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Lambda Analysis of the Meg Whitman Impact on Prop 8 Appeals

Melanie Nathan; August 23,  2010;-

Meg Whitman’s inarticulate Prop 8 response:  - “The issue right now is, as I understand is ‘Will Proposition 8 have the appropriate support to actually make an appeal to the circuit court of appeals? And I think the governor, the attorney general today has to defend the constitution and has to enable the judicial process to go along and has to enable an appeal to go through.  So if I was governor, I would give that ruling standing to be able to appeal to the circuit court;” emphasizes her lack of qualification for Governor, as she clearly has no grasp whatsoever on the law and how it works.

However she is danger personified and as a team with Cooley for Attorney General, potentially lethal to the California quest for marriage equality and the final demise of Prop 8.

While current California Governor Schwarzenegger and AG  Jerry Brown (running as Whitman’s Gubernatorial opponent) have decided not to appeal on the state’s behalf, if  Whitman wins could she make serious waves and  actually impact Prop 8.

Lambda Legal’s Legal Director Jon Davidson, suggests that if Whitman is  elected- she is only sworn in on January 3, a month after the December 6 hearing.  However he points out that the Whitman and Cooley camps can always figure out some legal maneuvers to impact the federal Prop 8 case.

Davidson’s analysis:

“At the time of the oral argument that has been scheduled for the week of December 6th, even were Whitman or Cooley to have won the election, they will not have taken office – the new officeholders don’t take office until Jan. 3. 2011.

In addition, at that point, the time to file an appeal from Judge Walker’s ruling will have long passed.  So, even were they to win, they would not be able to appeal Judge Walker’s ruling if Schwarzenegger and Brown do not – and they have indicated they will not.  In addition, Whitman and Cooley would not be able to participate in the oral arguments as parties.

They might seek to file amicus (friend-of-the-court briefs).  The deadline for filing such briefs is 7 days after the brief is due from the party you are supporting.  Amicus briefs in support of the proponents of Prop. 8 are due September 24th.

It would be unusual for a candidate for political office to file an amicus brief on a measure that they might be in more of a position to weigh in on were they elected, though I guess it could happen.

If they get elected, Whitman and/or Cooley might also seek to file an amicus brief after their election or after they are sworn in, which would be after the oral argument.  They would need to seek permission to file late.  There is no way of knowing whether the Ninth Circuit judges hearing the case would grant such a request to file late.

Once the 3-judge panel of the Ninth Circuit issues its decision, a party may ask that the case be reheard by the original 3-judge panel or, in the alternative that it be heard ‘en banc’ by a group of 11 randomly-assigned judges out of the 27 judges on the Ninth Circuit. I believe the presiding judge on the Ninth Circuit — Judge Alex Kosinzki — would be on the en banc panel regardless, if en banc hearing is granted.

After that, there is a very rarely procedure where someone could ask for a hearing by all 27 judges on the Ninth Circuit.  If no petition for rehearing and/or rehearing en banc is made, or if it’s made and denied, or if it’s granted, after it’s decided, then a party can ask the Supreme Court to hear the case.

If the Prop 8 proponents are denied standing and there has been no other appeal, they could at least appeal the denial of standing.  If the Ninth Circuit denied standing but went on to reach the merits of the case against them, the Prop 8 proponents would presumably try to brief the merits as well as part of their standing appeal.

So all said and done; the LGBT community must fight for Jerry Brown and Kamala Harris to the offices of  Governor and Attorney General respectively.

by Melanie Nathan

Picture: Prop 8 Plaintiffs

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