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Prop 8: Standing and Initiative Power - California Supreme Court Hearing ANALYSIS

Olson

BY ARI EZRA WALDMAN

 Today, the California Supreme Court heard arguments at the behest of the Ninth Circuit, which certified a question to California's highest court on the issue of standing: As a matter of state law, do initiative proponents, like the ironically named 'Protect Marriage', have the power to defend the enacted initiative in federal court when the State declines? Ted Olson represented the American Foundation for Equal Rights (AFER) in support of same-sex marriage rights and answered the question, NO. Charles Cooper, representing the anti-gay 'Protect Marriage', the party seeking standing, answered the question, YES.

Cooper The at-times testy hearing saw tough questioning from the bench of both attorneys. Even the supposedly "liberal" justices went after Mr. Olson and had particular difficulty with his views on the scope of the initiative power. Mr. Cooper seems to have fared worse: all but one justice asked questions deeply skeptical of his broad standing argument. Then again, how judges ask their questions often has little to do with their ultimate decision.

There are two take-aways from today's hearing:

First, this stage of the Prop 8 federal litigation is not about gays, equal protection or even marriage. The only issue before the California Supreme Court is whether under state law, initiative proponents have the power to defend the initiative they proposed when the arms of the State -- the governor and attorney general -- decline to defend it. Therefore, today's argument was about the scope of the initiative power, the state's intervention policies and how best to protect both.

Second, nothing that happened today changes my view that while certifying the question was not an exercise in futility, regardless of the court's decision, standing as a matter of federal law will still have to be determined by the Ninth Circuit. And, on that issue, 'Protect Marriage' will lose.

AFTER THE JUMP is a more in-depth discussion of some of the legal arguments in this hearing. I have organized it thematically rather than chronologically. After the discussion, I make some tentative predictions and discuss what comes next. I encourage you to ask any questions in the comments. Various gay rights organizations, including AFER and the National Center for Lesbian Rights, live-tweeted the hearing. So, if you missed the streaming video, I encourage you to either check out the Twitter feeds or watch the archived tape, which Andy will make available once it appears online. (update from Andy - no embed yet, but you can re-watch HERE)

CONTINUED, AFTER THE JUMP...

Where is the "particularized interest"?

In order for anyone -- a person, a state -- to intervene in a litigation, he or she has to have a "particularized interest" in the litigation. This is different from federal standing requirements which require a "specific or particular harm" to have standing to appeal an adverse decision. Remember, at issue in this hearing before the California Supreme Court is what state law says about initiative proponents' right to step into the shoes of the state when the state declines to defend the enacted initiative in court, state or federal. That is a question of intervention, not standing.

Mr. Cooper argued that 'Protect Marriage' had sufficient interest -- it spent millions of dollars, proposed the initiative, put in the manpower, was responsible for the political campaign and, most importantly, has an institutional interest in protecting its "fundamental right to propose initiatives."

The first problem with that argument is that we're a little late. An interest in preserving a right to propose and enact an initiative arises when some third party is trying to stop you from proposing or enacting your initiative. Prop 8 has already been proposed and enacted, so the interest in protecting the right to propose and enact is unaffected.

What is the extent of California's initiative power?

Mr. Cooper says that the interest is institutional, systemic and long term. That is, if you deny a right to defend Prop 8, the right to propose and enact future initiatives will be infringed. Let us assume for the moment that he has a point. There is still another problem with his argument.

Perry v. Brown, the appeal in question, does not seek to touch initiative proponents' right to propose and enact initiatives or referenda. It is challenging the constitutionality of a duly enacted initiative. The California initiative statute confers on citizens the right to "propose and enact" laws through the initiative process; the California Supreme Court has gone so far as to call that right fundamental. Never has a statute or a court said that a right to defend the already enacted initiative is part of that right to "propose and enact." As Mr. Olson noted, that is why previous initiative proponents placed clauses in their initiative that granted them standing if the state declined to defend the law in court. And, that makes sense. A  legislature normally has the power to propose and enact laws, but, absent a specific statute giving a legislature power to defend duly enacted laws when the executive branch declines, neither a random legislator nor the speaker of the lower house has the power to defend the laws in court.

Some members of the court asked Mr. Olson if, by giving the governor and attorney general sole control over the defense of state laws, he is making the initiative right illusory. That is, what is a right to propose and enact if you can never defend? Mr. Olson had a simple response: that's not really my problem. The California Constitution and California's initiative statute says nothing about a power to defend an already enacted initiative and no California court has ever recognized that such a power is subsumed under the "propose and enact" power. In fact, the court has implied the opposite when it said that the initiative power is coextensive with the legislative power, no more and no less. Absent specific statutory authorization, a legislature does not have the power to defend laws in court. That is the job of the executive, and the principle of separation of powers demands that those responsibilities be kept separate.

If the state thinks that "propose and enact" should include "defend," then that is a matter for legislation or constitutional amendment. It is not to be read into the current law by the court.

Does this issue begin and end with Karcher? If not, what is different about Karcher?

Karcher v. May is a New Jersey case about third parties stepping into the shoes of a state who refused to defend a law. Beyond that general skeletal similarity, Karcher bears little resemblance to this case. In Karcher, the New Jersey legislature passed a 'moment of silence' statute that the governor refused to defend in court, so the President of the New Jersey Senate and the Speaker of the New Jersey House sought to intervene to defend their law. Pursuant to a state law that explicitly granted legislative leaders the power to defend duly enacted state laws, they were granted intervention.

But, you can see the difference. First, the legislature passed the underlying statute at issue; here, citizens proposed and enacted a law via the initiative process. Second, the intervenors were duly enacted representatives of the people whose constitutional duty was to propose and enact laws; here, the proponents of Prop 8 are simple California citizens. Third, and most importantly, New Jersey law explicitly granted legislative leaders the right to step into the shoes of the state. Given these differences, I cannot see how Mr. Cooper can win on his argument that Karcher controls and gives standing to his clients.

How will the California Supreme Court rule?

Two justices kept returning to the question of how to rule. They asked both attorneys if it would be sufficient for the court to hold that, as a matter of state law, California has always had a policy of liberal intervention. Period. That would tell the Ninth Circuit that while state law may be somewhat unclear and unspecific about the rights of initiative proponents, California's tradition of allowing interested parties to intervene should govern. That is, if it were up to California law -- if Perry were in state court -- the initiative proponents would be allowed to intervene and take the case as far as it could go. Both Mr. Cooper and Mr. Olson said this answer would be enough.

But, that is in state court. As we have discussed, the power to represent the state persuant to state law may be a necessary prerequisite of federal standing, but it is woefully insufficient. For federal standing, you have to show a clear and specific harm caused by an adverse ruling. That requirement, over and above California's intervention rules whatever they may be, will likely doom 'Protect Marriage'.

What happens next?

Next, we wait. We wait for a decision from the California Supreme Court, which should take under 90 days. At that point, the decision will go back to the Ninth Circuit, which will take it under advisement for its decision. It is possible that the Ninth Circuit will order a rehearing given what it learned, but if the California court simply reiterates its liberal intervention norms, there will be no need for a rehearing. Standing should be denied for failure to show specific harm caused by the overturning of Prop 8 below. It is hard to say how long the Ninth Circuit will take to render that decision, but assuming we do not hear from the California Supreme Court before December, the Ninth Circuit panel may rule in March 2012.

***

Ari Ezra Waldman is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His research focuses on gay rights and the First Amendment. Ari will be writing weekly posts on law and various LGBT issues.

Follow Ari on Twitter at @ariezrawaldman.

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Comments

  1. L.A. Times indicates that it seems likely the Prop 8 supporters will be able to have standing as they hoped.

    http://latimesblogs.latimes.com/lanow/2011/09/california-supreme-court-gay-marriage-appeal.html

    Posted by: dms | Sep 6, 2011 5:00:59 PM


  2. I specialized in appellate litigation and A.E.W. is absolutely right IMO: questions during oral argument are poor indicators of what the ultimate decision might be. In fact, it's pretty standard for a judge to pose the populist or majoritarian objections, because these can go to the legitimacy of the court or its decisions.

    But oral argument questions aren't worthless, either. The people can reserve governmental powers unto themselves. But can they reserve total power, or are there constitutional limits on that? If there are limits, though, aren't they for the courts to define, rather than the state AG or Governor?

    My question, however, is this. Shouldn't we also give appropriate weight to the extremely unusual posture here: all three branches of state government have decided this matter contrary to Prop 8, and the Executive branch now refuses to defend Prop 8. Isn't that a compelling reason to conclude that the proponents of Prop 8 are just the sort of torch-bearing mob that constitutional limits are intended to restrain?

    I can't see the entirety of the government of a state with one of these [stupid] referendum structures ever demurring if there were any merit whatsoever to the proposition in question. If they did, there would (for one thing) be a recall just as was the case for Gray Davis. It seems to me that the uniqueness of the posture that California state government has taken is entitled to considerable deference.

    Posted by: Demian | Sep 6, 2011 5:28:51 PM


  3. Here's my question -- is "not defending" a law (or initiative) the same as "not enforcing" a law (or initiative)?

    It seems to me that the State of CA is enforcing the terms of the initiative: e.g., no more SSM (except the 18K that were grandfathered in by the CA Supreme Court in upholding Prop 8.)

    Not defending an indefensible law in a separate court proceeding is something entirely different to me... and the "people" have the right and capability to redress this through legislative impeachment, recall or elections.

    Given that Californians have proven their ability to recall a sitting governor in the very recent past -- and that this particular issue was a central argument in the AG race, I'm having a hard time seeing an unreasonable burden that would require the courts to step in.

    Posted by: Mike in Houston | Sep 6, 2011 5:40:15 PM


  4. I see another pair of related points here.

    1. Plaintifs neglected to include standing to intervene in the language of Prop 8. They had that option and failed to use it--why should the court be expected to remedy their mistake?

    2. Can they not mount a ballot initiative that gives proponents the power to intervene? This means there is another remedy available to them other than the court granting them this new right.

    IANAL, so my lay reasoning may not reflect legal reasoning. But that's my two cents.

    Posted by: homogenius | Sep 6, 2011 5:53:29 PM


  5. Question about the possible medium-term implications. Suppose that the Ninth Circuit denies standing to Protect Marriage. Will gay marriage be legal in part of, but not all of, California?

    In what ways legally does one resolve the fact that Walker's jurisdiction does not cover the entirety of the state of California? How will this particular issue play out?

    Posted by: Jeff | Sep 6, 2011 6:05:04 PM


  6. My inner four year old is compelled to point out that the "IANAL" acronym (standing for "I am not a lawyer" I'm assuming?) literally says "I anal."

    Posted by: Adric | Sep 6, 2011 6:06:35 PM


  7. My husband (Greg) and I are one of those couples grandfathered in and we now have a five-year old son. Do we, as a legally married SS couple, have anything to fear from any of this?

    Posted by: OS2Guy | Sep 6, 2011 6:08:39 PM


  8. @os2guy: No.

    Posted by: Bruno | Sep 6, 2011 6:41:19 PM


  9. Ari --

    I just don't see why the 9th Circuit would kick the question of standing back to the CASC if they were not interested in getting real clarification on the issue of standing as it pertains to CA state law. Back when they kicked it back, you were surprised. And now you're saying it was a fruitless exercise to kick it back because the 9th has already decided that ProtectMarriage.com lacks federal standing to appeal? That really doesn't make sense.

    In other words, why would the 9th even bother to ask the CA Supreme Court (thereby delaying the federal trial another year), if the 9th had already made up it's mind? It really seems like they really were asking the CASC for clarification because they needed clarification to make their decision, not just because they were being extra-diligent.

    If you remember, all three judges on the 9th seemed disturbed that the Governor and AG of a state could effectively decide the constitutionality of a law by not defending it. And today we saw that again with the CA Supreme Court judges -- they seemed equally dismayed by the idea (too bad none of them feel dismayed that gays and lesbians still can't get married while this whole circus goes on). I think this indicates that the CASC and the 9th will both give Prop 8 backers the standing they need. The Supreme Court will likely concur, thereby setting a new precedent for this situation in the future.

    Here's my question -- will the Gil case reach the Supreme Court first, or will this case? And how would the decision on one case affect the other? If we lose the Gil case, does that mean Perry is dead in the water? Could there by a scenario in which we win the Gil case but then lose Perry? (ie. DOMA section 3 is unconstitutional but Prop 8 is?). Or are the merits of both cases essentially the same?

    Posted by: Jollysocks | Sep 6, 2011 6:42:39 PM


  10. Hi everyone! Thanks for your questions and comments. It's a busy day for me, but I promise I will get to your questions either late tonight or tomorrow morning. Apologies for the delay. Keep those questions coming!

    Posted by: Ari | Sep 6, 2011 7:24:50 PM


  11. First let me respond to Jollysocks on the Gill question. While I think everyone who wants to see advances in positive jurisprudence for gay people would prefer to see Gill get to the Supreme Court before this case, that is clearly not going to happen. For some reason, the First Circuit is moving slower than molasses on that question, whereas it is clear that the Ninth Circuit at least is expediting the issue. So dollars to donuts this case gets there first. (A lot of this depends on whether the losing parties in the initial panel stage seek to go straight to the Supreme Court or seek en banc, but I suspect everyone wants to get it to the Supremes).

    On the second issue, addressing the issue in this case, I'm afraid I have to disagree with the prevailing consensus on two counts; both what should happen as a matter of California law and what would be best for gay Americans.

    Addressing the second issue first, it's a given that the panel of the Ninth Circuit we have will rule in our favor. One of the three judges on the panel has already declared DOMA unconstitutional. Another asked his very first question at oral argument last year about how this case is not exactly like Brown v. Board. Boom. There's your two votes. We win. In the Supreme Court, I think no one can dispute that we have four votes. And Kennedy is the one who wrote Lawrence and Romer, basically the only two pro-gay opinions the Court has written. He's also relatively cognizant of how history will look on his record, and he knows where this is going. We have this at the Supreme Court. And anyway, the whole point of this suit was to get it to the Supremes. Limiting it to California will just postpone the whole issue a few more years. I can't see how people can complain that the process is taking too long and then support forcing the whole process to start over again in a state other than California. As someone who lives in a state other than California, I'd prefer a national solution.

    And, knowing of Reinhardt as I do, this is exactly what he's trying to do. He knows that he is often reversed, and the Supreme Court might try to weasel out of the ruling it should give on standing issues. So he is trying to insulate his pro-marriage equality ruling from that by seeking shelter in the California Supreme Court. The United States Supreme Court has said that state law may bestow upon people standing in federal court in some instances. If the California Supreme Court answers the question it has been asked "yes," then the court will *essentially* (though not literally) convey an irrevocable (because the Supreme Court cannot change the interpretation of California law) "injury-in-fact" to plaintiffs. And of course, you have redressability and causation so there will be standing. And the Supreme Court will have almost no way to reverse Reinhardt on a technicality.

    On to what should happen as a matter of California law, the idea that there's some principle being achieved by preventing courts higher than district courts from reviewing constitutional challenges to state laws is absurd. It's a mockery of the system. Let the state refuse to defend it, but there's no reason that the law shouldn't have its day in court.

    Listen, I hate Prop 8 as much, if not more, than anyone out there. But think about the precedent you want to set here. Washington state's disclosure law was invalidated by a district court who catered to bigots' desire to keep secret. Should the attorney general (a Republican) have been able to kill that disclosure law simply by not appealing? What about in Maine, where we're going to have a marriage equality initiative? If that's enacted, should the Republican governor be able to kill it in cahoots with one conservative federal district judge? Clearly the people of the state have a concrete interest in seeing the laws they vote for enforced. You've got to divorce your hate for Prop 8 (which is justified) from the undoubtedly far-reaching results that this case is going to have in the future. There's nothing improper about giving Proponents of initiatives standing to defend laws.

    Ultimately, I think if you take the lens of Prop 8 away from it, we would recognize that initiative proponents should have standing. And even looking through the Prop 8 lens, we as a community stand much more to gain, and more quickly, from being granted standing.

    Posted by: Tyler | Sep 6, 2011 10:44:10 PM


  12. @Tyler... sorry, I don't buy it. I think we have an AG and Gov that have allowed the court to do its job. It declared the law unconstitutional. Why should the state have to waste another moment of resources?

    If they want to reintroduce an initiative that is not discriminatory, they have that right.

    To not let elected superior offices do their job would mean the state would be held-hostage, perhaps forever, by people w/ suspect agendas, to say the very least.

    Posted by: Pete n SFO | Sep 7, 2011 1:53:21 AM


  13. Even if Ninth Circuit ultimately denies Protect Marriage standing and enforces Walker's ruling, Protect Marriage will petition the Supreme Court for relief, and enough Scalia-leaning justices on the Supreme Court will vote to hear it.

    Posted by: Philo | Sep 7, 2011 6:04:21 AM


  14. @mike in houston: indeed youre right. not defending the law in court is very different from not enforcing. California is enforcing Prop 8 right now -- if it weren't, many of us would be married right now. but, Governor Brown and Governor Schwarzenegger before him refused to defend the law they felt was unconstitutional.

    there is little disagreement about enforcement vs defense. but, Mr. Cooper tried to argue at the hearing that a failure to defend in court makes the right to propose and enact initiatives an "illusory" right. Mr. Olson reminded the court that it can't be illusory because the State is going out of its way to enforce the law. so, the proponents' rights to propose and enact have been vindicated.

    Posted by: Ari | Sep 7, 2011 9:18:40 AM


  15. @jeff: thats one of the weird things about this case that doesnt get much play, but its not a huge issue. if the 9th Circuit denies standing, the Prop 8 proponents could request en banc reconsideration of that ruling, which means having the same issue decided by about 11 judges instead of 3. And, if they get an adverse ruling there, they can appeal to the Supreme Court. so, they could still use their right to appeal to delay same-sex marriages in California.

    assuming they do not, there would be a short interim period and then same-sex marriages would be legal in the two counties around San Francisco and LA that were parties to the lawsuit. all AFER would have to do to enforce Judge Walker's ruling across the state is go to the California Supreme Court to get a ruling that applies to the entire state. i don't see that as a complicating process, but i'm not up on the details.

    Posted by: Ari | Sep 7, 2011 9:23:05 AM


  16. Very much appreciate the analysis, Ari.

    Posted by: bgk | Sep 7, 2011 11:59:04 AM


  17. "Some members of the court asked Mr. Olson if, by giving the governor and attorney general sole control over the defense of state laws, he is making the initiative right illusory. That is, what is a right to propose and enact if you can never defend? Mr. Olson had a simple response: that's not really my problem."

    I agree, it's not his problem if ProtectMarriage.com failed to write their initiative the same way as other proponents. They messed up. Now they have to live with the consequences.

    Posted by: Jobie | Sep 8, 2011 3:56:52 PM


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