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View Diary: The Supreme Court won't uphold Prop 8, but ... (207 comments)

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  •  PLAINTIFFS' standing is not at issue. (1+ / 0-)
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    MPociask

    The (non-intervenor) plaintiffs in this case, now as always, are Kristin Perry, Sandra Stier, Paul Katami, and Jeffrey Zarrillo. They have standing. They have always had standing. If, as is being contemplated, the Supreme Court kicks the case for lack of standing, it won't be because the plaintiffs lack standing.

    It was only when the Prop 8 proponants tried to appeal that standing became an issue.
    How does that make any sense? Standing is a doctrine derived from the provision in Article III of the U.S. Constitution that the federal courts have jurisdiction over "Cases" and "Controversies" that arise under federal law. The notion is that, without parties who have an concrete interest in the litigation, there can be no actual "case or controversy" for the courts to adjudicate.
    You don't need another party - people win default judgments all the time.
    But in a default judgment, there is "another party"; (s)he just doesn't show up. At which point the case ends.

    And, indeed, that's what this case amounts to if the Prop 8 proponents aren't entitled to sustain a "case or controversy": this case effectively was a default in favor of the plaintiffs as of June 2009, when the state officials who were the named defendants refused to defend Prop 8 and simply dropped out. And yet Judge Walker held a trial in January 2010—a trial on something that purported to still be a "case or controversy," yes?

    If the Prop 8 proponents do not have the power to create a "case or controversy" under Article III, then the federal courts ceased to have legitimate jurisdiction over this case months before the trial in front of Walker. What sense would it make to have a standing doctrine that holds that the proponents have the right to defend a case in district court (as the only entities preventing the thing from being terminated by default judgment), but not to appeal the decision of that court? Surely that's absurd.

    The upshot of all of this is that I don't understand how the Supremes could possibly issue a decision kicking this case on standing grounds without either (1) vacating Walker's district-court decision as well as Reinhardt's appellate one or (2) making a self-contradictory hash of the law on standing.

    Alas, (2) is not impossible to imagine. Guh.

    •  You are not correct (4+ / 0-)

      There is a reason why the case, originally designated as Perry vs Schwartzenegger and later as Perry vs Brown is now titled Hollingsworth vs Perry. The plaintiffs in the original case are no longer the plaintiffs; the appeal is coming from the losers of the lower court ruling (hence Hollingsworth who represents, I believe, one of the five people who officially put Prop 8 on the ballot). As the nomenclature of the current case makes clear, the proponents of Prop 8 are now the plaintiffs in the appeal.

      Whatever else they might do, the Supreme Court will NOT vacate Walker's ruling on the grounds of standing as standing had absolutely NO implications at the original trial level.

      •  Huh? (1+ / 0-)
        Recommended by:
        MPociask
        As the nomenclature of the current case makes clear, the proponents of Prop 8 are now the plaintiffs in the appeal.
        What? No, they're not. They're petitioners, not "plaintiffs." They filed a petition for a writ of certiorari, not a complaint.

        I assure you, Perry, Stier, Katami, and Zarrillo are still the plaintiffs. They're also respondents in the Supreme Court; previously they were appellees in the Ninth Circuit.

        Look, I've litigated in the Supreme Court. (Barely--the cert petitions my clients were opposing were denied, thankfully.) I'm well aware of how the process works.

        What's actually at issue here is how standing works—the basic notion of how one gets from Article III to the idea that this party or that one isn't allowed to maintain a case in federal court. And the incoherence I've described in a handful of comments here remains unaddressed: as of January 2009, when the named defendants in this case had all surrendered and refused to defend Prop 8, was there or was there not a "case or controversy" for Article III purposes? If the Prop 8 proponents now have no standing, how could there possibly have been a case or controversy in January 2010? Against whom?

        Whatever else they might do, the Supreme Court will NOT vacate Walker's ruling on the grounds of standing as standing had absolutely NO implications at the original trial level.
        Says you. You're going to have to cite something—some applicable precedent, perhaps—to establish that. Asserting (incorrectly) that the proponents "are now the plaintiffs" isn't going to get you there.
        •  Typo (0+ / 0-)

          There's a "2009" up there that should be a 2010.

        •  I have received my comeupance (0+ / 0-)

          And I owe you an apology. Had I realized your background I'd certainly have phrased many of my responses to you differently.

        •  Answer: (0+ / 0-)
          as of January 2010, when the named defendants in this case had all surrendered and refused to defend Prop 8, was there or was there not a "case or controversy" for Article III purposes? If the Prop 8 proponents now have no standing, how could there possibly have been a case or controversy in January 2010? Against whom?
          The named defendants were still enforcing the law.  The plaintiffs were still denied their rights.  Therefore, there was clearly a case or controversy for Article III purposes.  Defense of the law and enforcement are two different things.

          The court allowed intervenors to step in and argue a position where the named defendants were unwilling to do so - namely that Prop 8 was consitutional.  No different than the Supreme Court appointing someone to argue a point that the parties won't (such as what is happening in tomorrow hearing).

          Standing only becomes an issue when the intervenors appealled the trial court's decision.  The defendants chose not to appeal and would have let the ruling stand, ending the case.  It was at this point when the standing of the now-called proponents mattered because it was at this point they, and they alone, were causing this matter to continue in the courts.

          One should no more deplore homosexuality than left-handedness. ~Towards a Quaker View of Sex, 1964 (Proud left-handed queer here!) SSP: wmlawman

          by AUBoy2007 on Tue Mar 26, 2013 at 05:45:05 PM PDT

          [ Parent ]

          •  asdf (0+ / 0-)
            The named defendants were still enforcing the law.
            And why was that? There's only one reason: because the intervenor-defendants were prolonging the case. If the defendants had been allowed to submit to a default judgment (or consent decree or suchlike), the litigation would have been over, and the defendants would not have continued enforcing Prop 8.

            In other words, that continued enforcement you rely on was a posture forced on the defendants by (1) the intervenor-defendants' continued prosecution of the case and, perhaps more to the point, (2) Judge Walker's belief that the intervenors had standing to do so.

            The defendant state officials were out. They surrendered on all claims in the complaint. They weren't participating; they might as well have (and would have been perfectly happy to have) defaulted. As a result, how could their "still enforcing the law"—which they wouldn't have done if the case had been allowed to die, as they preferred—possibly be a justification for continuing the case?

            Hell—the defendants are still enforcing Prop 8 today! If that justified continuing the district-court proceedings, why doesn't it justify hearing and deciding the appeal on its merits?

            The court allowed intervenors to step in and argue a position where the named defendants were unwilling to do so - namely that Prop 8 was consitutional.  No different than the Supreme Court appointing someone to argue a point that the parties won't (such as what is happening in tomorrow hearing).
            That's very different. In this case, Walker "allow[ing] intervenors to step in" created a situation in which the only thing maintaining even a pretense of an Article III case or controversy was the presence of the intervenors. Without these intervenors, the district court wouldn't merely have been deprived of an "argu[ment]" on a particular "position"; it would have shed the entire case. Again, based merely on the fundamental point of the Article III standing inquiry, how can that make the slightest bit of sense? (Presuming the intervenors have no standing, that is?)
            Standing only becomes an issue when the intervenors appealled the trial court's decision.  The defendants chose not to appeal and would have let the ruling stand, ending the case.
            But once again, that doesn't differentiate the situations (district court vs. appeal) at all. "The defendants chose not to appeal and would have let the ruling stand, ending the case"? C'mon! The defendants chose not to contest the lawsuit in the first place. They would have let the claims in the plaintiffs' pleadings stand, ending the case via default, consent decree, judgment on the pleadings, or similar stipulated surrender. Somehow the intervenors got the power to prolong the lawsuit from June 2009 (when the named defendants bailed out) well into 2010 (when Walker held trial and then issued his decision). Where did they get that power? How could they have lost it when it came time to appeal?

            I don't understand how a Supreme Court decision bouncing the case for the intervenor-defendant-appellant-petitioners' lack of standing could avoid forcing the conclusion that Walker was wrong to allow the intervenors to continue the case after the named defendants dropped out. If the intervenors have (and had) no standing, then there cannot have been a case or controversy after June 2009, and Walker should have entered judgment for the Plaintiffs right then. How can any other approach be squared with the basic upshot of Article III?

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