Prop 8 Question

[Eric Segall]

The article you cite says only the following:

"State Attorney General Jerry Brown has tried to keep out of the trial,
in which he is legally aligned with Prop. 8's defenders but agrees with
the plaintiffs' arguments.

Sponsors of Prop. 8 asked Walker to recast Brown as a plaintiff, but the
judge refused, noting that the attorney general remains committed to
enforcing the law as long as it's on the books."

The fact that the Judge said that Brown has to legally defend Prop 8
does not mean that he is defending it. Moreover, this sounds like Poe.
V. Ullman to some extent.

However, if some representative of the State of California said at trial
that they will defend Prop 8 tspecifically to the legal detriment of the
plaintiffs . . . then maybe there is a case. Has anybody with authority
said that, other than the Judge?



Read more:
http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2010/01/19/BAN01BJRL6.DTL#ixzz0dGDzzLWG


>>> Robert Sheridan <rs at robertsheridan.com> 01/21/10 10:18 AM >>>
The California A-G, Jerry Brown, while opposed to Prop. 8 as a 
personal/political matter, is nevertheless defending. See:

http://tinyurl.com/yjbutem

This is a news item reporting that some proponents of Prop 8 sought to 
have his office removed as a defendant and re-named as a plaintiff, 
which motion was denied and the deputy A-G questioned by the judge who 
noted that the A-G was institutionally bound to defend the 
constitutionality of the initiative and further that his office had to 
pass earlier on the question of whether the initiative appeared to be 
constitutional to qualify to get on the ballot.

Wasn't it the case that the penal statutes in either Bowers v. Hardwick 
or Lawrence v. Texas, or both, were being unprosecuted, yet the Court 
found the arrests sufficient to find a justiciable issue and provide 
standing to sue?

rs


*
*
Edward A Hartnett wrote:
>
> I am not suggesting that any time a defendant fails to defend, there 
> is no Article III case. Default judgments are common.
>
> My point is simply to note that there is a category of friendly suits 
> – structured with both sides seeking the same outcome – that is 
> treated as outside Article III, and that intervention of an 
> “unfriendly” party does not cure the problem.
>
> And I am not arguing that the Prop 8 litigation is such a friendly 
> suit. I am asking whether the local defendants are defending and if 
> not, why not?
>
> The Horne case (as well as class action cases like Amchem) suggest 
> that a majority of the court has serious concerns about collusion 
> between plaintiffs and defendants in multiple contexts.
>
> Edward A. Hartnett
>
> Richard J. Hughes Professor
>
> for Constitutional and Public Law and Service
>
> edward.hartnett at shu.edu <mailto:edward.hartnett at shu.edu>
>
> Phone: 973-642-8842
>
> Fax: 973-642-8546
>
> SSRN author page: http://ssrn.com/author=253335
>
> *From:* Steven Jamar [mailto:stevenjamar at gmail.com]
> *Sent:* Thursday, January 21, 2010 9:19 AM
> *To:* Edward A Hartnett
> *Cc:* Janet Alexander; Howard Wasserman; Eric Segall; 
> dcruz at law.usc.edu; mtushnet at law.harvard.edu; conlawprof at lists.ucla.edu
> *Subject:* Re: Prop 8 Question
>
> How does the choice not to defend eliminate the genuineness of the 
> dispute? The federal rights (if they exist in the way the plaintiffs 
> assert) are being denied. For defendants to do nothing to defend the 
> law in order to deprive federal courts of jurisdiction, with the 
> effect of defending the law, cannot work. Even Scalia and Alito 
> wouldn't go that far.
>
> There is clearly unequivocally a controversy.
>
> Steve
>
> On Thu, Jan 21, 2010 at 9:06 AM, Edward A Hartnett 
> <Edward.Hartnett at shu.edu <mailto:Edward.Hartnett at shu.edu>> wrote:
>
> And I agree with Janet that Article III should not be interpreted to 
> constitutionally bar someone claiming a federal right – as the 
> plaintiffs in the Prop 8 litigation are claiming – from both 1) 
> receiving their claimed right a> I reiterate that I have not followed the details of the Prop 8 
> litigation closely enough to have a view of the justiciability issues 
> in that case. Based on a quick look at the complaint this morning, 
> some local officials are joined as defendants. Have they, too, 
> declined to defend the constitutionality of their actions? If they are

> defending, then there is a genuine case, regardless of the presence of

> intervening defendants. And I would be astounded if, in as politically

> diverse a state as California, no local official could be found who 
> would be willing to defend. Did the plaintiffs chose to sue only those

> defendants who would not defend? Or is there something in CA law that 
> somehow prohibits local officials from separately defending their 
> actions?
>
> Edward A. Hartnett
>
> Richard J. Hughes Professor
>
> for Constitutional and Public Law and Service
>
> edward.hartnett at shu.edu <mailto:edward.hartnett at shu.edu>
>
> Phone: 973-642-8842
>
> Fax: 973-642-8546
>
> SSRN author page: http://ssrn.com/author=253335
>
> *From:* Janet Alexander [mailto:jca at stanford.edu 
> <mailto:jca at stanford.edu>]
> *Sent:* Wednesday, January 20, 2010 10:16 PM
> *To:* Edward A Hartnett; Howard Wasserman; Eric Segall; 
> dcruz at law.usc.edu <mailto:dcruz at law.usc.edu>
>
>
> *Cc:* mtushnet at law.harvard.edu <mailto:mtushnet at law.harvard.edu>; 
> conlawprof at lists.ucla.edu <mailto:conlawprof at lists.ucla.edu>
> *Subject:* RE: Prop 8 Question
>
> I'd agree with Ed's response (why do we need federal courts to 
> intervene if state officials are not enforcing an arguably 
> unconstitutional state law) but for the fact that in this case, 
> denying standing (and concluding that therefore there is no Art III 
> case or controversy) would also deny the _plaintiffs'_ asserted 
> federal rights. What is the consequence of the state's refusal to 
> defend Prop 8 in court? It is NOT that same-sex marriages can be 
> performed. Rather, no city is permitting same-sex marriages, and if 
> any were to be performed there would be a serious question of their 
> legality and of whether the persons so married would have enforceable 
> legal rights. If the refusal of the state to defend the amendment 
> meant that a court could not take jurisdiction of the case, and 
> therefore could not decide the constitutionality of the amendment, 
> then by "helping," the state officials would have assured that Prop. 8

> could never be struck down as unconstitutional, and would therefore 
> continue to limit the civil rights of gay and lesbian couples.
>
> At 06:42 PM 1/20/2010, Edward A Hartnett wrote:
>
> I think it is important to separate several issues that seem to me are

> being conflated in this discussion:
>
> 1) standing to bring a case as a plaintiff
>
> 2) standing to defend a case as a defendant
>
> 3) standing to appeal (as in Diamond)
>
> and
>
> 4) feigned or collusive cases, where the parties are not truly 
> adverse. See, e.g., US v. Johnson, 319 US 302 (1943), where 
> intervention of an adverse party did not cure the lack of true 
> adversariness between the original plaintiff and defendant.
>
> I don't yet have views on these questions in the Prop 8 litigation, in

> part because I haven't followed it closely enought to know precisely 
> what relief is being sought from which defendants, and precisely who 
> would be bound by the judgment sought.
>
> As for Janet Alexander's question: While I have lots of problems with 
> current standing doctrine, see 97 Mich 2239 (1999), I am not troubled 
> at all by the idea that no one could get to federal court to complain 
> about the failure of state officials to enforce state law -- even if 
> the basis for the state officials' decision was their view of federal
law.
>
> Suppose a governor were to commute all death sentences, including 
> those imposed pursuant to a state referendum, believing -- contrary to

> SCOTUS precedent -- that the death penalty violates the 8th amendment.

> It does> not get a federal court to review that decision.
>
> Or suppose the people of California were to legalize gay marriage by 
> referendum, believing that the equal protection clause of the 14th 
> amendment required that action. Again, it doesn't bother me that those

> who think that view of the 14th amendment to be incorrect could not 
> get a federal court to decide that substantial federal constitutional 
> question.
>
> Or suppose, pre-Lawrence, that a state AG were to refuse to enforce a 
> state law (even one enacted by referendum) punishing same-sex sodomy, 
> believeing that Bowers was an incorrect interpretation of the 14th 
> amendment. Yet again, it doesn't bother me that this intrepretation of

> federal constitutional law could not be challenged in a federal court.
>
> It seems to me to be perfectly acceptable to have the refusal of a 
> state official to carry out state law ultimately judged by the state's

> legal and political processes. Where does a party get a federal right 
> to have a state official comply with state law?
>
> What would be more troubling, I think, would be for state officials to

> collude to produce a federal court judgment that would tend to tie the

> hands of their successors. Cf. Horne v. Flores, 129 S.Ct. 2579 (2009) 
> ("Scholars have noted that public officials sometimes consent to, or 
> refrain from vigorously opposing, decrees that go well beyond what is 
> required by federal law. See, e.g., McConnell, Why Hold Elections? 
> Using Consent Decrees to Insulate Policies from Political Change, 1987

> U. Chi. Legal Forum 295, 317 (noting that government officials may try

> to use consent decrees to “block ordinary avenues of political change”

> or to “sidestep political constraints”); Horowitz, Decreeing 
> Organizational Change: Judicial Supervision of Public Institutions, 
> 1983 Duke L.J. 1265, 1294-1295 (“Nominal defendants [in institutional 
> reform cases] are sometimes happy to be sued and happier still to 
> lose”); R. Sandler & D. Schoenbrod, Democracy by Decree: What Happens 
> When Courts Run Government 170 (2003) (“Government officials, who 
> always operate under fiscal and political constraints, ‘frequently win

> by losing’ ” in institutional reform litigation)).
>
> Ed Hartnett
> Seton Hall
>
> ________________________________________
> From: conlawprof-bounces at lists.ucla.edu 
> <mailto:conlawprof-bounces at lists.ucla.edu> 
> [conlawprof-bounces at lists.ucla.edu 
> <mailto:conlawprof-bounces at lists.ucla.edu>] On Behalf Of Janet 
> Alexander [jca at stanford.edu <mailto:jca at stanford.edu>]
> Sent: Wednesday, January 20, 2010 8:29 PM
> To: Howard Wasserman; Eric Segall; dcruz at law.usc.edu 
> <mailto:dcruz at law.usc.edu>
> Cc: mtushnet at law.harvard.edu <mailto:mtushnet at law.harvard.edu>; 
> conlawprof at lists.ucla.edu <mailto:conlawprof at lists.ucla.edu>
> Subject: RE: Prop 8 Question
>
> Contemplating what could happen if the proponent/intervenors were
> held not to have standing suggests what is wrong about the Court's
> current restrictive standing doctrine. Is it really conceivable that
> the voters could pass an initiative barring same-sex marriage, a
> same-sex couple who want to marry sues to challenge the law on
> federal constitutional grounds, state officials decline to defend the
> law (and perhaps announce that they will recognize a de facto local
> option to recognize same-sex marriages), and no one can engage the
> federal courts to decide a substantial constitutional question
> because those who oppose same-sex marriage have only a generalized 
> grievance?
>
> At 11:41 AM 1/20/2010, Howard Wasserman wrote:
> >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> >(305) 348-7482
> >(786) 417-2433
> >howard.wasserman at fiu.edu <mailto: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 
> <mailto:conlawprof-bounces at lists.ucla.edu>
> >[conlawprof-bounces at lists.ucla.edu 
> <mailto:conlawprof-bounces at lists.ucla.edu>] On Behalf Of Eric Segall 
> [esegall at gsu.edu <mailto:esegall at gsu.edu>]
> >Sent: Wednesday, January 20, 2010 10:50 AM
> >To: dcruz at law.usc.edu <mailto:dcruz at law.usc.edu>
> >Cc: mtushnet at law.harvard.edu <mailto:mtushnet at law.harvard.edu>; 
> conlawprof at lists.ucla.edu <mailto:conlawprof at lists.ucla.edu>
> >Subject: Re: Prop 8 Question
> >
> >And that satisifes Article III?
> >
> > >>> David Cruz <dcruz at law.usc.edu <mailto: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 
> <mailto: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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> _______________________________________________
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>
>
>
> -- 
> Prof. Steven Jamar
> Howard University School of Law
> Associate Director, Institute of Intellectual Property and Social 
> Justice (IIPSJ) Inc.
>
>
------------------------------------------------------------------------
>
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