Attorney General Kamala D. Harris submits this brief as amicus curiae pursuant to California Rules of Court, rule 8.520(f)(8). Although the Attorney General, in her official capacity, was a defendant in the underlying case in the United States District Court, she did not appeal the judgment, so she is not a party to the underlying appeal or to these proceedings. But the question certified to this Court by the Ninth Circuit, if answered affirmatively, threatens to intrude on the exercise of discretionary powers that the California Constitution and the Government Code entrust to state officials exercising executive power. Therefore, the Attorney General, whom the Constitution appoints the chief law officer of the state (Cal. Const. art. V, § 13), submits that the correct answer to the certified question is “no.” Standing alone, the role of official proponents in the exercise of the initiative power does not confer on the proponents of a successful initiative a substantive right either to defend that measure or to appeal a judgment invalidating it.
The question certified reveals two basic misunderstandings about the initiative power. First, it confuses the authority and role of “proponents” under California law with the authority and role of “the electors.” The initiative is the power of the electors, as a whole, to propose and adopt or reject laws. (Cal. Const., art. II, § 8.) The initiative power does not belong
1
to the individual, or individuals, who propose a particular initiative. Second, the initiative power is a legislative power of government. As a legislative power, the power of initiative is fully executed on adoption of the measure. And, as a legislative power, the adoption of an initiative measure does not authorize its proponents to exercise any part of the executive power of government, either to enforce the measure, to defend the measure’s validity, or to appeal a decision enjoining its enforcement. The constitutional and statutory authority to act on behalf of the state remains vested in public officials acting in an executive capacity.
Proponents of an initiative measure surely remain interested in its validity once it becomes law. And state courts recognize that interest by liberally granting proponents permissive leave to intervene (and to participate as amicus curiae) in cases challenging the validity of a successful initiative measure. In other cases, the validity of a measure may affect the lives of initiative proponents (or other members of the public) in a personal way that would permit them to sue or to defend their own legal interests in court. But once an initiative measure has become the law of the state – just as with laws passed by the Legislature – only public officials exercising the executive power of government have the legal authority to represent the state’s interest and to decide whether to defend or to appeal an adverse judgment in the name of the state. California law affords an initiative’s proponents no right to defend the validity of a successful initiative measure based only on their role in launching an initiative process.
If you would like to read Kamala Harris' Amicus Brief in full download the pdf file here.
Showing posts with label BROWN. Show all posts
Showing posts with label BROWN. Show all posts
Tuesday, June 14, 2011
Monday, June 13, 2011
Prop 8: Judge Ware hears case on Vaughn Walker
I'm going to set you up with a couple of inserts from different articles related to what's going on with the case. Or you can follow AFER on Twitter to see the live updates posted during the trial.
Judge says there's no evidence that gay judge who heard Prop 8 case wanted to marry
Quick ruling expected on gay jurist in Proposition 8 case
Prop 8: Double-edged diversity
California Court hears challenge over gay Judge
(Read the rest @ SFIST.COM)
Lawyer Target CA Gag Marriage Ruling by Gay Judge
Judge says there's no evidence that gay judge who heard Prop 8 case wanted to marry
U.S. District Chief Judge James Ware said during a court hearing that there was no evidence that retired Judge Vaughn R. Walker ever wished to marry his partner, a physician.
Sponsors of Proposition 8, the 2008 ballot measure that resurrected a ban on same-sex marriage, argue that Walker’s ruling against the marriage ban should be wiped from the books because his long-term relationship created an interest in the outcome of the case.
(Read the rest here at the LA TIMES)
Judge James Ware proves combative at Proposition 8 Hearing
Ware, who was named chief judge after Judge Vaughn Walker retired earlier this year, quickly put the heat on Charles Cooper, the attorney for Prop. 8 supporters. Ware asked Cooper about recusal rules, and the attorney argued that Judge Walker should have declared that he was in a long-term, same-sex relationship and recused himself from the case.
But Ware didn’t seem to find much credibility in that argument, then asking Cooper how he could know if Judge Walker wanted to overturn Prop. 8 so that he could get married. “You can be in a long-term relationship with it being for the purposes of marriage,” Ware told Cooper.
Cooper replied: “There are platonic friendships that are long-term in nature that do not normally lead to marriage.” Observers in the courtroom burst into laughter.
Ware retorted: “"What fact would you cite to the court that Judge Walker had an interest in changing his relationship [into a marriage]? … to say that he maintained a long-term relationship doesn’t put him in the shoes of what the plaintiffs were doing."
The judge also didn’t seem to buy into the argument that a gay judge had any more bias than a straight judge. He asked Cooper if a judge who had been sexually assaulted would be required to disclose her victim status in a case involving rape.
Theodore Boutrous Jr., attorney for the American Foundation for Equal Rights (AFER), which is leading the fight against Prop. 8, told Judge Ware that the motion was frivolous.
Boutrous said the motion targets Judge Walker’s sexual orientation and stereotypes by saying the Walker’s romantic relationship is indistinguishable from that of other gay people. He also said it was widely known that Walker was gay, but was never made an issue by Prop. 8 supporters during the initial trial.
(Read the rest @ the San Diego Gay & Lesbian News)
Quick ruling expected on gay jurist in Proposition 8 case
U.S. District Chief Judge James Ware, who is deciding a request by backers of Proposition 8 to throw out last August’s ruling against the ballot measure, said he would try to issue a ruling in the next 24 hours.
“This is the first case where a same-sex relationship is the subject for disqualifying a judge, so it is important that we treat it seriously and get it right,” Ware said.
Ware did not disclose how he would rule, but many of his comments during arguments suggested he would rule that retired Judge Vaughn R. Walker was not required to step aside when he was assigned to hear the Proposition 8 challenge.
(Read the rest again @ LA TIMES)
Prop 8: Double-edged diversity
Should the federal judge who struck down Proposition 8 have his ruling nullified because he's in a relationship with a man? The easy answer is no. This is just a variation on the argument that Judge Vaughn R. Walker should have recused himself from the case because he's gay. It's no more valid than the first argument.But the conservatives challenging Walker's role in the case are, ironically, drawing on a theory of diversity more often heard from liberals. The argument goes something like this: Having a judge who is African American or a woman or a "wise Latina" changes the way justice is administered. Life experience, in this view, is a valuable credential.
(Read the rest here @ LA TIMES)
California Court hears challenge over gay Judge
Chief U.S. District Judge James Ware heard the case on Monday, taking over since Walker has retired.
Ware, an African-American judge nominated to the bench by George H.W. Bush, sharply questioned Charles Cooper, the attorney defending California's marriage ban.
"If a reasonable person thought a black judge should recuse himself from a civil rights case, that would be sufficient to recuse the judge?" Ware asked.
"No, your honor," Cooper responded.
(Read the rest @ Reuters)
Supporters of Prop 8, who are still fighting a losing battle in the California courts over an unconstitutional law that neither the governor nor the attorney general care to support, are back in federal court today in San Francisco to air their complaints about Judge Vaughn Walker, the man who first ruled that Prop 8 was unconstitutional. Their complaints are that Judge Walker's ruling should be invalidated based on the fact that he had a bias in the case, being himself a gay man who potentially wanted to be legally married; and they have a separate complaint about Walker's use of videos of the trial in public speeches, claiming the video was supposed to be sealed after the trial.
(Read the rest @ SFIST.COM)
Lawyer Target CA Gag Marriage Ruling by Gay Judge
Lawyers for backers of the voter-approved ban asked Chief U.S. District Judge James Ware to vacate a decision issued by his predecessor last year that declared Proposition 8 an unconstitutional violation of gay Californians' civil rights.They maintained that former Chief Judge Vaughn Walker should have recused himself from the case or disclosed his relationship because he and his partner stood to personally benefit from the verdict.
"It now appears that Judge Walker, at the time the complaint was filed and throughout this litigation, occupied precisely those same shoes as the plaintiffs," attorney Charles Cooper said.
Ware sharply questioned Cooper on why he assumed Walker had any intention of getting married just because he was in a decade-old relationship.
(Read the rest @ FORBES)
Same-sex marriage hearing focusing on gay judge
Walker publicly revealed after he stepped down in February that he is in a 10-year relationship with a same-sex partner. Rumors that he was gay had circulated before and after he presided over the Proposition 8 trial in early 2010.
Ted Olson, one of the lawyers for the two same-sex couples who successfully sued to overturn the measure, said he was unaware of any other cases in which a ruling was challenged because of the issuing judge's sexual orientation. He called the move to disqualify Walker frivolous and demeaning and said that expecting judges to reveal parts of their personal lives when hearing gay rights cases would set a dangerous precedent.
"What would a judge do who was Mormon knowing the Mormon Church took such an active role" in campaigning for Proposition 8, Olson asked. "What would a judge who had a nephew or niece or son or daughter who was gay or lesbian do? We have an unlimited number of permutations of what a judge might be asked to disclose."
Many legal scholars have said they do not expect Ware to overturn Walker's decision. They point out that while having a judge's impartiality questioned because he is gay is new territory, efforts to get women judges thrown off gender discrimination cases or Hispanic judges removed from immigration cases have failed.
Nonetheless, in a fundraising appeal to Proposition 8 supporters Friday, Ron Prentice, chairman of the religious coalition that qualified the gay marriage ban for the November 2008 ballot, said, "We are much more hopeful for success with a judge presiding over the case who has greater respect for legal precedent and the rule of law."
Saturday, May 14, 2011
Prop 8.. oh you mean Prop H8
Not sure how many of you are following prop 8 right now. You may not be in California, you might be else where. I used this blog for other things, but decided to take down the postings, one because they were old which completely contradicts the name of the blog itself, and two because the only thing I won't stop, can't stop doing is keeping up on what's going on with Prop 8. Reading articles pertaining to both sides of the story and I have to say some piss me off both ways. Right now I'm going to catch you up to speed.
Back in mid-late 2010 Kris Perry and Sandy Stier challenged prop 8 in District court before Judge Vaughn Walker. His ruling was this:
" Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional. "
He did however allow a stay for Prop 8 to be appealed, in which of course it was. This sent the case "Perry vs. Schwarzenegger" (as it was classified as then) to the 9th Circuit Court of Appeals (or Appellate Court)... You keeping up? Good, moving along.
The opening arguments were shown broadcasted live in a two hour part which you may find here if you would like to see it here:
Before this case even got to the 9th Circuit Court, proponents (who have already lost the first battle) asked Judge Stephen Reinhardt to recuse himself, which he refused, based on the fact that his wife is the Director of the American Civil Liberties Union (ACLU) of Southern California for the last 38 years. When denying to recuse himself he said his objections were due to “outmoded conception of the relationship between spouses.” As well as making note that he has been a 9th Circuit Judge since 1980. He also said, “My wife and I share many fundamental interests by virtue of our marriage, but her views regarding issues of public significance are her own, and cannot be imputed to me, no matter how prominently she expresses them.” He then went on to speak about the differences in opinions that are commonly held in marriages especially, the fact that his wife's opinion does not dictate his own.
(One battle down.)
Now after these opening arguments have taken place the battle takes off. As you will see in the video posted above (you might want to move to the second hour where the arguments really begin) that the proponents of Prop 8 have really no argument. One moment it seems like they are arguing to protect marriage from divorce, and in another instance they are arguing that marriage is for procreation only, which backfires when it is brought to their attention that there are heterosexual marriages out there that are physically unable to produce children.
When a "law" or "measure" is challenged, its automatically referred to as case vs. Governor. Meaning the one to defend the case should have been either Gov. Arnold Schwarzenegger (at the time) or his Attorney General, Jerry Brown. Both, at the time, Gov. Schwarzenegger and A.G. Brown refused to defend Prop 8. This left a vital question in the appeal. Are the supporters of Prop 8, those who put the measure on the ballot back in 2008, even allowed to appeal Judge Vaughn Walkers ruling? We'll get to that a little later. Continuing on...
Since the beginning of the case, as you may know, we held elections and have a new Governor and Attorney General. Gov. Jerry Brown (haha, promotion), and Attorney General Kamala Harris. So because we switched out Governors the case name becomes Perry vs. Brown. However, I personally think, it would be more fun if it were... ready for this? Perry vs. Jerry... but that's besides the point and a lame joke.
Behind the scenes after the initial arguments before the 9th Circuit Judges. Proponents of prop 8 stretched as far as they could to find anything in their favor, each time losing a little more and making themselves look like an even bigger bunch of assholes. When they are asked how anyone would ACTUALLY BE HARMED, their response, "I Don't Know."
District Judge Vaughn Walker retired after that case. Later to come out as an openly gay man in a relationship with his partner of 11 years, a doctor I believe. Thus, causing the proponents of Prop 8 (Protect Marriage Act for those not following yet) to call his ruling bias because he himself is gay and overturning Prop 8 would allow him to finally marry his partner. Too bad it was legal back before 2008's Prop 8 initiative made it illegal. He could have done it then.
This would be the same as not allowing a black judge to rule over a human rights case, or a woman judge over a women's rights case. Besides if a hetero judge in a hetero "legal" marriage ruled in favor of Prop 8 instead of Judge Vaughn Walker, wouldn't that be just as bias? Moving forward...
So 9th Circuit came to the conclusion they weren't even sure if Proponents not being the Gov., or A.G., were even allowed to appeal. So they send that part of the case over to the California Supreme Court, which hearing will be coming up later this year (2011). A.G. Kamala Harris, the first to make a proactive move in helping the opponents of Prop 8 (Perry and Stier), submitted an amicus brief recently stating in it:
“California law affords an initiative’s proponents no right to defend the validity of a successful initiative measure based only on their role in launching an initiative process,”
“would rob the electors of power by taking the executive power from elected officials and placing it instead in the hands of a few highly motivated but politically unaccountable individuals.”
In this she was saying, that the proponents for Prop 8 have no right to appeal. That she and the Governor have refused to defend the Prop and by allowing the proponents to defend it would compromise the constitutional responsibilities delegated to the Governer and herself. You can visit her site here and see what she has to say. It may take a little digging, but I am directing you to her general site alone, because if you live in California its vital to know what's going on all together, not just specific subjects.
A Bill was recently submitted to a Senate panel May 3, 2011 that would give initiative proponents legal standing to defend voter approved ballot measures against legal challenges, (the main concern of the 9th Circuit and the reason for them forwarding to the Supreme Court Also, the reason A.G. Kamala Harris submitted her amicus brief, over the Prop 8 issue, or Perry vs. Brown case) but the bill was rejected by a 3-2 vote.
(Another loss for proponents of Prop 8)
Finally the proponents come down to the point that District Judge Vaughn Walkers ruling should be vacated due to his ruling being bias, which it was not. They also attacked Judge Vaughn Walker for a tape showing of the original District court hearing in which Judge Vaughn Walker ruled Prop 8 as unconstitutional. This tape argument I want to break down for you a little bit just to show you a little more of the 'asshole' tendencies of Prop 8 proponents...
Prop 8 proponents asked that the court hearings in which Prop 8 was ruled against would not be publicly broadcasted. Judge Vaughn Walker agreed to not broadcasting it live, but also state that he would allow it to be taped. Judge Vaughn Walker after retiring was giving a lecture at which time he showed a five or six minute clip of the case. When Prop 8 proponents found out they argued that he should surrender any and all copies because of his decision not to broadcast it and that he shouldn't have shown ANYONE the tapes. Now here's the thing, it was ruled a while back that any all court recordings were to be viewable by the public at any time to keep faith in the Judicial System as well as following and not infringing the 1st Amendment Constitutional Rights.
(Yet another...)
As I said before, the proponents for Prop 8 have been reaching and reaching for any and all angles they can. In the process have made them look more desperate and pathetic. A group of people with a specific interest pertaining to that group and group alone should not have the power to strip or hinder the rights of another group. If the Supreme Court rules they are not allowed to appeal the Prop 8 ruling as unconstitutional, the appeal will be dismissed and the LGBT community will be free to marry as they please. *Fingers Crossed*
As for protecting Marriage lets look at some actual facts of Marriage today as it is now...
So what are they protecting? The right to enter a union and break that union at free will? Visit NationMaster to see the divorce rates from country to country. Remember how many billion people are in the world, if you do the math you might shit yourself.
If you want to follow prop 8 and its trials please subscribe to my blog. I will also be touching on other subjects as well, not all political but stuff I find might be at anyone's interest.
Thanks - Jon Scott
Back in mid-late 2010 Kris Perry and Sandy Stier challenged prop 8 in District court before Judge Vaughn Walker. His ruling was this:
" Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional. "
He did however allow a stay for Prop 8 to be appealed, in which of course it was. This sent the case "Perry vs. Schwarzenegger" (as it was classified as then) to the 9th Circuit Court of Appeals (or Appellate Court)... You keeping up? Good, moving along.
The opening arguments were shown broadcasted live in a two hour part which you may find here if you would like to see it here:
Before this case even got to the 9th Circuit Court, proponents (who have already lost the first battle) asked Judge Stephen Reinhardt to recuse himself, which he refused, based on the fact that his wife is the Director of the American Civil Liberties Union (ACLU) of Southern California for the last 38 years. When denying to recuse himself he said his objections were due to “outmoded conception of the relationship between spouses.” As well as making note that he has been a 9th Circuit Judge since 1980. He also said, “My wife and I share many fundamental interests by virtue of our marriage, but her views regarding issues of public significance are her own, and cannot be imputed to me, no matter how prominently she expresses them.” He then went on to speak about the differences in opinions that are commonly held in marriages especially, the fact that his wife's opinion does not dictate his own.
(One battle down.)
Now after these opening arguments have taken place the battle takes off. As you will see in the video posted above (you might want to move to the second hour where the arguments really begin) that the proponents of Prop 8 have really no argument. One moment it seems like they are arguing to protect marriage from divorce, and in another instance they are arguing that marriage is for procreation only, which backfires when it is brought to their attention that there are heterosexual marriages out there that are physically unable to produce children.
When a "law" or "measure" is challenged, its automatically referred to as case vs. Governor. Meaning the one to defend the case should have been either Gov. Arnold Schwarzenegger (at the time) or his Attorney General, Jerry Brown. Both, at the time, Gov. Schwarzenegger and A.G. Brown refused to defend Prop 8. This left a vital question in the appeal. Are the supporters of Prop 8, those who put the measure on the ballot back in 2008, even allowed to appeal Judge Vaughn Walkers ruling? We'll get to that a little later. Continuing on...
Since the beginning of the case, as you may know, we held elections and have a new Governor and Attorney General. Gov. Jerry Brown (haha, promotion), and Attorney General Kamala Harris. So because we switched out Governors the case name becomes Perry vs. Brown. However, I personally think, it would be more fun if it were... ready for this? Perry vs. Jerry... but that's besides the point and a lame joke.
Behind the scenes after the initial arguments before the 9th Circuit Judges. Proponents of prop 8 stretched as far as they could to find anything in their favor, each time losing a little more and making themselves look like an even bigger bunch of assholes. When they are asked how anyone would ACTUALLY BE HARMED, their response, "I Don't Know."
District Judge Vaughn Walker retired after that case. Later to come out as an openly gay man in a relationship with his partner of 11 years, a doctor I believe. Thus, causing the proponents of Prop 8 (Protect Marriage Act for those not following yet) to call his ruling bias because he himself is gay and overturning Prop 8 would allow him to finally marry his partner. Too bad it was legal back before 2008's Prop 8 initiative made it illegal. He could have done it then.
This would be the same as not allowing a black judge to rule over a human rights case, or a woman judge over a women's rights case. Besides if a hetero judge in a hetero "legal" marriage ruled in favor of Prop 8 instead of Judge Vaughn Walker, wouldn't that be just as bias? Moving forward...
So 9th Circuit came to the conclusion they weren't even sure if Proponents not being the Gov., or A.G., were even allowed to appeal. So they send that part of the case over to the California Supreme Court, which hearing will be coming up later this year (2011). A.G. Kamala Harris, the first to make a proactive move in helping the opponents of Prop 8 (Perry and Stier), submitted an amicus brief recently stating in it:
“California law affords an initiative’s proponents no right to defend the validity of a successful initiative measure based only on their role in launching an initiative process,”
“would rob the electors of power by taking the executive power from elected officials and placing it instead in the hands of a few highly motivated but politically unaccountable individuals.”
In this she was saying, that the proponents for Prop 8 have no right to appeal. That she and the Governor have refused to defend the Prop and by allowing the proponents to defend it would compromise the constitutional responsibilities delegated to the Governer and herself. You can visit her site here and see what she has to say. It may take a little digging, but I am directing you to her general site alone, because if you live in California its vital to know what's going on all together, not just specific subjects.
A Bill was recently submitted to a Senate panel May 3, 2011 that would give initiative proponents legal standing to defend voter approved ballot measures against legal challenges, (the main concern of the 9th Circuit and the reason for them forwarding to the Supreme Court Also, the reason A.G. Kamala Harris submitted her amicus brief, over the Prop 8 issue, or Perry vs. Brown case) but the bill was rejected by a 3-2 vote.
(Another loss for proponents of Prop 8)
Finally the proponents come down to the point that District Judge Vaughn Walkers ruling should be vacated due to his ruling being bias, which it was not. They also attacked Judge Vaughn Walker for a tape showing of the original District court hearing in which Judge Vaughn Walker ruled Prop 8 as unconstitutional. This tape argument I want to break down for you a little bit just to show you a little more of the 'asshole' tendencies of Prop 8 proponents...
Prop 8 proponents asked that the court hearings in which Prop 8 was ruled against would not be publicly broadcasted. Judge Vaughn Walker agreed to not broadcasting it live, but also state that he would allow it to be taped. Judge Vaughn Walker after retiring was giving a lecture at which time he showed a five or six minute clip of the case. When Prop 8 proponents found out they argued that he should surrender any and all copies because of his decision not to broadcast it and that he shouldn't have shown ANYONE the tapes. Now here's the thing, it was ruled a while back that any all court recordings were to be viewable by the public at any time to keep faith in the Judicial System as well as following and not infringing the 1st Amendment Constitutional Rights.
(Yet another...)
As I said before, the proponents for Prop 8 have been reaching and reaching for any and all angles they can. In the process have made them look more desperate and pathetic. A group of people with a specific interest pertaining to that group and group alone should not have the power to strip or hinder the rights of another group. If the Supreme Court rules they are not allowed to appeal the Prop 8 ruling as unconstitutional, the appeal will be dismissed and the LGBT community will be free to marry as they please. *Fingers Crossed*
As for protecting Marriage lets look at some actual facts of Marriage today as it is now...
- Nearly 70% of all married men and 60% of all married women have had affairs. That's two out of every three marriages.
- Every 10-13 seconds a couple divorces.
- More than 90% of divorces involve infidelity
So what are they protecting? The right to enter a union and break that union at free will? Visit NationMaster to see the divorce rates from country to country. Remember how many billion people are in the world, if you do the math you might shit yourself.
If you want to follow prop 8 and its trials please subscribe to my blog. I will also be touching on other subjects as well, not all political but stuff I find might be at anyone's interest.
Thanks - Jon Scott
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