Box Turtle Bulletin

The man who will judge Judge Walker

The Proponents of Proposition 8 have filed two complaints with the Ninth Circuit Court of Appeals.

The first is that Judge Walker should not have shown a three minute clip of the trial to a class of students or allowed CSPAN to film the presentation from an angle far across the room. Consequently, they are demanding that all copies of the trial be put under lock and key, preferably never to be seen. The Plaintiffs in the case have countered by requesting that the stay on the distribution of the video images be lifted and that the public be allowed to visually experience the case.

The second motion, frankly, a blatant appeal to bigotry.

After Judge Walker retired from the bench, he let it be publicly known that he is a gay man (as has long been assumed) and that he has been in a relationship for ten years. They argue that Judge Walker could personally benefit from a positive outcome for Perry v. Schwarzenegger and, therefore, should have recused himself.

It is, indeed, a long standing assumption that “no man can be a judge in his own case and no man is permitted to try cases where he has an interest in the outcome.” It would be most improper for Judge Walker to have heard a case involving a land dispute in which he was one of the land owners.

But the premise of the Proponents’ arguments is that any gay person in a relationship – and, by extension, any gay person who might ever get in a relationship – has an “interest that could be substantially affected by the outcome of the proceeding,” is one that defines gay people as inherently biased. Their argument is that gay people are, by definition incapable of ruling on cases that impact that class of people.

The district judge who issued this judgment, retired Chief Judge Vaughn R. Walker, has now disclosed to the press on April 6, 2011, that he is gay and that he has been in a committed relationship for more than 10 years. … The published reports do not address the question whether former Chief Judge Walker and his partner have, or have had, any interest in marriage should the injunction he issued be upheld on appeal.

Given that Chief Judge Walker was in a committed, long-term, same-sex relationship throughout this case (and for many years before the case commenced), it is clear that his “impartiality might reasonably [have been] questioned” from the outset.

Look again at the above. “It is clear”, say the Proponents. But what makes this clear? The “clarity” of Judge Walker’s impartiality lies solely in Judge Walker’s sexual orientation. Their argument, at its base, is nothing other that the ‘reasoning’ that because gay people have an interest in what happens to gay people, that such matters must be determined by others who have no personal experience or personal interest in such matters.

This is a rather peculiar standard. If this were to be applied to other matters, it would preclude African American judges from issues involving matters of racial discrimination. Or, for that matter, were a dispute over the Catholic Church’s interaction with a Synagogue be taken to the level of the Supreme Court, there would be no Justices who could hear the case.

But, as cover for the ugliness of their bigotry (and I don’t use that word freely) much is made of the pretense that it isn’t Walker’s orientation that is at issue, but his relationship. In an insulting – but ironic – turn, the Plaintiffs who are seeking that every image of their presentation in court be hidden from the public now argue that Judge Walker’s personal life be subjected to the greatest level of scrutiny.

Chief Judge Walker thus had a duty to disclose not only the facts concerning his relationship, but also his marriage intentions, for the parties (and the public) were entitled to know whether his waivable conflict was actually a nonwaivable conflict mandating his disqualification. Only if Chief Judge Walker had unequivocally disavowed any interest in marrying his partner could the parties and the public be confident that he did not have a direct personal interest in the outcome of the case in violation of Section 455(b)(4). Because he did not do so when the case was assigned to him, and has not done so since, it must be presumed that he has an interest in marrying his partner and therefore was in fact the “judge in his own case.”

Let’s not be fools. Had Walker been a single man about town, they would have filed the same motion. And, in fact, the Proponents and those funding them have been arguing since the judge was assigned that no gay man should be allowed to hear cases involving discrimination against gay people. That his public disclosure of his orientation included a disclosure of his relationship only gave their argument a sheen of palatability so that their supporters have a pretense of decency.

In twenty years’ time, this motion will be read aloud in courtroom to shocked law students who will feel shame that their profession was ever used to demean a person’s judgment based on their orientation. Out of embarrassment they will laugh at the demand that Walker “unequivocally disavowed any interest in marrying his partner.”

But this year, the motion will be heard as though it is a legitimate complaint. By Walker’s replacement, Judge James Ware.

Judge Ware continues the rather strange Republican linkage to this case. Ware, a former military man long affiliated with the Party, has been advanced in most cases by Republican Governors or politicians. His position in the Federal Court system is due to an appointment on August 3, 1990 by President George H. W. Bush.

Based solely on such credentials, Ware would not be a good candidate for supporter of civil equality for gay people.

But this case is not really about Proposition 8; it’s about whether being gay precludes one from ruing on discrimination against gay people. And Ware has a history which may play into his decisions. In April 1996, the San Francisco Chronicle told it this way:

On a Sunday afternoon in Birmingham, Ala., he said, he and his younger brother slipped out of church early and hopped on their bike to go play football. James, 16, was pedaling; 14-year-old Virgil perched on the handlebars.

Suddenly, two white teenage boys on a motor scooter pulled alongside and shouted racial epithets. Then they pulled out a rifle and shot Virgil in the chest, killing him instantly.

Later that day, still numb, James and his family learned that only a few hours before Virgil had been gunned down, the Sixteenth Street Baptist Church across town had been bombed by the Ku Klux Klan. Four black girls were killed in that tragedy on September 15, 1963 — a date that became a milestone in the civil rights movement. The murder of Virgil Ware also became engraved in that era, his name inscribed on a memorial to those who died during the movement.

The shooting remains a blur to James Ware, but he remembers the anger, then the rage, that overwhelmed him. In the decades since, the fury evolved into a determination to see that Virgil’s death was not in vain.

“It molded me,” Ware says now, “into a person who was hungry for justice.”

The shooting of Virgil Ware is an iconic moment in the struggle for black civil rights. And this retelling of the tale is a reminder of that time, an era in which Virgil’s murderers were never tried.

But there’s one small problem. Judge James Ware is not the same James Ware that was the teenage bicyclist; that James Ware was working in a power plant in Alabama when the article went into print.

And Ware’s lie torpedoed an appointment by Clinton in 1997 to the Ninth Circuit Court of Appeals, which was withdrawn when the scandal broke. But while he was reprimanded by the Judicial Council of the Northern District Court of California, he was not removed from the bench and his reputation for fairness allowed his career to advance.

It is too early to make any predictions, but perhaps this bump in Ware’s journey may give him some empathy for Walker. He, like Walker, has experienced political excoriation on the floor of the US Senate. He knows what it feels like to be a minority within Republican circles and to consequently be seen as suspect. And as an African American, he may not be particularly receptive to the notion that people who are part of a demographic are unsuited to rule on matters of discrimination against that demographic.

And there are other causes for hope. Ware does appear to have genuinely been involved in the civil rights movement and quite often those who experienced the battle – as opposed to some who have inherited the mantle – see rights and discrimination in terms of oppressor and oppressed. And considering that Judge Ware’s marriage was not recognized in his home state of Alabama prior to 1967, he may intimately know what it is like to be told that it really isn’t discrimination to be denied the right to marry the one you love.

And finally, we know that Ware has in the past demonstrated that he is not an advocate in opposition to equality or decency towards gay people. In 1995, Ware spoke out for a measure that would offer guarantees of job protection for gay employees working in his California judicial circuit. Other judges had opposed the measure, but Ware’s argument won out.

Prop 8 Defenders still afraid of public scrutiny

From the beginning, those who sought to defend Proposition 8 in court have endeavored to do so behind a veil of secrecy. Ideally, they hoped to go into court, list a litany of prejudices as support for a “reasonable basis” for discrimination, and walk away unchallenged.

But unlike all other cases in which anti-gay bans have been challenged, Judge Walker didn’t allow constitutionality to be based on unsupported prejudice. And those who oppose equality were required to present evidence to substantiate their claims.

And, to what I suspect was their surprise, this did not prove to be an easy task.

Marriage advocates had spent the past few decades in research and knew that thoughtful analysis could not defend the status quo. But the marriage restricters, certain that the Bible, culture, tradition, and their own sense of innate superiority just had to mean that they were right.

And during depositions they made absolute idiots of themselves. Declarations of authority based on arrogance couldn’t hold up to facts. Assumptions of “how things are” were inadequate to challenges from history and sociology.

But maybe they could just wing it and hope for divine intervention. After all, they’d done quite well in the court of public opinion by appealing to fear and loathing without a scintilla of fact or evidence. And, besides, you don’t really make a fool of yourself if no one ever finds out.

So they set out to present their case in secret with anonymous “experts” who would be carefully shielded from public view.

But this case wasn’t going to be like most cases. The world was interested in Proposition 8 and the press wanted to broadcast the proceedings. Desperately afraid of nightly news with clips of their own witnesses hurting their cause, the Prop 8 supporters sued for privacy and unreported hearings.

They were, they claimed, afraid of what the horrible mean gays would do to them. They also admitted that they did not want to face the scorn of their peers, a far more likely explanation. After all, the logical consequence of saying something ridiculous is to be ridiculed. And it can be damaging to ones career to take positions – using your credentials and the reputation of your profession – that are in opposition to the collective research, scholarship, and wisdom of the field of study in which you work.

And even though the Supreme Court granted them a trial without televised reporting, they jettisoned all of their witnesses but one. By this point they knew that gay people were determined to have the truth be known and that one way or another the identity of their experts would be known and that their peers would be well aware of what they were claiming.

But Judge Walker did not stop the recording of the trial, just its dissemination. The public would not see their witnesses, but it would be shown in the overflow room to those who showed up to the courtroom to see history in action (a right that Prop 8 supporters bitterly opposed) and retained for the judge to review during his review of the trial.

And the case went forward. Bloggers covered the trial from opening statement to conclusion, providing a play by play analysis of the testimony. And as soon as it could be gathered, official transcripts were made public placing the testimony into permanent record subject to the harsh glare of history.

And the Prop 8 supporters lost in humiliating detail. Their claims had been exposed as the baseless prejudice and their tactics as the religious strong-arming that they were. It was not a happy day.

But now, a year later, they feel that their indignity has take on even greater proportions.

On February 18, 2011, Judge Walker delivered a speech at the University of Arizona in which he played a portion of the video recording of the cross-examination of one of Proponents’ expert witnesses in the trial of this case. The speech was video taped by C-SPAN, and it was subsequently broadcast on C-SPAN several times beginning on March 22. The speech is available for viewing on C-SPAN’s website.

Yes, in a forum sponsored by The American Bar Association’s Standing Committee on Law and National Security spoke at Arizona State about cameras in the courtroom. As part of that discussion, he included clips from a number of cases, including Perry v. Schwarzenegger.

And on the CSPAN recording you can see, projected on a screen far across the room at a 45 degree angle and in what looks like an all-blue recording, that there was someone – probably human – up there. And you can clearly hear their voice. But you certainly can’t make out from the picture whether they are an elderly Asian female with an afro or a young black male with a shaved head, much less identify who they are.

But that is not to say that they are incorrect to categorize this presentation as “irreparable harm”. On one clip, their witness is explaining that Proposition 8 is “official discrimination, that is discrimination enforced by the state.” Which is not exactly what the National Organization for Marriage wants you to hear.

The simple truth is that any exposure that the public gets to the testimony, arguments, and positions they presented in court causes irreparable harm to their public image campaign. Anti-marriage activists rely on the fact that they need not defend their claims, and ignorance, misinformation, and falsehood are the tools of their trade.

Currently the court’s copies are “under seal” and the Olson/Boies team has been ordered to keep their copies strictly confidential. And I’m unclear how the snippet did not fall under that order.

But that isn’t the Prop 8 Proponents’ issue. They fear that unless they destroy the evidence that some day it may come to light.

So they are using this incident to appeal to the court, asking that all copies of the trial be hidden away from public eyes. Even Olson and Boies should be denied the ability to review the trial as they go through appeals. At all cost, history should never have the opportunity to see what they presented as justification for anti-gay public policy.

For the foregoing reasons, the Court should order that former judge Walker cease further disclosures of the trial recordings in this case, or any portion thereof, and that all copies of the trial recordings in the possession, custody, or control of any party to this case or former judge Walker be returned promptly to the Court and held by the court clerk under seal.

And they may have a case. If Judge Walker was to have kept the trial under seal and only in his chambers, then he may have been in violation to play a snippet during his lecture.

But let’s not pretend that this effort on the part of the Prop 8 Proponents has anything to do with any fear that their witnesses may have over reprisals. It isn’t even about the possibility of someone somehow using some sophisticated technology being able to identify their image.

This is about their war on truth and accountability. They know that the only tactics left to them are secretly funded attack ads, lies spoken boldly, and the destruction of any record that might ruin their chances at future denial.

Prop 8 Trial Judge Makes It Official

U.S. District Court Judge Vaughn Walker, who struck down California’s Proposition 8 as unconstitutional, has officially come out. Anticipating charges that Judge Walker’s decision was influenced by his sexual orientation, he said that he would never consider his sexual orientation as grounds for recusal.

Former U.S. District Judge Vaughn Walker, who retired from the bench at the end of February, said it would not be appropriate for any judge’s sexual orientation, ethnicity, national origin or gender to stop them from presiding over a case.

“That’s a very slippery slope,” Walker said.

Indeed. If such a standard would apply, then six of the nine Supreme Court Justices would have to recuse themselves should any case involving the Catholic Church or Catholic-affiated institution appear before the bench.

The San Francisco Chronicle reported last year that Judge Walker is gay, although Walker himself refused to address the issue.

Threatening Phone Calls to Prop 8 Plaintiffs Made Public

“Marriage is between one man and one woman only. That’s the way God arranged it, set it up. Two people of the same sex cannot procreate. And no, getting yourself artificially inseminated is not procreation in God’s eyes…”

…Marriage is between one man and one woman only. God set it up that way, and that’s the way its going to be. And anybody who’s living in a homosexual or lesbian relationship shall burn in the depths of hell for all eternity.

Well, you have to hand it to Gergory Guisti, he and Robert George’s philosophical arguments are very well aligned indeed, even if Guisti’s manner is a bit more direct. Guisti even brought out Romans 1:26-29 — twice. Angry dude, although, to be fair, he did promise to throw Prop 8 plaintiffs Kristin Perry and Sandra Stier a party if they leave the state of California.

The Advocate reports that Perry and Stier were subjected to more than a dozen angry voice mails during the trial from Guisti. The 49-year-old San Francisco resident used an unlisted cell phone with a Newport News, VA area code. He’s now in jail on a 21-month sentence for having made at least 48 calls in February and March, 2010, to then-House Speaker Nancy Pelosi. Guisti’s threats to Pelosi were more explicit: “If you pass this freaking health care plan, don’t bother coming back to California, ’cause you ain’t gonna have a place to live.”

CA Supremes to play role in Prop 8’s federal court case

The California Supreme Court has now answered a number of questions about the legality of same-sex marriage in California.

• In 2004, it put a halt to the City and County of San Francisco and its efforts to issue and certify marriages between same-sex couples.
• In 2008, it determined (4 to 3) that the Constitution of the state of California did not allow the state to deny recognition of marriage to same-sex couples.
• In 2009, it determined (6 to 1) that Proposition 8 was an amendment to the Constitution (rather than a revision) and that the amended Constitution now banned the issuance and certification of same-sex marriage licenses. However, the 18,000 or so marriages already conducted would be recognized by the state.

Now it will answer one more.

As part of Perry v. Schwarzenegger, the Ninth Circuit Court of Appeals found no provision by which the authors of a proposition could appeal a federal decision if the elected representatives of the state chose not to do so. However, as the State of California is the entity which determines who will represent its interests, it asked the California Supreme Court to determine if California law had some provision by which non-elected representatives could step into the shoes of elected officials and appeal on behalf of the state.

Last week the State Supremes took up the challenge. Opening briefs are due March 14, 2011.

If the CA court finds that there are no substitute-appellant provisions in California law, then the Ninth Circuit is likely to accept that finding and, as there is no one to appeal the decision, uphold Judge Walker’s finding that Proposition 8 violates the equal protections and due process clauses of the US Constitution. This ruling would likely trigger challenges in other states in the Ninth Circuit that are banned by constitutional amendment from recognizing same-sex marriages, particularly the ‘all but the name’ states of Oregon and Nevada.

The Proposition 8 Proponents will, of course, appeal to the US Supreme Court to get standing, but that is unlikely to be granted.

Should the CA Supremes determine that the Proponents can appeal the ruling, then the Ninth Circuit will determine whether Judge Walker’s ruling is correct on its merits.

Mormon Church now LIKES the gays

In 2008 the Church of Jesus Christ of Latter Day Saints (The Mormons) declared war on the gay community. They probably didn’t intend to, and they certainly didn’t want it to be known, but nevertheless that year the Mormon leadership decided that it would throw the church’s weight and political influence into the battle to deny marriage equality in California.

And they won. Proposition 8 passed.

But this success has proven to be a pyrrhic victory, one that threatened to set back much of the church’s public image campaign. Having spent decades on a message that Mormons make good neighbors, suddenly they were painted as haters and destroyers of happiness.

And the church discovered – to what must have been their amazement – that people in California are more suspicious of Mormons than they are of gays. While they may not have favored marriage, they were disturbed at the idea of a California proposition being funded and controlled from Utah by a church that many still see as a cult.

And then the church took a series of missteps in public confrontation with gays. Efforts to paint gay people as deviants that had to be slapped down (how dare they kiss in this Mormon-owned park) only gained sympathy for gay folk in the public eye. And even members revolted when a leader declared that gay people must choose to be gay because Heavenly Father wouldn’t have made them that way.

I’ll admit that it has been amusing to see the panic and meltdown over gay issues since the church’s involvement in Prop 8 was exposed. But it has also been encouraging that there are obviously many in the Mormon Church who have been awakened by the scandal and who are seeking to act admirably.

And some are really seeking peace, a detente, and if not agreement then at least a cease fire. It shows up in some amusing ways. (ABC)

ABC 4 News has learned that the Church invited several prominent gay leaders to its Christmas concert this weekend, including Oscar winner Dustin Lance Black.

Black, a screenwriter, won an Oscar for the movie, “Milk.”

Saturday, at the LDS Church’s Christmas concert, he and a handful of Utah gay activists were VIP guests.
…
ABC 4 News is also being told that the Church has met previously with both Black and Bastian, one of the founders of WordPerfect.

This, reportedly, to get more information about gay issues.

I’m not ready to forgive the church for the damage they did in my state. It truly was an act of selfish bullying and it will take more than a Christmas concert invitation to a select few before I see this institution as other than a committed enemy of my civil rights and freedom.

But it does give me hope. Maybe the church has learned a lesson.

There is a strong likelihood that there will be a proposition on the 2012 ballot to reverse Proposition 8, and if the Mormon Church doesn’t want to pay for half of the advertising and 80-90% of the volunteers, then our chances are significantly increased.

Additional thoughts on Prop 8 appeal

Last night I had the opportunity to watch the full debate in detail and to digest what I saw. This has given me a few additional thoughts about the way the arguments went. These were my impressions:

The judges would like to address the issue. They are reluctant to let the Governor and Attorney General nullify the proposition simply by refusing to repeal; it seems too much like an illegal veto. On the other hand, they are finding it difficult to identify any parties with standing that have any interest in appealing Judge Walker’s decision.

The Proponents pretty much are, by legal precedent, unable to have standing. The Arizonans case is just too similar and the US Supreme Court determined that there was no standing for the initiative’s proponents. Interestingly, two of the three justices were on that case and they were “on the wrong side” in granting the Arizonans proponents standing before being reversed.

But there was some discussion about how ‘filling in for state officials who won’t appeal’ may be different from state to state. There may be enough question to allow for some small measure of uncertainty.

The judges were also extremely hostile to Isabel Vargas’ claim of standing. Vargas, the deputy clerk of Imperial County, is a bit player in the drama, so insignificant that most news stories don’t even include her name. And clearly the judges thought that

The first question asked in the hearing was, “Where is Dolores Provencio?”

Provencio, the Imperial County Clerk, has not participated in the case at all, not even providing a deposition. Vargas’ attorney was left arguing that Provencio wasn’t opposed to Vargas’ action, to which the judge responded, “Well, we really don’t know that, do we?”

But, on the other hand, Boies presented an argument that seemed to be both technical and preposterous. He claimed that the clerk of Imperial County was not bound by Judge Walker’s order because he only bound the named defendants: the Governor, Attorney General, Recorder, and clerks of Alameda and Los Angeles counties.

Under questioning, he went so far as to say that clerks of other counties could deny same-sex marriages until such time as the Attorney General went to state court to compel the other counties to observe Judge Walker’s ruling. This seemed to be an argument that was rather contrived and, frankly, convinced no one, especially not Judge Reinhardt.

Based on my impression, standing will be determined by two factors: 1) the panel may inquire with the CA Supreme Court whether CA law allows Proponents, or 2) the judges may convince themselves that Vargas was in conflict between the constitution and the order and thereby harmed. They will rally have to stretch to get there, but may do so in order to rule on the case. Smith may be the least receptive to Vargas’ appeal for standing, as he sees her role as purely ministerial.

I think that the Proponents erred big-time back in January when they brought Vargas rather than a real clerk. I think that the clerk of a county may well have been given standing.

Interestingly, none of the judges were impressed with the claims of the Proponents. Hawkins, at one point, mocked Accidental Pregnancy Theory and he simply would not let go of the comparisons between Proposition 8 and the Romer case. Reinhardt seemed completely unconvinced with anything that Cooper had to say and interrupted him continuously.

The judges, Reinhardt and Hawkins in particular, seemed to agree with Olson that there’s quite a difference between refusing to grant a right and taking it away once it has been enjoyed. This seems to be supported by some direct language from the SCOTUS and intuitively feels right.

Smith seemed to be in a bit of a bind. It appeared that he was searching – fishing, almost – for a rational basis on which to hang his opinion. And he couldn’t get one out of Cooper. So he finally made one up himself: that the state thought that children were best raised by their father and mother. He got a bit sharp when Olson pointed out that this contradicted the evidence presented in court.

Olson’s strongest point was when he noted that the case isn’t about state’s rights or the rights of voters. The 14th Amendment protects the rights of individuals. And if a class was to be established against which harmful discrimination was to be enacted, such discrimination couldn’t be justified by illogical reasons that fall from the sky. The reason really had to be strong enough, rational enough, and closely enough directed towards “remedying the ill” that it was worth the damage it inflicted.

I think that we won the argument. I don’t know if we won the case. If I were to bet on the result, I’d find it likely that Judge Walker’s decision will be upheld by this panel, and possibly with a 3-0 vote.

The Prop 8 Appeals Court Panel: Bad In The Long Run?

As we reported earlier today, the Ninth Circuit Court of Appeals has announced the panel of judges that will will hear an appeal to Judge Walker’s decision in Perry v. Schwarzenegger that Proposition 8 is in violation of the US Constitution. That panel will consist of Judges Stephen Roy Reinhardt, Michael Daly Hawkins, and Norman Randy Smith. Many believe that the panel will be inclined to uphold Judge Walker’s decision. Focus On the Family went so far as to call the panel “stacked against marriage protection.”

The Ninth Circuit however is just a way-station on the way to the ultimate stop, the Supreme Court. Orin Kerr, posting on the Volokh Conspiracy, worries about Judge Reinhardt’s presence on the panel:

Reinhardt writes like there is no Supreme Court, and as a result his opinions have a remarkable ability to annoy the Justices. In return, the Supreme Court loves to reverse Reinhardt. They love to reverse opinions he signs, and they love to reverse opinions he participates in.

Rules for oral appeal layed out for Perry

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.

CA Supremes: Gov and AG need not appeal Perry

After the Pacific Justice Institute was laughed out of court for claiming that Governor Schwarzenegger and Attorney General Brown should be forced to appeal the decision in Perry v. Schwarzenegger, PJI appealed the 3rd Appeals court’s dismissal to the California Supreme Court.

And they got all excited when the CA Supremes asked Schwarzenegger and Brown to weigh in on the appeal. (Karen Ocamb)

The California Supreme Court has ordered the Attorney General and the Governor to respond by 9 am this morning explaining why they have not filed this appeal. Then the Pacific Justice Institute has just three hours to respond by noon today.

“We are pleased that the judicial branch is at least considering forcing the executive branch to do its job,” said Karen England, Executive Director of Capitol Resource Institute.

So the Governator and the Attorney General sent a letter to the court reminding them that they have discretion to appeal or not appeal and that this discretion is part of the constitutionally protected separation of powers. (And while it was expected and understood that neither wished to appeal, this is where the Governor went on record stating that he would not do so.)

And then the CA Supreme Court yawned and “denied review Wednesday without comment.”

So now it is official. Neither the Governor nor the Attorney General will be appealing the reversal of Proposition 8. But we will probably have to wait until the first week of December to find out whether the Ninth Circuit Court of Appeals will find that the appellants (the organization that sponsored Proposition 8) have any standing to appeal the case without them.

PJI and Meese argue nonsense, sue Governor and AG

Is there a polite way of saying, “dumber than a bag of hammers”? Because if so, I think that Pacific Justice Institute may deserve the title. (WaPo)

A conservative legal group is trying to force Gov. Arnold Schwarzenegger and Attorney General Jerry Brown to defend California’s gay marriage ban in court.

The Pacific Justice Institute petitioned the 3rd District Court of Appeal in Sacramento on Monday for an emergency order that would require the two officials to appeal a ruling that overturned Proposition 8.

And they have got former Attorney General Ed Meese to support them.

Meese, who served one term as attorney general under President Ronald Reagan and Reagan’s legal adviser when he was governor of California, said that Schwarzenegger and Brown’s positions were at odds with his own experience.

“Governor Reagan never refused or declined to defend a state law or state constitutional provision, regardless of his own opposition or dislike for a challenged provision,” he wrote. “As attorney general, I never refused or declined to defend a law on the basis that I disagreed with the law as a matter of policy.”

Okay, I’m not an attorney. But you don’t have to have studied law to know that no one has the obligation to appeal a decision.

Perhaps if there had been no defense of the proposition, they might have an argument. But Proposition 8 had its day in court and it lost. Mightily.

The Governor, and the Attorney General are not automatons who as a matter of rote appeal every court decision that comes their way but are officials elected to make decisions, including evaluating the cost and effectiveness of appeal and determining the best interest of the State.

I’ll be quite astonished if this suit (in State court, incidentally) isn’t thrown out on its ear.

Meg Whitman Would Defend Prop 8 If Elected Governor

Former eBay CEO Meg Whitman, who is running for the GOP nomination for California Governor, announced that if she were elected governor, she would defend Prop 8 in Federal Court:

Whitman’s first definitive statements on how she would handle the issue as governor came hours before she spoke at the opening of the three-day state GOP convention in San Diego, where she is facing open hostility from conservatives over her positions on illegal immigration and climate change.

“I think the governor of California and the attorney general today have to defend the Constitution and have to enable the judicial process to go along … and an appeal to go through,” Whitman said. “So if I was governor, I would give that ruling standing to be able to appeal to the circuit court.”

The two named defendants, California governor Arnold Schwarzenegger and Attorney General Jerry Brown, have refused to defend the constitutionality of Prop 8 in Federal District Court. U.S. District Judge Vaughn Walker then invited the Alliance Defense Fund to defend Prop 8 as intervener. Following Judge Walker’s ruling declaring Prop 8 unconstitutional, it is unclear whether ADF has standing to appeal the case to the Ninth Circuit Court. A hearing to decide the issue is scheduled for December 6. The same hearing will also hear arguments on the appeal itself.

Because both the issue of standing and the appeal will be heard before the next governor takes the oath of office in January 3, it is unclear whether the new governor or attorney general could join the case at that later date:

UC Hastings College of the Law professor Rory Little said Whitman’s ability to defend the proposition would hinge on several factors – the biggest of which, of course, is whether she becomes governor.

It would also depend on whether the 9th Circuit decides the standing issue before January 6 and how the court decides.

“There are a lot of ifs,” Little said. “If the 9th Circuit hasn’t decided the matter by December, she could attempt to file a brief to say, ‘Now, the state of California enters the case.’

The state GOP is holding its annual part convention this year at the Manchester Grand Hyatt, which is subject to a boycott by LGBT advocacy groups over owner Doug Manchester’s $125,000 donation to the pro-Prop 8 campaign.

Prop 8 Plaintiffs May Seek Reimbursement of Legal Fees

When a plaintiff brings a lawsuit before a court and wins, the plaintiff may ask the court to demand that the defendant pay the plaintiff’s legal fees. So toward that end, Ted Olson and David Boies, who led the legal team that successfully argued in Federal District Court that California’s Prop 8 was unconstitutional, have filed papers indicating that they intend to ask that Alliance Defense Fund be ordered to cover their legal fees if the Ninth Circuit Court upholds the District Court’s decision. Estimates have those fees and costs running in the millions.

Imagine that. All of those people who donated to ADF to “protect marriage” may find that their money will actually go towards protecting marriage for everyone.

Schadenfreude Alert: Liberty Counsel STILL Blames ADF For Prop 8 Decision

Almost immediately after U.S. Federal District Judge Vaughn Walker handed down his decision declaring California’s Proposition 8 unconstitutional, Matt Staver’s Liberty Counsel, which is closely aligned with Jerry Falwell’s Liberty University, blamed the Alliance Defense Fund for losing the case. As I said earlier, you can tell Staver was furious because they didn’t get around to blaming it on judicial activism until the final paragraph of their statement. Now, they’ve taken their cat fight to the Canadian Catholic LifeSiteNews:

According to Staver, the ADF “basically gave away the essence of the case, because they wanted to shy away from homosexuality and really were not willing to take the issue directly head on.”

The ADF wished to stipulate, he said, that counseling some homosexuals to change could be harmful, that homosexual partners form long and lasting relationships, and that homosexuality does not impair any area of life. Liberty Counsel was not willing to do so.

Regardless of the reason that the ADF opposed Liberty Counsel’s entrance, the attitude that the ADF wished to project towards the court was reflected in the witnesses they planned on calling: at least three seemed to think that homosexuality, in itself, was perfectly fine.

Katherine Young and Paul Nathanson had been slated to testify before the court for the proponents of Proposition 8, but they were both withdrawn before they did so. Advocates of same-sex “marriage,” however, used Young’s and Nathanson’s videotaped depositions to help bolster their own arguments.

That last point actually bolsters ADF’s objections to having Liberty Counsel as co-defendants for Prop 8. Given that the plaintiffs were so successful in citing the Liberty Counsel’s own favored tactic so well to bolster their arguments against Prop 8, it’s almost a shame that Liberty Counsel was not allowed to intervene.

Sua Sponte And Prop 8 Standing

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.