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[Ed. note: See als bmaz' analysis of this punt at this link.]
Punting to the California state Supreme Court, the federal Ninth Circuit Court of Appeals panel that heard the appeal last month of Judge Vaughn Walker’s decision has asked this question:
Where 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.
There’s lots more to justify asking the question; you can read the ruling here: http://bit.ly/gCvdE6 [pdf]
23 Comments
Update:
Per Karen Ocamb (her site is down, here’s a link to the Courage Campaign: http://prop8trialtracker.com/2011/01/04/breaking-9th-circuit-ruling-on-the-prop-8-case/) Imperial County’s request for standing is dismissed:
FILED PER CURIAM OPINION (STEPHEN R. REINHARDT, MICHAEL DALY HAWKINS and N. RANDY SMITH) AFFIRMED; DISMISSED. The district court order denying the motion to intervene is AFFIRMED. Movants’ appeal of the district court order concerning the constitutionality of Proposition 8 is DISMISSED for lack of standing. The deadline for filing a petition for panel rehearing or rehearing en banc is hereby EXTENDED until the deadline for such petitions in No. 10-16696, which will be 14 days after an opinion is filed in that appeal. The Clerk is DIRECTED to stay the issuance of the mandate in this case until the mandate issues in No. 10- 16696. AFFIRMED in part; DISMISSED in part. FILED AND ENTERED JUDGMENT. [7598965] (RP)
From the decision, here is the Appeals Court panel’s logic in asking the California Supreme Court for clarity before proceeding to consider the appeal:
Before this panel of the United States Court of Appeals for the Ninth Circuit is an appeal concerning the constitutionality under the United States Constitution of Article I, § 7.5 of the California Constitution (“Proposition 8”). Because we cannot consider this important constitutional question unless the appellants before us have standing to raise it, and in light of Arizonans for Official English v. Arizona, 520 U.S. 43 (1997) (“Arizonans”), it is critical that we be advised of the rights under California law of the official proponents of an initiative measure to defend the constitutionality of that measure upon its adoption by the People when the state officers charged with the laws’ enforcement, including the Attorney General, refuse to provide such a defense or appeal a judgment declaring the measure unconstitutional. As we are aware of no controlling state precedent on this precise question, we respectfully ask the Supreme Court of California to exercise its discretion to accept and decide the certified question below.
With regard to timing, the Appeals Court has stopped everything until the California Supremes provide an answer to their question. From today’s order:
The case is withdrawn from submission, and further proceedings in this court are stayed pending final action by the Supreme Court of California. The parties shall notify the Clerk of this Court within three days after the Court accepts or rejects certification, and again within three days if the Court renders an opinion. The panel retains jurisdiction over further proceedings.
AP via WaPo:
SAN FRANCISCO — A federal appeals court says it can’t decide if California’s gay marriage ban is constitutional until the state’s highest court weighs in on whether Proposition 8′s sponsors have the authority to defend the ban.
In a brief order filed Tuesday, a three-judge panel of the 9th U.S. Circuit Court of Appeals asked the California Supreme Court to decide if the backers of ballot propositions can step in to defend voter-approved measures in court when state officials refuse to do so.
http://www.washingtonpost.com/wp-dyn/content/article/2011/01/04/AR2011010402742.html
thanks so much, Teddy Partridge !
From The Advocate:
The ninth circuit court of appeals is asking the California supreme court to advise on whether antigay groups have standing to appeal a federal judge’s decision that struck down Proposition 8.
In documents released on the ninth circuit’s website, the federal appeals court indicates it isn’t certain if groups like Protect Marriage have standing to pursue an appeal, since the current governor and attorney general of California are declining to defend the initiative, which narrowly passed in November 2008.
http://advocate.com/News/Daily_News/2011/01/04/Prop_8_Case_Punted_to_Calif__Sup__Court/
you are welcome!
It’s extra innings now…! Get your hot dogs, folks…!
This is dreadful news. If the freak zoo known as the Ninth Circuit does gays a favor and throws out the appeal, this case becomes the law of California and nowhere else. We will have to wait for another state to legalize gay marriage in every circuit. This could and will create chaos for another ten years. This judgement will not even be binding on them since they will have never heard it. Once again the Chineeze proverb rings true. ” Most men can defend themselves from their enemies, but only the spirits can save a man from his friends.” I suppose this is better than having the non-entities of the Supreme Court rule against gays when the court is split and somebody on the left is sick with a terminal illiness., something all the Bushites are raring to do.
Zenostoa
From Chris Geidner at MetroWeekly:
They did, however, send a question to the California Supreme Court through a process called certification about the standing, or ability, of Proposition 8 proponents to bring an appeal. This possibility was raised by Judge Stephen Reinhardt at the oral arguments in the case held Dec. 6. The court, in a second opinion that was heavily suggested at oral arguments, dismissed the appeal of Imperial County for lack of standing.
Reinhardt explained the issues in a separate, 10-page opinion that was written only on behalf of himself and was critical of both Supreme Court standing precedents and the lawyering by several of the parties in the Perry litigation. Of standing, he wrote, “The standing problem, under current Supreme Court doctrine, affects this case in several ways, all relating to the question of whether there is an intervenor opposed to the district court’s decision that has the right to appeal it.”
One of those questions is the status that California law gives to proponents such as those who supported Proposition 8 in 2008 and then interved in the Perry case to defend their successful initiative effort. This question is not a settled matter of state law, and today’s certification is an attempt to get the California Supreme Court to do so.
Many state supreme courts allow for this certification process, by which a federal court can seek an answer to a question about an unsettled matter of state law from the highest court of the state responsible for interpreting that law. In the meantime, the main case — here, the appeal of the Aug. 4 ruling striking down Proposition 8 as unconstitutional — is put on hold.
http://metroweekly.com/poliglot/2011/01/ninth-circuit-sends-a-question.html
tweeted and recommended teddy
Teddy. Am I correct in understanding that the whole 9th circuit of appeals decision means nothing? They are just kicking it to the state court? I’m guessing, because that’s all I can do, is that there was a serious disagreement among those judges. There seemed to be a huge disparity of the way the judges heard the arguments. I tried to read Bmaz’s report. I’m just too stupid to understand. I might have to drop my interest in this case. Unless, someone can ‘splain it to me like I’m a three year old. I’m sure that won’t make a difference to anyone but me.
IIRC it’s fundamentally a state question, so it stands to reason they’d request guidance from CA.
There are a few different questions at issue w/ the case, one of which – the question of standing – turns on CA state law rather than federal law. In those sorts of instances, it’s not terribly uncommon for a federal court to request that the state court weigh in.
Mind you, that’s just one of the questions; the others are questions of federal law. Importantly, the question of standing is a threshold question: if the state court says there’s no standing, then the district court’s decision overturning prop 8 stands and we win.
s/b “we win for the time being.” At some point a future government, legislature, or citizenry will repass or decide to enforce prop 8. And then it’s back to square one.
There is no court of appeals decision.
The order issued by the federal court of appeals today is a request to the CA Supremes: do these intervenors (the pro-Prop8 people) who defended the law in Vaughn Walker’s courtroom also have the standing to appeal the decision to us?
If the CA Supremes say, Yes, these intervenors also have the right to appeal, the federal court of appeals panel will then decide, first, if the intervenors have FEDERAL standing to appeal (I know, right???) and then, if they do, the case will be decided on its merits. At which point it’s certain to be appealed to the US Supremes.
Does that help?
Nothing was decided today, so if you’re looking for a ‘decision’ you are looking in vain. Don’t be discouraged, it’s not really as difficult as you might be making it for yourself: there’s no decision, so don’t worry if you don’t see one!
The standing question for the federal court will be determined by the answer by the state court. There aren’t two distinct questions ((1) do they have authority under state law; and (2) do they have Article III standing), but only one: do the intervenors have authority under CA law to sue? (“Having considered the parties’ briefs and arguments, we are now convinced that Proponents’ claim to standing depends on Proponents’ particularized interests created by state law or their authority under state law to defend the constitutionality of the initiative….The parties agree that “Proponents’ standing” – and therefore our ability to decide this appeal – “‘rises or falls’ on whether California law” affords them the interest or authority described in the previous section”)
Thanks, Teddy. Thanks also for your explaination at Bmaz’s thread. I’m not giving up on the issues. You’ve made it more clear to me and yes, I can wait for the wheels to turn. What else can we do?
Nope, you can count me in as 3 yr old stoopid too on this one.
Teddy, that’s a great ‘splaination, thanks!
*G*
thanks!
Yeah, I’m not sure that’s correct.
I’ve seen some analysis that shows the CA Supremes’ standing decision will be the first of two; that the federal appeals court can then make a subsequent decision on standing as well. But I don’t have an immediate link to those.
NCLR’s Shannon Minter explains today’s orders at Pam’s House Blend:
http://www.pamshouseblend.com/diary/18374/nclr-legal-analysis-of-the-ninth-circuit-prop-8-ruling