Hi Steve:
Thanks for your thoughts.
Ginsburg's opinion in AOE v. AZ rests on mootness, but she's very clear that
the intervenors lacked standing to appeal the district court judgment. She
considers and dismisses any possibility of the state having granted them
standing. She then suggests that the choice between a reversal on standing
grounds and reversal based on mootness is inconsequential. ( And, as an aside,
isn't she wrong? - reversal on mootness led to vacatur, while reversal on
standing would have left the district court decision intact, which would have
enabled the successful plaintiff to recover attorneys fees.)
But we seem to agree that strong dicta in Arizonans suggests that SCOTUS is
less liberal in its approach to intervention than the 9th Circuit.
I assume Schwarzenegger is still a defendant, and thus the state actor can be
enjoined, which goes to redressability. And of course the state has an
interest in pursuing an appeal, just as the defendants in Arizonans did. But
if no representative of the state participates in the appeal. . . , if its only
ADF, then what? Even if neither litigant wants to challenge ADF as
defendant-intervenors, and the 9th Circuit follows its precedent, do you think
an appellate decision is vulnerable to reversal on this point? Would only the
appellate decision be affected?
Joanne Brant
Visiting Professor of Law
University of Alabama School of Law
________________________________
From: religionlaw-boun...@lists.ucla.edu on behalf of Steve Sanders
Sent: Tue 8/10/2010 1:58 AM
To: 'Law & Religion issues for Law Academics'
Subject: RE: Perry v. Schwarzenegger - Effect of Religious Beliefs
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
> >
> > _______________________________________________
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>
> 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
>
>
>
>
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