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PostPosted: Tue Jan 04, 2011 5:17 pm 
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9th's cerified question:
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Whether under Article II, Section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure possess either a particularized interest in the initiative’s validity or the authority to assert the State’s interest in the initiative’s validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so.

Reinhardt's "Standing for Dummies" concurrence.

Reinhardt's bonus explanation of recusal.


When a federal court certifies a question to a state court, the feds are giving the state court the option of answering the question. The federal court will then incorporate that answer into its ruling. If the state court declines to answer the question, then the federal court will take its best guess at the answer.

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PostPosted: Tue Jan 04, 2011 7:00 pm 
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So, what is officially being asked of the Feds is whether or not someone other than the state can appeal the judgement in the previous lawsuit?

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PostPosted: Tue Jan 04, 2011 7:06 pm 
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As I understand it, the federal 9th Circuit appeals court is asking the California Supreme Court if state law gives the people who proposed Prop 8 the right to represent the state, when the actual state authorities don't want to pursue the appeal.

For all I know, the 9th Circuit may even have a plan behind the request. :-k

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PostPosted: Tue Jan 04, 2011 7:08 pm 
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bob wrote:
When a federal court certifies a question to a state court, the feds are giving the state court the option of answering the question. The federal court will then incorporate that answer into its ruling. If the state court declines to answer the question, then the federal court will take its best guess at the answer.


Many state courts are downright hostile to such inquiries from federal courts, and a couple (New Jersey springs to mind) refuse even to accept certified questions. Others, which do accept such questions, adopt absurdly arcane methods for actually accepting such questions, and often refuse them.

Note: while the New Jersey Supreme Court does not accept "certified questions" as such from District Courts, it has an analogous procedure, but will only accept such a request from the Third Circuit, and even then only grants such requests sparingly.

I frankly don't get the hostility to such questions, since it seems a good way of maintaining comity to me, especially if the federal courts in fact do defer to the state holdings, and do not try to distort them somehow (I have not studied the issue). It almost seems to me as if state courts often bristle at "being told what to do" by federal courts. They would prefer to wait for the issue to arise in state court proceedings and then decide it lock, stock, and barrel, ignoring the federal decision, which would not be binding in any case on matters of state law. The result, though, is confusion for litigants and uncertainty for people trying to obey the law (IMO).

I assume there are states less hostile to the process than New Jersey and North Carolina seem to be.

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PostPosted: Tue Jan 04, 2011 7:37 pm 
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Foggy wrote:
As I understand it, the federal 9th Circuit appeals court is asking the California Supreme Court if state law gives the people who proposed Prop 8 the right to represent the state, when the actual state authorities don't want to pursue the appeal.

The implication is that the 9th doesn't want to tell California, with its crazy initiative process, how to run its own shop. Especially since the answer would govern future crazy initiatives. (Of course, if SCOCA punts and the 9th is forced to make a ruling, SCOCA is free to ignore the 9th's ruling in future suits. Ha!)

But I don't see what California says matters with respect to Article III standing: you need smart federal judges to figure that one out.


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For all I know, the 9th Circuit may even have a plan behind the request. :-k

Reinhardt's moaning makes it pretty clear he thinks the standing doctrine is stoopid. (Heeeeeeeello, birthers!) And he's basically hinting that unless California says the proponents have standing, the 9th is going to dismiss the appeal.

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PostPosted: Tue Jan 04, 2011 7:44 pm 
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bob wrote:
Reinhardt's moaning makes it pretty clear he thinks the standing doctrine is stoopid. (Heeeeeeeello, birthers!) And he's basically hinting that unless California says the proponents have standing, the 9th is going to dismiss the appeal.


Do you think he's trying to avoid actually applying federal standing doctrine which he loathes, when he could instead throw the case out based on California law, as decided by California courts, that there is no "initiative standing" in this case? Or do you think he has a longer-range goal? I could imagine this sneaky bastard wanting to recognize Article III standing, so that the conservatives on the Supreme Court (such as Scalia) would have the choice of either whittling away at Lujan standing roadblocks to federal jurisdiction, or affirming a pro-gay-marriage case?

It isn't as if the RWNJs of the Court aren't above making a decision and then proclaiming that the rule of decision they use is only good for one case, like Bush v. Gore. So I hope the former.

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PostPosted: Tue Jan 04, 2011 8:05 pm 
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A Legal Lohengrin wrote:
I could imagine this sneaky bastard wanting to recognize Article III standing, so that the conservatives on the Supreme Court (such as Scalia) would have the choice of either whittling away at Lujan standing roadblocks to federal jurisdiction, or affirming a pro-gay-marriage case?

Winner winner chicken dinner.

Reinhardt wants to send SCOTUS a no-win case.

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PostPosted: Tue Jan 04, 2011 8:29 pm 
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bob wrote:
Reinhardt wants to send SCOTUS a no-win case.

I'm sure that's true. But also -- and I hate to say this, because I realize it keeps gay marriage in California on hold for the time being -- I think he might be deliberately slowing down the process in order to take advantage of other developments that will influence the course of events.

By which I mean repeal of DADT, for instance. You've seen predictions that a huge number of homophobes will quit the military over it, and that they won't be able to recruit "real men" any more. I strongly doubt that will happen. I think the military will handle it just fine. I have a lot of faith in the military. They survived racial integration. They survived when women became soldiers and sailors. They're going to survive this, too.

There may be one or two more states that legalize gay marriage, too. Before the 9th Circuit rules, I mean.

People are going to see that in the states that legalized already, it isn't a threat to straight marriages. God hasn't struck any politicians dead for voting for gay marriage, as far as we know. ;) The ball is rolling downhill, and slowly but surely, it's gathering speed. If Reinhart holds this case for a year, year and a half, it's a bad thing for the gays in California. But maybe a good thing for the country as a whole.

That's pure speculation and easily worth three times what you paid to read it. \:D/

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PostPosted: Tue Jan 04, 2011 9:25 pm 
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bob wrote:
Foggy wrote:
As I understand it, the federal 9th Circuit appeals court is asking the California Supreme Court if state law gives the people who proposed Prop 8 the right to represent the state, when the actual state authorities don't want to pursue the appeal.

The implication is that the 9th doesn't want to tell California, with its crazy initiative process, how to run its own shop. Especially since the answer would govern future crazy initiatives. (Of course, if SCOCA punts and the 9th is forced to make a ruling, SCOCA is free to ignore the 9th's ruling in future suits. Ha!)

But I don't see what California says matters with respect to Article III standing: you need smart federal judges to figure that one out.


Quote:
For all I know, the 9th Circuit may even have a plan behind the request. :-k

Reinhardt's moaning makes it pretty clear he thinks the standing doctrine is stoopid. (Heeeeeeeello, birthers!) And he's basically hinting that unless California says the proponents have standing, the 9th is going to dismiss the appeal.

I believe this is true. Sadly, my reconniption is that California does give proponents the right to defend propositions after election, equally with those charged to implement or enforce the law. If so, I don't think it's a no-wn and I don't think it will affect Lujan jurisprudence.

What I am looking forward to seeing on the lunatic birfer sites is a criticism of Reinhardt's comments when he evinces a hostility for standing jurisprudence which is consistent with their desires.

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PostPosted: Tue Jan 04, 2011 10:43 pm 
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Norman Goldman says he thinks the judge wants to say no standing so he can throw the case out on that basis, and leave no precedent so other states don't have to go against a precedent in the 9th Circuit. So he's hoping the Cali Supremes say, nope, no standing.

Whaddaya think of that?

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PostPosted: Wed Jan 05, 2011 3:38 am 
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Plutodog wrote:
Norman Goldman says he thinks the judge wants to say no standing so he can throw the case out on that basis, and leave no precedent so other states don't have to go against a precedent in the 9th Circuit.

I think that'll be the eventual compromise outcome, but not Reinhardt's current gameplan.

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PostPosted: Wed Feb 16, 2011 5:50 pm 
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Today is the day for this decision:

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California Supreme Court to consider key issue in battle over same-sex marriage

February 15, 2011 | 8:09 pm

The California Supreme Court will decide Wednesday whether to plunge back into the legal battle over same-sex marriage.

The state high court, meeting in closed session, will review a request by the U.S. 9th Circuit Court of Appeals to determine whether Proposition 8’s sponsors have legal authority to defend the ballot measure.

Depending on the court’s ruling, the 9th Circuit could either dismiss the Proposition 8 appeal on procedural grounds -- limiting the case’s effect to California -- or rule on federal constitutional questions that would affect same-sex marriage throughout the country.
*******

California state officials refused to appeal the ruling. Now the 9th Circuit must determine whether Proposition 8’s sponsors, ProtectMarriage.com, have legal standing to challenge the trial court's decision.


http://latimesblogs.latimes.com/lanow/2 ... riage.html

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PostPosted: Wed Feb 16, 2011 6:20 pm 
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TexasFilly wrote:
Today is the day for this decision:

Request for certification accepted:
SCOCA wrote:
The request, pursuant to California Rules of Court, rule 8.548, that this court decide a question of California law presented in a matter pending in the United States Court of Appeals for the Ninth Circuit, is granted. For the purposes of briefing and oral argument, defendant-intervenors Dennis Hollingsworth, Gail J. Knight, Martin F. Gutierrez, Mark A. Jansson, and ProtectMarriage.com (collectively "Proponents") are deemed the petitioners in this court. (Cal. Rules of Court, rule 8.520(a)(6).)

In order to facilitate expedited consideration and resolution of the issues presented, and to accommodate oral argument in this matter as early as September, 2011, the normal briefing schedule is shortened, pursuant to California Rules of Court, rule 8.68, as follows: The opening brief on the merits is to be served and filed on or before Monday, March 14, 2011. The answer brief on the merits is to be served and filed on or before Monday, April 4. A reply brief may be served and filed on or before Monday, April 18. Any person or entity wishing to file an amicus curiae brief must file an application for permission to file such brief, accompanied by the proposed brief, on or before Monday, May 2, 2011. Any party may serve and file an omnibus reply to any or all amicus curiae briefs on or before Monday, May 9, 2011. The court does not contemplate any extension of the above deadlines.

Votes: Cantil-Sakauye, C.J., Kennard, Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ.

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PostPosted: Wed Feb 16, 2011 6:27 pm 
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Thanks Bob. Not the result I had hoped for.....

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PostPosted: Wed Feb 16, 2011 6:33 pm 
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California law expansively finds standing when propositions are challenged. To what extent state standing and federal standing are the same is a key issue which SCOCA can't answer. The 9th CIrcuit should have assumed there was state court standing (because the case law pretty clearly says there is), but I think they just wanted to slow the train down a bit. Time, after all, is on the side of gay marriage.

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PostPosted: Wed Feb 16, 2011 6:58 pm 
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So, oral arguments on whether there's standing in September 2011? Boy, the wheels of justice turn slowly!

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PostPosted: Thu May 19, 2011 6:58 pm 
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The two high profile lawyers who argued against Prop 8 are concerned that they will not be able to argue the case before SCOTUS and settle the issue once and for all.

http://www.huffingtonpost.com/2011/05/1 ... 63715.html

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PostPosted: Thu May 19, 2011 7:13 pm 
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HuffPo wrote:
At issue is whether or not defenders of Proposition 8 -- the California law passed by ballot initiative that banned gay marriage -- have standing to appeal the ruling from U.S. District Judge Vaughn Walker that overturned it. The U.S. Court of Appeals in San Francisco has asked the California Supreme Court to issue a ruling on that matter. They are likely to do so only as early as September, and it's not clear to anyone involved what the final decision might be.

"God knows when that’ll be done," said Olson. "It’s like pushing a piece of string."

SCOCA will decide the case within 90 days of it being argued. (The case has been fully briefed by the parties; the amicus briefs* are flowing in like chocolate in Willa Wonka's factory.)

What the 9th does with SCOCA's answer, however....


* Including one penned by Tea Party/birther footsie-ier, John Eastman.

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PostPosted: Thu May 19, 2011 7:34 pm 
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esseff44 wrote:
The two high profile lawyers who argued against Prop 8 are concerned that they will not be able to argue the case before SCOTUS and settle the issue once and for all.

http://www.huffingtonpost.com/2011/05/1 ... 63715.html


Dammit. They're right. (Now that I've declared that I'm sure they feel better.) One fix for this problem is a meeting between these great lawyers who are trying to make history, the Governor, and the Attorney General, where an agreement is hashed out for the State of California to continue defending Prop 8 even though the Governor and AG politically oppose it. I think it would be ethical for at least the AG to pursue this course, on grounds that AG Harris is performing her legal duties.

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PostPosted: Thu May 19, 2011 8:58 pm 
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I'd like to see California again allowing same sex marriages. (As I've said before, spread around the misery.) And I'd prefer SCOTUS not take up the issue for a while. So, sorry to Olson and Boies, but I'd prefer results rather than fame.

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PostPosted: Thu May 19, 2011 9:06 pm 
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Sterngard Friegen wrote:
I'd like to see California again allowing same sex marriages. (As I've said before, spread around the misery.) And I'd prefer SCOTUS not take up the issue for a while. So, sorry to Olson and Boies, but I'd prefer results rather than fame.


I think the prospects are good and the timing is right, now, for a positive outcome. Justice Kennedy is the key here. All the other conservatives on the bench are relatively young and in good health. Kennedy is the oldest, and he will likely wait until a Republican administration to retire. If he does so, he will be replaced by a major douchebag. Kennedy authored the Lawrence v. Texas "right to be homosexual" opinion that infuriated Scalia because it overruled Bowers v. Hardwick (arguably the worst-written and worst-reasoned opinion issued in the modern history of the U.S. Supreme Court). I think Kennedy can be persuaded to join the liberals on this issue, especially with that Boies and Olson team. There will be no such assurance with Kennedy's conservative replacement.

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PostPosted: Thu May 19, 2011 11:23 pm 
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Sterngard Friegen wrote:
I'd like to see California again allowing same sex marriages. (As I've said before, spread around the misery.) And I'd prefer SCOTUS not take up the issue for a while. So, sorry to Olson and Boies, but I'd prefer results rather than fame.


Agreed. OTOH, I have made similar prudential arguments against Olson/Boies before, and their success has shown me to be wrong. I still think the issue may be more favorably reviewed after more states allow same-sex marriage, to the point that such legislation can no longer be viewed as an aberration. Federalism cuts both left and right.

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PostPosted: Tue Jun 14, 2011 4:55 pm 
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Politico: Judge won't overturn same-sex marriage ruling
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A federal judge has refused to overturn his former colleague's pivotal decision on same-sex marriage because that judge was gay and in a relationship with another man.

"A well-informed, thoughtful observer would recognize that the mere fact that a judge is in a relationship with another person–whether of the same or the opposite sex–does not ipso facto imply that the judge must be so interested in marrying that person that he would be unable to exhibit the impartiality which, it is presumed, all federal judges maintain," U.S. District Court Judge James Ware wrote in a decision released Tuesday afternoon.

Ware's order.

As expected.

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PostPosted: Tue Jun 14, 2011 5:06 pm 
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At oral argument, Judge Ware had hammered the anti-gay counsel on this point:

Quote:
At the time the case was assigned to him, Judge Walker was in a same sex relationship. Defendant-Intervenors contend that Judge Walker had an interest in the case because if he were to decide that Plaintiffs were entitled to have their right to marry restored, even though there was no evidence that Judge Walker intended to marry, the sole fact that he was in a same-sex relationship placed Judge Walker in the position of deciding a case that could affect him if he were to desire to marry.

(Emphasis mine.)

In essence, they wanted to argue that every gay judge should be barred from hearing cases implicating gay marriage. An absurd proposition of course, but that hasn't prevented similar arguments (all rejected) that female judges can't hear women's rights cases, or that Hispanic judges can't hear immigration rights cases.

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PostPosted: Fri Jul 29, 2011 5:12 pm 
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State Supreme Court to Hear Oral Arguments in Prop. 8 Case on September 6
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San Francisco—The California Supreme Court today announced that it will hear oral arguments in Perry v. Brown, S189476, from 10:00 a.m. to 11:00 a.m. on Tuesday, September 6, 2011, in the Supreme Court Courtroom, Earl Warren Building, 350 McAllister Street, San Francisco.

The Perry case involves whether the official proponents of Proposition 8 have legal standing to defend the measure in a case now pending before the U.S. Circuit Court of Appeals for the Ninth Circuit, based in San Francisco. In January 2011, the federal court requested the state Supreme Court to review the standing issue. After considering the matter, the Supreme Court agreed to do so. As stated by the Ninth Circuit, the standing issue is as follows:

“Whether under Article II, Section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure possess either a particularized interest in the initiative’s validity or the authority to assert the State’s interest in the initiative’s validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so.”

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