Breaking: CA Supreme Court to Decide Prop 8 ‘Standing’ Question from the 9th Circuit

By Karen Ocamb -

The California Supreme Court just issued this press release:

San Francisco — The California Supreme Court today unanimously voted to decide a question of state law in the Proposition 8 case pending before the United States Court of Appeals for the Ninth Circuit (Perry v. Schwarzenegger (Hollingsworth) S189476 (9th Cir. No. 10-16696).
Pursuant to the Ninth Circuit’s request, made  under California Rules of Court, rule 8.548, the “legal standing” question to be addressed by the California Supreme Court is:
“Whether under Article II, Section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure possess either a particularized interest in the initiative’s validity or the authority to assert the State’s interest in the initiative’s validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so.”
The California Supreme Court shortened the normal briefing schedule to expedite consideration and resolution of the issues in the matter and to accommodate oral argument as early as September 2011.

The briefing schedule set by the court is:

·       The opening brief on the merits is to be served and filed on or before Monday, March 14, 2011. The answer brief on the merits is to be served and filed on or before Monday, April 4.

·       A reply brief may be served and filed on or before Monday, April 18.

·       Any person or entity wishing to file an amicus curiae brief must file an application for permission to file such brief, accompanied by the proposed brief, on or before Monday, May 2, 2011.

·       Any party may serve and file an omnibus reply to any or all amicus curiae briefs on or before Monday, May 9, 2011.

The order states, “The court does not contemplate any extension of the above deadlines.”

Press release from Lambda Legal:

Lambda Legal Calls On California Supreme Court to Confirm Prop 8 Proponents Cannot Press Appeal -

“They are not law enforcers and have the same limited rights as everyone else to litigate only when their own rights are at stake, not merely to assert their opinions about others’ rights.”

(San Francisco, February 16, 2011) — Today the California Supreme Court agreed to answer a question by the U.S. Ninth Circuit Court of Appeals on whether or not supporters of a California ballot measure can continue litigation about that measure’s constitutionality when state officials decide against doing so.  A three-judge panel of the U.S. Ninth Circuit Court of Appeals certified the question in the Prop 8 case, Perry v. Schwarzenegger, on January 4. In response to today’s announcement, Marriage Project Director Jennifer C. Pizer of Lambda Legal issued the following statement
“Because the federal appeals judges said they need clarification, we look forward to a decision by the California Supreme Court confirming that initiative proponents lack legal standing to continue the Perry case.  They are not law enforcers, and have the same limited rights as everyone else to litigate only when their own rights are at stake, not merely to assert their opinions about others’ rights.”
Initiative proponents also cannot step into the shoes of the attorney general, the governor or other state officials.  The reason for this is basic:  the governor and attorney general are elected by the people to represent all the people, not just one point of view on one issue, out of countless, competing concerns. Most importantly, state officials swear an oath to uphold the federal and state constitutions, including their abiding promises of equal protection and due process for everyone.  Initiative proponents take no such oath, and have no such duties.
Empowering initiative proponents with a special, new exception to these rules would be mistaken in any circumstances but the error is especially stark in this case.  Prop 8′s proponents claim to represent “the people,” but in fact they only represent some seven million voters in a state of 38 million residents.  Moreover, according to the U.S. Census, the tiny group of same-sex-couple residents targeted by Prop 8 is only around 200,000 people, or less than 2% of the population.
The state high court’s previous decision to allow the initiative power to be used in the unprecedented way Prop 8 did – to strip a terribly vulnerable minority of a fundamental constitutional right – also stripped the equality guarantees out of the California Constitution.  Yet another departure now from bedrock California law to allow proponents an exception from the “legal standing” rules would invite further, deeply problematic consequences.  It would mean proponents could enter every case about an initiative to argue against the state’s position.  They could refuse ever to compromise about anything concerning the litigation process.  And they could object to every settlement plan based on ideology about what the law should be, rather than what it is.
If the California Supreme Court rules that initiative proponents do indeed lack standing, as we believe is proper, we hope it brings a prompt end to the barrier facing lesbian and gay couples, who only wish to love and care for each other with their government’s equal blessing in civil marriage.”

From Chad Griffin, chair of the board of the American Foundation for Equal Rights, teh group sponsoring the lawsuit:

“The California State Supreme Court has just announced it will address the standing question in AFER’s federal challenge to Prop. 8.
While our case was filed in the federal court system, the 9th Circuit Court of Appeals asked the California Supreme Court to clarify if, under state law, the proponents of a ballot initiative would have the ability to appeal a state court ruling. The answer will aid the federal court as it deliberates on our case.
AFER has asked the court to act swiftly to resolve this issue, because every day of state-sanctioned discrimination is one day too many for countless gay and lesbian couples and their families.
AFER is challenging Prop. 8 not only for our plaintiffs, two loving couples who want to marry, and not only for the thousands of loving couples like them, but for the simple reason that our laws should treat everyone equally.
Since our country’s founding, every generation has expanded the promise of equality and freedom. This is our moment. We will not rest until every American has the equal rights they deserve.”

Reaction from Shannon Minter, Legal Director of the National Center for Lesbian Rights:

“For same-sex couples waiting to marry, and for all LGBT Californians waiting to be treated as equal citizens, the knowledge that they must endure further delay is incredibly painful and frustrating.  Prop 8 should never have been permitted on the ballot. The rights of a minority should never be put to a popular vote. Prop 8 was a toxic, anti-democratic measure that continues to wreak havoc in the lives of real people and families. The court should move as quickly as possible to resolve this issue so that justice in California can be restored.
It is clear that California law does not give initiative proponents the power to override elected state officials who have decided not to appeal a federal court decision holding that a challenged state law is unconstitutional. The California Supreme Court should rule accordingly, and the Ninth Circuit should affirm Judge Walker’s ruling. Prop 8 is blatantly unconstitutional, and it is past time for it to be gone.”

Reaction from Equality California:

Equality California Issues Statement on California Supreme Court Decision to Rule on Legal Standing Issue in Federal Prop. 8 Challenge
Sacramento – Today the California Supreme Court unanimously decided to hear arguments to determine if ProtectMarriage.com has legal standing to appeal District Court Judge Walker’s decision to overturn Proposition 8. The decision was in response to the Ninth Circuit U.S. Court of Appeals’ request to the state Supreme Court.
The Appeals Courts sent two briefs with their request to the Supreme Court – one of which was filed by Equality California. In response to today’s decision, Equality California Executive Director Geoff Kors issued the following statement:
“Every day that Prop. 8 remains intact, thousands of same-sex couples and their families are denied fundamental rights and basic protections. We urge the California Supreme Court to reject this attempt by the right-wing to strip the Attorney General of her duty to reject this assault on the California constitution.”
“Knowing that they are likely to lose, far rightwing California Senator Tom Harman has introduced a bill that would compel the Attorney General to defend all ballot measures and appeal court decisions striking them down such as what happened with regard to Proposition 8.  The bill would also authorize the groups that placed measures on the ballot to defend their measures in court if the Attorney General is unable to.  We call on all Californians to reject this attempt to take power away from the people’s attorney, the elected attorney general, and give it to special interest groups.”

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