California Supreme Court appears likely to find Prop 8 proponents have standing

by on September 7, 2011  •  In Marriage

By all press accounts that I've seen, the California Supreme Court sent signals during yesterday's oral argument to expect a ruling that Prop 8's proponents should be accorded standing to defend its constitutionality. Although predicting an outcome from the tone of oral argument is often hazardous, this outcome – if it materializes – will not be much of a surprise, given past cases in which this court has allowed ballot measure proponents to participate in litigation. 

The plaintiffs in Perry v. Brown want the state supreme court to advise the Ninth Circuit that the proponents cannot defend Prop 8, in the hopes that this will effectively cut off any way that the federal trial court's decision can be appealed. A neat trick, but perhaps too much of a trick, at least in the eyes of the state court.

How the Ninth Circuit will rule on the standing question, when the case returns there, is a more difficult call, not least because there will probably be at least two rounds in the Ninth Circuit on this issue: first before the three-judge panel and then before an en banc panel. After that, since the standing issue will be preserved on appeal no matter what the decisions are from lower courts, the U.S. Supreme Court may well have the last word.

From the L A Times:

The California Supreme Court appeared ready Tuesday to rule that the backers of Proposition 8 and other ballot measures have the right to defend them in court…During an hour of oral arguments, several justices appeared skeptical that only elected state officials may defend measures passed by voters, as gay-rights lawyers claimed…

Justice Ming W. Chin observed that the power of the people to enact laws would be curtailed if initiatives could be blocked in court every time officials refused to defend them. "So the attorney general and the governor get to pick the laws they want to enforce?" asked Chin, a conservative on the court.

Justice Joyce L. Kennard, one of the court's more liberal members, appeared to agree. Denying initiative sponsors the right to appeal, she said, would be "nullifying the great power that the people have reserved for themselves" and "would not promote principles of fundamental fairness."

"What we are going to hold is not limited to gay issues," Kennard said. "Our holding will apply to any other circumstance when proponents of initiatives are asserting standing" — the legal term for the right to bring a case in court…

During Tuesday's hearing, Chief Justice Tani Cantil-Sakauye suggested that there would be no one to "safeguard the precious power" of citizen initiatives if their sponsors were not allowed to defend them. "Doesn't that make the initiative process illusory?" she asked.

Justice Carol A. Corrigan pointed out that the courts, not the governor or the attorney general, are supposed to decide a law's constitutionality. She asked whether elected officials have "pocket vetoes" over voters.

The state high court has long allowed sponsors to defend ballot measures, but has never before ruled on whether they have an automatic right to do so..

Justice Kathryn Mickle Werdegar suggested the California high court could avoid making a specific rule and simply write a decision that explained the practice of permitting initiative sponsors to intervene in court cases. Allowing both state officials and initiative sponsors to represent California could spark confusion, she implied. "Can there be two entities that represent the state in federal court?" she asked. Justice Marvin R. Baxter indicated that would pose no problem. "There need not be one unified message," Baxter said.

Justice Goodwin Liu, a UC Berkeley law professor sworn in last week as the court's newest justice, …said it seemed as though the California court was being asked to rule on an issue that had relevance only for the federal courts.

Report from San Francisco Chronicle after the jump

The California Supreme Court signaled Tuesday that it won't stand in the way of a showdown in federal court over the state's ban on same-sex marriage. At a hearing in San Francisco, all seven justices, including newly confirmed Justice Goodwin Liu, appeared to agree with sponsors of the voter-approved Proposition 8 that they have the right to appeal a federal judge's decision declaring the 2008 ballot measure unconstitutional…

If the California court, the highest authority on the meaning of state law, concludes that only state officials could appeal Walker's ruling, the federal court probably would dismiss the appeal and allow same-sex couples to marry, at least until a county clerk or someone else affected by the change filed a new suit.

But the court left little doubt about its intentions at Tuesday's one-hour hearing. "Is there any authority for the governor and attorney general to second-guess the majority of Californians?" asked Justice Ming Chin.

Plaintiffs in the case – two same-sex couples and the city of San Francisco – argued that California has given its elected attorney general the last word on whether to appeal, settle or concede defeat in cases involving state laws. They also cited a 1997 U.S. Supreme Court ruling that expressed doubt over the authority of initiative sponsors to represent a state in such appeals…

But Justice Joyce Kennard said denying legal standing to the official sponsors of an initiative would leave the measure without defenders in court, and effectively "nullify the great power that the people have reserved to them for proposing and adopting constitutional amendments" at the ballot box.

Liu, hearing his first case since a state commission confirmed his nomination to the court last week, observed that the court has traditionally protected the initiative power as "a check on representative democracy. Past rulings have also promoted "an adversarial process that is fair" by allowing sponsors of ballot measures to intervene in state court proceedings, Liu said.


One Response to California Supreme Court appears likely to find Prop 8 proponents have standing

  1. Jay September 7, 2011 at 9:25 AM

    I think it was entirely irresponsible for the Ninth Circuit to have certified this question to the California Supreme Court. The criteria for standing are very different in state and federal courts, so the answer to their question is irrelevant to whether the proponents of Prop 8 have standing in federal court. What the Ninth Circuit has done is to waste a year, thereby depriving gay and lesbian couples of their constitutional rights for yet another year.

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