Bmaz, forgot to say thanks for your outstanding reporting on this. Surely helps to have someone who understands the legalese.

I love that image at the top. Calls for a Group Hug!!!!

Perfect graphic. Just… wonderful.

Excellent post, BMAz.

Now, MSNBC is harping on the question of whether the DIs will even have appellate standing, or appellate jurisdiction. Actually, two different questions.

As to appellate standing, the usual rule is that the party seeking to have standing to appeal has to have been “aggrieved by the judgment”. Not “aggrieved” in the sense of “I don’t like it” but rather in the sense of “my rights (civil, pecuniary, liberty) have been impaired by the existence/operation of the judgment”. In the sense of “I have to pay money to the adverse party because of the judgment” or “I cannot do X anymore because of the judgment”, or so forth. So, the first question the appellate court will have to address is whether standing exists for intervenors who are intervening and taking a position directly contrary to the position the actual defendant takes. That is to say, the State (per Schwarzenegger) does not want to defend the law and believes it is, in fact, unconstitutional. It’s the intervenors who argue it is constitutional. But the intervenors don’t lose anything – other than hurt feelings – if the law is struck down. It’s the state’s job to defend its laws, not some officious interlopers.

So, it’s entirely possible the intervenors will not have standing to appeal the decision that the law is unconstitutional. This also would implicate whether there is now, or indeed ever was, a real case or controversy such that Article III standing may never have existed, about which more later.

Now that possible lack of appellate standing on the part of the intervenors, in turn, raises a serious problem for relying on this case as precedent for the rest of the nation. As the decision of a District Court, this decision is binding precedent only as to the actual parties involved in this case and this case only. That is because this decision stands as one District Judge’s application of the particular facts of the case to the law and his decision that under these facts, the law is unconstitutional. This decision can be cited as instructive, i.e., “let’s look at how the other judge reasoned”, to other courts, but they are not bound to follow it if even one of the facts in the other court’s case is different. It’s only after the Court of Appeals decides, one way or another, that the precedent becomes binding as to all issues actually decided. (FWIW, to digress for a second, the law will remain on the books and conceivably some uninformed or fight-seeking clerk would deny a marriage license on the strength of it. There was recently a case out of the 2d Circuit in which a police oficer who falsely arrested a person on a charge based on a law which had been declared unconstitutional was entitled to immunity from suit for that false arrest because a reasonable cop would not be required to know that the statute still on the books had been declared unconstitutional.)

So, Schwarzenegger’s injection of “the State just wants to get on with gay marriages and will not defend the law” can actually be seen (and probably should be) as a savvy political move preserving for his Republican friends the twin political wedge issues of hatin’ on the gays and damned liberal activist judges. This, because they will argue that, if there is no appellate standing and this case is limited to its facts, then all this was a mountain of sound and fury signifying nothing and a colossal waste of time brought on by the gay agenda.

But, you might say, what if Boies and Olson don’t move to dismiss the appeal for lack of appellate standing or appellate jurisdiction? Wouldn’t that obviate the problem?

No. Appellate courts routinely get mad at parties who don’t raise those issues, and are under an obligation to independently examine the record to see whether they should be spending their time on this case. So, the issue will have to be raised.

And then, when the case gets to the Supreme Court, there will be the whole issue of whether this case – where it’s intervenors defending a law the state won’t – presents a real case or controversy justifying the federal courts exercising their Article III jurisdiction. Since the Supreme Court gets to make up their own rules on what does and does not constitute a case or controversy sufficient to invoke Article III, all bets are off. And I could easily see a Roberts court – which has been uniformly inimical to private people having standing to sue – saying this sort of procedural posture means there is no live case or controversy because the state will not defend its own laws.

It would be a perverse result – states could outlaw all sorts of things and, by the mere gambit of declining to defend those laws, prevent anyone from challenging them. But this Supreme Court has been nothing if not perverse when it comes to closing the courthouse to justice for any but the rich.

Speaking of Justice – love the graphic. That whole blindfold thing puts a nice little twist on the whole hot G-G action….

headed out – another great day

thank you Goddess for Judge Walker !

oh, and suck it bigots !

bmaz, thank you thank you thank you.
Your writing has been the single glow of light for me this summer (except for my new adopted son, of course.)

peace, posaune

Scheduling Order issued via Trialtracker…

This is an update on the Emergency Motion to Stay that the Prop 8 supporters filed with the Ninth Circuit last night.

The Ninth Circuit just issued an Order stating that the Plaintiffs’ response to the Motion to Stay is due by 11:00 p.m. tonight. The Prop 8 supporters’ reply, not to exceed 15 pages, is due by 9:00 a.m. on Monday, August 16, 2010. This suggests that the Ninth Circuit is preparing to rule on the Motion to Stay before Judge Walker’s temporary stay expires on August 18th at 5:00 p.m.