Monday’s decision by the Illinois Court of Appeals to strike Rahm Emanuel from the ballot for the Chicago Mayoral election set for February 22 caused quite an alarm. The Court of Appeals decision appeared on its face to be quite well reasoned and well taken in light of the wording of the statute at issue. Mr. Emanuel immediately (by Monday night) filed an emergency Motion for Stay and Petition for Leave to Appeal to the Illinois Supreme Court.

The Illinois Supreme Court has just issued its opinion on the Emanuel emergency appeal and, in a decision authored by Justice Thomas, has reversed the Court of Appeals and fully reinstated Rahm’s eligibility for the ballot and office of Mayor of Chicago:

Thus, from April 1867 through January 24 of this year, the principles governing the question before us were settled. Things changed, however, when the appellate court below issued its decision and announced that it was no longer bound by any of the law cited above, including this court’s decision in Smith, but was instead free to craft its own originalstandard for determining acandidate’sresidency. See No. 1–11–0033, slip op. at 6-8 (dismissing the foregoing authority in its entirety). Thus, our review of the appellate court’s decision in this case begins not where it should, with an assessment of whether the court accurately applied established Illinois law to the particular facts, but with an assessment of whether the appellate court was justified in tossing out 150 years of settled residency law in favor of its own preferred standard. We emphatically hold that it was not.

….

All of that said, and putting aside the appellate court’s conclusion that Smith is not binding in this case, the appellate court’s residency analysis remains fundamentally flawed. This is because, even under traditional principles of statutory analysis, the inevitable conclusion is that the residency analysis conducted by the hearing officer, the Board, and the circuit court was proper.

….

Second, this court has twice stated explicitly that related provisions of the Election Code and of the Illinois Municipal Code are to be considered in pari materia for purposes of statutory construction. See Cinkus v. Village of Stickney Municipal Officers Electoral Board, 228 Ill. 2d 200, 218 (2008); United Citizens of Chicago and Illinois v. Coalition to Let the People Decide in 1989, 125 Ill. 2d 332, 338-39 (1988).

….

So where does all of this leave us? It leaves us convinced that, when determining whether a candidate for public office has “resided in” the municipality at least one year next preceding the election or appointment, the principles that govern are identical to those embodied in Smith and consistently applied in the context of determining whether a voter has “resided in” this state and in the election district 30 days next preceding any election. Thus, in assessing whether the candidate has established residency, the two required elements are: (1) physical presence, and (2) an intent to remain in that place as a permanent home. Once residency is established, the test is no longer physical presence but rather abandonment, the presumption is that residency continues, and the burden of proof is on the contesting party to show that residency has been abandoned. Both the establishment and abandonment of a residence is largely a question of intent, and while intent is shown primarily from a candidate’s acts, a candidate is absolutely competent to testify as to his intention, though such testimony is not necessarily conclusive.

….

Given the record before us, it is simply not possible to find clearly erroneous the Board’s determination that the objectors failed to prove that the candidate had abandoned his Chicago residence. We therefore reverse the decision of the appellate court and affirm the decision of the circuit court, which confirmed the Board’s decision.

So there will be no mistake, let us be entirely clear. This court’s decision is based on the following and only on the following: (1) what it means to be a resident for election purposes was clearly established long ago, and Illinois law has been consistent on the matter since at least the 19th Century; (2) the novel standard adopted by the appellate court majority is without any foundation in Illinois law; (3) the Board’s factual findings were not against the manifest weight of the evidence; and (4) the Board’s decision was not clearly erroneous.

Appellate court judgment reversed; circuit court judgment affirmed.

Well, although I found the Court of Appeals decision persuasive, the Illinois Supreme Court certainly did not. And they ruled unanimously in Mr. Emanuel’s favor (although two, Justices Freeman and Burke, concurred on distinguished grounds). That will end this debate once and for all. Welcome Mayor Emanuel.

[Updated Below]

The decision Monday by the Illinois Court of Appeals to disallow the candidacy for Mayor by Rahm Emanuel as well as his name on the official election ballot stunned many people, and left Emanuel, his political supporters and Wall Street and Hollywood financial bag men scrambling with the ballots set for printing today and the election on the near horizon on February 22. By late Monday night, the Emanuel campaign had already filed an Emergency Motion For Stay Pending Appeal and Expedite Consideration of Petition For Leave To Appeal with the Illinois Supreme Court. A copy of the filing is here.

Within less than eight hours of Emanuel’s late night filing, at the crack of dawn on ABC’s Good Morning America, Valerie Jarrett, Barack Obama’s most senior and trusted advisor, was delivering a direct message on behalf of the White House commenting on the case and declaring they viewed Emanuel legally eligible:

I think that he believes that [Rahm is] eligible and I believe that he believes that Rahm will pursue his appeal in the courts.

I do not know about you, but I cannot think of any instance in which a White House and President, especially one so intimately related to one side of the issue, has so directly stepped into a state and local court proceeding at such a critical moment with its opinion on the ultimate legal determination.

Perhaps, under different circumstances, this would not be a notable event. However, when the President’s closest advisor weighs in with such a statement as to what the law should be, right as the sensitive matter is being presented on an emergency basis to a state supreme court, it is of highly questionable discretion and ethics. The impingement on the local situation is only exacerbated by the close ties Obama has to Emanuel, Chicago, the Daley political machine behind Emanuel (A Daley now serving as Obama’s Chief of Staff) and Illinois. It was an unnecessary and completely inappropriate meddling in a state and local judicial matter that the Obama White House had no business engaging in.

Jarrett’s imposition of the White House thumb of comment here is even more telling when juxtaposed with the consistent position she and Obama insisted on taking, and still maintain, with relation to the court process in the legal challenges to the discriminatory Don’t Ask Don’t Tell policy. Obama, Valerie Jarrett and the White House have consistently refused to take a position on how the DADT constitutional litigation should be decided in public statements and appearances and, in fact, are STILL officially supporting the disgraceful policy in courts under the guise that law must be supported and courts left undisturbed to decide the matter unfettered. Apparently such ethical and moral restraint does not apply when it comes to their friend and political crony’s local election litigation.

Which brings us to the law Mr. Obama and Ms. Jarrett are so positive stands for the eligibility of Emanuel. You have to wonder if either one of these trained lawyers bothered to actually read the law, because the statute, on it’s face, reads directly contrary to the position they take with such certainty. As Adam Bonin delineated yesterday, the election law at issue reds different than most assume and is quite clear:

So let’s take a look at the actual statute which governs this ballot requirement:

Sec. 3.1‑10‑5. Qualifications; elective office.

(a) A person is not eligible for an elective municipal office unless that person is a qualified elector of the municipality and has resided in the municipality at least one year next preceding the election or appointment, except as provided in subsection (c) of Section 3.1‑20‑25, subsection (b) of Section 3.1‑25‑75, Section 5‑2‑2, or Section 5‑2‑11.

“And has resided in.” Well, that’s a bit different from “has a residence in,” which I think was our assumption as to what the law required….

Emanuel didn’t meet that test, but there’s this statutory exception:

10 ILCS 5/3-2

No elector or spouse shall be deemed to have lost his or her residence in any precinct or election district in this State by reason of his or her absence on business of the United States, or of this State.

The Court found this provision inapplicable as to Emanuel. Yes, they say, it means that he didn’t lose his “residence” in Chicago to qualify as a registered voter, but it doesn’t mean he “resided in” Chicago during the interim either.

That plain language limits the reach of the “business of the United States” exception to “elector[s]” or their spouses; it makes no mention of “candidates.” Further, as we have noted, we must interpret statutes “as a whole, with each provision construed in connection with every other section.” Section 3-2’s “business of the United States” exception is housed not only in the Election Code, but in a portion of the Election Code dealing exclusively with voter qualification, in fact in an Article titled “Qualification of Voters.”

In other words, “Rahm, you can vote for anyone you want in this election … except you, because you can’t be on the ballot.”

Adam is exactly right. And one other thing should be pointed out, the exceptions contained within the clause “…except as provided in subsection (c) of Section 3.1‑20‑25, subsection (b) of Section 3.1‑25‑75, Section 5‑2‑2, or Section 5‑2‑11”, ALL pertain strictly to voting rights, NOT office candidacy eligibility rights.

The full decision by the Illinois Court of Appeals is here, and it is extremely well reasoned and supported. The judge, Thomas Hoffman, authoring the opinion has long been considered by litigants across the spectrum as fair and the leading intellect on the court. The exceptions Rahm Emanuel seeks to rely on are, by their wording and designation, only applicable to voting rights; not the right to run for and hold office. Yes, you can certainly convolute and extrapolate around that; but it is not the natural logic path as convincingly demonstrated by Justice Hoffman and the majority in the Illinois Court of Appeals.

Perhaps the law is unfair to individuals under the circumstances attendant to Mr. Emanuel; it is certainly easy to understand how a person could take that position or consider it silly. However, if this crystal clear law is “silly” or “unfair”, then it should be amended or repealed; not just blithely ignored and convoluted for one powerful and connected man, Rahm Emanuel. Yet that is exactly what Mr. Emanuel and the Obama White House think he is due.

UPDATE: This morning, the Washington Post has caught on to the the issue here and provides additional details about the coordinated effort by Barack Obama and the White House to intentionally inject themselves into the state and local election ballot challenge in order to selectively help their friend and crony, Rahm Emanuel.

President Obama launched his political career in Chicago by maneuvering to keep a rival off the ballot in a state Senate campaign. Fifteen years later, he is reaching back from the White House into the city’s bruising political ring – this time in an effort to shield former aide Rahm Emanuel from losing a ballot dispute of his own in a hotly contested mayoral race.

The president called Emanuel, his former White House chief of staff, on Monday after an Illinois appellate court declared him ineligible to appear on the ballot because he does not meet the city’s residency requirement. On Tuesday morning, Obama sent senior adviser Valerie Jarrett out on the television circuit, where she told an ABC interviewer that the president “believes that [Emanuel is] eligible.”

Emanuel grabbed the baton from his former boss. His lawyers invoked Obama’s name repeatedly in legal briefs filed Tuesday with the Illinois Supreme Court, arguing that the appellate ruling would also make the president ineligible to run for a city office in his home town. And Emanuel told supporters that he was inspired to push ahead by the president’s history of ignoring critics in the “birther” movement.

This is literally a stunning and ethically bereft power and intimidation play by Obama and his White House. Why other members of the major media are not also questioning and reporting on this inappropriate attempt to influence a local judicial determination is anybody’s guess.

Yep, that’s right folks, it’s the Final Countdown. No, I am not talking about the sudden exit of the narcissistic scold Keith Olbermann from MSNBC, the news will go on just fine without him, and MSNBC will undoubtedly continue to funnel an endless supply of slime through our teevee sets. No, I’m talking about the battle for berths in the SuperBowl. And a couple of really great matchups are on tap. Packers/Bears and Steelers/Jets. There is no way to say any of the four are here by fluke, they earned it and deserve to be playing on Championship Sunday.

First up is the Black and Blue Division throwback grudge match between the Green Bay Packers and Chicago Bears. Titletown versus the Monsters of the Midway. Hey, this just reeks of football the way it was designed and meant to be played. The ghosts of the gridiron will come for this one. Halas, Lambeau, Lombardi, Butkus, Sayers, Starr, Nitschke, the list is endless. At 181 games, it is the longest and most storied rivalry in the history of pro football, with 21 NFL Championships between the two (Green Bay 12, Chicago 9) and four SuperBowl crowns (GB 3, Bears 1). Even better, the game won’t be played in any pansy assed dome. Nope, real dirt, sod and grass with heap load of wind and cold. Gonna be a scorcher, with the temperature expected to spike at 20 degrees, wind chill down to 10 with wind off Lake Michigan and possible lake effect snow. Booyah. Perfect.

We saw a preview of the conference championship between these two in the last week of the regular season, with the Pack eeking out a hard fought 10-3 win that they had to have to get in the playoffs at all. But Aaron Rodgers, Clay Matthews and friends have been on a serious roll since then, with convincing wins over Philadelphia and Atlanta. Oh yeah, and it is not just Charles Woodson any more, Tramon Williams has risen from undrafted obscurity to be a big game difference maker. The Bears come in as the number two seed, but are a little harder to gauge as they had bye and an absolute blowout of Seattle last week. But I have to admit, the Bears are better than I gave them credit for. Their defense is once again tough and aggressive, Urlacher is healthy and playing with abandon and Jay Cutler has seemingly matured into a consistent quality pro quarterback. Despite being at home on Soldier Field, I think the two defenses cancel each other out and it comes down to leadership on offense. On that front, I will take Aaron Rodgers and the Pack for the win.

The nightcap features the Jets and Steelers in the Big Ketchup Bottle. Another game in the elements and on natural ground. From PFT:

In Pittsburgh, weather forecasters are predicting single digit temperatures on Sunday evening when the Steelers and Jets face off at Heinz Field. That could mark the coldest playoff game in team history; the temperature dropped to nine degrees in 2005 when the Patriots beat the Steelers.

Awesome. That’s only about 65 degrees less than where my seats for the game are located. The Jets are somewhat remarkably in the conference championship game for the second year in a row and in both years of the still nascent career of Mark Sanchez. You have to give the kid some credit, and a heavy helping to Rex Ryan too, he has really coached them up. They have an attitude and win, lose or draw, that is their character and they roll with it. The brash Jets are the buzz in the air, but the team on the other side of the ball just shows up and does what they always do. Bring their lunchbucket and get physical. Big Ben isn’t exactly Joe Montana stylish, but he is a load, is tough as nails, doesn’t quit and has a proven knack for the moment and big games. Rex Ryan isn’t the only guy who can coach up a defense, Dick Lebeau has been wreaking defensive havoc in the NFL since well before Ryan was born, and he clearly is not done yet. The Jets have the buzz, but the Stillers have the goods. And Troy Polamalu, Big Ben and Hines Ward. That’s a winning formula.

Get the beer, heat up some hot toddy, ready the chips and dip, cause whoa nelly we got a couple of real barnburners today. Here is a little pep talk for the occasion. Let’s get it on! Oh yeah, and to Mr. Olbermann, don’t let the door hit you where your head is on the way out.

[Editors Note: I sincerely apologize for the link in the first paragraph to The Final Countdown, now that nasty bit of big hair 80’s trash earwig music is going to be rattling around your brain, killing perfectly good gray matter, like it has been mine ever since yesterday.]

Well, it is here. The most exciting weekend of the pro football calendar, divisional playoff weekend. And I am posting Trash a little early, because otherwise Marcy was threatening to post this music video (Danger Will Robinson Danger!!) which clearly would have been traumatic for the entire universe. So having prevented said disaster, let us proceed to the nitty gritty.

By the way, before we get to the games, I want to make sure that everybody is familiar with the newest star on the Patriots, Danny Woodcock.

First game on Saturday is Baltimore at Pittsburgh. Black versus Blue (okay, purple). You know the drill here by now, and there is nothing new. Big Ben and Hines Ward against Ray Lewis, Terrell Suggs and Ed Reed on the one hand and Joe Flacco, Ray Rice and Anquan Boldin against James Harrison and Troy Polamalu on the other. They are all ready to rumble. The Steelers have won the last six games with the Ravens when Big Ben has been on the field, but the cheeky pick seems to be the Ravens. Not here; Steelers win at home.

The late game on Saturday is Green Bay at Atlanta. This is flat out tough to call. Both Aaron Rodgers and Matt Ryan are playing lights out. There are two prime considerations though. The Pack defense has jelled into an awfully solid and imposing unit, but the Dirty Birds rarely lose in their home dome. The Pack has a new star running back, James Starks, who set a franchise rookie playoff record with 123 yards last weekend. Hey, how about a shout out to Donald Driver, one of the good guys and long time underappreciated great receivers in the league for a long, long time. The guy just keeps getting it done. The Falcons have Burner Turner who has been rumblin through foes as usual. I have no idea who will win this, but since I have to choose, I am going with my childhood favorite team, the Packers.

First up Sunday is the SeaSquawks at………Da Bears. Seattle is a huge underdog here. Brian Urlacher and the Bears defense are back to Monsters of the Midway mentality and swagger. Jay Cutler has quietly become much more efficient and less error prone under Mike Martz. The difference I see here is the weapons other than quarterbacks (Matt Hasselbeck played lights out last weekend in the upset over the Saints). In that department, I actually like the Squawks skill people on offense better than the Bears counterparts on offense. But I like the Bears defense better. I know I am going to regret this, but I am taking Seattle in an upset.

The last game of the weekend is the one everybody is waiting for. Yep, it is Wes Welker’s FOOTball game, where all the FEET play FOOTball. Bieber Brady has just got it all over young Mark Sanchez. The Pats defense has really come into its own over the course of the season, which you knew it would under Bill Bel. Where has the Jets running game gone?? LT has disappeared and Shon Greene is out. Here is the deal, since Rex Pyan has been the Jets’ coach, the home team has won every game in this series. The Pats are at home. And there is that Brady thing (not to mention tom is undoubtedly a little geeked up by all the chattering the Jets have been doing. The Jets just cannot keep up with the Pats; Pats win.

That’s it folks, lets rock and roll. By the way, the music is something I think a lot of you have probably never heard, Arthur Lee and Love with a song called Between Clark and Hilldale which is the location of the old Whiskey a Go Go in West LA. Love was a regular act there back in the day. It is very different and I think you will really like it.

As you may know, every member of the Arizona Federal Judiciary has been recused in full from further participation in the criminal case against Jared Lee Loughner. This was inevitable in light of the fact the top line murder victim in the case was their friend, and Chief Judge, John Roll. We now know who has been appointed from outside of the Arizona District to handle all further proceedings in the matter. By Order of 9th Circuit Chief Judge Alex Kozinski, that would be Judge Larry A. Burns of the California Southern District (CASD).

From Ginny LaRoe at The Reporter, comes the pertinent information:

Burns’ experience with the federal death penalty — both as a prosecutor and judge — factored into Burns’ selection, Kozinski said today.

“I wanted a judge who [was] well-respected, and had the reputation of being fair and well thought of by both sides,” Kozinski said, “and I wanted to have a judge who had some experience with the federal death penalty because that’s a possible situation here.”

As a practical matter, Kozinski said, he also considered proximity to Arizona, though a change of venue isn’t out of the question.

Burns is a 2003 Bush appointee who was a career prosecutor before ascending to the federal bench. He was an assistant U.S. attorney for California’s Southern District from 1985 to 1997 and before that was a deputy district attorney in San Diego. He became a magistrate before his promotion to an Article III spot.

Burns is, as you might expect from his prosecutorial background, a fairly no-nonsense law and order kind of judge. In addition to death penalty experience, Burns has big case experience in matters familiar to most readers here, the Duke Cunningham case and the Tommy “Special K” Kontogiannis case.

Judge Burns is out of San Diego as are, conveniently, the specially appointed Federal Public Defenders that have been assigned to Jared Loughner, Judy Clarke and Mark Fleming; they will be familiar with each other and that should makes things smoother than would be expected for such a cobbled together court process.

One other thing, as you can see from the above link regarding Kontogiannis, Judge Burns doesn’t take kindly to any gruff or shenanigans by the DOJ/US Attorneys appearing in front of him.

In a highly unusual move, U.S. District Judge Larry Burns sent a 15-page brief of his own to the 9th U.S. Circuit Court of Appeals, curtly noting that the court filings of prosecutors “mischaracterizes substantial, relevant portions” of the case.

The reason I relate the ability of Larry Burns to hold government attorneys to some base level of credibility and propriety is that there is already a very meaty and germane issue percolating in the Loughner prosecution. Namely, is Judge John Roll a proper victim so that Federal court even has jurisdiction against Loughner for a murder count involving Roll as the victim?

As Josh Gerstein has pointed out, the facts may not really support Federal jurisdiction:

The actions and motivations of U.S. District Court Judge John Roll just before he was shot dead at Rep. Gabrielle Giffords’s campaign event in Tucson on Saturday are important for the public narrative about the tragedy, but they’re also vital to the federal criminal charge for his murder.

The criminal complaint federal prosecutors filed Sunday against the alleged shooter, Jared Loughner, goes to some lengths to demonstrate that Roll didn’t show up at the Giffords event just to say hello to the congresswoman, or on some whim after attending mass, as reports Saturday suggested. That storyline was fueled by Pima County Sheriff Clarence Dupnik, who said “because [Roll] knows Gabrielle very well, [he] came around the corner to say hi. Unfortunately he was in the wrong place at the wrong time.”

By contrast, FBI agent Tony Taylor argues that Roll was at the event to talk to Giffords about ongoing problems related to a surge in the federal judicial caseload in Arizona–a problem which the judge has attributed to a boost in the number of federal agents sent to the area to address immigration and border-related crime.

Under federal law, the murder or attempted murder of a U.S. official, such as a judge, is only considered a federal crime if committed “while such officer or employee is engaged in or on account of the performance of official duties.” In other words, if Roll simply stopped by the event to greet Giffords, who he’s said to have been friendly with, or due to idle curiosity about what was happening there, his killing probably wouldn’t be a federal offense.

This is exactly right. And, as Josh noted last night, even President Obama’s words last night in Tucson militated in favor or Judge Roll not being particularly “in the course and scope” of his judicial duties when shot and killed. I only knew Judge Roll professionally from appearing in front of him (decent man and very good judge), going back to when he was on Division Two of the Arizona Court of Appeals, but the word on the ground here, from those that did know him well personally (as well as Pima County Sheriff Clarence Dupnik), is that Roll did know about the Giffords event, but was simply on his way back home, which is near the Safeway Store at Ina and Oracle roads, where the shooting occurred, from Saturday Mass downtown and decided to stop by the store and say hi to Giffords.

There may well have been no big mission to talk to Giffords about the overcrowding of the Arizona District docket. Perhaps Roll may have mentioned that as small talk chit chat with someone while standing there, but it is quite possible, perhaps actually likely, the Fed story that Roll was on substantive judicial business when killed is manufactured extrapolation to create Federal jurisdiction where it may not lie.

There is another problem with the “Judge Roll was on official judicial business” meme being pitched by Federal authorities. It doesn’t make sense. Think about it, what real “business” could John Roll have had with Gabby Giffords on the court docket overcrowding issue? She is in the House of Representatives, not the Senate – she cannot help get desperately needed judges confirmed faster. Even in the House, Giffords is not on the Judiciary Committee. Gabby and Judge Roll were friends, and I am sure she was supportive of his quest on easing the docket, but there was simply not that much, if anything, she could directly do about it. The story that this was a big judicial mission by Judge Roll, on a Saturday morning after church, not only does not comport with what people who should know say, it does not make sense politically. Not at all.

So that is a substantial issue on Judge Burns’ plate from day one. And it is an important one because the Feds only have jurisdiction to prosecute for the five crimes/victims with a federal nexus, and one of those, of course, is Judge John Roll. And of those five, Judge Roll is the top line count that is their greatest motivation; excising Judge Roll from the case would put a serious rain on their parade.

Which, of course, begets the question as to why the Federal government has so aggressively seized primary prosecutorial position, when the State of Arizona, which has just as onerous (death penalty/life in prison) penalties as the Federal government (and is much more fluent in using them), and has jurisdiction to prosecute Loughner for offenses against ALL the victims, was available and ready to take the lead. A question the DOJ really ought to answer in this unique case.

We have unexpectedly quick news out of the 9th Circuit Court of Appeals on the Perry v. Schwarzenegger Proposition 8 marriage equality appeal. As you will recall, the case is in the 9th on appeal from the three week long evidentiary trial in the Northern District of California last January in front of Judge Vaughn Walker with closing arguments made on June 16 (summary of EW live coverage here) and Judge Walker’s opinion finding such marriage discrimination unconstitutional was issued on August 4th. The current appeal had oral argument less than a month ago, on Monday December 6th.

Now we have the surprisingly fast first decision, if you can call it a “decision”. It is really a disguised punt. The main opinion is in docket No. 10-16696, where the effective docket order reads:

Filed Order for PUBLICATION (STEPHEN R. REINHARDT, MICHAEL DALY HAWKINS and N. RANDY SMITH) for certification to California State Supreme Court. Before this panel of the United States Court of Appeals for the Ninth Circuit is an appeal concerning the constitutionality under the United States Constitution of Article I, § 7.5 of the California Constitution (“Proposition 8”). Because we cannot consider this important constitutional question unless the appellants before us have standing to raise it, and in light of Arizonans for Official English v. Arizona, 520 U.S. 43 (1997) (“Arizonans”), it is critical that we be advised of the rights under California law of the official proponents of an initiative measure to defend the constitutionality of that measure upon its adoption by the People when the state officers charged with the laws’ enforcement, including the Attorney General, refuse to provide such a defense or appeal a judgment declaring the measure unconstitutional. As we are aware of no controlling state precedent on this precise question, we respectfully ask the Supreme Court of California to exercise its discretion to accept and decide the certified question below. (See order for full text).

….

The case is withdrawn from submission, and further proceedings in this court are stayed pending final action by the Supreme Court of California. The parties shall notify the Clerk of this Court within three days after the Court accepts or rejects certification, and again within three days if the Court renders an opinion. The panel retains jurisdiction over further proceedings. IT IS SO ORDERED.

Now, as you will also recall, there were two cause numbers consolidated for oral argument and that, really, comprise the same effective case. In the second one, Docket No. 10-16751, the part of the action initiated by Imperial County attempting to intervene and provide governmental cover for standing on appeal, the effective corollary docket order reads:

FILED PER CURIAM OPINION (STEPHEN R. REINHARDT, MICHAEL DALY HAWKINS and N. RANDY SMITH) AFFIRMED; DISMISSED. The district court order denying the motion to intervene is AFFIRMED. Movants’ appeal of the district court order concerning the constitutionality of Proposition 8 is DISMISSED for lack of standing. The deadline for filing a petition for panel rehearing or rehearing en banc is hereby EXTENDED until the deadline for such petitions in No. 10-16696, which will be 14 days after an opinion is filed in that appeal. The Clerk is DIRECTED to stay the issuance of the mandate in this case until the mandate issues in No. 10- 16696. AFFIRMED in part; DISMISSED in part. FILED AND ENTERED JUDGMENT.

In the second cause number, 10-16751, the court issued a 21 page per curiam (by the whole panel collectively) opinion addressing the Imperial county attempt at intervention. the court held:

None of the Imperial County movants has demonstrated a “significant protectable interest” at stake in this action, as it was brought by Plaintiffs, and we affirm on that basis alone.

The court effectively laughed at the attempt to use Deputy County clerk Isabel Vargas as a mule for intervention, wondering why the hell a minion would be used instead of, you know, the actual County Clerk. A real valid question, and the court found no good answer. The court similarly found that the Imperial County Board of Supervisors was not a proper vehicle, stating “…the Board plays no role with regard to marriage, which is “a matter of ‘statewide concern’ rather than a ‘municipal affair’”. The court rounded out the fisking as follows:

Moreover, the duties of the Supervisors themselves are not directly affected by this litigation, so they lack a significant protectable interest.

Second, the County itself has failed to demonstrate any interest of its own, apart from those claimed by Vargas or the Board of Supervisors.

So, in a nutshell, the argument by Imperial County that they were entitled to intervene as a matter of right was denied in full. Oh, and the 9th also found that Vaughn Walker was correct in finding no necessary basis for permissive intervention by Imperial County as well, and affirmed that denial. So Imperial County, unless they get some appellate relief, which is unlikely, is toast.

And, so that completes the fun today, right? Oh no! We have more! The estimable Judge Stephen Reinhardt lodged a concurring opinion that is a little, shall we say, more interesting. I will excerpt a few key quotes, but this one is only ten pages long and is well worth the read. I think you will quickly understand why I have said Reinhardt is such a wonderful treasure as a judge.

Today’s two orders involve a procedural question known as “standing.” The public may wonder why that issue is of such great importance, and what the significance of our standing decisions is. For that reason, while I agree entirely with our two dispositions, both of which are filed in the names of all three of us who are considering the appeals and both of which represent our unanimous views, I believe it desirable to set forth a few explanatory remarks of my own.

The standing problem arises out of a trend in our judicial system over the past few decades. It is a trend that emphasizes technical rules over deciding cases on the merits, and indeed over the merits themselves.

Reinhardt’s disdain for the avoidance of meritorious claims on technical standing issues just drips off the pages. Indeed he cites his own previous tomes on just this subject in a prominent footnote (See footnote 3 for the cites). But as to the instant case, Reinhardt acidly remarks:

All I can say now is that the issues concerning standing were wholly avoidable in this case.

He goes on to take a crystal clear shot directly at the broadside of Ted Olson and David Boies for filing their action, and obtaining their relief, against one two of the 58 counties in California:

Whether Plaintiffs are correct or not, it is clear that all of this would have been unnecessary and Plaintiffs could have obtained a statewide injunction had they filed an action against a broader set of defendants, a simple matter of pleading. Why preeminent counsel and the major law firms of which they are a part failed to do that is a matter on which I will not speculate.

Ouch. Reinhardt then goes on to blast Schwarzenegger and Jerry Brown, the Governor and Attorney General at the time respectively, for not giving the intervenors appellate cover (as I have consistently carped about as well) and Imperial County for the incredibly lame effort of trying to appear through a common deputy clerk. Reinhardt is spot on in each of these regards.

The last paragraph from Steve Reinhardt’s concurring opinion summarizes where the case stands, and is likely to do so better than I could, so I am going to let him speak:

None of this means that ultimately there is no standing in this case. Because of a United States Supreme Court ruling regarding the availability of standing to proponents of initiatives, Arizonans for Official English v. Arizona, 520 U.S. 43 (1997), we have certified to the Supreme Court of California the question of an initiative proponent’s authority and interests under California law. Although that matter must be decided by the Supreme Court of California, Proponents advance a strong argument on this point. Thus, in the end, there may well be standing to maintain this appeal, and the important constitutional question before us may, after all, be decided by an appellate court – ours, the Supreme Court, or both – and may apply to California as a whole, instead of by being finally decided by a trial court, or by default, in only two counties or in none. As a result, the technical barriers and the inexplicable manner in which the parties have conducted this litigation may in the end not preclude an orderly review by the federal courts of the critical constitutional question that is of interest to all Americans, and particularly to the millions of Californians who voted for Proposition 8 and the tens of thousands of same-sex couples who wish to marry in that state. In the meantime, while we await further word from the Supreme Court of California, I hope that the American public will have a better understanding of where we stand today in this case, if not why.

The one last parting thought I have is that this California Supreme Court certification process is likely to take some time. Six months would be a miracle, a year is far more likely. First off, the California Supreme Court does not have to accept consideration, and there will be a briefing process on whether they even should do that. Assuming they then accept consideration on the merits, and I do think it extremely likely they will, there will then be a full briefing schedule on the merits before any decision.

It would have been expected that the Court under Chief Justice Ron George (very nice article here) would take this up, but he just left and the new Chief Justice, Tani Cantil-Sakauye, literally was just sworn in yesterday. She is known as being cautious and moderately conservative, but fair and open minded. Which, really, is probably a fair description of Ron George, so there may not be that much of a change at the top of the California Supremes.

I still look for the California Supreme Court to certify this issue, and my best guess is they will find standing, the case will be sent back to the 9th Circuit for a merits decision and the 9th will uphold Vaughn Walker. Assuming all that is the case and plays out accordingly, it will sure eviscerate much of the ability of the US Supreme Court to avoid the merits on standing (which I think they otherwise would do). The bad news is this is going to take well over a year, and could easily be two years if there is an en banc process as well in the 9th. An attempt to repeal Proposition 8 will almost certainly be on the ballot for the 2012 election and if it gets repealed, this case is moot. That would not be so bad, as it would reinstate marriage equality in California. However if it fails, and Barack Obama loses in 2012, and there is a very early opening on the Supreme Court, the resulting extreme rightward shift would be very detrimental. There are a lot of ways this could go in the future, stay tuned!

UPDATE: Here is Judge Reinhardt’s collateral final order on the earlier motion to disqualify him that he previously denied long before oral argument.

[The absolutely incredible graphic, perfect for the significance and emotion of the Perry Prop 8 case, and the decision to grant marriage equality to all citizens without bias or discrimination, is by Mirko Ilić. Please visit Mirko and check out his stock of work.]

It is hard to believe 2010 is over and gone already, but nevertheless we have blasted through another year here at Emptywheel full of substantive and important issues on the merits and fun and relaxation with Trash Talking. And another year of football is heading down the stretch. Big props to the TCU Horned Frogs who capped a perfect 13-0 season with a solid game and huge win over the powerful Wisconsin Badgers. By the way, non-AQ schools are now 4-1 vs AQ schools in BCS bowl games, those stuck up holier than thou Big-10 and SEC school officials ought to just shut the fuck up about TCU and Boise State not belonging on the big stage.

After yesterday’s debacle, however, you have to wonder if the Big 10 belongs on the big stage. The three yards and a cloud of dusters managed to go 0 for five in New Years day bowl games and actually managed to lose four of them all in the same time slot. In all, Michigan, Michigan State, Northwestern, Penn State and Wisconsin all lost. Michigan and Michigan State just flat out got embarrassed. Pretty bleak, and Ohio State still has to play another SEC school, Arkansas, so if the past decade’s record by the Big-10 against SEC schools is any indication, it could still get worse for the Big-10. To be fair, my beloved Pac-10 did not, except the Ducks and the Trees, have a really great year overall either, and we still do not know how those two will perform in their respective bowl games.

Now, on to the pros, who are completing the final Sunday of the regular season. The biggest game by far today is Da Bears at Green Bay. Hard as it may seem to believe, the Pack needs to win to even get in the playoffs. But Aaron Rodgers is back from his concussion and absolutely shredded the Giants last week, throwing for over 400 yards and four TDs. The Bears cover two pass defense is not a good matchup for the GB passing attack, so Julius Peppers and the line are going to have to get constant pressure on Rodgers if they want a chance to win. Bears have looked very solid for several weeks now, and Jay Cutler has been playing surprisingly consistent QB for them; but the edge has to go to the Pack on the Frozen Tundra today.

Their records may not be very good, but the Rams and SeaSquawks are playing for the NFC West title and attendant home playoff game. Will it be an 8-8 St. Louis or a 7-9 Seattle that emerges? The Rams have really been surprising this year, even though young Sam Bradford has had a little bit of a slump the last few weeks. Seattle QB is a concern, Hasselbeck is questionable and Charlie Whitehurst inexperienced and shaky. But the game is in Seattle, which evens things out quit a bit. This is a toss up, but I am rooting for the Rams.

The Giants not only have to beat the Skins, but have to also have the Bears beat the Packers to make the playoffs. Coughlins job is probably safe with a win irrespective of whether that results in a playoff berth or not, but a loss to Washington might make his retention shaky. Especially with Bill Cowher indicating he is ready to return to coaching. The Giants should win this game in spite of it being at Fed-Ex Field. Jacksonville needs to beat the Texans in Houston and have the Colts lose at home to the Titans in order to win the AFC South and make the playoffs. Neither are likely to occur. Look for the Texans to play for Kubiak’s job and win over the David Garrard less Jags, and Peyton to take care of business for another division title.

Philly hosting the Cowboys should be an interesting game; Cowboys are playing much better and the Iggles are suddenly in a funk; but the game is in Philly and I will take Mike Vick and the Eagles for that reason. Dallas reportedly is going to make Jason Garrett head coach for next year. The rest of the schedule is mostly just marking time; look for Niners over Cards, Tebows to lose to Rivers and the Bolts, Saints over Bucs, Falcons over Carolina, Chefs over Rayduhs, Ravens over Bengals, Steelers over Browns and Pats over Fish. That leaves the Jets and the suddenly semi-respectable Toronto Bills. Jets are already in for a wild card and have little to play for, which makes this a toss up.

That is the schedule folks. Blend up some Bloody Marys and cut that hangover edge, get your couch freak on and let’s rumble!

As you may recall, Chief Judge Vaughn Walker of the Northern District of California (NDCA), who has handled two of the most critical and transcendent litigations of the last decade, Perry v. Schwarzenegger and al-Haramain v. Bush/Obama, is retiring. Today, he has issued his last big opinion left on his table pre-retirement, the ruling on damages to be awarded Plaintiff in al-Haramain, assignment of attorney fees to Plaintiffs, and whether or not to impose punitive damages against the government for their offending illegal conduct.

The government, in its brief objecting to the Plaintiffs’ proposed form of judgment, basically poked the court in the eye with a stick by continuing their obstreperous refusal to accept the court’s jurisdiction over their assertion of state secrets, continued to argue there were no facts competently of record despite Walker’s crystal clear determinations to the contrary, and denied that Plaintiffs were entitled to attorney fees or punitive damages. They just say NO. The Plaintiffs went on to properly lodge their calculation of damages, detailed request for attorney fees and affidavit in support thereof. Plaintiffs al-Haramain, separately, filed a very compelling brief on why the court should award them punitive damages against the government. The government, of course, objected some more.

As lead Plaintiffs counsel Jon Eisenberg stated in the punitive damages brief:

Defendants abused the extraordinary power of the Executive Branch by committing unlawful electronic surveillance of the plaintiffs with full knowledge of, and in flagrant disregard for, determinations by top officials in the Department of Justice (DOJ) that the surveillance lacked constitutional or other legal support. Defendants sought to put themselves above the law, in the manner of a monarch. That is a profound abuse of America’s trust. It calls for strong medicine.

And thus it all comes down to today’s decision by Judge Walker, and here is the full text of his 47 page order.

In short, Walker has ordered that Plaintiffs Wendell Belew and Asim Ghafoor (a-Haramain’s attorneys wrongfully surveilled) receive $20,400.00 each in liquidated damages. Walker denied damages to al-Haramain itself. In regards to punitive damages, Judge Walker has denied in full Plaintiffs’ request. As to attorney fees, the court grants the motion as to Plaintiffs Ghafoor and Belew only (again, not as to al-Haramain itself, and awards attorney fees and expenses in the amount of $2,537,399.45.

There is a lot to chew on in this order, and both Marcy and I will be coming back to do just that after chewing and digesting it further. But so far, it is clear that the court sided completely with the plaintiffs on compensatory/liquidated damages, giving Belew and Ghafoor every penny they asked for and finding the government’s opposition meritless. This passage by the court is telling:

The evidence shows that an inferred surveillance period lasting from February 19, 2004 to September 9, 2004 is reasonable. Based on statements by the Office of Intelligence and Analysis, at least four of al-Buthi’s telephone calls were intercepted as early as February 2003. Doc #657-4/99-4 at 32-38. Between this time and September 9, 2004, when the OFAC declared Al-Haramain a SDGT organization, governmental interest in Al-Haramain’s activities appears to have increased. Various officials involved acknowledged using surveillance and other classified information in this investigation. See Doc #721/115 at 37-41.

Accordingly, the most reasonable inference is that defendants had already begun electronic surveillance of Al-Haramain before its assets were blocked on February 19, 2004 and continued the surveillance at least through September 9, 2004. Plaintiffs Belew and Ghafoor were associated and in frequent contact with Al- Haramain and its officials during this time and were similarly subjected to electronic surveillance. See Doc ##657-6/99-6; 657- 23 7/99-7. Although plaintiffs have not had access to classified information that could prove the precise details of defendants’ surveillance, plaintiffs have nevertheless put forth sufficient evidence to raise a strong inference that the period of surveillance lasted at least 204 days.

Walker, and likely correctly, notes (see: p. 14-15) that al-Haramain itself is not eligible for damages or attorney fees due to its status as a designated terrorist organization. The court rejected Eisenberg’s relatively creative attempt to get the damages awarded under the “cy pres” doctrine.

As to Plaintiffs’ request for injunctive relief, the court effectively holds they already have all they can get under the circumstances in light of the “surveillance program” being discontinued (could sure be argued that this is a pretty shaky assumption) among other circumstances:

The court first turns to plaintiffs’ request for a declaration that the warrantless electronic surveillance of plaintiffs was unlawful as a violation of FISA. Defendants argue that FISA does not authorize the entry of any declaratory relief. Doc #727/119. Defendants further argue that a declaratory judgment cannot issue if the “program or activity” no longer exists. Doc 15 #727/119.

It is unnecessary to decide whether and under what circumstances FISA authorizes the entry of a declaratory judgment because the equitable relief sought by plaintiffs is neither necessary nor appropriate. This court already determined in its March 31 order that plaintiffs established a prima facie case of unlawful electronic surveillance in violation of FISA. Doc #721/115 at 3. In the present order, the court awards compensatory damages and attorney fees based on defendants’ actions. A declaration that defendants’ actions were illegal would not provide plaintiffs with any additional relief or remedy.

Furthermore, because the TSP under which plaintiffs were monitored in violation of FISA ended in January 2007, Doc #668/103 at 18, there is no reason to believe that plaintiffs will be subjected to the same injury in the future. Under 28 USC § 2201, a declaratory judgment is available only when there is “a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality.” Golden v Zwickler, 394 US 103, 5 108 (1969). “[P]ast wrongs do not in themselves amount to that real and immediate threat of injury necessary to make out a case or controversy.” City of Los Angeles v Lyons, 461 US 95, 103 (1983). Accordingly, plaintiffs’ request that the court declare defendants’ actions unlawful is DENIED.

Plaintiffs’ second request for equitable relief seeks an order prohibiting the United States government from using any information obtained during the surveillance at issue and ordering the destruction of such information. Again, to enter declaratory relief, there must be an “actual controversy” before the court. 28 USC § 2201. No such controversy exists here.

To sum up, a strong damages ruling, nice and full award of attorney fees (well earned by plaintiffs’ counsel I might add), a predictable refusal to grant monetary award to the underlying organization (which is defunct anyway) and a somewhat disappointing refusal to grant punitive damages. The court’s logic on the punitives issue is fairly underwhelming to me – basically that it is unfair to assess them against taxpayers – in that I fail to see why the “send a message” nature of punitive damages is any less necessary where it is governmental ill at issue. Taxpayers need the damn message too judge. Walker clearly, however, does not agree.

This will conclude the festivities in NDCA. As you may recall, the government prematurely tried to get the matter to the 9th Circuit on an interlocutory basis in early 2009, but the attempt was held to not be ripe and was denied completely. Well, there are no more issues left at the trial court level, so the Obama Administration can now finally move its craven determination to shield mass criminal conduct through the secrecy and cover up of state secrets privilege to the 9th Circuit. After the soul crushingly bad en banc decision by the 9th in Mohamed v. Jeppesen, however, there is no way to know how the case will be viewed there. Normally, I would expect a favorable ear from the 9th, but the craven government has so brain washed the judiciary on the need for secret law to stave off the terror boogeyman, that you never know. And Obama has literally been as bad, if not far worse than, as the Bush Administration in this regard.

So, we shall see how this sorts out in the 9th Circuit now and, presumably, the Supreme Court after that. While it has been very hard to get a definitive read on our newest justice, Elena Kagan, on these types of issues, it is almost certain she would recuse herself as much of al-Haramain and related cases were percolating through during her term as Solicitor General and she likely had enough participation in the discussions that she exercises her right to recuse. Now, whether that would leave a 4-4 split among the remaining eight justices, which would leave any opinion by the 9th Circuit intact, may well be the key question in the future.

For now, though, the trial court, through chief Judge Vaughn Walker hath spoken. And his finding of mass illegality and unconstitutionality in the the President’s Surveillance Program during the Bush Administration, in the only case that has managed to survive the egregious onslaught of state secrets coverup, by both Bush and Obama, should be kept firmly in mind. Especially when you read things like Monitoring America by Dana Priest and Bill Arkin of the Washington Post.

As you know from my report Monday when the three member appellate panel in the 9th Circuit was announce for the Prop 8 case of Perry v. Schwarzenegger, one of the judges assigned was Judge Stephen Reinhardt. Steve Reinhardt is one of the finest judges you will find anywhere, and he is an old school principled and unabashed liberal whose veins carry the lifeblood of social justice, fundamental fairness and equal protection for all citizens.

So, of course the hating bigots that comprise the pro-Proposition 8 Defendant-Intervenors filed a motion last night to disqualify Reinhardt. Here is the full motion to disqualify brief, it is only 18 pages (10 of text) long and gives a very good glimpse of just how the haters tried to attack Reinhardt here because – gasp! – his wife has spent her career at the ACLU who -gasp! – actually is in favor of marriage equality. In a nutshell, D-Is argue:

Judge Reinhardt is married to Ramona Ripston, the long-time Executive Director of the ACLU of Southern California (hereinafter, “ACLU/SC”). As Executive Director, Ms. Ripston is “responsible for all phases of the organization’s programs, including litigation, lobbying and education.” Under Ms. Ripston’s leadership, “ACLU/SC has taken a lead role” in what it calls “the fight to end marriage discrimination” in California.
…
The facts of this case would plainly lead a reasonable person to conclude that Judge Reinhardt’s impartiality might reasonably be questioned. His wife and the organization she leads have not only been active in seeking to redefine marriage in California and active in opposition to Proposition 8, but they have been active participants in this very lawsuit…
…
It is thus plain that Ms. Ripston has an avowed interest in seeing Proposition 8 invalidated, an interest that unquestionably will be substantially affected by the outcome of this proceeding.

The D-I argument is, of course, ginned up baloney. Reinhardt’s wife, Ramona Ripston, was never an attorney of record in the case, has no pecuniary interest in the outcome, and the ACLU is not part of the appeal. But H8ters are gonna hate, and that is what these folks do best.

Steve Reinhardt wasted no time telling them where to place their hate. The D-I motion was filed early last night, and Reinhardt has already issued his order tersely denying the motion:

Filed order (STEPHEN R. REINHARDT) I have before me defendants-intervenors-appellants’ motion to disqualify myself from this appeal. I have not hesitated to recuse from cases in the past when doing so was warranted by the circumstances. See Khatib v. County of Orange, 622 F.3d 1074, 1074 (9th Cir. 2010); Mohamed v. Jeppesen Dataplan, Inc., 586 F.3d 1108, 1109 (9th Cir. 2009); Buono v. Kempthorne, 527 F.3d 758, 760 (9th Cir. 2008); Sw. Voter Registration Educ. Project v. Shelley, 344 F.3d 913, 914 (9th Cir. 2003); Valeria v. Davis, 320 F.3d 1014, 1015 n.** (9th Cir. 2003); Alvarez-Machain v. United States, 284 F.3d 1039, 1039 n.1 (9th Cir. 2002); Coalition for Econ. Equity v. Wilson, 122 F.3d 692, 711 (9th Cir. 1997). Here, for reasons that I shall provide in a memorandum to be filed in due course, I am certain that “a reasonable person with knowledge of all the facts would [not] conclude that [my] impartiality might reasonably be questioned.” United States v. Nelson, 718 F.2d 315, 321 (9th Cir. 1983); see also Sao Paulo State of the Federated Republic of Brazil v. Am. Tobacco Co., 535 U.S. 229, 233 (2002) (per curiam). I will be able to rule impartially on this appeal, and I will do so. The motion is therefore DENIED.

Well, that will take care of that. That is what the entire raison de etre of the D-I is though, if you are not like them and believe as they do, you are not equal, not worthy and biased; be it being gay, atheistic/agnostic or liberal you are just simply not fit. Judge Reinhardt told them where to go with that rubbish. It is interesting to note that although there are some very substantial questions that could be asked about the staunch conservative judge appointed to the Perry panel, N. Randy Smith, the appellees have not thrown up unsupported and scurrilous motions to disqualify Smith because, without substantial factual support to do so it would be wrong. That is the qualitative difference in the attorneys and people on the two respective sides.

Now here is where it gets interesting and we move away from silly hate and back to the merits of the appeal. When you hear stories about how the Supreme Court frowns on the liberal Ninth Circuit and takes glee in reversing decisions from the 9th, Steve Reinhardt is the poster child for that meme. An appeal to the Supremes on a decision authored by Reinhardt is like waving a red flag in front of a bull, you are going to get their attention.

And to double the fun here, the threshold question, and really a huge issue that many people discussing the Perry appeal still do not grant enough weight, is the issue of standing on the part of the appellants. Lyle Denniston at SCOTUSBlog has a post from back in August giving a very thorough and easy to understand discussion of the standing issue in Perry. The entire post is worth the read if you are not familiar with the standing issue, but the gist is this:

In both the Ninth Circuit and, if the case goes further, in the Supreme Court, it is now apparent that the resolution of the issue of standing to appeal will turn on how those courts interpret the Supreme Court’s 1997 decision in Arizona for Official English v. Arizona, casting doubt on whether initiative sponsors may appeal to defend a ballot measure when state officials refuse to do so, and the Court’s 1985 ruling in Karcher v. May, suggesting that state legislators may sometimes do so when other state officials refuse, provided state law allows for that. The proponents of the ban on gay marriage, in direct conflict with Judge Walker’s interpretation of California law, argue that state law does give them the right to be in court. California law, they said, makes their case different from the Arizona English initiative case.

And here is where the fun really starts. As I previously indicated, on the merits, you would expect a 2-1 decision upholding Walkers decision in favor og marriage equality and striking down the appeal of the Prop 8Haters. But, before you get to the merits, there is the problem of the standing issue and, as Denniston pointed out, the critical case for that determination will be the Supreme Court decision Arizona for Official English v. Arizona. Know who wrote the circuit court opinion in Arizona for Official English v. Arizona that the Supreme Court slapped down and reversed? Yep, Steve Reinhardt.

So, we have a Circuit Court judge predisposed to find standing in such cases, a Supreme Court predisposed to not care much for said judge’s opinion and a case that may, or may not, be able to be distinguished. Whatever the ruling is in the 9th, the opinion will almost certainly be written by either Reinhardt or Mike Hawkins. Reinhardt has the seniority over Hawkins and the lifetime of work on social justice opinions, if he wants to author the opinion, I think Hawkins will defer to him. The question is, might they decide to have Hawkins author the opinion to pull back on the red flag in front of the SCOTUS bull?

Get your popcorn, and remember that Emptywheel will be covering the oral argument in the 9th Circuit Monday morning December 6th at 10:00 am PST/FDL time and the proceedings will be carried live by CSPAN and other networks.

[The absolutely incredible graphic, perfect for the significance and emotion of the Perry Prop 8 case, and the decision to grant marriage equality to all citizens without bias or discrimination, is by Mirko Ilić. Mirko is an artist par ecellence in New York who also teaches illustration and design. Please visit Mirko and check out his stock of work, it is really superb.]

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!