Monday, August 9, 2010

Lambda Legal’s Jon Davidson Explains What’s Next: Judge Walker’s Stay of His Prop 8 Ruling, Timeline For Appeals and More | LGBT POV

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Lambda Legal’s Jon Davidson Explains What’s Next: Judge Walker’s Stay of His Prop 8 Ruling, Timeline For Appeals and More | LGBT POV: "- Sent using Google Toolbar"

on Davidson, Legal Director for Lambda Legal, appeared on KNBC’s NewsConference with Conan Nolan Sunday to discuss Judge Walker’s Prop 8 ruling last Wednesday. See the video below.

I asked Davidson if he could please explain the confusion about Judge Walker’s stay of his ruling and the process by which an appeal is granted and decided. Part of his explanation included this very interesting conclusion that if the plaintiffs and the city/county of San Francisco “raise an additional argument about why the proponents cannot show they are likely to succeed on appeal: there ultimately may be no appeal.”

Davidson (pictured here at the May 5, 2008 rally in WeHo celebrating the California Supreme Court’s ruling that same sex couples were denied their constitutional right to marry) also responded to Family Research Council’s Tony Perkins’ reference on ‘Face the Nation’ about a possible new federal constitutional marriage amendment and whether or not the introduction of such an amendment might influence the justices hearing a possible appeal.

Herewith the Q & A with Jon Davidson:

Where do things stand now regarding the stay of Judge Walker’s ruling?

Last Tuesday, Judge Walker announced that he would be releasing his decision on whether Prop 8 is constitutional the next afternoon. Later that day, anticipating that they were going to lose and would be seeking to appeal his decision, the proponents of Prop 8 filed a request for a stay (that is, a “hold” on the effectiveness of Judge Walker’s ruling) until after the conclusion of the appeal.

On Wednesday, Judge Walker released his decision holding that Prop 8 violates the equal protection and due process guarantees of the United States Constitution. As part of that decision, he issued an order requiring the government defendants in the case (California’s Governor, Attorney General, officials in the state Department of Public Health, and the clerks of Alameda and L.A. Counties, where the plaintiffs in the case had sought marriage licenses) to no longer apply or enforce Prop 8 and to direct all of their subordinates not to do so either, which would mean that same-sex couples again could marry in California. Immediately thereafter, however, Judge Walker issued an order temporarily staying what he required of the defendants until he ruled on the proponents’ motion for a stay pending appeal. He told the parties to file written arguments regarding whether or not he should grant the stay pending appeal by Friday. He said that he would not hold a hearing on the stay motion unless he subsequently ordered there to be one. He did not indicate when he would rule on the motion for a stay pending appeal.

On Thursday, the proponents of Prop 8 filed notice that they were appealing Judge Walker’s ruling to the federal Court of Appeals for the Ninth Circuit, which governs California and 8 other western states.

On Friday afternoon, Attorney General Jerry Brown filed papers opposing the grant of a stay pending appeal. Then, much to many people’s surprise, Governor Schwarzenegger and the Department of Public Health officials filed papers also opposing the grant of a stay. Then, the plaintiffs in the case, along with the City and County of San Francisco, filed papers opposing the grant of a stay as well.

It is now up to Judge Walker to decide whether to stay his order while the appeal proceeds (which would mean that same-sex couples would continue not to be allowed to marry in the interim) or not to do so (which would mean that same-sex couples could marry as soon as he rules on the pending stay motion, subject to a later decision by an appellate court that might subsequently decide that the ability of same-sex couples is on hold again).

Will Judge Walker grant or deny the motion for a stay pending appeal?

While many legal analysts thought that Judge Walker was likely to grant the stay pending appeal, Friday’s filings have dramatically changed the likelihood of that.

The standards for when a stay or a trial court’s order pending appeal are well-settled. In order to be entitled to such a stay, the party seeking the stay has to make a “strong showing” that the party is likely to succeed on the merits of the appeal and also has to show that that party will be irreparably injured if there is no stay. In addition, courts consider whether the issuance of a stay will substantially injure other parties and where the public interest lies.

Normally, it is the party ordered to do or not do something that seeks a stay. This is an unusual situation, however, because the parties whom Judge Walker ordered not to enforce Proposition 8 have asked him not to stay his order while the appeal proceeds.

Jerry Brown argues in his opposition to a stay that, as he has “consistently stated and as was convincingly demonstrated at trial,” Prop 8 violates the U.S. Constitution and that the proponents cannot demonstrate a likelihood that they would succeed on the appeal. He further argues that any potential “limited administrative burdens” on the state, should marriages entered while the appeal is pending later be declared invalid, are outweighed by the harm to the plaintiffs in continuing not to be allowed to marry. Finally, he argues that, because Prop 8 conclusively has been demonstrated to be unconstitutional, the public interest weighs against its continued enforcement.

Even though they took no position during the case on whether Prop 8 should be struck down or not, now that it has been “demonstrated by overwhelming evidence” (in the words of Judge Walker’s opinion) to be unconstitutional, Governor Schwarzenegger and the other administration defendants have joined Jerry Brown in arguing that no stay should issue while the case is under appeal. They argue that allowing same-sex couples to marry at this point “is consistent with California’s long history of treating all people and their relationships with equal dignity and respect” and that “a stay is not necessary to protect any governmental or public interest.” There would be no administrative difficulty or reason to delay their resuming issue marriage licenses, they submit. And California has already issued 18,000 marriage licenses to same-sex couples “without suffering any resulting harm,” they point out.

The plaintiffs in the case, joined by the City and County of San Francisco, note quite persuasively that Judge Walker already stated in his opinion of last Wednesday that “California has no interest in waiting and no practical need to wait to grant marriage licenses to same-sex couples.” They argue that the proponents “cannot possibly make a ‘strong showing’ [that] they are likely to prevail on the merits of their appeal” because they “have simply repeated the very same arguments” that Judge Walker already carefully considered and rejected. Nor can the proponents establish that they or anyone else will suffer any injury in the absence of a stay because, the plaintiffs and San Francisco explain, Judge Walker already found that the proponents had presented “no reliable evidence that allowing same-sex couples will have any negative effects on society or on the institution of marriage.” Indeed, since the proponents were not able to show that they were harmed by the marriages of the 18,000 couples who lawfully married in California before Prop 8 passed and who remain married in California, there is no reason to believe they would be harmed by more same-sex couples marrying in the state while the appeal proceeds. By contrast, the plaintiffs and San Francisco explain, the plaintiffs and other same-sex couples will suffer irreparable harm of their constitutional right to marry continues to be denied while an appeal, which could take several years to be resolved.

The plaintiffs and San Francisco raise an additional argument about why the proponents cannot show they are likely to succeed on appeal: there ultimately may be no appeal.


So far, the government-defendants in the case have not appealed. Given what they have said in their oppositions to the stay request, it seems likely that they will not. If that happens, there will be a legal question of whether, when those who are ordered to do something don’t appeal, someone not ordered to do anything has any right to appeal. To understand this, one has to appreciate a few things about federal courts.

Federal courts can only hear cases where there is what’s called a “case or controversy.” They can’t issue advisory opinions about issues just because parties may have an abstract dispute with one another. Rather, in order to be able to pursue an appeal, a party has the burden of showing that it has “a direct stake in the outcome” and has been injured by the ruling in a concrete manner that is particularized to that party and different from citizens at large who may not like the judge’s ruling. In a previous case, the U.S. Supreme Court said it had “grave doubts” about whether proponents of a ballot initiative limiting government action who had been allowed to intervene in a case can pursue an appeal when the initiative has been found unconstitutional and the government does not appeal. In that case (which involved an amendment to Arizona’s Constitution that declared English as the “official language” of that state was constitutional), the Supreme Court questioned what would give initiative sponsors the ability to step into the shoes of the government in defending the constitutionality of an initiative on appeal when public officials do not. The Court decided the case on other grounds, but its comments strongly indicate that the proponents may have no right to appeal if the other defendants do not.

This issue arose in another context already in the Perry case. Before the trial, Imperial County moved to intervene in the case as well, just as Prop 8’s proponents previously had done after no party objected to their intervention. The plaintiffs opposed intervention by Imperial County and Judge Walker did not rule on the county’s motion to intervene at the time. On Wednesday, however, at the same time as he issued his decision ruling Prop 8 unconstitutional, Judge Walker ruled that Imperial County had no right to intervene because it is a subdivision of the state, is obligated to comply with governing state law regarding marriage, and is not harmed by allowing same-sex couples to marry. Imperial County had argued that it should be allowed to intervene because there was a legal question whether, if the government defendants already in the case did not appeal, there would be no one with a right to appeal. Judge Walker concluded, however, that, regardless of whether or not that was true, Imperial County would have no right to appeal. He explained that the standards for being able to appeal when other parties don’t are stricter than the standards for being allowed to intervene at the trial level. He concluded that Imperial County had no right to do either and, in particular was not entitled to “stand in to defend Proposition 8 on appeal if the legal representatives of the state determine that defending Proposition 8 is not in the state’s best interests.”

How will this get decided?

A definitive ruling on whether the proponents have a right to appeal if the defendants do not is not likely to be made in connection with the consideration of whether or not Judge Walker’s order should be stayed pending appeal. Judge Walker or a higher court may comment on the issue, however, as part of deciding whether the proponents have shown they are likely to succeed on the appeal because, if the proponents have no right to appeal, they obviously can’t show they likely would prevail on an appeal.

If the defendants do not appeal within the permitted time (30 days from the time Judge Walker’s order is entered, which will be when he rules on the motion for a stay pending appeal), then the plaintiffs and San Francisco could file a motion to dismiss the appeal that has already been filed by the proponents on the ground that the proponents hah no right to appeal. In the alternative, the plaintiffs and San Francisco could raise the issue of the proponents’ right to appeal or not as part of their briefing opposing the merits of the proponents’ appeal.

If the three judges randomly assigned to hear the case at the Ninth Circuit dismiss the appeal, the proponents could ask the 27 judges on the Ninth Circuit to reconsider that. If a majority of those judges agree to do that, the question would be decided by a panel of 11 randomly assigned to hear the case “en banc” (which refers to a hearing by a large component of the appellate court). Whether they hear it or not, if the appeal is dismissed, the proponents could ask the Supreme Court to decide whether they have a right to appeal. If the Supreme Court declines to hear that, the case is over. If the Supreme Court agrees to consider the question, it could decide that the proponents have no right to appeal and, again, the case would be over. If the Supreme Court were to decide that the proponents do have a right to appeal, the Court likely would send the case back to the Ninth Circuit for three judges to initially decide the merits of the appeal, resulting in a delay of the final determination of the validity of Prop 8 for some time.

In other words, it could indeed be decided that, if the government defendants do not appeal, the proponents cannot and the case will be over. In that situation, same-sex couples will be permanently allowed to marry in California. Judge Walker’s ruling will stand and it may have an impact on future cases dealing with the right of same-sex couples to marry, but it would not itself change the marriage laws of any state other than California.

So, bottom line, will Judge Walker grant the further stay or not?

In a recent decision, the Supreme Court explained that whether or not to issue a stay pending appeal depends upon the circumstances of a particular case. The Court has cautioned lower courts against “reflexively holding a final order in abeyance pending review.” In cases in which state trial courts have held that a state’s ban on same-sex couples marrying violates the state’s constitution, the parties either agreed to a stay or the courts granted a motion by the defendants for a stay pending appeal. What makes the Perry case quite different from any of those, however, is that the defendants are opposing rather than seeking the stay and the stay is only being sought by intervenors, who have not been ordered to do anything, may not be able to show any legally-recognized harm, and may not even have a right to appeal.

So, no one can say for sure. As he’s done throughout the case, Judge Walker is likely to carefully consider the legal standards and apply them to this case, taking into account how the appellate courts are likely to rule when the question is before them.

What happens if Judge Walker denies the stay pending appeal?

Even if he denies the proponents’ stay pending appeal, Judge Walker might extend his temporary stay for a brief period of time (a week or so) in order to give the proponents time to ask for a stay from the Ninth Circuit while there’s a temporary stay in place. If he does not do that, the proponents are likely to file a request for an emergency stay from the appellate court.

The Ninth Circuit would then apply the same test as Judge Walker did in deciding whether or not to issue a stay of Judge Walker’s order pending the appeal. If they deny a stay as well, the proponents could ask Supreme Court Justice Anthony Kennedy (who reviews such matters arising out of the Ninth Circuit) to issue a stay pending the appeal. If he also denies a stay, the proponents could seek a stay from the full Supreme Court.

What is the likely timing for the appellate process?

In response to the proponents’ notice that they are appealing Judge Walker’s ruling, the Ninth Circuit issued a scheduling order. At present, the proponents’ opening brief on appeal is due November 12th. The plaintiffs’ brief on appeal currently is due December 13th. The proponents then would have the option of filing a reply brief, which would be due January 12, 2011. It is not uncommon for parties to seek an extension of time to file their briefs on appeal, so any of these dates could be delayed.

According to the Ninth Circuit’s website, the average time between the completion of briefing and the scheduling of oral argument is 9-12 months, so argument of the appeal is not likely until late 2011, at the earliest. There is no time limit for when the judges must issue their opinions after the argument. It is not unusual for it to take more than a year from the date of argument until the appeal is decided by the Ninth Circuit. Once the case is decided, the losing party can seek review by a larger number of judges on the Ninth Circuit. If such a request is granted, that could add another year or more before the case is even in a position for a party to seek Supreme Court review.

Thus, if the appeal is not dismissed, it is possible that a request to the Supreme Court to hear the case might not even have been made by the time of the November 2012 elections. If an effort to repeal Prop 8 is made that year and succeeds, it could “moot” the case (meaning that there would no longer be any “live” dispute because Prop 8 would no longer be in effect) and the appeal could be dismissed for that reason.

Will calls by gay rights opponents for a federal constitutional marriage amendment affect the appellate court judges?

I really don’t think so. Those calls are little more than political posturing. Amending the U.S. Constitution is a very difficult and time-consuming process – unlike amending the California Constitution. Since the adoption of the Bill of Rights, the Constitution has only been amended 17 times. Absent a constitutional convention, a proposed amendment to the U.S. Constitution must first pass both the House and the Senate by a 2/3 margin. Then, if that happens, the proposed amendment must be ratified by 3/4 of the legislatures of the states. Although approximately 200 amendments are typically introduced in each term of Congress, most do not get out of committee. Even though Republicans then held majority control of Congress and the presidency, the four times a federal constitutional marriage amendment was introduced between 2003 and 2008, it went nowhere.

Federal judges understand this and the threat to amend the Constitution if the courts do not rule a certain way has not affected judicial decisions on issues at least as controversial as marriage by same-sex couples. There have been all sorts of calls in recent years for constitutional amendments to allow prayer in schools, criminalize flag burning, deny citizenship to children born in the U.S. to undocumented immigrants, and ban abortion. (In fact, proposals to amend the Constitution to bar interracial marriage were introduced in 1871, 1912, and 1928.) Notwithstanding these, judges have done their jobs of deciding what the Constitution requires, not what a majority of the public might desire. Federal judges have lifetime tenure precisely in order to immunize them to concerns about public reactions to their rulings.

Should same-sex couples get married in California at this point if Judge Walker denies the motion for a stay pending appeal?

As with anyone else, couples need to decide if marriage is right for them. Same-sex couples also need to take into account that the federal government still does not honor marriages that same-sex couples lawfully enter. Same-sex couples also need to understand that negative consequences can result from marriage for lesbians, gay men, and bisexuals who are in the military, who are not citizens or who are dependent on receiving federal benefits.

But, beyond that, were Judge Walker’s ruling to be reversed on appeal, it is possible that the validity of a marriage a same-sex couple entered while there was no stay in effect could be questioned by some people. After Mayor Gavin Newsome allowed same-sex couples to marry and approximately 4,000 did, those marriages were invalidated when the California Supreme Court ruled that Mayor Newsome had no authority to permit those marriages and that those marriages were therefore entered invalidly. Marriages entered after Judge Walker’s ruling, by contrast, would have been valid according to a court judgment at the time they were entered, so the situation would be very different. But, again, no one knows for sure how those marriages would be treated should Judge Walker’s ruling later be reversed.

The proponents of Prop 8 have argued that this is a reason for a stay to be granted. The plaintiffs and San Francisco have responded that same-sex couples can decide for themselves whether to marry or not and the proponents will not be adversely affected if those couples marry; that the proponents’ “sudden interest in safeguarding the interests” of same-sex couples hardly seems genuine; and that whether or not there would be any problem for those who marry is speculative and not grounds for a stay.

One way same-sex couples who do marry if no stay pending appeal is issued is to enter a registered domestic partnership in California (if they have not already done so) in addition to marrying. That way, they will retain the legal rights, benefits, and responsibilities that California provides equally to married couples and registered domestic partners regardless of how the appeal is resolved. Of course, if Judge Walker’s ruling were reversed later, those who married may experience the grave emotional harm that such a reversal could inflict.


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