California Supreme Court To Hear Perry Prop 8 Question

The breaking news out of the California Supreme Court is that they WILL entertain a full merits consideration of the question certified to them by the 9th Circuit in the Perry v. Schwarzenegger appeal. From the LA times:

The California Supreme Court decided Wednesday to determine whether the sponsors of Proposition 8 have special authority to defend the anti-gay marriage initiative in court.

The state high court, meeting in closed session, agreed to a request by the U.S. 9th Circuit Court of Appeals to determine the status California law gives initiative sponsors.

The court was unanimous in deciding to accept the case. The court’s order set an expedited briefing schedule to permit a hearing by “as early as September.” The court must rule on a case 90 days after oral argument.

A panel of the 9th Circuit has indicated it would have to dismiss an appeal by proponents of Proposition 8 on procedural grounds unless the California court determines that the initiative’s sponsors have legal standing. A procedural ruling would not affect gay marriage outside of California.

This is fantastic news, even though it was pretty much expected in the legal community. The California supremes simply would have taken far too much grief if they had punted without answering the question at all and leaving the 9th Circuit hanging. That was not going to happen, and it didn’t.

Now the question is how will the Supreme Court decide the question of whether the Proposition 8 sponsors have standing? That is unclear, but the smart early money would be that the court will indeed find standing based on the tenor of their consideration of Strauss v. Horton. Strauss was a consolidated decision of three different suits originally filed after the passage of Proposition 8, and in it the court gave some weight and deference to the initiative’s sponsors and voters. giving standing to the Prop 8 sponsors would also seem to be in line with other cases that have upheld the initiative process in California over the years.

The full text of the order, including the briefing schedule, is as follows:

The request, pursuant to California Rules of Court, rule 8.548, that this court decide a question of California law presented in a matter pending in the United States Court of Appeals for the Ninth Circuit, is granted.

For the purposes of briefing and oral argument, defendant-intervenors Dennis Hollingsworth, Gail J. Knight, Martin F. Gutierrez, Mark A. Jansson, and (collectively “Proponents”) are deemed the petitioners in this court. (Cal. Rules of Court, rule 8.520(a)(6).)

In order to facilitate expedited consideration and resolution of the issues presented, and to accommodate oral argument in this matter as early as September, 2011, the normal briefing schedule is shortened, pursuant to California Rules of Court, rule 8.68, as follows:

The opening brief on the merits is to be served and filed on or before Monday, March 14, 2011. The answer brief on the merits is to be served and filed on or before Monday, April 4. A reply brief may be served and filed on or before Monday, April 18.

Any person or entity wishing to file an amicus curiae brief must file an application for permission to file such brief, accompanied by the proposed brief, on or before Monday, May 2, 2011. Any party may serve and file an omnibus reply to any or all amicus curiae briefs on or before Monday, May 9, 2011.

The court does not contemplate any extension of the above deadlines.

    • MadDog says:

      With the timeline of December 2011 for a California Supreme Court decision, and as bmaz observes (and I agree) that decision likely finding that the Proposition 8 sponsors have standing, that would leave the 9th Circuit dealing with the case during the 2012 election season.

      I don’t know how quickly the 9th would complete its decisionmaking, but if they should announce Proposition 8 unconstitutional in late 2012, I’d imagine it might make quite a splash in 2012 presidential campaigning.

      I can’t imagine the 2012 Repug presidential nominee doing anything but dog-whistling against such a decision or risking the Repug base staying at home.

      As for the 2012 Democratic presidential nominee, assuming it’s Obama, I can’t see him celebrating such a decision given his past weaseling on the issue.

      I can imagine such a decision being put into play during presidential debates and seeing Repug nominee dog-whistles and Democratic nominee squirming.

  1. eCAHNomics says:

    bmaz, plz explain the court hierarchy in CA.

    In NYS, in an antonym of nomenclature, the ‘supreme’ court is the lowest court, ‘supreme’ only in the sense that it is the first court to hear every criminal case. CA seems to be diff so I’d appreciate a simple ‘road map.’ (If that’s not a dirty word.)

    • bmaz says:

      NY is goofy by my experience. Out here in both AZ and CA, it is from lowest to highest Superior Court, Court of Appeals, Supreme Court.

      • eCAHNomics says:

        Well, having ‘superior court’ as the lowest court doesn’t seem much ‘superior’ to having ‘supreme’ court as the lowest court. In NYS (experts correct me if I’m wrong) it’s: supreme, Court of Appeals (to which my will contest went).

        That would seem to eliminate one step. I’m not sure what follows, but think it is SCOTUS if NYS Appeals decision differs from other states’ highest court.

        Personal aside: My brother’s bankruptcy decision won in SCOTUS.

          • eCAHNomics says:

            Hmmm. My will contest was in Supreme Court in Ulster County, NY. So perhaps there is no analogue in NYS to what you refer to as local courts in CA.

            I know (fire permit dustup) that there are local courts in NYS. But they seem to be (from one court appearance) really local matter so things like bald tires, speeding tickets, no fire permit, etc. Matters of little ongoing significance.

            On my fire permit violation, I was well advised by DEC how to handle it, and the judge played along with my willful ignorance to the nth degree. No fine, just a promise to do better next time.

            But those are far cries from the Prop H8 matters in CA.

          • ducktree says:

            FYI, Teddy ~ A few years back, the California Municipal Courts and Superior Courts were merged; there is now only one Superior Court level but it is divided between “limited” (under $25,000 in damages) and “unlimited” ($25,000 and above in damages). Before this merger, Municipal courts were for “limited” cases and Superior courts were for “unlimited” with concomitant differences in filing fees. Now all litigants pay the same level of fees (unless they file for in forma pauparus waiver of fees). In California law firms if you say “District Court” it’s generally accepted to mean U.S. District (federal) Courts. (:>

    • earlofhuntingdon says:

      The names for courts in New York are unusual. The “supreme court” is the trial level court. The supreme court, appellate division, is the intermediate appellate court. The NY Court of Appeals is what other state court systems would call their “supreme court” or the court of highest or final appeal.

      Trial courts are usually county-based, with regional appeals courts, and with the state supreme court in the state capital. In the federal system, the terms are district court, circuit courts of appeal covering appeals from multiple districts (some states have several federal court districts, some only one) and the supreme court.

      Typically, there are exceptions, litigants are entitled to appeal to an intermediate appellate court as of right, with appeals to the state or federal supreme court being at the discretion of that court.

      • eCAHNomics says:

        Thanks. I forgot the Appellate Division in NYS. One or two of the disputes in the will contests went thru AD, up to Court of Appeals.

    • bmaz says:

      Moreno is a loss to be sure, but Scwarzenegger’s appointments were actually not that bad. It is not a horrid bench despite having so few Dems.

  2. smcclurk says:

    I don’t understand this. How is this good news? I thought if the sponsors had no standing it made the court ruling against proposition 8 stand as the final word. Doesn’t this just drag this out longer and open up the possibility of an adverse ruling?

  3. Becca says:

    I can’t say it’s good news for anybody who wants to get married this year.

    Every day justice is delayed, justice and equal rights are denied.

    Rather than taking they case, they could have issued a summary ruling, denying standing — which would have been consistent with case law, and supported by the PropHaters -deliberate- choice not to put language in the proposition measure to give them authority to defend it in court. Now, they essentially want standing, without having put themselves out there in the first place, and knowledge of exactly who was behind the prop could have cost them a few crucial percentage points in the vote.

    What infuriates me most is these jurists and politicians act like REAL PEOPLE’S LIVES are unaffected by this bullshit legal maneuvering.

    • bmaz says:

      So, you want the right to marry only for those in California and quite possibly only those in LA and San Francisco counties, which is quite arguably technically the scope of Walker’s ruling, and not definitively for all in California and the 9th Circuit, not to mention all those in the United States via the Supreme Court? I would like to think the rights of all should be granted, not just for a few; and the Perry case is the best shot for that there will ever be. Yet you would seek to limit it because you are greedy and in a hurry? I do not understand that.