Breaking: Proposition 8 Question Certified to Ca. Supreme Court (Update: “Dear Ca. Supreme Court, We Really, Really Want to Hear This Case” and other updates)
[Guest post by Aaron Worthing; if you have tips, please send them here.]
Update: Updates throughout this post, and a new post on the memo explaining why Reinhardt didn’t disqualify himself, here.
I just learned this via Legal Insurrection. I will post more as I learn more.
The gist is this. Certification is where they officially ask another court a question. I have never heard of a court refusing to answer, so we can expect after a few rounds to see them answer it. Here they are asking the California Supreme Court to tell them whether the pro-proposition 8 forces have standing.
By the way, Reinhardt still hasn’t issued that promised memo on his very real conflict of interest yet.
So if the Ca. Supreme Court wants to game the system, they have a choice. On one hand, this panel looks very good for anyone who favors court-imposed gay marriage. On the other hand, if they grant the standing to the panel, its extremely likely to rise to the U.S. Supreme Court, and that is dicier question. No ruling might be better than a negative precedent, in their mind. Or they can gamble that Kennedy will give them a nationwide victory for gay marriage.
That being said, I think if we go by the law, they have to grant them standing. Their precedent, and the very logic of the initiative process demands that the proponents be treated as if they were the lawmakers for these purposes. But we have been down this road before.
Update: I read the order and here are some thoughts.
First, there is no attempt to address the claims that Imperial County should be allowed to intervene. Bear in mind, San Francisco was allowed to intervene in opposition to Proposition 8, but Imperial County was not. Instead they write this entire order on the assumption that if the proponents of Proposition 8 don’t have standing, no one has standing. I suppose like Reinhardt’s explanation as to why he is not conflicted out they will get a memo to use later explaining their reasoning. Update: Legal Insurrection claims that Imperial County’s standing was decided in another opinion. So I stand corrected. The hazards of blogging a breaking news story. And Reinhardt has finally issued that memo. I will read both opinions and share any additional thoughts shortly.
Second, you know I considered taking a moment to restate why I and Patterico felt that felt that the proponents had to have standing. But guess what? I don’t have to! The Ninth Circuit panel makes the case for me! Seriously read it and you will get an eloquent explanation of why the best reading of California’s constitution requires that the Ca. Supreme Court grant standing.
Only there is one problem with that. It’s the court making the argument. Seriously, read it. Hopefully I will have it posted below the fold but if not, go to Legal Insurrection and read it. You will get characterizations of the proponent’s arguments like this:
Although the Governor has chosen not to defend Proposition 8 in these proceedings, it is not clear whether he may, consistent with the California Constitution, achieve through a refusal to litigate what he may not do directly: effectively veto the initiative by refusing to defend it or appeal a judgment invalidating it, if no one else – including the initiative’s proponents – is qualified to do so. Proponents argue that such a harsh result is avoided if the balance of power provided in the California Constitution establishes that proponents of an initiative are authorized to defend that initiative, as agents of the People, in lieu of public officials who refuse to do so. Similarly, under California law, the proponents of an initiative may possess a particularized interest in defending the constitutionality of their initiative upon its enactment; the Constitution’s purpose in reserving the initiative power to the People would appear to be ill-served by allowing elected officials to nullify either proponents’ efforts to “propose statutes and amendments to the Constitution” or the People’s right “to adopt or reject” such propositions.
And bear in mind, the court never talks about the arguments on the other side. At best they argue that the precedents don’t quite show what the proponents need. But if there are any arguments to make against granting standing, you never hear it.
Mind you, if I was a federal judge hearing this case I would have granted them standing. I agree with the Ninth Circuit’s sentiment. But if they aren’t going to decide they should have at least faked neutrality. They should have said, simply that they didn’t feel that the authorities were sufficiently clear to draw a conclusion as to the state of California law and be done with it. Instead they go on and on in an order that reads more like the proponent’s brief than a neutral order. They shouldn’t care how this turns out, but obviously they do.
Yes, I hope the California Supreme Court rules in their favor on this issue. But it is not enough to see the right thing happen, but to see the right thing happen the right way. And once again, the Ninth Circuit shows us why it is hard to support them even when we agree with them.
Anyway, hopefully this will work to embed the opinion below the fold and you can read for yourself:
Perry v Schwarzenegger – Order Certifying a Question to the Supreme Court of California
[Posted and authored by Aaron Worthing.]
Ignoring the issue of same-sex marriage, it’s really not clear to me what the correct rule is under state law for initiative proponents’ standing to appeal.
It’s an interesting issue; I’ll look forward to seeing the California Supreme Court grapple with it.
My guess is, if standing is granted, the 9th circuit issues a narrow ruling that says, basically, under Roemer a state which has extended same sex marriage cannot then revoke it. Such a ruling would be confined to California (and, arguably, Maine, although the 9th circuit isn’t binding there).
aphrael (e0cdc9) — 1/4/2011 @ 11:38 amPer Ed Whelan, Judge Reinhardt has issued his recusal memorandum:
A.S. (23bc66) — 1/4/2011 @ 12:01 pmhttp://www.ca9.uscourts.gov/datastore/general/2011/01/04/1016696memo.pdf
Thanks, A.S.
Aaron Worthing (e7d72e) — 1/4/2011 @ 12:05 pmAaron, I think you can read the 9th circuit’s statement as: “Proponents have made this ridiculous argument about standing. We can’t see any precedent which indicates they’re wrong. Our analysis of the theory of California law suggests they ought to be wrong. Can you confirm?”
[Note that I’m not speaking for myself, here; I’m characterizing the 9th circuit’s speech.]
aphrael (e0cdc9) — 1/4/2011 @ 12:09 pmThat would have been judicial activism, even in the face of the good arguments you cite. Why? Because there is simply no law (case law, or statute) that permits the 9th Circuit to grant standing, even if it makes sense to.
I think the panel does a good job of explaining why they couldn’t just declare that Prop 8 proponents had standing, i.e., they weren’t quite in the same position as the litigants in Arizonians.
So, they punted to the California Supremes. Correct call.
Kman (d30fc3) — 1/4/2011 @ 12:12 pmKman
> That would have been judicial activism
i know you are desperate to say that about me, but you would be wrong. That is simply recognizing what the Cali. S.C. has said.
here’s a hint. you disagreeing with my legal conclusions doesn’t magically turn me into an activist. and before you ask, no, i don’t assume that every judge who disagrees with me is an activist either. there is room for honest disagreement. you could learn that some time.
Aaron Worthing (e7d72e) — 1/4/2011 @ 12:19 pmAph
I don’t read the cert. order that way at all. They want the Ca. SC to give them standing. there is room for rational disagreement, but this is so one sided, i don’t know where you are getting that from.
Aaron Worthing (e7d72e) — 1/4/2011 @ 12:21 pmSo Kman acknowledges the possibility of case law justifying a ruling on standing, but also says that courts can’t make case law justifying standing. It’s as though he doesn’t know what case law is.
He also doesn’t appear to understand what judicial activism is.
Whether someone has standing is actually the kind of thing that judges should rule on. Judicial activism refers to settling political issues from the bench, rather than simply making a ruling someone doesn’t agree with. I realize a lot of leftists conflate the concepts in order to make it impossible to discuss why judges shouldn’t settle political issues. Pretty sleazy.
My law dictionary calls such activism the use of personal views to determine outcomes, but I think that’s also a bit sloppy.
anyhow, Locus standi is not a complicated concept. This is a controversial and interesting standing issue, and it’s typical for Kman to lazily declare the side he disagrees with as illegitimate instead of bothering to argue why. Both sides of this standing question have a legitimate argument, IMO.
Dustin (b54cdc) — 1/4/2011 @ 12:25 pmmy criticism of kman’s swipe at me aside, i have no objection to them punting, although they could do a better job hiding how badly they want a certain outcome. i think they could have just decided the damn thing on their own, but i am confident we will get to the same point.
Aaron Worthing (e7d72e) — 1/4/2011 @ 12:29 pmAaron: my error in phrasing is confusing you.
I read the CA9 statement as “The proponents (eg, the original plaintiffs, eg the respondants, eg, the people who want Prop 8 to die) are making this ridiculous claim about standing (that there is none). We can’t see any precedent which indicates they’re wrong. Our analysis of the theory of California law suggests they ought to be wrong. Can you confirm?”
Dustin, I think the argument is that federal standing only exists in this case if state standing does (in essence): federal standing is granted if the state law allows initiative proponents to bring the case. But … ordinarily we don’t expect federal courts to interpret questions of state law which the state courts have never settled.
So: simply granting standing would be activism, because it would be the federal court arrogating to itself a right traditionally reserved to the state courts.
I mean: it’s pretty clear the CA9 wants there to be standing. But, rather than simply decide that there is, it’s asking the competent authority to decide that.
That seems very un-activist.
aphrael (e0cdc9) — 1/4/2011 @ 12:33 pmaph
my apologies, then on the misunderstanding.
as for the activisim issue, there is nothing activist about asking the State S.C. to decide. but it is wrong to be so clearly advocating for a certain outcome–one i happen to agree with.
Aaron Worthing (e7d72e) — 1/4/2011 @ 12:38 pmIt’s not a question of whether I agree or not with your conclusions (for the record, I agree that the Prop 8 proponents should have standing, and have said so before)… I’m just saying that the arguments which support your conclusions aren’t “legal” at all.
For example, finding that it would be “a harsh result” if proponents were denied standing (especially if the state isn’t going to defend the initiative) isn’t a legal argument, no matter how true it might be.
What makes a person an “activist”, judicially speaking, is where law is handed down that lacks legal support in terms of a statute or case precedent. Those things are clearly lacking here… which is why it was smart to kick this question to the Cali Supremes.
Kman (d30fc3) — 1/4/2011 @ 12:38 pmImperial County’s motion to intervene has been denied.
The decision says:
* the deputy county clerk can’t sue on the grounds that her job duties would be impeded. The *county clerk* might have been able to, but since the county clerk didn’t, and didn’t delegate the authority to her deputy, the deputy has no authority.
it was pretty clear from the oral argument that this was coming – the panel was *really* irritated by the lack of the actual county clerk.
* the board of supervisors’ duties are not affected one way or the other, so they have no protectable interest
* the county’s arguments for why it had a seperate interest was never mentioned in the district court proceedings and so can’t be raised on appeal.
aphrael (e0cdc9) — 1/4/2011 @ 12:43 pmOf course. I agree. However, I think there is a legitimate argument on Aaron’s side even on the basis you’re describing. It’s an issue with multiple legitimate POVs, and I think Kman’s dismissal of it and misunderstanding of the concepts he’s associating with Aaron are unhelpful and lazy.
It’s one thing to disagree, and another to consistently call people names and ignore their arguments.
Dustin (b54cdc) — 1/4/2011 @ 12:44 pmAaron: no need to apologize. 🙂 I used ‘proponents’ in a confusing way, so i’m responsible for any misunderstanding arising from the confusing usage. 🙂
I’m not saying this certification is activist; i’m saying that simply deciding there was standing, without certifying first, would have been activist … under the specific circumstances of this case.
aphrael (e0cdc9) — 1/4/2011 @ 12:44 pmDustin:
I’m curious as to what you would define as a “political issue”, because it seems rather unavoidable to separate judges from political issues.
Judges rule based on laws. Those laws are passed by politicians (or, in rare cases like this, by popular referendum). So in essence, everything a judge does is, if nothing else, an affirmation of some political issue.
Who did I disagree with and say is “illegitimate”? I think the only “disagreement” I have with AW over standing is the short vs slightly-longer pathway.
Kman (d30fc3) — 1/4/2011 @ 12:45 pmAgreed.
Kman (d30fc3) — 1/4/2011 @ 12:46 pmKmart remains a nozzle in 2011. SHOCKA
Hello, apparel. Always good to see you.
JD (07faa1) — 1/4/2011 @ 12:48 pmJudge Reinhardt has a seperate concurrence aimed at explaining the decisions to laypeople, and making fun of (a) the plaintiffs (for the way they brought the case against two counties and then argued that it would only be binding on those counties) and (b) imperial county (for trying to use a deputy clerk rather than the clerk as an intervenor).
aphrael (e0cdc9) — 1/4/2011 @ 12:55 pmI should be honest: I don’t read enough of Kman’s comments to be an expert on the guy. Maybe the 99 out of 100 of his comments I don’t read show a lot of effort and thoughtfulness, and an ability to understand the ideas he is not agreeing with (this is basically what Aphrael is like).
But those comments I do read are so consistent in that they automatically deny whatever Aaron just said in a lazy way that throws in an ad hom. I’d say half the time it’s immediately obvious Kman is wrong because he just described something in a way that is impossible (if you read whatever he’s discussing).
So if Kman tends to be really thoughtful and I just hit the douche lotto by my limited sample of his work, I apologize. From what I’ve seen, he’s probably licking the screen wherever he sees Aaron’s handle.
Dustin (b54cdc) — 1/4/2011 @ 12:55 pm“Benchslaps” I prefer to call them.
Kman (d30fc3) — 1/4/2011 @ 1:13 pmDustin
> licking the screen wherever he sees Aaron’s handle.
Oh, thank you for that mental image. /sarcasm
Aaron Worthing (e7d72e) — 1/4/2011 @ 1:18 pmHey, maybe Kman is a gorgeous yet crazy woman, Aaron. You gotta try to be an optimist about your stalkers.
Dustin (b54cdc) — 1/4/2011 @ 1:21 pmI think it’s the “Aaron’s handle” that makes it especially disturbing.
Kman (d30fc3) — 1/4/2011 @ 1:22 pmDustin
as a married man, that is only a less horrible possibility.
Kman
Of course, Kman, you decided to turn the word “handle” into something else. Creep.
Seriously, get a girlfriend. Or a boyfriend. Point is, go away. I am happily married and I am not into men anyway.
Aaron Worthing (e7d72e) — 1/4/2011 @ 1:32 pmWow. I can see that it was very important for you to affirm that.
Kman (d30fc3) — 1/4/2011 @ 1:39 pmUh, you just talked about his genitals, unprompted. He’s being polite in letting you know he’s not a homosexual, and your reaction sounds a lot like denial.
No surprise that entire ‘handle’ concept occurred to you, Kman. You really do come across as creepy, especially when one realizes you’ve been up to this for years, sending emails, etc.
It wouldn’t be the worst thing in the world if you moved on.
Dustin (b54cdc) — 1/4/2011 @ 1:41 pmDustin
Have compassion with Kman. Like you ever hear of a guy who will hit on a girl, and she will lie and say she is actually a lesbian when she is not? she is trying to save his feelings.
Well, he has told me by private email that he often even goes into gay bars and every man he hits on suddenly claims he is straight. So naturally he assumes that i am lying when i say it, because just about everyone else is.
Let me be clear, though, I am not saying that to be kind to Kman. If i was gay and single i would have too much self respect to have anything to do with him. Its not just that i am not interested in his gender, its that i am not interested in him.
Aaron Worthing (e7d72e) — 1/4/2011 @ 1:53 pmBy the same token, no surprise that “licking the screen… at Aaron’s handle” occurred to you, right?
Kman (d30fc3) — 1/4/2011 @ 1:54 pmWTF…?!?
Kman (d30fc3) — 1/4/2011 @ 1:56 pmKmart – what, exactly, was the point of trying to insinuate that AW is gay? Do you see that as some kind of insult?
JD (07faa1) — 1/4/2011 @ 2:01 pmIn discussing a creepy stalker, I note the obvious implications. You’re right. What I said was more obvious than surprising.
If your point is an attempt to insult me, that’s just a lazy ‘you too’ that doesn’t warrant a response.
Dustin (b54cdc) — 1/4/2011 @ 2:02 pmJD:
Excuse me? Who was trying to insinuate that who was gay?
Kman (d30fc3) — 1/4/2011 @ 2:04 pmKman
> Who was trying to insinuate that who was gay?
i am sure there is another reason why you are fixated on a man and get particularly angry at him whenever he questions whether the law should support the gay lifestyle. You’re just a dispassionate observer, right?
Aaron Worthing (e7d72e) — 1/4/2011 @ 2:06 pmkman’
And you know, if you are gay, fine. good for you.
Its the stalker part i have a problem with.
Aaron Worthing (e7d72e) — 1/4/2011 @ 2:07 pmWhat was the point of #26 if not to make that insinuation? That is a standard tool used by tools like you.
JD (07faa1) — 1/4/2011 @ 2:09 pmJD
don’t argue with it. it feeds its obsession.
Aaron Worthing (e7d72e) — 1/4/2011 @ 2:14 pmFirst of all, we’ve had enough correspondence in the past for you to glean my sexual orientation. I don’t mind you making gay insinuations — that comes with the territory — but to actually claim to have emails in support… that’s a line that even YOU have never crossed before.
Secondly, the “stalker” part is simply your ego. You THINK I’m following you all over the Internet, when in fact, I never heard of you before Freespeech. The fact that you see me, a lawyer, appearing on the same well-traveled law-related blogs, from time to time, is hardly noteworthy, and certainly not evidence that you are the center of my universe. In fact, having a few years on you, it’s pure arrogance to think that you frequented places like Volokh before I did.
That said, I DO heartily admit that, when time permits, I enjoy keeping you factually honest (a herculean if not quixotic task) and debating with those who disagree with me, even if that includes you. To the extent that this punctures a whole in the insular bubble you have, well, I suppose you could ban me, and you and all the yes-men around you could perform some intellectual circle jerk. Is that what you want? Or can’t you handle dissent?
Kman (d30fc3) — 1/4/2011 @ 2:24 pmMore standard trollish leftist BS.
JD (07faa1) — 1/4/2011 @ 2:29 pmJD:
#26 followed #25 — figure it out.
Kman (d30fc3) — 1/4/2011 @ 2:30 pmKman, what year was it that you heard of Aaron on Freespeech?
Why is it that you frequently react instantly to a large number of Aaron’s claims to simply deny them?
Also, you say you’re on a quest to keep Aaron honest… I’ve noted many times, and others have done so many more times, that you’re wrong. You say things that are incorrect. You often are so wrong that you admit you never read what you were ‘correcting’ Aaron on. Your quest isn’t to keep Aaron honest, it is to say Aaron is wrong. Even if you don’t read what Aaron’s talking about, you will automatically say he is wrong.
And you’ve been doing this for years. you’re plainly obsessed. You leap to sexual comments for no apparent reason.
Also, you are not a lawyer. That’s obvious. Prove me wrong (you won’t because you can’t).
Dustin (b54cdc) — 1/4/2011 @ 2:32 pmAnother point: when you say that your source said X, and then you later admit you didn’t read your source, you are a liar, Kman. You are not honest. When you say you did that because of your quixotic quest to keep others honest, and are unable to point to any lies they told, it’s projection.
It’s not for Aaron’s sake that people tell you to leave him alone. You do realize that, right? You’re the one affected by your obsession. It’s a punchline from Aaron’s POV. He expresses compassion and pity for you.
Dustin (b54cdc) — 1/4/2011 @ 2:40 pmKman
> when in fact, I never heard of you before Freespeech.
that is a lie. you followed me to freespeech after tangling with me on findlaw.
Aaron Worthing (e7d72e) — 1/4/2011 @ 2:45 pmWe were both pretty active on it around 2004-2005, if memory serves. He went by a different name, but it had the same initials. A.W.
I disagree with your premise that I “simply deny” them. I state reasons why I disagree with what he writes.
I don’t disagree with everything he writes, but if we are in agreement, he’s got enough sycophants as it is, so I don’t add my two cents in those situations. And sometimes I don’t comment on what he (or Karl or anyone else) writes because it is a topic that doesn’t interest me.
Well, sez you.
Sometimes, I AM wrong. Sometimes, you think I’m wrong because you haven’t grasped what I’ve said. Sometimes, it’s a difference of opinion.
“Quest” is too strong a word, but that aside — and to paraphrase Python — I can’t debate him (or anybody) unless I take a contrary position. And I think that’s what bothers you, Dustin. That I’m not playing by yes-man rules.
Licking the screen at someone’s name? Seriously, that didn’t come out of my mind.
I won’t because I won’t. From what I have read, Patterico (and even Aaron) respect one’s desire to remain anonymous. We all have our reasons.
Besides, my identity is of no matter. Same with my occupation. An argument is an argument, and if it’s good and supported, it doesn’t matter if it is made by a lawyer or a window washer. So if you don’t think I am a lawyer… well, you cannot imagine how little that concerns me.
Kman (d30fc3) — 1/4/2011 @ 2:49 pmsix years is a long time.
You’re the one who has often brought this up. I’m just noting the obvious: you are not intelligent enough to be an attorney. You simply do not argue like an attorney. You are unable to put rules together and clearly dislike reading before opining. You’re not a lawyer, and if you really don’t care that we think you are, you wouldn’t try to bring it up.
I’m not surprised you don’t want people to know who you are, because your behavior is really creepy and embarrassing.
And that’s obviously not true. Hell, someone can just read this single thread and see that it’s not true. But ‘not true’ is your calling card, isn’t it? You want to dismiss me as a yes-man who refuses to argue with lefties because you are unable to overcome the facts.
And the facts include that you have lied, been caught, and admitted you didn’t even read what you were summarizing (and insisting Aaron was wrong about). This didn’t happen once, to say the least.
As you say, an argument is an argument. Your constant need to insult people, call them liars, and admit you didn’t actually read what you’re remarking on does not constitute much of an argument. And 6 years of it indeed does constitute a creepy obsession.
Dustin (b54cdc) — 1/4/2011 @ 2:56 pmThat’s not my recollection. But I’m going to defer to you, simply because I don’t remember how I got to Freespeech. It’s telling that you remember tangling with me on Findlaw, whereas I don’t remember you on Findlaw at all.
I guess we remember what is important to us.
Kman (d30fc3) — 1/4/2011 @ 2:57 pmKman, of course it’s important to him that you follow him from site to site, emailing him about your sexual issues, freaking out and insulting him.
You think that validates your point that he remembered it?
You said you were keeping Aaron honest in this thread. Stop ignoring my response: show me the lie you’re talking about. Let’s see if you can back up your claims, or if you were dishonest about your reason for following Aaron around.
Dustin (b54cdc) — 1/4/2011 @ 3:00 pmIt seems proud of it’s creepiness.
JD (07faa1) — 1/4/2011 @ 3:10 pmKman
> It’s telling that you remember tangling with me on Findlaw, whereas I don’t remember you on Findlaw at all.
> I guess we remember what is important to us.
Or maybe I just remember MORE. I am smarter than you, after all.
Aaron Worthing (1a6294) — 1/4/2011 @ 4:01 pmYou ever get to the end of a comment thread that meandered so far away from the post that you can’t even remember what the post was about anymore?
Anon Y. Mous (5ac901) — 1/4/2011 @ 5:44 pmBrown will refuse to defend Prop-8 allowing its death just as Davis refused to defend Prop-187 resulting in its death at the Fed. District Court level.
AD-RtR/OS! (48b84c) — 1/4/2011 @ 9:49 pmIn the meantime, another case similar to this will be decided in a U.S. district court in Oklahoma, probably in the next year. (Bishop v. Oklahoma). Similar to this case, the governor and attorney general there abandoned the defense of Question 711 (by arguing a technicality to have themselves dismissed as defendants), leaving only the Clerk of Tulsa County as a defendant.
If the California Supreme Court deny proponents’ standing, the ruling only binds the named defendants. No other county clerk aside from the named county clerks will be required to issue marriage licenses to the named plaintiffs, let alone other same-sex couples.
In fact, it is even questionable whether or not the ruling binds the defendants’ actions in regards to persons other than plaintiffs. for if Deputy Clerk Vargas did not have standing to assert the interests of her boss, let alone the governor and attorney general, how do the named plaintiffs have standing to assert the rights of persons other than themselves?
My guess is, if standing is granted, the 9th circuit issues a narrow ruling that says, basically, under Roemer a state which has extended same sex marriage cannot then revoke it.
That would constitute a misinterpretation of the holding in Romer v. Evans.
romer was not decided on the basis that a law withdrew rights from a group, or than animus makes an otherwise constitutional law unconstitutional. the romer law was struck down because “lacks a rational relationship to legitimate state interests”.
And aphrael, you yourself admitted that Romer is more applicable to the Oklahoma case than the California case.
Michael Ejercito (fe8e79) — 1/5/2011 @ 9:02 am