Stayability Of Prohibitive And Affirmative Injunctions

Here’s some dense law for you — a general rule of California law is that a prohibitive injunction is not stayed during the pendency of an appeal. Rubin v. American Sportsmen Television Equity Society, Inc. (1951) 102 Cal.App.2d 288, 290.  A “prohibitive” injunction is one that forbids the defendant from doing something, contrasted with a “mandatory” injunction which compels the defendant to do something.

To be sure, a clever lawyer can phrase any mandatory command in the form of a prohibition (e.g., “Defendants shall not fail to deliver the disputed property to the plaintiff,”) so there is an issue about whether the effect of an injunction is prohibitory or mandatory.  The Perry case could go either way, as I see it.  The order in Perry v. Schwarzenegger is at least debatably prohibitive, in that the judge has forbidden the defendants from enforcing or implementing Prop. 8.  That effectively returns the law back to the way it was after the Marriage Cases were decided but before Prop. 8 won by a margin of about 600,000 votes in November of 2008.  The argument that it is mandatory would be that it effectively incorporates the Marriage Cases, which did contain a mandatory component requiring that the trial court issue orders that would compel county registrars to issue marriage licenses to same-sex couples.

Now, the Rubin case decides an issue of substantive California law and not a rule of Federal procedure. Federal Rule of Appellate Procedure 8 is silent on the issue of what orders are or are not stayable while an appeal is pending.  I’ve not had time to do the research to see if there is a cognate rule to Rubin in the Federal system.  But Rubin is interesting because it purports to articulate a substantive rule of law rather than a procedural one.

If the Ninth Circuit agrees that Rubin is substantive rather than procedural, then the Ninth Circuit is required under the Erie Doctrine to follow it and demand a showing of extraordinary and irreparable harm to the appellants if the prohibitory order of Judge Walker is not stayed pending appeal by way of an application for a writ of supersedeas.  Given that there is a substantial question as to whether the proponents — the only ones whose appeal has even a chance of being recognized by the Ninth Circuit in the first place — have standing at all, this would have to be some damn good lawyering by the proponents’ counsel.

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering litigator. Recovering Republican. Recovering Catholic. Recovering divorcé. Recovering Former Editor-in-Chief of Ordinary Times. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.


  1. I believe you're reading in a clause that's not there.The first basis for an appellate stay is the basis of "extraordinary and irreparable harm" to either party, with the benefit given to those who can demonstrate that the stay/not-stay decision demonstrates worse consequences in toto. The harm of allowing Walker's decision to change the landscape during appeal is the risk that a large number of gay marriages issued – should the Supreme Court agree with the 8th Circuit, which has already thrown Walker's theories out the window in their jurisdictional area – would then be required to be voided.The contrary harm of staying Walker's decision during appeal – that those seeking same-sex marriage would be required to wait a while, not expending their resources on weddings until after the question was resolved – is far more minor.The second basis used federally for a stay is "likelihood of success on the merits of the appeal." The 8th circuit has already ruled (Citizens for Equal Protection, et al. v. Jon C. Bruning) that there IS no constitutional right to gay marriage, and their ruling directly contradicts Walker's argument. Given that their ruling must be taken by the 9th circuit as persuasive precedent, and given that the most the 9th Circuit can do is create a 1-1 split between Appellate circuits (which the Supreme Court would then have ample reason to step in on), presumption under current precedent should be given to a stay during the appeal.

  2. The potential harm accruing to the party opposing the stay as a result of denying the stay is not a relevant factor under the applicable test. It is the potential harm accruing to the party who asked for the stay that the Court must consider. I do not see that the proponents of Prop 8. suffer any harm whatsoever, aside from their cosmic discomfort with same-sex marriage, if their request for a stay is denied.The potential harm accruing to the party opposing the stay as a result of granting the stay, however, is a factor. That harm would not be the mere inconvenience of having to delay a wedding. It would be the deprivation of the ability to exercise a fundamental Constitutional right. That ought not to be considered a minor harm.

  3. I note that you avoided discussing the second portion entirely. Antsy about it?Regarding the first – All that proponents need to show is that the State of California (which is party to the defense, whether or not it participates, as a named party in the lawsuit), suffers extraordinary harm. Being required to go through the ridiculous motions of issuing marriage certificates only to void them later certainly qualifies.In many senses, Walker's decision to lift his own stay is further evidence of his deranged bias in the case. He's playing "chicken" with the appeals process, and higher courts – the USSC in particular – very, very rarely look in favor on that kind of behavior. There's already enough of a case for ordering a trial de novo without further antics from Walker.

  4. It would be the deprivation of the ability to exercise a fundamental Constitutional right.I point out again: by the only precedent today available, the persuasive precedent of the 8th Circuit Court decision, no such right exists. There is no harm in denying someone the exercise of a nonexistent "right."

  5. "All that proponents need to show is that the State of California (which is party to the defense, whether or not it participates, as a named party in the lawsuit), suffers extraordinary harm."TL already explained this to you. The State of California is not the party requesting the stay. The fact that they are a named party to the lawsuit, or a party to the defense, is irrelevant. The test is whether the party requesting the stay is going to suffer harm; not whether somebody else, especially somebody with opposing interests, will suffer harm.Your second point makes no sense whatsoever. The Eighth Circuit does not control the Ninth Circuit, and in any case, you carefully avoid the fact that the two cases have to do with two separate states. Bruning addressed whether Nebraska's law violated the Constitution; Walker's decision addressed whether California's law violated the Constitution. Nebraska is not California and does not treat same-sex couples the same way as California for adoption, paternity, partnership and so on. Neither case ruled on the Platonic ideal of Gay Marriage. Both addressed whether a particular state's marriage laws raised Equal Protection issues and, if so, whether or not the state nonetheless had an appropriate interest in such laws.

  6. Now, I agree that the Citizens for Equal Protection v. Bruning case, or at least the reasoning in that case, ought to be addressed by all sides on appeal.But am I nervous about it? No. As Mythago points out, "persuasive" authority is not the same thing as "controlling" precedent; the Ninth Circuit is not obliged to follow the Eighth Circuit's reasoning at all.That reasoning, in relevant part, is the "heterosexual-only marriage encourages procreation and good childrearing" argument, evaluated under the deferential version of the rational basis standard. That argument would need to be addressed even if CEP did not exist. Unlike in CEP, this trial record of Perry contains findings of fact that the "heterosexual-only marriage encourages procreation and good childrearing" claim does not have any basis in reality.Moreover, CEP v. Bruning does not address the issue of substantive due process, upon which the Perry plaintiffs prevailed and which forms an independent basis for the grant of relief.

  7. Here's a copy of the order denying the stay.Interestingly, the Prop 8 folks seem to have screwed themselves on this one. There is a serious question whether, as intervenors, they even have standing to request a stay – and they didn't brief the standing issue in their motion for a stay. Oopsie. The four factors to be considered are on page 3. "Extraordinary and irreparable harm to either party" is not a ground for granting a stay.

  8. You're right on the wording of the standard, Mythago. Once we're past the issue likelihood of success on the merits, it's "whether proponents [the moving parties] will be irreparably injured absent a stay;" and "whether the stay will substantially injure other [non-moving] interested parties."If a stay is granted and SSM is a Constitutional right, then the plaintiffs will have suffered is a substantial injury in the form of the loss of their rights.If there is no Constitutional right to SSM, then whatever (as-yet unarticulated) harm the proponents would suffer from the interim granting of those marriage licenses will presumably be vitiated should those licenses be later voided.

  9. I suggest you look at Ed Whelan's notes.He has the listing of Proponents' arguments. Unless you can list something not listed there, it is pretty clear that California law gives amendment and initiative proponents standing to defend their own initiatives when public officials "might not do so with vigor". There is no "might" about the case, given that both Schwarzenegger and Brown have not simply announced their intention not to defend, but have actually worked to stab the defense in the back.Given that the ballot initiative process is designed specifically to allow the people to bring legislation and amendment over the objections of petulant and uncooperative officials, allowing for others to step in and defend said legislative changes would seem to be necessary – otherwise, the courts would merely become a rubber-stamp that makes the whole process meaningless.

  10. Funny, but Whelan's blog doesn't explain away your complete misstatement of the basis for an appellate stay, Mike.Whelan's blog post just repeats the incorrect arguments of Prop 8 proponents. Were the facts of the Minnesota case substantially similar to those in the California case? All you and Whelan are saying is "some other case about same-sex marriage was decided differently." Unless you have some information as to why that case and this one are the same – and neither you nor Whelan have done anything but echo snippets of a pleading – there's no reason to assume Walker ignored an on-point case.

  11. Mike's comment, I think, should have gone in the previous post, the one that addressed standing. Standing was a tangential issue in this post too, so let's just run with it here as a second track to the dialogue.The link Mike refers to is an excerpted summary of the proponents' belated brief on their own standing. The excerpt cites no statutory law whatsoever, but does make reference to some Cal-SC and USSC case law regarding the standing of proponents to advocate in the stead of the state.Frankly, I would prefer that the proponents be allowed to argue in the stead of the state. The system works best when all sides are represented by zealous, competent counsel and since it's clear the state won't defend itself in this case, the proponents are the next likely place to look for that kind of zealous advocacy.Whether the proponents have standing under California state law is not necessarily the same thing as whether they have standing under Article III. Article III standing requires having a personal stake in the outcome of the case. Since SSM does not affect anyone personally, the argument that proponents lack Article III standing is not a frivolous one by any means. With that said, it remains my opinion that by permitting the proponents to mount a defense of Prop. 8 at the trial court level, the trial court has implicitly found that the proponents do have some kind of Article III standing, because if they do not, all of the proceedings after the state indicated it would not defend itself was improper and the case should have been disposed of by default.That decision, like all of the trial court's decisions, is subject to review by the Ninth Circuit.

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