David Boies up now, answering questions from the judges about which clerks and deputy clerks and whether they are bound by the injunction.

Q: Could a clerk deny a license to a same-sex couple, whether the clerk is in the other counties than LA and SF?

B: Yes and no. With respect to other counties, state law gives the right to enforce the law to the gov and AG, those individuals are responsible to obey and enforce the law.

Q: What is Ms Vargas to do? What is she to do?

B: If the court affirms, or does not have jurisdiction, two things happen. The state defendants would move to try to make uniform the state laws of CA –

Q: Where would they move?

B: State courts, as in Lockyer.

Q: so we are back where we started, with two counties in compliance and the other counties not bound?

B: No, your honor, that would be an enforcement proceeding.

Q: So the governor and the AG can simply order the clerks to obey the law?

T: Judge Walker has enjoined the gov and the AG — all the defendants —

Q: And that phrase — “all the defendants” — you made no effort in district court to include other than LA and Alameda. Not that you forgot?

B: No, we did not make this a class action.

Q: I dont understand: now, only the clerks in LA and Alameda are bound?

B: All are bound to issue marriage licenses to whoever the state determines is eligible?

Q: Why did you need this case at all?

B: We need this case to tell the gov and the AG, by a judicial determination –

Q: I think the AG would have told the clerks what to do.

Q: Gov and AG’s actions have nullified the considerable efforts made to place on the ballot and pass the prop? Haven’t they nullified the effect if they won’t appeal?

B: Only if the gov –

Q: So the honest answer is yes. The gov and the AG by not appealing put aside the will of the people at the ballot box.

B: After a trial and a finding of fact.

Q: Are they saying by not appealing, that they won’t enforce?

B: But they are enforcing it today! It every single standing case, because officials won’t appeal, they still enforced the law.

Q: They didn’t defend, the governor isn’t supposed to be able to veto a prop, no official will defend the initiative. That isn’t consistent with the initiative system — the state has simply thrown in the towel.

B: With regard to standing -0-

Q: Hasn’t the governor effectively vetoed the law by not appealing Walker’s ruling?

[discussion of English language case]

B: SCOTUS has, many times, said that the fact that there is no one to defend does not convey standing to others.

Q: The fact they will not defend, or even appeal — are they in fact not enforcing the statute?

B: That is a question of CA law –

Q: Is there any CA law on point? If you want me to find some, I’ll look, but I haven’t found any.

T: Lockyer applies.

Q: Why shouldn’t we ask the CA Supreme court what the law is in CA?

B: Well, that would only happen if this court didn’t know the law. It’s clear that the intervention right doesn’t convey standing to appeal. In prop 22 case, the fund –

Q: They weren’t the proponents

B: They claimed to be the propenents –

Q: but htat did not fool the court.

Q: The CA Supremes can tell us very quickly what they think about the standing of these appellants.

B: That kind of authorization is necessary but not sufficient.

Q: Didn’ Justice Ginsberg, under AZ law, ask the proponents to prove they had standing? Why wouldn’t it be enough if CA law said they had standing?

B: Ginsberg said, “However these proponents aren’t state officials….” She does not address whether non-state officials could act. If it’s not sufficient to give article three standing when written into the actual law (campaign finance) then standing can’t simply be granted here or from the CA Supremes.

Q: Just because a district judge has ruled that a couple of county clerks are enjoined, shouldn’t we find out from the CA Supremes and SCOTUS to which clerks these injuncitons apply?

B: Under the federal constitution, they don’t have standin gunless they have a personal, particularized, and [ ] reason to show they are affected by the case.

Q: So if we cert this for SCOTUS, and if SCOTUS says we don’t think the Gov and AG can veto a prop, therefore proponents can stand in, you would be back here arguing what you just argued?

B: We would. If CA Supreme wanted the case defended by the AG, they could have ordered it or the the proponents could have asked the AG to?

Q: IF we dismiss the appeal on standing, can we address the scope of the case?

B: no

Q: We can’t address the injunctions’s scope?

B: If the court ruled this injunction is beyond its scope, the court can’t rule….

Q: You’re counting on the AG to go into state court and order other clerks to follow the injunction.

B: no, we don’t know.

Q: Well, you’re lucky the election came out the way it did [laughter]

Q: Would Ms Vargas be able to file suit to determine if Walker’s decision binds her?

B: She could

Q: And if the court rules against her, could she appeal

B: Yes

Q” And she would have standing to appeal?

B: Yes, but she wouldn’t have the right to refuse to obey state law and the governor and AG have the right to make marriage laws uniform throughout the state.

Q: Why not make all these issues clear here, without the need for followup cases to order clerks in each county to obey what this case decides?

B: SCOTUS addressed this: “We must resist the urge to settle this case, since constitutional standing serves so many important purposes.” Efficiency isn’t always served by the requirements of law.

Q: Hard fo rme to beleive a lawyer of your standing and fame would only want this ruling applied in two counties. You are an excellent lawyer, even though you lost once to Mr Olson [laughter]. So aren’t these people covered by the injunction? If they are, why can’t they appeal?

B: Your honor, the injunciton goes to all people and their subordinates. We must also address the registrar.

Q: The registrar drafts the forms, and the clerk only completes, in a ministerial way, the forms. How can a clerk bring a case if the clerk is only completing a form?

B: If the clerk believes she is bound, she would have the narrow ability to ask the court if the court binds her as a deputy — or even the REAL CLERK, were she here — but this would be very narrow.

B: To sum up, this case shows the respondents aren’t defending this case. These appellants do not have the personal, concrete, and particularized harm that state and federal law make clear, and Ginsberg has made clear. Because they don’t have standing —

Q: You are running over, let me ask one other quesiton. Rule 65, anyone who served is acting in concert with people, are bound if they are served. Would that not apply to any clerk who is involved in the marriage business, when it’s an integrated process? Would not anyone bound ahave the righ to appeal?

B: People directly bound would have the right to appeal, but this injunction makes clear they are not among those bound. Then the issue would be whether they are bound. The injunciton here doesn’t use the Rule 65 language –

Q: Would you need to be served? You might serve them….

B: No thank you your honor….. [laughter]

COOPER BACK UP

Arguing Karcher —

Q: In Karcher, wasn’t the state AG willing to defend?

C: DId not defend, unwilling to defend except with regard to attorneys’ fees due the state. Only the parties — the president of the senate and the speaker — brought the law in Karcher, showing they had the right to intervene when state actors won’t. Strauss rules here (Oh, my I am out of time!) I urge you to ask CA Supremes before you dismiss this case that nullified the will of the people.

TEN MINUTE RECESS

I’ll start Part 3 with a new liveblog thread.