Prop 8: Proponents May Lack Standing to Appeal

Brought over from DailyKos. <http://www.dailykos.com/storyonly/2010/8/7/890986/-Prop-8:-Proponents-May-Lack-Standing-to-Appeal>

Last up on the docket yesterday in Perry v. Schwarzenegger is the Plaintiffs' and Plaintiff-Intervenor's Joint Opposition to Defendant-Intervenors' Motion For A Stay Pending Appeal (the "Opposition"). The Opposition, written by Olson and Boies and joined by the City and County of San Francisco, vociferously argues against a stay and forcefully addresses the four justifications that should be met in order for Judge Walker to consider granting a stay:

..."(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies."

(snip)

2. There Is A Significant Question As To Whether Proponents Even Have Standing To Invoke The Jurisdiction Of The Court Of Appeals

To invoke the jurisdiction of the court of appeals, an appellant must meet all of the requirements for Article III standing. See Arizonans for Official English v. Arizona, 520 U.S. 43, 64-65 (1997). Where private persons have intervened in a lawsuit to defend a state law, and the trial court has ruled for the plaintiff, intervenors cannot by themselves prolong the litigation through an appeal unless the intervenors independently establish their Article III standing. See Diamond v. Charles, 476 U.S. 54, 68-71 (1986).

At this point in time, none of the originally named defendants has noticed an appeal. Under Diamond, Proponents cannot carry that appeal unless they satisfy the requirements of Article III.

It is doubtful that ballot initiative supporters such as Proponents could meet that standard. Proponents might point to Yniguez v. Arizona where the Ninth Circuit invoked the "legislator standing" doctrine to hold that the ballot proposition proponents met Article III standing requirements. But the Supreme Court unanimously vacated that decision and there expressed "grave doubts whether have standing under Article III to pursue appellate review." As the Supreme Court recognized, ballot proposition proponents are not materially different from citizens dissatisfied with a government's failure to enforce a generally applicable law; they lack the concrete injury particularized to themselves and not shared generally by the public necessary to invoke the jurisdiction of the federal court. And Proponents cannot rightly claim to qualify for "legislator standing" because no provision of California law authorizes initiative sponsors "to represent the State's interests."

In the absence of any showing by Proponents that this Court's ruling injures them in a concrete and particularized manner - a manner that distinguishes them from other supporters - there is a possibility that Proponents' appeal ultimately may be dismissed for lack of standing. As Proponents themselves have recognized, "because the standing of Defendant-Intervenors to appeal from a ruling holding Proposition 8 unconstitutional has been called into question (see Doc # 148 at 15), the very real possibility exists that none of the current parties to this case would be both willing and able to appeal such a ruling by this Court (or to seek Supreme Court review of such a ruling by the Court of Appeals)." Doc # 331 at 3. This, too, demonstrates that Proponents cannot show a strong likelihood of success on appeal.

(More)

<http://www.dailykos.com/storyonly/2010/8/7/890986/-Prop-8:-Proponents-May-Lack-Standing-to-Appeal>

(tho I do understand that Boies and Olson would like to take this one all the way up.)

From this, it seems there is a very valid question as to whether those wanting to appeal Judge Walker's decision have standing to do so. If not, then Judge Walker's ruling is final, it seems, and therefore no case to go before the USSC.

I am still working my way through the comments to see if I can glean more but just wanted to say thanks for posting this, it is much appreciated!

Recommended.

Edited to add this comment from KOs which I found very helpful:

"Flow chart of the effect of this case IANAL, but this is basically how this case could progress:

If the Ninth Circuit does not rule in the case, or rejects it without a hearing for lack of standing: Walker's decision about US law applies in California.

If the Ninth Circuit overrules Walker: we are back to the status quo before Walker's decision, in which Prop 8 would be in effect in California.

If the Ninth Circuit upholds Walker: a precedent will have been created in a US circuit court saying that such laws violate the US Constitution. That decision would apply to the entire Ninth Circuit.

If another circuit court reaches the same conclusion in a similar case: a precedent will have been created that would be cited by other circuits as law, unless or until the Supreme Court decided to take up the case. Likely, however, The Supreme Court wouldn't do so, unless...

If another circuit court reaches a contradictory conclusion in a similar case: the Supreme Court would almost certainly step in to clarify what the US Constitution requires.

A Supreme Court decision would then explicitly define the meaning of the federal constitutional on this question throughout the nation. But it would have no effect on state laws or court cases decided based on the requirements of state constitutions — the Supreme Court has no jurisdiction over, for example, the Iowa Supreme Court's ruling, which was determined entirely on the state constitution.

In all of this, the state efforts toward marriage equality will continue, regardless of what happens in federal jurisprudence, as will legislative efforts at the federal level. That will be a longer-term prospect if we are forced to go there, but remedies achieved through legislative acts (e.g. Civil Rights Act of 1964) are nearly always more long-standing, substantive and efficacious than those gained through court decisions (Brown vs. Board of Ed).

by Big River Bandido on Sat Aug 07, 2010 at 01:47:09 PM PDT"

fundies will stop sending their kids to Dumb Fuck University to get their law degrees.

I hope not but maybe when they face defeat after defeat that they will realize that Oral Roberts Law School are on the fast track of becoming experts in legal malpractice lawsuits, from the wrong side of the table.

I'll ask you to retract that slur on Ol' DFU.

The football team.
dc

It probably never occurred to them that it was unconstitutional and that there would be a backlash against it. God was on their side and that's all they needed.

(in vacating the 9th circuit standing decision) may have barred themselves from hearing this case. Oh, the irony.

last December.

http://www.scribd.com/doc/35379256/Doc-711

Not sure what their chances are as a governmental entity at this point. Seems to me they could or should have filed an interlocutory appeal.

Maybe someone with more experience with federal practice can shed some light on the issue.

decision. He denied them.

Are they appealing that ruling? I cannot load scribd on the device I'm currently on. Look on the first page and it should tell you what it is.

Could Judge Walker's decision then be used to overturn DoMA?

If the state law is unconstitutional and the State's constitution has some of the same wording as the Federal, reason says DoMA could fall too.

Here is an opinion piece that appeared in the SF Chronicle today. This fellow is one of the legal eagles from the Pro Prop 8 crowd. Note the careful couching of the decision as bigoted and anti-Obama and relies on the same tired old moral outrage, based on stereotypical and legally erroneous notions about our constitution:


Prop. 8 judge makes strange charge
Nelson Lund

Sunday, August 8, 2010


"A federal judge in San Francisco ruled Wednesday that President Obama is a bigot. And not just the president. Joe Biden as well, and Hillary Rodham Clinton and Sandra Day O'Connor. And maybe you, too...

...This was a strange ruling. The U.S. Supreme Court decided in 1971 that an identical challenge to the traditional definition of marriage was meritless. Nor has the Supreme Court ever suggested that its 1971 decision was wrong. Wednesday's ruling relied primarily on a constitutional doctrine that forbids laws having no conceivable rational purpose or no purpose except to oppress a politically unpopular minority group. After a lengthy trial, the judge found that the people of California must have adopted the traditional definition of marriage because of moral or religious contempt for homosexuals and their relationships...

...Without marriage, men often would be uncertain about paternity or indifferent to it. If left unchecked, many men would have little incentive to invest in the rearing of their offspring, and the ensuing irresponsibility would have made the development of civilization impossible.

The fundamental purpose of marriage is to encourage biological parents, especially fathers, to take responsibility for their children. Because this institution responds to a phenomenon uniquely created by heterosexual intercourse, the meaning of marriage has always been inseparable from the problem it addresses.

Homosexual relationships (and lots of others as well), have nothing to do with the purpose of marriage, which is why marriage does not extend to them. Constitutional doctrine requires only one conceivable rational reason for a law, and the traditional definition of marriage easily meets that test..."

Nelson Lund is a professor at George Mason University School of Law in Arlington, Va. He has assisted in the representation of proponents of Proposition 8 in the case Perry vs. Schwarzenegger. To comment, contact us via our online form at sfgate.com/chronicle

http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2010/08/07/INEO1EOV73.DTL


There is more to this article, but I cannot stomach it well enough to either read it or post it. The reader comments are cogent though:


"I'll be sure to note that my highly successful, enduring, childless-by-choice marriage is irrelevant, according to this author. Good grief."


"In order for any judges to support prop 8 , they
would have to become constitutional subversives
akin to the supporters of prop 8 itself.

It's no coincidence that in the 4543 words of the
constitution , the term "God" is not mentioned
even a single time.

As a matter of constitutional law and despite
revisionist history , America is NOT a Christian nation.
but rather belongs to all it's citizens.
Many of the founders and framers of the
constitution were in fact not in any way Christian, but
rather Deist which is a religious system that saw
little value in "organized religion".

Lest there be any doubt that this is NOT a Christian nation,
simply inspect article 6 of the constitution and the
related treaty of Tripoli which states it plain as day
" Art. 11. As the Government of the United
States of America is not, in any sense,
founded on the Christian religion;..."

The 1st amendment, guarantees freedom of religion, but in that freedom is also
freedom FROM religion."



"Numerous studies have shown that children raised by homosexual parents do better in life, are better adjusted individuals, and are more likely to finish college than children raised by their heterosexual parents. That statistic gives the lie to this author's claims. Further, how does the right to claim a part of your spouse's pension relate to chlidren? How does your right to retain your prop 13 taxes after your partner's death pertain to chldren? How does the right to file joint income taxes pertain to children? The fact is that legal marriage has little to do with children. Please keep your religious hatred to yourself!"



Just my dos centavos


robdogbucky