Ninth Circuit clears the deck for the important Prop 8 issues
The Ninth Circuit has announced its game plan for tackling the cluster of Prop 8-related cases now pending before it. Bottom line, the court will not delay issuing its opinion on standing and on the merits question of whether Prop 8 is unconstitutional in order to hear additional arguments. Without knowing how long it will take to draft the opinion (especially since it is possible that the panel has not even deliberated yet on the merits question), it is impossible to predict how quickly an opinion might be issued. But it looks like the court will not let itself get sidetracked by the ancillary questions of videotapes and recusal.
In the interest of (my own) time, I'm going to quote Lyle Denniston's post from SCOTUSblog:
...[Today, December 2,] the panel is receiv[ing] new briefs — from each side simultaneously — that will bear on question [of whether the proponents of Prop 8 have standing to appeal the District Court ruling that it is unconstitutional.]...Once those new briefs are in, the panel seemed to be indicating by its announcement, it will then move on to decide the two constitutional questions. The announcement stressed that “there will be no further argument” in that proceeding. It also emphasized that, up to now, the three-judge panel has not made a final decision on either question...
Besides the constitutional case, the same panel has before it two other cases brought to it by the Proposition 8 backers. One (docket 11-17255) is an attempt by the ballot measure to overturn a different federal judge’s ruling allowing the public release — and thus public broadcast — of the videotape made of the entire trial before Judge Walker. That tape has remained sealed since the trial was over, but the same-sex couples who won the case before Judge Walker, along with a coalition of media organizations, are seeking public release of the recording. Its release is on hold in the meantime. The Circuit Court said Wednesday that it will hold a hearing on that case at 2:30 p.m. (Pacific time) on Dec. 8.
The other case (docket 11-16577) is a plea by the Proposition 8 backers to throw out entirely Judge Walker’s ruling against Proposition 8, on the argument that he should have been disqualified from conducting the Proposition 8 trial, because he is gay, is in a long-term personal relationship with another man, and was thus in a position to benefit from any decision striking down gay marriages in the state. That plea has been rejected by the judge who succeeded Walker on the case, Chief District Judge James Ware of San Francisco. (Judge Ware is also the one who has ordered release of the videotape of the Walker trial.) The Court said Wednesday it will hold a hearing on that case at 3:30 p.m. (Pacific time) on Dec. 8.
Both hearings, according to the announcement, will be videotaped “for later broadcast on C-SPAN and the NBC-7 television station in San Diego.” The Court will also allow still photographs of its hearings. A live audio and video feed of the two hearings will be sent to other rooms in the San Francisco federal courthouse, and to viewing sites in federal courthouses in Pasadena, in Portland, Ore., and in Seattle, Wash. [that are also located within the geographic boundaries of the Ninth Circuit].