Monday, August 9, 2010

Can they appeal?

There is much discussion in the blogsphere that technically, the defendants of the Prop8 case can't appeal the decision that went against them. This is because the Prop 8 case is addressing a state legal issue, and the state refuses to defend it. Both the Governor and Attorney General agree with the Judge's decision. The ones who DID defend the case are called "Defendant/intervenors" because they had to intervene, otherwise there would have been no defense.

The argument has been made that they lack standing, that is, aren't entitled to an appeal, because they aren't representing the state, and under some forms of appeal, private parties aren't allowed to stand in for the state.

Chris Geidner, an attorney who follows the Court, writes,

Although the argument was not fully laid out in the filing on Friday, it looks quite weak to me on the legal merits. All of the cases cited by plaintiffs appear from my review to relate only to instances where permissive intervention was granted and not intervention of right, as the proponents have here. Additionally, the cases cited appear to involve situations in which the state whose law or initiative was at issue did itself defend the law and, at some point in the appellate process, decided against appealing a lower decision. Here, of course, the intervening defendants were the only individual or entity defending the amendment even at trial.

If there were no appeal, Judge Walker's ruling would stand--but only with respect to California.

And of course, the bad guys would go apoplectic about "activist judges".

And if the state government were to change...then would the state be able to mount an appeal after the fact? Whitman is doing depressingly well against Brown. Is there a statute of limitations on appeal?

As Geidner concludes,

The case laid out at trial by the legal team led by Ted Olson and David Boies was impeccable. The argument -- legally, publicly and morally -- was nearly flawless. For all of the reasons described above, however, I see fighting the decision of the intervening defendants to appeal as a potential -- and unnecessary -- misstep.

I would keep the stay, and let the appeal go forward. That's me. you lawyer types, your thoughts?


James said...

I believe that "they" will find some way to take it forward. This issue is really the last legal discrimination and bigots need to discriminate as a means to make themselves feel superior. Sad, but true. As the California (and FED) economic situations worsens, I'm surprised that gays haven't been blamed for it. But then, I stay away from rabid TV preachers, for the most part.

IT said...

Well, but remember, if it goes forward it has the potential to affect more than CA. If it doesn't, the decision doesn't really do anything outside of CA--lack of appeal narrows it.

At some level, I think it needs to go forward. And I think politically it's better to leave hte stay in place and let it take its time.

Paul (A.) said...

The rules governing the time to take an appeal are complicated. The time can be extended if certain post-trial motions are made, and a party can move for an extension of the ordinary 30-day period, in some instances even after the period has expired. Many states' procedural laws are much more strict about the "statute of limitations" for filing appeals.

JCF said...

The H8 side is between a rock and a hard place.

If they appeal, they risk the "California decision" (ruling SSM bans unconstitutional) being applied on a wider basis.

If they don't, they leave California---the most populous state in the USA---free to marry same-sex couples in perpetuity. This not only establishes a bulwark/vangard of SSM far greater than all other SSM states (combined), it increases the chance that other states will (either legislatively or judicially, or both) follow.

The H8ers are running out of options. If they couldn't get a Constitutional Amendment in Bush's second term, it's safe to assume they won't be able to in the future (regardless of what happens this November or in 2012).

Their best hope is to get an anti-SSM ruling in the US Supreme Court (which, sadly, could set back the spread of SSMs at least 10 years) . . . but putting all their eggs in the Anthony Kennedy basket is 50-50 AT BEST.

If I were a H8er, I would continue to use SSM as a wedge issue (where applicable): a political tool for electing conservatives.

...but I wouldn't expect that I could seriously turn the tide on SSM.

However, you can continue to hate those you can't (legally!) discriminate against: the past 40 years (since the Civil Rights era) have shown us that! >:-/

Kevin K said...

If a party has standing to litigate the issue before the district court they would almost certainly have standing to take an appeal. If not, why were they allowed to intervene as of right?

To hold otherwise would suggest that there was no actual controversy before the district court. If that were true the district court could enter what would amount to a default judgment against California and for the Plaintiffs. This would undermine the argument that the district court's findings of fact are entitled to deference on appeal. Frankly, I am unaware of any situation in which a constitutional question has been resolved by default.

Given that President Obama will be appointing Justices for at least two more years, there would be no better time to take the issue before SCOTUS, at least not in the immediate future. However, it is not entirely clear that his appointees would affirm the district court.

Kevin K.

IT said...

Meanwhile, today Imperial County CA appealed the decision that denied them standing to appeal.

Their original attempt to intervene was denied by Judge Walker as they have no independent standing from the state, and they only tried to intervene at the last minute when the DI's thought they might need an "official" representative. Bt Imperial County does not represent the state, and has no independent authority over marriages.

They are represented by a Christian legal group called Advocates for Faith and Freedom and that would appear to be a problem....

Jim Pratt said...

Unfortunately the last time I read anything about standing was back in law school, far too many years ago. On the one hand, I think a conservative approach (Robert Bork, in particular) would deny standing to all but the State of California. On the other hand, I think the proponent of a law has a legitimate interest in its interpretation and enforcement, so I could see an appellate court allowing them to appeal. (and that could be either because the appellate court wants to affirm the district court's ruling and give it more clout or because they want to reverse).

JCF, I agree with everything you said