A Live Blog from the California Supreme Court Hearing on the Standing of Proposition 8 Defendant-Intervenors

This is from another diary post I had written on the subject matter.

Today the California Supreme Court will be holding a hearing to determine whether the Proposition 8 Defendant-Intervenors would have standing under state law to appeal Judge Vaughn Walker’s August 4, 2010 decision, in Perry v. Schwarzenegger, holding Proposition 8 unconstitutional. The hearing begins at 10 am pacific time/1 pm eastern time.

I’ve decided to do a live a blog of the hearing so we can follow and comment on the hearing as it unfolds. Live Coverage of the California Supreme Court hearing can be found here:


While we wait for the hearing to begin, I figured some of you might be curious as to why this hearing is taking place. In a nutshell, the California Supreme Court has decided to answer a certified question from the 9th Circuit Court of Appeals (they’re not required to do this but have chosen to do so) regarding the Perry v. Schwarzenegger case. The 9th Circuit has held that it cannot determine whether the Prop 8 Defendant-Intervenors had standing under federal law to appeal the decision in Perry v. Schwarzenegger until getting a definitive word as to whether the Defendant-Intervenors would have standing under state law (California Law) to appeal. Because the California Supreme Court is the final arbiter of California Law, the task falls to them.

If the Defendant-Intervenors have standing to appeal, the case will be decided on the merits by the 9th Circuit appellate panel. If they do not have standing, the case will effectively be over, as there will be no one to appeal Vaughn Walker’s decision (a case can’t be overturned if it is not appealed).

10:02 AM PT: Here we go…Now in session! This is exciting!

10:03 AM PT: The California Channel appears to have ceased working. But the channel may be different than the one I previously had given…try this one:


10:08 AM PT: Unfortunately technical issues seem to have the site down for me….not sure what’s going on…

10:11 AM PT: For now, I’ll send you over to the Prop 8 Trial Tracker where they seem to have continued coverage of this:


10:23 AM PT: And we’re back up!!! WOOHOO!!!

10:26 AM PT: Cooper (the lawyer for the defendant-intervenors) argues that they have a direct interest.

10:28 AM PT: Chief Justice Canti-Saukuye asks a very important question of the Prop 8 proponents and points out that in every intervention case, the defendant-intervenors have stood shoulder to shoulder with the government officials.

Proponents are done. Now it’s Ted Olson[‘s time!

10:30 AM PT: Justice Chin starts in with tough questioning, asking whether the Governor and Attorney General have the right to pick and choose the laws of the state they want to enforce.

Olson’s response is strong. He argues that the California Constitution puts the Gov and the AG in charge.

10:31 AM PT: Olson has a strong separation of powers argument: He argues that the initiative power is a legislative one, NOT an executive one.

10:34 AM PT: Justice Liu asks whether the initiative process is not an important check on the legislative power.

Olson argues that the Court would be amending the California Constitution by allowing standing. He argues that an amendment would have to include a standing provision to defend the initiative.

He argues that that the initiative process is a check on legislative power but not a check on executive power. (Justice Liu Disagrees).

10:38 AM PT: Ted Olson stands firm. He argues that the initiative power only gives the power to propose and enact.

He further argues that this power has not been nullified. He points out that the Governor and Attorney General are still enforcing Prop 8.

10:40 AM PT: Chief Justice Tani Canti-Saukuye does not seem sympathetic to our side. She points out that Olson’s arguments “belong in federal court.” She asks what happens to the state’s interest. “Does it evaporate?”

10:42 AM PT: You gotta give it to Ted Olson. He is standing firm against very tough questioning by the Court.

10:45 AM PT: Justice Werdegar points out that whether the Defendant-Intervenors have standing under federal law is a question that is irrelevant to the California Supreme Court. Justice Chin has been the most aggresive questioner of Olson.

10:48 AM PT: Technical Difficulties seem to be starting up again….argg…..

Try this link:


10:50 AM PT: Justice Kennard asks whether not giving standing to the proponents is unfair to the Court as well as the proponents of the initiative.

10:54 AM PT: Olson points out: “proponents are elected by no one.”

Justice Werdegar has countered that by the fact the initiative power as it exists in the California Constituion might imply that power.

10:57 AM PT: I think what’s interesting here is to see the difference between U.S. Law and California Law come to light.

11:00 AM PT: Olson comes back to his past argument and brings it home:

The initiative power gives the people of California legislative power. Thus, the voters are limited in the same way as the legislature is limited. And here they are limited on the issue of standing.

IMO, Justice Werdegar seems to be most favorable to our side.

11:04 AM PT: Justice Werdegar is giving tough questioning to Cooper. She asks whether there can be two entities claiming to be representatives of the state. Good Point.

11:08 AM PT: Justice Liu asks the proponent’s lawyer what their particularized interest is in this case. Cooper can’t seem to give a good answer.

11:10 AM PT: And it’s over. Thanks for blogging folks (and patience with technical difficulties!).


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