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“Liberal” 9th Circuit Deals Death Blow To Al-Haramain Illegal Wiretapping Accountability Case

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There is only one substantive case left in litigation with the ability to bring tangible accountability for the illegal and unconstitutional acts of the Bush/Cheney Administration’s warrantless wiretapping and surveillance program. That case is Al-Haramain v. Bush/Obama. Yes, there is still Clapper v. Amnesty International, but that is a prospective case of a different nature, and was never designed to attack the substantive crimes of the previous Administration.

A little over a couple of hours ago, late morning here in the 9th, the vaunted “most liberal of all Circuit Courts of Appeal”, the Ninth Circuit, drove what may be the final stake in the heart of Al-Haramain by declining to conduct an en banc review of its August 7, 2012 opinion. The notice from the court today is brief:

The opinion filed on August 7, 2012, and appearing at 690 F.3d 1089, is hereby amended. An amended opinion is filed concurrently with this order.

With these amendments, the panel has voted to deny the petition for panel rehearing and the petition for rehearing en banc.

The full court has been advised of the petition for rehearing and rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35.

The petition for panel rehearing and petition for rehearing en banc are DENIED. No further petitions for en banc or panel rehearing shall be permitted.

Before going further with analysis, a word about the “amendments” to the opinion. The “Amended Opinion” is here. You can compare for yourself to the August 7 original opinion linked above, but the difference is pretty slight.

It appears all the court did is delete a few sentences here and there about 18 USC 2712(b). The court did not address, nor change, their erroneous assertion that plaintiffs’ Al-Haramain could have sued under 1806(a), or restore the misleadingly-omitted (by elipsis) language from 1806(a). Nor did the Read more →

Prop 8 Appeal Takes A Step Forward; But Not The Big One It Should Have

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Liberty & Justice by Mirko Ilic

Those of us watching and covering the Proposition 8 case, formally known as Perry v. Brown, got a cryptic notification from the court yesterday afternoon. The notice read:

This is to inform you that a filing is expected on Tuesday, June 5, 2012, at approximately 10 a.m., in Perry v. Brown, case 11-16577, also know as the Proposition 8 case. The filing will be available from the Ninth Circuit Court of Appeals website, www.ca9.uscourts.gov/opinions. We are advised that this is not a large document. If you have difficulty downloading the filing, please contact us by email.

The fact the court said the document would appear in their “opinions” section seemed prophetic. It was. The opinion was just released and my prediction on it was right, it did signal a final opinion and a declination of en banc consideration.

Here is the order. The key takeaway language:

The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the non-recused active judges in favor of en banc consideration. Fed. R. App. P. 35. The petition for rehearing en banc is DENIED.

The mandate is stayed for ninety days pending the filing of a petition for writ of certiorari in the Supreme Court. If such a petition is filed, the stay shall continue until final disposition by the Supreme Court.

Notable is the sniping dissent lodged by Judges O’Scannlain, Bybee and Bea, and the broadside shot right back by Steve Reinhardt and Mike Hawkins, who were the accused when O’Scannlain said:

Based on a two-judge majority’s gross misapplication of Romer v. Evans, 517 U.S. 620 (1996), we have now declared that animus must have been the only conceivable motivation for a sovereign State to have remained committed to a definition of marriage that has existed for millennia, Perry v. Brown, 671 F.3d 1052, 1082 (9th Cir. 2012).

Interesting is the sniping back and forth, but ultimately of no moment. The ruling today is important, however, because the ultimate destination for the Prop 8 Perry case is now straight to the Supreme Court. As I explained when the original panel decision was issued, authored by Steve Reinhardt, it was different than expected:

It is a narrower and shallower victory than I had hoped and predicted though.

All that Proposition 8 accomplished was to take away from same-sex couples the right to be granted marriage licenses and thus legally to use the designation of ‘marriage,’ which symbolizes state legitimization and social recognition of their committed relationships. Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those opposite-sex couples. the Constitution simply does not allow for “laws of this sort.” Romer v. Evans, 517 US 620, 633 (1996).

By basing on Romer instead of the full constitutional protections of due process and equal protection, the court has likely increased the odds the decision stands up to further appeal, but has done a disservice to those seeking true equality, both as to marriage and otherwise, for gays and lesbians. In short, it does not move the ball nearly as much as it should have, and was hoped for. The decision of the 9th does not go nearly as far as Vaughn Walker did, and wastes much of the meticulous taking of evidence, making of findings of facts and law, and crafting of his decision. It was hand tailored to go MUCH further, and that now appears at least significantly squandered.

That analysis of the panel decision in Perry still stands. The bigger problem is that many experts on this issue have been putting their eggs in the basket of the DOMA litigations. And the problem with that is that the biggest of the DOMA cases just got decided in the 1st Circuit last week, and it too is grounded on Romer and is painfully narrow and depressing as to hope for full extension of protected status to sexual orientation by individuals.

As Reuters explains:

“The federalism aspect of the decision makes it a stronger case to bring some conservatives along,” said Paul Smith, a lawyer for the same-sex couples.

The Supreme Court has become increasingly concerned with states’ rights over the past 10 years, striking down numerous federal laws that intrude on state authority, said New York Law School professor Arthur Leonard. The conservative justices have tended to defend traditional areas of state control. Justice Antonin Scalia, for example, criticized the majority decision in Romer for creating a new level of equal protection for gays and lesbians, but he based his argument on a defense of states’ rights.

The DOMA litigation is clearly presented as a battle between federal and state powers. The plaintiffs only challenged the law’s central provision that denies federal economic benefits to married same-sex couples. They left alone the part of the law that says a state doesn’t have to recognize same-sex marriages performed in other states.

While the focus on states’ rights could lead the Supreme Court to strike down DOMA, it could also make it more difficult for gay rights advocates to achieve their ultimate goal: making same-sex marriage a federal constitutional right.

The focus on federalism could also undercut arguments against state laws like Proposition 8 that ban same-sex marriage. Schowengerdt, the lawyer from the Alliance Defense Fund who is currently defending gay marriage bans in Hawaii and Oklahoma, said he plans to cite the recent Massachusetts ruling to support his position that the definition of marriage should be left up to the states.

He pointed out that 31 states had passed constitutional amendments defining marriage as between a man and a woman. “At the end of the day, federalism helps proponents of traditional marriage,” he said.

By having both Perry and the 1st Circuit DOMA rely on the Romer paradigm, the main thrust of LGBT litigation is now set up under a states rights analysis as opposed to full equal protection status across the board and uniformly nationwide.

While many of the experts, pundits and lay people closely watching these cases may be cheering today, it seems a tad hollow. This is not the posture that Vaughn Walker worked so hard to put in place, the posture that the affected citizens deserve.

[The absolutely incredible graphic, perfect for the significance and emotion of the Perry Prop 8 case, and the decision to grant marriage equality to all citizens without bias or discrimination, is by Mirko Ilić. Please visit Mirko and check out his stock of work.]

California Supreme Court Rules There Is Standing For Prop 8 Intervenors

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Liberty & Justice by Mirko Ilic

When the Ninth Circuit initially referred the issue of standing for the Defendant-Intervenors in the Perry v. Schwarzenegger/Brown back at the start of the year, I wrote this:

I still look for the California Supreme Court to certify this issue, and my best guess is they will find standing, the case will be sent back to the 9th Circuit for a merits decision and the 9th will uphold Vaughn Walker. Assuming all that is the case and plays out accordingly, it will sure eviscerate much of the ability of the US Supreme Court to avoid the merits on standing (which I think they otherwise would do). The bad news is this is going to take well over a year, and could easily be two years if there is an en banc process as well in the 9th. An attempt to repeal Proposition 8 will almost certainly be on the ballot for the 2012 election and if it gets repealed, this case is moot. That would not be so bad, as it would reinstate marriage equality in California. However if it fails, and Barack Obama loses in 2012, and there is a very early opening on the Supreme Court, the resulting extreme rightward shift would be very detrimental. There are a lot of ways this could go in the future, stay tuned!

The California Supreme Court just issued its opinion and I have been affirmed! In short, the highest California appellate court has certified to the 9th Circuit that, as a matter of state law, the DI’s have legitimate standing to represent their side of the matter in Federal appellate courts.

The key finding is:

At the request of the United States Court of Appeals for the Ninth Circuit, we agreed to decide a question of California law that is relevant to the underlying lawsuit in this matter now pending in that federal appellate court. (Perry v. Brown (9th Cir. No. 10-16696); see Cal. Rules of Court, rule 8.548.) As posed by the Ninth Circuit, the question to be decided is “whether under Article II, Section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure possess either a particularized interest in the initiative’s validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so”.
….
Accordingly, we respond to the question posed by the Ninth Circuit in the affirmative. In a postelection challenge to a voter-approved initiative measure, the official proponents of the initiative are authorized under California law to appear and assert the state’s interest in the initiative’s validity and to appeal a judgment invalidating the measure when the public officials who ordinarily defend the measure or appeal such a judgment decline to do so.

Here is the full decision.

The opinion was written by newly seated Chief Judge Tani Cantil-Sakauye, who was literally sworn in the day before the 9th Circuit dumped this question in the laps of the California Supremes. It appears quite well sculpted and the full court signed on to her opinion; however, Judge Kennard issued a specially concurring opinion to “highlight the historical and legal events that have led to today’s decision and to explain why I concur in that decision”. As I said back in January, this was not really all that novel of an issue in California jurisprudence, and so the court has noted and, now, established with certainty.

Time for Steve Reinhardt and his merry band of 9th Circuit pranksters to fire up the cert alert in the stodgy halls of SCOTUS! And I think that will be happening sooner rather than later as the 9th has already received full briefing and oral argument on the merits. I would even go so far as to say there are draft opinions already written and ready to be tweaked and supplemented with today’s California Supreme Court ruling. So expect a ruling from the 9th fairly quickly.

I will be adding in some more analysis after a thorough reading of the full opinion.

[The absolutely incredible graphic, perfect for the significance and emotion of the Perry Prop 8 case, and the decision to grant marriage equality to all citizens without bias or discrimination, is by Mirko Ilić. Please visit Mirko and check out his stock of work.]

9th Circuit Punts On Perry Prop 8; Certifies Standing To California

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Liberty & Justice by Mirko Ilic

We have unexpectedly quick news out of the 9th Circuit Court of Appeals on the Perry v. Schwarzenegger Proposition 8 marriage equality appeal. As you will recall, the case is in the 9th on appeal from the three week long evidentiary trial in the Northern District of California last January in front of Judge Vaughn Walker with closing arguments made on June 16 (summary of EW live coverage here) and Judge Walker’s opinion finding such marriage discrimination unconstitutional was issued on August 4th. The current appeal had oral argument less than a month ago, on Monday December 6th.

Now we have the surprisingly fast first decision, if you can call it a “decision”. It is really a disguised punt. The main opinion is in docket No. 10-16696, where the effective docket order reads:

Filed Order for PUBLICATION (STEPHEN R. REINHARDT, MICHAEL DALY HAWKINS and N. RANDY SMITH) for certification to California State Supreme Court. Before this panel of the United States Court of Appeals for the Ninth Circuit is an appeal concerning the constitutionality under the United States Constitution of Article I, § 7.5 of the California Constitution (“Proposition 8”). Because we cannot consider this important constitutional question unless the appellants before us have standing to raise it, and in light of Arizonans for Official English v. Arizona, 520 U.S. 43 (1997) (“Arizonans”), it is critical that we be advised of the rights under California law of the official proponents of an initiative measure to defend the constitutionality of that measure upon its adoption by the People when the state officers charged with the laws’ enforcement, including the Attorney General, refuse to provide such a defense or appeal a judgment declaring the measure unconstitutional. As we are aware of no controlling state precedent on this precise question, we respectfully ask the Supreme Court of California to exercise its discretion to accept and decide the certified question below. (See order for full text).

….

The case is withdrawn from submission, and further proceedings in this court are stayed pending final action by the Supreme Court of California. The parties shall notify the Clerk of this Court within three days after the Court accepts or rejects certification, and again within three days if the Court renders an opinion. The panel retains jurisdiction over further proceedings. IT IS SO ORDERED.

Now, as you will also recall, there were two cause numbers consolidated for oral argument and that, really, comprise the same effective case. In the second one, Docket No. 10-16751, the part of the action initiated by Imperial County attempting to intervene and provide governmental cover for standing on appeal, the effective corollary docket order reads:

FILED PER CURIAM OPINION (STEPHEN R. REINHARDT, MICHAEL DALY HAWKINS and N. RANDY SMITH) AFFIRMED; DISMISSED. The district court order denying the motion to intervene is AFFIRMED. Movants’ appeal of the district court order concerning the constitutionality of Proposition 8 is DISMISSED for lack of standing. The deadline for filing a petition for panel rehearing or rehearing en banc is hereby EXTENDED until the deadline for such petitions in No. 10-16696, which will be 14 days after an opinion is filed in that appeal. The Clerk is DIRECTED to stay the issuance of the mandate in this case until the mandate issues in No. 10- 16696. AFFIRMED in part; DISMISSED in part. FILED AND ENTERED JUDGMENT.

In the second cause number, 10-16751, the court issued a 21 page per curiam (by the whole panel collectively) opinion addressing the Imperial county attempt at intervention. the court held:

None of the Imperial County movants has demonstrated a “significant protectable interest” at stake in this action, as it was brought by Plaintiffs, and we affirm on that basis alone.

The court effectively laughed at the attempt to use Deputy County clerk Isabel Vargas as a mule for intervention, wondering why the hell a minion would be used instead of, you know, the actual County Clerk. A real valid question, and the court found no good answer. The court similarly found that the Imperial County Board of Supervisors was not a proper vehicle, stating “…the Board plays no role with regard to marriage, which is “a matter of ‘statewide concern’ rather than a ‘municipal affair'”. The court rounded out the fisking as follows:

Moreover, the duties of the Supervisors themselves are not directly affected by this litigation, so they lack a significant protectable interest.

Second, the County itself has failed to demonstrate any interest of its own, apart from those claimed by Vargas or the Board of Supervisors.

So, in a nutshell, the argument by Imperial County that they were entitled to intervene as a matter of right was denied in full. Oh, and the 9th also found that Vaughn Walker was correct in finding no necessary basis for permissive intervention by Imperial County as well, and affirmed that denial. So Imperial County, unless they get some appellate relief, which is unlikely, is toast.

And, so that completes the fun today, right? Oh no! We have more! The estimable Judge Stephen Reinhardt lodged a concurring opinion that is a little, shall we say, more interesting. I will excerpt a few key quotes, but this one is only ten pages long and is well worth the read. I think you will quickly understand why I have said Reinhardt is such a wonderful treasure as a judge.

Today’s two orders involve a procedural question known as “standing.” The public may wonder why that issue is of such great importance, and what the significance of our standing decisions is. For that reason, while I agree entirely with our two dispositions, both of which are filed in the names of all three of us who are considering the appeals and both of which represent our unanimous views, I believe it desirable to set forth a few explanatory remarks of my own.

The standing problem arises out of a trend in our judicial system over the past few decades. It is a trend that emphasizes technical rules over deciding cases on the merits, and indeed over the merits themselves.

Reinhardt’s disdain for the avoidance of meritorious claims on technical standing issues just drips off the pages. Indeed he cites his own previous tomes on just this subject in a prominent footnote (See footnote 3 for the cites). But as to the instant case, Reinhardt acidly remarks:

All I can say now is that the issues concerning standing were wholly avoidable in this case.

He goes on to take a crystal clear shot directly at the broadside of Ted Olson and David Boies for filing their action, and obtaining their relief, against one two of the 58 counties in California:

Whether Plaintiffs are correct or not, it is clear that all of this would have been unnecessary and Plaintiffs could have obtained a statewide injunction had they filed an action against a broader set of defendants, a simple matter of pleading. Why preeminent counsel and the major law firms of which they are a part failed to do that is a matter on which I will not speculate.

Ouch. Reinhardt then goes on to blast Schwarzenegger and Jerry Brown, the Governor and Attorney General at the time respectively, for not giving the intervenors appellate cover (as I have consistently carped about as well) and Imperial County for the incredibly lame effort of trying to appear through a common deputy clerk. Reinhardt is spot on in each of these regards.

The last paragraph from Steve Reinhardt’s concurring opinion summarizes where the case stands, and is likely to do so better than I could, so I am going to let him speak:

None of this means that ultimately there is no standing in this case. Because of a United States Supreme Court ruling regarding the availability of standing to proponents of initiatives, Arizonans for Official English v. Arizona, 520 U.S. 43 (1997), we have certified to the Supreme Court of California the question of an initiative proponent’s authority and interests under California law. Although that matter must be decided by the Supreme Court of California, Proponents advance a strong argument on this point. Thus, in the end, there may well be standing to maintain this appeal, and the important constitutional question before us may, after all, be decided by an appellate court – ours, the Supreme Court, or both – and may apply to California as a whole, instead of by being finally decided by a trial court, or by default, in only two counties or in none. As a result, the technical barriers and the inexplicable manner in which the parties have conducted this litigation may in the end not preclude an orderly review by the federal courts of the critical constitutional question that is of interest to all Americans, and particularly to the millions of Californians who voted for Proposition 8 and the tens of thousands of same-sex couples who wish to marry in that state. In the meantime, while we await further word from the Supreme Court of California, I hope that the American public will have a better understanding of where we stand today in this case, if not why.

The one last parting thought I have is that this California Supreme Court certification process is likely to take some time. Six months would be a miracle, a year is far more likely. First off, the California Supreme Court does not have to accept consideration, and there will be a briefing process on whether they even should do that. Assuming they then accept consideration on the merits, and I do think it extremely likely they will, there will then be a full briefing schedule on the merits before any decision.

It would have been expected that the Court under Chief Justice Ron George (very nice article here) would take this up, but he just left and the new Chief Justice, Tani Cantil-Sakauye, literally was just sworn in yesterday. She is known as being cautious and moderately conservative, but fair and open minded. Which, really, is probably a fair description of Ron George, so there may not be that much of a change at the top of the California Supremes.

I still look for the California Supreme Court to certify this issue, and my best guess is they will find standing, the case will be sent back to the 9th Circuit for a merits decision and the 9th will uphold Vaughn Walker. Assuming all that is the case and plays out accordingly, it will sure eviscerate much of the ability of the US Supreme Court to avoid the merits on standing (which I think they otherwise would do). The bad news is this is going to take well over a year, and could easily be two years if there is an en banc process as well in the 9th. An attempt to repeal Proposition 8 will almost certainly be on the ballot for the 2012 election and if it gets repealed, this case is moot. That would not be so bad, as it would reinstate marriage equality in California. However if it fails, and Barack Obama loses in 2012, and there is a very early opening on the Supreme Court, the resulting extreme rightward shift would be very detrimental. There are a lot of ways this could go in the future, stay tuned!

UPDATE: Here is Judge Reinhardt’s collateral final order on the earlier motion to disqualify him that he previously denied long before oral argument.

[The absolutely incredible graphic, perfect for the significance and emotion of the Perry Prop 8 case, and the decision to grant marriage equality to all citizens without bias or discrimination, is by Mirko Ilić. Please visit Mirko and check out his stock of work.]

Perry v. Schwarzenegger 9th Circuit Oral Argument Liveblog Primer

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Liberty & Justice by Mirko Ilic

Emptywheel and Firedoglake have covered the groundbreaking marriage equality civil rights litigation in Perry v. Schwarzenegger from the outset. today is the critical appeal in the 9th Circuit and it is being televised on CSPAN live. In a separate dedicated post, Marcy Wheeler will be liveblogging and I will be assisting with color commentary both through her and in comments.

The case was filed by plaintiffs Kristin Perry, Sandra Stier, Paul Katami and Jeffrey Zarrillo in response to the passage of an amendment to California’s constitution by Proposition 8 providing “Only marriage between a man and a woman is valid or recognized in California.”

There was a three week long evidentiary trial in the Northern District of California last January in front of Judge Vaughn Walker with closing arguments made on June 16 (summary of EW live coverage here) and Judge Walker’s opinion finding such marriage discrimination unconstitutional was issued on August 4th. The appeal being argued today is from that decision by Judge Walker.

The oral argument is being televised live by CSPAN, will be carried by live feed on numerous internet sites, and will likely be on several other television networks as well. Here is a page with links and viewing information.

Here is Firedoglake’s dedicated Proposition 8 Resource Page containing just about everything you could possibly want to know about the case from start to finish including links to all of our coverage of the trial, closings, and judgment process, as well as the lead up to today’s argument, and nearly every important document, filing and brief in the case.

An article yesterday by Maure Dolan in the Los Angeles Times hit the nail on the head as to where to focus watching the oral argument:

When a federal appeals court meets in San Francisco on Monday for arguments on Proposition 8, legal analysts will be closely watching Judge Michael Hawkins, a moderate Democratic appointee whose vote is expected to be critical in the same-sex marriage case.

The randomly chosen three-judge panel of the U.S. 9th Circuit Court of Appeals also includes Judge Stephen Reinhardt, a California liberal appointed by President Carter, and Judge N. Randy Smith, a conservative from Idaho appointed by President George W. Bush.

“It’s a very favorable panel for the challengers to Proposition 8,” said Arthur Hellman, a University of Pittsburgh law professor and expert on the 9th Circuit.

Hawkins, an Arizonan appointed by President Clinton, “is the one to watch most closely,” Hellman said. He has sided with liberals in some key cases and will probably cast the decisive vote in the case if there is a split decision, Hellman and other analysts said.

Having spent my legal career practicing in the 9th Circuit, I can tell you Dolan is spot on here. Reinhardt is Read more →