Dronenburg and Reasonableness

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4 Responses

  1. Ken Rhodes says:

    I’m confused by the timeline, juxtaposed with what sounds like “be patient; details need to be worked out.” I think your brief recap of the complicated procedural history doesn’t go back far enough.

    At some time (presumably, quite a while ago) county clerks in California were issuing, or were ready to issue, marriage licenses to same-sex couples. They were stopped from doing so. In your recap, you state that the Federal District Court found Proposition 8 unconstitutional. Since you mention that as the first step in your recap, I assume it was Proposition 8 that stopped the issue of the licenses at that time. And presumably, once that Proposition 8 had been declared unconstitutional, the clerks could begin issuing the licenses, perhaps after some “customary waiting period.”

    Then the finding of the District Court was appealed. This put the issuance of the licenses back on hold. Finally, after a long lapse of time, SCOTUS ruled that the appealers had not the standing to do so, which thereby left the ruling of the District Court intact.

    Now here’s what bothers me. At some long-ago time, the Ninth Circuit quickly issued its order (not waiting the customary period). OK, let’s stipulate that there was a customary waiting period of some unspecified length, and that it should have been observed. But that was then and this is now. How long are the applicants for licenses supposed to wait out the delaying tactics of their tormentors? How many times do those tormentors get to continue to reset the clock back to zero?

  2. JamesInCA says:

    Ken Rhodes —

    The history isn’t quite as complicated as that.

    County clerks issued marriage licenses to same-sex couples for the first time in 2008, after the state Supreme Court found the existing law prohibiting SSM unconstitutional. Approximately 18,000 couples were married from May/June 2008 to November 2008, when Prop 8 passed and took immediate effect. Those were the only same-sex marriages that occurred prior to their resumption last month.

    The federal district and circuit court rulings found Prop 8 unconstitutional under the U.S. Constitution, but both courts stayed their rulings until the appeals process could be completed.

    After the U.S. Supreme Court vacated the Ninth Circuit’s ruling this June 26, the issuance of marriage licenses was prevented only by the Ninth Circuit’s stay of the district court ruling. The Ninth Circuit opted to lift that stay more quickly than is typically the case. The Governor and CA Attorney General had already issued directions to state and county agencies to resume issuing marriage licenses when the stay was lifted, and so those agencies did so.

  3. y_p_w says:

    The response by the CA Attorney General already mentioned the Fenske v. Board of Administration case of 1980. The AG’s office argued that Article III, Section 3.5 of the CA Constitution didn’t apply to a federal court order. The 1980 precedent was an appellate court ruling that stated that a CA Superior Court order still had to be followed by state agencies.


    “The Board contends that section 3.5 divests the superior court of jurisdiction to rule on the constitutionality of statutes governing administrative agencies. Consequently, the Board asserts that this court should adopt a procedure that a petitioner who has completed the administrative process and is still aggrieved should be authorized to bypass the superior court and petition directly in the Court of Appeal when an issue of constitutionality still remains. We disagree. While jurisdiction could have been given to a court other than the superior court, that was not the purpose of section 3.5. The power of the administrative agency, not the power of the superior court, is the subject matter of section 3.5. Section 3.5 did not deprive the superior court of its power to declare a statute unconstitutional. The power of the judiciary to declare laws unconstitutional is firmly entrenched as a basic principle of our government (see Marbury v. Madison (1803) 5 U.S. (1 Cranch) 137 [2 L.Ed. 60]; 5 Witkin, Summary of Cal. Law (8th ed. 1974) Constitutional Law, § 42, pp. 3280-3281). In the instant case the superior court, not the administrative agency, declared the statute unconstitutional. When a superior court issues a writ directed to an administrative agency to not enforce a statute because it is unconstitutional as it relates to an individual petitioner, or class of petitioners, the administrative agency must obey that mandate.”

    ** **

    It’s clear to me what this means. It means that if an “administrative agency” believes a statute is unconstitutional or violates federal law, it should petition a California appellate court to declare that law void. However, it doesn’t prevent non-agencies or private parties from petitioning in a California Superior Court or any federal court.

  4. Michael Ejercito says:

    Of one thing there is no doubt- the injunction requires the clerks of Los Angeles and Alameda Counties to issue marriages licenses to the Perry plaintiffs. Article III, Section 3.5 does not apply to that particular act.

    The clerks who were not parties in the Perry case would not be precluded from raising the constitutionality of Proposition 8 in a different court. Federal district court decisions are only binding on the parties of the litigation, and has no precedetial effect on other courts. See Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 430 n.10 (1996). , Starbuck v. City and County of San Francisco (9th Cir. 1977) 556 F.2d 450, 457, fn. 13, Hart v. Massanari, 266 F.3d 1155, 1171 (9th Cir. 2001) , Bank of Marin v. England, 352 F.2d 186, 189 n.1 (9th Cir. 1965), Martin v. Wilks, 490 U.S. 775 (1989), Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 110 (1969). See also United States v. Windsor, dis. op. of Scalia, J., at 5, No. 23-307 (Jun. 26, 2013) (noting that district court rulings have no precedential effectg on other courts)