Prop 8 Gets Its Day in the 9th Circuit

by: Brian Leubitz

Mon Dec 06, 2010 at 07:57:14 AM PST

I'll be covering the comments live here and at the Courage Campaign's Prop 8 Trial Tracker.  You know the basic facts here, so I won't drill down too much.  However, it is worth noting now that the hearing will be broken down into two parts, standing and Constitutionality:

In the first hour, a three-judge panel will consider if the group that put Proposition 8 on the ballot two years ago is eligible to appeal the lower court decision since its members are not responsible for enforcing the state's marriage laws.

Outgoing Governor Arnold Schwarzenegger and Attorney General Jerry Brown refused to challenge the ruling.

In the second hour, the panel will hear arguments on the constitutionality of Proposition 8. (AP)

Expect most of the fireworks to come out of that second hour, but in terms of how the case goes down, the first hour might be the more telling.  There is a strong argument that the proponents of Prop 8 have no standing to appeal the case.  Brown and Schwarzenegger chose not to appeal, and that certainly isn't going to change under Harris and Brown.  But a decision may very well be made on the question of standing, skirting the constitutionality question entirely.  While this would mean that we here in California will have marriage equality, it does not help create the national rule that many have been looking for in this case.

Note that standing would not have been a significantly different question if Cooley had won at this point, as he couldn't have interceded for another month.  While the appeal deadline has obviously come and gone, the question about whether he could have appealed beyond the 9th Circuit will remain open.  However, I suppose a Cooley victory is a mere hypothetical at this point.  

In the end this case is about one basic, core value: separate is never equal.  Yet the government under Prop. 8 violates Americans' constitutional rights by creating separate classes of people with different laws for each.  The state sanctioned discrimination leads directly to a hostile environment for children and the possibility of hate crimes.

In short, discrimination shouldn't be allowed to stand in California's constitution. My live blogs over the flip...

10:50
Boies: CA Supreme Court gave a one sentence denial as to forcing the AG to appeal, there was no rationale provided.

No clerks are technically bound by the injunction, save Alameda or LA. However, the remainder of the state, the power to execute the laws go to AG and Governor. The deputy clerks will be required to act by the AG and Governor. Clerks are ministerial, as defined by Lockyer case. They are required to act as the Governor and/or AG tells them. Thus, the deputy clerk of Imperial County should not be allowed.

Nullification Question: Does AG and Governor not defending nullify the people's decision in the form of Prop 8? Boies says no, because they have seen the district court's decision and are not bound under California law to seek further decision. The Supreme Court could have required AG action, but did not do so.

Scope of the injunction:

Boies: If the court concluded that the district court exceeded subject matter jurisdiction, but Boies is not aware of any precedent to edit the injunction. He is relying on AG to affect the injunction. The injunction goes to those who are controlled by the defendants, in this case the AG.

10:30 Robert Tyler: Attorney for Imperial County, actual client is a deputy clerk.  Their client is Ms. Vargas, a deputy clerk.  Judge Hawkins is grilling him on whether Imperial County even has the right client.

Judge Smith: "All political functions remain vested in an officer." Imperial County doesn't have authority to act without the clerk. Here, the clerk has not given power to the deputy clerk. Deputy is a mere agent, and cannot act without the clerk.

The judges are looking at whether the deputy clerk is bound as a state officer. But the bigger issue seems to be that the Imperial County intervention doesn't actually have the clerk here.

"When you are asked a question, and you don't know the answer, say so." Highlight of the day.

10:14:
Cooper: Looking at two standing issues. First, the big issue of whether the 9th Circuit, the standing issues that we've been talking about for a while now.  However, Cooper is interested in looking at the district court jurisdiction as well.

On the 9th Circuit: Cooper is looking at a New Jersey case that was decided before Arizonans for Official English.  The big question here is whether proponents of a measure have standing, and Cooper is asked as much.  His response is rather stunning:  "I don't have a case to show Article 3 standing for proponents."

Now, in Arizonans, Justice Ginsburg says that proponents do not have Article III standing, that is to say whether they have standing under the judiciary article of the Constitution.  Cooper is trying to avoid that comparison, by pointing to the prior New Jersey case (Karcher).  In Karcher, the Legislative officers were given standing.  As noted, Karcher was before Arizonans, so it must be read in context of Arizonans.

Cooper is pointing to the Strauss case in state court, where the proponents successfully defended Prop 8 in state court.  The California Supreme Court allowed proponents to defend Prop 8, but blocked other anti-equality groups from intervening, showing that proponents have special standing.