The Mad Professah Lectures

Carlos Moreno is a celebrated hero of LGBT people in California for his votes on the California Supreme Court in two very important marriage equality-related cases In re Marriage Cases (2008) and Strauss v. Horton (2009). Moreno announced his retirement from the Court in January 2011.

Justice Moreno also announced this week that he is endorsing the bid of my friend Luis Lopez to represent the 51st Assembly District. Moreno, Lopez (and yours truly) all live in this assembly district in Northeastern Los Angeles.

“Our state is at a turning point,” says former state supreme court justice (retired) Carlos R. Moreno, “whether we will be true to the vision of one society with a shared responsibility to advance the common good, or whether we fracture, accept inequality, and fail the biggest challenge of our time.”

“Luis Lopez is a leader from our community who has repeatedly stepped forward to confront this challenge in our community and our state. He is equal to the responsibility and the opportunity of serving us in the 51st District, now when we are poised to improve healthcare and fix our budget so that courts, schools, clinics, and campuses might fully function once more. I am proud to endorse Luis Lopez to be my Assemblymember and an effective leader for all Californians.”

Justice Moreno was replaced by fellow LGBT ally and UC Berkeley law professor Goodwin Liu on the California Supreme Court.

Good news! The California Supreme Court has finally set a date of September 6 at 10:00am for the oral arguments in the Perry v. Brown lawsuit (informally known as "The Proposition 8 case") in which the question at hand is a very limited one. Namely,

Whether under Article II, Section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure possess either a particularized interest in the initiative's validity or the authority to assert the State's interest in the initiative's validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so.

Although the question is limited, the stakes are not. If the state Supreme Court rules, most likely within 90 days of oral arguments, that the heterosexual supremacists who drafted and promulgated Proposition 8 now have no legal standing to defend its constitutionality, it is very likely a 3-judge panel of the 9th U.S. Circuit Court of Appeals will follow that decision and rule that the Proposition 8 proponents have no standing to defend the measure in federal court, either.

In that case, the lower court's decision would go into effect and federal Judge Vaughn Walker's brilliant ruling determining that Proposition 8 violates the United States Constitution would go into effect. Of course the bad guys would probably appeal to the Suprem Court but since the case would only be about California (and California law) it is unlikely that SCOTUS would take the case. There is a possibility that SCOTUS would take the appeal to try to clarify once and for all whether proponents of state ballot measures who are not named plaintiffs in lawsuits have a right to continue appeals when the named plaintiffs fail to appeal but there's already a decision called Arizona for Official English vs Arizona in which SCOTUS basically says you need a particularized interest under state law in order to pursue a federal appeal. And it is precisely that question of whether a particularized interest exists under California law that the California Supreme Court will decided, by the end of 2011.

Another wrinkle is that the 7-member Supreme Court has recently lost its most pro-gay member, Carlos Moreno, and Governor Brown only announced his replacement, Goodwin Liu, who is probably as similarly pro-equality as Moreno, this week. If Liu is not on the court by September 6th, the court will probably name a state appellate judge to hear oral arguments and participate in the decision.

Hang on to your hats, folks, it's gonna be a bumpy ride!

Charles Dharapak / AP Photo

Goodwin Liu, 40, was rejected by a Republican United States Senate filibuster for a coveted position on the 9th U.S. Circuit Court of Appeals but has received a pretty nice consolation prize: a nomination by Governor Jerry Brown to the California State Supreme Court (from which he could still be nominated to the U.S. Supreme Court before he's 50).

The Los Angeles Times reports:

Liu, a graduate of Yale Law School, is the son of Taiwanese immigrants. He was born in Georgia, grew up in Sacramento and has a history of public service.

“I’m deeply honored by Gov. Brown’s nomination and look forward to the opportunity to serve the people of California on our state’s highest court,” Liu said in a statement.

Before joining the Berkeley Law faculty in 2003, Liu was an appellate litigator at O'Melveny & Myers in Washington. He clerked for U.S. Supreme Court Justice Ruth Bader Ginsburg and for Judge David Tatel of the U.S. Court of Appeals for the D.C. Circuit. He also served as special assistant to the deputy secretary of the U.S. Department of Education and as senior program officer for higher education at the Corporation for National Service (AmeriCorps).

Brown has forwarded Liu’s name to the State Bar’s Commission of Judicial Nominees Evaluation. The appointment will not become final until the Commission on Judicial Appointments -- consisting of state Supreme Court Chief Justice Tani Cantil-Sakauye, Atty. Gen. Kamala Harris and Justice Joan Dempsey Klein, senior presiding justice of the state Court of Appeal -- confirms the nomination.

Liu will replace Associate Justice Carlos Moreno, who retired from the court earlier this year.

Justice Moreno was a very strong advocate for the LGBT community, voting with 4-3 majority to end marriage discrimination in California's landmark In Re Marriage cases in 2008 and was the lone dissenter in 2009's California Supreme Court decision which upheld Proposition 8 as not violating the California constitution.

Goodwin Liu has previously expressed his belief that Proposition 8 is unconstitutional so it will be interesting to see if he can get confirmed in time to participate in the case now before the case as to whether the heterosexual supremacist supporters of Proposition 8 have legal standing to defend it in court when the elected representatives of the people of California have decided not to defend a voter-approved ballot measure.

Another interesting feature that Liu, if confirmed will produce a court with an Asian American majority and no Black or Latino members, in a state which has Latino plurality in the population. Things that make you go Hmmmmmm! That being said, Liu is a great choice, since he can't get through the Senate to a federal judgeship while Republicans have more than 40 votes and no compunctions about filibustering extremely qualified judges purely based on ideology, a state supreme court seat is fantastic.

The California Supreme Court unanimously agreed to decide whether Proposition 8 proponents have standing to defend the anti-gay marriage initiative in the federal lawsuit of Perry v. Schwarzenegger which is currently pending before the 9th U.S. Circuit Court of Appeals.

Specifically, the Court will decide the question:

Whether under Article II, Section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure possess either a particularized interest in the initiative's validity or the authority to assert the State's interest in the initiative's validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so.

If the State Supreme Court rules they DO NOT have standing, the 9th Circuit panel may dismiss the lawsuit immediately as moot, which would lead to marriage equality being legal in California again. If the State Supreme Court rules that they DO have standing (a more likely result) then the 9th Circuit will have to decide the case, which they could do on the merits of the claim that Proposition 8 violates a federal constitutional right to marry. That decision could be appealed to the US Supreme Court and would have national implications.

According to Chris Geidner, the State High Court issued a relatively brisk briefing schedule:

The opening brief on the merits is to be served and filed on or before Monday, March 14, 2011.  The answer brief on the merits is to be served and filed on or before Monday, April 4.  A reply brief may be served and filed on or before Monday, April 18.

Oral arguments are scheduled for "as early as September 2011" and this is significant because the Court must issue a written ruling within 90 days of an oral argument or else it does not get paid, which would probably mean the 9th Circuit would be getting Perry v. Schwarzenegger back in early 2012. So, basically a year has been added to the time in which marriage equality could be decided by a court ruling in California.

Justice Carlos Moreno, 62,

Oh No! One of my heroes, California Supreme Court Justice Carlos Moreno, announced today that he is retiring from the California Supreme Court. Moreno, 62, was appointed to the court by Democratic Governor Gray Davis in October 2001. He is most well-known for being on the short list for President Obama's first Supreme Court justice pick to replace David Souter in 2009. Before that, Justice Moreno was in the 4-3 majority which legalized marriage equality in California in May 2008 and the sole dissenter in May 2009 when the California Supreme Court upheld Proposition 8 in a 6-1 decision under state law.

Equality California put out a statement praising Justice Moreno for his service and calling on Governor Jerry Brown to appoint an LGBT replacement:

“Justice Moreno has a long and very distinguished record of public service.  He took an unequivocal stance on the judicial branch’s moral responsibility to protect minorities. During his nine-year tenure, he has been a champion of equal protections for lesbian, gay, bisexual and transgender Californians, and he will leave behind an honorable legacy with his staunch commitment to uphold justice, fairness and equality.

“Governor Brown is now presented with a unique opportunity to make history by appointing the first openly lesbian, gay, bisexual, or transgender judge to the state’s highest court, and we urge him to consider nominating an openly LGBT judge to fill the vacancy.” 

There are only three known out state Supreme Court justices nationwide, 2 in Oregon and one in Colorado.
With Moreno's departure California's 7-member highest court will have no Latino or African-American members, but will have 3 Asian members (Chin, Cantil-Sakauye, Kennard), and 4 women (Cantil-Sakauye, Corrigan, Kennard and Werdegar).

Finally, the moment you have been waiting for!  Here are MadProfessah's positions on how I will be voting in the November 2 Statewide General Election, compared with endorsements from other organizations like the Los Angeles Times, Calitics.com, CA Democratic Party, Los Angeles County Democratic Party, Stonewall Democratic Club (LGBT group), CA League of Women Voters and Courage Campaign's Progressive Voter Guide. Previously, I had posted my endorsements for the June 8, 2010 primary election.

Proposition        ME   LAT  CALITICS CA DEM LA DEM LWV
19 (Marijuana)     YES   NO    YES    ---    YES   ---
20 (Redistricting) NO    YES   NO     NO     NO    NO
21 (State Parks)   YES   NO    YES    YES    YES   ---
22 (Local Funds)   NO    NO    ---    NO     NO    ---
23 (Suspends AB-32)NO    NO    NO     NO     NO    NO

24 (Ends Tax Cuts) YES   NO    YES    YES    YES   YES

25 (Majority Vote) YES   YES   YES    YES    YES   YES

26 (2/3 Fee Vote)  NO    NO    NO     NO     NO    NO

27 (Undoes Prop 11)YES   NO    YES    YES    YES   NO

Statewide Races          ME         LA TIMES DEMOCRATS
Governor                 Brown      Brown    Brown

U.S. Senator             Boxer*     Boxer*   Boxer*
Lieutenant Governor      Newsom     Newsom   Newsom
Attorney General         Harris     Cooley   Harris
Secretary of State       Bowen*     Bowen*   Bowen*
Treasurer                Lockyer*   Lockyer* Lockyer*

Controller               Chiang*    Chiang*  Chiang*
Insurance Commissioner   Jones      Jones    Jones   
Supt. of Public Inst.    Torlakson  Aceves   Torlakson

Bd. of Equalization, #1  Yee*       ---      Yee*    

Bd. of Equalization, #2  ---        ---      Parker

Bd. of Equalization, #3  ---        ---      Christian-Heising

Bd. of Equalization, #4  ---        ---      Horton*  

Jerome Horton is an African-American incumbent, but when he was in the state legislature he was an unreliable vote on LGBT issues. He has since tried to make amends, but MadProfessah can not in good conscience endorse him, although I will note that the Stonewall Democrats have.

There are several judicial races on the ballot for which it is often hard to get information on.

Other Races                ME        LA TIMES        DEMOCRATS
CA Sup. Crt. Chief Justice ----      Cantil-Sakauye

CA Sup. Crt. Justice       Moreno    Moreno          Moreno

CA Sup. Crt. Justice       ----      Chin            ---

Superior Court, No. 28     Ameli     Hammock         Ameli

Superior Court, No. 117    Schneider Schneider       Schneider

L.A. County Assessor       Noguez    Yong            
Noguez 
     

Additionally, every Court of Appeals Justice and three State Supreme Court justices are up for re-election (or re-appointment). The Los Angeles Times basically says that every incumbent justice is worthy of re-election. However, Justice Carlos Moreno is the only State Supreme Court justice that thought Proposition 8 violated the state constitution. Ming Chin was in the minority of the 2008 In Re Marriage Cases decision and should NOT be re-appointed. Tani Cantil-Sakauye is Governor Schwarzenegger's nominee to replace Chief Justice Ron George; if approved she'll be the first female and Phillipine-American to head California's highest court. Since we know so little about her, I can't support voting to confirm her. I think it's silly that George didn't wait until the new Governor to be elected  before retiring earlier this year anyway.

There are numerous openly LGBT people running for elected office. John Noguez for Los Angeles County Assessor. In statewide legislative districts there is Ricardo Lara (AD-50) and John Perez (AD-46).

Governor Arnold Schwarzenegger has nominated 50-year-old Tani Cantil-Sakauye to replace California Chief Justice Ron George who announced he was retiring recently. Cantil-Sakauye's nomination would mean that the state's highest court would now have a female majority: Carol Corrigan, Kathryn Werdegar, Joyce Kennard and Tani Cantil-Sakauye.

The New York Times reports that although the top 3 favorites have not changed (Solicitor General Elena Kagan, 5th Circuit Court of Appeals Judge Diane Wood and D.C. Circuit Court of Appeals Judge Merrick Garland) President Obama is interviewing up to 10 candidates for the upcoming vacancy on the Supreme Court due to Justice John Paul Stevens already-announced retirement.

Sidney R. Thomas, 9th Circuit Court of Appeals

Ann Claire Williams, 7th Circuit Court of Appeals

Gov. Jennifer M. Granholm of Michigan;

former Chief Justice Leah Ward Sears of the Georgia Supreme Court;

Martha Minow, dean of Harvard Law School;

Justice Carlos R. Moreno of the California Supreme Court;

Homeland Security Secretary Janet Napolitano.

The United States Judiciary Committee approved the nomination of Judge Sonia Sotomayor for consideration by the whole Senate by a vote of 13 to 6 with all 12 Democrats voting in favor and all but one of the 7 Republicans voting against the nomination. The lone Republican endorsing Sotomayor was Lindsey Graham of South Carolina.

The nomination should come to a full vote next week, before the Senate goes on a month-long summer holiday without passing a health care bill.

Interestingly, today MadProfessah will be spending some time with one of Sotomayor's rivals for the Supreme Court nomination, California Supreme Court Justice Carlos Moreno. Moreno, you will recall is the only Democrat on the state Supreme Court and was also the only vote to strike down Proposition 8 on the Court. Despite that, Justice Moreno made it to President Obama's short list to fill the David Souter vacancy.

The New York Times story on the Proposition 8 ruling contains this fabulous analogy which gets to the heart of why the California Supreme Court's ruling in Strauss was so wrong:

Karl M. Manheim, a professor at Loyola Law School Los Angeles who had filed a brief with the court opposing Proposition 8, called the decision a “safe” one from justices who can be recalled by voters. The change wrought by Proposition 8 was anything but narrow, Professor Manheim said, and claiming that the word “marriage” is essentially symbolic is like telling black people that sitting in the back of the bus is not important as long as the front and the back of the bus arrive at the same time.

[...]

The sole dissenting vote in Tuesday’s decision came from Justice Carlos R. Moreno, previously mentioned as a possible choice by President Obama for the United States Supreme Court.

Justice Moreno wrote that Proposition 8 means “requiring discrimination,” which he said “strikes at the core of the promise of equality that underlies our California Constitution” and, he added, “places at risk the state constitutional rights of all disfavored minorities.”

If you are as big a fan of Justice Carlos R. Moreno as I am now, please send him a letter praising his dissent in the Prop 8 case at:

Hon. Carlos R. Moreno
California Supreme Court
350 McAllister Street
San Francisco, 94102

Moreno is up for re-appointment to the California Supreme Court before the voters in November 2010. Let's make sure he gets a full 12 year term.