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| Attorney Peter DelVecchio |
California federal District Judge Vaughn Walker ruled last year that Prop 8 violated the federal Constitution. Then-Gov. Arnold Schwarzenegger and then-Atty. Gen. Jerry Brown declined to appeal Walker’s decision.
The standing issue is critical. In fact, it could determine the outcome of the case in the Ninth Circuit, and possibly even in the US Supreme Court if the case ultimately makes its way there. This is because if the proponents lack standing, Judge Walker’s ruling will stand without the appellate court even reaching the issue of Prop 8’s constitutionality. In essence, plaintiffs will win the appeal by default because there won’t be anyone in the Ninth Circuit authorized to argue in favor of Prop 8.
Beyond that, though, if the case reaches the US Supreme Court, Walker’s decision will stand a much better chance of surviving if the only issue is standing, and not the existence of a Constitutional right to gay marriage. In 1997, the US Supreme Court stated in Arizonans for Official English v. Arizona (Arizonans) that there were “grave doubts” regarding whether the sponsors of a successful ballot measure that essentially designated English as the official language of the Arizona government had standing to defend the measure, noting that the court had never held that initiative proponents may properly defend their initiatives on appeal.
In contrast, it is at best an open question whether 5 of the 9 current justices would find a right to same-sex marriage in the US Constitution, and a virtual certainty that 4 of them, Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia, and Clarence Thomas, would not.
The questions the Ninth Circuit panel submitted to the California Supreme Court are whether, under California law, a ballot initiative’s proponents have a sufficiently “particularized” interest in the measure’s validity to yield standing, or, alternatively, whether they may assert a state interest in defending the law “when the public officials charged with that duty refuse to do so.”
Prior to the California court’s decision to answer the questions, the parties and certain others submitted letter briefs outlining their positions. Plaintiffs, victors in the lower court, urged the California Supreme Court to refuse to answer either question. The court obviously (and not at all surprisingly – courts rarely say “no” in situations like this) rejected that advice, but plaintiffs’ initial and follow-up letters also set out the arguments they will likely assert in their upcoming briefs.
Plaintiffs argued that the first question was a matter of federal law for the Ninth Circuit to decide itself, and that the California Supreme Court’s view was therefore simply not relevant. Relying on US Supreme Court precedent, they pointed out that, for there to be standing, a party must have an “actual” stake in the outcome of the case that is “concrete and particularized,” one that “affect[s] the plaintiff in a personal and individual way.” As the court said in Arizonans, “An interest shared generally with the public at large in the proper application of the Constitution and laws will not do.”
Because standing in a federal court is a requirement of Article III of the federal constitution, plaintiffs argued, only federal constitutional principles are germane to the inquiry. Their letter explains:
The Ninth Circuit must decide whether the proponents’ interest in the constitutionality of Proposition 8 is sufficiently distinct from the interest of the millions of other Californians who voted for the measure to satisfy the requirements of Article III. California law has no bearing on the answer to that question because state law cannot be used to manufacture Article III standing. . . . And because this issue is controlled by principles of federal constitutional law, [the California Supreme Court] does not have any peculiar insights to provide the Ninth Circuit – just as the Ninth Circuit would not be able to provide [the California Supreme Court] with meaningful guidance in determining whether a party satisfied the requirements of state law for pursuing an appeal in state court.While I have to confess that I have performed no independent research on the issue, this argument strikes me as being sound. It is first year constitutional law and civil procedure that there are two parallel court systems in this country, state and federal, and that federal court standing is a creature of Article III of the US Constitution. Whether a ballot initiative’s proponents have standing in a state court, therefore, should in my view be irrelevant to whether they have standing in connection with a constitutional challenge in a federal appellate court.
Plaintiffs argued that there was no need for the California Supreme Court to answer the second question because “[i]t is already a well-established principle of California law that proponents lack the authority under state law to represent the interest of the State.”
Plaintiffs conceded that initiative proponents have been permitted to intervene in cases considering an initiative’s validity, but assert that such intervention has been limited to cases where the proponents sought to “pursue their own interests in the validity of the ballot initiative, not to represent the interests of the State.”
“Where ballot initiative proponents have sought not merely a right to intervene but standing to maintain a suit in their own right,” plaintiffs wrote in their initial letter, the California Supreme Court “has determined that they lack standing.”
As an aside, intervention and standing are two different animals. Unlike standing, intervention typically turns on the application of court rules, not constitutional provisions. The standards for intervention are therefore usually considerably less stringent than those governing standing. Additionally, intervenors are, by definition, just that – intervenors. They’re not the principal parties in a lawsuit. They are generally parties allowed under a limited set of circumstances to become involved in a dispute primarily between other parties. For example, Prop 8’s proponents were permitted to intervene in Judge Walker’s court, but the primary parties were the gay plaintiffs seeking marriage licenses and the state defendants.
Plaintiffs pointed out that in In re Marriage Cases, the 2008 decision in which the California Supreme Court legalized gay marriage, the Court had held that certain proponents of Proposition 22, the statute ultimately struck down, lacked standing to maintain a lawsuit concerning that measure’s constitutionality. (The strength of this argument remains to be seen. Proponents in their follow-up letter responding to plaintiff’s initial letter point out fairly credibly that the Prop 22 proponents denied standing were not the actual official proponents. It is unclear what significance the California Supreme Court might attach to a proponent’s “official” status.)
Only state officials, in plaintiffs’ view, have standing to defend ballot initiatives in court. “It is clear that California law vests the Attorney General – not private litigants – with the authority to represent the State’s interest in litigation,” plaintiffs’ initial letter states. “Proponents may not usurp the power and exclusive discretion of the elected constitutional officers of California to decide when and whether to enforce or defend a state law.”
Prop 8’s proponents in their letters urged the California Supreme Court to answer the Ninth Circuit’s questions. With respect to the first question, proponents agreed that standing requires a “concrete” and “particularized” interest on the part of a party seeking to defend a ballot measure in court. But they disagreed with respect to whether this was an exclusively federal law issue. “[W]hile Article III standing is a question of federal law,” their letter states, “whether the necessary predicates for standing are established in a particular case may turn on State law.”
Proponents, however, then seem to dodge the substance of the question – just what their “concrete” or “particularized” interest in the outcome of the case might be that distinguishes them under California law from the millions of other Californians who voted in favor of Prop 8. Instead, they appear to conflate the first and second questions, contending that “a litigant seeking to invoke a State’s interest in defending its laws must have the authority under State law to do so.”
The only case they cite in support of this bold, broad proposition, however, is one in which the US Supreme Court held that the Speaker of the New Jersey Gen. Assembly and the President of the New Jersey Senate had standing to appeal a judgment after other state officials refused to do so.
In their follow-up letter, however, plaintiffs point out that the New Jersey case had turned on the fact that New Jersey law afforded the two elected officials authority to represent the state’s interests by virtue of their state positions, and that when they lost their leadership posts in the New Jersey legislature, they also lost standing.
Proponents’ arguments with respect to the second question also strike me as rather weak. First, they point out that the California Supreme Court permitted them to intervene in the Strauss v. Horton decision in 2009, in which the court upheld Prop 8 under the state constitution. From this, they argue that if they had a sufficient interest to support intervention, then they must also have a strong enough interest to support standing. Proponents’ conclusion, however, doesn’t follow from their premise. As explained above, intervention and standing are not at all the same thing, and proponents cite no precedent either equating the two concepts or holding that a ballot initiative’s proponents have standing to defend it in court.
Proponents purport to find their right to step into the shoes of the state in two California Supreme Court decisions recognizing California citizens’ right to seek constitutional amendments through the initiative process. As plaintiffs point out in their follow-up letter, however, these are not standing decisions.
Proponents round out their letter brief with a pitch regarding the significance of the institution of marriage and the consequent importance of the decision regarding Prop 8’s validity. “Surely,” they write, “the momentous issue of Proposition 8’s validity under the Federal Constitution should not be determined by an on reviewed trial court decision.”
Proponents also argue that “the very integrity of the initiative process itself” is at stake because, as they write, “Surely State officials who are not permitted to veto or reverse an initiative directly should not be able to achieve the same result indirectly by refusing to defend that initiative in court.”
The City and County of San Francisco also filed a letter brief in the California Supreme Court. San Francisco took no position as to whether the state high court should answer the questions, but opined that if it opted to do so, then both questions should be revised.
As submitted to the California Supreme Court by the Ninth Circuit, the first question asked only whether ballot initiative proponents possess a “particularized interest” sufficient to afford them standing under state law. San Francisco argues that if the answer here is affirmative, then the California Supreme Court should also answer a follow-up question: “if so, what is the nature of their interest under California law and how is it harmed by a decision that the initiative is unconstitutional?”
Unlike plaintiffs, San Francisco opines that “[i]n some cases, an injury to a right created by state law may satisfy Article III’s requirement of concrete, particularized and actual injury.” In the city’s view, it follows that “the answer to the certified question should provide sufficient information about the nature of the harm so that the Ninth Circuit may determine whether that harm satisfies Article III.”
San Francisco argues that the second question is not sufficiently tailored to the actual circumstances of the Prop 8 appeal. That question as submitted by the Ninth Circuit asks whether initiative proponents have standing to defend the constitutionality of their measure “when the public officials charged with that duty refused to do so.”
“Here the State officials did not refuse to defend the initiative,” the city wrote in its letter, going on to explain:
They enforced Proposition 8 (and continue to enforce Proposition 8), and they put plaintiffs in this case to their proof by answering their federal lawsuit. They also acceded to intervention by the official proponents of Proposition 8, and they did not in any way interfere with proponents’ presentation of evidence and argument in the District Court. Rather than “refus[ing] to defend” Proposition 8, the State officials merely exercised their discretion, after a full and fair trial of the issues and a well-reasoned decision that thoroughly addressed the evidence and the law, not to appeal from the District Court’s judgment.While San Francisco’s proposed modifications strike me as appropriate refinements of the questions in light of the circumstances of the case, I do not believe that the California Supreme Court’s apparent refusal to change the questions will affect the outcome one way or the other. The sub-issues the city raises will certainly be fully briefed, and answers will almost certainly be provided in the California Supreme Court’s decision.
* * *
The issue posed by this case is not whether the State’s executive branch officials have failed to carry out a duty but rather whether the official proponents of an initiative that has been enacted into law have been delegated the power to assert the State’s interest on appeal in a manner contrary to the decision of the elected officials in whom the State Constitution vests that power.
The conservative Pacific Legal Foundation (PLF) also submitted a letter brief. This group’s principals were major sponsors of Proposition 209, a successful 1996 anti-affirmative action measure, and Proposition 227, a measure passed in 1998 that essentially terminated bilingual education in California.
Boiled down to its essentials, PLF’s argument is that the California Supreme Court should answer the questions because the initiative process is extremely important in California and must be protected against nefarious elected officials who are consistently hostile to the purported will of the California people and who work tirelessly to undo laws reflecting that will. This letter includes nothing of any legal significance and it is extremely doubtful that it played any role in the California Supreme Court’s decision to answer the Ninth Circuit’s questions.
How will the California Supreme Court answer these questions? With apologies to Mr. Mencken, it would be very easy to go broke offering prognostications on the court’s likely decisions, so I’m not going down that road. That said, however, I believe it is safe to assume that the state high court’s answers to these questions will figure prominently in the Ninth Circuit’s regarding proponents’ standing.
If the California Supreme Court answers both questions in the negative, then it’s probably a pretty good bet that, with an eye to the Arizonans decision, the Ninth Circuit will hold that proponents lacked standing. If this happens, proponents can try to convince the US Supreme Court to accept an appeal, but the issue in the high court would be limited to standing.
If the California Supreme Court answers either question affirmatively, the outcome in the Ninth Circuit would, in my view, be less certain. The US Supreme Court’s standing pronouncements in Arizonans seem quite straightforward, but the issue in that case was not referred to the Arizona Supreme Court, which arguably distinguishes this case from that one.
If the Ninth Circuit holds that proponents have standing to defend Prop 8, then the court will reach the substantive issue of the measure’s validity under the federal Constitution. Wherever the court comes out on that issue, the loser will certainly seek review by the US Supreme Court.
The first issue in the federal high court will be whether the Ninth Circuit’s standing ruling was correct. If not, then the case will be over and plaintiffs will have prevailed, whether they won or lost in the Ninth Circuit on the substantive constitutional issue. This would be because what the US Supreme Court would in essence be saying would be that the Ninth Circuit should have thrown the case out on standing grounds, and should never have reached the issue of Prop 8’s constitutionality.
If the Supreme Court were to uphold a Ninth Circuit ruling granting proponents standing, then the issue of Prop 8’s constitutionality would be reached. As noted above, the ultimate outcome under this scenario is uncertain, and not particularly hopeful in my view from plaintiffs’ perspective.
Peter DelVecchio is an attorney and a news contributor to Frontiers In LA magazine.
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