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News and commentary about the anti-gay lobbyAugust 12th, 2010
The next steps that the supporters of Proposition 8 must do convince the Ninth Circuit 3-judge panel that they have standing for an appeal and meet the requirements for a stay in the ruling.
Rick Hasen notes that this months panel may not be ideologically inclined to view their requests favorably.
That stay request will be heard by a motions panel of the Ninth Circuit, which is made up this month of Judges Leavy, Hawkins, and Thomas. Not a great draw for Prop. 8 supporters.
If unable to convince the panel, they can appeal to Justice Kennedy.
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Ryan
August 12th, 2010
I’d like to see this played out all the way. Olsen has won me over on the Kennedy question. He just seems so confident. If there’s no appeal, then gay marriage stops at California.
Jason D
August 12th, 2010
Legal Eagles, here’s my question:
At what point do we find out if ProtectMarriage.com has legal standing to file an appeal?
Is it automatic?
Clerk says “you’re not listed as a defendant, you can’t file”
Quick?
Appeal filed, 30 days and nothing from Schwarzenegger et al, and then the 9th says, “nope, no standing since you don’t have the state with you.”
Longer?
Appeal filed, date for hearing set, first order of business “you don’t have standing to file an appeal, here’s why…”
johnathan
August 12th, 2010
As someone who lives in Arizona, I damn sure hope this is appealed and the original prop 8 (overturning ruling, that is) ruling is upheld at the Ninth Circuit level — and eventually at SCOTUS.
IF it is upheld in its current state, GLBs will be permitted to marry in the states of AK, AZ, CA, HI, ID, MT NV, OR, WA, as well as Guam, and the Northern Mariana Islands.
Further, as to Jason’s question of whether ProtectMarriage has the legal standing to, in and of themselves, appeal, I don’t know. The case is not listed as Schwarzenegger et al., but the additional parties not acting in official capacity as the “State” of California are listed as “Defendants-Intervenors.”
As to what this specific status means in relation to their ability to appeal, I don’t know. Again, I would love to hear this case appealed all the way, solely to have same-sex marriage finally applicable to all states and U.S. territories.
johnathan
August 12th, 2010
Sorry for this very long post. Having said that, feel free to read:
Based on a Westlaw search, in an attempt to satisfy my curiosity (on the issue raised by Jason’s question and the question of “defendant-intervenor”), I found the following on-point citations from cases relating to intervenors. Note, however, they are Westlaw annotations, not DIRECT judicial quotations:
(1) U.S. v. Aerojet General Corp., 606 F.3d 1142
C.A.9.Cal.,2010
Under rule governing intervention as of right, the burden of showing inadequate representation is on the applicant.
(2) Perry v. Proposition 8 Official Proponents, 587 F.3d 947
C.A.9.Cal.,2009
Mere differences in litigation strategy between a party to the action and a proposed intervenor are not enough to justify intervention as a matter of right.
(3) Greene v. U.S., 996 F.2d 973
C.A.9.Wash.,1993
Rule governing intervention as of right is construed broadly in favor of applicants for intervention, and establishes four requirements: timeliness; interest relating to subject of the action; practical impairment of party’s ability to protect that interest; and inadequate representation by parties to the action.
(4) Greene v. U.S., 996 F.2d 973
C.A.9.Wash.,1993
Whether applicant for intervention as of right demonstrates sufficient interest in action is practical, threshold inquiry and no specific legal or equitable interest need be established, but movant must demonstrate significantly protectible interest, and economic stake in the outcome of the litigation, even if significant, is not enough.
(5) Reich v. Webb, 336 F.2d 153
Formerly 170Ak6
C.A.9.Cal.,1964
Intervention under rule respecting intervention of right in case of inadequate representation of interest by existing parties depends on dual showing that applicant for intervention is or may be inadequately represented and that he would or might be bound by judgment in the action.
There are SEVERAL more cases, and those which are still considered to be “good law” generally hold the same viewpoints as those above.
Dan
August 15th, 2010
@ Johnathan, it sounds like you may have some misunderstandings about the effect of a Ninth Circuit hearing.
Suppose Prop 8 proponents turn out to have standing, and the appeals court upholds Judge Walker’s decision. It’s extremely unlikely that same-sex couples would then be able to marry in Arizona and other Ninth Circuit states as an effect of the ruling, even if SCOTUS didn’t knock down the appeals court’s decision. In fact, there’s no guarantee even that marriage bans in those states would be reversed. All we know for sure is that same-sex couples would be able to marry in California – the same result as if Prop 8 proponents were found to lack standing. Anything beyond that would depend on the breadth of the appellate court’s ruling. And Judge Walker’s decision was largely specific to California.
There’s also a good chance that SCOTUS would reverse the decision. They seem to have signaled that they would in their decision that stopped the trial from being televised. In that case, the reversal likely would be as narrow as the appeals court ruling or, if that ruling were sweeping, would cover the entire country. In other words, if the appeals court permits marriage in California only, the ruling by SCOTUS would effectively disallow it. If the appeals court knocks down bans throughout the Ninth Circuit – which, again, isn’t the same as allowing marriage in those states, since they didn’t previously permit marriage – the ruling by SCOTUS would effectively reinstate those bans and would almost certainly allow other states to institute new bans.
So, while a finding of no standing would be hugely beneficial, a ruling by the appellate court, even one in our favor, wouldn’t necessarily allow any same-sex couple to marry and could end up setting us back decades.
In terms of the Westlaw results, none of them seem to apply to proponents’ standing to appeal. They all refer to the right to intervene, which proponents have already done – and lost.
I hope this lends clarity to an admittedly complex topic.
emmis
August 16th, 2010
Given Walker’s other shenanigans, you gotta wonder whether he timed the release of his decision with the make up and calendar of the 9th Circuit motions panel. Activist judges, precisely because they are not real judges but political activists hiding in robes, will resort to all kinds of tricks to get their gameplan done.
MJC
August 16th, 2010
Emmis: Dr. Goebbels himself could not have stated that better.
Timothy Kincaid
August 16th, 2010
Gotta be careful around Judge Walker; those activist Republican judges are sneaky!
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