Cal Sup Ct Rules 7-0 Initiative Proponents Have Standing

The long-awaited decision by the California Supreme Court on the question of whether initiative proponents have the right to defend their measures in court when elected officials like the Governor and Attorney General refuse to defend them was released today.

The Court ruled unanimously that initiative proponents do have standing under state law to defend their ballot initiatives.

As usual, Chris Geidner of Metro Weekly has the best analysis:

The California Supreme Court, in an opinion written by Chief Justice Tani Cantil-Sakauye, was very clear about its answer: 

[W]e 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. 

The decision came about resulting from a request by the Ninth Circuit in the ongoing challenge to Proposition 8 brought by the American Foundation for Equal Rights. The case, in which the trial court judge struck down Proposition 8 as unconstitutional in August 2010, is on appeal before the Ninth Circuit. The Ninth Circuit appeals court sought to have the California Supreme Court assist it with the case by answering these questions about state law through the process of asking a certified question. The California Supreme Court accepted the invitation to answer the certified question and heard oral arguments on the question on Sept. 6.

As the California Supreme Court found the proponents to have a "particularized interest" and "the authority to assert the State's interest," the Ninth Circuit now is likely to find that the proponents do have standing under federal law to bring the appeal -- although the court need not do so. At that point, the appeal of the Perry trial court decision -- the "merits" decision from the trial court that Proposition 8 is unconstitutional -- could go forward.

It's unfortunate that the Court opened up the can of worms to allow all initiative proponents to defend their statutes under state law. Considering how many ballot measures we have in California, this is an incredibly important decision.

That being said, it is very exciting that now we basically must get a ruling from the 9th U.S. Circuit Court of Appeals in the Perry v. Brown case which will give us a federal appellate court level ruling on the question of marriage equality.

Brown Nominates Goodwin Liu To CA Sup Ct!

Charles Dharapak / AP Photo

Goodwin Liu, 40, was rejected by a Republican United States Senate filibuster for a coveted position on the 9th U.S. Circuit Court of Appeals but has received a pretty nice consolation prize: a nomination by Governor Jerry Brown to the California State Supreme Court (from which he could still be nominated to the U.S. Supreme Court before he's 50).

The Los Angeles Times reports:

Liu, a graduate of Yale Law School, is the son of Taiwanese immigrants. He was born in Georgia, grew up in Sacramento and has a history of public service.

“I’m deeply honored by Gov. Brown’s nomination and look forward to the opportunity to serve the people of California on our state’s highest court,” Liu said in a statement.

Before joining the Berkeley Law faculty in 2003, Liu was an appellate litigator at O'Melveny & Myers in Washington. He clerked for U.S. Supreme Court Justice Ruth Bader Ginsburg and for Judge David Tatel of the U.S. Court of Appeals for the D.C. Circuit. He also served as special assistant to the deputy secretary of the U.S. Department of Education and as senior program officer for higher education at the Corporation for National Service (AmeriCorps).

Brown has forwarded Liu’s name to the State Bar’s Commission of Judicial Nominees Evaluation. The appointment will not become final until the Commission on Judicial Appointments -- consisting of state Supreme Court Chief Justice Tani Cantil-Sakauye, Atty. Gen. Kamala Harris and Justice Joan Dempsey Klein, senior presiding justice of the state Court of Appeal -- confirms the nomination.

Liu will replace Associate Justice Carlos Moreno, who retired from the court earlier this year.

Justice Moreno was a very strong advocate for the LGBT community, voting with 4-3 majority to end marriage discrimination in California's landmark In Re Marriage cases in 2008 and was the lone dissenter in 2009's California Supreme Court decision which upheld Proposition 8 as not violating the California constitution.

Goodwin Liu has previously expressed his belief that Proposition 8 is unconstitutional so it will be interesting to see if he can get confirmed in time to participate in the case now before the case as to whether the heterosexual supremacist supporters of Proposition 8 have legal standing to defend it in court when the elected representatives of the people of California have decided not to defend a voter-approved ballot measure.

Another interesting feature that Liu, if confirmed will produce a court with an Asian American majority and no Black or Latino members, in a state which has Latino plurality in the population. Things that make you go Hmmmmmm! That being said, Liu is a great choice, since he can't get through the Senate to a federal judgeship while Republicans have more than 40 votes and no compunctions about filibustering extremely qualified judges purely based on ideology, a state supreme court seat is fantastic.

BREAKING: 9th Circuit Kills DADT (Again)

Wow! A (admittedly decidedly liberal) 3-judge panel of the 9th U.S. Circuit Court of Appeals has unanimously lifted a stay against the U.S. Government from enforcing "Don't Ask, Don't Tell" in the case Log Cabin Republicans v. United States.

Here's the text of the order filed today:

Filed order (ALEX KOZINSKI, KIM MCLANE WARDLAW and RICHARD A. PAEZ) The Clerk shall amend the docket to reflect that Leon E. Panetta, Secretary of Defense, is substituted for Robert M. Gates, Secretary of Defense, as an appellant/cross-appellee. See Fed. R. App. P. 43(c)(2). Appellee/cross-appellant’s motion to lift this court’s November 1, 2010, order granting a stay of the district court’s judgment pending appeal is granted. See Hilton v. Braunskill, 481 U.S. 770, 776 (1987) (stating standard); Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011) (same). In their briefs, appellants/cross-appellees do not contend that 10 U.S.C. § 654 is constitutional. In addition, in the context of the Defense of Marriage Act, 1 U.S.C. § 7, the United States has recently taken the position that classifications based on sexual orientation should be subjected to heightened scrutiny. See Golinski v. U.S. Office of Pers. Mgmt., No. C 3:10-00257-JSW (N.D. Cal.) (Doc. 145, July 1, 2011) (“gay and lesbian individuals have suffered a long and significant history of purposeful discrimination”); Letter from Attorney General to Speaker of House of Representatives (Feb. 23, 2011) (“there is, regrettably, a significant history of purposeful discrimination against gay and lesbian people, by governmental as well as private entities”). Appellants/cross-appellees state that the process of repealing Section 654 is well underway, and the preponderance of the armed forces are expected to have been trained by mid-summer. The circumstances and balance of hardships have changed, and appellants/cross-appellees can no longer satisfy the demanding standard for issuance of a stay. Appellee/cross-appellant’s alternative request to expedite oral argument is granted. The Clerk shall calendar this case during the week of August 29, 2011, in Pasadena, California. Briefing is completed.

And here's Legal Eagle Chris Geidner explaining what it means:

DADT cannot be enforced, per the order, unless the government gets a stay of the order from either the Ninth Circuit of the U.S. Supreme Court pending an appeal of today's decision.

Cynthia Smith, a Department of Defense spokeswoman, tells Metro Weekly that Pentagon officials "are studying the ruling with the Department of Justice" but added, "We will of course comply with orders of the court, and are taking immediate steps to inform the field of this order." 

The three-judge panel -- Judges Alex Kozinski, Kim Wardlaw and Richard Paez -- based the decision to lift the appellate court's earlier stay of Phillips's order pending the appeal of the LCRcase is based, the judges write, because, "The circumstances and balance of hardships have changed, and appellants/cross-appellees can no longer satisfy the demanding standard for issuance of a stay."

Among the citations by the court is the July 1 filing in Karen Golinski's federal case seeking health insurance benefits for her wife and the related Feb. 23 letter from Attorney General Eric Holder declaring that he and President Barack Obama had decided that heightened scrutiny applies to classifications -- such as DADT.

The judges also note that "the process of repealing Section 654 [-- the DADT law --] is well underway, and the preponderance of the armed forces are expected to have been trained by mid-summer." Smith echoed this fact, writing to Metro Weekly, "[I]mplementation of the DADT repeal voted by the Congress and signed in to law by the President last December is proceeding smoothly, is well underway, and certification is just weeks away."

You will recal DADT was also not in effect worldwide or 8 days last fall when the Log Cabin Republicans first won an injunction against the government from federal judge Virginia Phillips. Now they have won at the appellate level as well on the question of the stay. The oral arguments about the merits of the case will be heard on August 29th. The government can ask for an en banc panel (11-judge panel) of the 9th Circuit or ask the US Supreme Court for a stay on the latest injunction against the enforcement of DADT..

It will be interesting to see what they do because the statute in question should be moot in a few weeks anyway when the DAT repeal is certified. However, there are some questions about whether sexual orientation will be a category of non-discrimination (which the lawsuit asks for but the legislation does not contain) and also whether the Uniform Code of Military Justice will include consensual sodomy (there is legislation in this year's Defense Authorization bill to repeal the UCMJ sodomy language).

Heterosexual Supremacists Appeal Judge Ware Ruling

Good grief! The heterosexual supremacists who believe that they are "defending marriage" by supporting Proposition 8 in federal court have appealed Federal District Court Judge James Ware's decision denying their motion to vacate Judge Vaughn Walker's ruling which struck down the measure.

The San Francisco Examiner says:

Attorneys for Prop. 8 filed their appeal this afternoon before the 9th U.S. Circuit Court of Appeals, the same court that is hearing an appeal of Judge Vaughn Walker’s ruling last August that the law unconstitutionally violated the civil rights of gays and lesbians.

Earlier this year, Prop. 8 sponsors had asked Ware, Walker’s replacement as chief justice, to throw out Walker’s ruling because of an interview he did with reporters in April, after his retirement, during which he discussed his long-term relationship with a gay man. They argued that Walker should have disclosed the relationship and whether he intended to marry before last year’s trial.

Attorneys for the same-sex couples who sued over Prop. 8 argued at the time that the motion was “frivolous” and “offensive.”

Ware denied the motion, saying there was no federal precedent for disqualifying a judge solely because he shares a characteristic, such as sexual orientation, with a litigant.

It should be interesting to see which case they lose first, the Perry v Schwarzenegger lawsuit (the appeal of Judge Ware's ruling) or the Perry v Brown lawsuit (the appeal of Judge Walker's ruling). I expect they will lose them both.

Celebrity Friday: Goodwin Liu Withdraws Nomination

Goodwin Liu, Professor of Law at University of California, Berkeley has written President Obama, withdrawing his name from consideration for a seat on the 9th U.S. Circuit Court of Appeals after Republicans successfully filibustered his nomination on the floor of the United States Senate on May 19th.

The text of the letter is here:

Dear Mr. President:


I have been deeply honored to be your nominee to the United States Court of Appeals for the Ninth Circuit. The nomination has been a tremendous source of pride for my family and community, and it would be a great privilege and responsibility to serve our country as a member of the judiciary. 


In light of last week's unsuccessful cloture vote, however, I respectfully ask that you withdraw my nomination from further consideration by the United States Senate. With no possibility of an up-or-down vote on the horizon, my family and I have decided that it is time for us to regain the ability to make plans for the future. In addition, the Judicial Council of the Ninth Circuit has noted the "desperate need for judges" to fill current vacancies,  and it is now clear that continuing my nomination will not address that need any time soon.


I am profoundly indebted to you for your confidence in me and to the many people wh workd tirelessly in support of my nomination. Thank you for this great honor and opportunity


Sincerely,


Goodwin Liu

Sometimes the bad guys win. Interestingly, President Obama has now nominated a judge named Morgen Christen from Alaska put on that state's Supreme Court by Governor Sarah Palin for the 9th Circuit. It will be interesting to see what response she gets from Senate Republicans!