Asking for Speed on Prop 8 Appeal

Counsel for plaintiffs in Perry v. Schwarzenegger, the Proposition 8 lawsuit, are asking the 9th Circuit to proceed quite swiftly with the appeal in the case -- if the 9th Circuit decides that there will be an appeal.

As soon as Judge Vaughn R. Walker's decision holding Proposition 8 unconstitutional was announced on Aug. 4, the proponents of Prop 8, ProtectMarriage.com-Yes on 8, filed their appeal with the US Court of Appeals for the 9th Circuit.  The day before the opinion was released, anticipating that they would lose, they filed a motion with Judge Walker asking him to stay his ruling pending appeal.  Responding to the motion, counsel for plaintiffs pointed out that under Supreme Court precedents, proponents might not have standing to appeal the ruling unless one of the named defendants with standing, such as Gov. Arnold Schwarzenegger or Attorney General Jerry Brown, decided to appeal. 

Judge Walker briefly stayed his opinion in order to consider the motion, calling for all parties to submit their written arguments within a few days.  On August 11, he issued an order denying the motion for a stay, having found that none of the tests for granting a stay at the request of intervenors had been met.  Among his findings was that because the intervenors' standing to appeal was questionable, they could not satisfy the first test -- likelihood that they would succeed in getting Walker's decision reversed on appeal. Walker ordered that the effect of his decision be stayed until Aug. 18 at 5 p.m., anticipating that intervenors would seek a stay from the 9th Circuit and allowing some time for an "orderly" consideration of that request.

The intervenors promptly sought a stay from the 9th Circuit's motion panel, which announced that parties opposed to a stay had to get their papers in by Friday night the 13th, with any response from intervenors filed by 9 am today (Aug 16).  Clearly, the motion panel was determined to reach a decision on the stay motion before Judge Walker's temporary stay expired.  Plaintiffs and named-defendants (who oppose the stay) filed their papers Friday night. Intervenors filed their papers this morning with just minutes to spare.

[Tea leaf reading time?  Does the motion panel's very tight schedule signal a predisposition to grant the motion?  I don't think so, but it is hard to avoid that impression....  Requiring a party to file responsive papers just hours after a motion is filed - especially a motion supported by a very lengthy written argument - seems a bit precipitous unless there is some agenda behind it.  On the other hand, the judges have to know that the arguments on both sides of the motion are going to be roughly the same as they were before Judge Walker, so this is about modifying existing papers, not writing new ones from scratch.]

In their papers filed in opposition to the stay on Friday night, plaintiffs' counsel stressed even more forcefully the point they had made in their papers filed with Judge Walker about the standing issue, as well as providing a concise, cogent explanation of why it was unlikely proponents could succeed on the merits of an appeal.  Named defendants have given no indication that they intend to appeal Judge Walker's ruling, and both the governor and the attorney general have accepted the court's ruling and announced their eagerness to implement the decision by allowing same-sex marriages to resume in California - thus clearly undercutting any argument that the state government feels its interests or those of its citizens would be harmed by allowing same-sex marriages to resume.

But, hedging their bets, plaintiffs' counsel concluded their submission with an alternative request to the court:  "In the event that the Court decides to issue a stay, Plaintiffs respectfully request that this Court expedite this appeal to the greatest extent possible.  Expedited treatment would be warranted because, if a stay is granted, Plaintiffs will continue to suffer irreparable harm each day that Proposition 8 remains in force."  Indeed, the Supreme Court has held in the past that deprivation of a constitutional right is the very essence of an irreparable injury!  The expedited schedule they suggest is:

1.  Proponents' opening brief be filed by September 15, 2010

2.  Plaintiffs' answering brief be filed by October 15, 2010

3.  Proponents' reply brief, if any, be filed by October 29, 2010

4.  Oral argument be heard no later than November 15, 2010.

This would be swift, indeed, by the standards of appellate litigation.  But it makes sense.  The parties know what their arguments are, so getting the papers together for this rapid-fire filing schedule would not be a big deal.  The real timing issue is how long it would take the 9th Circuit to reach a decision, and that's a wild card, since the 9th Circuit has not adopted rules mandating that an opinion be issued within a specified time after oral argument is concluded and, depending on the legal complexity of a case and the possibility of division among the appeals court judges, could take a long time to resolve at that level.

Comments

[Art Leonard]

Both sides got what they asked for. The motions panel granted a stay, but also granted an expedited schedule, directing the appellants to address the standing issue in their brief (and perhaps signaling an inclination to dismiss the appeal on standing grounds).

The schedule is close to what the plaintiff-appellees request, with oral argument to be scheduled during the week of December 6.