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9th Circuit asks for supplemental briefs following yesterday’s CA Supreme Court decision

9th Circuit Court of Appeals Briefs Prop 8 trial

By Jacob Combs

Thanks to Kathleen for bringing us some important updates regarding Perry v. Brown via Quick Hits!  The 9th Circuit has ordered both parties in the case to file supplemental briefs regarding yesterday’s California Supreme Court decision that the proponents of Prop 8 have standing under state law to defend the ballot initiative in court.

The 9th Circuit gave a 14 day deadline for the submission of these new briefs, which would bring us to December 2.  In my opinion, the brief’s final sentence demonstrates the appellate panel’s wish to bring the case to a speedy conclusion:

“No response or reply briefs will be permitted, and no motions for extension of time will be entertained.”

As Shannon Minter and Christopher Stoll pointed out in their excellent guest post this morning (if you haven’t read it yet, check it out!), this appeal has been pending for over a year, and it’s likely the court wants to get a decision out soon.

Kathleen also brings us the proponents’ letter to the 9th Circuit notifying them of the CA Supreme Court’s decision, their request to consolidate the main appeal with the appeal of Judge Ware’s denial to vacate Judge Walker’s decision based on his sexuality, and their reply brief regarding the motion to vacate.

A busy day, with many filings to read!  See below for the full (and quite short) order from the 9th Circuit.

38 Comments

  • 1. MightyAcorn  |  November 18, 2011 at 10:27 am

    Ah! So standing on the federal level isn't necessarily a done deal! I will look forward to reading the parts about particularized harm, which I believe will be the most hotly contested issue.

  • 2. MightyAcorn  |  November 18, 2011 at 10:30 am

    …and as always–practically a daily chant around here–thanks Kathleen. :)

  • 3. John  |  November 18, 2011 at 10:39 am

    That last one, on the motion to vacate, is a pretty huge pile of crazy. I'm sort of shocked they'd phrase their arguments in such an incendiary way–esp on point #6. I don't know how these things are received, but I can't think it'd help them at the 9th Circuit.

  • 4. Steven  |  November 18, 2011 at 10:49 am

    Wow, I think 9th Circuit will make final decision by end of December or first of year like last year.. I believe that they already hand down a decision, but they want some more briefs..

  • 5. Steven  |  November 18, 2011 at 10:53 am

    DUH moment again I believe that they are already to hand down,,,, sorry for grammar

  • 6. Larry  |  November 18, 2011 at 10:57 am

    Footnote 3 seems to imply that a judge in a long term opposite-sex relationship would have to recuse themselves too. And footnote 4 admits that same-sex marriage wouldn't harm any of the proponents' individual marriages, but only the abstract "institution of marriage". But by saying that they're not directly affected, only society in general, it seems like they're contradicting their own arguments for standing.

  • 7. Bob  |  November 18, 2011 at 11:52 am

    One thing nobody bothers to mention regarding the recusal issue is that, had Walker and his partner wanted to do so, they could have a) become registered domestic partners and presumably (though not really) have acquired the same rights and responsibilities as a heterosexual married couple in CA, b) married between June 2008 and November 2008 or c) have gone to another state, such as Massachusetts, where marriage equality already obtains and marry there.

    It is I suspect arguable that marital status, or propensity to obtain marital status, is no more a valid reason for recusal than race, gender or sexual orientation. The Prop 8 folks really do not know when to quit. They aren't going to win this and quite apart from any legitimate, non-bias-based arguments, their case is burdened by some very, very poor lawyering.

  • 8. Ronnie  |  November 18, 2011 at 12:07 pm

    ; ) ………Ronnie

  • 9. Carpool Cookie  |  November 18, 2011 at 12:20 pm

    "b) married between June 2008 and November 2008 "

    All valid points.

    You could add to this that in 2004, there was a period in which Mayor Gavin Newsom of San Francisco, where Walker lives, made marriage licenses available to same sex couples. Apparently Walker and his partner were not interested in the option available in their own city at that time, either.

  • 10. MJFargo  |  November 18, 2011 at 12:21 pm

    I hope both the Govenor and Attorney General get a chance to address yesterday's opinion.

  • 11. Carpool Cookie  |  November 18, 2011 at 12:37 pm

    Sooo many things so absolutely wrong wrong wrong with the h*ers' Reply Brief.

    One thing is, I'm sure millions of Americans across the country — dare I say, males especially — would go absolutely, stutteringly COLD (in fact, hyperventilate and PASS THE F#@K OUT) if they were told their long term relationships put them on an automatic track to marriage (!!)

  • 12. Carpool Cookie  |  November 18, 2011 at 12:39 pm

    I mean H8ers' Reply Brief, obviously.

    There was a time I had an edit button : (

  • 13. AnonyGrl  |  November 18, 2011 at 1:31 pm

    Truly. I think we just need to subpoena the father of Maggie Gallagher's first child and ask him if being in a relationship automatically means it is heading towards marriage.

    Was that too snarky?

  • 14. David Henderson  |  November 18, 2011 at 2:00 pm

    On the other hand, being a judge, Walker would have likely known that the 2004 SF marriage licenses would have been invalid.

    On the third hand, at that time Walker and his boyfriend would have only been dating for three years, which may or may not have been enough time for them to decide to make that sort of commitment.

  • 15. DaveP  |  November 18, 2011 at 2:02 pm

    Oooh no you dih-unt!

  • 16. Leo  |  November 18, 2011 at 2:22 pm

    On the fourth hand, we don't know that they didn't, do we?

  • 17. chiefscribe  |  November 18, 2011 at 2:55 pm

    Worth reading: http://cruz-lines.blogspot.com/2011/11/ca-supreme

  • 18. Bryce  |  November 18, 2011 at 3:47 pm

    From the reply brief:
    "For while Plaintiffs assert—wrongly, see id. —that our understanding of Section 455 “ ‘would come dangerously close to holding that minority judges must disqualify themselves from all major civil rights actions,’ ” Pls. Br. at 31 (citation omitted), it is clear that adoption of their recusal rule would indisputably mean that minority judges would never be disqualified from any civil rights cases on the ground that the judge has a direct and personal “interest that could be substantially affected by the outcome of the proceeding."
    …But Judge Walker didn't have a direct and personal interest… you can't say he wants to get married without speculating, which Liljeberg says is a no-no. What are these people even talking about?
    Also, they argue that "Under our view of the law of judicial disqualification, for example, a white judge, no less than a black one, would have been disqualified from hearing the Alabama case if his teenage child had an application pending at the colleges in dispute."'
    So a heterosexual who is in a relationship–or married–would not be viewed any differently from Judge Walker? I suppose it isn't his (fictitious) interest in marriage, but rather his (fictitious) interest in marrying another man. Then wouldn't the Judge in Alabama's kids interests still be implicated because the legal issue had to deal with racial restrictions on colleges?
    Am I missing what they are saying, or is this just no longer intelligible at all?

  • 19. Steven  |  November 18, 2011 at 3:49 pm

    thanks i knew that CA Supreme Court ignored the main question.. IF 9th CCOA grants standing i bet USSC will overturn standing.. JMO

  • 20. Carpool Cookie  |  November 18, 2011 at 4:03 pm

    "Am I missing what they are saying, or is this just no longer intelligible at all? "

    It all gets very mind-bendy, very fast.

  • 21. Carpool Cookie  |  November 18, 2011 at 4:06 pm

    Who IS the father of Maggie's musical-theater-loving son? Is it someone she met at a frat party? Was it actually any kind of "relationship" at all?

  • 22. Bryce  |  November 18, 2011 at 4:11 pm

    Can I just point out the irony that when a teenage child is "“mooned,” “flipped off,” receive[s] angry phone calls, [is] confronted by individuals in public places, ha[s] pictures taken of them to “post on Facebook,” receive[s] vulgar notes, [is] pushed and yelled at with expletives in public, ha[s] garbage thrown on them,… receive[s] death threats [or is killed]" it is just kids being kids, and the government need not intervene.
    And yet, when it happens to anti-gay marriage activists, it is harassment and Judge Smith feels the need to champion their cause? Brian? Maggie? Cooper? Anyone wanna take a shot at explaining that one?

  • 23. Bryce  |  November 18, 2011 at 4:12 pm

    Nah. The Matrix is mind-bendy. This is just gibberish. None of it makes sense!

  • 24. shelostcontro1  |  November 18, 2011 at 4:16 pm

    gurl you don't know? He knocked her up, left, became a doctor and has his own family now.

  • 25. Bob  |  November 18, 2011 at 4:20 pm

    I'm hoping that there will be a flood of amicus briefs from our side, opining that standing at the state level should not equally apply at the federal level. Cruz's blog entry contains some good arguments which might be very handy to keep around.

  • 26. mark  |  November 18, 2011 at 4:45 pm

    We really blew it for letting Maggie Gallaher Svrivastav get away with out having her investigated and exposed….If more people knew she was a fraud they would have felt differently about SSM.. Knocked up at 2 and had a child out of wedlock and we can assume that her marriage to Raman is a sham marriage most likely to have gotten him a green card. Why has NO ONE EVER seen him or a picture of him.

  • 27. Mark  |  November 18, 2011 at 5:07 pm

    What would have happened if the then governor and/or attorney general had stated that they would defend the proposition, and after the plaintiffs had presented their case, just said “the defense rests”?

  • 28. MightyAcorn  |  November 18, 2011 at 5:44 pm

    Or maybe Walker's the kind of judge you date, but not the kind you marry…..*cue intro to patter song by town gossip character about scandalous justices and their beaus*

  • 29. MightyAcorn  |  November 18, 2011 at 5:46 pm

    *cue another patter song " Gurl Don't You Know?" about Maggie, Rekers, luggage lifting, and the like*

  • 30. MightyAcorn  |  November 18, 2011 at 5:50 pm

    The episode would have ended with a fade-out and then gone to commercial. Not something you'd ever do in a real court for fear of contempt charges, I reckon.

  • 31. Steven  |  November 18, 2011 at 5:56 pm

    hmm I'm thinking if they have another hearing probably it will be in January or February and the decision will come in March.. If they just want briefs without hearing they will have a decision by January or so..

  • 32. Prop 8 Trial Tracker &raq&hellip  |  November 18, 2011 at 7:38 pm

    [...] today, the proponents of Prop 8 suggested consolidation of main appeal regarding Judge Walker’s verdict with the appeal of Judge [...]

  • 33. peterplumber  |  November 18, 2011 at 8:57 pm

    It's all NOM. They are paying to prolong this case so they can garner more contributions to prolong this case so they can garner more contributions to prolong this case so they can….

  • 34. Steven  |  November 18, 2011 at 9:07 pm

    I believe that Judge Smith is on our side of this issue..

  • 35. DaveP  |  November 18, 2011 at 10:00 pm

    I was picturing the 'barn dance' scene from the episode "Who is Eric Cartman's Father?"

  • 36. Prop 8 Trial Tracker &raq&hellip  |  November 21, 2011 at 8:32 am

    [...] us with the status of the Referendum 71 petitions in Washington State, and on the 9th Circuit requesting supplemental briefs in the Prop 8 case following the previous day’s California Supreme Court decision. Later, the [...]

  • 37. Prop 8 Trial Tracker &raq&hellip  |  November 28, 2011 at 2:26 pm

    [...] is in, the appeal at the 9th Circuit can start up again.  On November 18, the appeals court notified both parties in the case that their briefs regarding the state court’s decision are due no [...]

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