A Little Bit of Appellate Primer
February 8, 2010
by Brian Leubitz
I’ve briefly touched on how appellate law works, but seeing some comments made me think that it would be worthwhile to go over the law on such matters. Pardon me as I dust off some lessons that have receded to the back of my mind since law school.
The first thing that needs to be clear is that every litigant has a right of first appeal, meaning that they can go over the trial court to the next level of courts. In this case, a 9th Circuit panel must hear this case, they cannot refuse it. However, there are still two layers above the 9th Circuit panel. First, the full 9th Circuit sitting en banc, can review the panel’s decision. This just means that all of the 9th Circuit judges can get together to review the decision made by the three judge panel. Hearing a case en banc is not required, rather it is left to the court’s discretion. On occasion they will do so in controversial cases, but controversy alone is not a particularly good indicator of whether they will review the case en banc.
As I’ve mentioned before, the Supreme Court takes cases by getting a writ of certiorari signed by four of the nine Supreme Court Justices. They have complete discretion as to which cases they take, but I’ll send you back to my post about the Supreme Court for that.
Now, the question on how the judges view cases on appeal is an important one. I think I’ll go out on a limb and say that AFER’s attorneys presented the best possible factual case. But, there’s more to it than that. Under the law, there are two types of questions, questions of fact and questions of law. Questions of law are always determined by the judges, while questions of fact are decided by the jury in a jury trial, or the trial judge in a bench trial like this.
When a court is reviewing a case on appeal, they give the facts as found by the jury almost complete deference. Even if they might not have given credibility to one witness or another, they generally have to go with the facts as determined by the fact-finder. When the trial judge is sitting as the fact-finder, he is given great deference, but perhaps not quite as much as a jury.
So, the next question, is how do we tell questions of law from questions of fact? Well, the names of the questions do imply some meaning, but basically a question of fact comes from hearing testimony of situations and circumstances. So, for example:
Question of fact: Does the nation and California specifically show a pattern of mistreatment of the LGBT community, and can the LGBT community fight back against that mistreatment?
Question of law: Does that lack of power shown by the facts rise to the legal level of political powerlessness under the legal definition for equal protection analysis?
Judge Walker will rule on both questions, but the question of fact will be given great deference, while the answers to the questions of law will be reviewed “de novo,” meaning completely anew.
Not to sound too pessimistic, but there is a long way to go here, folks. While a win from the trial court will be nice, the 9th Circuit still has tremendous leeway. And a loss there could potentially end the case right there. As I’ve said in the past, we’re fighting an uphill battle here. We have these great facts on our side, but the weight of the law is putting a bit of a finger on the scale of justice. The AFER folks are doing great work, but let’s not count any chickens just yet.
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1.
David Kimble | February 8, 2010 at 10:30 am
Heart deflated…but I am still confident in our legal team. By the way, Brian, what effect, if any will the outing of Judge Walker have in this case?
2.
fiona64 | February 8, 2010 at 10:37 am
So the appeal is automatic, regardless of how Judge Walker rules? Do I understand that correctly?
Thanks,
Fiona64
3.
Richard W. Fitch | February 8, 2010 at 12:21 pm
I think the implication was that it is automatically allowed, cannot be refused, if the party against whom the judgment was made wishes to appeal.
4.
Kathleen | February 8, 2010 at 10:46 am
fiona, there’s a RIGHT to an appeal, but in terms of procedure, it will take one of the parties to actually file for an appeal. In a practical sense, we can assume an appeal is automatic here, since no matter what the outcome, the losing party will appeal.
5.
Ronnie | February 8, 2010 at 10:46 am
Ah…they got nothing….their biggest legal argument is, to quote Briggs:
“you can argue with me all you want, but you cannot argue with God”
We’re not arguing with God, I don’t hear her saying anything….and anybody is arguing with God then maybe they need a time out…yeah?
6.
David Kimble | February 8, 2010 at 10:52 am
Oh, Ronnie, ya’ gotta stop! The laughter is getting too much! Thanx, BTW, – it’s good to laugh. And thanx, to for the video ‘Miss California – DETHRONED” – I am still picturing all of this my mind and the person in the video is so right-on!
7.
John | February 8, 2010 at 10:54 am
Of course you can’t argue with God. An argument requires that both sides exist, to start with.
8.
Ronnie | February 8, 2010 at 10:56 am
LMAO!!!!
9.
Dave T | February 8, 2010 at 11:01 am
To clarify, we’re not arguing with god, we’re arguing with what the prop 8 side says their imaginary friend says.
10.
David Kimble | February 8, 2010 at 11:02 am
Yes, that is a great line!
11.
Ronnie | February 8, 2010 at 11:11 am
“God is one “o” short of good…being good is a form of being happy or making you happy..happy is another word for Gay…do you see what I’m getting at?
12.
John | February 8, 2010 at 11:12 am
God is almost gay?
13.
David Kimble | February 8, 2010 at 11:15 am
Yeppers, that makes perfect sense to me, Ronnie!
14.
Ronnie | February 8, 2010 at 11:34 am
John asked “God is almost gay?”……. well, I mean look at the evidence:
1. Everyone in heven wears all white….White Party.
2. Angel Wings…enough said.
3. Pearly Gates…Great interior decorator.
4. “I Love him..I love him…and where he goes I’ll follow”…ya think.
5. He got Mary knocked up without even touching her…DOAH!!!
6. His number one Angel is named Gabriel….how sweet.
7. The sistine chapel (the most holiest of art) was painted by a known Homosexual….come on now?
8. His first human creation was a man…please.
9. He saw that man was lonely so he created a woman to be his friend….it wasn’t until after eve saw the snake and ate the apple that human procreation began…point being saw the snake..take however you want…lol
10. If nature is indeed controlled by God then why after the storm does God make a Rainbow?…HMMM!…I know there is science involved but still…a Rainbow?
15.
Felyx | February 8, 2010 at 12:09 pm
As I recall Genesis, Adam was VERY reluctant to….
well, ‘eat of the fruit of knowledge of good and evil’…
I am guessing as far as he knew sticking it where ever he wanted was just fine. That is until Eve…well, saw the snake as it were.
sorry Fiona…it’s a raw deal, but that’s what they believe.
16.
Sheryl | February 8, 2010 at 2:11 pm
Dave T, that is a wonderful way to express it, or perhaps we could even say what they would like for God to be telling them, so they will say it for him, anyway.
17.
PDXAndrew | February 8, 2010 at 4:57 pm
LOL… Angel wings… Enough said. People on the bus think I’ve just gone crazy with all the laughing.
I was going to say, “God created me in His image, and He created me gay… Of course, he also made Straight people, so God must be Bi.”
18.
Ronnie | February 8, 2010 at 5:02 pm
True True…he could be Bi….but since he has never actually had sex…I think its safe to say he is A-sexual…lol
19.
Marko Markov | February 8, 2010 at 1:10 pm
I remember hearing that line, but I can’t remember where?
20.
David Kimble | February 8, 2010 at 10:48 am
“In this case, a 9th Circuit panel must hear this case, they cannot refuse it.” – yeah, that’s what I got.
Love,
David
21.
Kathleen | February 8, 2010 at 10:57 am
I understood fiona’s question to be, “does the 9th Circuit automatically review this decision?”. And the answer to that is “No.” However, if one of the parties (presumably the losing party) ASKS for the review, i.e, files an appeal, then the 9th Circuit panel MUST accept the case for review. That’s what’s meant by the “right of first appeal.”
But maybe I misunderstood fiona’s question.
22.
David Kimble | February 8, 2010 at 11:01 am
Yes, you got it right, Kathleen. I believe we all agree that no matter how the judge rules, there will be an appeal to which the 9th Circuit panel must hear the case.
23.
fiona64 | February 8, 2010 at 11:15 am
No, you clarified perfectly what I wanted to know.
Thanks!
24.
Kendall | February 8, 2010 at 11:09 am
I’m confused on one thing; you say there’re two levels above the panel, but don’t describe how things go from a panel to the en banc full appeals court.
Is that a level of appeal, i.e., one side must appeal from panel to full court? If so, it sounds like the full court can decide whether to hear it?
If the full court doesn’t hear it (whether it’s something they choose on their own, or if it has to be appealed and then they decide, or whatever)…does it stop there, or can one try for SCOTUS even if the full 9th Cirtuit court didn’t hear the first appeal, just the panel?
I hope my Qs make sense…thanks.
25.
David Kimble | February 8, 2010 at 11:30 am
I dunno – anybody?
26.
Parenthetical Greg | February 8, 2010 at 11:33 am
As with the first appeal, a request for hearing the case en banc usually requires the party who lost in the first appellate panel to petition the “full” court. On occasion, a judge in the appellate court will ask his colleagues to vote on the rehearing even in the absence of petition from the losing party. That doesn’t happen often, but it does happen.
Because the size of the Ninth Circuit, it employs “limited” en banc review with 11 judges sitting en banc rather than the full complement of 29 active judgeships. There is a procedure for the entire court (all active judges) to take up a decision issued by the limited en banc sitting. That procedure is seldom invoked and the full court hasn’t actually agreed to take such a super-appellate review. All of this is unique to the Ninth Circuit
As for SCOTUS, a party can petition the high court for review (cert.) after getting an adverse ruling from the appellate panel. There’s no requirement that the petitioner first seek en banc review from the Circuit Court.
27.
Parenthetical Greg | February 8, 2010 at 11:36 am
(Oops, forgot one point)
And, a party may request SCOTUS review even if the appellate court denies the en banc request .
28.
Kendall | February 8, 2010 at 8:12 pm
Thanks for your two replies! :-) I wonder what the point of asking for en banc is, then. Unless it historically has been shown to improve one’s chances of SCOTUS granting a cert request, or there’s some other reason I’m missing.
Thanks!
29.
Lesbians Love Boies | February 8, 2010 at 11:32 am
Is it within 30 days that the appeal needs to be made?
30.
Tim | February 8, 2010 at 11:33 am
David said ” what effect, if any will the outing of Judge Walker have in this case?”
Excuse me! Did I miss something? Someone please explain.
31.
Lesbians Love Boies | February 8, 2010 at 11:35 am
Tim, there was an article outing Judge Walker.
http://prop8trialtracker.com/2010/02/07/outing/
32.
Ronnie | February 8, 2010 at 11:37 am
Apparently now Judge walker in not just and Activist Conservative Judge…but a Raging Homosexual Activist Conservative Judge…as if that make a diff….lol
33.
Sheryl | February 8, 2010 at 2:15 pm
Wait, he can’t be both an Activist Judge and a Conservative judge, Conservatives are just not Activists, that is left to the liberals, don’t ya know.
34.
Ronnie | February 8, 2010 at 2:20 pm
not my words Andy PUG-NO called him and activist judge….right out of the mouth of the little dawg…lol
35.
Felyx | February 8, 2010 at 2:22 pm
You can be an Activist Conservative Judge only if you are a Raging Homosexual that doesn’t broadcast or deny your sexual orientation. It is in the professional legal handbook I think.
36.
Richard Walter (soon to be Walter-Jernigan) | February 8, 2010 at 5:15 pm
And, Sheryl, we know he must be a conservative, because George HW Bush would not appoint an activist judge, now would he? And remember how before this article came out, when it was first announced that the case had been assigned to Judge Walker, they were all over it about how fair and impartial he would be. They just knew they had him in their pocket, didn’t they. Now that they have seen that NO ONE has Judge Walker in their pocket, they want to cry foul because they aren’t sure they are going to win without cheating. Well, maybe they would have won without cheating if they had come into this with a legitimate case, and a legitimate, LEGAL reason to fight. But no, all they came in with was a lot of persecutional religious dogma. A friend of mine has a button that says, “My karma just ran over your dogma.” I think this is what just happened in this case. Our karma ran over their dogma. And they know it. Therefore, they are running scared.
37.
Sheryl | February 8, 2010 at 10:47 pm
Richard, you certainly have that one right about GW not appointing an activist judge.
38.
celdd | February 8, 2010 at 11:44 am
I have a question about the Amicus briefs.
I read all of the Plaintiff’s Amicus briefs. My impression is that each brief covers just one aspect of the case, but together, cover most of the facts brought forward by the witnesses during the trial. Is this coordinated with the Plaintiff”s side? Is this the usual way things are done?
39.
David Kimble | February 8, 2010 at 12:27 pm
I’m sorry, I dunno…anybody?
40.
Richard W. Fitch | February 8, 2010 at 12:28 pm
Thanks for all the info. One additional request: Could you provide a thunbnail “Dummies Guide to Legal Terminology” so we have a quick resource for the many legalese in one place??
41.
Zack | February 8, 2010 at 2:46 pm
Amici briefs can cover any topics they wish, although going back over arguments made by the parties in the merits briefs is considered to be wasteful. The general thought is to provide a different/fresh perspective from non-parties on the questions at issue.
42.
John | February 8, 2010 at 12:31 pm
So if Walker find against prop 8 does he have the authority to allow gay marriage again? If so is there a long period of time between his ruling and the first appeal is heard?
I guess my question is, is there a chance that Walker can re-instate gay marriage as this trial drags out?
thanks!
43.
Lesbians Love Boies | February 8, 2010 at 12:37 pm
That’s a very good question.
44.
Felyx | February 8, 2010 at 12:39 pm
I believe he could do so but would probably more likely do so ‘subject to appeal’ or within a certain amount of days thus allowing for further challenge.
It is important to remember, his ruling is very important. Non-withstanding the appeals court to overturn, Walker’s ruling will hold significant weight on the issue from here on out.
From a legal case study perspective, his ruling will most likely be cited more often than the appeals verdict that might follow.
45.
Alex D | February 8, 2010 at 12:42 pm
It was my impression that judges in a case like this will either issue a stay of their own decision immediately pending appeal, or the higher court will be ready to issue a stay immediately.
46.
John | February 8, 2010 at 12:52 pm
Stay meaning?
47.
John | February 8, 2010 at 12:54 pm
I believe that means the decision won’t take effect until after the appeals process.
48.
Alex D | February 8, 2010 at 2:57 pm
My understanding of a “stay” is that it is a short-term legal hold pending proper consideration of a case.
http://en.wikipedia.org/wiki/Stay_of_execution
49.
Richard Walter (soon to be Walter-Jernigan) | February 8, 2010 at 12:48 pm
Thank you, Brian. You are doin a great job. No matter how this goes, we are not aboutto give up. Not now, not tomorrow, NOT EVER! EQUALITY FOR ALL MUST PREVAIL!!!
50.
Lesbians Love Boies | February 8, 2010 at 12:49 pm
Rep. John Murtha Dies at 77
“Rep. John Murtha, a fierce critic of the Iraq war whose support for gay rights issues evolved in recent years, died on Monday at a Virginia hospital, a spokesman has confirmed. He was 77.”
http://www.advocate.com/News/Daily_News/2010/02/08/Rep__John_Murtha_Dies/
51.
fiona64 | February 8, 2010 at 12:58 pm
Yeah, so much for that “people become more conservative as they age” trope.
RIP, Rep. Murtha.
Love,
Fiona
52.
Sheryl Carver | February 8, 2010 at 1:17 pm
IF the attempt to get the “Restore Marriage 2010″ proposal onto this years ballot succeeds, & IF it gets passed, what effect would that have on Prop 8′s journey through the Federal Courts?
For example, if Judge Walker invalidates Prop 8 & if the 9th Circuit hasn’t yet ruled on the likely appeal, would the passage of the proposal repealing Prop 8 eliminate the possibility that Prop 8 would at some point be declared unconstitutional, &/or LGBTs to be declared a Suspect Class? (Hope this question makes sense.)
If that is a real possibility, it seems like it would be better to wait until after the final ruling on Prop 8, even though that might be risking a loss somewhere along the line. Otherwise, if the “Restore Marriage 2010″ passes, it seems like we only get marriage rights at the CA state level, vs a very real possibility of getting a whole lot more at the Federal level.
Since pretty much all I know about law has been learned from the Prop 8 Trial Tracker site, I don’t know if this is a “real” issue/concern or not.
53.
Felyx | February 8, 2010 at 1:31 pm
Good question. I mentioned this in an earlier post. There are quite a few possible outcomes but you named the most likely ones. The only answer I know of is we will see.
54.
Brian Leubitz | February 9, 2010 at 5:30 am
Some good questions. I think I’ll explore those in a post later this week…
55.
Sheryl Carver | February 9, 2010 at 10:12 am
Thanks, Brian!
Much as we all want All Civil Rights NOW, it seems better to wait for a possible (likely?) win at the Federal level before trying the ballot box again at the CA State level. If anything short-circuits Prop 8′s journey before a final ruling is made, I fear it could be a very long time before we get another legal team like the one headed by Boies & Olson. Until there are more liberal judges on SCOTUS, this seems like our best chance to get a huge win.
Again, thanks for all your help in educating those of us with little legal knowledge!
56.
Felyx | February 8, 2010 at 1:36 pm
Actually it bodes well for us either way. A voter repeal looks really good and would stand out as being very legitamate. A positive ruling would be see as an important legal precedence regardless of the appeals ruling. Getting there is getting there….how is important but it is not the ends.
57.
Peter | February 8, 2010 at 1:46 pm
Here’s a question. We lose. We appeal. We lose. WHAT NEXT? Do we keep putting cases to court? This is for two couples who are not yet married… is there a possible case for a legal MARRIED gay/lesbian couple who want federal recognition?
Long run? I don’t think we’re going to lose… but I’m wondering what the path is if we do lose this one…
58.
Felyx | February 8, 2010 at 2:17 pm
Keep going to court. Keep appealing to the voters. Don’t let the issue die. I will not go away, eventually everyone will get sick of the ‘Wolf crying’ of the Right and pass the laws or accept the rulings. It is inevitable…it is just a matter of time.
Most of all, go marry your partner in a civil marriage where available then join your local equality group and stay posted. If they want to bring a trial forward you will be able to join in.
And remember, every time this issue is discussed it becomes more accepted. There is no real losing. Look to history and you will see, it takes time, but when a group finds its voice they tend to never shut up!!!
Stay positive.
59.
Bolt | February 8, 2010 at 2:43 pm
Thanks for the legal layman explanation! If the national congress repeals DADT, will that have a negative impact on the LGBT powerless argument?
If proposition 8 is ruled unconstitutional, can we resume our practice of marriage equality?
60.
slsmith66 | February 8, 2010 at 2:57 pm
Ok this is mostly a test seeing if I remember how to embed a video. But it is a good video also!
61.
slsmith66 | February 8, 2010 at 2:58 pm
Blah that didn’t work! Back to the drawing board!
62.
Richard Walter (soon to be Walter-Jernigan) | February 8, 2010 at 5:43 pm
Leave it to a young lady who was not even born here to get right to the heart of our Constitution and what it means. And all I can say is, someone please find Selene Luna and tell her that Richard in North Carolina said, “You go!”
63.
Felyx | February 8, 2010 at 5:53 pm
Where in NC Richard?
64.
Richard Walter (soon to be Walter-Jernigan) | February 8, 2010 at 6:28 pm
Just outside of Fayettenam, Felyx. Little town called Hope(less) Mills.
65.
Ronnie | February 8, 2010 at 2:58 pm
Since you guys and gals know I love Pat Benatar I did a little search…….60 years ago it began because of their attacks:
66.
Ronnie | February 8, 2010 at 2:59 pm
And now it is time that it ENDS with our LOVE!!!!!
67.
slsmith66 | February 8, 2010 at 3:01 pm
Oh this music takes me back to my teen years! Good one Ronnie! Her movie is suppose to come out soon with that cute little gal from twilight playing Pat.
68.
Ronnie | February 8, 2010 at 3:05 pm
Sweet…i didn’t know that…MUST SEE!!!…and thank you for posting Selene Luna’s speech I love her. She may be small but her heart is huge.
69.
slsmith66 | February 8, 2010 at 3:09 pm
NVM. Kristen is playing Joan Jett in an upcoming movie!…I’m really being blond today.
70.
Ronnie | February 8, 2010 at 3:12 pm
Oh,Ok….hahah…but its still sweet…yeah people I am 25 and I know who Joan Jett is…..lol
71.
slsmith66 | February 8, 2010 at 3:19 pm
Your a pup Ronnie!
72.
John | February 8, 2010 at 3:24 pm
I’m listening to Pat Benatar right now, actually. Weird coincidence.
73.
David Kimble | February 8, 2010 at 3:31 pm
Can somebody help me, I am sending my sister an e-mail – she lives in Texas and she doesn’t understand what the big deal with gay marriage is. What was the Texas case that overturned sodomy laws?
74.
fiona64 | February 8, 2010 at 3:34 pm
Lawrence v. Texas
http://en.wikipedia.org/wiki/Lawrence_v._Texas
Love,
Fiona
75.
David Kimble | February 8, 2010 at 3:39 pm
Thanks,
Love,
David
76.
Felyx | February 8, 2010 at 3:43 pm
The other case in the matter was Bowers v. hardwick.
I told my sister that the big deal was that I wanted it. I suggested she love me and allow me to choose for myself what was in my best interest. She is devout Roman Catholic. She agrees she loves me…and that’s where we stand.
77.
David Kimble | February 8, 2010 at 4:47 pm
Thanks, I just finished sending her a long e-mail BTW, I have never met her in person, I only learned of her and sister two years ago. My father was married 3 times and never divorced any of them before moving onto the next wife! I think that makes me and her illegitimate, since she is from the second marriage and I am from the 3rd marriage.
78.
Felyx | February 8, 2010 at 11:27 pm
Dave Kimble,
When I read what you wrote about your father all I could think was…
A marriage is between only a man and a woman for the purpose of procreation so that the children can be raised by their biological parents.
Just who are they trying to fool?
79.
David Kimble | February 9, 2010 at 5:59 am
Exactly! My father was many things in his lifetime – he called blacks, latinos, or any other ethnicity besides white heterosexual males some things that still make my ears ring! He called Gays and Lesbians some of the worst names, I have ever heard spewn from a man’s mouth ever!
Love,
David
80.
Ronnie | February 8, 2010 at 4:13 pm
What is so threatening about this – - Although not legal in Illinois this is The Wedding of Jim Verraros(American Idol 1) and Bill Brennan:
You Make it Better from Jon Gangwer on Vimeo.
81.
K | February 8, 2010 at 4:43 pm
Thank you for blogging the trial. I wonder when the closing arguments are scheduled? My family thought I’d gone missing during the trial because I’d rush to the computer every night–couldn’t wait to read what transpired–so exciting and absolutely riveting. It was beautifully, masterfully presented. I can’t wait for the next installment. Great work! I don’t understand why everyone in the country isn’t tuned into this case.
82.
slsmith66 | February 8, 2010 at 4:54 pm
The trial has been rather exciting! Republican lawyer partners up with his old rival to lead the plantiffs against the conservative defendants who only bring two witnesses to the defense. And then the judge is gay!! Wonder if someone is going to make a movie out of this!
83.
Ronnie | February 8, 2010 at 5:04 pm
Sounds like something out of Marvel Comics……lol
84.
David Kimble | February 8, 2010 at 5:06 pm
Yes, I think it would be a great movie, but would probably not appeal to NOM.
Love,
David
85.
slsmith66 | February 8, 2010 at 5:07 pm
I don’t know, but could you imagine some of those guys in tights?
86.
Ronnie | February 8, 2010 at 5:08 pm
Maybe William Tam…….doah!
87.
David Kimble | February 8, 2010 at 5:10 pm
Now , Ronnie, be nice! – no don’t this is much more fun! LOL
88.
Richard Walter (soon to be Walter-Jernigan) | February 8, 2010 at 6:26 pm
Probably. Remember, Rob Reiner (Carl Reiner’s son, Penny Marshall’s ex, Mike “meathead” Stivic on All in theFamily, award-winning director) was there, and I think was one of our backers.
89.
David Kimble | February 8, 2010 at 5:12 pm
I dunno, Judge Walker wanted to take several weeks to review the evidence…I think that;s what he said. I dunno, anybody else?
90.
David Kimble | February 8, 2010 at 5:09 pm
I am trying to picture it in my mind, but I don’t have a good sense of what any of them look like, except the photos I have seen of their faces.
91.
slsmith66 | February 8, 2010 at 5:11 pm
Now if there were just more females in that trial…. The tights might be nice! :-)
92.
David Kimble | February 8, 2010 at 5:12 pm
Oh, I dunno, I can picture Ru Paul there!
93.
Ronnie | February 8, 2010 at 5:15 pm
You….Better….Work!…..lol
94.
Mykelb | February 12, 2010 at 8:30 am
In most court cases that go to appeal, I thought there had to be a legal reason for appeal, such as the lawyers were incompetent to represent the client, or some procedural error. How is it there is an automatic appeal?