Time: Thu Apr 10 07:40:28 1997
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Date: Fri, 11 Apr 1997 09:29:58 -0400 (EDT)
To: GovtAware-L@citadel.net
From: Paul Andrew Mitchell [address in tool bar]
Subject: Re: GovtAware:  Prop 209
Content-Transfer-Encoding: 7bit

What is the full case citation of the
Ninth Circuit decision, please?

/s/ Paul Mitchell
http://www.supremelaw.com



At 01:59 AM 4/11/97 -0400, you wrote:
>This are various facts etc. I have gathered about the current decision by
>the Ninth Circuit Court.
>
>>From the decision:
>>[T]he "goal" of the Fourteenth Amendment, "to which the Nation continues to
>>aspire," is "a political system in which race no longer matters." Shaw, 509
>>U.S. at 657. When the people enact a law that says race somehow matters,
they
>>must come forward with a compelling state interest to back it up. Plaintiffs
>>would have us also require the people to come forward with a compelling
state
>>interest to justify a state law that says that race cannot matter in public
>>contracting, employment, and
>>education. Plaintiffs' counsel went even one step further at oral argument.
>>He urged that "[t]he people of the State of California are not entitled to
>>make a judgment as to whether compelling state interests have been
>>vindicated. That is for the courts."
>>Our authority in this area is limited to deciding whether
>>the interests proffered by the people are sufficient to justify a law that
>>classifies among individuals. If the federal courts were to decide what the
>>interests of the people are in the first place, judicial power would trump
>>self-government as the general rule of our constitutional democracy."
>
>(Here we have the ACLU arguing the superiority of government over the
>governed and a court actually disagreeing and urging judicial restraint.)
>
>The Ninth Circuit Court covers California, Nevada, Washington, Oregon,
>Alaska, Idaho, Montana, Hawaii, Guam, and the Northern Marianas. This ruling
>then would affect any similar laws passed in those jurisdictions. If
>unsuccessfully appealed to the Supreme Court it would effectively end
>affirmative action programs in the entire US.
>
>Following is from anothe list, by a SF attorney who seems well up on the
>issue and also offers a legal perspective.
>
>>It is my understanding that at present the 9th circuit has 20 judges on
it's 
>>panel.  One of these is married to a major person in the southern
California 
>>ACLU and has recused himself from any consideration of this matter.  This 
>>leaves 19 for possible reconsideration.
>>
>>First, the entire judge panel would have to vote on reconsideration.
>>50% is required to review the current decision.  I have been informed that
>>the present group contains more republican appointees than democratic
>>appointees.  This may prevent review.  OTOH, the judges may want to
>>try to put a more powerful review on the record, and may vote in favor of
>>it, hoping that the random selection of the review panel will get a 
>>conservative panel seated.
>>
>>Regardless of whether reconsideration by the 9th circuit happens, the matter
>>will probably be appealed to the US Supreme Ct.  There, 4 justices must
>>request review in order for the case to be heard.  The decision on whether 
>>or not review happens at that level will be based on whether or not the 
>>justices believe that they can get an opinion which they favor.  If the
>conservatives 
>>think that they can get an airtight majority on the case, then they will
>vote for
>>it, unless they think that it is better to leave the matter at the circuit
>level and
>>allow the circuit courts to rule until it becomes necessary to review to
>resolve
>>conflict.
>>
>>The big question has become politics, rather than law.  It is obvious that
>Prop.
>>209 is constitutional.  The 9th circuit judges pointed that out quite
>clearly. Their
>>opinion may have been very polite with Judge Henderson, but they did,
>>essentially, say that he made the opinion out of nothing, and ignored the
>law.  The >issue will, therefore be reduced to one of whether or not the
>desired result can 
>>be achieved at the level where review will be had.  I believe that at
>present, the >best interests of justice and freedom may be best served by
>leaving the decision >intact, as is, and letting the rest of the US see how
>it was handled.  Further review >may be catastrophic, if liberal types get
>into the mix.
>>
>>Steve Laib
>>Atty. and Philosopher
>
>Excuse me for not being my normal cynical self but it appears that
occasionally 
>En Judica es Veritas - you might consider excusing my poor Latin also.
>            Gary L. Tyler
>      (gtyler@castles.com)
>(http://vader.castles.com/gtyler/)
>
>Twas brillig and the slithy toves did gyre and gimble in the wabe.
>All mimsy were the borogoves and the mome rath outgrabe.
>And hast thou slain the Jabberwock, my son?
>                                Lewis Carroll
>
>
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========================================================================
Paul Andrew, Mitchell, B.A., M.S.    : Counselor at Law, federal witness
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