Today three Ninth Circuit Court of Appeal judges will hear arguments in the appeal of Perry v Schwarzenegger. I’ll be liveblogging the arguments here; there’s also liveblogging at Emptywheel’s site today.

You can watch along with us; CSPAN and the California Channel are carrying live coverage of the courtroom today.

There will be two hours of arguments, starting at 10am pacific. The first hour will be on ‘standing’ to hear whether the defendant-intervenors (along with a few counties) can appeal this case without the state of California acting with them, since neither the governor nor the attorney-general has chosen to enter this appeal. The second hour of arguments will be on the merits of the appeal, in case the judges decide that the appellants do have standing to make their appeal.

Additionally, closed circuit viewing of today’s hearing is available at these locations (h/t American Foundation for Equal Rights):

Philip Burton Federal Building & U.S. Courthouse
Ceremonial Courtroom, 19th Floor
450 Golden Gate Avenue
San Francisco, CA

L.A. Gay & Lesbian Center
The Village at Ed Gould Plaza
1125 N. McCadden Place
Los Angeles, CA

Theodore Roosevelt U.S. Courthouse
Courtroom 6A, 6th Floor225
Cadman Plaza East
Brooklyn, NY

Richard H. Chambers U.S. Courthouse
Mezzanine Conference Room
125 South Grand Avenue
Pasadena, CA

U.S. Pioneer Courthouse
Pioneer Courtroom
700 SW Sixth Avenue
Portland, OR

William K. Nakamura U.S. Courthouse
Courtroom One, 8th Floor
1010 Fifth Avenue
Seattle, WA

John Joseph Moakley U.S. Courthouse
Courtroom 11, 5th floor
1 Courthouse Way
Boston, Massachusetts

Here is a summary of what to expect this morning, from AFER Board President Chad Griffin:

Presenting Our Case

The stellar legal team led by Theodore B. Olson and David Boies will defend what we proved conclusively in Federal District Court: marriage is a fundamental right; denying that right to gay and lesbian Americans harms them and their families; when couples can marry, they and their children benefit at no one’s expense.

The Federal Distict Court affirmed our argument: “Because California has no interest in discriminating against gays and lesbians…the court concludes that Proposition 8 is unconstitutional.”

AFER’s attorneys will argue that the District Court was correct when it found that discrimination against gay and lesbian Californians violates the U.S. Constitution’s guarantee of equality under the law. Denying gay and lesbian Americans the freedom to marry relegates them to a second-class status.

Refuting the Opposition

Olson and Boies will again confront the tired, failed arguments that the proponents of Prop. 8 presented during the trial. Anti-marriage forces will once again state that barring same-sex couples from marriage is essential to foster “responsible procreation,” and argue that fundamental constitutional rights can be won and lost at the ballot box, while ignoring the mandate of our judiciary to defend us all. They will continue to claim, as their lead counsel Charles Cooper stated during closing arguments, that the courts don’t need any evidence to determine that discrimination can be written into our laws.

Addressing Standing

The court has also asked both sides to discuss whether the proponents of Prop. 8 have standing to appeal the district court’s decision, a question they must answer in all cases they consider. While there are numerous ways the court can rule, AFER is hopeful that the court will consider and address the merits of the case.

The 14th Amendment of the U.S. Constitution protects every American. We are prepared to take our case to the U.S. Supreme Court, because all gay and lesbian Americans deserve the freedom to marry.

About the judges (LA Times):

When a federal appeals court meets in San Francisco on Monday for arguments on Proposition 8, legal analysts will be closely watching Judge Michael Hawkins, a moderate Democratic appointee whose vote is expected to be critical in the same-sex marriage case.

The randomly chosen three-judge panel of the U.S. 9th Circuit Court of Appeals also includes Judge Stephen Reinhardt, a California liberal appointed by President Carter, and Judge N. Randy Smith, a conservative from Idaho appointed by President George W. Bush.


(technician is doing microphone checks now)

(announcement from the clerk: welcome to the Ninth Circuit (she’s not using one of the microphones) turn off cellphones, etc)

We are awaiting the judges now. The courtroom has gotten very quiet.

“All rise!” Judges are taking the bench.

Clerk calling the case, judge announcing the cases.

Charles Cooper, representing the appellants.

C: The appellants are the official proponents, along with Protect and Imperial County. Two issues: do the appelants have standing, and does the District Court have the right to make such a sweeping decision with only four plaintiffs before it, with no reference to a class.

C: We submit that this case is governed by Karcher v May, where there was a challenge to a Moment of Silence law. They sued the state and local education officials, who declined to defend. The court there allowed the Speaker of the Assembly and the President of the Senate to represent the state in defending its statutes. The Supreme Court rejected the claim that they didn’t have standing, because the NY Supreme Court had previously allowed legislative officers to intervene.

Q: Before or After Arizona?

C: Before

Q: Therefor it didn’t address Justice Ginsburg’s statement that proponents should never be allowed standing?

C: No, because it occurred earlier. [Cooper off, regaining composure]

Q: What’s your best case for allowing proponents in a federal case?

C: I don’t have a case. This case is the case I’m arguing.

Q: Justice Ginsburg said in the Arizona case there wasn’t any state law allowing proponents standing. Are you aware of any CA law that allows proponents standing?

C: The case of Strauss, where these very proponents were allowed to defend this very case.

Q: Yes, but Strauss only talks about you as agents of your proposition. We’re in a difference situationhere, where you are acting as agents of the state.

Q: The Attorney General has a responsibility to defend laws. Did you ever seek an injunction seeking the attorney general to appeal? Then ask if you could act in his stead?

C: No –

Q: Well, wouldn’t that have been appropriate way for you to seek to compel the attorney general?

C: Judge Reinhardt, you are correct, there was an unsuccessful suit my clients were not party to.

C: The NJ Attorney Gneeral declined to defend, but in Karcher SCOTUS recognized that legislative officers had the authority to intervene t the trial level but also to notice and take an appeal. Again, your honor, I would urge the court that the LAW — the STATE LAW — relied upon by the Karcher court as demonstrating that legislative officers had a right to defend, this was a NJ Supreme Court decision — just like the CA Supreme court is the law we rely on, where the CA Supreme Court allowed these proponents to intervene in the Strauss case to defend Prop 8′s constitutionality when no state defendants would do so.

C: The only party defending were these proponents, the CA Supreme court denied intervention status to another group, which had been active, who sought to intervene but was not the OFFICIAL appeal. Also, in the Marriage Cases, in the Appeals level, the court denied intervention to a group not the official proponents.

Q: What about earlier discussion, about getting a writ to get the state officers to defend? What was the decision?

C: I don’t have specific recollection

Q: Better to say you don’t know, than say YES and be wrong.

C: In intersts of time, I’ll reserve my balance for rebuttal.

(new lawyer now)

Robert Tyler for the plaintiffs

T: The plaintiffs want….

Q: Tell us where Dolores Provencio is.

T: I have her deputy here, in the county of Imperial.

Q: Is there anything to suggest she’s acting with the deputy’s permission?

T: Um

Q: The answer is no.

T: Well…

Q: There is nothing in the record to show that your client has any authority to act as the clerk….

T: No

Q: Is the clerk elected or appointed?

T: Um, appointed?

Q: by whom?

T: By the Board of supervisors

Q: “All county duties are vested in the county officer, with a deputy able to act only when deputized officially….”

T: I would disagree

Q: You disagree with [this case]/

T: the clerk has the ability to commission….

Q: No question the clerk MAY do. But has this clerk done so in this case?

T: You honor, I understand, but this is a government position, designated by CA law, acts this position is carrying out. She is enjoined by the injunction –

Q: You say she’s enjoined? Your brief says the opposite.

T: Judge Walker says all county clerks are bound, have no authority to act otherwise.

Q: I thought the clerk was an independent officer, not bound by Judge Walker.

Q: [interrupts] Just because she thinks she’s bound, and just because she thinks she’s bound by Walker, but — she is an independent officer with duties set forth in the code, not subordinate to the Registrar.

T: Yes, in her official duties, to determine whether the applicants fo r a license meet the requirements.

Q: Are you suggesting the clerks are state officers?

T: They are statutory

Q: Yes or no, are the state officers

T: No

Q; Then how do I get around this language that they are performing a state function

T: Your honor, I’m not sure this is what the case turns on [this guy is where off where he wants to be]

Q: Let me turn to the language in Locke, here, if you are going to insist on this. [reads law about constitutional authority and not being able to compel a court to rule on the consitutionality of a law]

Q: If clerks are state officers and they can’t compel courts to rule, and the attorney general is the officer who defends the clerks, how can the clerks act independently of the AG’s decision.

T: There is not a single governmental defendant defending this decision, except my client.

Q: Suppose the voters passed a prop that said prosecutors must seek death penalty in murder case. Could a deputy district attorney sue to overturn?

T: They could not on their own decide to///

[hypotheticals about district attorneys, their deputies]

Q: Under the CODE, the deputy is given the same responsibilities of the clerk

T: Yes, and she has stated that….

Q: If you don’t know the answer, say so, please don’t answer a different question.

Q: Where a clerk has officially declined to defend the law, can a deputy defy his boss and file an appeal?

T; Yes he does

Q: how long would that deputy last?

T: Well the deputy has that right

Q: We have the DEPUTY, let’s not forget that. Why the clerk is not here is a mystery.

T: I don’t believe the case turns on that.

Q: But it concerns some of us on the panel. Nowhere in your statement does it say that she is acting with the authority of her boss.

Q: Did you ask the AG for the authority to appeal?

T: we are appearing on behalf of the clerks who in every county are sued? [concludes] Should my client comply with the CA constitution or with Judge Walker’s order?

Q: Did Walker say your client was bound.

T: Walker said….

Q: yes or no

T: Not in so many words….

Q: We are taking other peoples’ time.
Was walker in error about whether your client is bound.

BOIES UP, I am starting a new liveblog thread.