I think it looks quite a bit like Arizonans for Official English. Although Justice Ginsburg's unanimous opinion expressed "grave doubts" about the standing of the intervenors to defend the state law, that did not "lead to" the mootness finding, as Joanne may or may not have meant to suggest; rather, the Court ultimately declined not to decide the question of the defendants' standing and dismissed for mootness because the originating plaintiff no longer had a case to pursue. So it remains the law of the 9th Cir. that ballot initiative proponents have a presumptive right to intervene under these circumstances. The plaintiffs in Perry chose not to oppose the proponents' intervention during the district court pre-trial proceedings, and the district court's ruling granting the motion to intervene was entirely pro forma, taking up scarcely more than a page. So I guess the question becomes, will Olson and Boies change their minds now? Since it goes to jurisdiction, presumably the intervenors' standing could be challenged at any time, and the plaintiffs needn't be bound by their earlier position. I don't look for Olson and Boies to do so. For one, they've run a smooth and flawless operation so far, and it would look odd for them to reverse course on something so fundamental to the case. To the public, which doesn't understand any of this, it would simply look like the plaintiffs were trying to deny the defendants their day in (appellate) court. More importantly, I don't think Olson and Boies got into this case to simply get a district court victory and call it a day. Steve Sanders
_____ From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Brant, Joanne Sent: Monday, August 09, 2010 7:41 PM To: Law & Religion issues for Law Academics Subject: RE: Perry v. Schwarzenegger - Effect of Religious Beliefs A question for the list -- is this starting to look like Arizonans for Official English v. Arizona? In that case, the state actors lost in the trial court and declined to appeal, and the 9th Circuit (again, applying liberal intervention rules) allowed the sponsors of the initiative to intervene. The Supreme Court found that the ballot initiative sponsors had no stake in the outcome, and thus no persons with standing had properly appealed the district court's judgment. (This led to a finding of mootness, since the successful employee resigned her state employment during the pendency of the appeal.) Obviously, there is no mootness issue here, but doesn't Alliance Defense Fund face a similar problem when they step into the shoes of the state AG to defend Prop 8? Or do list members see this as a different scenario, once ADF is accepted by the trial court as the state's representative? Joanne Brant Visiting Professor of Law University of Alabama School of Law _____ From: religionlaw-boun...@lists.ucla.edu on behalf of Brian Landsberg Sent: Mon 8/9/2010 6:05 PM To: Law & Religion issues for Law Academics Subject: RE: Perry v. Schwarzenegger - Effect of Religious Beliefs Although the state officials would not defend Prop. 8, they apparently treated it as law. Therefore there was a case or controversy for the court to decide. In that situation, the court needed someone to defend Prop. 8. This reminds me of the Bob Jones case, where the Attorney General decided not to defend the IRS regulation and the Supreme Court appointed an amicus curiae to make the arguments in favor of the regulation. Brian K. Landsberg Distinguished Professor and Scholar Pacific McGeorge School of Law 3200 Fifth Ave., Sacramento CA 95817 916 739-7103 blandsb...@pacific.edu -----Original Message----- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Monday, August 09, 2010 2:27 PM To: Law & Religion issues for Law Academics Subject: RE: Perry v. Schwarzenegger - Effect of Religious Beliefs I agree that an Attorney General who refuses to defend a state constitutional provision is not abdicated his *responsibility*. But he is, for better or worse, abdicated his role in the adversarial system, and his customary role as representative of the state's citizens. One doesn't need to fault him for that (though of course one can, if one thinks his evaluation of the constitutional question is unsound). But this abdication does suggest the value of allowing someone else to step in and fill that role. Here, the defendant-intervenors seem well teed up for that. Eugene > -----Original Message----- > From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- > boun...@lists.ucla.edu] On Behalf Of Sanford Levinson > Sent: Monday, August 09, 2010 1:59 PM > To: 'religionlaw@lists.ucla.edu'; 'steve...@umich.edu' > Subject: Re: Perry v. Schwarzenegger - Effect of Religious Beliefs > > It's entirely question begging to say that the AG "abdicated" his responsibility, > which is, after all, thanks to Article VI of the US Constitution, to be faithful to > that Consatitution. > > Sandy > > ----- Original Message ----- > From: religionlaw-boun...@lists.ucla.edu <religionlaw-boun...@lists.ucla.edu> > To: steve...@umich.edu <steve...@umich.edu>; Law & Religion issues for Law > Academics <religionlaw@lists.ucla.edu> > Sent: Mon Aug 09 15:19:59 2010 > Subject: Re: Perry v. Schwarzenegger - Effect of Religious Beliefs > > The answer is that the State AG abdicated his role and stated the he > believed Prop 8 was unconstitutional. > > --Tim > > > On 8/9/10 4:05 PM, "steve...@umich.edu" <steve...@umich.edu> wrote: > > > This goes to an interesting quirk of this case that I've raised on other lists > > before: how is it that the citizens of California came to have the Alliance > > Defense Fund as their attorneys, stepping into the shoes of the State in order > > the formulate and articulate what California's state interests are in > > maintaining marriage discrimination? The formal answer is that the 9th Cir has > > a liberal standard for intervention, gives ballot initiative proponents a > > presumptive right to intervene, and (unlike the 6th cir) doesn't distinguish > > between the interests of such proponents at the ballot stage vs. post > > enactment. > > > > Steve Sanders > > > > Sent via BlackBerry by AT&T > > > > -----Original Message----- > > From: "Volokh, Eugene" <vol...@law.ucla.edu> > > Sender: religionlaw-boun...@lists.ucla.edu > > Date: Mon, 9 Aug 2010 12:52:58 > > To: Law & Religion issues for Law Academics<religionlaw@lists.ucla.edu> > > Reply-To: Law & Religion issues for Law Academics > <religionlaw@lists.ucla.edu> > > Subject: RE: Perry v. Schwarzenegger - Effect of Religious Beliefs > > > > _______________________________________________ > > To post, send message to Religionlaw@lists.ucla.edu > > To subscribe, unsubscribe, change options, or get password, see > > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > > > Please note that messages sent to this large list cannot be viewed as private. > > Anyone can subscribe to the list and read messages that are posted; people > can > > read the Web archives; and list members can (rightly or wrongly) forward the > > messages to others. > > _______________________________________________ > > To post, send message to Religionlaw@lists.ucla.edu > > To subscribe, unsubscribe, change options, or get password, see > > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > > > Please note that messages sent to this large list cannot be viewed as private. > > Anyone can subscribe to the list and read messages that are posted; people > can > > read the Web archives; and list members can (rightly or wrongly) forward the > > messages to others. > > > Timothy J. Tracey > Assistant Professor of Law > Ave Maria School of Law > 1025 Commons Circle > Naples, FL 34119 > Tel: (239) 687-5391 > Fax: (239) 353-3173 > www.avemarialaw.edu > > > > > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as private. > Anyone can subscribe to the list and read messages that are posted; people can > read the Web archives; and list members can (rightly or wrongly) forward the > messages to others. > > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as private. > Anyone can subscribe to the list and read messages that are posted; people can > read the Web archives; and list members can (rightly or wrongly) forward the > messages to others. > _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
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