The Prop 8 battle is not quite done yet. I’m looking at you San Diego.


By: Gross

on Friday the San Diego county clerk, Ernest Dronenburg, filed a petition to the California Supreme Court.  Dronenburg is currently abiding by the directive of state officials and issuing licenses to same-sex couples.  He is, however, asking the court to direct those state officials, including the governor and attorney general, “to execute their supervisory duties, which do not include control over county clerks issuing marriage licenses.”  In other words, he appears to be asking the state judiciary to enjoin the state officials from trying to sanction Dronenburg if and when he refuses to issue a marriage license to a same-sex couple.

The fate of the petition to the California Supreme Court depends largely on the meaning and effect of the injunction already entered by the federal judge in the Perry case, Vaughn Walker.  In her initial response to the sponsors’ petition, Attorney General Kamala Harris argued that state courts cannot order the county clerks to deny same-sex marriage licenses, because those same clerks are required to issue such licenses under the terms of Judge Walker’s injunction.

The question is which state officials are bound by Judge Walker’s injunction.  The order applies by its terms to two of the fifty-eight state county clerks – those in Alameda and Los Angeles Counties.  It also applies by its terms to “all persons under the control or supervision of the defendants. Under California law, all California county clerks – officers who have responsibilities to issue marriage licenses and otherwise implement state marriage laws – are “under the control or supervision” of two of the named defendants, the Director of the Department of Public Health and the Registrar of Vital Statistics, and therefore those clerks are bound by Judge Walker’s injunction. The dispute on this first question is purely on a matter of state law, since the effective scope of Judge Walker’s injunction turns on a state-law question – namely, whether certain county officials are controlled or supervised by any of the four named state officials.

If, the state court holds  that fifty-six of the clerks, including Dronenburg, are not supervised or directed by any of the named Perry defendant-officials, then presumably that state-court ruling on a question of state law will be determinative, and Judge Walker’s injunction will run only against the two named clerks, in Alameda and L.A. Counties. Such a decision would not mean, however, that the California court would necessarily order the other fifty-six clerks to deny same-sex marriage licenses, as the sponsors have requested, or would preclude state officials from directing Dronenburg to grant such licenses, because the attorney general likely will argue, in the alternative, that Proposition 8 is unconstitutional in light of Windsor.  Therefore, even if the California Supreme Court holds that fifty-six of the clerks are not bound by Judge Walker’s injunction, the state courts presumably would then proceed to adjudicate the merits of the federal constitutional question – and would enjoin the county clerks from issuing same-sex marriage licenses only if the California Supreme Court ultimately decides that Proposition 8 survives constitutional scrutiny.In light of Windsor(DOMA), it is highly unlikely that the Court would allow Dronenburg’s petition to succeed.

Taken from:

(Virtually all of this is their writing, not mine. I thought it would be good to provide their insight here though).

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History Day: “Corporate America”, it’s a little more accurate than you know.


By: Gross

You hear it all the time, “Corporate America is…”. Typically, the phrase “Corporate America” elicits a visceral response, it draws up imagery of fat cats scheming on how to turn profits and steal children’s souls. While it is possible that this is accurate in some contexts, it is lost on many Americans that this country was actually started by corporations. Some of you will read that sentence and remark, “that’s false, we learned in school that America was founded by colonists seeking religious freedom,” but that is only half true. There were three groups of people who created this country: First, there were colonial day versions of corporations, second there were the immigrants seeking freedom from oppression, and finally, there were feudal-like grants of land from the Crown to be ran similarly to the feudal era of European nations. I will address each of these in separate sections; today, we discuss the first group: corporations.

In the 16th and 17th century, England was on a massive expansion kick, and the method of this expansion was through commercial endeavors. One of the most successful methods of this commercial expansion was the “joint-stock company”, where a group of merchants would pool their incomes together to create an economy of scale, and a virtual monopoly over any given territory. There is speculation that this was actually borrowed from 15th century Italy (they had a similar business form). An alternative theory is that these “joint-stock companies” evolved directly from 12th century England, and the Merchant Guilds of that era. These groups would approach the Crown and request a charter incorporating them; which when granted provided benefits and restrictions. The charter also set forth the laws of the “corporation” (modern day bylaws). Further, membership in these corporations was secured through stock ownership (they had pooled some of their money into the coffers of the corporation.

Virginia was the earliest success of these “joint-venture companies”. In 1606, two charters were granted. One to the Virgina Company of London, and the other went to the Virginia Company of Plymouth. The London Company was granted rights to found a colony anywhere between the 34th and the 41st parallels on the North American continent, while the Plymouth Company was granted right between the 38th and 45th parallels. The charters for these two companies provided for a governor, who with an advisory council of thirteen was empowered to direct the general affairs of the company (CEO and board of directors). The London company founded Jamestown in 1607. The Plymouth Company had been unsuccessful in founding the Sagadahoc Colony in Maine. In 1609, the London Company sought a new charter to remedy some problems with governance at Jamestown and to sever ties with the Plymouth Company. In 1624, the London Company lost their charter because of financial failure and internal dissension. The King now named a royal governer, and the following year incorporated Virginia into royal domain.

In 1629, the charter of the Massachusetts Bay Company was secured, this one providing for four “great and general courts”  each year, to be attended by the freemen of the company.  Once the council became located in Massachusetts, it ran the Company as a closed corporation, the freemen did not like this, demanding to view the charter. Subsequently, the members of the company demanded that they adhere to the charter, providing for the four great and general courts a year; this was in a way the beginning of the legislative body as a check on the executive. After that point, many of the colonies in New England began to mimic the Massachusetts style of governance.

Yes, religious freedom had something to do with the foundation of America, but it is undeniable the corporations and the finances that are associated with them was one of the factors that allowed America to succeed, thrive, and eventually remove the English’s grip on the colony. So if anyone ever tells you that corporations are un-American, politely remind them that if it weren’t for corporations, America might not exist.

I hope you enjoyed reading this as much as I enjoyed writing it!

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CONCURRENCE: The California Executive branch failed to perform their Constitutional duties, denying an opportunity for SCOTUS to rule on the merits


By: Gross

This is a section I have been giving some thought to recently, why not see if I can’t make arguments against myself; or hopefully, someone else?

I think that it is quite clear that the Executive Branch of California violated its Constitutional duty to protect the California Constitution; and to faithfully execute the law and will of the People when they failed to appear in Court on behalf of Prop 8. I take issue with the notion that failure to do so resulted in the denial of an opportunity for the Supreme Court to reach a good decision on the merits of Prop 8.

On the same day Prop 8 was decided, the Supreme Court issued a ruling on DOMA. The DOMA decision placed a great deal of emphasis on the fact that States traditionally decide what marriage is, and the benefits that go with it; it was a decision emphasizing state sovereignty. It would be quite paradoxical for the Court to issue one ruling saying that States are in charge of defining marriage, and saying that the State is not allowed to define marriage in the other. It is very likely that had the Court decided Prop 8 on the merits, same-sex marriage proponents would have actually taken a massive leap back.

In conclusion, California should have defended Prop 8, but failure to do so is probably the reason same-sex marriage proponents did not receive disappointing news on June 26,2013.

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The California Executive branch failed to perform their Constitutional duties, denying an opportunity for SCOTUS to rule on the merits


By: Gross

I am quite thrilled about the DOMA decision on June 26,2013. To a lesser extent, I am also please with the decision in Prop 8. With that said, I am a bit let down with the Prop 8 decision because proponents of same-sex marriage were denied an opportunity to have the Supreme Court of the United States make a ruling on the merits of the case, instead of kicking it out on a standing decision (even if they just affirmed the 9th Circuit, it would still be a huge win for same-sex marriage).

The road to hell is paved with good intentions, and here there is no doubt that California had good intentions. I fully believe that the California’s Executive branch refused to defend Prop 8 because of their disapproval of denying marriage to same-sex couples, but it was precisely that which gave the Supreme Court the opportunity to not make a decision on  that exact issue. What I would like to discuss is the fact that not only did the California Executive branch act in a way that prevented a decision on the merits from the Supreme Court, but they also violated the California Constitution.

The California Constitution sets out the rights of California citizens as well as the duties and the obligations of the Judiciary, Legislature, and the Executive branches. The article of the California Constitution that I am concerned with here is Article V, Executive. Section 1 of that Article specifically states:

“The supreme executive power of this State is vested in the Governor. The Governor shall see that the law is faithfully executed.”

Cal. Const. art. V, § 1(italics added). Most state’s  utilize the U.S Constitution as a template for writing their own Constitutions, occasionally granting more than the U.S. Constitution requires. California is one of those states (Note: California affords much greater 1st Amendment protections than the U.S.).  The U.S. Constitution lays out the President’s Oath of Affirmation:

Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:–“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”

U.S. Const. art. II, § 1, cl. 7 (Italics added). This phrase has been widely acknowledge to include faithfully executing the law and will of Congress, who in turn, represent the collective will of the people. That is precisely what the California Constitution requires as well.
Proposition 8, regardless of how bigoted and close minded it was, was still a voter initiative. The voter initiative is specifically provided for in the California Constitution:

“(a) The initiative is the power of the electors to propose statutes and amendments to the Constitution and to adopt or reject them.”

Cal. Const. art. II, § 8(a). It follows then that the “People” had spoken, they voted to amend the California Constitution to ban same-sex marriage in California. It also follows then, that the Executive branch of California had a duty to faithfully execute the will of the People, and pulling from the U.S. Constitution “defend the Constitution” to the best of their ability. The Executive branch of California was under a Constitutional duty to defend the Amendment in a court of law, and failed to do so. The result in the District Court would have been the same, the result in the 9th Circuit Court of Appeals would have been the same, and most importantly, The Supreme Court of the United States would have had an opportunity to weigh in on the issue. A ruling from the Supreme Court of the United States  potentially would have guaranteed same-sex couples the right to marry in all states which had allowed same-sex marriage at some point in time. Unfortunately, that did not happen, and same-sex couples across America missed out on an opportunity to move forward. Thankfully, DOMA  went a long way, but I want more; “If you give a mouse a cookie…”
This post is not intended to imply that Prop 8 was decided wrong, it was decided correctly. I do intend this post to stand for the proposition that the Executive Branch of California failed to perform their Constitutional duty (with good intentions), and this deprived proponents of same-sex marriage a very important opportunity to make two massive leaps forward instead of one.
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History Day: Miranda and his ironic death


By: Gross

This is our very first post, and I thought a good way to start would be with something fun. So today, we will discuss the ironic death of the man who gave birth to the well known words Police are required to read you prior to custodial interrogation: Ernesto Miranda.

As you may or may not be aware, Ernesto Miranda was arrested March 13, 1963 by the Phoenix Police Department  for the rape and murder of a 17 year-old girl on March 3, 1963. After a few hours of interrogation, Miranda signed a confession to the crime. Miranda was given a Court appointed attorney named Alvin Moore who cleverly objected that Miranda’s confession was not truly voluntary because the police never advised him about his right to remain silent, or his right to have an attorney present. Unfortunately (or fortunately, depending on how you look at it), neither the Trial Court nor the Arizona Court of Appeals agreed with Moore’s argument. In deciding the case, the Arizona Supreme Court made heavy notice of the fact that Miranda never actually requested an attorney (This looks a little like Montejo v. Louisiana 556 U.S. 778 (2009) [Petitioner never actively requested an attorney or made an affirmation once he was assigned one]). The Supreme Court of the United States disagreed, and remanded back to trial Court where Prosecution would be unable to utilize Miranda’s confession. The Prosecution utilized witness testimony, one of the witnesses was Miranda’s ex-wife (There is some speculation that had Miranda not threatened to have the authorities take her children from her, she would never have testified: her testimony was truly the nail in the coffin for Miranda). After a full trial, Miranda was found guilty and sentenced to 20-30 years. Miranda was paroled in 1972.

Now we get to the fun stuff. A few years after his parole, Ernesto Miranda was involved in a card game. Someone accused Ernesto Miranda of cheating at cards and a savage brawl ensued, culminating in the stabbing of Mr. Miranda. The police were called, and took Miranda’s assailant into custody. As Ernesto Miranda lay dying in a pool of his own blood, the father of the Miranda warnings observed such irony that God himself must have orchestrated it. While Miranda’s attacker was in custody, the arresting officer pulled out a small card and began reading, “You have the right to remain silent…”. Those are likely the last words Ernesto Miranda ever heard.

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