Rules for oral appeal layed out for Perry

Timothy Kincaid

November 15th, 2010

These shall be the rules for the oral arguments in the appeal of Perry v. Schwarzenegger:

The Court orders that oral argument in these appeals be conducted in the following manner: The argument shall be divided into two hour-long sessions, with a brief recess in between. In the first hour, the parties shall address each appellant’s standing and any other procedural matters that may properly be raised. In the second hour, the parties shall address the constitutionality of Proposition 8.

During the first hour, the Hollingsworth defendants-intervenors-appellants (“Proponents”) shall first have 15 minutes, and the Imperial County movants-appellants shall next have 15 minutes in which to present their opening arguments regarding standing and other procedural issues. The Perry plaintiffs-appellees shall then have 30 minutes in which to respond. Any time reserved by either appellant may be used for rebuttal, but only one rebuttal argument may be made and that by either appellant.

During the second hour, the Proponents shall first have 30 minutes to present their opening argument on the merits of the constitutional question. The Perry plaintiffs-appellees shall then have 15 minutes, and the plaintiff-intervenor-appellee City and County of San Francisco shall have the next 15 minutes, in which to respond. Any time reserved by the Proponents may be used for rebuttal.

No later than November 24, 2010, the parties shall advise the Court of any objection they have to the allocation of time within each hour or of any reallocation of time within each hour that they wish to propose, by electronically filing letters with the Clerk of the Court. If any party wishes to give its full allotted time within either hour to an amicus curiae, it may request that the Court reallocate that time accordingly. Otherwise, no motions for leave to participate in oral argument by amici curiae will be entertained.

Christopher Eberz

November 15th, 2010

I’m a little confused with respect to the earlier issue of whether or not Prop 8 proponents would be allowed to defend the issue in court. Can someone help me understand how this fits with that issue?


November 16th, 2010

Christopher, under this schedule, it seems that the question of who is allowed to defend Prop. 8 will be treated during the first hour – “arguments regarding standing and other procedural issues”


November 16th, 2010

I’m a little confused about the 2 hour time limitation. Even a night school class meets for 3 hours.

How do the justices of the 9th Circuit expect to be fair to either side of the argument when they limit the hearing to such a short amount of time?


November 16th, 2010

Because it’s an appeal, not a trial.

The arguments were already made and the evidence offered in trial court.

These arguments basically boil down to convincing the appeals court why the trial court was wrong, procedurally and ideologically.


November 16th, 2010

Gov.-elect Jerry Brown pledged that he would not put the states backing in defense of Prop 8 if elected governor. Inasmuch as he did not while Atty. Gen., I expect he’ll make good on his promise. Similarly, candidate Kamala Harris said she also would not defend Prop. 8 if elected Atty. Gen. As of this writing, she’s ahead of Steve Cooley (who said he would defend Prop 8) by 30,997 votes.

Christopher Eberz

November 16th, 2010

Thanks Franck, I didn’t, and I guess I still don’t quite understand why they’re spending time arguing the merits of the issue when at the same time that they’re arguing whether or not they have the standing to argue the merits of the issue?


November 16th, 2010

December cannot come fast enough.


November 16th, 2010

And then what? Is the whole thing going to last just one day, and then the court rules?


November 17th, 2010

They will likely rule by February. I expect it to be pretty much done then, since nobody from the state will appeal the decision.


November 17th, 2010

This is actually more time than is usually allowed for oral argument on appeal (at least at the intermediate level). I clerked at the 3rd Circuit, where typically a panel hears 5 or so cases in a day, and a total of 30 minutes (15 minutes per side) is allowed for argument of each case. A total of hour on standing and an hour on the merits is enormous.

In terms of process — immediately after argument, the judges will convene, discuss the case, and then cast their preliminary votes. The judges on the winning side will then decide which of them will write the primary opinion. That judge (and his/her clerks) will spend time drafting that opinion, and it will then be circulated to the other judges for review. If there’s a judge on the losing side who wants to write a dissent, that will also add some time. After circulation of the opinions, they’ll be revised and recirculated until everyone agrees it says what it needs to say. Only then will the result be announced and the opinion(s) published.

It’s very possible that the judges will decide that none of the appellants have standing, in which case the opinions will only address that question. Only if they decide there is standing will they also address the merits of the case.


November 18th, 2010

A flagging feature for those who are clearly trolls would be nice.

As for the trial, from the perspective of the Christian anti-gay portion of the right, either justice and truth will win out or liberal activist judges will enforce their views on the populace.

Timothy Kincaid

November 18th, 2010


The Plaintiffs (our side) have requested revisions to the schedule, so there may yet be changes.

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