to want to rule on Prop 8, but wants to make sure that they have touched ALL the bases first, so that there is no way the Supreme Court can toss it back to them.

    I honestly don't think that is a BAD thing. I can only hope that it also means they want to rule in our favor, but even if they don't, having standing decisively settled first doesn't really hurt us.

    And I love that they have booted Imperial County out of the proceedings.

  • 32. Kathleen  |  January 4, 2011 at 6:58 am

    The Supreme Court could still toss it back. Just because the 9th Circuit thinks that certification by the CA SC is sufficient to grant Article III standing, doesn't mean SCOTUS will agree.

  • 33. Bob  |  January 4, 2011 at 7:09 am

    agree anonygrl,,,, love that boot to Imperial County,,,,

    the 9th seems to want to rule,,, on with it then,,, I want to know if I need to come down there to celebrate or throw shoes….. I think all this hanging out with other trackers has turned me bi-actional,,,, I'm ready bring it on…..

  • 34. Kathleen  |  January 4, 2011 at 7:20 am

    All aside from the question of its impact on this case specifically, I really don't want to see the CASC decide that proponents of an initiative have standing to defend/appeal rulings in federal court. It seems to me this just gives even more power to the initiative process – a move in entirely the wrong direction IMO.

  • 35. Anonygrl  |  January 4, 2011 at 7:23 am

    Well, yes, but it takes one more reason for sending it back away. There is no way to plug ALL the holes, but this is a big one for the 9th to clear out of the picture if they can.

  • 36. Anonygrl  |  January 4, 2011 at 7:25 am

    I would agree with you there… the initiative process in California seems to have far too few constraints on it already.

  • 37. Ann S.  |  January 4, 2011 at 7:26 am

    Definitely!

  • 38. Kathleen  |  January 4, 2011 at 7:28 am

    I'll have to go back and view the press conference with Boise form after oral arguments. I seem to recall there was a question about this possibility and in retrospect, I seem to recall seeing a slight indication that it annoyed him that this might happen.

    But I may just be projecting my own annoyance–which is not so much over the fact they'd punt to the CASC, but that they seem to think that certification is sufficient to grant federal standing.

  • 39. Elizabeth Oakes  |  January 4, 2011 at 7:33 am

    Hmmm. What exactly does the DC law say, and how would we begin a campaign to add that to the CA Constitution?

  • 40. Elizabeth Oakes  |  January 4, 2011 at 7:35 am

    Well….but could this also mean they are considering whether to make a narrow ruling impacting only CA? or maybe they're trying to figure out if the particularized issues of CA law could be a sticking point in a broader ruling.

  • 41. Brian  |  January 4, 2011 at 7:38 am

    What happens if the CA supreme court doesn't respond to the question?

  • 42. Michael Ejercito  |  January 4, 2011 at 7:51 am

    In the meantime, another case similar to this will be decided in a U.S. district court in Oklahoma, probably by the summer of this year. (Bishop v. Oklahoma). Similar to this case, the governor and attorney general there abandoned the defense of Question 711 (by arguing a technicality to have themselves dismissed as defendants), leaving only the Clerk of Tulsa County as a defendant.

    If the California Supreme Court deny proponents' standing, the ruling only binds the named defendants. No other county clerk aside from the named county clerks will be required to issue marriage licenses to the named plaintiffs, let alone other same-sex couples.

    In fact, it is even questionable whether or not the ruling binds the defendants' actions in regards to persons other than plaintiffs. For if Deputy Clerk Vargas did not have standing to assert the interests of her boss, let alone the governor and attorney general, how do the named plaintiffs have standing to assert the rights of persons other than themselves?

  • 43. Ronnie  |  January 4, 2011 at 8:05 am

    Are you a lawyer, Mr. realtor?…This has already been covered several times ….the ruling applies to the ENTIRE state & ALL California citizens…move on…get over it….. : I ….Ronnie

  • 44. PhillipC  |  January 4, 2011 at 8:35 am

    I commend to your attention "Justice Frankfurter's Three Rules of Statutory Interpretation":

    (1) Read the statute;
    (2) Read the statute; and
    (3) Read the statute.

    Has anybody here even read CRC App.R. 29.5? Here is what it says about "Requirements for Certified Questions":

    "(a) The California Supreme Court may answer questions of law certified to it by . . . a United States Court of Appeals . . . provided that:

    (1) the certifying court requests the answer;
    (2) the questions may be determinative of a cause pending in the certifying court; and
    (3) the decisions of the California appellate courts provide no controlling precedent concerning the certified question."

    In this case, the question is *not* determinative of the cause pending in the 9th Circuit Court of Appeals, because standing is only a threshold issue of federal appellate jurisdiction. The "cause" pending is whether the District Court erred in granting an injunction against the enforcement of Prop. 8 on the ground that it is unconstitutional.

    Furthermore, the 9th Circuit *admitted* there *is* a decision of a California appellate court providing controlling precedent–the Court of Appeal. There is no requirement or logic in requiring a decision of the California Supreme Court (except perhaps that the 9th Circuit wanted to punt).

    Federal Courts of Appeals answer standing questions like this every day, so there must be something more to this extremely unusual (and inappropriate, now that we have read the Rule) Certification request.

  • 45. Kathleen  |  January 4, 2011 at 12:45 pm

    Then the 9th Circuit judges will reach their decision on standing without benefit of the CA SC answer to their question.

  • 46. Kathleen  |  January 4, 2011 at 1:02 pm

    Please remind me about this Elizabeth. I'll pull up the references. (watching Caprica right now). I know my own state rep is very open to introducing new laws and is on board with marriage equality.

  • 47. Ann S.  |  January 4, 2011 at 1:42 pm

    Yes, although I think this is highly unlikely. The CA SC wants to have the last say on what state law is.

    Not that the 9th Circuit holding is binding precedent on CA courts.

    If someone has more experience or knowledge of this, I hope they will correct me.

  • 48. David N Taiwan  |  January 4, 2011 at 1:58 pm

    Questions: you stated "One reason our state government fails is that we’ve essentiall­y set up a fourth branch of government – the people – that can negate anything done by the other three branches, but without any real checks or balances on the powers of that fourth branch." Does this mean the checks and balances do not exist with the ballot initatives? Are they not automatica­lly appealed to the State Supreme Court? Is the State Supreme Court not able to strike down such propositio­ns?

  • 49. Kathleen  |  January 4, 2011 at 2:10 pm

    They're not automatically appealed, but yes, they can be. However, the State Supreme Court bases its rulings on the California Constitution, which can be amended through a simple majority vote of the electorate. It's crazy.

  • 50. Mandi  |  January 4, 2011 at 2:57 pm

    Check the box!

  • 51. Lawrence  |  January 4, 2011 at 3:27 pm

    I (NAL) don't find this same reading that the 9th is "poised" to make the standing decision. I see the order as mounting the strongest possible argument about how important, critical and impacting the question is in order to try and drive the CA supremes to answer it. I am not sure one can take from this any agreement across the three judges about what they will then do – although a response from CA that random proponents have amazing powers will obviously be influential!

    I do read in Reinhardt's concurrence that he is exasperated with all these procedural impediments, standing included, that stop him from rolling up his sleeves to decide the real issue at hand. He cites various of his writings on this (which I haven't read). It is unclear though whether the other justices would share hIs view of these as "impediments".

  • 52. Lawrence  |  January 4, 2011 at 3:34 pm

    Which is kind of why the 9th is asking the question – it's a huge CA constitutional questions that the CA SC should have an answer to without requiring other courts to guess. All kind of saying "how is this CA proposition mess supposed to work then?"

  • 53. Richard A. Jernigan  |  January 4, 2011 at 8:02 pm

    Will read this in more detail later. But while I am here–Welcome back, Robert!

  • 54. Kathleen  |  January 4, 2011 at 8:08 pm

    If I had to predict, I’d say they’re leaning toward a narrow ruling, but I don’t think the request to the California SC has anything to do with that. It really is just trying to resolve the issue of standing for the appeal.

  • 55. Mandi  |  January 4, 2011 at 8:25 pm

    Scribing

  • 56. Ann S.  |  January 4, 2011 at 9:10 pm

    They are not automatically appealed in California, and an appeal would generally begin at the trial court (it was a bit unusual when Strauss v. Horton was taken directly by the CA Supreme Court). The CA Supreme Court can find them unconstitutional.

    Prop 8 was an amendment to the CA Constitution, and the CA Supreme Court held that it was properly enacted in Strauss. They did not rule on whether Prop 8 violated the US Constitution, which is the question now before the 9th Circuit.

    Some of us feel that it is too easy to get a ballot initiative placed on the ballot and that this one, since it negated existing basic civil rights of California citizens, should have been struck down before now.

  • 57. Daily Outline: January 4,&hellip  |  January 4, 2011 at 11:11 pm

    […] The Ninth Circuit Court of Appeals asked the California Supreme Court today to assist them in deciding if Prop. 8′s supporters have legal standing to defend the gay marriage ban.  The state’s high court will now decide if supporters can defend a ballot initiative even if public officials (in this case, Gov. Arnold Schwarzenegger and state attorney general Jerry Brown) refuse to.  If the California Supreme Court decides that Prop. 8 supporters do have legal standing, the Ninth Circuit Court of Appeals would then decide on the constitutionality of the law.  If they are found to not have legal standing, Judge Virginia Walker’s ruling that Prop. 8 is unconstitutional would stand.  Read more at Prop 8 Trial Tracker. […]

  • 58. Ronnie  |  January 5, 2011 at 2:01 am

    AFER (American Foundation for Equal Rights) & attornyers Theodore Olson & Ted Boutrous explain what the ruling on standing in the Prop 8 Trial means……<3….Ronnie:
    http://www.youtube.com/watch?v=hLsKX7rcINg&fe

  • 59. Michael Ejercito  |  January 5, 2011 at 2:09 am

    the state was not a defendant. Only certain officials were defendants. a court order can only bind official defendants. tgus, it can not bind Orange County or its officials.

    and not all california citizens were plaintiffs. and the plaintiffs in this case have absolutely no standing in asserting the rights of other persons. I, for example, can not assert your rights in state or federal court unless I have legal authorization (power of attorney, executor of estate) to do so.

  • 60. Ronnie  |  January 5, 2011 at 2:15 am

    I will repeat myself as was stated yesterday by actual legal professionals & has been said to you on several occasions….

    This has already been covered several times ….the ruling applies to the ENTIRE state & ALL California citizens…

    Are you are moron?….move on…get over it….you benighted, homophobic, immature, Fascist troglodyte….

    : I ….Ronnie

  • 61. Ann S.  |  January 5, 2011 at 2:28 am

    Thanks, very interesting.

  • 62. Michael Ejercito  |  January 5, 2011 at 2:55 am

    Have you read Judge Reinhardt's concurrence?

    Yet,
    according to what their counsel represented to us at oral argument, the complaint
    they filed and the injunction they obtained determines only that Proposition 8 may
    not be enforced in two of California’s fifty-eight counties
    .

  • 63. Lesbians Love Boies  |  January 5, 2011 at 3:09 am

    Then that would work both ways MIchael – same-sex marriage would then be enforceable in all of the counties that voted AGAINST proposition 8.

    But we all know it when the district court rendered their judgement, it was despositive – making prop 8 unenforceable throughout CA – even if no one has standing for appeal.

  • 64. Ronnie  |  January 5, 2011 at 3:10 am

    Yes I have…are you are lawyer, Mr. Realtor ?…..Why do you think your ignorant, benighted opinion is higher then actual legal professionals?….oh wait, I forgot….you homophobic bigots think you are always right & everybody who doesn't bow down to you…I mean your Fascist beliefs are wrong…..

    Sorry Ejercito…but I will take the word & opinion of someone who has an education in law over a realtor who pretends to be a lawyer….

    Why don't you go back to school & take a real civics course & actually comprehend that the Constitution applies to ALL not just some (the later being what your delusional side hilariously loves to believe)….you spin me right round baby right round like a record baby right round round round…round…round…..GO AWAY FRAUD!!!

    I will repeat myself as was stated yesterday by actual legal professionals & has been said to you on several occasions….This has already been covered several times ….the ruling applies to the ENTIRE state & ALL California citizens….move on…get over it….you benighted, masochistic lemming ….

    : I ….Ronnie

  • 65. Lawrence  |  January 5, 2011 at 10:06 am

    The embedded version here stopped for me after 5mins. The full version with the inresting Q&A is on the AFER site at http://www.afer.org/media/videos/explanation-of-9

  • 66. Lawrence  |  January 5, 2011 at 10:17 am

    This fun question about "only two counties?" keeps popping up – and the Teds hammered at it multiple times that it's all nonsense; of course enjoining the Governor and the AG and all who they direct will cover the entire state!

    What they cannot say is why the issue appeared in the first place (which they blamed on some confusion in the oral discussion) – which is that Reinhardt is annoyed that these "smart lawyers" have not made this easy for him to blow through the standing issue by having this a class action or against every official in the state :). We don't need to do that says Ted. My reading of Reinhardt's concurrence is that he hates procedural obstacles to ruling on the law and is creating this fuss and smoke to make his point. But clearly Ted could never say it this way!

  • 67. Dave A  |  January 5, 2011 at 11:21 am

    "Similarly, under California law, the proponents of an initiative may possess a particularized interest in defending the constitutionality of their initiative upon its enactment; the Constitution’s purpose in reserving the initiative power to the People would appear to be ill-served by allowing elected officials to nullify either proponents’ efforts to “propose statutes and amendments to the Constitution” or the People’s right “to adopt or reject” such propositions."

    My question is this, in regards to this passage as to why this question needs to be addressed. Didn't the California Supreme Court decide already that The Governor and AG are NOT required by state law to Appeal? And therefore the CASC has ALREADY decided this issue, and that the unintended veto possibility IS IN FACT California law. The other question that follows, in my mind, is whether the 9th Circuit Court has jurisdiction over this issue, especially considering the fact that the issue has not been addressed in the proceedings up to this point?

    Not a legal mind here, but a logical one. It seems to me that the Court has really no reason to address this, especially since the CASC has ALREADY decided the issue, and that issue is not really before the court. Isnt THIS a case of Judicial Activism?

  • 68. Dave A  |  January 5, 2011 at 11:21 am

    subscribing under CORRECT e-mail! :)

  • 69. Lawrence  |  January 5, 2011 at 12:08 pm

    [NAL] The question the 9th is asking is not clearly decided – which is whether there is any basis for someone else stepping in and having interests in the event that gov/AG don't defend a proposition, even if gov/AG are allowed to make this decision. The question is being put in the strongest possible way, which is to ask how does this squa with no vetos and the supposed primacy of our bizarre proposition process? The 9th recognizes this is a CASC questions, and is also being very cautious because of previous US supremes comments to them about essentially this question in Arizonans case.

    The 9th has to address this in some way because they have to establish whether the proponents have "standing" which is a core question before this can be before the court, and this question is not activism – it's the rules from many precidents.

  • 70. Dave A  |  January 5, 2011 at 12:58 pm

    I understand the standing issue. What I dont understand is the relavance of the unintended veto discussion. If they wanted to simply know what CASC's take on standing is, they would have asked that without the other discussion. therefore they must think the unintended veto issue is somehow relavant, and that is what I am suggesting has already been decided.

  • 71. Elizabeth Oakes  |  January 5, 2011 at 1:33 pm

    @Dave, I think this is a unique legal situation and the Ninth wants clarification, because there has never been a clear ruling concerning these specific circumstances.

    The Gov. and AG can choose not to defend ANY type of lawsuit pressed/appealed by any party, but in the instance of a proposition passed by voters–which, under State law, the legislative branch is not supposed to touch–does that constructively make a refusal to defend the proposition unlawful legislative interference with the proposition (a "veto")?

    The fact that it's a voter initiative at stake may cast a different light on the Gov/AG's actions, and State refusal to defend under these particular circumstances has never been directly ruled upon. The Ninth is asking CASC to make a determination: is refusal to defend a different animal when a voter-enacted proposition is involved?

    Our CA voter initiative procedures/laws are intricate and particularized, so it's no surprise the Ninth wants CASC to grapple with it. It will be interesting to see whether they determine that rules for action/inaction by elected officials must be different when a voter-enacted proposition is in the mix. If they do, it's going to mess up a lot of stuff politically around here…and probably all over the country.

  • 72. Dave A  |  January 5, 2011 at 1:36 pm

    Thanks, I think that makes the reasoning a little clearer. But like I said before, the CASC has already decided that the gov's and AGs actions are legal. Are we to assume that the 9th circuit is questioning that? In addition, gov and AG are executive, and not legislative in nature, so it seems to me to be irrelavant

  • 73. Ann S.  |  January 5, 2011 at 1:40 pm

    Dave, I don't think the 9th is questioning whether the Gov. and AG can do what they did — that much is clearly settled by the CA SC, and in a proceeding related to this very case.

    What I think they're asking is, since the Gov. and AG have done this, can we really let this piece of legislation passed by popular initiative be, in effect, vetoed by this decision not to act by the Gov. and AG, or should we let this other party, the proponents, step in and act for them.

  • 74. Sagesse  |  January 5, 2011 at 1:52 pm

    Gov. Brown has said he would be open to considering reforms to the CA initiative process. (It was early in the campaign, in response to a question. I've forgotten the specifics.) Perhaps this mess will give him and the legislature the opportunity.

  • 75. Sagesse  |  January 5, 2011 at 1:59 pm

    And by the way, I still don't understand where the 'veto' language comes from. There was a full trial at which the proponents, who were highly motivated to defend the proposition offered a competent, vigourous defence… the content of that defence was pitiful, but that's a different story. The decision by the Gov and the AG not to appeal is not why the proposition has been ruled unconstitutional.

  • 76. Dave A  |  January 5, 2011 at 2:04 pm

    @Ann S. That is EXACTLY what the CASC decided when they said the Gov and AG dont have to defend. They said that they have the effect of vetoing the issue. That is a direct result of the decision not to force them to appeal. ANd in my opinion, that means that the Circuit is questioning THAT ruling. WHich is not the jurisdiction. If they are questioning whether Cali law allows this, they are questioning the CASC

  • 77. Ann S.  |  January 5, 2011 at 2:14 pm

    @Dave, I seem to remember that the CA SC only issued a very brief ruling declining to force the Gov. or AG to act. I don't remember them saying that it had the effect of vetoing anything.

    I don't think I'm following you, because there is no question at this point of forcing the Gov. or AG to act.

    I see the question whether the CA SC can order the Gov. or AG to defend a case in federal court to be a very different one than the question whether proponents can then step in and do it. Are you saying that since the effect of the CA SC not forcing the Gov. / AG to act is to "veto" the proposition, that asking the CA SC whether the proponents should have standing is the same as questioning the first decision? I don't see it that way. For one thing, there are all sorts of separation of powers questions implicated in the judiciary telling the executive how to execute their duties here that are not implicated in the second question.

    I'm sorry, maybe I'm just not following.

  • 78. Dave A  |  January 5, 2011 at 2:20 pm

    @Ann. My point is that the REASONING that they said in asking the question was in light of the unintended veto issue, we are are asking if there is standing here. If the Circuit was simply asking for standing, they would have asked THAT question, and not prefaced it with other remarks. So I think they are questioning the issue.

    As for the other issue, the simple fact that they did not force the AG and gov to defend, IN EFFECT, allows the unintended veto issue. whether they say it or not. An analogy is that prop 8 defended straight marriage. It did not say ANYTHING about same sex marriage. But the EFFECT is that it deniessame sex couples from marriage

  • 79. Dave A  |  January 5, 2011 at 2:23 pm

    Sorry all if I am getting too emotional over this. There is something here that just strikes me as odd. It isnt the fact that they asked a certified question. It is how the question was asked that seems somewhat fishy to me. These guys are smart and if they simply wanted to know if CASC says that they legally have standing in light of no appeal by gov and AG, they would simply have asked THAT question and not the one they did. Maybe I am making too much of it, if so, sorry.

  • 80. Ann S.  |  January 5, 2011 at 2:26 pm

    @Dave, please don't apologize for feeling strongly about this. We all feel strongly about various aspects of the overall issue.

    I think I understand what you are saying, and I still don't see it quite the same way, although I agree it is a bit troubling that they threw in that language about the "veto". In the end I hope they'll realize that it's not for a federal appellate court to fix the unholy mess that is the California initiative system.

  • 81. Kathleen  |  January 5, 2011 at 2:36 pm

    First of all, the State Supreme Court never said the Gov and AG didn't have to defend. The CA SC simply chose not to rule on the question. If you'll recall, the petition filed by PJI first went to a State Appeals Court, where it was denied without a hearing and without an accompanying opinion. PJI appealed that denial to the State Supreme Court, which simply refused to hear the appeal. That said, I'm sure if the State Supreme Court thought it should compel an appeal by the gov or AG, they would have taken up the matter. But we should be clear that this is not necessarily a settled question.

    That said, I don't think all this talk in the 9th's opinion about an effective 'veto' is apropos of much of anything. It seems to be their view that the fact that there is no gov't official willing to appeal somehow allows the gov and/or AG an opportunity to weigh in on a law, despite having no constitutional authority to do so. I respectfully disagree with that characterization.

    As has been discussed here, a 'veto' would have been if the state had refused to enforce the law (Prop 8) but that's clearly not the case. The state was enforcing the law from the day it became effective and continues to do so, in compliance with the court's stay of the injunction. It is a federal judge's determination that the law is unconstitutional that has threatened to nix it, and the gov and AG exercised their discretion in choosing not to appeal that ruling.

    We should also be clear that the question the 9th is asking is not whether the gov and AG must defend. Even Rhinehardt, in his concurrence, believes they should have that discretion. They are asking whether CA state law gives proponents some particularized interest which would allow them to act in place of the gov't when no official chooses to appeal.

    The Court seems troubled by the situation where no one is able to appeal. I see all the discussion of the so-called 'veto' as more of an expression of their frustration and slight incredulity that in the absence of the gov't officials' refusal, that there is no one else to step in to do it. They seem to believe this flies in the face of CA's apparent vesting of such a strong initiative power in the people of the state.

    Personally, I think they're simply stumped when faced with the crazy reality of California's initiative process. They're looking for logical consistency where there is none. But this last point is just my take on it; they don't actually say or suggest this perspective in their opinion. :)

  • 82. Dave A  |  January 5, 2011 at 2:42 pm

    @ kathleen. THIS is an explanation I can live with. If they didnt actually rule that the AG and Gov didnt have to defend, but just punted the question, that makes a lot of difference. THANKS!!!!! Also makes me feel beter about the question.

    I definitely get their frustration as well. But that should NOT mean that someone not entitled to standing should have it. But I am fine with them referring the question to CASC

  • 83. Kathleen  |  January 5, 2011 at 2:44 pm

    Dave, see my (probably overly) lengthy answer above. The only question they asked is the one about whether the Proponents have a particularized interest, under state law, that would give them the right to appeal. Everything else is an explanation of (1) why the question is important, (2) why they don't know the answer to it and (3) why it seems to them that someone should be allowed to appeal if the gov and ag won't.

  • 84. Dave A  |  January 5, 2011 at 2:46 pm

    not overly lengthy at all. not a bit of unimportant info there, and makes the issue clearer for me. THANKS

  • 85. Kathleen  |  January 5, 2011 at 3:10 pm

    Glad it helped.

    There are a couple of things I don't like about the opinion and this characterization of the refusal to appeal as a veto of the law is certainly one of them. So I understand how it rubs the wrong way. But I don't think it ultimately is of huge significance and it's not really part of the question they're asking the Ca SC.

  • 86. Elizabeth Oakes  |  January 5, 2011 at 4:06 pm

    But Kathleen, isn't the question framed in the light that, if the Gov/AG refuse to defend, that could constitute a particularized injury? I agree with your insight that the Ninth seems bothered by the lack of a qualified appellant, and it wants CASC to pin something down so it has a more "solid" basis for its ruling.

    I also agree that this is a niggling point and much of the confusion is due to the facepalmingly baroque and corrupt CA initiative process which (as you know) invites private interests to create state policy willy-nilly. However, just like Walker, I think the Ninth wants to clear away any ambiguities before they make a determination, and because Arizonans kept being brought up I think they want to see the question of initiative proponents' standing resolved once and for all.

  • 87. Elizabeth Oakes  |  January 5, 2011 at 4:12 pm

    And suddenly I am overwhelmed by the memory of Chief Justice Ronald George saying sadly at the end of Strauss that the CA initiative process really needs to be reformed. No kidding. I wonder if that will ever happen.

  • 88. Kathleen  |  January 5, 2011 at 4:29 pm

    Elizabeth, to some extent, yes. They've framed the question as asking the CA SC to "provide an authoritative answer as to the rights, interests, and authority under California law of the official proponents of an initiative measure to defend its validity upon its enactment in the case of a challenge to its constitutionality, where the state officials charged with that duty refuse to execute it." (emphasis mine).

    Given their inclusion of that caveat – that the state officials have refused to defend – I suppose one way of viewing the question is whether the state officials' refusal somehow gives the proponents an interest they might otherwise not have had. But, again, I think this has less to do with a belief that the state officials ought to appeal in every situation, and more to do with the courts' incredulity at the notion that the state's constitution would vest such power in the voters through initiatives and then not give them the power to defend them.

    BTW, this will only resolve the question of initiative proponents' standing for the state of California, and will not necessarily resolve the question for a case from another state.

  • 89. Sagesse  |  January 5, 2011 at 10:00 pm

    Carlos Moreno Retiring From California Supreme Court
    http://legalpad.typepad.com/my_weblog/2011/01/car

  • 90. Ann S.  |  January 6, 2011 at 4:00 am

    Moreno was the lone voice on our side in Strauss. I wonder if the schedule of this certified question will be such as to enable him to participate.

  • 91. Elizabeth Oakes  |  January 6, 2011 at 4:17 am

    This is a dumb question, I should know this–are CA Supreme Court Justices appointed? So we don't have to worry too much?

  • 92. Kathleen  |  January 6, 2011 at 4:32 am

    They're subject to retention votes, just as in Iowa.

  • 93. Elizabeth Oakes  |  January 6, 2011 at 4:36 am

    Right. Remembering Rose Byrd.

    But initially they are appointed so if Moreno is out before the certification/question is heard, Brown will plug someone else in there–hopefully someone with similar sympathies?

  • 94. Ann S.  |  January 6, 2011 at 4:47 am

    I never did figure out why the new CA Chief Justice Tani Cantil-Sakauye (Woot! Spelled it correctly before I looked it up!) had to be elected before she was sworn in, though. Is it because she's finishing out Ron George's term?

    From courtinfo.ca.gov:

    In 2010, Governor Arnold Schwarzenegger nominated her to Chief Justice of the California Supreme Court. The California State Bar Judicial Nomination Evaluation Commission rated her as exceptionally well qualified for the position, and she was again unanimously confirmed by the Commission on Judicial Appointments. On November 2, 2010, voters elected Justice Cantil Sakauye as the Chief Justice of the State of California.

  • 95. Kathleen  |  January 6, 2011 at 4:54 am

    They have to face a retention vote in the first general election following their appointment and then every 12 years. Is it possible that was just her first retention vote?

  • 96. Ann S.  |  January 6, 2011 at 4:57 am

    Kathleen, that's what I thought, but I'm not sure. I don't think she was sworn in at all (as CA SC justice, she was already on the 3rd district appellate court) before the vote. I seem to remember from my ballot that it was a retention vote, but if you look at the quote from the court website it says she was "elected" in Nov. 2010 (but I think Wikipedia said it was a "retention").

    It's not really important, I suppose, it just puzzles me.

  • 97. Kathleen  |  January 6, 2011 at 5:00 am

    This article, which Sagesse posted earlier, says we're likely to have a vacancy for a while. Maybe the Court will get to the question before he leaves (crossing fingers). http://legalpad.typepad.com/my_weblog/2011/01/car

  • 98. Ann S.  |  January 6, 2011 at 5:02 am

    I do hope they get to it before he leaves.

    And can you imagine if there's a 3-3 split?

  • 99. Kathleen  |  January 6, 2011 at 5:12 am

    Maybe we elect the Chief Justice? Horrible that I don't know this!

  • 100. Kathleen  |  January 6, 2011 at 5:16 am

    Reading this, I'm thinking it must have just been a matter of timing. Maybe because she was confirmed in August, she was subject to a retention vote in November, but didn't actually take office until George officially retired. (the Court's website does seem to refer to the retention vote as an election). http://www.courtinfo.ca.gov/courts/courtsofappeal

  • 101. Ann S.  |  January 6, 2011 at 5:24 am

    Your link seems to answer what's required for confirmation, anyway:

    If the Commission finds the nominee is qualified to serve, it confirms the nomination. Following confirmation, the person takes the oath of office and becomes an appellate or supreme court justice, as the case may be.

    An appellate or supreme court justice confirmed by the Commission must then be confirmed by voters at the next general election. Upon receiving a majority of the votes cast, the justice continues in office.

    (Bold added.)

  • 102. Ann S.  |  January 6, 2011 at 5:27 am

    The "Commission" is the Commission on Judicial Appointments, which normally consists of the Chief Justice of California, the Attorney General of California, and a senior presiding justice of the California Court of Appeal, according to that same link. A bit more info:

    Before a person can become an appellate or supreme court justice, the Governor must submit the person's name to the California State Bar's Commission on Judicial Nominees Evaluation, which is comprised of public members and lawyers who reflect the ethnic, sexual and racial diversity of the population, and must include persons of a variety of backgrounds, abilities, interests, and opinions. With community input, the Commission conducts a thorough review of the candidate's background and qualifications, and forwards an evaluation to the Governor.

    The evaluation assesses the candidate's character, reputation, common sense, knowledge, legal skills, professional experience, objectivity, ethics, ability to make difficult decisions, work ethic, temperament, and integrity.

    After receiving the Commission's evaluation and concluding the person is qualified for appointment, the Governor may nominate the person to become an appellate or supreme court justice.

    The nominee's qualifications are then reviewed by the Chief Justice of California, the Attorney General of California, and a senior presiding justice of the California Court of Appeal. Sitting as the Commission on Judicial Appointments, they conduct a public hearing. The public is invited to comment and speak at the hearing in support of or in opposition to the appointment. Letters received by the Commission in support of or in opposition to the appointment are received and considered by the Commission and are acknowledged publicly at the hearing. If the Commission finds the nominee is qualified to serve, it confirms the nomination. Following confirmation, the person takes the oath of office and becomes an appellate or supreme court justice, as the case may be.

    An appellate or supreme court justice confirmed by the Commission must then be confirmed by voters at the next general election.

  • 103. Kathleen  |  January 6, 2011 at 5:30 am

    Again, I think they're using the word "elected" to mean retained by vote. If you look at some of the other justices' bios (see eg Morena), you'll see they took office at a time that wouldn't doesn't appear to coincide with a general election. Maybe I'll get motivated and call the court to ask. :)

  • 104. Michael Ejercito  |  January 8, 2011 at 5:04 am

    But we all know it when the district court rendered their judgement, it was despositive – making prop 8 unenforceable throughout CA – even if no one has standing for appeal.

    Was Judge Reinhardt wrong in claiming in his concurrence that the plaintiff-appellees "represented to [the Ninth Circuit] at oral argument, the complaint
    they filed and the injunction they obtained determines only that Proposition 8 may
    not be enforced in two of California’s fifty-eight counties"?

  • 105. Kathleen  |  January 8, 2011 at 5:08 am

    While the injunction is only against two of the state's County Clerks, it's also against the Governor and AG (state officers). It is the state that governs marriage law and policy. So while the injunction may not be against the clerk of another county, it is clear that the impact of the injunction will be statewide.

  • 106. Ronnie  |  January 8, 2011 at 5:09 am

    Obviously you are moron, Ejercito

    I will repeat myself

    Are you are lawyer, Mr. Realtor ?…..Why do you think your ignorant, benighted opinion is higher then actual legal professionals?….oh wait, I forgot….you homophobic bigots think you are always right & everybody who doesn’t bow down to you…I mean your Fascist beliefs are wrong…..
    Sorry Ejercito…but I will take the word & opinion of someone who has an education in law over a realtor who pretends to be a lawyer….

    This has already been covered several times ….the ruling applies to the ENTIRE state & ALL California citizens….move on…get over it….you benighted, masochistic lemming ….
    : I ….Ronnie

  • 107. Michael Ejercito  |  January 8, 2011 at 5:39 am

    Why do you think your ignorant, benighted opinion is higher then actual legal professionals?

    Is Judge Stephen Reinhardt a legal professional?

    He claimed that the plaintiffs-appellees claimed that the injunction only covers two out of California's fifty-eight counties.

    He also brought up the possibility that without standing, the ruling will apply only in two counties, or none at all.

  • 108. Ronnie  |  January 8, 2011 at 5:42 am

    I will repeat myself for the upteenth time for you, you pathetic little homophobic troll….

    Are you are lawyer, Mr. Realtor ?…..Why do you think your ignorant, benighted opinion is higher then actual legal professionals?….

    Sorry Ejercito…but I will take the word & opinion of someone who has an education in law over a realtor who pretends to be a lawyer….

    This has already been covered several times by ACTUAL LEGAL PROFESSIONALS ….the ruling applies to the ENTIRE state & ALL California citizens….move on…get over it….you benighted, masochistic lemming ….
    : I ….Ronnie

  • 109. Michael Ejercito  |  January 8, 2011 at 5:44 am

    What are their specific duties in relation to marriage laws?

    Under California state law, marriage licenses are issued by county clerks. County clerks determine if a couple is qualified under state law.

    This is why, in the Bishop case I mentioned, the Tenth Circuit dismissed the Oklahoma governor and attorney general as defendants- neither of them issued marriage licenses or enforced the qualifications of Oklahoma marriage law, and as such the plaintiffs' alleged injury (that they were denied a marriage license on the basis of sex) did not arise from the official duties of the governor and attorney general.

  • 110. Ronnie  |  January 8, 2011 at 5:47 am

    Michael Ejercito…you are not a lawyer…you have been pwnd….move on troll….get over….. : I ….Ronnie

  • 111. Kathleen  |  January 8, 2011 at 5:47 am

    I've stated the legal situation quite clearly, as have many others. I don't have the time or inclination to discuss this any more.

  • 112. Michael Ejercito  |  January 8, 2011 at 7:12 am

    Why do you think your ignorant, benighted opinion is higher then actual legal professionals?….

    Judge Reinhardt is a legal professional.

  • 113. Michael Ejercito  |  January 8, 2011 at 7:14 am

    I’ve stated the legal situation quite clearly, as have many others. I don’t have the time or inclination to discuss this any more.

    Standing requires a particularized legal interest.

    And plaintiffs have no particularlized legal interest at stake if other couples are denied marriage licenses on the basis of the sex of the partners, and therefore have no standing to challenge such denials.

  • 114. Ronnie  |  January 8, 2011 at 7:16 am

    But you are not…& professionals have already weighed in on it…you refuse to accept that…move on troll….. > I ….Ronnie

  • 115. Ronnie  |  January 8, 2011 at 7:18 am

    The Prop 8 Trial applies to the ENTIRE state & ALL citizens…..go away fraud…. > I ….Ronnie

  • 116. Michael Ejercito  |  January 8, 2011 at 7:34 am

    But you are not…& professionals have already weighed in on it…you refuse to accept that…move on troll….. > I ….Ronnie

    Judge Stephen Reinhardt weighed in on this. From his concurrence:

    Yet,
    according to what their counsel represented to us at oral argument, the complaint
    they filed and the injunction they obtained determines only that Proposition 8 may
    not be enforced in two of California’s fifty-eight counties.

    and

    by being finally decided by a trial court,
    or by default, in only two counties or in none.

  • 117. Michael Ejercito  |  January 8, 2011 at 7:37 am

    The Prop 8 Trial applies to the ENTIRE state & ALL citizens…..go away fraud…. > I ….Ronnie

    The Ninth Circuit denied Imperial County Deputy Clerk Isabel Vargas standing because she had no particularized legal interest.

    What is the particularized legal interest that plaintiffs have in due process and equal protection violations of other persons?

  • 118. Ronnie  |  January 8, 2011 at 7:40 am

    I will repeat myself for the upteenth time for you, you pathetic little homophobic troll….
    Are you are lawyer, Mr. Realtor ?…..Why do you think your ignorant, benighted opinion is higher then actual legal professionals?….
    Sorry Ejercito…but I will take the word & opinion of someone who has an education in law over a realtor who pretends to be a lawyer….
    This has already been covered several times by ACTUAL LEGAL PROFESSIONALS ….the ruling applies to the ENTIRE state & ALL California citizens….move on…get over it….you benighted, masochistic lemming ….
    : I ….Ronnie

  • 119. Ronnie  |  January 8, 2011 at 7:42 am

    Due process and equal protection applies to ALL citizens……The Prop 8 Trial applies to the ENTIRE state & ALL citizens…..go away fraud…. > I ….Ronnie

  • 120. Michael Ejercito  |  January 8, 2011 at 8:07 am

    I will repeat myself for the upteenth time for you, you pathetic little homophobic troll….
    Are you are lawyer, Mr. Realtor ?…..Why do you think your ignorant, benighted opinion is higher then actual legal professionals?….
    Sorry Ejercito…but I will take the word & opinion of someone who has an education in law over a realtor who pretends to be a lawyer….
    This has already been covered several times by ACTUAL LEGAL PROFESSIONALS ….the ruling applies to the ENTIRE state & ALL California citizens….move on…get over it….you benighted, masochistic lemming ….
    : I ….Ronnie

    In addition to Judge Reinhardt's mentioning of the possibility that the injunction will be limited to the plaintiffs and defendant, Michael C. Dorf , another legal professional, has opined on this .

    David: I tend to agree with you but some scholars have advanced decent arguments for the view that in the absence of any defense, there was no concrete case. My own view is that if there's no appellate standing, the district court judgment stands as a default against the non-defending govt defendants, but it has no application beyond the particular plaintiffs.

    Of course, this implies that same-sex couples can get married regardless of the state's laws should they find a county clerk willing to default.

  • 121. Michael Ejercito  |  January 8, 2011 at 8:08 am

    Due process and equal protection applies to ALL citizens……The Prop 8 Trial applies to the ENTIRE state & ALL citizens…..go away fraud…. > I ….Ronnie

    And if your due process rights or equal protection privileges are violated, I have no standing to sue, unless I can demonstrate a protectable legal interest.

  • 122. Ronnie  |  January 8, 2011 at 8:12 am

    You know what…we're done here…. > I …Ronnie

  • 123. Ronnie  |  January 8, 2011 at 8:14 am

    You are not worth the energy…good bye…good riddance…. > I ….Ronnie

  • 124. Michael Ejercito  |  January 8, 2011 at 11:32 am

    More news from Texas .

    Texas Attorney General Greg Abbott can't block the divorce granted in Travis County to two women who were legally married elsewhere, an appeals court ruled Friday.

    Angelique Naylor and Sabina Daly were married in Massachusetts in 2004 and then returned home to Texas. State District Judge Scott Jenkins granted the divorce in February.

    A day after the divorce was granted, Abbott filed a motion to intervene in the case, arguing that the court didn't have jurisdiction to grant the divorce because Texas has a constitutional ban on same-sex marriage. Jenkins ruled that Abbott filed his motion too late, a decision that Abbott appealed.

    In the ruling Friday, a three-judge panel of the 3rd Court of Appeals in Austin said that the state was not a party in the divorce case and that Abbott therefore lacks standing to appeal.

  • 125. Ronnie  |  January 8, 2011 at 11:36 am

    Maude…… 8 / …..Ronnie

  • 126. Richard A. Jernigan  |  January 9, 2011 at 5:47 am

    I am beginning to see why sister ejerkcito does not have much of a real estate business. If ejerkcito is this convoluted in his or her thinking about what is legal in real estate, there is nobody who is going to trust him or her to buy a house using his or her services, nor are they going to trust using this brokerage to sell their house. Actually, I don't even think ejerkcito is old enough to be areal estate agent, as the typing skills and the critical thinking skills are not even developed well enough to belong to a middle-schooler, much less an adult.

  • 127. Prop 8 Trial Tracker &raq&hellip  |  January 1, 2012 at 11:17 pm

    […] of issuing a ruling, in January the 9th Circuit panel referred (the official term is ‘certified‘) a question to the California Supreme Court as to the proponents’ standing […]

  • 128. Prop 8 Trial Tracker &raq&hellip  |  February 6, 2012 at 8:03 pm

    […] because that doesn’t show particularized injury.) The panel decided in December 2010 to put the question to the California Supreme Court, essentially asking them for an advisory opinion […]

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