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Ninth Circuit wants parties in Nevada marriage case to address legal standing issues

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Ninth Circuit Court of Appeals
Ninth Circuit Court of Appeals
The Ninth Circuit Court of Appeals has notified the parties in Sevcik v. Sandoval, the challenge to Nevada’s same-sex marriage ban, that they should be prepared to answer questions regarding Article III standing in their arguments on September 8. Another defendant, Carson City Clerk Alan Glover, has told the court he won’t present arguments in the appeal.

The standing issue arises because Nevada’s attorney general changed her position on the constitutionality of Nevada’s ban after the Ninth Circuit required more stringent scrutiny of anti-gay laws. She withdrew her brief in defense of the ban, leaving only the sponsor of the ballot initiative for the ban, the Coalition for the Protection of Marriage, to make arguments in its defense. The court wants the parties to address whether the Coalition has standing in the case even though the state is no longer defending the ban.

The Ninth Circuit confronted a somewhat similar issue in the Prop 8 case. There, the state had chosen not to appeal the district court order at all, and the Ninth Circuit ruled that the ballot initiative proponents had standing to appeal it. The Supreme Court, in Hollingsworth v. Perry, disagreed.

The two cases aren’t exactly alike: in Sevcik, the same-sex couples lost in the district court, and they appealed the decision to the Ninth Circuit. Nevada defended the ban in district court and initially in the appeals court, and only withdrew its brief after the Ninth Circuit decided that heightened judicial scrutiny was required for laws that discriminate on the basis of sexual orientation.

The new order may be a signal that the appeals court isn’t sure the case can move forward. The parties are allowed to file 5-page briefs on the standing issue by August 29.

Another marriage case the court will hear on September 8, from Hawaii, may not move forward either: the state has enacted a law legalizing same-sex marriage, so the appeal may be moot.

A third case, from Idaho, doesn’t appear to have any jurisdictional issues.

Thanks to Equality Case Files for these filings


  • 1. brandall  |  August 21, 2014 at 8:02 am

    Yeah…new article = no collapsed comments. I'm glad yesterday is over.

  • 2. SeattleRobin  |  August 21, 2014 at 8:08 am

    How does something like this work? The plaintiffs obviously have standing to appeal the decision against them. If the Coalition doesn't have standing to defend, the circuit court can't just dismiss and leave the plaintiffs hanging. Can they?

  • 3. brandall  |  August 21, 2014 at 8:17 am

    I'm with you. I'm trying to read between the lines on Scottie's sentence, "The new order may be a signal that the appeals court isn’t sure the case can move forward." Reading the filings.

  • 4. Scottie Thomaston  |  August 21, 2014 at 8:27 am

    I wasn't trying to imply anything FWIW. Only saying that they might not be totally sure about standing. They have to determine standing regardless if it's an issue in any case because it's a jurisdictional matter. But they are specifically notifying the parties they'll need to be prepared to answer questions on it. So all I was trying to say is it seems like they want to make sure the parties have standing and the case can move forward.

  • 5. brandall  |  August 21, 2014 at 8:30 am

    Got it. Thank you. Every case seems to always have a unique twist and the pre/post Hollingsworth situation in this one would make the court want to gather more information.

  • 6. JayJonson  |  August 21, 2014 at 8:43 am

    If the Coalition doesn't have standing to defend, couldn't the Circuit Court simply rule in favor of the plaintiffs, much like the district court did in Oregon?

  • 7. brandall  |  August 21, 2014 at 8:44 am

    In this case filed in 2012, the plaintiffs and the defendants allowed the Coalition for the Protection of Marriage (sponsors of the constitutional ban) to intervene on behalf of the defendants. This is pre-Hollingsworth and I don't yet know why the Plaintiffs agreed to this. Then, the AG and Gov decided to not fight the case because of SmithKline (heightened scrutiny),

    At this point in time we now have a case exactly like Hollingsworth at the 9AC, but with a loss at the DC. In Hollingsworth, this was the point where the court went to the CA Supreme Court to get their ruling on standing.

    So, this request by the court is obtain knowledge of CPM's standing post-Hollingsworth.

    If the court rules they have no standing, Plaintiffs win. CPM's only option is an appeal to SCOTUS. SCOTUS should deny based on Hollingsworth standing. Plaintiff's win.

    There is no one left with standing to appeal to SCOTUS for a stay.

  • 8. StraightDave  |  August 21, 2014 at 8:46 am

    The only standing worth talking about is the CPM, and that discussion should last about 5 seconds. NV got sued so they are still a party. NV can't win the case (which they did) and then just declare "we don't want to defend anymore so let's just stop here". So I don't know what the court is up to unless it just wants to get CPM's 5 seconds on the record, citing Hollingsworth. I don't think there's any real drama here at all.

  • 9. DoctorHeimlich  |  August 21, 2014 at 9:05 am

    Even the notoriously slow Ninth Circuit shouldn't take long to write: the ban is unconstitutional (see SmithKline) and no one who wants to appeal to the Supreme Court has standing (see Hollingsworth).

  • 10. Nyx  |  August 21, 2014 at 9:06 am

    So what you are saying is there would be a quick default judgment against the state for refusing to defend the case. And, marriage would could quickly come to Nevada with no one with standing to appeal.

  • 11. brandall  |  August 21, 2014 at 9:12 am

    It would not be a default judgement. They would still need to overrule the DC's decision and state the Coalition for the Protection of Marriage does not have standing. And, there is no "quick" because the 9th is usually very slow.

  • 12. brandall  |  August 21, 2014 at 9:17 am

    Does anyone know why the Plaintiff's agreed to allow CPM to intervene back in 8/2012? Granted, it was pre-Hollingsworth. But, I would assume good attorneys would have blocked the request just on the basis of all the money/counsel CPM would bring to the table.

  • 13. Roulette00  |  August 21, 2014 at 9:26 am

    And then we come to the amusing part. CPM appeals; Ninth says no. CPM asks for emergency stay; Ninth says no. CPM demands emergency stay; SCOTUS says no. CPM asks for permission to intervene; SCOTUS says no.

  • 14. sfbob  |  August 21, 2014 at 9:43 am

    I assume that the views of the state defendants don't really matter all that much. If they agree with the plaintiffs then there won't be much of an argument in defense of the ban. However I don't know if that necessarily means anything other than that both sides agree the ban should be declared unconstitutional by the court. And since nobody else would have standing there will be no appeal of that decision.

  • 15. Eric  |  August 21, 2014 at 11:09 am

    No, the plaintiffs won't be left hanging. If the anti-gay don't have standing, then they can't continue their nonsense. The court will be presented with a plantiff and a defendant that agree on the outcome of the appeal and will write their decision accordingly.

  • 16. brandall  |  August 21, 2014 at 12:48 pm

    FL Federal District Court rules against ban. Puts gay=stay in place. This is the Tallahassee case. With the previous 4 state cases, this makes 5 FL cases all in our favor. And, I believe, this is the 23rd favorable Federal ruling in a row.

    Brenner v. Scott (Consolidated with Grimsley and Albu v. Scott)

    Just once I'd like to read: "Judge declares he will only issue a stay over his stone, cold dead body"….

  • 17. StraightDave  |  August 21, 2014 at 1:59 pm

    That's about the size of it, especially if someone is getting paid to write briefs. Might take about 2 weeks to fully play out.
    This is one case where I will bet that there is no stay anywhere along the line. Hollingsworth and the OR/PA cases are the guidelines here. There are limits, even in the current legal environment, and this is one of them.

  • 18. StraightDave  |  August 21, 2014 at 2:10 pm

    I appreciate the sentiment, but dangerous words these days. "When pigs fly" or "when Scalia votes for gay rights" would work just fine for me.
    (I am very rarely the language or PC police, but some things just feel mis-timed. Sorry, the Ferguson,MO thing is hard to shake off. When you have cops threatening to kill journalists for taking pictures….

  • 19. brooklyn11217  |  August 21, 2014 at 2:30 pm

    Note that the time of the oral argument has now changed to later in the day. See Equality Case Files on Facebook for the order.

  • 20. Sagesse  |  August 21, 2014 at 6:03 pm

    At the time, the state was defending, were they not? There would be no reason not to let CPM intervene, even if plaintiffs objected.

  • 21. DrPatrick1  |  August 21, 2014 at 8:35 pm

    The case moves forward because the appellants have standing. CPM will be allowed intervenor status. In 2027 when the 9th rules, they will do so in favor of ME, and no stays will be granted because no one with standing will appeal.

  • 22. RobW303  |  August 21, 2014 at 8:45 pm

    Don't forget CPM's request for en banc consideration of both an emergency stay and their permission to intervene. Do we have a new verb: to santai-gaffney?

  • 23. brandall  |  August 21, 2014 at 8:46 pm

    What leads you to believe CPM has standing post-Hollingsworth? I view this as a repeat of "Yes on Prop 8 committee." No standing.

  • 24. brandall  |  August 21, 2014 at 8:50 pm

    Acknowledged. I'll have to drop this colloquialism.

  • 25. Ragavendran  |  August 21, 2014 at 9:20 pm

    Wow, thanks for the heads up. I just checked my return flight and I'm still going to be able to make it, thankfully.

  • 26. brandall  |  August 21, 2014 at 9:23 pm

    What is the new time? What time do we want to meet?

  • 27. Ragavendran  |  August 21, 2014 at 9:29 pm

    Let me try to clarify what DrPatrick1 is saying. CPM was an intervenor-defendant at the district court, and at the appeals level, they are an intervenor-appellee, because the Plaintiffs appealed the adverse district court order, unlike in Hollingsworth. So Hollingsworth does not directly preclude them being allowed to defend the ban as an intervenor-appellee. (I don't know if the Ninth will dismiss them from the case for other reasons.) However, when the Ninth Circuit throws out the ban, CPM will not have standing to appeal, due to Hollingsworth. That is, they cannot be an intervenor-appellant.

  • 28. Ragavendran  |  August 21, 2014 at 11:54 pm

    Arguments are scheduled to start at 1pm. davepca is in charge of scheduling the get-together :) last i heard we were going to gather for dinner sunday night. i guess breakfast monday morning is now open too!

  • 29. RLsfba  |  August 22, 2014 at 3:58 am

    Well at least I can skip the 6:30 am bus. Davepca how do we get in touch without using up the thread count? FWIW here's my LinkedIn page.… and you should see a link to contact me probably upper right.

  • 30. Marriage Equality Round-U&hellip  |  August 22, 2014 at 6:15 am

    […] USA, Nevada: The Ninth Circuit has asked both sides in the marriage equality case to address questions of standing. full story […]

  • 31. DrPatrick1  |  August 22, 2014 at 6:34 am

    Exactly, ty

  • 32. ragefirewolf  |  August 22, 2014 at 8:02 am

    I'm with you with Robin LOL

  • 33. SeattleRobin  |  August 22, 2014 at 9:00 am

    Getting into standing issues can be like wading through a swamp and it's been quite a while since Hollingsworth, but let me toss some things out and people can correct me if I'm wrong.

    A circuit court is not entirely bound by Article III standing like SCOTUS is, so they can decide to allow parties that have no chance of making it any further. But it's inefficient to do that when the standing outcome is known. What I'm getting at here is that the 9th learned from Hollingsworth it's better to conduct a case clean of standing problems from the start.

    Hollingsworth doesn't only apply to appellants. The reasoning should apply equally to appellees. It's not which side of the case you're on that matters, only your standing to be involved at all.

    If both of those things I said are correct, then CPM's continuing inclusion in the case would be based on the largesse of the 9th, and Hollingsworth isn't being applied at all, not that Hollingsworth doesn't apply to appellees.

  • 34. SeattleRobin  |  August 22, 2014 at 9:16 am

    I think allowing them to intervene sort of falls into the courtesy realm. Basically, despite how angry or heated about things the parties might be, the lawyers themselves are expected to be polite, professional, and accommodating. So you don't fight someone intervening if they have a legitimate interest, unless the intervention would do something to harm the conduct of the case. (Like delay it unreasonably or introduce other issues not already being addressed, etc.)

    So from our perspective it looks like: how could you not try to prevent those hateful people from being involved?! From the legal perspective it looks like: this is how we do things to make sure all parties are adequately represented in our justice system, and we focus on picking the more important battles to fight.

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