Prop. 8: Imperial County's role in defending gay-marriage ban questioned

A federal appeals court on Monday began hearing arguments on the constitutionality of Prop. 8, California's ban on same-sex marriage.

Erwin Chemerinsky, dean of the UC Irvine School of Law, said one of the issues before the court is whether Imperial County, where voters overwhelmingly supported Prop. 8, has the authority to intervene in the case and defend the initiative. Here’s an analysis he provided to The Times:

If Imperial County can intervene and defend Prop. 8, then there would be no need for supporters of Prop. 8 to have standing to do so. But both Judge Hawkins and Judge Smith seem very skeptical of the authority of the deputy clerk to seek to intervene on behalf of Imperial County. Both stressed that the clerk is not seeking to intervene and a deputy clerk lacks the authority to do this. Judge Smith also has raised the issue of whether the clerk is a state officer or a local officer. If the clerk is a state officer, then the clerk would not have the authority to represent the state -- only the governor and the attorney general can do so. The clear sense so far is that all three judges are very skeptical of allowing Imperial County to intervene.

As someone who has argued dozens of appellate cases, I empathize with Mr. Tyler, who represented a deputy clerk from Imperial County in seeking to intervene. It was clear from the time he came to the podium that none of the three judges thought that a deputy clerk has standing to represent the clerk or the county.  He also made a major error in saying that the clerk was appointed and then having to correct himself and say that the clerk is elected.

It is often difficult to read oral arguments to get a sense of the result, but the judges left little doubt that they do not believe that the deputy clerk has standing to represent Imperial County. This is important because if the supporters of Prop. 8 do not have standing and Imperial County cannot intervene to appeal, then the appeal must be dismissed for lack of standing.

FULL COVERAGE:

Judges question whether gay-marriage foes have legal standing

Judges must decide whether backers of same-sex marriage have legal standing to appeal

Arguments before court go well beyond gay marriage, Pepperdine professor says

Photo: Erwin Chemerinsky UCI

Comments

[Jim Wickson]

I'm so glad I no longer live in Imperial County. I would be ashamed of how this county has become an active agent in the promotion of religious intolerance. Imperial County is on the wrong side of history. From what I've seen concerning the public's view on DADT, there appears to be a generational shift in thinking concerning sexual orientation and eventually same sex marriage will not be seen as the boogy man the self styled Christians proclaim it to be. Sooner or later prop 8, like DADT will be defeated as people become more enlightened and the remaining intolerant folks need to deal with it. I believe the bigoted attitudes of this county may actually discourage job creation in the economically depressed area because they've now become the laughing stock of California if not the entire nation.

[william kraal]

LETS HAVE EQUAL RIGHTS FOR ALL AMERICANS NOW, GAY OR STRAIGHT.

[Bob Conti]

As somebody who also has argued cases before state and federal appellate courts, I have not one scintilla of empathy for Mr. Tyler. He was deservedly raked over the coals for trying to intervene on behalf of the county when the best he could come with as an interested party was an assistant clerk, because the county clerk had no interest in the matter. You don't come before a federal appeals court unprepared and with flimsy legal arguments. I hope others learned this at Mr. Tyler's expense.

[customartist]

After having watched the entire Appeals Process, I have to agree with Bob Conti. The moment that the question was posed, "Well, where is The Clerk?", I was amazed at the nerve of Mr Tyler. One can only presume that he is being paid very well in order to take on the shame of standing there, televised. He must have known,...or he should have,...and he does now!

Is there any real concensus in Imperial County to fight this fight, or is this the foolishness of a few who managed to convince the Deputy Clerk to go on record with this initiative?

We have State-Wide elected officials, elected by Californians, to speak for Californians. Could just ANY locally employed Deputy Clerk speak for the entire state in Any Litigation? I hope not, but we will soon see if that door is left open.

And finally, will a finding of "No Standing" automatically eliminate the possibility of a Supreme Court Appeal? Anyone?_____________