Prop 8 Proponents May Not Have Power to Appeal Judge’s Ruling

As the nation awaits Judge Vaughn Walker's decision on the stay he placed on his ruling striking down Proposition 8, developments since that stay was placed, such as the filing Friday of briefs by Governor Arnold Schwarzenegger and Attorney General Jerry Brown, suggest that the state continues to have little interest in defending the discriminatory Prop 8 measure in the courts.

Could this mean the case stops here? Perhaps.

 Jon Davidson explains to LGBT POV:

While many legal analysts thought that Judge Walker was likely to grant the stay pending appeal, Friday's filings have dramatically changed the likelihood of that.

The standards for when a stay or a trial court's order pending appeal are well-settled. In order to be entitled to such a stay, the party seeking the stay has to make a “strong showing” that the party is likely to succeed on the merits of the appeal and also has to show that that party will be irreparably injured if there is no stay. In addition, courts consider whether the issuance of a stay will substantially injure other parties and where the public interest lies.

Normally, it is the party ordered to do or not do something that seeks a stay. This is an unusual situation, however, because the parties whom Judge Walker ordered not to enforce Proposition 8 have asked him not to stay his order while the appeal proceeds.

This seems to suggest that Walker will lift the stay, and same-sex couples will be allowed to begin marrying. And several legal experts are suggesting that without a government interest in defending Proposition 8 in an appeal, the proponents of Prop 8 no longer have the power to appeal the case.

Davidson continues:

So far, the government-defendants in the case have not appealed. Given what they have said in their oppositions to the stay request, it seems likely that they will not. If that happens, there will be a legal question of whether, when those who are ordered to do something don't appeal, someone not ordered to do anything has any right to appeal. To understand this, one has to appreciate a few things about federal courts.

Federal courts can only hear cases where there is what's called a “case or controversy.” They can't issue advisory opinions about issues just because parties may have an abstract dispute with one another. Rather, in order to be able to pursue an appeal, a party has the burden of showing that it has “a direct stake in the outcome” and has been injured by the ruling in a concrete manner that is particularized to that party and different from citizens at large who may not like the judge's ruling.

New York Law School Professor Arthur Leonard seems to agree:

So where does this leave us? A strong indication from the Supreme Court that initiative proponents whose efforts result in the enactment of laws or constitutional amendments generally do not have standing to participate as parties in subsequent litigation concerning their constitutionality, and are even less likely to be found to have standing to appeal an adverse ruling on constitutionality if the state, itself, decides not to appeal. Although the Supreme Court refrained from actually ruling on the question in the Arizona case, it certainly signaled a disposition against finding standing in such a situation.

Whether the 9th Circuit will construe things that way when it is called to rule on the Proponents' appeal of Judge Walker's decision is uncertain, as is the question whether the Supreme Court would extend its reasoning in the Arizona English case to cover this situation. But it is certainly a plausible argument that a decision by the governor and attorney general may mean that the case stops here.

On the one hand, that would be fortunate for those who want to marry in California. On the other hand, it means that Judge Walker's decision remains merely a trial court ruling and order, with no precedential authority beyond the state of California. For those who think that Walker's very persuasive decision can survive appellate review, this may seem like a lost opportunity to achieve a regional (9th Circuit) or nationwide precedent that could then be used to attack similar amendments in more than 30 states.

So what happens if the case simply stops here, and never makes it to the Supreme Court?

Leonard: "Whether the 9th Circuit will construe things that way when it is called to rule on the Proponents' appeal of Judge Walker's decision is uncertain, as is the question whether the Supreme Court would extend its reasoning in the Arizona English case to cover this situation. But it is certainly a plausible argument that a decision by the governor and attorney general may mean that the case stops here. On the one hand, that would be fortunate for those who want to marry in California. On the other hand, it means that Judge Walker's decision remains merely a trial court ruling and order, with no precedential authority beyond the state of California. For those who think that Walker's very persuasive decision can survive appellate review, this may seem like a lost opportunity to achieve a regional (9th Circuit) or nationwide precedent that could then be used to attack similar amendments in more than 30 states."

It's important to note that this is all conjecture at this point. It will be interesting to see how this all plays out. Both articles cited above are worth reading in full:

Can the Proponents of Proposition 8 Appeal Judge Walker's Ruling? [leonard link]
Lambda Legal's Jon Davidson Explains What's Next: Judge Walker's Stay of His Prop 8 Ruling, Timeline For Appeals and More [lgbt pov]

Watch Jon Davidson on KNBC's news conference from Sunday morning, AFTER THE JUMP…