tag:blogger.com,1999:blog-759178030677978044.post6965638031375721678..comments2024-02-19T07:24:42.397-08:00Comments on Anglican Curmudgeon: Prop. 8: What Should the Proponents Do Next?A. S. Haleyhttp://www.blogger.com/profile/05108498446058643166noreply@blogger.comBlogger5125tag:blogger.com,1999:blog-759178030677978044.post-19943349374439762422010-08-17T09:35:40.369-07:002010-08-17T09:35:40.369-07:00Well, that is true, Joe -- if there is no jurisdic...Well, that is true, Joe -- if there is no jurisdiction at the trial level, there will also be no jurisdiction for any appeal. So if the appellate court finds there was never any jurisdiction in the first place, it will <i>vacate</i> the trial court's judgment, and dismiss the appeal.<br /><br />But sometimes, as in the <i>Perry</i> case, there might well have been jurisdiction below, but then there is no one with standing who appeals. In that case, the appellate court would dismiss the appeal, but leave intact (and not affirmed) the decision below. That is what could happen in the <i>Perry</i> case, for the reasons I explained in the post.A. S. Haleyhttps://www.blogger.com/profile/05108498446058643166noreply@blogger.comtag:blogger.com,1999:blog-759178030677978044.post-88857473622647476542010-08-17T08:52:21.721-07:002010-08-17T08:52:21.721-07:00Really? I thought appellate jurisdiction was limit...Really? I thought appellate jurisdiction was limited to trial court jurisdiction, and if there were no case or controversy at the trial court level, then there could be no appellate jurisdiction?Joehttps://www.blogger.com/profile/07285325003136746333noreply@blogger.comtag:blogger.com,1999:blog-759178030677978044.post-42157654357094941762010-08-17T06:00:08.021-07:002010-08-17T06:00:08.021-07:00Joe, you have to distinguish between the original ...Joe, you have to distinguish between the original case below, and the appeal. (In the cases you cite, there were no intervenors.)<br /><br />In the <i>Perry</i> case below, there was initial jurisdiction because the plaintiffs had standing to sue -- they claimed an "injury in fact." If the plaintiffs have standing, that's the end of the inquiry -- the court does not look at the standing of defendants, or of intervenor-defendants.<br /><br />When the Governor/AG said they would not defend, <i>then</i> the "case or controversy" was threatened, in accordance with the cases you cite. But unlike those cases, the <i>intervenors</i> in <i>Perry</i> kept the case or controversy requirement alive, because they actively defended the Proposition.<br /><br />But on appeal, the test shifts. Now the "plaintiff", as it were, is the appellant -- and Art. III jurisdiction requires that as "plaintiff", the appellant have standing to appeal. Once again, we do not look at the appellees, just the appellant. And now we have a problem, because the injunction entered below does not apply to the appellants, or make them do or not do anything.<br /><br />That is the problem here: no one had to look at the intervenors' "standing" when they were in the case below, because the original plaintiffs supplied the requisite "standing" for a case or controversy. But on appeal, the shoe is on the other foot, and unless the intervenors can convince the Court that California law authorizes them to stand in the shoes of the "legislators" who passed the measure, they will be found to lack standing to appeal.<br /><br />If, on the other hand, Imperial County is allowed to intervene on the appeal, then arguably it would supply the Art. III standing for the appeal, as I argued in the main post. And then the lack of standing of the proponents would become irrelevant.A. S. Haleyhttps://www.blogger.com/profile/05108498446058643166noreply@blogger.comtag:blogger.com,1999:blog-759178030677978044.post-82534562248247850502010-08-16T17:52:59.079-07:002010-08-16T17:52:59.079-07:00Even better - the proponents have questioned the s...Even better - the proponents have questioned the standing of the Plaintiffs:<br /><br />If Appellees are correct that Proponents lack standing, then the court below likely lacked jurisdiction (and its judgment must therefore be vacated) because the Attorney General agreed that Proposition 8 was unconstitutional. See GTE Sylvania, Inc. v. Consumers Union of U.S., Inc., 445 U.S. 375, 383 (1980) (“there is no Art. III case or controversy when the parties desire ‘precisely the same result’ ”(quoting Moore v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 47, 48 (1971)(per curiam))); League of Women Voters of California v. FCC, 489 F. Supp. 517,520 (C.D. Cal. 1980) (dismissing constitutional challenge to federal statute for lack of case or controversy where defendant FCC declined to defend because it “agrees that the statute is unconstitutional”).Joehttps://www.blogger.com/profile/07285325003136746333noreply@blogger.comtag:blogger.com,1999:blog-759178030677978044.post-53222424935129918902010-08-16T12:29:51.930-07:002010-08-16T12:29:51.930-07:00"The proponents of Proposition 8, and even th...<i>"The proponents of Proposition 8, and even the group leading Imperial County's appeal, might do well to ponder these considerations in the days ahead. Having been out-gamed in federal court, they might just do best to leave well enough alone, and to let Judge Walker's decision remain the solitary voice that it currently is. Sometimes the best strategy, when faced with an egregious decision, is not to appeal -- and thereby risk making matters still worse."</i><br /><br />Dear A.S. Haley, beloved Anglican Curmudgeon, you.... YOU rock!!<br /><br />Why didn't George "W." Bush nominate you to be a judge??!<br /><br />Oh well. I'll clean up your house after it gets egged by the militant pro-gay activists. <br /><br />BTW, I've written elsewhere that I've wondered whether Justice Kennedy might be a target for assassination by a militant pro-gay activist. Kennedy then gets replaced by a pro-gay liberal judge nominated by Obama and then the whole issue gets voted 5-4 by liberal justices on the Supreme Court in favor of gay marriage for all 50 states.<br /><br />Wouldn't that be a lovely scenario?Truth Unites... and Divideshttps://www.blogger.com/profile/08891402278361538353noreply@blogger.com