August 16, 2010

An Unanswerable, Five-Word Response to Judge Dredd's Claim that Prop. 8 Proponents Have No Standing to Appeal His Decision (Why Yes - It's Shorter Than This Title!)

Hatched by Dafydd

Judge "Dredd" Vaughn Walker recently hinted rather strongly that the defendants who defended traditional marriage and Cailfornia Proposition 8 in Perry v. Schwarzenegger have no standing to appeal, now that the judge has washed his hands of their arguments.

Walker opined (his target audience is the Ninth Circuit three-judge panel) that nobody but Gov. Arnold Schwarzenegger and state Attorney General Jerry Brown had standing to file an appeal of Walker's gift to same-sex marriage supporters.... knowing full well that both had already refused to defend Prop 8 or file the appeal. (Yes, that Jerry Brown; the former ultra-liberal governor of California who served after Ronald Reagan.)

According to the Los Angeles Times:

To have standing in federal court, a party must show that it has suffered an actual injury, and Walker said no evidence suggests that the campaign would meet that test....

"Proponents may have little choice but to attempt to convince either the governor or the attorney general to file an appeal to ensure jurisdiction," Walker wrote.

Picture a sitting federal judge sticking his tongue out at California voters.

Message received: The notorious Ninth, the most liberal federal appellate court in the land, has developed a sudden fascination for the question of standing; deciding Prop. 8 defenders had none would allow the panel to dismiss the appeal without even bothering to review the merits of Walker's decision (hat tip to Le-gal In-sur-rec-tion and Allahpundit at Hot Air). Quoth the three-judge panel:

In addition to any issues appellants wish to raise on appeal, appellants are directed to include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing.

All by way of preamble; but I have a response to Walker's argument that (1) only the governor or the state Attorney General has standing to appeal his order; but since (2) they both applaud his decision and refuse to appeal it, then (3) proponents of Prop. 8 and traditional marriage can go eat worms. My response is just six words long, but I see it as quite unanswerable:

If Judge Walker is right, and nobody willing to appeal the ruling is allowed to appeal the ruling, then... who speaks for the people?

Seven million California voters voted for Proposition 8; who speaks for them?

The whole point of a citizens' initiative is to allow the voters themselves to enact reforms or repeal tyrannical laws, even when elected officials are corrupt, out of touch, or unwilling to listen. But if the governer can overturn such an initiative merely by refusing to defend it in the inevitable lawsuit, allowing opponents of the initiative to win by default, then the entire point of a citizens' initiative is thwarted. (George Will would be overjoyed.)

At the federal level, the president could do the same thing, effectively overturning legislation passed by Congress and signed by the (then) president, but which the current president dislikes: Simply refuse to defend the law in court, giving himself retroactive veto power over laws already enacted. What a sweet way to amend the constitution without having to amend the constitution.

This is liberalism; this is the "hope and change" that Barack H. Obama promised. This is what the Left does, its forte: If you voted for Obama or a third-party candidate, then this is the world you wrought.




...Miss him yet?

George W. Bush

Cross-posted on Hot Air's rogues' gallery...

Hatched by Dafydd on this day, August 16, 2010, at the time of 9:28 PM

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The following hissed in response by: GW

Hey, I made the point about standing almost a week ago in a comment to one of your other posts. And it's Legal Insurrection and Hot Air that get the nods . . . . tut, tut.

At any rate, given the unique context of this case, I simply cannot see the 9th Circuit refusing to allow defendants in the case to pursue the appeal on the basis of standing. It would be an act of juddicial arrogance on par with the boundless judicial arrogance displayed by Judge Walker himself in the substance of his opinion in Perry.

Understand, 90% of the time, judges decide a case based on the equities, then look for law to support their decision. In this case, there are over 7 million equities to consider. Then there is the fact that the Judge Walker allowed the plaintiffs standing, apparently so he could do the "fact finding" that went into his decision. I would not be surprised if the Judge ruled that since plaintiffs were given standing by the lower court, the Circuit Court ultimately decides not review the legal efficacy of that decision. There is plenty of conflicting law on which the Circuit Court could hang their hat on this one.

The above hissed in response by: GW [TypeKey Profile Page] at August 16, 2010 9:41 PM

The following hissed in response by: Chris Balsz

Clearly the state of California has standing, and the state has passed law allowing proposition backers to defend a successful law in court. If the State of California wants to empower the governor, the attorney general, the prop 8 proponents, the insurance commissioner, former Speakers of the Assembly, and Miss California to represent its interests in court, I guess they have a 11th Amendment right to do that, whatever the other 49 states do.

The above hissed in response by: Chris Balsz [TypeKey Profile Page] at August 17, 2010 8:01 AM

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