prop 8 overturned

Major Tom · Joined: 09 Jul 2006 Posts: 7562

one of the comments in your third link there makes the point that the qualifications for "intervening" (Walker's s standard) are different than under Article III (considered in the Arizona case) -- i can't speak to that specifically, but the Federal Rules of Civil Procedure seem to provide for a decent amount of latitude for the court to assign intervenor status.

http://www.law.cornell.edu/uscode/html/uscode28a/usc_sec_28a_02000024----000-.html

nathan · Joined: 10 Jul 2006 Posts: 6282

If Walker had granted them (discretionary) permissive intervention, then that would probably be a good analysis. It's got a pretty loose requirement. As it is though, he granted them an intervention of right (24a2) which requires that the party show harm. So if it's found they don't have article 3, then it's not likely they qualified for intervention.
_________________
All our final decisions are made in a state of mind that is not going to last. - Marky Mark Proust

Major Tom · Joined: 09 Jul 2006 Posts: 7562

Major Tom · Joined: 09 Jul 2006 Posts: 7562

been thinking about this and i've surmised a scenario where, while these intervenors might likely not be able to prove standing under the strictures of article III, this would not cause walker's decision to grant intervenor status to invalidate the resultant ruling of the initial trial.

it seems reasonable that there would be separate and different levels of requirement for those who would be allowed to defend at trial against a motion brought about by someone else (under 24(a)(2)), than for those who would be allowed to initiate a motion such as an appeal on behalf of someone else (in this case, the state of california). permission to mount the reactionary defense at trial might well require proving the less-stringent "interest" in the outcome than would the active appeal of the ruling, requiring proof of "harm".

nathan · Joined: 10 Jul 2006 Posts: 6282

The more I think about it, the more I suspect you're right. I was conflating protectable injury with protectable interest, and they're clearly different standards. Even if the proponents are found not to have article 3, the only way I can think of eliminating their intervenor status is if the ninth makes a distinction between the relationship between Voters vs Government, and Government vs Rights Holders - in which case even the protectable interests of the prop8 proponents are unrelated because the case is purely between someone Harming (the state, with legal authority) and someone Harmed (teh gays not allowed to marry). Since the voters/proponents are unimplicated in the act of harm itself, they'd be sitting outside whistlin' dixie.

But I think it's more likely that they mash the two together like you suggest. No injury, so no appeal... but still valid as intervenors. Game, Set, Match.
_________________
All our final decisions are made in a state of mind that is not going to last. - Marky Mark Proust

WheelsOfConfusion · Joined: 09 Jul 2006 Posts: 12077 Location: Unknown Kaddath

With the added bonus that this ruling doesn't qualify as precedent anywhere but where it was decided, so no more states' laws need to be overturned by one case.

Major Tom · Joined: 09 Jul 2006 Posts: 7562

doesn't it?

i don't know for sure, but i saw someone in these links state that walker invalidated the california constitutional amendment (which is what the ballot initiative established) on the grounds that it was federally unconstitutional.

if that is the case it sounds like a big deal and repeatable, even if not actually precedent-setting

mouse · Joined: 10 Jul 2006 Posts: 17054 Location: under the bed

it seemed to me that walker's logic would be applicable in other states, so as you say - could be something repeatable. not that i'm a legal expert.
_________________
aka: neverscared!

WheelsOfConfusion · Joined: 09 Jul 2006 Posts: 12077 Location: Unknown Kaddath

Major Tom · Joined: 09 Jul 2006 Posts: 7562

hmm - that might explain why the nominally-republican governor doesn't want to push it up the line to SCOTUS

"staunch the flow"

ShadowCell · Joined: 03 Aug 2008 Posts: 6024 Location: California

that doesn't explain why he wants to enforce Judge Walker's ruling right away and filed a brief to that effect, arguing against the suspension

on this issue Arnold really isn't with other Republicans

i suppose some people don't want this going to SCOTUS because they doubt SCOTUS would rule favorably towards gay marriage

Major Tom · Joined: 09 Jul 2006 Posts: 7562

Major Tom · Joined: 09 Jul 2006 Posts: 7562

state appellate court denies attempt to force CA to defend Prop 8

mouse · Joined: 10 Jul 2006 Posts: 17054 Location: under the bed

woohoo!

all things considered, i'd just as soon not have this supreme court rule on prop 8 - the tide is turning, and by the time another law makes its way to the supremes, they may have figured that out - not so sure they have, yet, and i'm definitely sure their reading of the constitution is a bit different from most people's.

the defenders really don't get it, though:

Major Tom · Joined: 09 Jul 2006 Posts: 7562

but, but... but they're a peaceful mob