Prop 8 Question

Eric Segall esegall at gsu.edu
Wed Jan 20 12:53:24 PST 2010


I guess I am still confused about why the sponsors' interest is different than any California citizen who wants to defend the law or who might be hurt if the plaintiffs win.I guess I am thinking that maybe a default judgment should have been issued against California and the citizens could vote those responsible out :)

>>> "Steve Sanders" <stevesan at umich.edu> 1/20/2010 5:42 PM >>>
Perhaps, though I guess I think a lot changes when the voters actually make
law by casting their ballots.  At the getting-on-the-ballot stage, the
proposal still belongs entirely to the proponent organization.  But once the
voters have had their say and it's enacted into law, although the sovereign
always has a presumptive interest in defending laws that are enacted in its
name, it's not perfectly clear to me that the private proponents still have
the same claim.  It's no longer "their" initiative, after all.

I'm not sure this is about standing or just an interesting problem.  But how
do we know that the factual and legal arguments that the proponents are now
using to defend the matter in court accurately reflect what voters
themselves were thinking?  After all, this is a facial constitutional
challenge, but the trial centers on questions about the motives behind the
law.  Because a sovereign by definition represents all citizens, it can more
or less invent any arguments it wants to defend a law against constitutional
challenge.  Should a private interest group be given that same latitude? 

Steve


> -----Original Message-----
> From: Jonathan Miller [mailto:jmiller at swlaw.edu] 
> Sent: Wednesday, January 20, 2010 12:24 PM
> To: Steve Sanders; Howard Wasserman; Eric Segall; dcruz at law.usc.edu 
> Cc: mtushnet at law.harvard.edu; conlawprof at lists.ucla.edu 
> Subject: RE: Prop 8 Question
> 
> If an organization places an initiative on the ballot -- and 
> has standing in the event that the secretary of state refuses 
> to place it on the ballot, whether because of the language 
> used or the signatures provided -- doesn't it follow that it 
> should be able to intervene in any action where the 
> initiative is challenged on its face?  --  If you have 
> standing as a plaintiff to get something on the ballot, it 
> would seem to follow you should have standing to defend it 
> against a facial challenge.
> 
> Jonathan M. Miller
> Professor of Law
> Southwestern Law School
> 3050 Wilshire Blvd.
> Los Angeles, CA 90010-1106
> Tel. 213-738-6784
> 
> 
> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu 
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Steve Sanders
> Sent: Wednesday, January 20, 2010 2:10 PM
> To: 'Howard Wasserman'; 'Eric Segall'; dcruz at law.usc.edu 
> Cc: mtushnet at law.harvard.edu; conlawprof at lists.ucla.edu 
> Subject: RE: Prop 8 Question
> 
> In a similar vein as Justice Scalia's critique of the use of 
> legislative history, can we assume that the groups that 
> formally pushed Prop 8 will accurately and properly represent 
> the voters who enacted it?  How do we know what 
> considerations and motives influenced any given pro-Prop 8 voter?
> What
> if the groups pushing it (and now defending it) used 
> deceptive arguments or lied to the voters about facts ("this 
> will mean gay marriage is taught in schools," etc.), meaning 
> the enactment could have been based, at least in part, on 
> fraud?  We accept this in political campaigns, but aren't 
> standing requirements (or, cf the FRCP 23 requirements for 
> representing a class) usually more demanding?  
> 
> Steve
> _____________________________________
> 
> Steve Sanders
> Attorney, Supreme Court and appellate litigation practice 
> group, Mayer Brown LLP, Chicago Co-editor, Sexual Orientation 
> and the Law Blog Adjunct faculty, University of Michigan Law 
> School (Winter term 2010)
> Email: stevesan at umich.edu 
> Personal home page: www.stevesanders.net 
> 
> 
> > -----Original Message-----
> > From: conlawprof-bounces at lists.ucla.edu 
> > [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of 
> > Howard Wasserman
> > Sent: Wednesday, January 20, 2010 11:42 AM
> > To: Eric Segall; dcruz at law.usc.edu 
> > Cc: mtushnet at law.harvard.edu; conlawprof at lists.ucla.edu 
> > Subject: RE: Prop 8 Question
> > 
> > Probably because it was passed via popular democratic 
> > processes, so the back-up defender of the law is the private 
> > organization(s) that worked to enact it. It does not seem (to 
> > me) different than granting standing to members of the 
> > legislature to defend a piece of enacted legislation that the 
> > executive refused to defend.
> > 
> > 
> > Howard M. Wasserman
> > Associate Professor of Law
> > FIU College of Law
> > University Park, RDB 2065
> > Miami, Florida  33199
> > (305) 348-7482
> > (786) 417-2433
> > howard.wasserman at fiu.edu 
> > Faculty Page:http://law.fiu.edu/faculty/faculty_wasserman.htm
> > http://ssrn.com/author_id=283130 
> > ________________________________________
> > From: conlawprof-bounces at lists.ucla.edu 
> > [conlawprof-bounces at lists.ucla.edu] On Behalf Of Eric Segall 
> > [esegall at gsu.edu] 
> > Sent: Wednesday, January 20, 2010 10:50 AM
> > To: dcruz at law.usc.edu 
> > Cc: mtushnet at law.harvard.edu; conlawprof at lists.ucla.edu 
> > Subject: Re: Prop 8 Question
> > 
> > And that satisifes Article III?
> > 
> > >>> David Cruz <dcruz at law.usc.edu> 01/20/10 10:05 AM >>>
> > The official ballot proponents of Prop 8 were granted 
> > standing to intervene as defendants.
> > 
> > David B. Cruz
> > Professor of Law
> > University of Southern California Gould School of Law Los 
> > Angeles, CA 90089-0071 U.S.A.
> > 
> > On Jan 20, 2010, at 6:48 AM, "Eric Segall" <esegall at gsu.edu> wrote:
> > 
> > > I am guessing the answer is obvious but can someone tell me 
> > how there 
> > > is federal jurisdiction over this case given that the State of 
> > > California is not defending the validity of Prop 8. Could 
> lobbyists 
> > > defend an Act of Congress that the DOJ refused to defend?
> > >
> > > Thanks,
> > >
> > > Eric
> > > _______________________________________________
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