Opinionated @ CFE

Judge Walker Goes to Crazytown


I’ve already said that I think that Judge Walker made the right call on the Prop 8 case based on the evidence (or lack thereof) presented. Now, however, he’s hinting at a decision so bad it has to be crazy. It’s being reported that he does not believe that the team that defended Prop 8 can file an appeal of his decision.

The argument is that because the defenders of the initiative suffer no obvious repercussions should they lose, they therefore don’t have standing to challenge the decision, a right reserved primarily to the governor and attorney general. Both of those parties didn’t even choose to defend against the lawsuit in court, so the likelihood of them filing an appeal is non-existent. As Dale Carpenter, a constitutional law professor put it:

[Y]ou can sponsor a proposition, direct it, research it, work for it, raise $40 million for it, get it on a ballot, successfully campaign for it and then have no ability to defend it independently in court.

He didn’t even get to the part where they were allowed to defend it, but not allowed to file an appeal. You can bet, however, that the opposing side would not have the same restriction placed upon them. Does that sound fair to you?

At the core, this sets a terrible precedent for the citizen initiative process. If a citizen-driven initiative can only be defended in an appellate court by a handful of elected officials, all of which are hostile to that initiative, then what’s the point of allowing another party to defend it at trial, much less launch an initiative to begin with? He’s basically saying that the governor and AG hold an unofficial veto power. Regardless of where you stand on Prop 8 itself, that precedent is horrible.

I hope the higher courts will see the giant gaping flaws and obvious double-standards in Judge Walker’s opinion on the appeal and blow it straight out the water.

3 Responses to Judge Walker Goes to Crazytown

  1. Personally, I’d like to change the system a bit. Enacting laws and THEN determining if that law is constitutional is bass ackwards, IMO.

  2. If only we could get Congress on board that train, you know?

    As an aside, I don’t think that system can work universally. The courts change their minds on what is or is not constitutional on a regular basis. It regularly filters decisions through new court decisions, social mores, federal laws… the works. As much as a strict constructionist would like to say that the Constitution has always meant one thing and one thing only (and as extremely convenient as that would be), the reality is that the meaning and application changes depending on what we collectively want it to mean.

  3. Jesse – There’s actually precedent for the argument that the folks who defended Prop 8 can’t appeal – it’s happened before where independent groups have defended ballot initiatives and lost while elected officials have chosen not to.

    From Americablog:

    “The question of the proponents’ standing to appeal, or lack thereof, is a complicated one, but it’s grounded in some basic constitutional principles. Article III of the Constitution limits the federal courts to hearing “cases” or “controversies.” For some years now the Supreme Court has interpreted this to mean that parties asking federal courts to act must have “standing.” One constitutional requirement for standing is that the party suffer an injury sufficient to give him, her, it, or them an appropriate stake in the dispute. This injury must be “concrete and particularized,” and it cannot be a mere “generalized grievance.” It is not enough that people object to the government not following what they believe the law to be; the Supreme Court uses standing doctrine to limit the number of people who have the right to take up the time of the federal judiciary. As part of this gatekeeping, the Court has said that the federal courts are not to be treated as “a vehicle for the vindication of the value interests of concerned bystanders.” So, parties need to be injured in some way more than just passionately disapproving of what the government is doing if they’re going to be able to have the federal courts pass on their complaints.

    These requirements of injury and standing apply in appeals and not just at trial. So, in a case called Diamond v. Charles in 1986, the Supreme Court rejected an attempt by a pro-life doctor to appeal a decision enjoining parts of Illinois’s abortion-restricting law. The state government was a defendant at trial, lost, and opted not to appeal. Pro-life physician Eugene Diamond had intervened as a defendant at trial, and he tried to appeal. When the case came before the Supreme Court, the Court dismissed his appeal. The Court held that Diamond did not show that he had personally suffered or been imminently threatened with an adequate injury. “The presence of a disagreement, however sharp and acrimonious it may be,” the Court ruled, “is insufficient by itself to meet Art. III’s requirements.”

    The Prop 8 proponents are in the same position. They intervened at trial to defend the measure they’d qualified for the California ballot because of their value interests in supporting mixed-sex only civil marriage and their sharp disagreement with the plaintiffs about Prop 8’s constitutionality or unconstitutionality, and because the governmental defendants refused to argue that Prop 8 was constitutional. As in Diamond, the state was the original defendant, it lost, and it has chosen not to appeal; and now the proponents are trying to appeal to the Ninth Circuit.”

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