Where Do Things Stand On Prop 8?

After Friday's late afternoon filings by Gov. Schwarzenegger and California Attorney General Jerry Brown, many are unsure of what could happen next. Karen Ocamb asks Jon Davidson, legal director for Lambda Legal:

While many legal analysts thought that Judge Walker was likely to grant the stay pending appeal, Friday’s filings have dramatically changed the likelihood of that. The standards for when a stay or a trial court’s order pending appeal are well-settled. In order to be entitled to such a stay, the party seeking the stay has to make a “strong showing” that the party is likely to succeed on the merits of the appeal and also has to show that that party will be irreparably injured if there is no stay. In addition, courts consider whether the issuance of a stay will substantially injure other parties and where the public interest lies. Normally, it is the party ordered to do or not do something that seeks a stay. This is an unusual situation, however, because the parties whom Judge Walker ordered not to enforce Proposition 8 have asked him not to stay his order while the appeal proceeds. [snip]

Even if he denies the proponents’ stay pending appeal, Judge Walker might extend his temporary stay for a brief period of time (a week or so) in order to give the proponents time to ask for a stay from the Ninth Circuit while there’s a temporary stay in place. If he does not do that, the proponents are likely to file a request for an emergency stay from the appellate court. The Ninth Circuit would then apply the same test as Judge Walker did in deciding whether or not to issue a stay of Judge Walker’s order pending the appeal. If they deny a stay as well, the proponents could ask Supreme Court Justice Anthony Kennedy (who reviews such matters arising out of the Ninth Circuit) to issue a stay pending the appeal. If he also denies a stay, the proponents could seek a stay from the full Supreme Court.

The Ninth Circuit Court has tentatively scheduled to hear Protect Marriage's opening appeal brief on November 12th, but that date could be delayed upon request. Davidson questions whether Protect Marriage actually has the legal right to file an appeal at all.

So far, the government-defendants in the case have not appealed. Given what they have said in their oppositions to the stay request, it seems likely that they will not. If that happens, there will be a legal question of whether, when those who are ordered to do something don’t appeal, someone not ordered to do anything has any right to appeal. To understand this, one has to appreciate a few things about federal courts.

Federal courts can only hear cases where there is what’s called a “case or controversy.” They can’t issue advisory opinions about issues just because parties may have an abstract dispute with one another. Rather, in order to be able to pursue an appeal, a party has the burden of showing that it has “a direct stake in the outcome” and has been injured by the ruling in a concrete manner that is particularized to that party and different from citizens at large who may not like the judge’s ruling. In a previous case, the U.S. Supreme Court said it had “grave doubts” about whether proponents of a ballot initiative limiting government action who had been allowed to intervene in a case can pursue an appeal when the initiative has been found unconstitutional and the government does not appeal.