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Monday, July 15, 2013

Commenting on the merits

Andy Koppelman argues at Salon that by joining the Chief's majority in Hollingsworth, Justice Scalia functionally cast the deciding vote to allow same-sex marriage throughout California. Koppelman games out the internal workings of the Court to figure out why the Court did not comment on the (arguably erroneous) overbreadth of the district court's injunction. He writes the following:

Roberts’ opinion could easily have included some language casually noting in passing that the district court’s decision properly applies only to the two couples who brought the suit, and that the more general question was not within the district court’s jurisdiction. (Even if there was no standing to appeal, Roberts was not obligated to describe without comment an overbroad injunction.) He could then direct further proceedings in the 9th Circuit consistent with this opinion. That would have forced the lower courts to refashion the injunction to have nearly no effect.

Koppelman then wonders why Scalia did not insist on such language. He concludes that Scalia and Roberts both recognized it might have split the five-justice majority, since Ginsburg, Breyer, and Kagan might have gone off with a separate opinion, perhaps one reaching the merits and recognizing a broad right of marriage equality that might even have garnered five votes. It's an interesting theory on how the justices negotiate opinion drafting.

The problem, I think, is with Koppelman's underlying premise. Roberts could not have compelled the lower courts to refashion the injunction, while also finding no standing to appeal. The propriety and scope of the injunction was never properly before either SCOTUS or the Ninth Circuit because there was no party to properly present that issue to either court. So the Court could not make any comment that would be anything more than dicta or would in any way have compelled the district court to rethink the scope of the injunction. I would add the Scalia would be particularly attuned to this point, as he wrote the opinion in Steel Co. rejecting the doctrine of "hypothetical jurisdiction" and the notion that a court can have anything meaningful to say on the merits in the absence of standing.

So one additional reason Scalia did not insist on the language Koppelman suggests may be that, believing (whether genuinely or strategically) that standing was lacking, Scalia also recognized that the Court lacked any power to meaningfully comment on or alter the injunction.

Posted by Howard Wasserman on July 15, 2013 at 05:04 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink


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The San Diego County Clerk is challenging the order.

Posted by: Michael Ejercito | Jul 19, 2013 11:43:22 PM

It is true of course, that third parties could be subject to court orders and injunctions in litigation; jury summons and subpoenas are common examples.

It is fundamental black letter law that for federal district courts to subject a third party to an injunction pursuant to a final judgment, it must determine that the party is properly subject to the injunction in a proceeding in which the third party has an opportunity to participate. See Zenith Radio Corp. v. Hazeltine Research, 395 U.S. 100 at 112 (1969) Zenith reaffirms basic due process principles that those whose interests are invaded by a court order must have an opportunity to challenge the order. Indeed, in jury summons, potential jurors are allowed to challenge the summons. The court is not required to agree with them, but merely offer them a chance to make a substantive argument for relief.

In the Perry case, the district court did not require the other fifty-six county clerks to appear before court to even argue why they should not be bound by the court's judgment, let alone defend Proposition 8 on the merits. Indeed, the Clerk for Imperial County was affirmatively denied a motion to intervene in that case. To this date, the court did not hold a Zenith proceeding to determine if any of those clerks are bound. That is the only proper procedure to extend the injunction to those clerks. To do otherwise would violate basic due process principles.

Posted by: Michael Ejercito | Jul 17, 2013 2:09:51 AM

A Rule 60 (b) (5), (6) motion to relieve the defendants from judgment would have been less messy, and avoided the issue of a court interpreting a sister court's injunction. There are two plausible grounds for this- the plaintiffs' marriages satisfied the judgment, and United States v. Windsor, No. 12-307 (Jun 26, 2013), directly abrogated the district court ruling. See Windsor, slip. op. at 18-19 (I assume that proponents would go to state court for a writ of mandate to compel the defendants to file this motion, to ensure the state court will have jurisdiction to hear it.)

However, a Rule 60 (b) (5) motion may not be granted until, at the very least, the appellate process concludes, which could take another year. This could be their backup plan, but the current action in the California Supreme Court would yield quicker results.

Posted by: Michael Ejercito | Jul 15, 2013 11:24:50 PM

The issue was not raised in the district court because that court did not hold hearings with respect to the proper scope of the injunction.

http://cdn.ca9.uscourts.gov/datastore/general/2010/09/22/10-16696_openingbrief.pdf pp. 30-31

http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/briefs-v2/12-144_pet.authcheckdam.pdf p. 18

Note that the proponents in that case where arguing over the application of the injunction with respect to issuing marriage licenses to persons other than the named plaintiffs. In the California Supreme Court case, they are also arguing that the county clerks who were not parties to the litigation were not bound. They quote from the plaintiffs' attorney's oral argument before the Ninth Circuit.


p. 13

JUDGE HAWKINS: So if Judge Walker was wrong about the Registrar controlling county clerks, then Ms. Vargas is not bound by the injunction.

MR. BOIES: Correct

p. 13

JUDGE REINHARDT: But what about the clerks? The clerks issue the licenses. Are they bound by the injunction or not?

MR. BOIES: They are not directly bound by the injunction, your Honor. The way it-

JUDGE HAWKINS: If the injunction were lifted, if the stay were lifted, and the injunction were in force, could the Clerk of San Diego County refuse a marriage license to a same-sex couple?

MR. BOIES: She could without violating the injunction. However if she, did so, then the Attorney General would, as the Attorney General did in Lockyer, act to make the enforcement uniform.

p. 14

JUDGE REINHARDT: You're saying that in any event, the scope of the injunction is quite limited.

MR. BOIES: The scope is, your Honor.

p. 22

In a concurrence to an order certifying the question to the California Supreme Court, Judge Reinhardt summarized the plaintiffs' positions that the injunction directly binds the clerks of Los Angeles and Alameda Counties, while the Attorney General could sue in state court to effectively extend the injunction to the other counties.

http://cdn.ca9.uscourts.gov/datastore/general/2011/01/04/1016751opc.pdf pp.7-8

This does beg the question of Attorney General Harris's actions. She could have done exactly as Judge Reinhardt suggested, and sought writs of mandami for the remaining county clerks in state court, on the purpoted basis that Proposition 8 violates due process and equal protection principles. (Looking at the FRCP, I can not find a rule that allows for motions to expand an injunction to include other persons, or to reissue an injunction to specifically name persons who may have been implicitly included in the original injunction, but even if such motions were available, the attorney general may lack Article III standing to pursue such a motion in federal court.) Instead, she decided to interpret the injunction as binding on all county clerks, rather than ask a court to settle the question.

Indeed, the California Supreme Court case brings up another interesting legal issue, which is how courts are supposed to interpret orders from sister courts if necessary to resolve its case and the order's scope is not plain on its face, as it is in this case. The case law cited by both the proponents and the attorney general shows that courts take it upon themselves to interpret sister courts' orders, rather than certifying the question to the sister court that issued the injunction.

Posted by: Michael Ejercito | Jul 15, 2013 10:59:29 PM

Well, the proponents indirectly are, through a state court action challenging the AG's interpretation of the injunction and arguing that Prop 8 remains in effect everywhere but LA and Alameda counties. But you're right--no one ever raised the issue in the district court.

Posted by: Howard Wasserman | Jul 15, 2013 8:05:03 PM

It's also worth noting that no party (or putative party) has ever claimed the injunction was overly broad.

Posted by: Anon | Jul 15, 2013 7:47:35 PM

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