Martin Gill, with the two brothers he has raised for years and hopes to adopt. (Image from the ACLU Web site.)

Oral arguments were held on Wednesday in the ACLU’s state-court challenge to Forida’s adoption ban, In re: Gill, on which I reported earlier this summer.  The folks over at law.com, care of the Daily Business Review, have a great report on the case.  Jordana Mishory reports:

The state defended the gay adoption ban in general terms without attacking the suitability of Gill’s parenting in arguments before a three-judge panel and a standing-room-only crowd of more than 150 people.

. . . .

[The lawyer for the children] recited the list of state stipulations in the case: [The Department of Children and Families] agrees Gill would be a good parent. DCF agrees adoption by Gill would be in the best interest of the children. DCF allows gay parents to be legal guardians and foster parents.

“The father is a gay man. But that didn’t concern the state when they placed [the children] in his care,” he said.

Judge Gerald Cope Jr. said: “This is as far as I can tell the only absolute disqualification under the statute. How is that fair?”

As I noted in my earlier report:

The trial court opinion (pdf) contained a more-than-30-page evaluation of the factual record and expert witness evidence.  It then presented 56 stipulated, or agreed upon, facts — including that “[b]ut for Section 64.042(3), Fla. Stats. [sic], DCF [Department of Children and Families] would have approved Petitioner’s application to adopt John and James.”  In re the Adoption of John and James Doe, Final Judgment of Adoption, at 35.

The court, only after presenting all that information, made findings of fact and conclusions of law, in which it found a violation of the Florida Constitution’s Equal Protection rights of both the prospective parent and the children who would be disadvantaged by Florida’s ban on adoption by gay parents, as well as a statutory violation of the children’s rights.

The result of the appellate court’s decision whether to uphold Judge Cindy S. Lederman ruling that the ban is unconstitutional under Florida law is unlikely to be the last word, as the Florida ACLU’s lawyer acknowledged to me earlier:

If the appellate court upholds the trial court’s decision finding the ban to be unconstitutional, then Rosenwald said there will be an automatic appeal to the Supreme Court of Florida.  Even should the appellate court uphold the ban, which would make an appeal to the Supreme Court discretionary, [the director of the Florida ACLU’s LGBT Advocacy Project, Robert] Rosenwald[,] believes the court will take the case because “this case has the evidence that they had wanted in” the earlier adoption case it heard.

I’ll have more to report when there’s more to report.

[Thanks to @stevebeste for pointing me to Mishory's article.]

Extreme Silence at Prop 8 Hearing; Boies Wears Hush Puppies?

By Michael Petrelis

AFER board president Chad Griffin (left) and lawyers Ted Olson (center) and David Boies.

Here are some of my impressions from the hearing today before Judge Vaughn Walker in the matter of the lawsuit challenging Prop 8 being brought by Ted Olson and David Boies, Perry v. Schwarzenegger, and the news conferences afterward.

* * * * *

As I tried to get through the security checkpoint at the Golden Gate Avenue entrance to the federal building, my camera was confiscated by the guards for security reasons.  I protested this, arguing that TV cameras were allowed in for the press conference following the hearing, and I should be granted the same privilege.

The woman behind me interrupted my spat with security, while grabbing her bag from the conveyor belt.  She said: “I read your blog everyday.  You’re a unique thinker with strong views, not that I always agree with them.  I’m Calla Devlin from the National Center for Lesbian Rights.  I’ll see you upstairs in court.”

What an introduction.  She gave me her card, then the guard gave me a ticket to reclaim my camera later on.

* * * * *

Fifteen minutes before the hearing is set to start at 10 a.m., and there are seats aplenty in the courtroom — unlike the hearing on July 2.  I see the friendly faces of John Lewis and Stuart Gaffney, a gay couple long involved in this battle, often in the media eye, and grab a seat in the row ahead of them.

In the front right row are the two gay and lesbian couples who are the plaintiffs: Kristin Perry, Sandra Stier, Paul Katami and Jeffrey Zarrillo.  Seated to their right is Chad Griffin, head of the American Foundation for Equal Rights board, and he’s being cordial with Jenny Pizer of Lambda Legal, who is shaking hands and greeting the plaintiffs.

* * * * *

Randy Thomasson, head of the anti-gay Campaign for California Families, is in the next to last row, with a lost look on his face.  In the row behind me, to my left, is Frank Schubert, campaign manager for ProtectMarriage.org and the Yes on 8 forces last year.  He exhibits the intensity of a coach waiting for his team to win the game.

* * * * *

Five minutes before Judge Walker enters, the day’s court reporter instructs all attorneys to speak directly into the mic at the lectern, then goes around both sides’ tables, writing down everyone’s name.  This small bit of court action brings a hush to the spectators in the courtroom.

The proceeding soon starts, and like the last hearing, Judge Walker is cheerful, but serious about the business at hand, and wonderfully direct.

As the hearing goes on, I feel and hear an extreme silence everywhere, except at the bench or the lawyers’ mic. No one in the audience is whispering or making any discernible noises, as we all hang on to every word from the lawyers and judge.

* * * * *

We’ve stepped back into the stone age of communication.  Anyone who is taking notes, maybe half of all in attendance, is doing so on dead tree and using pens.  No clicking of keyboards or whirring of tape recorders.  All electronic devices are turned off.

Media trivia: Lisa Leff of the Associated Press is left-handed, and she used a legal note pad for her reporter’s notes today.

* * * * *

Olson and Boies speaking at the news conference after the hearing.

Judge Walker asks the ACLU attorney, James Esseks, who is arguing for the gay groups that want to be parties to the lawsuit, if part of what they’re after is to make sure “the factual record would be richer.”  The lawyer says yes, and a murmur from the left side of the audience is heard.

Disapproving looks are shot at the people murmuring — and they immediately go quiet.

The lawyer for the Campaign for California Families talks so fast the court reporter twice asks her to slow down.  It was hard for me to hear all of her words.

When Ted Olson rebuts arguments made by the gay groups trying to join the case, his delivery was even, his voice easily picked up by my ears.

* * * * *

The reporter next to me is hiding his iPhone in his left hand, under his paper pad.  He frequently takes it out, texts only with his left hand, then hides the device.

Right after Judge Walker rules against the pro-gay and anti-gay groups looking to intervene, the reporter rapidly fires off a text message.  So does Schubert, who makes no effort whatsoever to conceal his action.  The guard doesn’t notice.

Across the aisle, Thomasson is upset with the rulings and leaves as soon as the court addresses the case management issues.

* * * * *

San Francisco City Attorney Dennis Herrera and one of his top lawyers, Therese Stweart.

Every time I glance at the male plaintiff couple, seated on the aisle, one partner has his arm resting on the back of the wooden pew.  At times, his left hand embraces his partner’s upper arm.  The body language of both says, “We’re not afraid to show affection.  We are partners.”

* * * * *

There are three press conferences after the hearing in the media center of the federal building.  First up are Dennis Herrera, San Francisco City Attorney, and his top lawyer Terry Stewart.

Olson, left, and Boies. And their shoes.

Only Herrera speaks to the press, and is pleased the city will be allowed to join the suit and show the city’s unique “governmental interest” to the court regarding the outcome’s impact on local agencies.

Next come Griffin, Olson and Boies, and the lawyers answer a few questions.  I notice that Boies is not wearing proper business attire.

He’s wearing what appear to be velvet slip-on walking shoes from Hush Puppies, not the standard issue black leather lawyer shoes Olson has on.  I don’t know why I found this sartorial observation of interest, but upon reflection, I think it was because this small detail humanized this superlawyer to me.

* * * * *

Cooper

Finally, Charles Cooper, the lawyer for the Yes on Prop 8 team, along with two associates whose names I didn’t catch, took questions.  As Cooper explained the rationale for what he thinks is a winning legal strategy, the lightweight Yes on 8 sign, which hadn’t been securely taped to the lectern, came loose and fell to the floor.  Some laughs broke out, and I cracked wise, from the front row.

Cooper, without his sign.

“It doesn’t seem like you’ve got a solid foundation there,” I said to Cooper, who chuckled at his bare lectern and got back to serious business.

Throughout the three pressers, a Daniel Sullivan, a retired attorney and consultant to several local media outlets, badgered the lawyers.  He impressed me with his forceful questioning and deep knowledge of U.S. Supreme Court rulings.

I asked him afterward why he was so aggressive.  He replied: “To make them better lawyers prepared to appear before judges other than Walker.”

May the legal barriers that stop gay people from marrying, fall as easily and unequivocally as Cooper’s flimsy sign.

]]> http://lawdork.net/2009/08/19/petrelis-impressions-from-the-hearing/feed/ 2 http://lawdork.net/2009/08/19/breaking-judge-denies-lgbt-orgs-request-to-intervene-in-prop-8-challenge/ http://lawdork.net/2009/08/19/breaking-judge-denies-lgbt-orgs-request-to-intervene-in-prop-8-challenge/#comments Wed, 19 Aug 2009 18:38:21 +0000 Chris Geidner http://lawdork.net/?p=3227

Protests erupted in California - and across the country - following the passage of Proposition 8 in California, now being challenged in federal court by two of the nation's most prominent lawyers, Ted Olson and David Boies.

U.S. District Judge Vaughn Walker set a rather quick trial date of January 2010 in the Perry v. Schwarzenegger lawsuit challenging the constitutional validity of Proposition 8 and has denied the request of several LGBT community groups in California — represented by the ACLU, Lambda Legal and NCLR — to intervene in the case.  The similar request of the Campaign for California Families, which had supported Proposition 8, to intervene also was denied.

Judge Walker did, however, grant the request of the City of San Francisco to intervene.  According to Lambda Legal’s Jason Howe, the judge “said they showed a government interest that wasn’t represented by any of the current parties.”

Additionally, the American Foundation for Equal Rights, a new organization created for this lawsuit, has announced that Judge Walker has set the trial in the case for January 11, 2010.  That represents a very quick trial, in terms of federal court timelines, and will keep the parties very busy over the coming months.

Chad Griffin, the board president of AFER, said in a news release, “Proposition 8 compels our government to treat people differently under the law simply because of who they are. That injustice cannot be corrected fast enough.”

[For great coverage at the hearing -- and pictures -- check out this follow-up guest post from Michael Petrelis.]

What the intervention rulings mean is that Ted Olson and David Boies, along with San Francisco City Attorney Dennis Herrera, will be the lawyers now controlling this challenge to Proposition 8, considered by many to be the most broad, grand-scale attack on marriage discrimination of all those brought in recent years.  It is not yet clear how Vaughn ruled in terms of whether both plaintiff groups — the AFER plaintiffs and the City Intervenor-Plaintiff — will be responsible for all decisions or whether Walker named one lead plaintiff in the case.

Of the city’s intervention, Herrera said in a news release, “In terms of our unique public sector perspective and the evidence we’ve already developed, we think the City is an extremely well-prepared co-plaintiff in the kind of trial Judge Walker envisions.”

The ramifications of an appellate or Supreme Court ruling would have impact far outside California’s borders, with a success for the plaintiffs calling into question other state amendments banning lesbian and gay couples from marrying, as well as the federal Defense of Marriage Act.

The LGBT legal organizations,  who expressed “disappointment” and called the decision “troubling,” now will be limited to filing amicus briefs, memoranda submitted to the court representing the views of non-parties who have an interest in the outcome of the case.  At the trial court level, they will not have the ability to participate in depositions or request discovery.  On appeal, they will have the option of requesting time at the oral argument, though, at this point, it is unclear how willing the plaintiffs will be to consent to any potential argument-sharing arrangement.  In short, this has moved the LGBT legal organizations to the periphery of a very prominent and potentially landmark case.

[Thanks to Pam Spaulding, @marcambinder, @waymonhudson, the folks at TAPPED and Joe.My.God for the links.  The LGBT legal organizations' news release can be found below the jump.]

* * * * *

The release from the LGBT legal organizations:

LGBT Community Groups Disappointed By Court’s Denial To Join Federal Prop 8 Case

SAN FRANCISCO — Today Judge Vaughn R. Walker of the U.S. District Court in San Francisco denied the request of Our Family Coalition; Lavender Seniors of the East Bay; and Parents, Families, and Friends of Lesbians and Gays (PFLAG) to join Perry v. Schwarzenegger, a federal lawsuit challenging California’s Proposition 8.

A statement by Lambda Legal, the ACLU and the National Center for Lesbian Rights:

On behalf of our clients, we are disappointed that the court did not permit organizations that represent California’s diverse lesbian, gay, bisexual, and transgender (LGBT) community to participate in the case as the Court weighs the harms inflicted by Proposition 8. The significance of this case for our entire community is enormous. To exclude the people whose very freedom is at stake is troubling. Our commitment to restoring marriage for all Californians is unwavering, and we will continue to do everything within our power to secure full equality and justice for LGBT people.

More to come . . .

Olson and Boies

[UPDATE: Coverage of today's hearing, including Judge Walker's mixed rulings on the proposed interventions, can be found here.  Also, the Prop 8 Proponents Supplemental Case Management Statement, quoted below, can be found here (pdf).]

The parties and would-be parties in Perry v. Schwarzenegger case will be appearing before Judge Vaughn Walker in U.S. District Court in San Francisco today to discuss who will be arguing the case challenging the constitutional validity of Proposition 8 and what the contours of that argument will be.

The one issue to be decided is whether the City of San Francisco, the coalition of LGBT groups or the Campaign for California Families will be allowed to intervene and become parties to the lawsuit.

The American Foundation for Equal Rights, backing the lawsuit led by superlawyers Ted Olson and David Boies, opposes the entrance of these groups, writing that allowing these additional groups into the litigation would harm the ability of the court to reach what it already has stated it wants: a “just, speedy and inexpensive determination of these issues.”

The ACLU, Lambda and the National Center for Lesbian Rights are representing the LGBT coalition, despite earlier expressing concerns about the wisdom of the lawsuit’s challenge.

Shannon Minter, the legal director at NCLR, wrote in response to an inquiry from Law Dork:

The ruling in this case will affect every gay person in the country perhaps for decades to come.  That is a very serious responsibility and burden for any court, and I am hopeful the court will recognize the value of making sure that the full diversity of our community is represented in the case.  But no matter what the court decides, we are committed to doing whatever we can to help the case succeed.

The second issue for the court to decide involves setting the contours of the case, most notably the timeline for moving the case forward.  A large part of that includes determining whether a trial is necessary and, if so, what form it would take.

But, the most important thing already has been learned this week, and that is the lengths and depths to which the Proposition 8 proponents — already permitted to intervene — will go in defending against the challenge.  In the Supplemental Case Management filings on Monday, Judge Walker’s order has led to an early view of the arguments to be made in the case.

The most remarkable, and oddest, claim comes in the Proponents’ discussion of “immutability,” a portion of the examination into what level of scrutiny the court will use to examine whether Proposition 8 is valid. The Proponents state:

We will also develop evidence that homosexuality is not immutable by analyzing marriage and domestic partnership records from California. . . . From the domestic partnership records, we will compile a list of all the individuals in California who have entered a same-sex domestic partnership.  We will then cross-reference these names with the marriage records to identify individuals were previously or subsequently married to a member of the opposite sex.

Propon. Supp. Case Mangmnt. Stmnt. at 6-7 (pdf).  The Proponents also make clear that child-raising will be an area on which they plan to focus:

Proposition 8 promotes the natural and mutually beneficial bond between parents and their biological children by encouraging parents to raise their biological children.  We plan to develop evidence that many gay and lesbian individuals desire to have biological rather than adopted or foster children, and that many satisfy these desires with the assistance of technology or by other means.  We will seek discovery of the names of Californians in registered domestic partnerships with the parents listed on birth records from the Department of Health’s Office of Vital Records (which maintains birth records) and the Secretary of State’s Office (which maintains domestic partnership records).  We may also seek discovery from companies and organizations that offer assisted reproductive technology and services to develop evidence on this issue.

Id. at 11-12.  Two comments.  First, this seems to me to be more than a little bit over the top and unnecessarily invasive.  Second, this, once again, makes the Justice Department’s statement in Smelt v. United States that “the United States does not believe that DOMA is rationally related to any legitimate government interests in procreation and child-rearing” seem all the more important to advancing LGBT equality.

From “ex-gays” to raising kids and beyond, it’s clear that it’s not only the folks on our side who are seeing this case as the place to be.

I’ll have more as we hear from California tomorrow.

* * * * *

RELATED: The New York Times profiles Ted Olson today.  More accurately, it profiled how such a conservative as Olson arrived at such a place as this.

The paper also asks Eugene Volokh, Amy Wax, Evan Wolfson and Kenji Yoshino about Olson’s effort.  The answers, for those familiar with the thinkers’ works, were not at all surprising.  I did, however, find one bit of Evan’s statement to be particularly interesting.  He wrote:

The best way to maximize the chances for a just ruling by the court is not just by hiring good lawyers, writing smart briefs, or, even, being right. What’s needed is creating the climate that enables justices to do the right thing.

Incidentally, it’s also one of the few points on which all of his co-contributors and he might agree.

Unlike the intervenors here, the government does not contend that there are legitimate government interests in “creating a legal structure that promotes the raising of children by both of their biological parents” or that the government’s interest in “responsible procreation” justifies Congress’s decision to define marriage as a union between one man and one woman (Doc. 42 at 8-9). Since DOMA was enacted, the American Academy of Pediatrics, the American Psychological Association, the American Academy of Child and Adolescent Psychiatry, the American Medical Association, and the Child Welfare League of America have issued policies opposing restrictions on lesbian and gay parenting because they concluded, based on numerous studies, that children raised by gay and lesbian parents are as likely to be well-adjusted as children raised by heterosexual parents.7  Furthermore, in Lawrence v. Texas, 539 U.S. 558, 605 (2003), Justice Scalia acknowledged in his dissent that encouraging procreation would not be a rational basis for limiting marriage to opposite-sex couples under the reasoning of the Lawrence majority opinion – which, of course, is the prevailing law – because “the sterile and the elderly are allowed to marry.”  For these reasons, the United States does not believe that DOMA is rationally related to any legitimate government interests in procreation and child-rearing and is therefore not relying upon any such interests to defend DOMA’s constitutionality.

Martin Gill, with the two brothers he has raised for years and hopes to adopt. (Image from the ACLU Web site.)

The immediate question this raised for me was whether this language could find its way down to Florida, where the court of appeals will soon be hearing the appeal of In re: Gill, a challenge to Florida’s ban on adoption by gay people.  As I discussed in a preview of the case last month:

The case, the appeal of which will be heard on August 26 by the Third District Court of Appeals in Miami, was heard at trial by Judge Cindy S. Lederman, then-chief of the Juvenile Division.  Notably, the case included extensive presentation of evidence about the foster children’s circumstances and, more generally, expert witness evidence regarding children raised in families headed by lesbian or gay parents.  Rosenwald said such evidence had not been present in either an earlier state court adoption case or a five-year-old federal case challenging the Florida adoption ban.  See Cox v Dep’t of Health and Rehabilitive Serv., 656 So.2d 902 (1995); Lofton v. Sec’y of Dep’t of Children and Families, 358 F.3d 804 (11th Cir. 2004), cert. denied, 535 U.S. 1081 (2005).

Regardless of their consideration here, the DOJ statements certainly will be included in briefing for the likely appeal before Florida’s Supreme Court.

This adoption case quickly shows the potential value of the Department of Justice’s refutation of the outdated arguments against gay parenting in its Smelt reply brief earlier today.

U.S. District Judge Vaughn Walker

In a brief, pointed order (pdf), U.S. District Court Judge Vaughn Walker on Wednesday made clear that he did not get what he wanted from the parties’ most recent filing in the Perry v. Schwarzenegger Proposition 8 court challenge.  The order calls on “all parties, including all government defendants” to provide a more detailed case management filing to him by noon Monday.  Judge Walker’s order directs the parties to include:

(1) The specific elements of the claims plaintiffs assert and the defenses, if any, defendants and intervenors contend apply;

(2) Admissions and stipulations that the parties are prepared to enter with respect to the foregoing elements and applicable defenses at issue;

(3) Discovery that the parties seek that may lead to the discovery of admissible evidence with reference to:

(a) Level of scrutiny relevant to plaintiffs’ claims;
(b) The campaign by which Proposition 8 was adopted;
(c) Character of the rights plaintiffs contend are infringed or violated;
(d) Effect of Proposition 8 upon plaintiffs and similarly situated individuals;
(e) Effect of Proposition 8 on opposite-sex couples and others not in same-sex relationships in California; and
(f) Other issues pertinent to the parties’ claims or defenses;

In describing intended discovery, the parties should be as specific as possible; thus, the parties should identify by name and position individuals or entities that may provide evidence by testimony or otherwise, and, if not at this point possible to identify individuals or entities, describe the type of individual or entity from which discovery is sought; and

(4) Subject matter (by discipline or expertise) of the opinion/expert evidence that the parties intend to present.

In other words, Judge Walker means business.  He has given the parties a boatload of work to do in five very short days.

That Judge Walker would seek such specific information from the parties prior to ruling on the motion of the entities seeking to intervene is interesting.  I see two possibilities.  Perhaps he agrees with the Olson/Boies team and has no intention of allowing anyone else into this suit.  Simple enough.  Or, perhaps Judge Walker intends to let the groups and the city into the case, but only after the Olson/Boies team has had a chance to, more or less, direct the focus of the litigation through this filing on Monday — which comes two days before the hearing set for Wednesday (at which the case schedule and the motions to intervene will be discussed).

Judge Larson

Ohio Gov. Ted Strickland has appointed a second openly LGBT judge to the bench.  Jerry Larson, a longtime lawyer for the City of Akron, took his seat Monday on the Akron Municipal Court.  Although The Advocate covered his appointment and noted that he is openly gay, the Akron Beacon Journal left out that fact in its report.

Strickland’s news release does not stating that he’s gay but notes at one point that Larson “serves on the steering committee of the Gay Community Endowment Fund of Akron Community Foundation.”  A “Don’t Tell, Just Imply” policy?

Regardless, it’s good to know that being openly LGBT is not a disqualification for judicial appointment in the Strickland Administration.  Far from the inane and immature implication of others, this was not a situation in which “one’s qualifications and legal expertise [were] reduced to a discussion of unusual sexual proclivities.”  Larson has a lengthy history with the city, having worked for the Akron Law Department for 17 years — first as an assistant director of law, then as the police legal advisor and most recently as an assistant prosecutor.

Sorry, but some of us don’t mind — and, in fact, like — the fact that judges in Ohio appointed under Strickland are more accurately representing the people they serve.

Strickland previously had named Judge Mary Wiseman, who is openly lesbian, to the Montgomery County Court of Common Pleas.

Martin Gill, with the two brothers he has raised for years and hopes to adopt. (Image from the ACLU Web site.)

Robert Rosenwald — the director of the Florida ACLU’s LGBT Advocacy Project and Gill’s lawyer — said today in an interview with Law Dork that he is “optimistic” that the trial court decision finding that the ban violates the Florida Constitution will be upheld on appeal.

The case, the appeal of which will be heard on August 26 by the Third District Court of Appeals in Miami, was heard at trial by Judge Cindy S. Lederman, then-chief of the Juvenile Division.  Notably, the case included extensive presentation of evidence about the foster children’s circumstances and, more generally, expert witness evidence regarding children raised in families headed by lesbian or gay parents.  Rosenwald said such evidence had not been present in either an earlier state court adoption case or a five-year-old federal case challenging the Florida adoption ban.  See Cox v Dep’t of Health and Rehabilitive Serv., 656 So.2d 902 (1995); Lofton v. Sec’y of Dep’t of Children and Families, 358 F.3d 804 (11th Cir. 2004), cert. denied, 535 U.S. 1081 (2005).

The trial court opinion (pdf) contained a more-than-30-page evaluation of the factual record and expert witness evidence.  It then presented 56 stipulated, or agreed upon, facts — including that “[b]ut for Section 64.042(3), Fla. Stats. [sic], DCF [Department of Children and Families] would have approved Petitioner’s application to adopt John and James.”  In re the Adoption of John and James Doe, Final Judgment of Adoption, at 35.

The court, only after presenting all that information, made findings of fact and conclusions of law, in which it found a violation of the Florida Constitution’s Equal Protection rights of both the prospective parent and the children who would be disadvantaged by Florida’s ban on adoption by gay parents, as well as a statutory violation of the children’s rights.

This decision is noteworthy for its acceptance of the claims brought by the guardian ad litem in the case, the lawyer representing the interests of the child.  A key part of the trial judge’s ruling found that “[a] law such as the blanket ban on adoptions by homosexuals infringes on the foster child’s right to be free from undue restraint and to be expeditiously placed in an adoptive home that serves the child’s best permanency interests.”  In re the Adoption of John and James Doe, Final Judgment of Adoption, at 40.

The state, represented by Republican Attorney General Bill McCollum, appealed.

As the ACLU makes clear in its appellate brief, the purpose of an appellate court, is not to re-try a case.  It is, for the most part, to review only the legal determinations made by trial judges.  As the ACLU’s appellate brief for Gill states: “Factual findings can only be overturned if ‘totally unsupported by competent and substantial evidence.’”  In re: Matter of Adoption of X.X.G. and N.R.G., Answer Brief of Appellee F.M.G. (pdf), at 12.  It goes on: “This [appellate] Court cannot pick and choose . . . among bits of testimony and reweigh the evidence.” Id.

The state of Florida, however, does just that.  For almost its entire brief (pdf), the state re-lists what it viewed as its “best” facts before the trial court and re-argues why its facts should be the facts on which the appellate court relies to determine whether Florida’s adoption ban is valid.

Rosenwald was unsurprised by this line of argument.  “The state is in the unenviable position of making arguments that are unsupported by the facts,” Rosenwald said.  “The state would like the appeals court to disregard the factual findings of the trial court and make its own findings.”

In one of the few points of the brief where the state does argue about the law, it presents a standard that every lawyer will love.  In describing “rational basis review,” the general review a court gives to a legislative enactment, the state describes the review — whether the provision is  “rationally related to a legitimate state interest” — as “uber-deference.” In re: Matter of Adoption of X.X.G. and N.R.G., Initial Brief of Florida Department of Children and Families, at 24.

In the children’s brief responding to the state’s brief in the appellate court, lawyers for the children note: “Regardless whether Section 63.042(3) can pass constitutional muster against the Father’s equal protection challenges, it is an arbitrary infringement on the Children’s liberty, which is anathema to the Fourteenth Amendment.” In re: Matter of Adoption of X.X.G. and N.R.G., Answer Brief of Appellees X.X.G. and N.R.G. (pdf), at 37.

The arguments in the appellate case, which take place on Aug. 26, will be open to the public.  If the appellate court upholds the trial court’s decision finding the ban to be unconstitutional, then Rosenwald said there will be an automatic appeal to the Supreme Court of Florida.  Even should the appellate court uphold the ban, which would make an appeal to the Supreme Court discretionary, Rosenwald believes the court will take the case because “this case has the evidence that they had wanted in” the earlier adoption case it heard.

Further information on the case, including additional briefs and news releases, can be found here at the ACLU’s Web site.

As such, ideological 4-3 splits are rare.  Today, such a split happened in Cordray v. Planned Parenthood Cincinnati Region, 2009-Ohio-2972 (pdf).  The U.S. Sixth Circuit Court of Appeals certified two questions about mifepristone — commonly known as the abortion pill — to the Ohio Supreme Court for clarification about Ohio law.

The one — resulting in a 6-1 opinion (Pfeifer, J., dissenting) — asked whether Ohio law “mandate[s] that physicians in Ohio who perform abortions using mifepristone do so in compliance with the forty-nine-day gestational limit described in the FDA approval letter.”  The court answered that question, “Yes.”

The 4-3 result came from the second question, asking whether Ohio law “mandate[s] that physicians in Ohio who perform abortions using mifepristone do so in compliance with the treatment protocols and dosage indications described in the drug’s final printed labeling.”  Two of the three the dissenting justices asserted that the court’s “yes” answer was a holding that Ohio law “prohibits all off-label uses of the drug.”  Justice O’Connor, joined by Justice Lanzinger, dissented, accusing the majority of coming between doctors and their patients:

The law recognizes that medical judgments are best left to the sound discretion of those with the education, training, and experience to make the best-informed decisions – physicians.  “Good medical practice and the best interests of the patient require that physicians use legally available drugs, biologics and devices according to their best knowledge and judgment.”  United States Food and Drug Administration, Information Sheet:  Guidance for Institutional Review Boards and Clinical Investigators 1998 Update, available at http://www.fda.gov/oc/ohrt/irbs/offlabel.html.  Although doctors and other health-care professionals are not immune from valid limitations on the practice of medicine, those limitations must be imposed properly.

Because the FDA’s approval of the use of mifepristone within the 49-day gestational limit does not prohibit off-label use of the drug, other uses are also in accordance with federal law.  If the legislature intended to forbid all off-label uses of mifepristone, it could have expressly done so.  Instead, it limited the use of the drug to those uses that are in accordance with federal law.  Thus, I would hold that although R.C. 2919.123 restricts the delivery of the drug to women no more than 49 days pregnant because of the FDA’s required patient agreement, I do not agree that the statute prohibits all off-label use of mifepristone.  Accordingly, I concur in part and dissent in part.

Justice Pfeifer dissented seperately, concluding simply: “Nothing in the plain language of R.C. 2919.123 mandates that the use of mifepristone be limited to the first 49 days of pregnancy.  I dissent.”

After a lengthy absence from the Web, I have left state government and decided to return to the blogosphere with Law Dork, 2.0.

As I begin blogging again, the most important issue for me is a focus on how government can and should work for the people.  As the new Administration begins in Washington, D.C., there are going to be many questions raised about how government best works for the people.  From debates about regulatory reform in the financial industry and across the federal bureaucracy to the interaction between state and federal government, these are, at base, questions about how government can best serve the people.

During the Bush Administration, many state governors, attorneys general and other elected officials began to play a more active role in areas of government considered the province of the federal government since the New Deal.  If the “change” promised during President Barack Obama’s campaign is realized, state regulators will be forced to reconsider changes that they have made when adapting to the federal de-regulatory era of the Bush Administration.  The Obama Administration, as well, must consider how it will treat those state regulators — both regarding legal questions about preemption and when considering practical questions about lines of communication between the federal government and the states.

In addition to issues regarding state regulators and the interplay of state and federal regulation, I also have significant interest in what I and others would term “access to justice” questions.  These are the questions about private enforcement of state and federal laws, and — though sometimes overlapping with preemption and other state and federal regulatory issues — often raise new questions in and of themselves.  These, too, are important questions to consider when examining ways in which the government can better serve the people.

Of course, try as I might, I am aware that my interests are many.  As readers from the original Law Dork know well, I have a strong interest in many legal and political questions.  Although my time in state government has honed some of that interest, and although I hope to focus primarily on the topics described above, I know that I will at times branch out into other areas, including LGBT legal and political issues and other breaking news that might catch my interest.

Blogging is, of course, an interactive process, and my hope is that you, my readers, will contribute early and often to the discussion.  I welcome dissent but encourage civility.  Please, feel free to comment or send me e-mail.