Certainly the outcome has substantive impact. If the court decides that Proposition 8 was passed in an unconstitutional manner, it becomes a nullity and California returns to being the second of these United States to allow homosexual mariage by judicial pronouncement. There are, however, some interesting sub-plots that get lost in the shuffle.

First, if the court does rule that Prop 8 is unconstitutional, it would render moot any federal case arguing that Prop 8 violates the 14th Amendment to the federal Constitution. In my mind, this is the “big fish” argument. I have written previously on the evolution of the 14th Amendment and how the United States Supreme Court has a long history of taking a results-oriented approach to its interpretation. One can see the “ramp up” to the infamous Roe v. Wade decision in prior cases dealing with government intrusion into marriage and procreation. There has been a similar ramp-up over the past several years regarding the issue of homosexuality on society. The Supreme Court has issued decisions striking down sodomy laws in all 50 states and has held that states cannot make constitutional amendments excepting “sexual orientation” from classes protected from employment discrimination.

All this means that the time is ripe for a Supreme Court decision stating that states cannot prohibit homosexuals from marrying if they wish. The interplay between Prop 8 and the 14th Amendment looks to me like the perfect battleground for such a decision. But if the California Supreme Court overturns Prop 8, it would make the federal question moot and non-justiciable. A California victory for homosexual marriage proponents could come at the expense of a federal coup d’état.

My second observation is that there is a considerable ideological overlap between the people who want the California Supreme Court to overturn the results of a popular election and the people who, for the last 8 years, have mercilessly ridiculed Justice Scalia and the United States Supreme Court for usurping a popular election and declaring George Bush the winner of the 2000 election. For over 8 years, the accusation has come from liberal corners that the Supreme Court should not have gotten involved in the democratic process by halting the recount and that the will of the people should have been given paramount importance. Now, from those same corners, we are hearing that the will of the people of California should not be recognized and that the state Supreme Court should step in and invalidate the results of a popular vote. This is certainly inconsistent, if not downright hypocritical.

So what do you think? Will the California Supreme Court strike down Prop 8? Can you see the United States Supreme Court mandating homosexual marriage throughout the country? When should courts substitute their own notions of morality for the will of the people?

However, I want to focus on the issue of governmental immunity. Here is a relevant excerpt from the article:

On June 11, 2005, Middleton, who had been a Jackson police officer since 2003, was working a 2-10 p.m. shift. After dropping a prisoner off at the Hinds County Detention Center in Raymond, he headed north on Mississippi 18 near Siwell Road, according to police statements.

At the same time, around 10:44 p.m., Harris was heading in the opposite direction. Harris, driving a 2000 Pontiac Grand Am, tried to turn left onto Siwell.

Witnesses told police investigators that Middleton was driving at a high speed without his emergency lights or siren on. They said he ran the traffic light and crashed into Harris’ vehicle.

Middleton was indicted in October 2005. After a Jackson Police Department Internal Affairs investigation, he left the department.

Harris’ family has a wrongful death lawsuit pending in Hinds County Circuit Court against Middleton and the city of Jackson. No trial date has been set.

Assistant City Attorney Pieter Teeuwissen said the city’s position is that it is prohibited by law from paying the Harris family’s claim.

Teeuwissen said the state code says “an employee shall not be considered as acting within the course and scope of his employment and a governmental entity shall not be liable or be considered to have waived immunity for any conduct of its employee if the employee’s conduct constituted fraud, malice, libel, slander, defamation or any criminal offense.”

Although the offense has been wiped from Middleton’s record, he pleaded guilty to a criminal offense, Teeuwissen said.

Sounds reasonable, right? You may not agree with the law, but there it is, black and white. A government employee is not acting within the scope of his employment if he is engaging in a criminal act. Middleton plead guilty to a criminal charge, therefore he was not acting within the scope of his employment, right? Not quite.

Whether the reporter considered it unimportant, or whether Mr. Teeuwissen omitted it from his interview, the actual statute reads a bit differently from the quote in the article. Here is Miss. Code Ann. § 11-46-5(2) in its entirety:

For the purposes of this chapter an employee shall not be considered as acting within the course and scope of his employment and a governmental entity shall not be liable or be considered to have waived immunity for any conduct of its employee if the employee’s conduct constituted fraud, malice, libel, slander, defamation or any criminal offense other than traffic violations. (emphasis added)

That changes the landscape a little, does it not? Respondeat superior and governmental immunity may be complicated issues, but there is a huge difference between a government employee knocking over a 7-11 and a police officer on duty, in uniform, in a marked government police cruiser returning from a duty of his employment driving recklessly, running a red light, resulting in the death of a motorist. One falls under the statute and the other doesn’t.

The standard for allowing the case to go forward should be higher than mere plausibility, the government said, pointing to recent Supreme Court decisions, including one in an antitrust case last year, that raised the standard for the evidence that plaintiffs must provide at the initial stage in order to withstand a motion to dismiss their lawsuit.

The unnamed antitrust case is a reference to Bell Atlantic and while the NYT article implies that the Government is getting greedy and arguing that even plausibility is insufficient, the text of the appeal makes it look more as if the Government is arguing that even though the Second Circuit couched its opinion in terms of plausibility, the evidence at this early stage is nonetheless insufficient under Bell Atlantic.

The case is styled Ashcroft v. Iqbal and the Supreme Court granted certiorari, meaning that we could soon have a firmer understanding of the impact of Bell Atlantic on the notice pleading system. Stay tuned…

So it was somewhat of a shock when, not even a year ago, the Supreme Court dismissed a RICO claim under a Fed. R. Civ. P. 12(b)(6) motion for failure to state a claim, based on the fact that the plaintiff’s pleadings failed to allege facts that crossed the line from “possible” to “plausible.” Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (U.S. 2007). The effect of such a ruling is still unknown, and some have gone as far as to suggest that Bell Atlantic may have ushered in a “post-notice pleading” era in federal civil practice.

Seventh Circuit Judge Richard Posner (the famed law and economics proponent and one of the most oft-quoted judges in casebooks of all colors) recently weighed in on the effect of Bell Atlantic. Judge Posner suggested that the holding of Bell Atlantic ought to be considered peculiar to complicated RICO cases and others like them, and suggested that the requirement for additional facts in the complaint which show a “plausible” claim is appropriate where discovery would be more costly than usual. Limestone Dev. Corp. v. Village of Lemont, Ill., No. 07-1438, 2008 WL 852586, at *5 (7th Cir. Apr. 1, 2008).

Judge Posner echoed the Supreme Court, stating that Bell Atlantic does not impose a heightened pleading standard. Nonetheless, it is hard to read it any other way. At the very least, Judge Posner’s explanation seems to indicate that those who will be most aversely affected by this line of cases will be those who are the most interested in obtaining relief, and it seems to protect those who are in the best position to handle the costs of the potential lawsuit. Large corporations typically have all the evidence, especially in RICO cases. The purpose of discovery is to unearth that evidence. By effectively holding that plaintiffs must have enough evidence to even get to the procedural phase in which they are empowered to obtain it places an additional hedge of protection around large corporations who now merely have to claim that the plaintiff’s complaint (while “possible”) is not “plausible,” and contend that discovery would be more costly than usual.

HT: Fight the Hypo