Bench Memos

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Walker’s Gamesmanship on Defendants’ Appellate Standing


It would seem that Judge Walker has been gaming for some time to try to deprive Prop 8’s proponents of a right to appeal.   (As I hope to explain soon, I don’t think he’ll succeed.)

Last December, Imperial County and its officers moved to intervene in the case as defendants (that is, to support Prop 8).  Walker somehow didn’t act on their motion until last week, when he denied it in a separate order that he issued the same day as his final ruling. 

In his denial of Prop 8 proponents’ stay request, Walker relies heavily on the fact that no state defendant has yet filed an appeal of his final ruling.  If a governmental state defendant with standing—such as Imperial County—had done so, he appears to concede, it would be clear that the Ninth Circuit would have jurisdiction to reach the merits of the Prop 8 proponents’ appeal. 

It is Walker’s denial of Imperial County’s motion to intervene that might impair prevented Imperial County from directly appealing Walker’s final ruling.  (Instead, Imperial County has filed a notice of appeal of Walker’s denial of its motion to intervene.)  And his long delay in denying that motion prevented Imperial County from pursuing an expedited appeal that, if successful, would have made Imperial County and its officers intervenor-defendants by the time of Walker’s final judgment.

Update (8/16):  As the strikethroughs of deletions and underlining of additions indicate, I’ve made some tweaks to reflect the facts that (1) Walker also contends that Imperial County and its officers wouldn’t have Article III standing on appeal, and (2) Imperial County’s notice of appeal applies both to the denial of the motion to intervene and to the final judgment.


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