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Analysis: Ninth Circuit Asks CA Supreme Court to Answer Question of Standing in Prop 8 Case

A flurry of documents were posted to the Ninth Circuit Court of Appeals website late this morning regarding the federal challenge to Proposition 8.

Olson-boies The most significant news is that the Ninth Circuit has asked the California Supreme Court to look at the standing of proponents of Proposition 8 (Protect Marriage, etc) with regard to their right to defend it.

The other party seeking standing, California's Imperial County, was denied.

The move delays federal resolution of the issue.


Today, the Prop 8 case out in California took two baby steps in a long legal journey. First, the Ninth Circuit denied standing to Imperial County. Second, "certified a question" to the California Supreme Court, asking for some guidance on whether there is any state law that allows initiative proponents to defend their ballot measure in court when the state refuses.

This seems confusing, but let's break this down. I think you will see that taking the certification step was a prudent -- though, in many legal scholars' opinions, including my own, unnecessary -- step to take.

First, the Ninth Circuit denied standing to Imperial County. During oral argument, the panel questioned whether a deputy clerk with independent responsibilities and supervised by a separate part of the California government could, without the actual Clerk of Imperial County, even represent the county, let alone the entire state. It looks as if the Ninth Circuit was unwilling to grant a low guy on the totem poll the right to step in where the chain of authority was tenuous at best. So, this first decision is a victory of marriage equality. Imperial County had wanted to defend Prop 8 in federal court and now, it cannot. And, while the deputy clerk could appeal, it is unlikely that this denial of standing will be overturned.

The second order is a little more complicated. It was not a final decision on standing like the order denying standing to Imperial County. Instead, the Ninth Circuit looked at the law and said, "We just don't know." A recent similar case out of Arizona holds that the right of initiative proponents -- ordinary citizens in their capacity as organizers of a ballot measure -- to defend their law when the state government refuses to do so hinges on state law. That is, the Prop 8 proponents' standing to defend Prop 8 going forward depends on what California law has to say about their rights.

But, the Ninth Circuit, a federal court, is not an expert on state law. So, when a question before a federal appellate court hinges on getting a clear answer to a question of state law -- in this case, does California law allow ballot proponents to step in the shoes of the state to defend their measure in court when the state declines to do so? -- the federal court asks the state supreme court, the final arbiter on state law questions, to give them an answer.

It would be like me asking my friend Jonathan, an economist, to teach me about the economic ramifications of repealing the estate tax, so I can use his expertise to help me make my legal or constitutional argument. He's the economic expert; I'm the legal expert. It makes sense that I would ask his advice. Here, the California Supreme Court is the expert on all things state law, and since the proponents' standing depends on state law, the Ninth Circuit asks its colleagues in California to tell them what to do.

This means a few things. First, we have no decision yet on the proponents' standing. Second, the Ninth Circuit is going to do whatever the California Supreme Court tells it to do because the California court is the final arbiter on what its state law is. Third, this intermediate step further delays any final decision. While certified questions are usually expedited, there is no telling how many weeks this adds to the process. The court could ask for briefing on the question, but that -- and the timeline -- is up to the court.

But, this is not a bad development. Since state courts have the final say on state law questions, and the standing question hinges on state law, had the Ninth Circuit issued a decision without asking for advice from the experts, its decision would be more ripe for appeal. This intermediate step ensures that the Ninth Circuit gets it right.

Follow Ari on Twitter at @ariezrawaldman.

View the Order Certifying a Question to the California Supreme Court, AFTER THE JUMP...


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  1. Aren't they asking the CA Supreme Court to weigh in on constitutionality of the proponents standing? It looked like the may have denied standing for Imperial County. They upheld a lower courts denial of standing for someone.

    Posted by: spiderseye | Jan 4, 2011 2:28:00 PM

  2. I think the 9th Circuit denied the Motion to Intervene as to the Deputy Clerk of Imperial County, but certified to the California Supreme Court the question of standing of the Prop 8 defendants.

    Posted by: Lavi Soloway | Jan 4, 2011 2:31:15 PM

  3. On the Imperial deputy clerk, they say that the County Clerk might have had standing, but the deputy doesn't since she just does what the County Clerk tells her to. Why the County Clerk didn't seek intervention is the question Reinhardt wants to know in his concurrence.

    Posted by: Glenn | Jan 4, 2011 2:37:40 PM

  4. Here's the analysis in a nutshell. The Ninth Circuit decided to, as JMG put it, punt to the CASC the question of standing under California, rather than federal, law which are not the same. I think we're screwed on the standing question now, because it think the CASC will find that the proponants would have standing under California law to file the appeal. Of course, this is just the threshold issue, and doesn't affect the substantive merits of the case.

    Posted by: Bob Conti | Jan 4, 2011 2:54:49 PM

  5. What do you mean Ari lost his Internet!? Quel domage! :)

    Posted by: ColinATL | Jan 4, 2011 2:57:44 PM

  6. Yup. I think the standing issue will be a "yes" from CASC given the brief, the fed court just wants the CASC to put it in writing. And its a delay, yes, but better to delay and answer the standing issue now than go all the way the SCOTUS and be turned away for a standing issue to decide the real nuts n bolts question here.

    Posted by: Darren | Jan 4, 2011 3:05:29 PM

  7. But as Boies and Olsen argued, whether or not the CA court says the proponents have standing ultimately doesn't decide the matter under federal law. It might cover the District Court to have asked, but the Supreme Court will ultimately need to decide if the proponents suffer any direct harm, in order to have standing to file a case in federal court. Federal cases have to have a concrete conflict or dispute, not just be intellectual matters of law or rights.

    Posted by: spiderseye | Jan 4, 2011 3:10:57 PM

  8. It may be baby steps, but one step at a baby step time, we will get there!

    Posted by: Arturo Beeche | Jan 4, 2011 3:32:24 PM

  9. I am confused why the 9th Cir., using CA law, cannot determine standing without the punt back to the CA SC? Ultimately the Supreme Court will probably very likely review any decision the the CASC gives.

    Posted by: Sam | Jan 4, 2011 3:40:25 PM

  10. Section III B of the Order Certifying a Question practically dares the California Supremes not to grant a state-created particularized interest to the Proponents or authorize them to act in the absence of state officials. The Ninth Circuit is not very subtle about which way they want the Cali Supremes to come down on these questions. Read the Order. Section III B. Sheesh.

    But as David Bois pointed out at the hearing, standing conferred by California law is required - but is not of itself sufficient. This is a punt, and the Ninth Circuit is pretty baldy trying to find a way to grant standing so they can sink their judicial teeth into the Constitutional question.

    Posted by: Zlick | Jan 4, 2011 3:59:41 PM

  11. So does anyone know how the CA Supremes are likely to come down on the standing issue? What does state law say?

    Posted by: ColinATL | Jan 4, 2011 4:17:33 PM

  12. This is not a positive development. If you read the memorandum above, the 9th Circuit panel is clearly pressuring the California Supreme Court hard to hold that Prop. 8 proponents have a right to defend Prop. 8 when the state refuses to do so. If the California Supreme Court agrees, that is a terrible development.

    Why? If the Prop. 8 proponents lack standing, the challenge is over and same-sex marriage comes to California, unless the U.S. Supreme Court disagrees on standing.

    If the Prop. 8 proponents have standing, however, Judge Walker's decision on the merits will have to be reviewed at the 9th Circuit and then quite possibly at the U.S. Supreme Court. That is a far, far, far riskier path for this challenge to take.

    I know some folks are panting to get the whole marriage equality question to the U.S. Supreme Court. But prevailing in the 9th Circuit on standing is the much safer option. Folks who believe a majority of the U.S. Supreme Court will just rubber stamp and affirm Judge Walker's decision and order all 50 states to offer same-sex marriage are, in my view, unrealistic and reckless.

    Posted by: Skeptical Cicada | Jan 4, 2011 4:18:25 PM

  13. No explanation of why many "legal scholars" think this is an "unnecessary" step. If the standing question isn't settled under CA law, it seems like the prudent thing to do.

    It would be a shame if the standing question bounced around so long we are delayed in getting to a ruling on the merits.

    Posted by: justiceontherocks | Jan 4, 2011 4:26:11 PM

  14. @Sam

    The Ninth Circuit is in a bit of a bind. Because there is really nothing in California statutory law that states what rights proponents for a ballot initiative have, if any, to defend "their" law if all the major players in state government declines to do so. This is somewhat unprecedented. Thus, the California Supreme Court will have to invent a precedent specifically designed for the occasion.

    I believe the likelihood of standing being granted is reasonably high.

    But even if they do, that might not be the end of it.

    Not only can the federal Supreme Court intervene, the state legislature could conceivably do so as well. After all, the courts are interpreting a state election law that isn't terribly clear. Lawmakers could always go back retroactively and make it clear. Which would likely set off a new round of lawsuits. With Prop. 8 proponents suing the State of California for voter disenfranchisement.

    War without end.

    Posted by: John | Jan 4, 2011 4:30:28 PM


    PLEASE remember to thank GetEqual for their efforts by making a DONATION today. Help us win more of these battles.


    We need your support NOW! Equality isn't free. PLEASE help.

    Posted by: Chase Fresno | Jan 4, 2011 4:32:37 PM

  16. I, along with many others was so glad when Jerry Brown and Kamala Harris won in the November election since they will not defend Prop 8. Now it looks like that may not matter since the Prop 8 proponents can defend it themselves. How frusterating. I spent weeks watching and stressing over Kamala's vote count and now it may not even have mattered.

    Posted by: James | Jan 4, 2011 4:44:08 PM

  17. Anyone interested in the analysis of an ACTUAL "legal expert" should go to www.Prop8TrialTracker.com at 2:30 p.m. PST today for the live chat with The National Center for Lesbian Rights (NCLR) Legal Director and Prop 8 expert Shannon Minter.

    Minter was the lead attorney on the In re Marriage Cases ruling at the California Supreme Court. That was the ruling that began this process; in which the Court ruled that same-sex couples cannot be constitutionally denied the freedom to marry.

    Posted by: Michael@LeonardMatlovich.com | Jan 4, 2011 4:56:39 PM

  18. Standing is one of the hoariest of legal issues because the risk of injustice is so high. It would be a horrible precedent if proposition supporters could not have their day in court (say the proposition was in favor of gay adoption in Fla, for example). However, standing has never been used to further justice, but merely to make cases disappear when they are not wanted by the courts. True, you cannot sue on your neighbor's behalf if they are injured in a car accident and many ambulance chasing attorneys have made a mint in class action suits for John Does, but in general strong constitutional issues need to be addressed through the courts.

    In this instance, CASC has already tipped their hat that given their past caseload in many issues, standing is presumed on statewide issues (almost anyone can sue over environmental issues, for example).

    Posted by: anon | Jan 4, 2011 5:26:25 PM

  19. Your legal commentary is some of the most useful information I get on the Web. Thanks for taking the time to write such detailed, informative analysis so that the non-legal among us (me) can understand. I know that has to be quite time consuming.

    Who'd have thought your years in Law School and passing the bar would lead to such lucrative activity as writing for free for a blog (sarcasm)?? Much thanks.

    Posted by: Brian | Jan 4, 2011 5:37:47 PM

  20. If Mr. Waldman's commentaries are "some of the most useful information" you get on the Web, Brian, you're not trying hard enough.

    Posted by: Michael@LeonardMatlovich.com | Jan 4, 2011 5:50:12 PM

  21. Ari, you explain why the step is prudent, but not why it is unnecessary.

    Posted by: Solitary Muser | Jan 4, 2011 6:11:35 PM

  22. Lets see what will be the answer of the court as this question might sound senseless but in court room any senseless question might divert the whole judgement.

    Posted by: PPI Claims | Jan 4, 2011 6:40:30 PM

  23. I would imagine that the 9th Circuit is free to decide under Federal law that the H8ters don't have standing, but I'm sure they would be happier saying so if the CA Supreme Court says that the state gives them no such right.

    The composition of the CA Supreme Court has changed since they upheld the validity of Prop 8 -- I wonder how this might affect their advice to the 9th Circuit.

    Given the uncertain reception marriage equality would get in the US Supreme Court, I suppose that for the 9th Circuit to give them every opportunity to deny certiorari is prudent.

    Posted by: Rich | Jan 4, 2011 6:44:40 PM

  24. wow, i had to reread to understand this. imperial court, meaning the court in imperial county. i thought suddenly some queen of california was being consulted.

    ok so this sounds like just a 5 week delays on an already long road.

    Posted by: mld | Jan 4, 2011 7:04:06 PM

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