Courts and prop 8

[pastorables]

http://apnews.myway.com/article/20081119/D94I8U1G3.html

If the courts overturn the prop 8 vote due to lawsuits, can countersuits be filed?

pa

[Pastor Gary]

http://apnews.myway.com/article/20081119/D94I8U1G3.html

If the courts overturn the prop 8 vote due to lawsuits, can countersuits be filed?

The members of the Supreme Court of California are elected, and the same voter majority that passed Prop 8 could vote every one of them off of the court.

[MacUser]

The members of the Supreme Court of California are elected, and the same voter majority that passed Prop 8 could vote every one of them off of the court.

http://en.wikipedia.org/wiki/California_Supreme_Court

Not exactly correct according to Wikipedia. They are first appointed by California Governors to serve 12 year terms and then approved by a retention vote in the next general election.

Hopefully after the 12 year renewal.. they can not be "retained". But the current Governor will still determine replacements.

[dolfan]

Countersuits? No. But, counter-challenges? Yeah, and they're already in the pipeline.

So, here's the deal. They're arguing that the voters do not have the right to make this particular kind of constitutional amendment by ballot initiative. I don't know enough about California law to say if this is a good argument. But, that has to be the argument! They cannot say that the proposition's language itself is unconstitutional because, as it stands, the language IS part of the constitution of the state of California. You can't have a constitution that is unconstitutional as to itself. I'm not aware that the challenge is based on any federal rights of due process, either. Looks like, at least just in the news articles, this is a purely state constitutional issue and question.

It could be that California law does not allow this particular kind of ballot initiative as a means to amend the state constitution. I don't know. But, I'm real suspicious of it because if it were so, the challenge probably would've been brought before the proposition was ever printed on the ballot. Of course, the response to that is that the opponents of the proposition never thought they'd lose, so there was no harm in their view for letting it go to a vote even if it was a void exercise, constitutionally speaking, and they could just keep their powder dry until after the election if it should pass. Which, it did, didn't it?

[Tim Elston]

Of course, the response to that is that the opponents of the proposition never thought they'd lose, so there was no harm in their view for letting it go to a vote even if it was a void exercise, constitutionally speaking, and they could just keep their powder dry until after the election if it should pass. Which, it did, didn't it?

I heard a pro-abortion leader in South Dakota say that her group actually put a strong anti-abortion initiative on the ballet so that it would be defeated and give the impression to politicians that they did not need to kow-tow to conservatives on the issue. You never know these days.

[dolfan]

WAY off topic.

Tim, is it dark during daytime in Alaska where you are? Describe the daylight situation for me.

[dbserv]

The members of the Supreme Court of California are elected, and the same voter majority that passed Prop 8 could vote every one of them off of the court.

http://en.wikipedia.org/wiki/California_Supreme_Court

Not exactly correct according to Wikipedia. They are first appointed by California Governors to serve 12 year terms and then approved by a retention vote in the next general election.

Hopefully after the 12 year renewal.. they can not be "retained". But the current Governor will still determine replacements.

HOWEVER, we RECALLED 3 LIBERAL CA Supreme Court Judges since I've lived here. Their replacements are still on the court, I believe. I know that here locally, we are looking at that option should they rise up AGAIN against the WILL OF THE PEOPLE!!!

[forestwalker]

Countersuits? No. But, counter-challenges? Yeah, and they're already in the pipeline.

So, here's the deal. They're arguing that the voters do not have the right to make this particular kind of constitutional amendment by ballot initiative. I don't know enough about California law to say if this is a good argument. But, that has to be the argument! They cannot say that the proposition's language itself is unconstitutional because, as it stands, the language IS part of the constitution of the state of California. You can't have a constitution that is unconstitutional as to itself. I'm not aware that the challenge is based on any federal rights of due process, either. Looks like, at least just in the news articles, this is a purely state constitutional issue and question.

Here's a summary of the situation as I understand it:

An amendment (i.e. addition/clarification) to the state constitution requires simply a majority vote of the electorate. A revision (i.e. substantive change) to the state constitution requires a 2/3 vote by the legislature affirmed by a majority vote of the electorate. Prop 8 was passed as an amendment; the argument being posed to the courts is that it is truly a revision and not valid as passed.

Two things muddy the waters. One, the distinction between amendment and revision is not clearly defined and has never been adjudicated. The second, and far bigger, muddying factor is the timeline of how things have played out this year.

A year ago Prop 8 would clearly have been an amendment. It is explicitly spelling out what until very recently had been the implicit culturally assumed and universally recognized meaning of the word "marriage" in state law. However, the state supreme court's recent ruling allowing gay marriage was based largely in the lack of such an explicit definition, in effect applying a definition of the word marriage which was foreign to the implicit standing definition. The argument now is that amending the constitution to more explicitly state what was previously the implicit meaning under law constitutes a revision of the constitution because the ambiguous term has been adjudicated to mean something incompatible with that definition.

[dolfan]

Well, I'd put money down that it'll get adjudicated as a revision. Revision vs. amendment. That's a built-in safeguard to keep the power of amendment in the hands of the few when a popular initiative passes that is highly disapproved by those in power. Now, they'll play that trump card to call it a revision, and of course, the California Legislature's chances of passing such a "revision" by 2/3 is, well, nonexistent.

[forestwalker]

That's my expectation as well.

[dbserv]

That's my expectation as well.

I think so too and I think that is why the preparations are being made for the "recall" process.

I know it's not supposed to have an effect, but you know that judges read the news too. So, perhaps the "recall" chains are being rattled in the hopes that public opinion MIGHT be persuasive.


It did work for the 9th District Appeals in the Pledge matter. I realize it was after the original ruling, but they did reverse themselves.



So, time will tell ............................................