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prop 8 overturned
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Major Tom



Joined: 09 Jul 2006
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PostPosted: Wed Aug 18, 2010 6:30 pm    Post subject: Reply with quote

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
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nathan



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PostPosted: Wed Aug 18, 2010 10:31 pm    Post subject: Reply with quote

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.
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Major Tom



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PostPosted: Wed Aug 18, 2010 11:19 pm    Post subject: Reply with quote

Quote:
24 (a)Intervention of Right. On timely motion, the court must permit anyone to intervene who:
(1) is given an unconditional right to intervene by a federal statute; or
(2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movantís ability to protect its interest, unless existing parties adequately represent that interest.


i don't understand why "harm" would necessarily be required to satisfy the requirement of "interest" as stated in 24a2.

i'm not clear on that interpretation of the specific language here, nor have i read the full arguments, but i can see the argument being made that those representatives of the voters for the ballot initiative have a vested interest in upholding the outcome of their successful votes and, in the absence of existing parties that adequately represent that interest, be granted intervenor status accordingly.

none of which says anything about the constitutionality of the outcome of that initial vote, of course.
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Major Tom



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PostPosted: Thu Aug 19, 2010 12:45 pm    Post subject: Reply with quote

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".
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nathan



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PostPosted: Thu Aug 19, 2010 5:31 pm    Post subject: Reply with quote

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.
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WheelsOfConfusion



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PostPosted: Thu Aug 19, 2010 5:35 pm    Post subject: Reply with quote

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.
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Major Tom



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PostPosted: Thu Aug 19, 2010 6:10 pm    Post subject: Reply with quote

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
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mouse



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PostPosted: Thu Aug 19, 2010 6:18 pm    Post subject: Reply with quote

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.
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WheelsOfConfusion



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PostPosted: Thu Aug 19, 2010 6:42 pm    Post subject: Reply with quote

Major Tom wrote:
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.

It would have had to go through in the appellate courts to apply nationwide, but since this was at the California level it only applies to federal California and lower courts. Same thing happened with the Dover trial in Pennsylvania. It was a federal court's ruling that the school's policy was unconstitutional, but because that's as far as it got the case doesn't technically set precedent beyond that district.
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Major Tom



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PostPosted: Thu Aug 19, 2010 6:54 pm    Post subject: Reply with quote

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

"staunch the flow"
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ShadowCell



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PostPosted: Thu Aug 19, 2010 6:58 pm    Post subject: Reply with quote

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
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Major Tom



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PostPosted: Thu Aug 19, 2010 8:53 pm    Post subject: Reply with quote

ShadowCell wrote:
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


no, arnold is not an entirely run-of-the-mill conservative republican ogre, and i can't claim to know how much of the writing he saw on the wall, but it's possible he was cutting his losses and gaining some political goodwill where he could get it, while he could get it, by filing that brief before he leaves office.

and still it's possible that the chance to become the republican governor who essentially caused gay marriage to be declared constitutional nationwide factored in the decision not to appeal walker's ruling
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Major Tom



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PostPosted: Fri Sep 03, 2010 11:11 pm    Post subject: Reply with quote

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



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PostPosted: Tue Sep 07, 2010 5:33 pm    Post subject: Reply with quote

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:
Quote:
"When the people peacefully enact a constitutional provision and the attorney general refuses to give them meaningful review in the federal judiciary, then you have a veto by the executive branch," said the institute's lawyer, Kevin Snider. "That is a constitutional crisis, usurping the power of the people."


but the court said it's not constitutional. the people don't get to just trample on other people, majority or not.
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Major Tom



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PostPosted: Tue Sep 07, 2010 5:35 pm    Post subject: Reply with quote

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