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News and commentary about the anti-gay lobbyAugust 17th, 2010
I love BTB readers. One sharp-eyed commenter explains the importance of this line in yesterday’s order from the Ninth Circuit Court of Appeals:
The court sua sponte orders that this appeal be expedited pursuant to Federal Rule of Appellate Procedure 2. The provisions of Ninth Circuit Rule 31-2.2(a) (pertaining to grants of time extensions) shall not apply to this appeal.
Our commenter writes:
Sua sponte! The court wrote it was taking this case “sua sponte” – on its own initiative – since, as it states, Prop8 backers clearly have no standing to make this appeal.
More specifically it seems to me, the court decided to expedite the case on its own initiative. But this may hint at the extent to which the court is suspicious about the Alliance Defense Fund’s standing to continue to defend Prop 8. The court also specifically order them “to include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing.”
The court went on to demand that ADF address Arizonans For Official English v. Arizona, the 1997 case in which the U.S. Supreme Court unanimously slapped down the Ninth Circuit Court for violating Article III of the U.S. Constitution after an Arizona PAC stepped in to defend a constitutional amendment that had been passed as part of a ballot initiative but declared unconstitutional in Federal District Court.
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MJC
August 17th, 2010
Great obervation. Perhaps many readers did what I did and blew past ‘sua sponte’ (although I had a passing thought it must have meant ‘spontaneously’–four years of hs Latin!). But this renders the points of some pundits, particularly Jeffrey Toobin on CNN last night, as being way off base.
Jeff
August 17th, 2010
Jim, your reading is the correct one. All the Court was saying was that it had decided to expedite (i.e., make faster) the appeals process without waiting for one of the parties to ask the Court to do so. (Ordinarily, a court does not expedite an appeal unless the parties ask, but a court may “sua sponte” — of its own volition — make the decision to expedite if it so chooses, for example, if the case involves time-sensitive questions of public importance.) So the fact that the Court decided “sua sponte” to accelerate the briefing schedule does NOT reflect, in itself, any skepticism about the standing of the would-be appellants. That skepticism is, of course, hinted at by the last line of the Order directing the appellants to explain the basis for standing in their moving brief. You should expect, however, that the Court will take full briefing on the issue before deciding the standing question.
Timothy Kincaid
August 17th, 2010
Well… if I understand sua sponte (and I make no claim to special understanding), this term usually applies to actions taken without a motion or request. In other words, it is the court acting on its own.
We know that Ted Olson requested that the appeal be expedited, so I am a bit skeptical that it was the expediting that is sua sponte.
I think I’m going with the reader who sees the entire appeal as being initiated without any of the parties requesting it. This does suggest that this court – at this point – does not consider the Proponents to be parties to the case.
Paul
August 17th, 2010
Jeff, your comment is incorrect. In their motion for denial of they stay The Plaintiffs requested that the case be expedited if the court chose to issue a stay. The court is not acting on it’s own in issuance of the expedited schedule.
Jon
August 17th, 2010
I think there’s argument over whether a court acting on the suggestion of a party and not on the explicit motio of a party is or is not acting sua sponte. But I disagree that ordering the appeal to be expedited does not indicate at least some skepticism on the court’s part about the appellants’ standing, or the validity of their entire appeal. A court expedites the schedule for an appeal when it believes the needs of justice outweigh the burden on the parties and the court of the expedited process. If the court were strongly leaning towards granting the appellants’ appeal and overturning Walker’s judgment, the interests of justice would not require a speedy decision, since doing so only maintains the status quo. I think that expediting the case indicates that this motions panel thinks there is at least a significant chance the appeal will be denied; if that’s the case, it is in the interests of justice to speed up the appeal, since that reduces the amount of time the judgment is not being enforced.
Jake
August 17th, 2010
My take on this is that it is has decided to hear whether or not ADF has standing to appeal sua sponte. Otherwise how can you ask someone to defend their desire to appeal as interveners if they have no stand to do so?
I honestly hope it means the 9th Circuit is taking the whole case sua sponte and avoiding the standing issue altogether.
Think of it! Marriage equality in Alaska, Montana, Idaho, Washington, Oregon, California, Nevada, Arizona, Hawaii, Guam, and other pacific territories.
The only downside is that somehow Utah isn’t in the 9th circuit. What great Karmic justice that would have been! I guess I’ll settle on them being completely surrounded (once we get CO on our side)
Jon
August 17th, 2010
Once the question of standing has been raised, it must be addressed — if the Prop. 8 proponents don’t have standing, then there is no appeal and the 9th Circuit has no power to say or do anything on the case. The court can’t ignore the question. (Similarly, every federal trial court decision and appeal of a trial court decision should include at least a brief discussion of the facts that give the federal courts jurisdiction over the case, because if there is no jurisdiction the court has no power to do or say anything in connection with the case.)
Jon
August 17th, 2010
Actually, to be really accurate, I should note that a court doesn’t have to address standing if it has some other similar foundational reason to dismiss the case, such as determining that the controvery is moot or that the court lacked jurisdiction in the first place. But it can’t reach the merits of the case without deciding standing first.
Chris McCoy
August 17th, 2010
Jake said:
The Supreme Court, in Arizonans for Official English v. Arizona in 1997, specifically rebuked the 9th Circuit for doing just that.
So the issue of standing cannot be avoided. Therefore, “sua sponte” must refer to another aspect of the appeal.
The 9th Circuit wrote:
Grammatically, the use of “sua sponte” refers to the expedition.
On a side note, since the 9th Circuit is a multi-judge court, correct usage is “Nostra sponte.” “Sua sponte” is singular, and would be used by a single-judge court.
Brian
August 17th, 2010
Okay, folks, we are really over-thinking things here. The Ninth Circuit said it was “sua sponte” expediting the appeal. It didn’t say it was sua sponte taking on the appeal -the appeal already exists, because a notice of appeal was filed, and a briefing schedule was already in place. (And courts don’t “sua sponte” take up cases.)
Circuit Rule 27-12 sets forth a specific procedure for filing a motion to expedite. No such motion was filed, even though a request for expediting was suggested in Olson and Boies’s brief. In the absence of a formal motion, the decision to expedite was in fact sua (or nostra) sponte.
One other possibility that appeals to the cynic in me is that the Ninth Circuit prepared its order before it even received the opposition papers. Given the very limited amount of time (and page numbers) allotted to Plaintiffs to oppose the stay, the fact that the order came out within a few hours of the reply being filed, and the lack of any analysis (or citation to any law) in the brief order, it is possible that the result was always pre-ordained. In the case, the panel could have not even read Plaintiffs’ brief or noticed the request to expedite, and really thought that expediting was its own idea. I hope that’s not what happened, but it can’t be ruled out.
What can be ruled out is any idea that the Ninth Circuit “sua sponte” accepted an appeal that was already pending.
Jon
August 18th, 2010
I do think the order to the Prop 8 proponents to address the standing issue in their opening brief was also sua sponte. The question of standing was not raised in the trial court or addressed in the trial court decision. In the normal course, the appellants would have filed a bried addressing the merits of the decision, and the appellees would have raised standing in their response. Which would leave the appellants only a few pages and fewer days to respond to that argument in their reply brief. By ordering them to address the issue in the opening brief, the court is instructing them to step outside the normal course of dealing so that the issue can be fully addressed by both parties.
(Also, a court is a singular entity regardless of how many judges sit on it. It’s always “sua sponte.”)
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