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Prop 8 trial: 9th Circuit issues stay on Judge Ware’s ruling to release tapes

Prop 8 trial

By Adam Bink

Text (short) is below.

Briefing schedules tend to take several weeks because of the length of time between responses from opposing parties. So, we will expect briefs regarding the proponent’s request for an emergency stay, and then go from there.

75 Comments Leave a Comment

  • 1. MichGuy  |  September 26, 2011 at 5:58 pm

    Does anyone have any insight on the judges handeling this case?

  • 2. cr8nguy  |  September 26, 2011 at 6:13 pm

    This is the same panel that heard the Prop 8 appeal last december. Does anyone know if they will get the other appeal too? The one regarding Ware's ruling Denying the motion to vacate.

    Also, what are the rules for briefing this? and any lawyers want to guess at the likelihood that proponents will prevail with this panel?

  • 3. Sagesse  |  September 26, 2011 at 6:14 pm

    Toledo Church Erects 'Being Gay Is Not A Gift From God' Billboards
    http://www.ontopmag.com/article.aspx?id=9614&…

  • 4. David Henderson  |  September 26, 2011 at 6:15 pm

    I believe these are the same judges as for the main appeal.

  • 5. Kathleen  |  September 26, 2011 at 6:40 pm

    Yes, same panel that's hearing the case on the merits.

    Per rules cited in order, responses to Proponents' motion will be due next Monday, Oct. 3, and Proponents' reply will be due Monday, October 10.

  • 6. David Henderson  |  September 26, 2011 at 6:44 pm

    That does seem pretty fast. Any idea how fast this is likely to be heard?

  • 7. Elizabeth_Oakes  |  September 26, 2011 at 7:12 pm

    Do I understand correctly that the Ninth will issue a ruling based on the briefs, no actual hearing? Or will they decide if a hearing needs to be scheduled after the briefs are in? Or whaaaa?

  • 8. Sagesse  |  September 26, 2011 at 7:17 pm

    RI ACLU: New civil-union law 'a fiasco;' gay marriage better
    http://newsblog.projo.com/2011/09/ri-aclu-new-civ

  • 9. Michael  |  September 26, 2011 at 7:29 pm

    Your question is exactly what I am looking for as well!

  • 10. Gregory in SLC  |  September 26, 2011 at 7:42 pm

    GGGGRRRRRRrrrrrr! GAH!! Bleckey Bleck! : (

  • 11. Gregory in SLC  |  September 26, 2011 at 7:48 pm

    Sam I Am…pt. 3 (Alan E. aka gaydad2be posted about this coming out story earlier)
    http://samisblue.wordpress.com/2011/09/26/coming-

  • 12. Scudder12  |  September 26, 2011 at 9:11 pm

    Thanks in great part to this site, I've gotten pretty good at keeping track of all the legal processes and procedures, but just so I'm clear: The motion in question here is specifically the motion to stay the District Court's decision pending appeal, correct? We're not dealing with the actual appeal of the District Court ruling at this point, as far as I can tell. Is it also correct that, as of yet, there is no briefing schedule for the appeal itself? I assume this would be ordered after the issue of staying the lower decision is dispensed with.

  • 13. RWG  |  September 26, 2011 at 9:24 pm

    These so-called "Defender-Intervenors are a bunch of loathsome, pathetic cowards. Plain and simple.

  • 14. Fluffyskunk  |  September 26, 2011 at 10:26 pm

    Unrelated to the trial, but I thought I should share this link:

    Authors Say Agents Try to “Straighten” Gay Characters in YA

  • 15. FlexSF  |  September 26, 2011 at 10:33 pm

    Your too kind.

  • 16. Lynn E  |  September 27, 2011 at 12:08 am

    I know this is just random "luck," but when I linked to this article in Publisher's Weekly, the banner ad at the right hand side of the page was for the new novel by….. (wait for it)…. Orson Scott Card.

  • 17. James Sweet  |  September 27, 2011 at 5:11 am

    The 9th issued a stay, not a ruling. They are basically saying, "Yes, we agree that it is worth hearing the arguments for your appeal."

    If they denied the stay, it would be closer to the scenario you describe — it would have had the effect of "ruling" (even though actually they would have been letting the lower court's ruling stand) to release the tapes without hearing any briefs.

    I'm going to say something that might piss off a few people here, and go ahead and assert that the 9th Circuit is exactly right to extend the stay in this case. Once the tapes are unsealed, that cannot be undone… so unless the Bad Guys' arguments are prima facie absurd (which is the case in regards to their arguments against marriage equality, but not so much in the case of unsealing the tapes) a stay ought to be granted so the court can consider — and hopefully reject — those arguments.

    Note I am limiting this assertion strictly to the question of releasing the tapes. The 9th Circuit's decision to issue a stay on marriage equality is not so clear-cut. The D-Is' arguments are clearly stupid in every way. Allowing same-sex marriage to go forward does no 'harm' that cannot be undone, not even from the perspective of the asshats (If for some reason the court rules that marriage equality was the root of all evil, and even those marriages that had taken place in the interval were causing 'harm' to the D-Is, the marriages could in theory be annulled… to be clear, I don't mean to downplay what a tragic event that would be! I'm merely showing that the "irreparable harm" criterion for issuing a stay is clearly not met here).

    The only justification I can see for issuing a stay in the main case is that would create a complete and total shitstorm of controversy if they didn't. The judicial branch is supposed to be isolated from that political crap, but… we do live in the real world (last time I checked?) and while I'm disappointed, I can't say I'm surprised.

    Anyway, much longer digression than was probably needed or called for, but I guess I was just trying to show a contrast: Unlike the main case, for which the justification for an extended stay is dicey, there are very solid reasons for the 9th to have extended the stay in regards to unsealing the tapes, and as frustrating as it is, I think they clearly did the right thing in doing so.

  • 18. James Sweet  |  September 27, 2011 at 5:11 am

    As an atheist, my only reaction is, "Well DUH!" ;D

  • 19. James Sweet  |  September 27, 2011 at 5:18 am

    Heh, no it's not, I get that banner too.

    I was wondering if it was a sci-fi novel, or if you were referring to his recent mangling of Hamlet into an anti-gay screed. Seems the former.

    If you want to seriously get your rage on, do some Googling around about the latter. What a piece of work that guy is…

  • 20. David  |  September 27, 2011 at 5:49 am

    My two cents:
    - This is only a stay pending the hearing on the motion for a stay, or a "stay pending a stay" as it is sometimes called. The 9th Cir's granting this does not mean anything. They would have to grant this or else the tapes would be released and the issue would be moot by the time they got to the actual appeal of Judge Ware's ruling.

    - I think that the panel is good for us. You have 2 liberals and 1 conservative. Although the question of whether to allow or forbid the release of the tapes is not an ideological one, it is good to have a liberal majority, since the Prop 8 proponents rely on fear-mongering of "gay activist" intimidation to justify keeping the tapes secret. Liberal judges will be more likely to bore down on claims like this rather than accept them at face value.

    - Next week, Judge Benjamin Settle, a federal judge in Washington, will hear final arguments in the Referendum 71 petition case, Doe v. Reed. As you may recall, this case involved an effort by anti-gay groups to prevent release of petitions that placed an anti-gay measure on the ballot in 2009.

    Both sides moved for summary judgment, and Judge Settle decided that he would decide the case on summary judgment, i.e., that no trial will be needed. The anti-gay side dredged up every thing they could to make the case that the release of these petitions would put Washingtonians at the mercy of an army of gay activist thugs. The vast bulk of their evidence concerned "intimidation" that occurred in the context of Prop 8.

    The decision in Doe v. Reed could come b4 the 9th Cir ruling on the stay, and if the anti-gays should lose that case, it will be a damaging but nonfatal blow to their appeal.

  • 21. Ronnie  |  September 27, 2011 at 6:28 am

    I concur… with both of you…. ; ) …Ronnie

  • 22. Bryce  |  September 27, 2011 at 7:14 am

    I agree with James that they are right to extend the temporary stay: if they were not to do so, and later decided to reverse Judge Ware's order, then it would be to no effect as tons of people would already have copies of the tape. I also agree with James that this is not true of the decision to extend the stay on marriage equality in general: the 9th Circuit extended a temporary stay and justified it by saying they would expedite the process, then when they–and the California Supreme Court–dragged the process out, they refused to reconsider the stay.
    The only thing that James didn't say, which I think should be said (and I believe he might agree with) is that Judge Ware was right to unseal the tapes, and while the 9th Circuit was right to extend the temporary stay, they should nevertheless uphold the decision ASAP.

  • 23. FlexSF  |  September 27, 2011 at 7:19 am

    SouthWest airlines kicks two women off of their plane because they were insulted, then upset, by a sexist, bigoted flight attendant.
    http://today.msnbc.msn.com/id/44678596/ns/today-e

    WTF?

  • 24. Gregory in SLC  |  September 27, 2011 at 7:26 am

    that was in my local paper as well….
    http://www.sltrib.com/sltrib/money/52645868-79/fl

  • 25. Ronnie  |  September 27, 2011 at 7:43 am

    Los Angeles Dodgers Release 'It Gets Better' Video http://www.towleroad.com/2011/09/dodgers.html

    "The Dodgers have been outspoken advocates for equality and against all societal prejudices dating back to the days of Jackie Robinson," said Dodgers Senior Vice President, Public Affairs Howard Sunkin. "Our club wholeheartedly supports an end to bullying and violence against LGBT youth. There is zero tolerance for violence of any kind for any reason in our community."

    <3…Ronnie

  • 26. Gregory in SLC  |  September 27, 2011 at 7:53 am

    NFL Gets Better: Sexual Orientation Protections Added To New Contract
    http://www.huffingtonpost.com/2011/09/26/nfl-sexu

  • 27. Gregory in SLC  |  September 27, 2011 at 8:25 am

    This video is even more noteworthy coming from an organization whose longtime ex-manager Tommy Lasorda never acknowledged that his son Tommy Jr. (“Spunky”) was gay and died of AIDS.
    http://outsports.com/jocktalkblog/2011/09/27/los-

  • 28. MFargo  |  September 27, 2011 at 8:27 am

    Let's hope they don't send THIS to the California Supreme Court to see what they think of the matter before they can make a ruling.

  • 29. Alan_Eckert  |  September 27, 2011 at 8:45 am

    One of my first thoughts too =)

  • 30. Alan_Eckert  |  September 27, 2011 at 8:47 am

    Outsports also posted a follow-up. I guess the Outsports author will be posting another story about another kid soon, too.
    http://outsports.com/jocktalkblog/2011/09/27/high

  • 31. AnonyGrl  |  September 27, 2011 at 8:48 am

    I would posit that the Church on Strayer is not a gift from God either.

  • 32. FlexSF  |  September 27, 2011 at 8:55 am

    These lunatics are so stupid, and given too much credit. Because of pious assholes like this, we have marriage inequality.

  • 33. Leo  |  September 27, 2011 at 9:02 am

    The latter, I would think. After reviewing the briefs, they may decide that an oral argument is unnecessary.

  • 34. loaferguy  |  September 27, 2011 at 9:48 am

    Justice Scalia: Religious Schools Should Have A Special Right To Anti-Gay Discrimination:
    http://thinkprogress.org/justice/2011/09/26/32833

  • 35. loaferguy  |  September 27, 2011 at 9:51 am

    Antigay Group: Rep. Ros-Lehtinen 'Has Joined the Dark Side':
    http://www.advocate.com/News/Daily_News/2011/09/2

  • 36. Alan_Eckert  |  September 27, 2011 at 9:51 am

    Michigan high school students write essays on marriage between same-sex couples.
    http://www.mlive.com/opinion/kalamazoo/index.ssf/

  • 37. Gregory in SLC  |  September 27, 2011 at 9:59 am

    : D !

  • 38. FlexSF  |  September 27, 2011 at 10:03 am

    Everyone knows that Scalia is sexist and homophobic. (This was expressed in his flag pole sitter comment during the Lawrence v. Texas hearing) Now that he has excreted his dysfunctions out in public, shouldn't the legal community step in and seriously scrutinize his ability to handle cases relating to sex and sexual orientation?

    Conversely, Scalia seems to ignore that there is legal precedent, set within the past 12 months, that prohibits his skewed view of reality from manifesting. Can a sitting SCOTUS "justice" flagrantly ignore whatever they choose? Can the legal community punish him?

  • 39. FlexSF  |  September 27, 2011 at 10:07 am

    It is interesting that the anti-gay, Christian-industrialist-assholes use the term Dark Side to describe supporters of legal equality. The dark side is a psychic concept, but equality under the law is real and tangible.

  • 40. Gregory in SLC  |  September 27, 2011 at 10:22 am

    LGBT People In Church: Top 5 Questions Asked By Opponents Of LGBT Inclusion
    http://www.huffingtonpost.com/rev-dr-janet-edward

    Sadly, I know many LGBT people who began their understanding of themselves where tradition and religion taught them: They believe for years that they are defective, sinful and need to be healed. They beg Jesus for that healing for years. And His answer to them is that they are whole and good as they are. Period.

  • 41. Steve  |  September 27, 2011 at 10:47 am

    Leisha Hailey's girlfriend is her Uh Uh Her bandmate Camille Grey I think

  • 42. Gregory in SLC  |  September 27, 2011 at 10:57 am

    Good Grief!

    Is the Republican Party ready to be turned into a party that sacrifices religious liberty on the altar of unrestrained sexual license?

  • 43. Chris in Lathrop  |  September 27, 2011 at 3:10 pm

    I will not tolerate this sort of defamation of your average loathsome, pathetic coward! I think it's time to invent a new word to describe such inhumane entities.

    Suggestions?

  • 44. 415kathleenk  |  September 27, 2011 at 3:11 pm

    big huge :D!! thanks for posting this for us

  • 45. Phillip R  |  September 27, 2011 at 3:13 pm

    Not sure if this has already been posted but….

    Transgender kids: Painful quest to be who they are
    http://www.cnn.com/2011/09/27/health/transgender-

  • 46. Reformed  |  September 27, 2011 at 3:24 pm

    Most gay people show about 110% restraint in public when it comes to public displays of affection. Not saying you have too show restraint, but that has been my experience. I notice there is more in certain areas of town when it is more expected. I think on an airline wouldnt be the best place. I guess if its worth missing a flight? Hmmm. . . Dont know quite what to think. Have to look for the story. Maybe they were booted for making a scene by confronting the bigotry. Airlines are not the best place to do that. Power tripping flight attendants rule and taken no prisoners, but thats more my obserevation on US airways than Southwest.

  • 47. Elizabeth_Oakes  |  September 27, 2011 at 7:40 pm

    Santorum?

  • 48. Ronnie  |  September 27, 2011 at 7:47 pm

    ROFL….. I just spit iced tea everywhere…. ; ) …Ronnie

  • 49. Elizabeth_Oakes  |  September 27, 2011 at 7:56 pm

    Yep, they can pretty much ignore whatever they want. When you're a Supreme, you're made, and pretty much untouchable. Hell, there was even a Supreme Court justice who was SENILE, and I think they had to wait for him to DIE before replacing him. Unless a SCJ steps down on their own, they ain't goin' nowhere. I was hoping one of those satellite bits on re- entry would take out the conservative branch, but no such luck.

  • 50. Elizabeth_Oakes  |  September 27, 2011 at 7:57 pm

    Ooo! Sounds fun!

  • 51. James Sweet  |  September 28, 2011 at 5:31 am

    Right, I mean, if they were totally making out, then regardless of the gender of the participants, it was reasonable to ask them to stop, and to possibly escalate if they didn't stop osculating. (ba-dump) And that's Southwest's story — but of course we have a rich history of same-sex couples being harassed for something as innocent as a public peck on the cheek, and then the perpetrator lying about it and trying to use that excuse.

    I'm strongly inclined to trust the couple before I would trust Southwest because sadly their narrative is more plausible. But of course without a video of the incident we will never know for sure (even other passengers' accounts are going to be colored by their own biases and imperfect recollections). Very sad, really… I guess we just have to look forward to a day where this is a non-issue, where the idea that somebody would kick out a same-sex couple for an innocent and very mild PDA and then lie about it is as strange an idea as if they did it to an opposite-sex couple.

  • 52. atty79  |  September 28, 2011 at 6:27 am

    I'd agree also, though this seemingly knee-jerk and obsessive use of stays in this case are getting old. With such an abundance of appeals, not only in this case but also in others, it's beginning to look like the job of the district court judge is just to baby-sit a case until appeal. It's impugning the trust given to the judge to make decisions. Note that this sentiment isn't so much about whether appellate courts can do this. Rather, it's about whether they should do this. By ignoring or postponing judgments at the district level, the appellate court is undermining the trust we put into our district court system if not directly than at least by appearance.

  • 53. James Sweet  |  September 28, 2011 at 8:25 am

    It's not quite as bad as all that, since all the findings of fact in the district court case remain, i.e. the appeals courts cannot just have a whole new fresh trial, they can only base their decisions on stuff that happened in the original trial, and there are limitations on what sorts of things they can change. The actual Walker trial still counts, and it counts a lot.

    Nonetheless, I hear ya…. Frustrating.

  • 54. atty79  |  September 28, 2011 at 8:59 am

    I'm looking at it from the perspective of a system as a whole. The purpose of the district courts is to adjudicate. The purpose of the appellate system is to review for error. These stays amount to an assumption that error exists, that the original adjudication was wrong.

    I disagree with you that facts cannot be reviewed fresh, as if there were a fresh trial. The facts are given deference but by no means are they off limits. Moreover, a remand order can have the effect of the appeals court having "a whole new fresh trial." Additionally, appellate judges or justices find creative ways to upend a lower courts decision by focusing on procedural issues or coming up with bizarre legal interpretations. Point in case is the Supreme Court's unprecedented decision to prevent broadcast of the trial in the first place.

    Again, my frustration rests in what I would consider an untenable use of appellate discretion. A stay is supposed to be a difficult and unlikely result. Now, it appears to be the status quo. As you mentioned, the original stay in the Prop 8 case was based on the D-I's stupid arguments of "harm". Yet, it was granted.

    Equally, what harm exists with the release of nonconfidential parts of an open bench trial? The appellate court shouldn't have needed briefs to make this decision. The answer should be obvious, particularly in light of the judge's opinion in this matter.

  • 55. Kathleen  |  September 28, 2011 at 9:34 am

    I so agree with your perspective on this. Stays are not supposed to be a knee-jerk reaction, as they seem to have been throughout this case.

  • 56. Kathleen  |  September 28, 2011 at 9:42 am

    The briefs that are being asked for here are in response to the Proponents' emergency motion for a stay; these are not the briefs on the merits of the appeal. The Court could decide it wants arguments on the question of the stay, but that's unlikely. After receiving these briefs (i.e., after Oct 10), the 9th Circuit will decide whether a permanent stay, pending appeal, will be put in place. After it makes that decision, THEN the Court will proceed to consider the merits of the appeal.

    All that said, in this case, not extending the temporary stay into a more long-term stay pending appeal will have the effect of making the appeal moot, as copies of the recordings will be in public possession.

  • 57. Bill S.  |  September 28, 2011 at 10:14 am

    The problem with your argument is that the Supreme Court *sets* the supreme legal precedent for the country. The Supreme Court justices — liberal and conservative — are free to decide against existing precedent because it is they who make the precedent.

    (Keep in mind that Lawrence v. Texas itself overruled existing precedent in Bowers v. Hardwick.)

  • 58. Phillip R  |  September 28, 2011 at 10:15 am

    From my understand Reformed nailed it. Southwest is saying that they were booted because of the arguing and the confrontation and not because of the kiss. Of course, the kiss and the resulting scolding from SW is what started the confrontation in the first place. You can't really separate that from it much like SW is attempting.

    I got into a series of debates with people yesterday on this topic. If the ladies really were heavy making out, then yes…I can understand about something being said. However, the girls say that it was a single modest kiss. Judging whether something is excessive or not is a bit difficult without actually seeing it though.

    I saw a lot of arguments about how it wasn't a gay issue and that PDA's are wrong all the way around, etc etc. While I can kinda understand the argument, the issue is that we are held to a different standard when it comes to PDAs in general. A straight couple kissing is less likely to even be noticed than a gay couple holding hands. That's enough to send some people into seizures. It somehow becomes completely sexual (instead of just simple affection) and then it's 'shoving it down their throats'. Knowing that there is a different standard in that regard, I think it makes it more likely that it wasn't as excessive as SW is claiming.

  • 59. James Sweet  |  September 28, 2011 at 11:37 am

    Money quote from Phillip R:

    Knowing that there is a different standard in that regard, I think it makes it more likely that it wasn't as excessive as SW is claiming.

    Bingo. Yeah, it could be that the women were in the wrong, that it was an excessive PDA that has no place in that kind of environment, regardless of the gender of the participants. That's possible. But we know there is already a double-standard, so as long as it's "he said, she said" (hah! Is that a heteronormative expression?) I'm inclined to believe the women and not Southwest.

  • 60. James Sweet  |  September 28, 2011 at 11:42 am

    Equally, what harm exists with the release of nonconfidential parts of an open bench trial?

    Well, just off the top of my head, it potentially creates publicity which would help make the witnesses more recognizable, and if they had a reasonable fear of significant backlash as a result, one could argue that the "harm" (to the Bad Guys) would be that there would be a chilling effect against witnesses testifying in favor of the Bad Guys.

    I think that argument ultimately fails because the public interest of unsealing the tapes massively outweighs that potential "harm" — but that's the point, the court has to weigh concern X against concern Y. In the main case, there are no valid concerns for the Bad Guys. As to this question, there are valid concerns, they just happen to be fairly inconsequential.

  • 61. atty79  |  September 28, 2011 at 1:59 pm

    The court did weigh concern X against concern Y. It did so in its opinion providing for the release of the tapes–at the district level. There's no need for a duplicate procedure at the appellate level.

    In this case in particular, it's become a clear (and unfair) assumption that the lower court doesn't know what it's doing. This undermines our judicial system and makes the appellate court seem like it wants its hands in every decision. That isn't its duty.

  • 62. Gregory in SLC  |  September 28, 2011 at 2:09 pm

    You are fun! (always appreciate your clever whit!)

  • 63. Gregory in SLC  |  September 28, 2011 at 2:11 pm

    Time for us to go on a group KISS-IN on Southwest Airlines!
    http://www.affirmation.org/news/2009_082.shtml

  • 64. MFargo  |  September 28, 2011 at 2:33 pm

    I feel we're at some kind of tipping point with the whole issue of same-sex marriage, and the Courts' ambivalence at something so inherently "radical" given the opposition by such "stalwarts" of morality like the Catholic/Mormon churches as well as a nasty Constitutional amendment by the voters of California all point to caution by the judiciary. Judge Walker stepped up and spoke out in his ruling, although he had little choice given the performance by the DI's in this case. Judge Walker's ruling is so persuasive that it seemed to stump the 9th Circuit Appellate Judges (I guess; they were so laconic in their reception it was odd). And there's also the fact that you can't really put the genii back in the bottle by letting marriages resume nor letting the tapes out in the public. So I'm confident and patient, if annoyed.

  • 65. MFargo  |  September 28, 2011 at 2:35 pm

    (a cloud passes over the Sun at a mention of his name)

  • 66. Von  |  September 28, 2011 at 5:06 pm

    Santorum? I'm gonna have to google that! :D

  • 67. Kathleen  |  September 28, 2011 at 11:07 pm

    Yes, the motion here – the one where briefs are due in the next two weeks – is just on the question of whether to stay the district court order pending appeal.

    There has been a schedule set for the briefs on the merits. That schedule is always issued at the time the case is docketed. At present, opening briefs on the merits are due January 2, 2012, with briefing complete by approx. mid-February. But as we know, the schedule could change. Plaintiffs could ask that it be expedited; the Court could decide on its own to expedite, as it did in the main appeal. Here's the scheduling order for the merits briefs:
    http://www.scribd.com/doc/66070454

  • 68. James Sweet  |  September 29, 2011 at 6:01 am

    The court did weigh concern X against concern Y. It did so in its opinion providing for the release of the tapes–at the district level. There's no need for a duplicate procedure at the appellate level.

    I was speaking to the reason for a stay assuming that the appeal is likely to be heard. Your argument that the appeal should not even be heard — that the lower court's ruling should be respected — is a separate issue, and I don't have much to say about it, except that you ought to ask yourself if you'd feel the same way if you disagreed with the lower court's ruling. i.e. if Ware had ruled the tapes should remain sealed, and our side appealed — should the district court's ruling be respected?

    In any case, though, granting that the appellate court is likely to at least hear the arguments for the appeal — granting that up front — then it is a no-brainer to extend the stay, because releasing the tapes is an action that can't be undone, and in which there is at least theoretical harm (even if that harm is relatively trivial and massively outweighed by the public interest).

    Anyway, you asked "what harm exists" and I think I answered that. If you think that shouldn't count as enough to grant a stay, that is your opinion… but we have these appeals processes in place for a reason. Lower courts can and do get it wrong. The district court got it right in this case, but I'm sure you recognize how silly it is to suggest "Only cases where the district court is wrong should be allowed to be appealed."

  • 69. James Sweet  |  September 29, 2011 at 6:05 am

    Question 2: "How can you be sure that you aren't just making stuff up…"<.blockquote>

    Heh.

  • 70. atty79  |  September 29, 2011 at 6:37 am

    James, my argument is not that appeals should never be heard. My argument is about granting stays on the decisions of the district court, even temporary ones as is the case here. Such knee-jerk stays by the appellate court, particularly in light of well-written decisions, undermine the relevance of the district court. And yes, my opinion is the same regardless of the district court's opinion.

    To make my point absolutely clear, I am not talking about whether appeals should be granted. I'm talking about the extraordinary grant of a stay by an appellate court.

    Anyway, yes, I did ask what harm exists. And your answer further supported the notion that this stay is an abuse of the appellate court's jurisdiction. You said, "I think that argument ultimately fails because the public interest of unsealing the tapes massively outweighs that potential 'harm'". In fact, weight of harm, as well as likelihood of success on the merits, is paramount to a determination of granting a stay. That sense of potential harm resting more heavily on the public interest should've caused the appellate court to deny the stay. But as you said, that is my opinion.

    I agree with you that lower courts do get it wrong. But if we run on the assumption that they will get it wrong, then their purpose becomes ceremonial.

  • 71. AnonyGrl  |  September 29, 2011 at 7:08 am

    I'm with you!!

  • 72. Alan_Eckert  |  September 29, 2011 at 10:37 am

    The difference here is that once the videos are out, there is no chance of reigning them back in if the ruling happens to go the other way. It would make the case moot, and the appellants wouldn't have a chance of a fair appeal.

  • 73. atty79  |  September 29, 2011 at 1:39 pm

    Appeals courts shouldn't be in the business of artificially keeping cases alive without good reasons. If the 9th Circuit made its decision to grant the temporary stay because the case would become moot, it has, in effect, placed its own interests in hearing the matter (and providing the appellant with a fair appeal) over those of the appellee, who has won the matter at the lower court. It has also ignored the precedence provided it to grant such an extraordinary order.

    In the grand scheme of things, yes, mootness is affected by grants of stays. But it should not be the reason a stay is granted.

  • 74. Prop 8 Trial Tracker &raq&hellip  |  November 28, 2011 at 2:27 pm

    [...] 8′s proponents filed an emergency request with the 9th Circuit to stay the order, which wasgranted, and have appealed the [...]

  • 75. Prop 8 Trial Tracker &raq&hellip  |  February 2, 2012 at 10:36 am

    [...] 8′s proponents filed an emergency request with the 9th Circuit to stay the order, which was granted, and appealed the decision.  In a December 8 hearing on the matter, an appeals panel of the 9th [...]

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