Although the Ninth Circuit stayed Judge Walker’s decision striking down Prop 8 last week, it also suggested that an anti-gay group’s attempt to appeal Walker’s decision must ultimately be dismissed unless the State of California agrees to join the suit. Because both Governor Arnold Schwarzenegger (R) and Attorney General Jerry Brown (D) have refused to defend Prop 8, it’s reasonably likely that the unconstitutional ballot measure will cease to exist when the Ninth Circuit hears the anti-gay group’s appeal in December.
In a press conference on Friday, however, Republican gubernatorial candidate Meg Whitman announced that she would join the appeal supporting Prop 8 if she is elected governor of California:
“The issue right now is, as I understand is ‘Will Proposition 8 have the appropriate support to actually make an appeal to the circuit court of appeals?’ ” Whitman said. “And I think the governor, the attorney general today has to defend the constitution and has to enable the judicial process to go along and has to enable an appeal to go through. So if I was governor, I would give that ruling standing to be able to appeal to the circuit court.“
Whitman’s decision to lend a hand to discrimination is unfortunate, but it is likely to prove futile. Under the Federal Rules of Appellate Procedure, a party wishing to appeal an district court’s decision must file a notice of appeal “with the district clerk within 30 days after the judgment or order appealed from is entered.” Yet, even if Whitman were elected governor, she would not be sworn in until January 3, 2011 — far too late to appeal a judgment that was entered in early August of 2010.
As the Supreme Court recently explained in Bowles v. Russell, “the taking of an appeal within the prescribed time is ‘mandatory and jurisdictional,'” and Bowles involved a much more compelling case for bending these rules than does the Prop 8 litigation. In Bowles, a district judge incorrectly told a party that he had 17 days left to file an appeal, when in fact he only had 14 days to do so. Nevertheless, the Supreme Court held, the deadline is unforgiving even when a party misses it solely because a federal judge gave them bad information.
Whitman’s case presents none of the sympathetic facts present in Bowles. California has ample notice that one of its laws has been declared unconstitutional, and its duly elected officials decided not to contest this declaration. Moreover, if Whitman were allowed to join the Prop 8 appeal in January, she would have to file a notice of appeal months after the deadline had passed. It is exceedingly unlikely that the courts will tolerate such delinquency.
In other words, it’s unlikely that Whitman’s promise to appeal Judge Walker’s decision is anything more than empty pandering. She may succeed in turning out her anti-gay voters this way, but she cannot restart a stopwatch that will have already run out of time.