Sunday, August 08, 2010

Luck of Draw on Prop 8 Appeal

The certain appeal of the ruling that Prop 8 is doubly unconstitutional goes into a complex and iffy world of the U.S. Court of Appeals for the Ninth Circuit. Just as I was about to try to figure out the twists and turns, AP's Paul Elias provided great background.

Among the key points are:
  • The courts reputation for liberalism is undeserved. The 27 sitting judges range from very conservative to very liberal.
  • A computer will randomly pick the three to hear this appeal (like a box of chocolates?).
  • Only if that panel seems way off base to a majority of the 27 will a larger panel rehear the case to finalize it.
Geographically, the court is the biggest, covering nine western states, including Alaska and Hawaii. Guam and the Northern Mariana Islands are tucked in too.

Many of us have made much of the detailed ruling in this Perry decision. U.S. District Court Chief Judge Vaughn R. Walker clearly made it hard to overturn with his 80-plus findings of facts, which any appeals court has to assume are true unless forced by changed information to do otherwise. That would leave the appeal based on finding of law. He described those with great specificity and with numerous citations to precedence all the way to the U.S. Supreme Court. That doesn't guarantee the appeals panel will agree with the latter.

That written, the three-judge panel's make-up is unknown, as is the result of the appeal. Elias adds, "Legal experts said the case could easily end with a politically conservative panel of the 9th Circuit reinstating the marriage ban and the U.S. Supreme Court refusing to get involved. " He wrote that a conservative panel might well prefer to hold off on enabling our most populous state to allow same-sex marriages right now, as a bit sudden.

Likewise, this appeals court has the power to let SSM resume in California while it hears and decides the case. That seems unlikely and a stay of up to a year in implementing Walker's order may well happen.

I keep seeing the flares of libertarianism in this as well. Walker, while often conservative, has such a bent and Elias writes that the Ninth's Chief Judge Alex Kozinski does as well. The concept of individual freedoms unless there is compelling reason to restrict them arises repeatedly. My view of fairness and civil rights is not quite the same, even if they end up at the identical destination.

After the three-judge appeals panel rules, the Ninth could take another stab at this. All the judges can review the decision and if a majority disagree with its finding, Kozinski could impanel and sit on an 11-judge en banc subset of the whole court. It would rehear and re-decide the appeal. This happens rarely.

I for one will be fascinated to see which three end up on this panel.

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