Why Prop 8's Proponents Should Be Allowed to Appeal
"In its order for an expedited appeal," Elizabeth Wurtzel notes, "the Ninth Circuit panel has asked the proponents of Proposition 8 to brief them on the issue of standing in their arguments." Earlier in the same article, she suggests that the "appeal of Judge Walker’s decision may be defeated before the issues are even examined—it might be dismissed for lack of standing—and the litigation may simply end in California."
The levels of irony in this standing issue are so numerous that it is difficult to sort them out. The usual view on standing is that with respect to discrete injuries to particular persons, only those persons can sue, not others who wish to vindicate some abstract claim. The textbook case is that if A assaults B, C cannot bring suit for that harm because we know who should have control over the case.
The difficulties with standing (all of which are a function of unwise constitutional interpretation) have applied that same requirement for discrete injury in cases where there are no discrete injuries, ie taxpayer suits against illegal action, where it leads to the odd result that massive structural harms are not within the power of the court to redress. The usual rationale for this is that no one has sufficient interest to maintain these suits, which therefore will be poorly prosecuted, which seems just absurd in cases like the present where the emotional and symbolic content are both so high.
At this point, the standard application of the rules says that for the purposes of appeal only those who were parties to the original case may sue, and that means that the amicus parties who defended the statute when the state took over cannot sue under these rules.
But this rule presupposes that the actual party in interest is not in league with the party on the opposite side. Clearly someone should be allowed to appeal, and I think that one of two approaches are relevant. First, the state files the appeal and announces that it will allow to be pursued by the same parties who did the trial. If that accommodation worked at one level, it should work at the second. Alternatively, Judge Walker should on a nunc pro tunc (now for then) basis make the defenders of Prop 8 parties to the litigation so that they should be able to bring the appeal. What is unconscionable is to allow collusive action by parties on opposite sides of the litigation to block and appeal when there is no honest settlement of the underlying differences.
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Comments :
May '10
Re: Why Prop 8's Proponents Should Be Allowed to Appeal
Help me understand this...
What is being overturned is a constitutional amendment. Let's imagine a scenario where the people of a state amend their constitution to rein in a government that has over-stepped. The same government, not wishing to be reined in, refuses to defend the amendment against court challenge. Are not the people deprived of their best tool to define and limit their government?
This has the feeling of a Catch 22, whereas the people can use the constitution to limit the power of government, but only if the government approves.
Jun '10
Re: Why Prop 8's Proponents Should Be Allowed to Appeal
My head is spinning a bit Mr. Epstein. It does seem logical to most that if you allow a group to defend the outcome of Prop 8, you should allow that same group to appeal your decision. They have invested enormous time and money. If you are an honest and fair judge, you would actually want them to appeal. That is, unless you are so arrogant as to believe only your opinion should count.
Aug '10
Re: Why Prop 8's Proponents Should Be Allowed to Appeal
Richard Epstein:
The levels of irony in this standing issue are so numerous that it is difficult to sort them out.
No kidding. After reading this post and John Yoo's following one more than once, I think I finally got a rough idea of the problem.
The difficulties with standing (all of which are a function of unwise constitutional interpretation) have applied that same requirement for discrete injury in cases where there are no discrete injuries, ie taxpayer suits against illegal action, where it leads to the odd result that massive structural harms are not within the power of the court to redress.
If it's obvious to me, a non-lawyer, that the one standard doesn't apply to the other situation, how does a lawyer miss this?
Why couldn't something like a class-action suit be brought in these situations?
What is unconscionable is to allow collusive action by parties on opposite sides of the litigation to block and appeal when there is no honest settlement of the underlying differences. ·
How common is this unconscionable move these days? How often do folks get away with it? And can it be stopped, and how?