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Archives – November, 2011
They’re back: Opponents of FAIR Education Act start process for 2012 ballot initiative
By Adam Bink
Well, as if this day couldn’t get any more hectic, it just did. And, on the subject of California ballot initiatives, funny enough.
Today, the organizations opposing the FAIR Education Act (also known as SB48) requested title and summary from the Attorney General, which is the first step towards placing an initiative on the November 2012 ballot to repeal it. Once they get it, they will have 150 days to collect 504,760 signatures to place the measure on the ballot. We at Courage Campaign expected this coming sooner or later. You may remember the same people tried and failed to qualify the law for a ballot referendum. This is different, and is more or less another shot at the same goal.
The FAIR Education Act is a law taking effect in January which requires schools to integrate factual information about social movements, current events and history of people of color, people with disabilities and LGBT people into existing social studies lessons. It also prevents schools from adopting instructional materials that discriminate.
For some background on this, their chances to get it on the ballot and what you can do to stop it (especially for those who are new here), here’s what I wrote a few weeks ago:
An initiative requires collection of the same number of signatures as a referendum (504,760) but one gets more time in which to get complete the process (90 days for a referendum to get title and summary, collect signatures and turn them in vs. 150 days for an initiative). In addition, for an initiative, the 150-day clock starts after title and summary is received from the attorney general, whereas with a referendum that time counts against the 90 days (meaning one must wait for title and summary before collecting signatures, but the 90-day clock has already started ticking). The initiative must also qualify at least 131 days before the next statewide election at which the sponsor is attempting to qualify the measure — in this case, before November 6, 2012. They also must start from scratch — they cannot use the signatures they collected the first time around. There are also additional deadlines depending on how many signatures are collected and which counting method is used by elections officials to verify signatures.
Translation of all of that. The Stop SB 48 campaign claims they collected 497,404 signatures. Let’s say for the moment that isn’t bluster and it’s accurate. A general rule of thumb on collecting signatures is that a percentage (some say around 20%) are invalid for one reason or another — and that is acknowledged below by the campaign itself. So they fell fairly short, even if they aren’t exaggerating. If they get an extra 60 days to collect signatures, will they make it? Maybe. They are facing some tight deadlines, and a lot of that depends on different factors — how much money they raise this time to employ paid signature-gatherers since (with very, very few exceptions) all-volunteer or mostly volunteer efforts don’t make it; whether, after our successful decline-to-sign campaign was mounted, the public will be fooled by the lies that were and will be told by the campaign; how many resources our side has to fight the effort; whether, after the law takes effect in January, the public and/or people who signed the referendum the first time realizes the sky hasn’t and won’t fall on kids in California schools; on and on.
We’ll be keeping a close eye on this one. It goes without saying that we will need everyone’s help to beat this back a second time. If you haven’t chipped in to our decline-to-sign campaign efforts, please throw some coin in. If you haven’t signed up for updates on the FAIR Education Act and our work to defend it, please do so if you’re interested. Over 12,000 Courage members across California helped beat this back the first time through community education and confronting signature gatherers, along with our coalition partners at EQCA, GSA Network and others. For more on that, check out the link at top. We’ll need everyone’s help again.
The formal request for title and summary can be found here. They simply want to delete “sexual orientation” or “LGBT” wherever they find it in the statute. No kidding.
Needless to say, Courage Campaign, its members and all of you worked hard to keep this off the ballot the first time. They failed, in no small part due to everyone pulling together and telling the truth about what the FAIR Education Act does. Let’s do it again!
It you’re new to Prop8TrialTracker, you can find all our coverage here on the blog regarding the FAIR Education Act and efforts to protect it by clicking here.
Below the click, you can find Courage Campaign’s statement on today’s news.
26 Comments November 17, 2011
BREAKING: CA Supreme Court rules Prop 8 proponents do have standing to appeal
By Jacob Combs
This morning, the CA Supreme Court ruled that the proponents of Prop 8 do have standing under state law to appeal the decision in Perry v. Brown:
…In response to the question submitted by the Ninth Circuit, we conclude, for the reasons discussed above, that when the public officials who ordinarily defend a challenged state law or appeal a judgment invalidating the law decline to do so, under article II, section 8 of the California Constitution and the relevant provisions of the Elections Code, the official proponents of a voter-approved initiative measure are authorized to assert the state’s interest in the initiative’s validity, enabling the proponents to defend the constitutionality of the initiative and to appeal a judgment invalidating the initiative.
For background on how we came to this point, what today’s opinion means and where we go from here, Prop 8 was declared unconstitutional by a California district court in August 2010. Both the duly elected governor and attorney general at the time (Arnold Schwarzenegger and Jerry Brown, respectively) as well as the governor and attorney general elected in the 2010 elections (Jerry Brown and Kamala Harris, respectively) have declined to represent the state in the case, believing Prop 8 to be unconstitutional. So the proponents of Prop 8 (ProtectMarriage.com et al, who put the measure on the ballot and worked to pass it in the first place) stepped forward to do so.
The case was appealed to the 9th Circuit, which not only heard arguments on whether Prop 8 is constitutional or not, but whether the proponents — unelected, unaccountable ProtectMarriage.com et al — even have standing to defend Prop 8 in the first place. The 9th Circuit decided to ask the California Supreme Court whether or not proponents of ballot initiatives have standing under California law to represent the entire state when the state’s elected officials refuse to do so. Today, the Court responded to that question. The CA Supreme Court’s decision is not binding on the 9th Circuit: it’s really more of an advisory opinion. However, it is a very influential opinion that the 9th Circuit will take very seriously.
Why is this all important? Because there are essentially two bites at the apple to take down Prop 8: constitutionality and standing. Whether the courts find Prop 8 to be constitutional is critically important for obvious reasons. But if the 9th Circuit rules that the proponents of Prop 8 do not have standing and we win on appeal, Prop 8 will end. Beyond that, it has critical implications for the ballot initiative process in California and who represents the state.
As for next steps, many legal observers believe the 9th Circuit is likely to adopt the CA Supreme Court’s opinion and say Prop 8′s proponents do have standing to appeal. That’s not for certain, however, since the proponents could have standing under California law but not in federal court (i.e., a federal appeals court). It’s uncertain when the 9th Circuit will issue its ruling, though many legal observers believe it will be sometime in the next few months, and it may even hold another hearing for additional arguments.
The full ruling can be found here. Check back throughout the day for updates and analysis.
Update 11: Over at SCOTUSBlog, Lyle has a lengthy analysis piece worth a read. It’s complex, but interesting.
Update 10: In response to a question over e-mail from Adam Bink on whether proponents of Prop 8 and future ballot measures are entitled to taxpayer-funded reimbursement from the state of California, Lambda Legal’s Jon Davidson replied:
It’s quite rare for the California Governor and Attorney General to decline to defend a state law, whether passed at the ballot or by the legislature. In this case, they only refused to defend Prop. 8 because they believed it was quite clear that that initiative violates the U.S. Constitution, which they have taken an oath to uphold. Because it’s so rare for government officials not to defend, I don’t think it is clear at this point whether or not initiative proponents would have any right to seek compensation from the state for defending a measure’s constitutionality. I tend to think not, as, in other cases where individuals in California are allowed to act on behalf of the state, I don’t believe they are entitled to receive taxpayer compensation for doing so. It is a different question, however, whether — if the Prop. 8 proponents are successful in defending the measure — they might be entitled to seek compensation from the plaintiffs in the Perry case. Normally, parties to lawsuits are not able to recover fees unless there is a statute specifically allowing them to. There is a statute in California, however, that does allow a victorious party to seek fees from the other side if their case has conferred a benefit on the entire state. Here, however, it’s not the intervenor’s case and intervenors often are treated differently from parties when it comes to issues related to attorney’s fees.
Update 9: One final thought from the AFER press call. Ted Olson pointed out the follow quotation from the 9th Circuit’s ruling from January certifying the standing question to the CA Supreme Court (it’s on page 2 if you want to follow up): “[W]e agree to accept and follow the Court’s decision.” In his opinion, the 9th Circuit has essentially locked itself in to accepting today’s ruling that proponents do have standing.
However, thanks to John in the comments for pointing out an interesting nugget from today’s ruling (page 11, footnote 7) differentiating the requirements for standing under federal law vs. California law. The CA Supreme Court points out that a party seeking to a appeal a ruling in federal court may only do so “upon a showing that the intervener independently fulfills the case or controversy requirements of article III of the federal Constitution.” Under California law, a party who has been allowed to intervene in a lower court can appeal a judgement “despite the failure of the original defendant to file an appeal.”
This is really just the CA Supreme Court’s way of saying, our decision is based on state law and doesn’t have any official sway in the 9th Circuit, as we’ve pointed out already.
Update 8: Some more notes from the AFER press call:
Olson and Boies expressed hope that there would be no need for further hearings at the 9th Circuit, since both sides made detailed arguments at last year’s hearing and nothing has changed regarding the facts of the case. Furthermore, they stressed that both the district court and the 9th Circuit have agreed several times to expedite the case in the past, and predicted that it would do so again moving forward.
One reporter asked whether AFER’s team could drop the standing issue and just ask the court to consider the case on the merits. Both Olson and Boies made it very clear that every court has to determine whether a specific case is in its jurisdiction, and that therefore the issue of standing is one that is brought up by the court itself, not the litigants. Parties can’t waive this discussion—if the court asks them to argue about standing, they must. They also predicted that the if the case ended up before the US Supreme Court, they believe that court would ask them to address the issue of standing just like the 9th Circuit did.
Update 7: I was on a press call with AFER, which is sponsoring the case. Some notes:
Ted Olson, David Boies and Chad Griffin spoke on the call. They hope the 9th Circuit will proceed without further argument, although in some cases, they want one more briefing. They do not want to predict a day or month, however. Further, as we’ve explained here at P8TT, either side can seek review of the case to the 9th Circuit or the US Supreme Court. If petitions are filed in the Supreme Court after the panel decision, they’d be filed this spring. No prediction on when the US Supreme Court would take the case — it could be in June, or in October.
Update 6: NCLR’s Executive Director Kate Kendell also weighs in:
“We disagree profoundly with the California Supreme Court’s holding that a handful of unelected initiative sponsors have the power to represent the interests of the entire public and to override the decisions of the state’s elected executive officers. Nonetheless, we are relieved that the case is once again moving forward and the Ninth Circuit will now address whether the initiative proponents can continue this appeal and, if so, whether Prop 8 is constitutional. We hope the Ninth Circuit will issue its decision soon and hasten the day when this damaging law is off the books. Every day that goes by, same-sex couples in California are being denied not only the basic right to marry, but the right to be treated with equal dignity and respect. Same-sex couples in California have lived under the shadow of this unfair law for far too long.”
Update 5: Statement from Lambda Legal’s Legal Director, Jon Davidson:
While today’s ruling from the California Supreme Court is disappointing, the good news is that the Perry case is now back in federal court, where we expect a quick victory. It’s important to keep in mind, though, that today’s ruling addresses only a procedural legal question. The key issue in this case is whether the U.S. Constitution permits a state electorate to treat one group of people unequally to everyone else by depriving them of what the state’s high court has held to be a fundamental right. A federal court has already ruled that the federal Constitution prohibits the voters from doing that and that Prop. 8 therefore is unconstitutional. We look forward to seeing that decision upheld so that same-sex couples in California may once again enjoy the freedom to marry.
In addition, today’s ruling does not settle the federal law question of whether Prop 8 proponents have standing in federal court. It remains up to the U.S. Court of Appeals for the Ninth Circuit to decide whether or not the U.S. Constitution allows initiative proponents to defend a challenge to the measure the proponents supported when elected state officials don’t. Regardless of today’s decision, we at Lambda Legal believe that the U.S. Supreme Court has made clear that initiative proponents don’t have that right.In the end, the proponents of Prop. 8 are just people with an opinion. That does not make them entitled to stand in for the government when they don’t agree with its decisions. We believe the U.S. Court of Appeals for the Ninth Circuit should rule that Prop. 8′s proponents lack standing under federal law and, if the judges who originally heard the appeal rule otherwise, that the full Ninth Circuit or the U.S. Supreme Court should rule that initiative proponents are not entitled to take over the government’s role.
Even if the federal courts find that the proponents have the right to appeal, we continue to believe that Prop. 8 is unconstitutional and that the appellate courts will agree. As Judge Walker ruled, there is not even a legitimate government interest in denying same-sex couples access to the title and status of marriage when the state provides them all of the rights, benefits, and duties afforded different-sex couples through marriage. Prop. 8′s only purpose was to send the message that the same-sex couples don’t deserve to be seen as equal to different-sex couples and that message is one the federal Constitution prohibits. That is especially so when, as here, the state supreme court has ruled that denial of access to marriage violated the state’s guarantee of equal protection. What Prop. 8 did was amend the California Constitution’s equal protection clause to create a gay exception and provide that all people in the state have equal rights except for lesbians, gay men, and bisexuals. That too is something the U.S. Constitution does not allow.
We therefore remain very optimistic that, one way or another, Prop. 8 will eventually be overturned.
Update 4: Attorney Adam Bonin over at DailyKos adds his take.
Update 3: More from Shannon on timing:
It is likely the Ninth Circuit will issue a ruling fairly quickly, since they agreed to hear the case on an expedited basis. But even if they do, it likely will not be soon enough to permit the Supreme Court to hear the case during its current term. It is also possible that the Ninth Circuit may ask for supplemental briefing, which would delay things further.
Update 2: Shannon Minter, Legal Director at National Center for Lesbian Rights who led the legal team to win In re Marriage Cases at the California Supreme Court in 2008, sent his reaction in over e-mail:
This is a terrible decision in terms of its impact on California law. The court has given initiative proponents unprecedented and virtually unlimited power, and the people of California will be living with the dangerous consequences of that decision for years to come. That said, the Court’s ruling means that the Ninth Circuit will almost certainly find that the proponents of Prop 8 have standing to pursue the appeal, which means that the Ninth Circuit will now decide whether to affirm or reverse Judge Walker’s decision finding that Prop 8 is unconstitutional. If the Ninth Circuit agrees with Judge Walker, the Supreme Court is very likely to take the case. In the bigger picture, this is good news for same-sex couples in California. Prop 8 is blatantly unconstitutional for many reasons—not only because it deprives same-sex couples of a basic right, but because it was enacted for the sole purpose of targeting a particular group in order to deny them equal protection of the laws.
Update 1: Statement from Courage Campaign
California Supreme Court Rules Prop 8 Proponents Have Legal Standing to Appeal Judge Walker’s Decision Regarding Prop 8
Statement from Rick Jacobs, Chair and Founder of the Courage Campaign
“While we respect the recommendations that the California Supreme Court made to the 9th Circuit Court of Appeals– that they grant standing to the proponents of the so-called ProtectMarriage.com — it is only a recommendation,” said Rick Jacobs, chair and founder of the 750,000 member Courage Campaign. “Allowing the Prop 8 proponents to have special rights in Court may open the floodgates to wealthy special interests to do the same. The judges of the 9th Circuit must determine if people who had enough money to buy a ballot measure that calls for people to vote on each other’s rights should have special rights in federal court. Regardless, we are confident that justice and love will prevail.”
Throughout the Perry v Schwarzenegger (now Perry v Brown) Prop 8 trial, Jacobs live-blogged daily from the courthouse and documented all of the latest motions and court rulings. Prop 8 Trial Tracker (www.Prop8TrialTracker.com), a project of the Courage Campaign Institute, has logged over 4 million page views, 110,000 comments and is the #1 Google search result for “Prop 8 Trial.” The highly-popular blog has followed every aspect of the Prop 8 trial, in addition to its NOM Tour Tracker that followed the National Organization for Marriage on three tours across the country.
190 Comments November 17, 2011
Prop 8 trial: Preview of today’s California Supreme Court opinion in Perry v. Brown
By Adam Bink
Today, the California Supreme Court will issue its opinion regarding whether the proponents of ballot initiatives have authority to represent the state of California when the state’s public officials (governor and attorney general) decline to do so. The specific case around which this arises is Perry v. Brown and the proponents being ProtectMarriage.com et al, e.g., the people who filed and helped pass the ballot initiative. It was referred to the California Supreme Court by the 9th Circuit, which will take the California Supreme Court’s opinion and then issue a ruling in the case down the road.
Some background and links:
- You can read more about how we got to this point in the case and why today’s opinion is important in yesterday’s preview post.
- The decision will come down at 10 AM PST/1 PM EST today. Jacob Combs, Prop8TrialTracker.com’s writing intern, will have the decision up as soon as it comes in, and update that post with coverage and reaction throughout the rest of the day. Be sure to refresh the post for updates when it goes up. We’ll also have legal commentary from Shannon Minter of the National Center for Lesbian Rights, who led the legal team for the In re Marriage Cases decision before the California Supreme Court in 2008, among others.
- Meanwhile, on the preview side of things, many questions have come in on how long it would take for the 9th Circuit to turn around a decision in Perry v. Brown after today’s opinion is issued, and the timeline from there. Lyle at SCOTUSBlog has a thought on the timeline for the case:
Although both sides in the historic lawsuit over the gay marriage ban have expected their dispute ultimately to reach the Supreme Court, it now seems quite unlikely that the case will move fast enough in federal court from here on to reach the Justices in time for a decision during the current Term. A case must be ready for the Justices to consider by no later than the end of January in order for it to be decided in the current Term, which is likely to end late next June. The Circuit Court is considering the Proposition 8 case on an expedited basis, but it is doubtful that it could act quickly enough, and that preliminary filings in the Supreme Court could be made soon enough, for the case to be ready within the next two and a half months.
- Elsewhere, Ari Ezra Waldman has an interesting meta piece at Towleroad on the implications of the Perry case overall.
- If you’d like to read the live-blogging transcript of arguments before the 9th Circuit Court of Appeals on this issue, you can find it here. If you’d like to read the arguments before the California Supreme Court back in September, you can find them here. From a legal point of view on whether people should be allowed to stand in for duly elected officials in court (and for the sake of trying to divine how the Court will rule today), they are fascinating.
- Many folks in the comments yesterday opined on whether the California Supreme Court will rule that state law allows for ballot proponents to have standing to represent the state. What’s your prediction of today?
- There’s also a robust debate being had over whether the case should be decided on the merits (e.g. whether Prop 8 is constitutional or not) versus standing (which many people refer to as a more technical issue). Remember that if the proponents of Prop 8 are found to not have standing and that is held up on appeal, the case is dismissed for lack of jurisdiction and Prop 8 ends. On the one hand, many hope the California Supreme Court decides in favor of standing for ballot proponents and the 9th Circuit ultimately grants standing for the Prop 8 backers to represent the state in court so that a final decision can be had on the constitutionality of Prop 8 and perhaps even marriage equality nationwide, e.g. whether laws and constitutions across many states that limit marriage to opposite-sex couples are in violation of the U.S. Constitution. On the other hand, many others wish to see Prop 8 end however it can. Aside from the serious implications of whether ballot proponents can represent the state in California instead of elected officials, one way to view this is that there are two bites at the apple to take down Prop 8: constitutionality and standing. For the sake of allowing couples who desperately wish to wed — some, like Ed and Derence in Palm Springs, with serious medical conditions like Alzheimer’s threatening their right to the pursuit of happiness — many just want Prop 8 to end however it can end, standing or otherwise. There is also a concern on the merits side that 5 Justices cannot be had on the U.S. Supreme Court who find Prop 8 to be unconstitutional. What do you think?
- We’ll see you when the ruling comes down later today.
55 Comments November 17, 2011
DOMA: NOM makes stuff up to raise money. Help fight back
By Adam Bink
They really must be desperate. As reported in the comments earlier today, and received over e-mail, National Organization for Marriage said that the Respect for Marriage Act would be attached to the defense authorization bill in an attempt to pass it:
Reports out of Washington are now indicating that — just a week after forcing a bill to repeal the Defense of Marriage Act (DOMA) through the Judiciary Committee on a party line vote — Senator Feinstein, Senate Judiciary Chair Pat Leahy (D-VT) and Majority Leader Harry Reid may now attach the DOMA repeal bill to the 2012 Defense Authorization bill, a bill that must be passed in order to fund our servicemen and women through the next year.
“Reports out of Washington” = making stuff up. Notice they didn’t cite any source. Beyond that, Courage Campaign and its members have been working on the Respect for Marriage Act since it was introduced in March, and our Senate allies tell us there are no plans to do so. Our friends at HRC confirmed. It’s just false. And sad.
In the meantime, we’re doing actual work to repeal DOMA.
Whatever their lies, NOM’s scare tactics just raised some coin to fund their homophobia and fight to keep DOMA around, and that’s a problem. If you want to fight back, join Courage as a Sustaining Member and contribute just $5/month or more to help fund our work to repeal DOMA.
You’ll get the button you see on the right. You’ll piss NOM off. You’ll help match whatever they’re raising today. And most of all, you’ll be speeding up the day when we end legalized discrimination against thousands and thousands of loving, committed couples.
22 Comments November 16, 2011
BREAKING: CA Supreme Court to issue opinion on Prop 8/standing tomorrow
By Adam Bink
The California Supreme Court just announced it will issue its opinion tomorrow, November 17th at 10 AM PST regarding whether the proponents of ballot initiatives have authority to represent the state of California when the state’s public officials (governor and attorney general) decline to do so. From the court’s release:
The court granted the request of the United States Court of Appeals for the Ninth Circuit to address the following question: “Whether under Article II, Section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure possess either a particularized interest in the initiative’s validity or the authority to assert the State’s interest in the initiative’s validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so.”
Opinion(s) in the above case(s) will be filed on:
Thursday, November 17, 2011 at 10:00 a.m.
For those not familiar with the timeline of the case, this is not a binding decision on the case. That rests with the 9th Circuit Court of Appeals. Some background: in December of last year, the 9th Circuit heard the appeal of Judge Walker’s ruling, which struck down Prop 8. The court heard arguments on the constitutionality of Prop 8, and arguments on whether the proponents of Prop 8 (ProtectMarriage.com, et al) even have standing to represent the state of California in the case as defendant when Gov. Brown and Attorney General Harris decline to do so. For the live-blogging of those arguments, click here.
Rather than immediately rule on those arguments, the 9th Circuit decided to kick the ball over to the California Supreme Court on the issue of standing, asking an important question: do proponents of ballot initiatives in California — in this case, those who collected signatures and raised money and helped pass the initiative — have the authority to represent the state when the state’s public officials decline to defend the initiative? If ultimately not, then Prop 8 goes without a defendant, our side (the plaintiffs) wins and Prop 8 ends.
The California Supreme Court accepted the question, heard arguments (for live-blogging of those arguments at the hearing, click here), and tomorrow will issue its opinion. From there, the 9th Circuit 3-judge panel which heard the appeal of Judge Walker’s decision and kicked the ball over to the California Supreme Court will read the opinion and then issue its own ruling some time after, which actually functions as a decision in the case. It’s important to note that tomorrow’s opinion, while influential, is more of a “hey 9th Circuit, here’s what we think about your question.” It’s not a binding decision per se. That said, many legal observers believe that the 9th Circuit will follow what the California Supreme Court decides on standing. The issue of whether Prop 8 is constitutional is another question.
From there, the ruling can be appealed to the full 9th Circuit en banc, and of course the U.S. Supreme Court, both of which may or may not take up the case.
We’ll have coverage and reaction to the opinion tomorrow here at Prop8TrialTracker.com.
84 Comments November 16, 2011
