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.