Best regards,

a Jaded New Yorker

P.S.: Please don’t poison me.

1. They do seem to be flogging his supposed romance/flirtation/whatever with Tiffany;
2. They spent an awful lot of time on the “pea puree” controversy; and
3. Generally speaking he seems to be getting screen time far in excess of his apparent merit or personality.

It’s not at all clear to me why they would be doing this except to try to force us to have an opinion — any opinion whatsoever, really (see #3 above) — of Ed as a contestant and potential winner.

It’s pretty well-settled that citizens as a general matter don’t have standing to sue over a law just because they disagree with it. That rule generally makes a fair amount of sense to me: you don’t want disgruntled voters to run into court every time they disagree with they way their elected representatives are doing their jobs. That’s what elections are for, after all.^[FN1]

Similarly, just because you agree with a law doesn’t mean you have standing to appeal from a judgment striking that law down if that judgment doesn’t require you to do (or not do) anything or otherwise cause you any direct injury. That’s the holding coming out of Diamond v. Charles (1986), where the Supreme Court said that a pro-life doctor, who had intervened at trial, had no standing to appeal a trial court decision striking down restrictions on abortion. Procedurally, that case is somewhat similar to the Prop 8 situation, in that you had an intervenor-defendant who wanted to go it alone on an appeal without any of the original government defendants. The Supreme Court said that the lower court’s judgment striking down the law didn’t require the doctor to do or not do anything, so he had no stake in getting the judgment thrown out on appeal.

So this tees up the following question: if you don’t have standing to appeal, how can you be allowed to intervene in the first place? The Supreme Court in Diamond sidestepped the question, saying that the courts of appeals disagree on the question of whether standing is a requirement to intervene, but we’re not going to resolve that split right now.

Some courts (including, I think, the Ninth Circuit) have taken the view that intervenors without standing of their own can tag along as long as the case has at least one plaintiff and one defendant who do have standing. The idea here seems to be that the purpose of the standing requirement is to help ensure that there is a “case or controversy” before the court so that the court isn’t wasting its time, so as long as that “case or controversy” is present, it’s a proper case for the court to hear, and you may as well allow intervenors to participate, since intervenor participation can have significant benefits, such as helping the court make correct decisions. This is basically Howard Wasserman’s view of intervenors as “amici on steroids.”

Leaving to the side for the moment the issue of whether that view of intervention makes sense,^[FN2] the question remains whether in the Prop 8 case the government defendants really were “adverse” to the plaintiffs at trial, as required to create a “case or controversy.” I think the answer is yes. If the government defendants actually had been marrying gay couples in defiance of Prop 8, that could have been a different story: in that case the plaintiffs would have been getting what they want from the defendants anyway (namely, marriage), so there would have been no need for the courts to get involved: no “case or controversy”, case dismissed. But as I understand the government’s position, they said, we hate Prop 8, but we still won’t (and can’t) marry you as long as it remains on the books, so you need to persuade a court that it’s unconstitutional. That has to be enough to create a “case or controversy” enabling the trial court to hear the plaintiff’s case; otherwise, the government could strategically deny plaintiffs their day in court by refusing to contest the litigation (while still refusing to do what the plaintiffs want).

So I think that explains how Judge Walker properly could have allowed the sponsors to participate at trial: it’s not that they had standing at trial but not on appeal; they never had standing (Judge Walker would say), but the government defendants’ presence in the case at trial, though minimal, was sufficient to satisfy the “case or controversy” requirement, making it unnecessary to inquire as to the sponsors’ standing. The government defendants’ decision not to appeal the case (which I don’t have a problem with) leaves the sponsors as the only remaining party adverse to the plaintiffs, which necessitates, for the first time on appeal, an examination as to whether they have standing as required to create a case or controversy.

So that brings us back to the bigger question: do ballot initiative sponsors have standing to defend their law on appeal? Arizonans for Official English v. Arizona (1997), which the Ninth Circuit directed the sponsors to address in its papers, suggests that they don’t.

That case was ultimately decided on other grounds, but the Court (unanimously) expressed “grave doubts” that the sponsors of an English-only initiative had standing to defend the law on appeal. Noting that the sponsors were not elected officials and that there was no provision in Arizona law specifically authorizing sponsors to act as agents of the state to defend their law, the Court in that case rejected the argument that “as initiative sponsors, they have a quasilegislative interest in defending the constitutionality of the measure they successfully sponsored.” So Arizonan would seem to suggest pretty powerfully that the Prop 8 sponsors do lack standing to pursue the appeal.

But maybe the Ninth Circuit or Supreme Court won’t care about backing away from Arizonan. I wouldn’t be surprised at all to see Scalia & Co. push to unwind some of their earlier standing doctrine. The prevailing conservative worldview is that every day, the federal government doing stuff far in excess of its constitutional powers (like health care, bailouts, what have you), people are running around taking away guns, and white people and dudes are being discriminated against in various and sundry ways. That’s a lot of (supposedly) aggrieved conservatives who want their day in court, and it’s quite likely that the conservative justices are champing (chomping?) at the bit to strike down all sorts of laws.

And in any event, the rule from Arizonans does seem a little insane. Michael Dorf posted on this recently and his argument seems pretty persuasive:

The ballot initiative process is available precisely because the People cannot always trust their elected representatives to carry out their will. Thus, when elected officials decline to defend a ballot initiative in court, they are directly frustrating the whole point of the ballot initiative process. Perhaps that is their prerogative, but if so, it makes sense for someone else to come in to defend the ballot initiative’s constitutionality.

So you could see the courts going out of their way to create a kind of limited standing for initiative sponsors.  For example, it could be contingent upon, a refusal by all qualified government officials to defend the law, and a showing that the sponsors will be able to properly represent the state and that nobody will be prejudiced by their participation. (You could think of this as a rough analogue, conceptually anyway, to shareholder derivative actions.)

So there you have it.  That wasn’t so bad now, was it?  (Be glad that I managed to restrain myself from talking about nonmutual collateral estoppel. Seriously, I’d originally included a bit on that but decided to leave it out.)

—

[FN1] One of the cases reaffirming this rule is Lujan v. Defenders of Wildlife (1992), where environmental groups tried to sue the Secretary of the Interior to get him to enforce provisions of the Endangered Species Act. One of the things that made this case controversial is that the Supreme Court rejected the environmental groups’ more case-specific arguments, including that they were harmed by the damage to their ecosystem, and that they were harmed as people interested, personally and/or professionally, in the endangered species at issue, even though they had no interest in the specific project (and, hence, the specific animals) at issue in the litigation. The Supreme Court said that if you have no direct interest in the specific government action at issue here, you have no standing to sue.

[FN2] The courts who take the contrary view, requiring that intervenors have standing, seem to be concerned that when you intervene in a case, you become a party to that case, and that carries with it a whole litany of serious consequences. So it makes no sense to allow people to intervene unless their stake is so direct and important that they independently would have standing. This is the view expressed by Jonathan Adler, Michael Dorf, and Vikram Amar. This approach has a certain elegance to it but, for a variety of reasons, I’m not totally convinced it’s the right way to think about intervention.

It would be a mistake to look at today’s ruling as any significant win for the Bad Guys (the Prop 8 sponsors, who successfully intervened at trial to defend Prop 8).

Today’s Ninth Circuit’s order put the case on an expedited track, with oral argument scheduled for the first full week of December 2010.  Most interestingly, the Ninth Circuit’s order directed the Bad Guys to brief the standing issue raised in Judge Walker’s stay ruling:

In addition to any issues appellants wish to raise on appeal, appellants are directed to include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing. See Arizonans For Official English v. Arizona, 520 U.S. 43, 66 (1997).

(Aug. 16, 2010 Order, at 2.)  The fact that the court included this language in its order suggests strongly that, at a minimum, it’s at least taking very seriously the argument that it lacks subject-matter jurisdiction over the Bad Guys’ appeal.

So… standing.  The requirement of standing comes out of the fact that courts (and the federal courts especially) don’t like to waste their time.  So, as Emily Bazelon explains, the doctrine of standing says that if you’re going to bring a case before a court asking it to do something for you in that case, you must “have a real, not conjectural, injury, which the lawsuit you’re bringing can redress.”  The immediate problem for the Bad Guys, then, is that they are the only defendants appealing from Judge Walker’s ruling–the government defendants refused to defend the law at trial and have said they will not appeal the decision–and prior cases seem to suggest that a sponsor of a ballot initiative does not have standing to defend the law he worked to pass.

If the Ninth Circuit and/or the Supreme Court, based on these prior cases relating to ballot initiatives, holds that the Bad Guys have no standing to bring the appeal, it will likely dismiss the appeal for lack of subject-matter jurisdiction (i.e., that it had no power even to hear the appeal), which would mean that Judge Walker’s ruling regarding Prop 8 would stand as good law.

So that would be a win for the good guys, right?  If you live in California, I’d say so:  Walker’s ruling striking down Prop 8 as unconstitutional would go into effect.  Outside of California, however, it’s less clear that the decision would have all that much direct impact in influencing future cases.  As an initial matter, unlike the Ninth Circuit (whose legal precedents are binding on all district courts in California, Washington, Oregon, Arizona, Nevada, Idaho, Montana, and Hawaii) and the Supreme Court, no other judge would be required to adopt any of Judge Walker’s broader legal conclusions, including his interpretations of the Equal Protection and Due Process Clauses.

Still, Judge Walker’s decision would remain on the books and future plaintiffs challenging other gay-marriage bans would likely cite to the case to support their arguments.  In such circumstances, those future plaintiffs effectively would be saying to those courts, “This case is, in all important respects, factually similar to the Prop 8 case, and Judge Walker’s legal reasoning is persuasive, so you should adopt it here.”  The problem is that a judge disinclined to follow Judge Walker’s lead might very well say that his case is factually distinguishable and decline to follow the Prop 8 ruling on that basis.  Recall, in this vein, that the Bad Guys in the Prop 8 case did such a terrible job defending the law that they barely even attempted to put on any evidence supporting their assertions of the various harms that would result from allowing gay marriage, and–worse still–on cross-examination, their own witnesses made a number of key admissions severely undermining their position.  In future cases, the bad guys presumably would be better prepared and wouldn’t make a lot of those same mistakes, and they would use that as a basis to distinguish their case as significantly different from the Prop 8 case.  In this way, the total annihilation of the Bad Guys in the Prop 8 case could be the one thing that allows the bad guys to live to fight another day.  This is probably why you’re seeing some murmurings on the right that perhaps it might be better to concede defeat in California and do a better job in future cases, the idea being that they could pick a case with a better factual record to bring up to the Supreme Court.

Of course, the Ninth Circuit could simply find that the Bad Guys do in fact have standing to appeal and proceed to take up the appeal on the merits.

But the standing issue could produce a third outcome.  It’s possible that the Ninth Circuit could say that just as the Bad Guys lacked standing to appeal, they also lacked standing to participate at trial as the only (active) defendants before Judge Walker.  In that circumstance, the likely result is that the Ninth Circuit would basically tell Judge Walker to start over with a new trial without the Bad Guys.  If the government defendants continued to refuse to defend Prop 8 (note that at his point California could have a new governor and attorney general), the likely result of sending the case back to Judge Walker would either be a judgment entered with the consent of all parties striking down Prop 8, or (more likely) a judgment for the plaintiffs on an unopposed motion for summary judgment in which the judge accepted all of the plaintiffs’ factual allegations as true.  If Judge Walker were to issue a decision granting plaintiffs summary judgment, the ultimate legal rulings and result would almost certainly be the same, but the decision would no longer be based on the judge’s numerous and detailed factual findings, which numerous commentators argued helped the original decision’s chances on appeal.   (I agree, though I am less convinced than I once was that an appellate court otherwise inclined to reverse Judge Walker–be it the Ninth Circuit or the Supreme Court–will be detained for long by his findings of fact.)  At that point, the new decision would then be teed up for an appeal on the merits, which potentially could lead to the Supreme Court.

I think it’s a no-brainer for Boies and Olson to contest the standing issue: their clients are California individuals who want to get married, so their goal has to be to get rid of Prop 8, whatever the means.  If they win on standing and the appeal is dismissed, they win and Prop 8 is off the books.  If they lose on the standing issue, they’ll just end up litigating the appeal on the merits, no worse for wear.  The worst-case scenario is that the court sends the case back down for a new trial, in which case they will almost certainly win again, and the case presumably will then go back up on appeal.  They will have lost a bit of time at that point, and the new decision on retrial may be marginally less likely to survive on appeal without the findings of fact, but the upside of an outright win on standing strikes me as simply too good an opportunity pass up.

So, @seldo and @eparillon, I can only assume I’ve now fully answered any questions you might ever have concerning the Prop 8 case, or any other legal matter whatsoever.  Also, you now owe me approximately $1800 for my time.

(Much of what I wrote here is based on Jonathan Adler’s post at Volokh or the links collected therein.)

Update – Supreme Court Review: Unlike the Ninth Circuit, the Supreme Court has discretion over which cases it will hear on appeal.  There are a couple of different ways in which the standing issue could end up before the Supreme Court.  If the Ninth Circuit dismisses the appeal for lack of standing, the Bad Guys may ask the Supreme Court to take up the standing issue.  Similarly, if the Ninth Circuit holds that the Bad Guys never had standing to participate at all, both Boies and Olson and the Bad Guys could theoretically cross-petition the Supreme Court to review the standing issue.  (Boies and Olson would be asking the Supreme Court to say the Bad Guys had standing at trial but not on appeal, and the Bad Guys would be asking the court to say they’ve always had standing at all phases.)

If the Supreme Court decided to review the Ninth Circuit’s standing decision, the possible outcomes broadly track the same three options as I outlined above:

(1) It could rule that the Bad Guys have no standing on appeal. That would end the case.

(2) It could rule that the Bad Guys had standing to appeal all along, in which case it would reverse the Ninth Circuit and then send the case back to the Ninth Circuit, which would then have to decide on the merits.  The parties could then go back to the Supreme Court to ask it review the Ninth Circuit’s merits decision.

(3) If it thinks the Bad Guys had no standing to participate at trial, it would order that the case be sent all the way back to Judge Walker for a new trial without the Bad Guys.

So if your goal is to get the merits decision up to the Supreme Court as quickly as possible (I’m not 100% sold on this yet), the quickest way for that to happen is for the Ninth Circuit to hold that the Bad Guys do have standing to appeal and to reach the merits in one fell swoop.  (The Supreme Court is more likely to accept the case for review if the Ninth Circuit affirms Judge Walker’s merits decision than if it reverses.)  But even here, if the Ninth Circuit did issue a ruling deciding both the standing and merits issues, there’s no certainty the Supreme Court would reach the merits.  It could always decline to take the case, agree to hear only the standing issue, or take the case on both standing and the merits but rule standing only (though that last case is really only possible if the Supreme Court holds the Bad Guys had no standing to appeal (ending the case) or that they never had standing to participate at all (resulting in a new trial without the Bad Guys).  [8/17 8:54a]

Imagine my surprise when I received a Facebook IM, out of the blue, from a high school acquaintance I hadn’t spoken to in about 10 years. And imagine my further surprise when she told me she’d been mugged and needed me to send money to her! In London! Where she doesn’t live! (Someone had tried to pull this same scam on Glark about a month or two ago, which he posted about on Twitter.)

Unfortunately I wasn’t able to keep the beginning part of the whole chat transcript, but here are some nuggets from the end of our (long) conversation:

Me: it seems like i should be able to call the hotel and the car company directly

Fraudster: settle some medical and other nagging bills

We will be fine

Me: give me the name of the hospital and hte doctor

Fraudster: I need the money directly

he is being treated by the hotel service

Me: that is so weird.

and what hotel did you say that was?

Fraudster: I need you to wire the money to me directly through Western Union

Lyton Studio

All you need to do the transfer is my name and present location

Me: i really want to help you guys but it really seems like the best way is for me to just take care of a couple of your bills for you

esp since you already have a flight back

Fraudster: yeah

that’s why i need you to send me the money directly

Me: ok but you need to give me the names of the htel and the doctor and the cab

no you guys have so much to worry about

just let me deal with them directly

Fraudster: how much can you afford to loan me?

No need to deal with them since we will be departing soon

How much can you loan me?

. . .

Me: it seems really weird to me that you won’t just let me deal with the hotel for you

if you’d just told me 10 minutes ago this would be over!

Fraudster: I have my reasons

let me have the money physically so i can handle it my way

I am so freaked out here

Me: you’re clearly in shock, that’s why i want to deal with these people directly.

Fraudster: not to that extent

would you speak to the hotel manager?

Me: i just need the name of the hotel

Fraudster: If you won’t helpful without these full details,maybe we should call it a day

Me: what flight are you on? i can pick you up when you land

Fraudster: you mean you can’t help me out?

TOO BAD

. . .

Me: when was the last time you talked to my sister? i bet she can help you out!

Fraudster: you mean you can’t?

Me: did you see her when she was visiting ellicott city?

Fraudster: nope

Me: too bad

she really could help you out. she’s studying in london actually!

you should call her

gotta go!

~~~

#facebook #scam #glark

So, without further ado, I give you: WorldNetFaily.

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#meta #selfpimp #worldnetfaily

Sunday 2:00 PM – Flush! Drip… Drip… Drip… My toilet is leaking water. Not the unspeakably filthy water, but still, it’s toilet water.

Sunday 2:01 PM – I decide I’ve had enough. I decide I will fix the toilet. I say to the toilet, “Toilet? You’ve leaked on my bathroom floor for the last time. It’s time for you to get potty trained.”

Read all about my ill-fated attempts to get my toilet fixed after the jump.

A:  Yes.

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#nyc #weird