Wednesday, March 3, 2010

Marsy's Law (Prop. 9) - where are we now?

There has been several cases contesting Marsy's Law (Prop. 9). One of the trail blazer case was Gilman et al. V. Schwarzenegger et al. it raised several issues.

Unfortunately, for most lifers, it’s still a wait and see for any Ex Post Facto arguments under Prop 9.

Current Status:
- The District Judge dismissed the Lifer's Due Process claim against Proposition 9.


A preliminary injunction (PI) was granted to the specifically named plaintiffs. The State appealed. An argument in the circuit Court is set for April 13, 2010 to argue who else the preliminary injunction will apply to vis-a-vis inmates. The Order certifying the matter as a class action is pending on the state’s appeal. There is currently no stay on the Preliminary Injunction. The is no briefing scheduled yet. Let's keep an eye on this one!

There is ongoing discovery and of course the original action is on going based on the Civil Rights Act of 1871 which can be found in Title 42, section 1983, hence the well known name of the"1983" civil lawsuit.

We are all hoping for a win in the appeal of the class certification. This would allow to move for an expansion of the preliminary injunction to all class members !

(See our prior 2009 "Proposition 9" posting in this Blog)
Federal Defender (Eastern District) in Gilman et al. V. Schwarzenegger et al. (CIV-S-05-830 LKK GHH)

Eastern District with the UC Davis Law School of Civil Rights Clinic (Section 1983)
Lead Federal Public Defender: Monica Knox email: Monica_knox@fd.org



===== Other interesting cases on Ex Post Facto issues ============

In Thomas v. Yates (E.D. Cal. No. 05-1198) The District Judge has scheduled an evidentiary hearing to determine whether the Governor's use of his reversal power under the 1988 initiative is Ex Post Facto when applied to Lifers whose offenses occurred before the date of enactment.



In Biggs v. Schwarzenegger (E.D. Cal. No. 07-470; 2009 WL 4048109) also in a challenge to the Governor's Parole power of Reversal, the Magistrate has granted the Lifer's motion for additional Discovery.

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