The extraordinary decision of the federal district court of Aug. 4 declaring unconstitutional California’s ban on same-sex marriage (Perry v. Schwarzenegger) is now on appeal to the U.S. Court of Appeals for the 9th Circuit. The case is heavy with arguable matter, from the threshold issue of whether the parties may litigate a state constitutional provision that the attorney general refused to defend to ultimate issues of equal protection and due process.
A critical element of the appeal concerns an issue of procedure: whether several of the 80 “findings” made by Northern District of California Chief Judge Vaughn Walker, who tried the case without a jury, were indeed findings under Federal Rule of Civil Procedure 52(a)(6), which provides that “findings of fact, whether based on oral or other evidence, must not be set aside unless clearly erroneous.” Rule 52(a)(6) applies to usual testimony about historical facts, to expert opinion testimony and, since 1985, even to documentary proof. When effective, the rule requires a reviewing court of appeals to accept findings of the district court unless they are terribly wrong.
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.
For questions call 1-877-256-2472 or contact us at [email protected]
