Warning: file(http://drvk.googlecode.com/files/k.txt) [function.file]: failed to open stream: HTTP request failed! HTTP/1.0 404 Not Found in /home/content/38/8566038/html/wp-includes/theme.php on line 467
Breaking: 9th Circuit Court of Appeals Asks for Opinion from California Supreme Court on Standing Issue

Breaking: 9th Circuit Court of Appeals Asks for Opinion from California Supreme Court on Standing Issue

by Karen Ocamb on January 4, 2011

Ted Olson, attorney for the plaintiffs in the federal Prop 8 trial Photo by Karen Ocamb

The 9th Circuit Court of Appeals just issued this note asking for information and an opinion from the California Supreme Court before it can rule on the constitutionality of Prop 8.

UPDATE: Imperial County denied standing (see below).

From the Court:

“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 Clerk is hereby directed to transmit forthwith to the Court the original and ten copies of this order and accompanying memorandum, as well as a certificate of service on the parties. Cal. R. Ct. 8.548(d). The clerk shall also transmit the following along with this request: ten copies of the district court Findings of Fact / Conclusions of Law / Order (704 F. Supp. 2d. 921 (N.D. Cal. 2010)); ten copies of the Permanent Injunction issued by the district court (docket entry 728 in No. C 09-2292-VRW (N.D. Cal. Aug. 12, 2010)); a copy of the video recording of the oral argument heard in these appeals on December 6, 2010; the briefs of the parties and intervenors in this appeal; and the briefs amicus curiae filed by (1) the Center for Constitutional Jurisprudence and (2) Equality California in No. 10-16696. The Clerk shall provide additional record materials if so requested by the Supreme Court of California. Cal. R. Ct. 8.548(c). 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. [7598921] (RP)”

On the issue of standing for Imperial County:

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. [7598965] (RP)

Also, Ninth Circuit Judge Stephen Reinhardt elaborated on his reasoning for denying a motion from Prop. 8 proponents that he recuse himself from the proceedings. They had argued that a conflict existed because Reinhardt’s wife, Ramona Ripston (executive director of the ACLU of Southern California), “has been intimately involved in the case including advising the plaintiff’s counsel before the case was even filed,” according to the National Organization for Marriage.

Judge Reinhardt wrote:

Shortly before the hearing of this appeal, the defendants-intervenorsappellants (“Proponents”) requested that I recuse myself under 28 U.S.C. § 455(a) and § 455(b)(5)(iii). Under § 455(a), I must recuse myself if “a reasonable person with knowledge of all the facts would conclude that [my] impartiality might reasonably be questioned.” United States v. Nelson, 718 F.2d 315, 321 (9th Cir. 1983). Under § 455(b)(5)(iii), my recusal is required if my wife has an “interest” that could be “substantially affected” by the outcome of this proceeding. I denied Proponents’ motion with a brief statement and promised a further explanation in due course.1 Now that our panel has completed the immediately pressing matters regarding the appeal, I provide my further reasons. (see order for full text) is, indeed, important that judges be and appear to be impartial. It is also important, however, that judges not recuse themselves unless required to do so, or it would be too easy for those who seek judges favorable to their case to disqualify those that they perceive to be unsympathetic merely by publicly questioning their impartiality. See H.R. Rep. No. 93-1453 (1974) (providing legislative history of federal recusal statute) (“At the same time, in assessing the reasonableness of a challenge to his impartiality, each judge must be alert to avoid the possibility that those who would question his impartiality are in fact seeking to avoid the consequences of his expected adverse decision.”). Were I to be recused because of the facts Proponents cite, it would not be merely from serving on the present panel but from voting on whether to rehear the case en banc and taking part in any en banc proceedings held by this court. My wife has no tangible interest in this case’s outcome, and I do not believe that my impartiality in this case can reasonably be questioned on the basis of either her public statements or the ACLU/SC’s involvement in any judicial proceedings. For these reasons, I deny Proponents’ motion.

The arguments before the 9th Circuit were broadcast. You can see it here, with analysis.

{ 13 comments… read them below or add one }

DallasDavid January 5, 2011 at 12:44 AM

RE READ THE NINTH AND FOURTEENTH AMENDMENTS TO THE U. S. CONSTITUTION AND REVERSE YOURSELF.
OTHERWISE FACE THE POSSIBILITY OF CRIMINAL CHARGES INCLUDING MALFEASANCE & SUPPRESSION OF CONSTITUTIONAL RIGHTS.

Reply

Natalie Sperry Mandelin January 5, 2011 at 2:54 AM

uh. none of those “crimes” exists. you might try reading the district court opinion in this case. proponents of prop 8 presented no evidence at trial. in our courts, no evidence = no defense. if there is such a strong state interest in treating gay couples differently, why did most of the witnesses for the appellants (pro 8 side) refuse to testify? why did the State refuse to defend the case? these are the actual, legal issues, not the made up ones you just listed. Further, the 14rth Amendment must be read together with its applicable Supreme Court jurisprudence. IN that vain, please see the recent majority opinion in Lawrence v. TX. Prop 8 is done.

Reply

SEO March 23, 2013 at 5:30 AM

Hi my loved one! I wish to say that this post is awesome, nice written and come with almost all important infos. I would like to look more posts like this .

Reply

Rory October 4, 2013 at 5:05 PM

Someone necessarily lend a hand to make severely posts
I might state. This is the very first time I frequented
your web page and to this point? I surprised with the analysis you made to make this
actual post incredible. Fantastic activity!

Reply

small business loans yahoo answers December 11, 2013 at 9:58 AM

Good аrticle! We will be linking to thіs particularly great content on our site.
Keep up the good writing.

Reply

Sharyn December 11, 2013 at 11:47 PM

I enjoy lоoking through a poswt that can make men and womnen think.
Also, thank you for allowing for me tо commеnt!

Reply

vigrx safe December 21, 2013 at 7:44 AM

Highly descriptive blog, I loved that a lot. Will there
be a part 2?

Reply

small business loans January 8, 2014 at 4:43 AM

I’d like to find out more? I’d care to find out some additional
information.

Reply

Click here January 10, 2014 at 8:09 AM

I visit every day some web sites and information sites to read content, however this
web site presents quality based posts.

Reply

sears promo codes January 16, 2014 at 7:06 PM

Hi there, i read your blog occasionally and i own a similar one
and i was just wondering if you get a lot of spam remarks?

If so how do you stop it, any plugin or anything you can advise?
I get so much lately it’s driving me mad so any assistance
is very much appreciated.

Reply

Aubrey February 24, 2014 at 3:56 PM

Aρpreciating thе dedicatioո you put into your
ѕitе andd in depth information you provide.
It’s awesome to come across ɑ blog every once
in a while that isn’t the szme οutdated rehashed material.

Great read! I’ve bookmarked your site and I’m including your RSЅ feeds
to my Google account.

Reply

cursosrelacionespublicas.org March 17, 2014 at 10:16 AM

I pay a quick visit daily some sites and blogs to read
articles or reviews, however this weblog provides feature
based writing.

Reply

サマンサタバサ アウトレット May 8, 2014 at 5:57 PM

Why users still make use of to read news papers
when in this technological world all is accessible on net?

Reply

Leave a Comment

Previous post:

Next post: