Excellent Panel Announced for Perry Prop 8 Appeal

When the appeal in Perry v. Scwarzenegger was initially lodged, I put forth the possibility that the panel assigned to hear the full merits appeal in December might be the earlier panel of Judges Wardlaw, Fisher and Berzon, which had heard substantive interlocutory appeals from the trial portion of the case when it was in Judge Vaughn Walker’s court. This was an exciting possibility as it would be a very favorable panel. That is not to be; however, the panel just announced that will hear the merits appeal on the morning of December 6 is very good and favorable to upholding Judge Walker’s seminal ruling.

Today it was announced the panel will consists of Judges Stephen Reinhardt, Michael Hawkins and N. Randy Smith. Stephen Reinhardt is the living epitome of an old school dyed in the wool liberal; you simply could not ask for a better man. Mike Hawkins is also an excellent judge and, although not quite as liberal as Reinhardt, should be expected to have little patience for the poorly fleshed out case the defendant-intervenors put on in the trial in front of Walker or that they belligerently reargue on appeal as if they never lost. N. Randy Smith, on the other hand, is a very conservative judge from Idaho, of Brigham Young University heritage both undergraduate and law school, and was appointed by George W. Bush. Smith is not so promising.

The bottom line is, early odds are on a 2-1 decision upholding Judge Vaughn Walker’s fine decision in Perry. The one stumbling block, of course, is the issue of standing, and on that I still have some concern that Hawkins, who can be a stickler on procedural details, might align with Smith to hold that there is no standing on the appeal. So, while there are still problems with the standing issue and therefore there should be no premature wild celebrations today, it is nevertheless a very favorable panel the Perry appeal has drawn. For that, there should be some joy.

As a reminder, the oral argument on the Perry appeal is scheduled for 10:00 am PST Monday December 6, 2010 – one week from today. Marcy and I will be live blogging it and, incredibly, it is currently set to be televised on, among other stations, CSPAN. So, one and all can watch this historic argument and join in the discussion!

  1. JTMinIA says:

    Joy, for me, would be that it wouldn’t matter who was on the panel; that the arguments would be the key.

    (Feel free to pat me on the head and say I’m cute when I say these things. Everyone else does.)

  2. Teddy Partridge says:

    Shouldn’t any Mormon judge recuse himself from deciding any appeal of The Mormon Proposition? Where do Smith’s loyalties lie? Is he one of THE Smiths?

    If the proponents wanted Walker to step aside because he’s gay (is he?) then we can certainly make a stink about a Mormon judge deciding a case about a California Proposition bought and paid for with out of state Mormon money.

  3. JohnLopresti says:

    Bring the photographer along to catch Maureen Dowd*s latest extravagances, too. That image last go-round was priceless, and eminently captionable.

    One of the developments since last in the media, has been the Washington state case regarding publication of the names of initiative signatories, which has an interesting aspect of the secret ballot guarantee. Further, there was a Florida determination in court in the interim, if I recall, which had bearing on some of VWalker*s topics in his opinion last time.

    I will look for some of these relevant documents, and post their links if they seem germane.

    Maybe the standing issue will assume a low priority because of the public interest. The scope seems fairly international at this time.

  4. Peterr says:

    From the Prop8TrialTracker:

    Apparently, Judge Reinhardt is the husband of ACLU advocate Ramona Ripston. According to Wikipedia, Ripston is the Executive Director of the ACLU of Southern California, until her February 2011 retirement.

    Bmaz, would this be cause for recusal?

  5. lysias says:

    If the panel rules no standing, doesn’t that mean Judge Walker’s ruling stands? Why wouldn’t that be a good thing?

    • bmaz says:

      If you want the decision limited to the state of California, then that is a great thing I guess. If you actually care about it being binding precedent for the country, not so much.

      • lysias says:

        Are you ignoring the danger that, if the Ninth Circuit finds the interlocutors have standing, the case may end up before the Roberts Supreme Court?

  6. Mason says:

    Yes, thank God Rheinhardt is on the panel. I don’t know anything about the other two, so I’ll defer to you, esteemed counselor bmaz.

  7. SebastianDangerfield says:

    Oh man, gotta love Rheinhardt, but if he writes the opinion, it’s a big fat piece of cert.-and-reverse bait for the Supremes! His opinion are giant red capes before the eyes of the Gang of Five. Let’s hope Kennedy cares more about his legacy than he does about sticking it to the libs.

    • bmaz says:

      Yeah, I would think that Hawkins would be the one to write the opinion. Reinhardt understands the score perfectly; only question would be he might see it as his last big hurrah and therefore want the crack at it. Is an excellent point you raise though. And not that I wouldn’t want to read Reinhardt’s take on it, boy howdy would I; but Mike Hawkins would be a less poking shot at SCOTUS.