CGF Lawsuit: OOIDA v. Lindley - AB-962 Unconstitutional

[stitchnicklas]

2 weeks????? awww not that again,mcdonald drove me nuts....2 weeks

[Al Norris]

Also, the NRA state case is attached to their motion to dismiss:

Now that that cat is out of the bag, I guess I'm free to opine, um, elsewhere?

[CMonfort]

Now that that cat is out of the bag, I guess I'm free to opine, um, elsewhere?

I apologize as we have been swamped at our office with litigation efforts lately, but we will be posting a case update tomorrow with links to relevant documents. Thank you all for your patience.

[G17GUY]

I apologize as we have been swamped at our office with litigation efforts lately, but we will be posting a case update tomorrow with links to relevant documents. Thank you all for your patience.

Thanks for your hard work!

[chip3757]

Why can't Jerry Brown tell his attourneys to take that MTD and shove it up their ....

When questioned by the anti's he could just tell them we are not going to waste taxpayer money trying to defend unconstitutional laws?

[BigDogatPlay]

The AG's office is obligated to defend state statutes.

Props 187 and 8 (however you feel about either of those measures) pretty much put that obligation in the grave.... the state is obligated to defend what it feels like defending, or so it would seem.



OTOH... the state's pleading for MTD in this action is more than a little thin. My tax dollars at work.

[hoffmang]

Prop 8 is a bit different as there was an on point California Supreme Court ruling.

-Gene

[dantodd]

Prop 8 is a bit different as there was an on point California Supreme Court ruling.

-Gene

As prop 8 was an amendment to the CA constitution it is superior to the CA Supreme Court. Either he is required to defend all laws or not. If so, then he shirked that responsibility in the case of prop 8. If not, then it is a valid question to ask why he is defending AB962, or any other case in which he does choose to defend the law.

[Scarecrow Repair]

As prop 8 was an amendment to the CA constitution it is superior to the CA Supreme Court. Either he is required to defend all laws or not. If so, then he shirked that responsibility in the case of prop 8. If not, then it is a valid question to ask why he is defending AB962, or any other case in which he does choose to defend the law.

As Prop 8 was inferior to the US Constitution, your argument is useless.

[chuckles48]

Just got to this part...
"Plaintiffs claims are barred by sovereign immunity"

I gather he's never heard of Ex parte Young. Well, whoever wrote the brief is going to get a very painful lesson in why Federal courts _can_ enjoin states from violating federal law.

[Gray Peterson]

As prop 8 was an amendment to the CA constitution it is superior to the CA Supreme Court. Either he is required to defend all laws or not. If so, then he shirked that responsibility in the case of prop 8. If not, then it is a valid question to ask why he is defending AB962, or any other case in which he does choose to defend the law.

Look up Romer v. Evans. Gun owners are not recognized as a suspect or quasi-suspect class under the 14th amendment equal protection doctrine (though it equal protection does apply to license holders under Guillory v. Gates). In Re Marriage Cases and then Prop 8 creates a Romer v. Evans equal protection violation in the unique circumstances of what happened in California.

Let's say, for example, Sykes or Peruta happened in state court (this didn't happen, but just follow me for the moment), but then the anti-gunners put in a initiative constitutional amendment, banning gun carry for regular citizens and banning the state from ever allowing carry ever for regular citizens.

Would Jerry defend that in federal court? No.

[BigDogatPlay]

As Prop 8 was inferior to the US Constitution, your argument is useless.

No, the argument is not useless until it's ruled upon in a court of appropriate authority. Prop 8 was not unconstitutional until it was ruled to be. And because there seems to be no interest (stomach) on the part of the state to defend it's laws and constitution on appeal, the ruling of a single lower level judge will stand without further review. Same thing happened in the matter of Prop 187.

The process worked to a point, even though the state did not participate in defending it's laws and constitution which is what I, personally, find offensive as a tax paying citizen.

In both matters the state tacitly, but completely, abrogated it's responsibility to defend the state constitution as lawfully amended by ballot initiative. Last time I checked there is not only a sworn duty incumbent upon an executive officer of the state to defend the laws of the state, but as an attorney admitted before the bar the Attorney General, and his professional staff, have an ethical obligation to represent the interest of their client... the people of the State of California. They do not, IMO, get the luxury of picking and choosing what they feel like defending.... particularly when it concerns initiative constitutional amendments passed by majorities of voters. Those, above all else, command a full and complete examination and argument if challenged.

When the rule of law is subjected to the twists and turns of partisan political wind, our society gets a little closer to it's end.

[Gray Peterson]

No, the argument is not useless until it's ruled upon in a court of appropriate authority. Prop 8 was not unconstitutional until it was ruled to be. And because there seems to be no interest (stomach) on the part of the state to defend it's laws and constitution on appeal, the ruling of a single lower level judge will stand without further review. Same thing happened in the matter of Prop 187.

The underlined above is a incorrect. The following comes from my MSJ reply to Denver in my case:

Quite the contrary, it is clear that government officials are obligated to follow the Constitution of the United States. “An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed.” Norton v. Shelby County, 118 U.S. 425, 443 (1886). See also Kovacs v. First Union Home Equity Bank, 408 F.3d 291, 294 (6th Cir 2005); Towboat One, Inc. v. M/V Waterdog, 2008 U.S. Dist. LEXIS 48628, 2008 AMC 1730 (S.D. Fla 2008). Local officials are “under a duty to obey the Constitution.” Board of Education v. York, 429 F.2d 66, 69

Your underlined comment shows an ignorance, that laws are constitutional until proven otherwise by a court.

The process worked to a point, even though the state did not participate in defending it's laws and constitution which is what I, personally, find offensive as a tax paying citizen.

The state is under no obligation to defend unconstitutional laws in court.

See Article III Section 3.5:

SEC. 3.5. An administrative agency, including an administrative
agency created by the Constitution or an initiative statute, has no
power:
(a) To declare a statute unenforceable, or refuse to enforce a
statute, on the basis of it being unconstitutional unless an
appellate court has made a determination that such statute is
unconstitutional;
(b) To declare a statute unconstitutional;
(c) To declare a statute unenforceable, or to refuse to enforce a
statute on the basis that federal law or federal regulations prohibit
the enforcement of such statute unless an appellate court has made a
determination that the enforcement of such statute is prohibited by
federal law or federal regulations.

The state has never refused to enforce Proposition Eight. In fact, the Department of Health (on advisement of the AG) told the county recorders to take taking marriage licenses from same gender couples. The above provisions do not even apply to the Governor or to the AG, but they enforced the statute against the plaintiffs. They enforced it until it was declared unconstitutional, and are following the judgment and stay by the 9th Circuit. They are doing everything by the book insofar as state law and the state constitution is concerned.

In both matters the state tacitly, but completely, abrogated it's responsibility to defend the state constitution as lawfully amended by ballot initiative. Last time I checked there is not only a sworn duty incumbent upon an executive officer of the state to defend the laws of the state, but as an attorney admitted before the bar the Attorney General, and his professional staff, have an ethical obligation to represent the interest of their client... the people of the State of California. They do not, IMO, get the luxury of picking and choosing what they feel like defending.... particularly when it concerns initiative constitutional amendments passed by majorities of voters. Those, above all else, command a full and complete examination and argument if challenged.

Also, it wasn't enacted by the people of the state of California. It was enacted by the voters who bothered to show up to vote in 2008. Subjecting fundamental rights and equal protection that is owned by every person alive in the state to the whims of those who bother to show up is anathema. Gun owners in this state have been subject to the tyrrany of the voting majority.

They are under no obligation to defend a statute, ethical or otherwise, or to appeal a negative decision. Jerry Brown made the right call here, not just because it's the right thing to do, but more important to fiscal conservatives, to save the state millions of dollars attorney fees for something it could not win. Now, the Defendant-Intervenors are on the hook rather than the state. Now that is being thrifty with funds.

When the rule of law is subjected to the twists and turns of partisan political wind, our society gets a little closer to it's end.

How is civil rights a partisan issue? Considering most of the Democratic party faithful keep throwing the G&L couples under the bus at every opportunity, there's been a significant political awakening in that particular community and they are starting to band together in a similar manner to the NRA (one issue only), to say that this particular civil right (marriage) is a partisan issue borders on the absurd.

[thayne]

[Gray Peterson]

Agreed.