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Calif. Court to hear the SSM case


Zeta-Flux

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So the California Supreme Court has apparently agreed to hear arguments whether or not the sponsors have standing. Maybe next year we'll have a decision on that issue.

http://www.reuters.com/article/2011/02/16/us-usa-gaymarriage-california-idUSTRE71F7UY20110216

I hope the California Supreme court will affirm the rights of the people to their day in court. Whichever way it goes, this case should not be decided because elected officials abdicate their duty to represent the will of the people in court. The case should be decided on its merits, not a technicality.

Glenn

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surely there is enough time for those in California who support ssm to get the necessary signatures to bring the issue back to the ballot, it would quite possible that enough californians may have changed their minds

I think I would rather go to the ballot again, than face scalia or thomas; to get the issue to ballot in a more favorable light, than have face a conservatish Court that would set the whole "movement" back. Persons who oppose prop 8 voiced concern early on that a ruling favor of prop 8 by the US Supreme Court would set the whole "movement" back 5 years or so; and was one of the reasons why persons opposed to prop 8 did not want the current case to be filed.

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surely there is enough time for those in California who support ssm to get the necessary signatures to bring the issue back to the ballot, it would quite possible that enough californians may have changed their minds

I think I would rather go to the ballot again, than face scalia or thomas.

That is a false dichotomy. It doesn't matter if this issue faces Justices Scalia or Thomas in terms of whether or not it can reappear on the ballot. Californians have all the time in the world to change their minds, or not, as the case may be.

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I hope the California Supreme court will affirm the rights of the people to their day in court. Whichever way it goes, this case should not be decided because elected officials abdicate their duty to represent the will of the people in court. The case should be decided on its merits, not a technicality.

Glenn

Sounds good, but your are wrong on two points.

1. The case was decided on the merits. The case went trial. Evidence was presented, witnessed testified, arguments were made, findings of fact issued, and a ruling came out which .... deciding the case on the merits.

2. The prop 8 proponents are not "the people," nor do they represent or purport to represent the "will of the people." If the supreme court grants standing it is not affirming the right of the people to have their day in court, its creating a brand new right .. the right of referendum proponents to stand in for the state. I believe conservatives would call that judicial activism.

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Actually given that prop 8 passed they do represent the will of the people. It was members of the government that abdicated their responsibility (Jerry Brown as AG) which decided the will of the people as recognized by a valid petition and ballot was not valid. Sponsors who represent a successful initiative do indeed represent the will of the people.

In which law class did they teach you that a successful majority did NOT represent the will of the people. I would be interested how they taught that reasoning to law students.

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surely there is enough time for those in California who support ssm to get the necessary signatures to bring the issue back to the ballot, it would quite possible that enough californians may have changed their minds

Recent polls indicate that a majority of Californians now support marriage equality, and would vote for it. Of course, you have to factor in the effects of the "Gay Agenda" scare ads, with their wild claims that first-graders will be forced to read Heather Has Two Mommies, that children will be taught the details and mechanics of gay sex, and that churches will be forced to perform gay marriages.

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Actually given that prop 8 passed they do represent the will of the people.

At best, you can say that the passage of Prop 8 REFLECTED the will of the people on that day.

"Represent" is a legal term for purposes of the appeal. The proponents do not REPRESENT anyone but themselves, and can't speak for anyone but themselves. The "rights" that are being discussed are the rights that go to the Proponents, not the voters.

In which law class did they teach you that a successful majority did NOT represent the will of the people. I would be interested how they taught that reasoning to law students.

The phrase "will of the people" is not a legal phrase, its a rhetorical phrase.

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The proponents do not REPRESENT anyone but themselves, and can't speak for anyone but themselves.
This is a factually false claim. In fact, California law allows proponents to represent the people in state court, which is what happened earlier in a separate case. The question now is whether this standing also extends to federal appellate court. That issue has not been previously clarified to the satisfaction of the 9th circuit, and so will be clarified by the California Supreme Court.

Moreover, even the appellate judges recognized problems in not allowing the proponents to represent the people. You should read their certification to the California Supreme Court (found here) if you want a fair rendering of how this affects the will of the people, and what is at stake.

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In fact, California law allows proponents to represent the people in state court, which is what happened earlier in a separate case. The question now is whether this standing also extends to federal appellate court.

How can a State court decide Federal standing?

I see a big problem in allowing a State court to make a Federal Standing decision.

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This is a factually false claim. In fact, California law allows proponents to represent the people in state court, which is what happened earlier in a separate case.

Wrong. This is not apologetics. You can't play fast and loose with the meaning of legal terms. "Represent" is an important legal term, with a clear specific meaning. It means that an agency relationship exists.

At trial, the proponents did not represent the peopleor purport to represent the people of the State of California.. They were allowed to intervene to defend the constitutionality of Prop 8 at trial. They were there as Prop 8 proponents, not as agents for the state or the people of the state.

Note that "intervene" is a legal term. One does not need to have "standing" to be allowed to intervene in an existing case, brought by a plaintiff that has proper standing. The question on appeal is standing not intervention.

At present, there is no case authority, there is no legislative authority, there is no constitutional authority that says that prop proponents may step in an act as the AGENT for the state to defend the constitutionality of a proposition they sponsored.

A true conservative would be appalled at the thought that the court may consider creating a new right, which in essence would creates a new quasi-administrative branch of government.

The question now is whether this standing also extends to federal appellate court.

Trial ... intervention, not standing. Standing was not an issue at trial, as no one disputed that the plaintiffs were harmed by Prop 8.

Moreover, even the appellate judges recognized problems in not allowing the proponents to represent the people.

Wishful reading. The ruling was quite clinical. Thanks for the link. You should read it again, keeping in mind that intervention and standing are separate legal terms.

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Wrong. This is not apologetics. You can't play fast and loose with the meaning of legal terms. "Represent" is an important legal term, with a clear specific meaning. It means that an agency relationship exists.

At trial, the proponents did not represent the peopleor purport to represent the people of the State of California.. They were allowed to intervene to defend the constitutionality of Prop 8 at trial. They were there as Prop 8 proponents, not as agents for the state or the people of the state.

Sorry, we seem to be talking past each other. I thought you were talking in the context of Glenn's original post. In the context of his words, where represent is in the context of "represent the interests of those who passed the proposition", California law does allow the official proponents to defend the law. The question now is whether this right to defend the law extends to federal court.

There is no need to read legalese into Glenn's post, but rather the plain meaning of what the proponents are doing, i.e. defending the proposition passed by the majority (i.e. the people). I'm sorry that I didn't recognize your switch earlier.

Note that "intervene" is a legal term.

It can be, and it can also be used colloquially. I think Glenn was using the second meaning.

At present, there is no case authority, there is no legislative authority, there is no constitutional authority that says that prop proponents may step in an act as the AGENT for the state to defend the constitutionality of a proposition they sponsored.

Correct. There is also no case authority that says they do not have a particularized interest in defending the very law that they successfully were proponents for.

A true conservative would be appalled at the thought that the court may consider creating a new right, which in essence would creates a new quasi-administrative branch of government.

LOL!
Wishful reading. The ruling was quite clinical. Thanks for the link. You should read it again, keeping in mind that intervention and standing are separate legal terms.
Double lol!
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The question now is whether this right to defend the law extends to federal court.

but this is question for the Federal Court to answer and not California

There is also no case authority that says they do not have a particularized interest in defending the very law that they [were] proponents for.

this seems to be the question for California Supreme Court. success does seem to factor into the standing question.

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Sounds good, but your are wrong on two points.

1. The case was decided on the merits. The case went trial. Evidence was presented, witnessed testified, arguments were made, findings of fact issued, and a ruling came out which .... deciding the case on the merits.

2. The prop 8 proponents are not "the people," nor do they represent or purport to represent the "will of the people." If the supreme court grants standing it is not affirming the right of the people to have their day in court, its creating a brand new right .. the right of referendum proponents to stand in for the state. I believe conservatives would call that judicial activism.

Huh. By JB's lights Planned Parenthood, Ducks Unlimited, the ACLU and such advocacy groups aren't "The People" and don't represent "The Will of the People" either. Yet they always get to sue people and intervene in cases they care about. And get consent decrees. And "affect a blessed change in the world." JB thinks funny. Writes funny, too.

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Jaybear,

I should point out that in the document I linked, the proponents make the claim that they are: able to represent the State's interest because they "have 'authority under state law' to defend the constitutionality of an initiative they have successfully sponsored...acting 'as agents of the people' of California 'in lieu of public officials' who refuse to do so". [For more citations of California law, you can see their brief.] The 9th Circuit Appellate court specifically leaves it open whether or not this claim is correct. I think Glenn was talking about acting as "agents of the people" rather than representatives. One shouldn't get hung up on the non-technical use of words when their plain meaning still makes sense.

-------------

frankenstein,

The issue (which you would know if you took the time to read the relevant documents) is that California State law may impart a particularized interest to the proponents of a constitutional amendment. The Appellate judges feel that it is up to the California Supreme court to decide whether *California* law imparts such a particularized interest, or gives then authority to assert the State's interest (i.e., 'represent the will of the people').

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Recent polls indicate that a majority of Californians now support marriage equality, and would vote for it. Of course, you have to factor in the effects of the "Gay Agenda" scare ads, with their wild claims that first-graders will be forced to read Heather Has Two Mommies, that children will be taught the details and mechanics of gay sex, and that churches will be forced to perform gay marriages.

Since it's already illegal to speak out in schools in favor of true marriage, I don't see much difference, k. And sociologists already Kinseyfy that 4 and 5-year-olds need to be sexualized via "early teaching" books on sex ed.

I can't imagine a world where such things are okay.

So glad I left the Golden State.

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Huh. By JB's lights Planned Parenthood, Ducks Unlimited, the ACLU and such advocacy groups aren't "The People" and don't represent "The Will of the People" either.

Correct. The ACLU and such advocacy groups aren't "The People" and don't represent "The Will of the People" either.

Yet they always get to sue people and intervene in cases they care about.

In "Roe v. Wade" you will note that they represented a specific woman who was denied, by law, an abortion in Texas.

Intervention and standing are different issues.

JB thinks funny. Writes funny, too.

Why even go there?

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frankenstein,

The issue (which you would know if you took the time to read the relevant documents) is that California State law may impart a particularized interest to the proponents of a constitutional amendment. The Appellate judges feel that it is up to the California Supreme court to decide whether *California* law imparts such a particularized interest, or gives then authority to assert the State's interest (i.e., 'represent the will of the people').

insults aside,

I have read the certification to the California Supreme. The California Supreme Court, or any State Supreme Court, does not have authority to determine standing for a Federal Court.

What The State Court can do, is determine if a person has standing under state law. Specifically, Article II Section 8 of the California Constitution, in said section or California law, do the proponents have a particularized interest, to defend prop 8, in light of Arizonas.

So as you asserted earlier (that the question is already answered from prior California case(s) ) then the Federal Court would not have ask California for guidance on California law.

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insults aside,

I did not insult you. I'm sorry if you took offense.

I have read the certification to the California Supreme. The California Supreme Court, or any State Supreme Court, does not have authority to determine standing for a Federal Court.

You are both correct and incorrect. The United States Supreme Court has determined that State law can impart particularized interest. The appellate court, of course, will ultimately determine whether or not the proponents have standing. However, their determination of that ruling depends on whether or not *State* laws give proponents the right to defend the law.

Just to make this a little clearer: if Montana passes a law that says any resident can represent the state in court, then that state law gives them the standing to appeal things on a federal level.

Now, obviously most state laws are more specific about who is given the authority to represent the state on these matters, or who is given a particularized interest in defending certain laws. There are many reasons to suppose that the California Supreme Court will recognize that state law imparts such an interest to those who are proponents of a constitutional amendment which is not defended/appealed by the relevant state authorities.

What The State Court can do, is determine if a person has standing under state law. Specifically, Article II Section 8 of the California Constitution, in said section or California law, do the proponents have a particularized interest, to defend prop 8, in light of Arizonas.

So as you asserted earlier (that the question is already answered from prior California case(s) ) then the Federal Court would not have ask California for guidance on California law.

Close. The question now is whether the interest of proponents is great enough to impart an interest at the federal level. In California, proponents have enough interest that they are given standing to defend in state court (by intervention, as Jaybear wants to make clear) a constitutional amendment when the state officials refuse to do so. The new question is whether or not this *State* imparted interest is great enough to allow them to intervene on a federal level.

So, to recap: the California Supreme Court will decide if California law imparts enough of a particularized interest, or the right to intervene for the state when the state officials refuse to do so. The Appellate court will then use that ruling to decide if the proponents have standing.

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Jaybear,

Earlier, in response to Glenn's comment: "I hope the California Supreme court will affirm the rights of the people to their day in court. Whichever way it goes, this case should not be decided because elected officials abdicate their duty to represent the will of the people in court. The case should be decided on its merits, not a technicality." you said:

Sounds good, but your are wrong on two points.

1. The case was decided on the merits. The case went trial. Evidence was presented, witnessed testified, arguments were made, findings of fact issued, and a ruling came out which .... deciding the case on the merits.

2. The prop 8 proponents are not "the people," nor do they represent or purport to represent the "will of the people." If the supreme court grants standing it is not affirming the right of the people to have their day in court, its creating a brand new right .. the right of referendum proponents to stand in for the state. I believe conservatives would call that judicial activism.

Let's follow this logic a little further.

If, in fact, the proponents do not have standing, then they did not have standing during the original federal trial where (as you say) the issue was decided on the merits. In that case, who then did/do the people have to defend their enacted will when state officers refused (and continue to refuse) to do so and the official proponents are unqualified to do so?

Second, I think you are over-simplifying the conservative position about judicial activism a little. Yes, I concur that "creating a brand new right" is a talking point. But the principle behind this rhetoric is that they are addressing a specific framework of interpreting the constitution. They dislike the view that law should be decided by a judgment of "collective values" which change over time and are independent of any articulated statement in the constitution. As Goodwin Liu, an appointee of President Obama to the 9th Circuit put it: "My thesis is that the legitimacy of judicial recognition of welfare rights depends on socially situated modes of reasoning that appeal not to transcendent moral principles for an ideal society, but to the culturally and historically contingent meanings of particular social goods in our own society....I argue that judicial recognition of welfare rights is best conceived as an act of interpreting the shared understandings of particular welfare goods as they are manifested in our institutions, laws, and evolving social practices." He also wrote: "The problem for courts is to determine, at the moment of decision, whether our collective values on a given issue have converged to a degree that they can be persuasively crystallized and credibly absorbed into legal doctrine. This difficult task requires keen attention to the trajectory of social norms reflected in public policies, institutions, and practices, as well as predictive judgment as to how a judicial decision may help forge or frustrate a social consensus." Conservatives think it is inappropriate for a justice to take evolving social practices into account when decided rules of law. It's not that hard to understand.

If the California Supreme Court decides that the laws and initial meaning of the constitution of the state impart a particularized interest to official proponents, and this decision is reached by carefully considering what the constitution says, without reference to "evolving social practices" then I don't think conservatives will see this as (liberal) judicial activism. And while in some senses this might indeed create a "new" right, conservatives can rightly accept that without being hypocritical in decrying the invention of other "new" rights through judicial activism.

Or to put it another way, I reject the idea that "judicial activism" is synonymous with "I dislike the decision." One specific measure of such activism is whether the decision resulted from the justice's personal views on current social/moral practices, rather than simple direct application of what the original framers of the law likely meant. For examples of such activism, you need look no further than to some of Justice Walker's "findings of fact". And there are other measures.

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Let's follow this logic a little further.

If, in fact, the proponents do not have standing, then they did not have standing during the original federal trial where (as you say) the issue was decided on the merits.

Asking about proponents "standing" at the trial level is irrellevant. The courts demand that the party petitioning the court to address a grievance have standing. At the trial level, standing is the hurdle that the plaintiff, as the petitioner, must meet.

After the trial court ruled, and the proponents seek to appeal does their "standing" come into question, as the peitioners (appellants). Specifically, how were the impacted by the court's ruling invalidating prop 8.

They have no standing, because they are not harmed if gays can marry.

Second, I think you are over-simplifying the conservative position about judicial activism a little.

Standing is a conservative doctrine courts use to keep environmental and human rights activists out of court. The only person that can complain about the government secret wiretapping are those who are wiretapped secretly. Of course, if you don't know you are being wiretapped, you can't sue to protect your fifth amendment rights.

I find it richly ironic that those who claim to be conservative, are now hoping that an activist court finds a loophole to expand the doctrine of standing.

Conservatives think it is inappropriate for a justice to take evolving social practices into account when decided rules of law. It's not that hard to understand.

Nonsense. Gun rights, torture of Muslim prisoners, corporate/political entanglements are all evolving social practices. Citizens United as classic case of conservative judicial activism.

The typical rhetorical cry of judicial activism is that the judge is substituting his opinion for the will of the people as expressed by the legislators/referendum. This claim, of course, ignores the role of the judiciary.

You are correct that some conservative are consistent in their approach. I just don't believe a true conservative would want to see the doctrine of standing expanded by judicial fiat. I presume a true conservative would prefer that the issue be addressed by the CA legislature or by referendum.

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Asking about proponents "standing" at the trial level is irrellevant. The courts demand that the party petitioning the court to address a grievance have standing. At the trial level, standing is the hurdle that the plaintiff, as the petitioner, must meet.

After the trial court ruled, and the proponents seek to appeal does their "standing" come into question, as the peitioners (appellants). Specifically, how were the impacted by the court's ruling invalidating prop 8.

They have no standing, because they are not harmed if gays can marry.

Apparently I wasn't entirely clear. The point was that if the proponents did not have standing to appeal the trial level decision then they did not have sufficient power, nor apparently sufficient particularized interest (in the technical sense) in the case to begin with, to fairly protect the people and the constitutional amendment. What would the difference be if the governator, attorney general, and trial judge had let any other lawyer intervene? Would it be fair if they had allowed Billy-Bo Bob to intervene?

Do you understand my point now? If there wasn't standing to appeal then the people's will as embodied in the constitutional amendment was not fairly defended by the intervening parties.

Standing is a conservative doctrine courts use to keep environmental and human rights activists out of court. The only person that can complain about the government secret wiretapping are those who are wiretapped secretly. Of course, if you don't know you are being wiretapped, you can't sue to protect your fifth amendment rights.

I find it richly ironic that those who claim to be conservative, are now hoping that an activist court finds a loophole to expand the doctrine of standing.

This seems entirely irrelevant to my post.
Nonsense. Gun rights, torture of Muslim prisoners, corporate/political entanglements are all evolving social practices. Citizens United as classic case of conservative judicial activism.

The typical rhetorical cry of judicial activism is that the judge is substituting his opinion for the will of the people as expressed by the legislators/referendum. This claim, of course, ignores the role of the judiciary.

You are correct that some conservative are consistent in their approach. I just don't believe a true conservative would want to see the doctrine of standing expanded by judicial fiat. I presume a true conservative would prefer that the issue be addressed by the CA legislature or by referendum.

Again, most of this seems irrelevant to my post. The role of the judiciary is, in my opinion, to interpret existing laws in the context in which they were passed, and not through appeals to evolving social standards (whether or not the standards do evolve). Those who believe similarly are not ignoring the role of the judiciary, but believe it is the place of other branches of government to deal with evolving standards.

That some conservatives are hypocrites, or that some judges are conservative activists, in no way negates the fact that some judges are liberal activists.

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Apparently I wasn't entirely clear. The point was that if the proponents did not have standing to appeal the trial level decision then they did not have sufficient power, nor apparently sufficient particularized interest (in the technical sense) in the case to begin with, to fairly protect the people and the constitutional amendment. What would the difference be if the governator, attorney general, and trial judge had let any other lawyer intervene? Would it be fair if they had allowed Billy-Bo Bob to intervene?

Do you understand my point now? If there wasn't standing to appeal then the people's will as embodied in the constitutional amendment was not fairly defended by the intervening parties.

No, I don't understand your point. But the facts are, the proponents were given the opportunity to defend the constitutionality of Prop 8 on the merits at trial. They hired expert witnesses, they participated in discovery, they moved for summary judgment, they appeared at trial presented the defense at trial. They lost the case at trial on the merits. I am sure they did their best.

The AG could have appealed, and turned over briefing and argument to the proponents. The AG opted not to appeal. Not every case is appealed. The proponents separately appealed, and it appears that they may lose their appeal, on a technicality ... standing.

Those are the facts. To say that the people did not have their day in court is a gross overstatement. One can certainly complain that the AG office should have appealed.

That some conservatives are hypocrites, or that some judges are conservative activists, in no way negates the fact that some judges are liberal activists.

The term "activist judge" has become a pejorative rhetorical term, devoid of any real meaning. The judge's role is in constitutional cases is to uphold or overturn law. When judges overturn laws that conservatives like, they are labeled liberal activist judges.

The funny thing though, conservatives no longer complain about Brown or Loving as being the product of liberal activist judges, despite the fact that they employed the same judicial philosophy that brought about Roe v Wade. So much for consistency.

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