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August 12, 2010


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On the other hand, the Ninth Circuit will probably have ruled, and there won't be any reason to vacate the Ninth Circuit's decision as moot...


Prop. 8 would have prevailed by 12 points instead of 4 if the ballot language had been clear (Jerry Brown made it confusing on purpose. His evil ploy nearly defeated the measure).

Do you suppose the next proposition will be honestly labelled?



I might be mistaken, but I believe standard SCOTUS practice is indeed to vacate judgments which have been mooted at some point during the SCOTUS review process. I'll see if I can find a case in which this was done.


Ok, here is an example which at least appears to be on point. In Weinstein v. Bradford, 423 U.S. 147, the respondent prisoner had obtained some sort of relief having to do with parole procedures from the Fourth Circuit (519 F.2d 728), which was decided Nov. 22, 1974. The respondent was then apparently paroled on Dec. 18, 1974, and released from all supervision on Mar. 25, 1975. SCOTUS granted cert. on June 2, 1975, the petitioner apparently not having brought it to the Court's attention that the respondent was no longer subject to the parole procedures. When the petitioner did raise the issue during the merits stage, the Court (per curiam) vacated the Fourth Circuit's judgment and remanded to the district court with instructions to dismiss.

So I think that a favorable 9th Circuit decision would indeed be vacated if the matter became moot while on appeal to the Supreme Court. I guess another question would be how this would work if the repeal were to go through following the 9th Circuit's decision, but before SCOTUS granted cert--whether SCOTUS would GVR on mootness grounds, or whether it would simply deny cert, leaving the judgment below intact.

Larry Rosenthal

The post assumes that the appeal itself will be justiciable unless mooted, but that is open to question. The plaintiffs in Perry unquestionably had standing to sue given their inability to marry as a consequence of Proposition 8, but only the state has standing to appeal a judgment invalidating a state law even if others have intervened in the litigation in defense of the challenged law. See Diamond v. Charles, 476 U.S. 54 (1986). Thus far, as I understand it, only the defendant-intervenors have appealed. The state officials who are technical defendants appear to support to district court's decision, although one or more may eventually file a notice of appeal in order to preserve the possibility of appellate review. Still, that is far from certain, and it is equally uncertain whether a protective notice of appeal filed by a party with no intention of actually prosecuting the appeal could preserve appellate standing if otherwise lacking. To be sure, there is reason to adopt a different rule of appellate standing for laws enacted by voter initiative on the theory that the voters, or at least the sponsors of the initiative, have their own interest in preserving the law separate that is distinct from the interests of elected officials, but the Court expressed some skepticism about such a theory in Arizonans for Official English v. Arizona, 520 U.S. 43 (1997). Still, Attorney General Brown's decision not to defend Proposition 8 seems a clear example of the conflict of interest between elected officials and the sponsors of a voter initiative which is, after all, part of the argument for the initiative process. For this reason, I suspect that the intervenors should be granted standing to appeal, though the matter is not free from doubt.

Larry Rosenthal
Chapman University School of Law

David S. Cohen

Curious - I'd love to see your sources for what you're putting out there. It does appear that gay marriage is gaining majority support in California. In 2012, even more so I'd bet.

Larry - I agree that standing is not guaranteed on appeal. But, I also know that these kind of things can be manipulated by the courts, and the right panel on the Ninth Circuit will say there's standing if they want to. Also, could the decision on appeal somehow be stayed until the November election results (and the subsequent turn-over in office)? Has Meg Whitman said what she'd do if she were in office on this issue?


As to young people being in support of gay marriage: Don't count on it. Once they leave the cocoon of their schools, where they have been pretty much been presented with the pro-gay marriage arguments, they will go out into the world and get jobs; they will start getting married, having kids and mortgages and the whole thing. Then, every day, on the way into work, they will be listening to right wing talk radio, which will give them the other side. Net result: the ultra liberal college kid becomes a solid conservative within four years of graduating. My nephew was a Howard Zinn believing, Democrat in 2008. Even a scant two years later, I hear rumblings of conservative thought coming out of him. He admits that he is changing.


I misquoted the key number but the point stands: the gap would have been 8% if Jerry Brown hadn't tried to sabotage the initiative, according to...

Of course, Brown is now "throwing the game" in Federal court... apparently he plans not to appeal the District Court's ruling against Prop. 8 even though he has a sworn duty to defend the law.

Larry Rosenthal


A notice of appeal must be filed within 30 days of the final judgment. An appeal filed by officials who take office after next November's elections comes too late. The requirement of a timely appeal, moreover, is considered jurisdictional.


David S. Cohen

Curious - thanks for that. That means there's work to be done, but I think natural demographic shifts as well as more accepting views generally will do it, and by 2012 even. I think the polls indicate the shifts are happening already.

Larry - is there any way to get that time period extended? Any thoughts on whether the Ninth Circuit would take Judge Walker's discussion about standing on appeal for intervenors seriously?

Larry Rosenthal

In general, the time for filing a notice of appeal can be extended for only an additional 30 days. See Fed. R. App. P. 4(a)(5). Thus, if an appeal is going to be taken by any of the state officials, the current officeholders will have to be the ones to file it. Will the Ninth Circuit take this argument seriously? Of course it will. The attack on the intervenors' standing to appeal has solid support in Supreme Court precedent, and the lawyers for the plaintiffs-appellees are highly competent. As I indicated above, I think that the Ninth Circuit should adopt a different rule of standing for intervenors defending a law adopted by voter initiative such as Proposition 8, but that argument is something of an uphill climb.

David S. Cohen

Thanks Larry. On a related but different note, will the panel of the Ninth Circuit that gets the stay order appeal be the same panel that hears the case on the merits (or on the procedural standing issue or both)? I don't recall the rules about this type of internal procedural question from my days clerking there.


@Curious: can you point to specific California law that requires Brown to defend Prop 8? From what I've seen, he is required to "enforce" the law; it seems reasonable to me to conclude that "defend in court" is outside of the scope of "enforce." (IANAL, though, in CA or otherwise.)

David Groshoff

David: My understanding is that the panel that hears the stay will be a "motions" panel and is unlikely to be the same panel that might ultimately decide the merits.

Greg Robinson

The article that served as the origin for this speculation was a 2009 article that stated that LGBT leaders had decided to put an initiative on the ballot in 1012 rather than 2010. This was before the bringing of Perry, the case that has led to Prop 8 being overturned. Absent a contrary ruling from the 9th Circuit, there is no urgency to put on the ballot a costly and divisive initiative to win rights that (as of now) have already been restored.

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