Did the Legal Team in Perry Just Win For Good?

[donheld]

http://www.pamshouseblend.com/diary/16976/did-the-legal-team-in-perry-just-win-for-good


When the Perry v. Schwarzenegger decision was announced earlier this week there was - to quote Monty Python - much rejoicing. But immediately following the excitement and celebration there came a dark echo of caution: "This isn't over," it said. "There are still appeals to the Ninth Circuit, and eventually, to the Supreme Court. Anything could happen."
Except, what if that's only half right? What if part of the "anything" that could happen is that Judge Vaughn Walker's decision isn't appealed, never goes to the Ninth Circuit (much less SCOTUS) and Prop 8 is permanently, fabulously, dead?

In a motion filed late yesterday, lawyers for the plaintiff couples and the City of San Francisco argued that marriages should be allowed to begin immediately, rather than be stayed pending appeal. One of their arguments was that an appeal might never happen. They argued this because the governmental defendants - the Governator and the once (and future!) Governor Moonbeam - are not appealing and the Yes on 8 proponents - who were let in at the trial court as intervenors - don't have standing to appeal.

In a nutshell, from a non-lawyer, it seems that Justice Ginsburg, in the opinion to Arizonans for Official English v. Arizona (which was decided on other grounds), expressed "grave doubts" as to whether the proponents of a ballot measure had standing to appeal a federal court ruling in the absence of governmental actors making an appeal. In other words, the Yes on 8 folks might not have the right to appeal Walker's decision.

[napi21]

1. I believe there have been appeals already filed. Can't recall the details

but I know that Olsen & Boyce are already preparing for that appeal.

[donheld]

3. .

More importantly, noted Davidson, the Olson-Boies team and San Francisco argue that Yes on 8 may have no right to appeal Walker’s ruling.

When the California government declined to defend Proposition 8, Yes on 8, the coalition that campaigned for the amendment, took over that role. Yes on 8 was identified in court as “defendant-intervenor” and “proponents.”

Because the government-defendants, California’s government, are apparently not going to appeal Walker’s decision, said Davidson, “there will be a legal question of whether, when those who are ordered to do something don’t appeal, someone not ordered to do anything has any right to appeal.”


http://www.keennewsservice.com/2010/08/09/prop-8-update-a-triple-waiting-game/

[Steakman1989]

2. That's the decision of the Ninth Circuit

Grave Doubts might not be grounds to deny an appeal, especially when the defendant chose not to defend themselves in the case. Due to the nature of the Case, the Ninth Circuit may allow for it to go forward. And even if the Ninth Circuit denies the appeal, they can still appeal to SCOTUS directly. SCOTUS may or may not take it since on the one hand all they need are four justices to say yes to hearing it and they get it, but on the other hand it may be too politically hot to touch and they may not take it. Either case, the Proponents may have standing for the appeal because they and not State of California defended Prop 8.

[donheld]

4. Will the 9th Circuit hear it if it's not appealed?

[Unvanguard]

5. IANAL, but I've read that their legal argument is flawed.

See here.