Green Room

An Unanswerable, Five-Word Response to Judge Dredd’s Claim that Prop. 8 Proponents Have No Standing to Appeal His Decision (Why Yes – It’s Shorter Than This Title!)

posted at 12:02 am on August 17, 2010 by

Judge “Dredd” Vaughn Walker recently hinted rather strongly that the defendants who defended traditional marriage and Cailfornia Proposition 8 in Perry v. Schwarzenegger have no standing to appeal, now that the judge has washed his hands of their arguments.

Walker opined (his target audience is the Ninth Circuit three-judge panel) that nobody but Gov. Arnold Schwarzenegger and state Attorney General Jerry Brown had standing to file an appeal of Walker’s gift to same-sex marriage supporters…. knowing full well that both had already refused to defend Prop 8 or file the appeal. (Yes, that Jerry Brown; the former ultra-liberal governor of California who served after Ronald Reagan.)

According to the Los Angeles Times:

To have standing in federal court, a party must show that it has suffered an actual injury, and Walker said no evidence suggests that the campaign would meet that test….

“Proponents may have little choice but to attempt to convince either the governor or the attorney general to file an appeal to ensure jurisdiction,” Walker wrote.

Picture a sitting federal judge sticking his tongue out at California voters.

Message received: The notorious Ninth, the most liberal federal appellate court in the land, has developed a sudden fascination for the question of standing; deciding Prop. 8 defenders had none would allow the panel to dismiss the appeal without even bothering to review the merits of Walker’s decision (hat tip to Le-gal In-sur-rec-tion and Allahpundit at Hot Air). Quoth the three-judge panel:

In addition to any issues appellants wish to raise on appeal, appellants are directed to include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing.

All by way of preamble; but I have a response to Walker’s argument that (1) only the governor or the state Attorney General has standing to appeal his order; but since (2) they both applaud his decision and refuse to appeal it, then (3) proponents of Prop. 8 and traditional marriage can go eat worms. My response is just six words long, but I see it as quite unanswerable:

If Judge Walker is right, and nobody willing to appeal the ruling is allowed to appeal the ruling, then… who speaks for the people?

Seven million California voters voted for Proposition 8; who speaks for them?

The whole point of a citizens’ initiative is to allow the voters themselves to enact reforms or repeal tyrannical laws, even when elected officials are corrupt, out of touch, or unwilling to listen. But if the governer can overturn such an initiative merely by refusing to defend it in the inevitable lawsuit, allowing opponents of the initiative to win by default, then the entire point of a citizens’ initiative is thwarted. (George Will would be overjoyed.)

At the federal level, the president could do the same thing, effectively overturning legislation passed by Congress and signed by the (then) president, but which the current president dislikes: Simply refuse to defend the law in court, giving himself retroactive veto power over laws already enacted. What a sweet way to amend the constitution without having to amend the constitution.

This is liberalism; this is the “hope and change” that Barack H. Obama promised. This is what the Left does, its forte: If you voted for Obama or a third-party candidate, then this is the world you wrought.

 

 

 

…Miss him yet?

George W. Bush

Cross-posted on Big Lizards

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At the federal level, the president could do the same thing, effectively overturning legislation passed by Congress and signed by the (then) president, but which the current president dislikes: Simply refuse to defend the law in court, giving himself retroactive veto power over laws already enacted. What a sweet way to amend the constitution without having to amend the constitution.

This is liberalism; this is the “hope and change” that Barack H. Obama promised. This is what the Left does, its forte: If you voted for Obama or a third-party candidate, then this is the world you wrought.

One man, one vote, one time. Zis magical Hopenchange eez goot for you, Comrades! Now zit down and be zilent.

OhioCoastie on August 17, 2010 at 1:10 AM

Yowzer.

Living4Him5534 on August 17, 2010 at 1:12 AM

I speak for me. No one else. There was a time when I trusted. Now I no longer do.

gryphon202 on August 17, 2010 at 1:43 AM

And refusing to defend or enforce the law is EXACTLY what this administration is doing with both voting rights and immigration.

SDN on August 17, 2010 at 8:47 AM

I hope the Ninth Circus has the balls to rule that the Prop. 8 proponents have no standing. SCOTUS will rip them all new ones over that. And it will be another teachable moment for the nation in the perils of liberalism.

There is already ample case law proving that the California Supreme Court recognizes the rights of proposition supporters to defend an enacted ballot proposition in court even if the governor and AG refuse to.

rockmom on August 17, 2010 at 9:31 AM

rockmom on August 17, 2010 at 9:31 AM

Do you have case law citation for your assertion that the California Supreme Court recognizes the rights of proposition supporters to defend an enacted ballot proposition in court even if the governor and AG refuse to?

What about federal case law?

Conservative Samizdat on August 17, 2010 at 11:33 AM

But if the governer can overturn such an initiative merely by refusing to defend it in the inevitable lawsuit

the suit against the initiative must prevail at law and the initiative must be found to be at odds with the Constitution for it to be overturned.

that’s not much of a “merely”.

the Constitution of the United States speaks for the people.

audiculous on August 17, 2010 at 11:49 AM

The New Democrat Party – The Party of No
Enforcement.

WashingtonsWake on August 17, 2010 at 12:10 PM

Do you have case law citation for your assertion that the California Supreme Court recognizes the rights of proposition supporters to defend an enacted ballot proposition in court even if the governor and AG refuse to?

What about federal case law?

Conservative Samizdat on August 17, 2010 at 11:33 AM

It’s cited in the Prop. 8 proponent’s brief to the Ninth on the stay of Walker’s order. Ed Whelan has it in his “Bench Memos” blog at National Review Online. There is also federal court precedent from other states allowing someone other than the governor/AG to defend a state law in federal court.

Judge Walker also denied a request by the county supervisors and county clerk of Imperial County to intervene in the Defense of Prop. 8. As a local government whose operations include the issuance of marriage licenses, they almost certainly have standing. Judge Walker acted capriciously in delaying his decision on their request to the same day he issued his overall ruling in the case. The Ninth could rule on this and order a retrial with the Imperial County agencies as intervenors.

The secondary issue here is that if the Ninth finds that the intervenors lack standing on appeal they probably lacked standing in the initial trial and so the entire trial could be ruled improper. They could order Judge Walker to retry the entire case. Knowing the Ninth, they won’t want to do this, so a lot of people are guessing they will rule for the intervenors on standing just to keep the case alive.

rockmom on August 17, 2010 at 12:26 PM

the suit against the initiative must prevail at law and the initiative must be found to be at odds with the Constitution for it to be overturned.

that’s not much of a “merely”.

the Constitution of the United States speaks for the people.

audiculous on August 17, 2010 at 11:49 AM

Yeah. And how’s that working out for us since 1900?

uknowmorethanme on August 17, 2010 at 12:41 PM

uknowmorethanme

pretty well, considering that we came to be the most powerful and wealthy country on the planet after 1900.

audiculous on August 17, 2010 at 1:07 PM

Hmmmm.

“If you voted for Obama or a third-party candidate, then this is the world you wrought.”

If you voted for a RINO … then this is the world YOU wrought.

If you voted for a spineless Republican … then this is the world YOU wrought.

If you voted for a Republican unwilling for fight for conservative principles … then this is the world YOU wrought.

If you voted for McCain vs a conservative candidate … then this is the world YOU wrought.

If you voted for whatever twit the GOP put up as a candidate … then this is the world YOU wrought.

memomachine on August 17, 2010 at 1:32 PM

Could they cross claim the Gov. or AG and mandamus them?

txmomof6 on August 17, 2010 at 3:20 PM


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