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Plaintiffs, San Francisco file reply briefs with 9th Circuit
December 2, 2011
9th Circuit Court of Appeals Briefs Prop 8 trial
By Jacob Combs
Again, via Kathleen, here are the reply briefs for the plaintiffs (our side) and the City and County of San Francisco.
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28 Comments Leave a Comment
1.
Sam | December 2, 2011 at 7:28 pm
Boies and Olson put up a valiant fight, but I still have the very strong feeling that the Court will grant proponents standing. I'm convinced by CASC/Cooper that the decision satisfies the Arizonans aspect, that there is now a provision of CA law–indeed, of the CA Constitution–that specifically authorizes their intervention. On to the merits, I say.
2.
Straight Dave | December 2, 2011 at 8:39 pm
I also expect the 9th to find standing and address the merits. But I'm a lot less certain that SCOTUS will see things that way – or want to see things that way. It would put them in an awkward position. I'm not sure they'd be comfortable with either overturning Walker's opinion or affirming it with nationwide impact. Their other choices would be denying cert, which leaves the 9th's ruling in place (I'm expecting that will be equality), or finding some loophole to deny standing and leaving Walker's ruling in effect just in CA. The latter is the least painful for SCOTUS to swallow.
3.
DaveP | December 2, 2011 at 9:39 pm
Can anyone please chime in and confirm -where exactly will the Thursday hearings be (which court building / street adress)? I scrolled through the posts but couldn't find this info. Thanks!!
4.
Sam | December 2, 2011 at 10:12 pm
Perhaps. Still, the fact that proponents' have solid state constitutional law on their side may play against that factor. But of course you may well be correct.
5.
sfbob | December 2, 2011 at 10:20 pm
This is why I can hide under the fact that I'm not a lawyer; there are nuances I simply don't have the requisite training to grasp unless someone else spells them out for me rather explicitly. Instead, it's rather easy for me to go on a "gee, that kind of sounds as though it makes sense" sort of approach. The plaintiffs's responses do two things: First the chief counsel's brief articulates why the CASC ruling does not favor Article III standing because there is a difference between "state law grants ballot measure proponents the right to defend ballot measures in the event the state refuses to do so" and "ballot measure proponents suffer actual harm if their measure is overturned."
The SF City Attorney's Office brief affirms that while in addition providing arguments relating to the merits of the case and the way Prop 8 was presented to voters versus how it was defended in the courts.
6.
sfbob | December 2, 2011 at 10:25 pm
It seems to me that there may be two different arguments going on: one is whether state constitutional law provides appeal rights to the proponents of ballot measures in the absence of the state stepping in to defend their enacted measure (and apparently it does); the other is whether that right would translate into the sort of particularized harm needed to successfully assert Article III standing. Not being an attorney the plaintiffs briefs seem to make excellent arguments that the one does not necessarily–in fact does not even begin to–translate into the other.
7.
sfbob | December 2, 2011 at 10:29 pm
The Ninth Circuit Court of Appeals is located at 95 Seventh Street (northeast corner of Seventh and Mission).
http://www.ca9.uscourts.gov/information/locations…
8.
Ann S. | December 2, 2011 at 10:46 pm
Thanks, Jacob and Kathleen!!
9.
DaveP | December 2, 2011 at 10:47 pm
Thanks, Bob!
10.
SeattleRobin | December 3, 2011 at 12:26 am
I found the San Francisco brief particularly interesting. It appears to my non-lawyer eyes that she's trying to trap the proponents into a very narrow box from which they can legitimately argue if they are granted standing by the 9th Circuit. I have no idea what kind of weight the Court would give her arguments, but to my untrained understanding it looks pretty clever.
11.
Be4marriage | December 3, 2011 at 5:17 am
They don't have solid state constitutional law on their side. The supreme court specifically stated they were not addressing federal standing.
12.
MJFargo | December 3, 2011 at 9:19 am
My biggest concern is: If the proponents are granted standing that SCOTUS will have wide berth to nail the case on procedural matters, and who knows what they could do. Of course, it could also be just as likely that SCOTUS would refuse to hear the case, but I just don't like having this "goof" of granting standing in the absence of meeting Title III requirements. Alot of mischief could be made over the matter and the merits of the case lost in a sea of procedural arguments (which is already the case). .
13.
Str8Grandmother | December 3, 2011 at 11:59 am
Both sides have already argued on the merits and standing. It looks unlikely that they are going to re-argue standing after having received the California Supreme Court advice, although I guess they in theory could. Thursday they are going to argue on the tapes and if the case should be thrown out because Walker is gay. I think we are going to run the table and finally get a decision on the merits. I think they will grant standing and rule in favor of Plaintiffs.
Even down the road if the Supreme Court takes the case and says defendents do not have standing and they thus never look at the merits, at least the case was decided twice in our favor, on the merits. I always have that little worry in the back of my mind that court case Arizonans for Official English v. Arizona which also had the Federal standing issue and the Supreme Court did not let the lower courts ruling stand but vacated the decision.
Instead of shying away from these marriage cases I think the issue is ripe and that the U.S. Supreme Court will accept these cases (DOMA, Prop8). Their job is to decide important issues for our country and I do not think they will slack in their duty.
14.
Deeelaaach | December 3, 2011 at 10:37 pm
My memory says that we've been down that road already, and that the appeal to throw out the case due to Walker was itself decided on already. My memory is often suspect, so am I mistaken? If I'm not mistaken, why is the issue being revisited? I'm not a lawyer, so …
15.
Deeelaaach | December 3, 2011 at 10:38 pm
If it's not clear, I'm referring to the claim that Walker should not have decided the case due to accusations of bias.
16.
Mike | December 4, 2011 at 1:07 pm
Judge Ware denied the request vacate Judge Walker's decision because of his sexual orientation. The Prop 8 people appealed, and so it's now at the 9th Circuit, along with the request to release the tapes and the original Prop 8 decision itself. There won't be any new arguments on the latter issue–the decision itself–but on Thursday there will be arguments on the request to vacate and the request to release the tapes. Any decisions from the 9th Circuit can then be appealed again to the Supreme Court (or, first, the 9th Circuit en banc).
These have all been "decided," so you are correct. This is the appeals step.
17.
David | December 4, 2011 at 5:43 pm
I think the odds that they get standing are 80/20. However, on the merits, I'd remind you all that there are several ways to shoot down Prop 8 without finding a constitutional right to same-sex marriage. For example, the 9th Circuit could focus on the fact that CA's marriage system is currently an arbitrary and irrational patchwork, recognition for out of state marriages pre-May 2008, recognition for in-state and out-of-state gay marriages from May to November 2008, but no other gay marriages, after that but with domestic partnerships continuing to be recognized. The 9th Cir. could just strike down Prop 8 on this basis and never get to the broader constitutional issues. Then, SCOTUS wouldn't feel the need to take the case, as it would be CA-specific. I'd bet money that Prop 8 goes down on the merits, but on CA-specific grounds, not on a broad constitutional ruling.
At that point, the interesting thing will be whether the pro-Prop 8 folks would go back to the ballot with a second attempt, this time cleaning up all the errors that they committed the first time, i.e., an effort that would sweep out all same-sex marriages regardless of the date on which they were created, and which would be carefully promoted in a way to avoid an equal protection challenge.
18.
Bill S. | December 5, 2011 at 1:24 am
QUOTE: , "i.e., an effort that would sweep out all same-sex marriages regardless of the date on which they were created, and which would be carefully promoted in a way to avoid an equal protection challenge."
This would be stricken down faster than you can say "ex post facto law." Even if it didn't violate the Equal Protection Clause, a ballot measure that would retroactively annul gay people's marriages is clearly an ex post facto law.
19.
Lymis | December 5, 2011 at 7:18 am
Not a lawyer. But I don't see how lack of standing in federal court would knock out Walker's ruling as it applies to California – remember, the state DID show up as defendants in the initial case because they had no choice, they were the ones being sued. The court let the Prop 8 people argue the case, but the state was there and simply sat there, being there, period.
So, whether or not they had standing in the first place has nothing to do with Walker's ruling. Just whether they have the right to appeal it when the state chose not to. Even if SCOTUS find that there was no standing for appeal, that should only limit the ruling to California wouldn't it?
20.
Lymis | December 5, 2011 at 7:22 am
I don't know if that really hold up. The state itself (the governor and the AG) don't have to demonstrate personal harm to file an appeal – they are acting on behalf of the state as a whole, not as concerned citizens.
I think it's a slam dunk that the Prop 8 proponents don't have standing as citizens to file an appeal, but the theory is that the California Constitution gives them the right to act for the whole state in the same role that the Executive Branch usually does. That's a different question – whether a state Constitution can grant anyone other than the formal Executive Branch similar standing in federal court.
21.
Lymis | December 5, 2011 at 7:28 am
I get confused, but in Arizonans for Official English, weren't they the Plaintiffs? When their standing was denied, it flushed all the way down to the original court.
In Perry, there is no Article III question that the Plaintiffs had the right to sue the state. So a SCOTUS standing question regarding the Intervenors would only wipe out their participation, not the actual original parties'. It shouldn't invalidate the ruling. The state was there as the Defendants. They just didn't do anything.
22.
sfbob | December 5, 2011 at 8:13 am
I think the SF City Attorney's brief makes good points about the problems with having the proponents act on behalf of the state. And actually I think there were some rather large caveats in the CASC decision. The interest of the state in defending its laws may still not translate into Article III standing. But we'll see.
And at that, there will be some satisfaction in seeing the ruling upheld on its merits rather than on the issue of standing.
23.
Str8Grandmother | December 5, 2011 at 11:45 am
Thank you Lymis! I have had that little nagging worry but it never dawned on me that in Arizona they were the Plaintiffs. Whew!
24.
David | December 5, 2011 at 7:10 pm
It would not be struck down as an ex post facto law b/c that prohibition only applies to criminal laws, not civil laws such as CA's marriage law. As for an Equal Protection challenge, in theory, second attempt could survive such a challenge – if the proponents took care to create a record that showed no discriminatory aniums (something that the Prop 8 proponents did not have).
Now this is a very difficult needle for the proponents to thread. They would have to convince CA voters to pass an initiative that would destroy thousands of existing marriages and they would have to do so in a way that avoids their usual fear mongering, preducial strategies. And they would have to manage this in 2012 or later, when public opinion has moved away from them. They would likely fail. But if the alternative is to acquiesce to gay marriage in CA, they might feel compelled to make the effort anyway, thus setting up a $100 million rematch in CA.
25.
Bill S. | December 6, 2011 at 7:26 am
You're right.
From Calder v. Bull (3 U.S. 386, 1798)
===
I will state what laws I consider ex post facto laws, within the words and the intent of the prohibition. 1st. Every law that makes an action , done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2nd. Every law that aggravates a crime, or makes it greater than it was, when committed. 3rd. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender. [3 U.S. 386, 391] All these, and similar laws, are manifestly unjust and oppressive. In my opinion, the true distinction is between ex post facto laws, and retrospective laws. Every ex post facto law must necessarily be retrospective; but every retrospective law is not an ex post facto law: The former, only, are prohibited. Every law that takes away, or impairs, rights vested, agreeably to existing laws, is retrospective, and is generally unjust; and may be oppressive; and it is a good general rule, that a law should have no retrospect: but there are cases in which laws may justly, and for the benefit of the community, and also of individuals, relate to a time antecedent to their commencement; as statutes of oblivion, or of pardon. They are certainly retrospective, and literally both concerning, and after, the facts committed. But I do not consider any law ex post facto, within the prohibition, that mollifies the rigor of the criminal law; but only those that create, or aggravate, the crime; or encrease the punishment, or change the rules of evidence, for the purpose of conviction.
===
Hopefully the citizens of California would not be so heartless as to approve a ballot measure that would actually annul people's marriages that already exist. And even if they did, I think it would definitely be the springboard to a full marriage-equality Supreme Court ruling, if this one isn't.
26.
David | December 7, 2011 at 11:06 am
I think a second attempt of that magnitude would fail. They were deliberately vague about retroactivitiy even in the 2008 campaign, hoping that the issue would garner little attention. If they were worried about it in 2008, it is likely an insurmountable obstacle in 2012 or later. However, my point is not that they would win, but that they would feel compelled to roll the dice rather than accept gay marriage in the largest state in the US. We should be aware that after the Perry case is over and even if we win, we might have one final titanic clash to fight.
27.
Deeelaaach | December 7, 2011 at 3:14 pm
Thank you Mike, I forgot that they appealed the denial.
28. Prop 8 Trial Tracker &raq&hellip | December 8, 2011 at 7:21 am
[...] any further hearings on the constitutional merits of the case itself or the issue of standing. Reply briefs regarding the California Supreme Court’s decision to grant the proponents standing [...]
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