Ninth Circuit sends Prop 8 standing issue to California Supreme Court

by on January 4, 2011  •  In Marriage

As they hinted was likely during oral argument a month ago, the panel of judges assigned to hear the appeal in Perry issued a unanimous ruling today that certified to California state court the question of whether Prop 8's proponents have standing to pursue the case. (The certification process enables federal courts to defer to state courts on questions of state law.) The precise question is whether California law recognizes the right of the proponents of a ballot initiative to defend its constitutionality if state officials decline to do so, as occurred with Prop 8.

I don't know California state law, and so I can't predict how the court will rule. (It is possible that the state supreme court will decline to answer the inquiry, but I do not expect that to happen.) Their decision on this point will be critical, because the Ninth Circuit today also affirmed the lower court's ruling that Imperial County lacks standing. Thus, the issue of whether the official proponents have standing will determine whether there can be a viable appeal.

The Ninth Circuit judges strongly hinted in their certification ruling that they take a dim view of the equities that would result if no one has standing to appeal Judge Walker's decision holding that Prop 8 is unconstitutional:

Although the governor has chosen not defend Proposition 8 in these proceedings, it is not clear whether he may, consistent with the California constitution, achieve through a refusal to litigate what he may not do directly: effectively veto the initiative by refusing to defend it or appeal a judgment invalidating it.

Judge Stephen Reinhardt, a strong progressive voice on gay issues, wrote a separate concurrence blasting all sides in the case –

  • blaming the plaintiffs for structuring the case so that only two counties would be covered if Judge Walker's injunction took effect and  therefore arguably only SF and LA counties would have clear standing to contest it (a new lawsuit could be required to enforce it elsewhere in the state) – this was perhaps a clever move on the standing question, but a big frustration for the appeals court;
  • blaming the defendants for not assuring that an authoritative county official supporting Prop 8 intervened as an additional defendant at the trial level; and
  • noting that whether it was proper for the governor and attorney general to decline to defend Prop 8 "is a matter of some debate."

The Reinhardt concurrence illustrated how the politics of litigation can operate in unpredictable ways: Judge Reinhardt is generally pro-gay, but he is also a sharp critic of how procedural issues like standing can erect obstacles to a court reaching the merits of a case. In that vein, he noted that the Prop 8 proponents "advance a strong argument" that they have standing. Mostly, though, he just blistered the lawyers:

Thus, in the end, … the important constitutional question before us may, after all, be decided by an appellate court…and may apply to California as a whole, instead of being finally decided by a trial court, or by default, in only two counties or in none. As a result, the technical barriers and the inexplicable manner in which the parties have conducted this litigation may in the end not preclude an orderly review by the federal courts of the critical constitutional question that is of interest to all Americans…

Note that Judge Reinhardt doesn't even mention the possibility of the outcome applying beyond California.  Also, as he stated elsewhere, even if the proponents are found to lack standing, it is not automatic that Judge Walker's ruling will be left intact; the appeals court could also vacate it on the ground that the district court, like the appeals court, lacked jurisdiction because the Prop 8 proponents lacked standing.

The only thing certain about the impact of today's rulings is that the progress of the case has considerably slowed down, and may well slip behind the challenges to DoMA as likely vehicles for Supreme Court review of marriage-related questions. Meanwhile, Judge Walker's injunction is stayed until the final ruling in the appeals process, which is unlikely to occur for many months, and possibly several years. Not to put too fine a point on it, but the 2012 election will probably come and go before this case is finally resolved.


One Response to Ninth Circuit sends Prop 8 standing issue to California Supreme Court

  1. Michael Ejercito January 9, 2011 at 3:41 AM

    There is also the Oklahoma marriage case, where a lesbian couple is challenging Oklahoma’s Question 711 and DOMA.

    As to Reinhardt’s concurrence, he mentioned that the case “decided by a trial court, or by default, in only two counties or in none.” There is a good reason for that, and it has to do with plaintiffs’ standing.

    As a general rule, trial courts’ subject matter jurisdiction is limited to the legal rights and duties of the litigants. And there is in fact a Ninth Circuit precedent which narrowed an injunction because it enjoined the defendants’ acts regarding persons other than the plaintiffs. (Meinhold v. Department of Defense, 34 F.3d 1469, 1480 (9th Cir.)(vacating permanent injunction prohibiting the
    Defense Department from discharging any person from the service based on sexual
    orientation where action was not brought as a class action “except to the extent it
    enjoins DOD from discharging Meinhold”) And as the Supreme Court reiterated in Arizonans for Official English v. Arizona “[E]very federal appellate court has a special obligation to `satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under review,’ even though the parties are prepared to concede it.” 520 U.S. 43 at 73.

    Non-defendants (such as Imperial County) are not bound by the district court order. And I would add that non-plaintiffs can not assert a right to a marriage license under this order, since they were not litigants in this case. Indeed, that was the reason for the Ninth Circuit decision in Meinhold. This again has to do with standing. For plaintiffs certainly did not show they had a protectable interests in the due process rights and equal protection guarantees of other same-sex couples.

    Without standing to appeal by proponents, the ruling will have to be limited to the litigants.

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