…I figure one or maybe two people know what I’m talking about.
Anyway, I think the CA Supreme Court said it would act “as quickly as possible” on getting to the newest legal challanges to Prop 8, but I haven’t seen an exact date, yet.
In case I missed it, has there been a date set, yet? And if not, could anyone here make an educated ballpark guess of how long it’ll take? Weeks? Months? After the holidays and the new year?
Short answer: dunno, but maybe a month or two.
Longer answer: Here’s the California Supreme Court’s website, and they’ve put on their front page the links to the writ petitions filed challenging Prop 8.
I looked at the dockets for the three cases, and so far petitions have just been filed. I don’t recall off the top of my head the normal timing procedures for a writ proceeding, but because the Court will undoubtedly take these cases after full briefing, the Court will likely set a pretty quick calendar. My guess (and this is purely a guess) is that the Court will move as quickly as possible to resolve the issue, so maybe end of the year/January?
Note also that the Strauss petitioners have filed an application for an immediate stay, so the Court will rule on that issue first. That means that the petitioners have asked the Court to order the state not to implement Proposition 8 until the Court rules on the petitioner’s claim that Proposition 8 is invalid. So the Court will have to deal with that pretty quickly, either by granting the stay or denying the stay. (And whichever way they rule on that issue, you shouldn’t take that as a decision on the merits, so even if they deny a stay, they still could find Prop 8 invalid.)
I haven’t read any of the briefs, but I’m pleased to see both Munger Tolles and Orrick on the briefs for the lead case. They’re both good firms (Munger is kind of the egghead boutique firm; lots of former clerks from top notch schools) that are creative and well respected. And the third suit is filed by San Francisco and Los Angeles; per the news, other cities also are considering that suit. So there should be some good lawyering on behalf of the petitioners. This is particularly important because the argument that they’re making is a technical legal argument – that Prop 8 revises the California constitution, rather than simply amending it, and as such is invalid because the constitution cannot be revised by the initiative process.
This goes straight to the Supreme Court without having to work it’s way up from the trial courts? 
Why is that?
I would guess that since it directly involves the State Constitution rather than the constitutionality of a law, it would go straight to the Court.
From the website of the Supreme Court of California
I would assume that since the petitions are to stop the government from implementing the amendment, it would qualify as a mandamus or prohibition applciation. Is that right, Campion?
Yes, the petitions are for writs of mandamus, so can be filed in the Supreme Court. Note, though, that the Supreme Court doesn’t have exclusive original jurisdiction: “The Supreme Court, courts of appeal, superior courts, and their judges have original jurisdiction in habeas corpus proceedings. Those courts also have original jurisdiction in proceedings for extraordinary relief in the nature of mandamus, certiorari, and prohibition.” Cal. Const., Art. VI, Section 10.
What this means, for the non-lawyers, is that if you want to file certain types of writs (like mandamus, which is a writ asking the Court to require someone to do something), you can file those writs in the Supreme Court, a Court of Appeal, or a trial court. Here, the parties have sought a writ of mandate and chose to file it directly in the Supreme Court.
Here is the rule of court governing writs of mandate, and it says: “If the petition could have been filed first in a lower court, it must explain why the reviewing court should issue the writ as an original matter.” Cal. R. Ct. 8.490(b)(1).
Here, the explanation is that the “issues presented are of great public importance,” particularly because Prop 8 changes the status quo, deprives a minority group of a fundamental, core constitutional right, and places an irreparable burden on homosexual couples and only homosexual couples. And because there are no issues of fact to resolve (this is a purely legal issue), going directly to the Supreme Court is a good option.
Who presents the case in favour of Prop 8? The group that got it on the ballot? The Attorney-General?
The Attorney General of California is charged with enforcement of California law, so that although the AG opposed Proposition 8, he is charged with defending it. And make no mistake – he will put forward a vigorous defense of it, not because of any personal beliefs, but because he is charged with enforcement of the law and it’s therefore in his interest to weigh in on whatever rule the Court lays down with respect to ballot initiatives versus legislative proposals.
The Strauss plaintiffs also have sued a couple people whose job it is to provide marriage application forms, registration forms, etc. They will likely be represented by the AG’s office.
Others may apply to supply Amicus Curiae briefs to the Court in support of Prop 8, and it’s likely that the Supreme Court will permit some amicus briefs, to ensure the best possible legal arguments are made.