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Prop 8: CA Supreme Court announces key hearing date

Prop 8 trial

By Adam Bink

The California Supreme Court has set for Tuesday, September 6th, at 10 AM PST, which is the first day of the Court’s fall session. The Court will hear arguments with regard to whether proponents of ballot initiatives have standing to defend their initiatives when challenged in court and the state’s public officials refuse to defend such initiatives. The good folks at National Center for Lesbian Rights tell me to expect a ruling on that issue in December or January. Of course, with this expedited hearing schedule, that could change.

In a previous announcement, the US District Court for the Northern District of California has set August 29th at 9 AM PST as the date to hear the motion to release video recordings from the first phase of the trial.

Of course, we’ll be there with bells on at both!


  • 1. MFargo  |  July 29, 2011 at 5:50 am

    What I'm concerned about is that we're going to snagged on the standing issue and never (or for a long duration at least) ever get around to the mertis of the case. If the standing issue gets referred to the SCOTUS, I hate to think how much longer we'll be waiting. On the other hand, if standing is denied by each court (the CA Supreme, the 9th and SCOTUS) that will be a great day. While I appreciate that the merits of this particular case are strong (thanks to Olson, Boies and Judge Walker), it wasn't in the cards for it to be appealed. And I find some comfort in knowing that the initiative process won't–perhaps in the future–be misused for this kind of thing.

  • 2. Donald  |  July 29, 2011 at 7:00 am

    @MFargo. The California Constitution provides that in any legal matter, the State of California can be represented by only 2 people: the Governor and the Attorney General. I don't see how any argument tops the Constitutional argument. But suppose, theoretically, that it does and it goes to the US SCt. In a case in 1999 from Arizona (with nearly identical facts) the unanimous SCt said, IN DICTA, so it's not binding, that they had "grave reservations" whether Proposition proponents had standing to represent the State when the State Officers refused to. So, I'm not afraid of it going to the US SCt. But I still don't see how it will ever get there. Hope this helps. Don

  • 3. peterplumber  |  July 29, 2011 at 7:59 am

    The way I remember the deal, from Reinhardt, et. al, is that the federal court can't hear the case if the state court rules that the proponents do not have standing to even bring the appeal. IF the state supreme court decides that the proponents do have standing, then the 9th still has to decide if the proponents have standing to bring the appeal at the federal level, THEN decide on the merits of the case.

    However, if the state supreme courts rules that proponents do not have standing, then the case is over. The stay will be lifted and I can marry the man I love…with one caveat, Plaintiffs argue that Proponents have no standing and therefore ask us [9th Court of Appeals] to simply dismiss this appeal. At oral argument, Plaintiffs contended that were we to do so, the district court decision would be binding on the named state officers and on the county clerks in two counties only, Los Angeles and Alameda, and that further litigation in the state courts would be necessary to clarify the legal status of Proposition 8 in the remaining fifty-six counties.

  • 4. peterplumber  |  July 29, 2011 at 7:59 am

    I don't know how the state court will rule, but if they do rule that proponents have standing, this will have ramifications FAR beyond this particular case for California. I hope, not just for the Prop 8 case, but for the future of California, that they rule "NO STANDING".

    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.

  • 5. MFargo  |  July 29, 2011 at 8:24 am

    I don't see how a State Supreme Court and "award" standing to individuals so they meet Article III rules at the Federal Level. And its this kind of procedural quarrel that I fear will snag the reversal of Prop 8.

  • 6. AnonyGrl  |  July 29, 2011 at 8:35 am

    My understanding of the situation is slightly different. I think that the CASC is not actually ruling on whether the Prop 8 proponents have standing to appeal in the 9th, but rather going to offer their opinion on what Californai state law says about a proposition's proponents and standing in general at the state level. That is, CASC is not making any decision about whether the case can go forward, they are merely going to give their interpretation of state law to the 9th and then the 9th decides.

    Of course, I might have it all wrong… 🙂

  • 7. peterplumber  |  July 29, 2011 at 9:24 am

    I guess we need Kathleen to decipher this for us. The text I posted in italics above is from:
    No. 10-16696
    D.C. No. 3:09-cv-02292-VRW
    Northern District of California,
    San Francisco

  • 8. jpmassar  |  July 29, 2011 at 10:10 am

    No, you have it right.

  • 9. atty79  |  July 29, 2011 at 6:39 am

    @MFargo. I agree but for different reasons. My fear is mootness. The longer this case takes to travel through the appellate process, the more likely CA voters will right the wrong of Prop 8 and vote it into oblivion. The result would give SCOTUS a perfect excuse to avoid the merits of the case and simply say that the issue is moot.

  • 10. MFargo  |  July 29, 2011 at 7:44 am

    Don, I think we agree. You just said it better. It's the delay over a point that I've said (ad nauseum) seems decided. Just why the 9th Circuit panel chose to throw this back to the CA Supreme Court seemed petulant to me. We know the answer, and while I agree that everyone needs their day in court, the proponents of Prop 8 knew beforehand they did not meet the standard to appeal. So why are we even wrestling with the question? I suppose it could lead to some change in the Federal Appellate rules, but that seems extremely remote.

  • 11. Donald  |  July 29, 2011 at 11:52 am

    @MFargo: The problem is that the Feds can't interpret state law; they can only interpret federal law. So if a question of state law comes up and the issue has never been decided in the state courts before, then the Feds have to ask the highest appellate state court just what the state law is. Then the Feds will decide if it meets Fed constitutional standards or not. I hope this helps.

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  • 13. DaveP  |  July 29, 2011 at 10:35 am

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  • 14. Ronnie  |  July 29, 2011 at 8:30 am

    SLDN Releases Guide for LGBT Service Members, Veterans, Recruits, and Their Families:

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  • 15. atty79  |  July 29, 2011 at 8:58 am

    This whole mess wouldn't exist if our Constitution was actually followed. Article 4, Clause 1, requires the United States to guarantee a republican form of government in every state. The founding fathers feared direct democracy, so it's safe to say that "republican form" did not entail direct vote by the populace. Initiative procedures are inherently at odds with Article 4. Were proponents of voter-approved initiatives to have standing, it would further erode the purpose of this article.

    In the past, SCOTUS has left it to Congress to "guarantee" that a state has a republican form of government. However, if an appellate court, particularly SCOTUS, accepts the standing of these proponents, even if that standing was dictated by the state, then it would be just as responsible for ignoring Article 4 as Congress has been.

    To describe this by way of analogy, let's say that Utah decides to make the head of the Mormon church its constitutional monarch. (This of course merely places a title to the reality but that's another issue!)

    Let's even say that Congress accepts the representatives and the senators, who were popularly elected by that state. By accepting them, Congress implicitly certifies the Article 4 "guarantee."

    Let's finally say that a citizen sues Utah in federal court for some civil rights violation, and the monarch, who initiated and championed the fight to put this law on the books, appeals a decision not in his favor. Utah, of course, gives the monarch standing for this kind of appeal.

    If the federal appeals court accepts this monarch's standing, it will be working under the assumption that the form of government which allows the monarch to exist is a valid republican form of government under Article 4. It would be in effect saying that the procedure to create the law and the procedure to defend it (through the monarch) are valid results of a republican form of government.

    The correct response of the federal court would be that the monarch does not have standing because his position, which provides him standing, is repugnant to the Article 4 guarantee.

    Taking us back from this analogy, the same should be said for proponents of Prop 8. Regardless of Congress's acquiescence to states with direct democratic legislation (constitutional or otherwise), the federal court has a duty to ignore a state's determination of standing in cases where the standing arises from an unrepublican principle. It's with that that the 9th Circuit should have never let the CA Supremes determine standing under state law.

    Voter initiatives are inherently unrepublican (at least how the founders would've envisioned it). Proponents of those initiatives should be given no more weight than the initiatives themselves. None.

  • 16. Steve  |  July 29, 2011 at 9:27 am

    At that very least it shouldn't be possible to change a constitution with a simple plurality vote. Maybe a 2/3 vote and even that is questionable, for the reasons you outlined.

    CA's system is fucked up and they screwed themselves majorly with the property tax cap already

  • 17. DaveP  |  July 29, 2011 at 10:40 am

    …. or, at the very least, there should be a review process in place to determine the constitutionality of a proposed change to the state constitution BEFORE the proposition gets anywhere near being placed on the ballot! That way, things that should be obvious (like the fact that it is not constitutional to subject issues of equal rights for MINORITIES to MAJORITY vote) can prevent huge wastes of time and money, not to mention the trampling of peoples' rights for several years while we work to undo the mistake.

  • 18. Seth from Maryland  |  July 29, 2011 at 9:04 am

    in my opinion , i think the CASC is not going have a ruling , but offer advice to as to what the 9th circuit may rule,and i think its very likely they will rule they dont have standing

  • 19. Lora  |  July 29, 2011 at 9:15 am

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  • 20. Donald  |  July 29, 2011 at 9:32 am

    The best discussion of this is in the Amicus Brief filed by the San Francisco Attorney's Office. The case number is S189476. In addition, California courts have a rule which requires ALL courts to issue a ruling within 90 days of oral argument. Of course, the Supreme Court can always grant itself an extension. After reading the Amicus Brief, I'm sure that you will be as convinced as I am that the Prop 8 proponents do not have standing.

  • 21. Donald  |  July 29, 2011 at 10:43 am

    The amicus brief can be found at:

    It's an excellent discussion of the Constitutional issues of who can represent Cal when the gov and AG refuse to.

  • 22. Alan_Eckert  |  July 29, 2011 at 9:40 am

    I'll try to get off that day, but I'm not sure if I can. We are in full swing at work.

  • 23. Steven  |  July 29, 2011 at 10:02 am

    Will some of media ask the court if they can broadcast the hearing?

  • 24. Donald  |  July 29, 2011 at 10:30 am

    A lot of the California Court and Legislative stuff is carried at:
    They have carried Cal Supreme Court oral arguments before, so I'd guess that they will carry this. And for those of you who live in California, Calchannel is carried on your local cable TV stations.

  • 25. Alan_Eckert  |  July 29, 2011 at 10:54 am

    I watched the oral portion of the Prop 8 challenge to the CSC on a Jumbotron in Civic Center. I don't see why they wouldn't have this aired somewhere.

  • 26. Straight Dave  |  July 29, 2011 at 6:05 pm

    If you're referring to Strauss v Horton, I watched it on the web and I'm in MA. Pretty sure it was via They don't have the Sept schedule up yet.

  • 27. nightshayde  |  July 29, 2011 at 10:19 am

    COMPLETELY nit-picky little thing … but those times should be PDT rather than PST. Daylight Saving time doesn't end until 2am the first Sunday in November.

    (sorry – it's a pet peeve of mine)

  • 28. Bill S.  |  July 29, 2011 at 1:50 pm

    OMG I'm not the only one!! 😛

  • 29. Chris in Lathrop  |  July 29, 2011 at 2:02 pm

    I'm all for a ballot initiative to stop observing DST. Anybody with me? 😀

  • 30. Bill S.  |  July 29, 2011 at 3:01 pm

    Absolutely not! Otherwise the extra daylight accumulates mostly in the morning. DST shifts the day forward an hour so most of this light goes to the evening. (The sun will start rising at 5:00AM, so when you "spring forward" it now rises at 6:00AM and it'll stay lighter later.)

  • 31. Chrys  |  July 29, 2011 at 5:17 pm

    Yeah, but that sure doesn't help when you "fall back".

  • 32. Bill S.  |  July 30, 2011 at 7:53 am

    The reverse is true: if you don't fall back, the sun will rise later until eventually it won't start rising until 7 or 8 in the morning. Students will be starting school in the pitch black.

    Daylight "Saving" Time is really more like Daylight "Shifting" Time: we get extra sunlight in the summer but it doesn't fall where it is most convenient, so we shift the clock around so the extra sunlight comes when it is most convenient for most people. When we lose that extra light, we need to shift the extra darkness back to where it'll be most convenient.

  • 33. Chris in Lathrop  |  July 29, 2011 at 5:29 pm

    It also stays hot later that way. And some of us end up going to bed before the sun goes down in summer. Early shift sucks like that! 😉

  • 34. Straight Dave  |  July 29, 2011 at 6:11 pm

    I agree. It does have some value, but it should remain on throughout the year. That's what we did during WWII to save more energy. That may not have as much value in the winter, but the consistency is worth something. Biggest problem is that it really screws with int'l airline schedules and airport traffic planning if all countries aren't approximately in sync in this.

  • 35. Nyx  |  July 29, 2011 at 11:35 am

    New Poll released.

    Washington Post-ABC News Poll: Americans split 50 to 46 percent over whether New York's new marriage equality law is a positive or negative outcome.


  • 36. Jon  |  July 29, 2011 at 11:43 am

    With all due respect for instant-results (which is none) this is way too soon. Means nothing. Ignore it. Laugh at it. Come back in a year. Ask then.

  • 37. Donald  |  July 29, 2011 at 12:14 pm

    The other Prop 8 hearing is on Aug 29 at 9AM before Judge Ware who was appointed Chief Judge after Judge Vaughn retired. It concerns whether or not the Prop 8 trial videos will be released to the public. Judge Ware was appointed to the bench by Bush I, and then was appointed to the 9th Circuit Court of Appeals by Pres. Clinton. When Judge Vaughn retired, Judge Ware was appointed to be Chief Judge. When Judge Vaughn retired, there was a "going away" party, and it was there that Judge Ware handed over all of Judge Vaughn's personal papers to him (which included the Prop 8 video tapes). If the video tapes are released, does anyone have standing (a "particularized" injury) to appeal? And if they are released, what effect, if any, will that have on the Prop 8 oral arguments before the Cal SCT on Sept 6? Any thoughts, anyone?

  • 38. AnonyGrl  |  July 29, 2011 at 1:04 pm

    It seems as though the Prop 8 proponents are still concerned for the safety of their witnesses… which ones, I am not sure, because the ones who were scared did not testify at all (insert eye roll here).

    I can only guess that the Proponents might also try to argue that releasing the tapes will somehow prejudice their case… although I would think that their case is prejudiced enough already. But the simple answer there is that the tapes are already available to the 9th and eventually to the US Supreme Court to review, I believe, so releasing them to the public should have no bearing.

  • 39. LCH  |  July 29, 2011 at 12:19 pm


  • 40. Steven  |  July 29, 2011 at 2:21 pm

    I want to point something out that NCLR got some incorrect info. We will have a decision by CA Supreme Court by December 1st in this case. They have a 90 days to make a decision………….

  • 41. Bill S.  |  July 29, 2011 at 3:04 pm

    I really hope it's sooner. I imagine they are sick to death of this issue and can't wait to move beyond it, so I hope they don't drag it out any longer than is necessary.

    I really doubt they will be granted standing. And once the District Court ruling stays as-is, there will then be the issue of how far it applies.

  • 42. Carpool_Cookie  |  July 29, 2011 at 3:06 pm

    "Prop 8: CA Supreme Court announces key hearing date"

    Well, that took long enough!

    When the rich villains in movies hiss, "You don't want to pursue this…I will BURY you in lawsuits!" this is what they mean.

    But I am glad we're moving forward in the system : )

  • 43. india tours  |  January 18, 2012 at 2:02 am

    I understand the point would be to show how ridiculous the laws are, but to actually use marriage to make that kind of point would make our oppositions point in a much grander way.

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