There are quite a few interesting posts on the standing issues in Perry v. Schwarzenegger, including pieces by the following:
- Lyle Denniston (SCOTUSBlog)
- Vikram Amar (Writ)
- Howard Wasserman (Prawfsblawg)
- Michael Dorf (Dorf on Law)
- Emily Bazelon (Slate)
Having thought about the question a little bit more, I think that the defenders of Proposition 8 do have standing to appeal the decision, just as they had standing to intervene, and that even if they do not, the officials of Imperial County would, and should have been permitted to intervene. Although I generally support a rather narrow view of standing, I largely agree with Michael Dorf that it would be anomalous were state officials able to effectively nullify state ballot initiatives simply by refusing to defend such initiatives in Court. Further, I think the interest of the proposition’s defenders on appeal is equivalent to that of an initiative’s sponsors who could file suit to ensure their initiative appears on the ballot in the first place.
Assuming the U.S. Court of Appeals for the Ninth Circuit disagrees, what are the consequences? As I suggested in my prior post, I think that if Prop. 8′s proponents lack standing to appeal, then they lacked the standing to intervene [as primary defendants], and the trial proceedings were held in error. The district court still had jurisdiction over the case, but the trial was invalid. The proper remedy, I believe, would be to vacate Judge Walker’s decision and remand for additional proceedings. Barring the successful intervention by a party with standing (or a change of heart by the state), this would produce an almost identical outcome. If the state defendants did not consent to an adverse judgment, Judge Walker would enter a default judgment on behalf of the plaintiffs or grant a motion for summary judgment. The end result would be the same, but Judge Walker’s order and opinion would be different. Among other things, it would not be able to rely upon factual findings based upon the testimony and cross-examination he heard at trial. So the only real effect would be a several month delay and a new opinion, right? Maybe not.
Californians go to the ballot box in November and will elect a new Attorney General. Consider what would happen if, come November or January, the state now has an AG who wants to defend Proposition 8. Depending on how things proceed — and how quickly — a new AG might have the opportunity to enter the fray.
As Howard Wasserman notes, this would be a really good semester to be teaching federal courts.
Brendan says:
But the qualifications for intervention and the qualifications for Article III standing are not the same… you need not meet the qualifications for Article III standing in order to intervene. There is no indication that Proponents ever met those qualifications. So, the argument that if they have standing to intervene, they have standing to appeal is fallacious. Who do same-sex couples sue over the constitutionality of Prop 8? The people who voted for it, the people who authored it? No. If the State Legislature passed Prop 8, the people wouldn’t be able to sue the members of the Legislature? No. Likewise, due same-sex couples sue the people of California for not issuing them a marriage license? No. They sue those who deny them the marriage license… the State. The Proponents are not harmed by the ruling in any way that would grant them standing.
As for Imperial County… with regard to marriage, they are State actors authorized only to issue licenses, solemnize judges, etc… in accordance with valid California law – whatever that law may be… even if they disagree with it. And, an absence of Prop 8 does not create a conflict in that regard. Having an interest does not equal being harmed. They are no more harmed than they would be having to fulfill other obligations associated with their job that they might conscientiously object to. If they have an issue with it, they are free to sue the State – but that’s a completely different law suit.
August 16, 2010, 12:41 amORID says:
I think it is the plaintiffs who lack standing. No one has explained to me how California is causing the harm in the complaint. People have said that Judge Walker was biased and wanted to reach a certain conclusion. While I don’t believe this, I think the fact that he found that the cities and municipalities like San Francisco suffered “financial harm” one of ridiculous items in the ruling. Cities and municipalities freely joined the state of California and put themselves under California jurisdiction. So there is a *risk* that California may enact laws that cause them economic harm. The cities wouldn’t have standing to sue all of their residents who got Las Vegas weddings for “economic harm” due to lost revenue.
Furthermore, I’m not sure what harm is being complained about. For instance, the financial harm wasn’t particular to these plaintiffs. In general an expert testified that same-sex couples suffer financial harm, but I don’t think that goes far enough, shouldn’t he have to substantiate how the plantiffs suffered financial harm? I believe emotional harm was also talked about, with respect to religious groups, but I don’t see how this is traceable to California. They want to say there is a stigma attached to homosexuality, but I don’t think that California is doing anything to support that stigma.
As far as emotional harm, can I go to a state I don’t live in and ask them to issue me a driver’s license, and then when rejected claim that I have suffered emotional harm? I’m not claiming that the couples denied SSM don’t suffer emotional harm, I just don’t think it is caused by the state.
I think the plaintiffs in this case don’t meet the criteria established by Lujan. I’m not sure if the defenders of Prop 8 ever argued this in court, and I’m not sure if they can raise it on the appeals, but I think it is an interesting point that has been overlooked.
I haven’t seen anyone answer this, and this is a more appropriate place to put my thoughts.
August 16, 2010, 12:59 amGuy says:
But legislative standing is generally rejected, at least without a specific legislative act appointing someone to represent its interests. Why should it become a more valid doctrine when the people at issue aren’t even the people’s representatives? The only situation I can think of where “someone must have standing” (And I think you have to concede that this is the only plausible argument for standing) has been taken seriously is the Establishment Clause, and the Court has been hostile to that lately. Plus that’s a place where we’re talking about enforcing the Constitution, not forcing the executive to enforce a law it believes unconstitutional against the executive’s will.
August 16, 2010, 1:17 amSteve says:
As I suggested in my prior post, I think that if Prop. 8’s proponents lack standing to appeal, then they lacked the standing to intervene, and the trial proceedings were held in error.
This continues to ignore Diamond v. Charles, the line of 6th Circuit cases cited by Judge Walker, and several other cases which have explicitly held that the standard for intervention is more permissive than the standard for independent Article III standing. You haven’t explained why these cases are distinguishable; it seems like it just feels to you like the standards ought to be the same, when the Supreme Court has clearly said they’re not.
Of all the various possibilities, one thing seems rock-solid to me: based on my experience representing ballot initiative proponents, there is no doubt that the Prop 8 proponents were correctly permitted to intervene. To me it’s not even a close question. In fact, in many jurisdictions you don’t even have to establish that the State will do an inadequate job of defending the initiative; the mere fact that you sponsored an initiative that overturned the State’s prior position is conclusive evidence that the existing parties may not adequately represent your interests. As you said, any other rule would allow the State to overturn any ballot initiative it didn’t like just by defaulting.
August 16, 2010, 1:24 amGuy says:
Why isn’t proceeding to trial harmless error, assuming it was error? Isn’t it necessary to show that the trial prejudiced California in some way?
August 16, 2010, 1:28 amcopper and zinc simian says:
I never felt the attraction for all the left-vs-right blogging battles about who J. Walker does or doesn’t share his bed with. “He is a judge,” I told myself, “and why would a homosexual judge – if he even is homosexual – be any more or less qualified than a heterosexual judge?” It all seemed very reasonable and educated. But then J. Walker delved into some sort of chicanery. “What is this?” I ask myself. “You’ve ruled against a party, and now you’ve gone beyond the metes and bounds of the papers to sua sponte suggest that those you’ve ruled against don’t even have the ability to appeal your decision?” Well shit on my lawn and tell me its fertilizer. Is that how our judiciary works? A judge simultaneously rules and attempts to foreclose review of that ruling? Proper bloggers rightly ignored the invitation to interject the judge’s sexuality, whatever it may be, into the discussion of this case. But proper bloggers now seem to be tip-toeing around the egregiousness of the judge’s conduct. I am against Prop 8, and I am for J. Walker’s conclusion, but am I alone in wondering if this calls for his impeachment?
August 16, 2010, 1:32 amSteve says:
You are misunderstanding. The judge didn’t rule the proponents lack standing to appeal, which is obviously a question for the Ninth Circuit. He merely ruled that they are not entitled to a stay pending appeal, because one of the elements is a likelihood of success on the merits, and among the proponents’ problems is that they will have trouble establishing standing to appeal. The trial judge has no choice but to draw a conclusion as to whether the losing party is likely to prevail on appeal; the rules force him to make that determination. In no way did this “attempt to foreclose review.”
August 16, 2010, 1:38 amcopper and zinc simian says:
(emphasis added)
“Suggest” != “rule”
August 16, 2010, 1:47 amGuy says:
copper and zinc simian,
I’ve bolded the most relevant portion, this isn’t exactly a rogue judge here.
August 16, 2010, 1:52 amSteve says:
I don’t know why you think “suggesting” the proponents may lack standing to appeal constitutes an “attempt to foreclose review of his ruling,” but it doesn’t.
You were also incorrect to say it was sua sponte, when the court was analyzing a required element of proponents’ own motion for a stay.
August 16, 2010, 1:57 amMittens says:
Terrible analysis of the remedy. The district court had proper jurisdiction because the plaintiff had standing. California as the real party in interest had standing. So the district court proceedings were constitutionally proper as there was a live “case and controversy” at the time of judgment.
If the real party in interest declines to appeal, and the remaining 3d party intervenor lacks Art III standing on their own, the remedy is NOT a new trial. If that were the case, any intervenor—who by definition is a party that forced their way into a lawsuit without being invited—could effectively “time-bomb” an adverse result by having the true defendant “decline” to appeal. This is absurd.
IF it is decided that the Prop 8 opponents lack standing, and California declines to appeal, then the case dies and the judgment for the district court remains intact, along with its order and fact findings.
August 16, 2010, 1:59 amcopper and zinc simian says:
The rules demand he make a jurisdictional evaluation before anything else. To punt on the subject, reach a conclusion, and then raise the issue after affecting the law reflects poorly. This was a sensitive issue at a pivotal time and it should have been handled with the utmost care. As the original post suggests, history may be undone by procedural missteps. J. Walker’s handling of this case should not have been doubted initially, but his conduct casts a pall.
August 16, 2010, 2:03 amORID says:
I just read the complaint and they allege rights deprivation under the Fourteenth Amendment. I’m pretty sure that would confer standing as a “legal harm”.
August 16, 2010, 2:12 amGuy says:
What? His ruling was with respect to standing to appeal, which is a separate legal question from standing to intervene. And the very first thing he had to do was determine whether he had jurisdiction over the case at all, which he clearly did.
August 16, 2010, 2:14 amSteve says:
The trolls all look prettier around closing time…
August 16, 2010, 2:14 amGuy says:
A
August 16, 2010, 2:17 amconcern trollperson for whom I assume good faith is a nice change of pace from the straight-up troll trolls on the last standing thread.JPSobel says:
This restriction on those eligible for standing to defend a voter proposition potentially opens a back door for the state to effectively repeal future propositions.
Using a hastily formulated example, suppose a voter proposition is passed which severely curtails the eminent domain powers of California Redevelopment Agencies. The proposition is written in such a way that its changes do not effect any pending eminent domain actions. (Perhaps the new law has a delayed effective date or a phasing in of provisions. No property owners in the state involved in eminent domain actions on the date the new laws take effect would benefit from the proposition.
Now, the City of Bell sues the State of California in federal court claiming that the proposition violates the eminent domain rights granted to governments in the federal constitution. The state, represented by the Attorney General and the Governor, who vehemently oppose the new law, decide not to defend the suit. (What is to keep them from not answering the suit, essentially forcing a judgment against them?)
Might a judge be able to deny standing to property owners since none are presently effected by the law? If so, it seems to allow a new method for state officials to have voter propositions overturned by employing a strategy of “Get Sued and Lose”.
Proposition 8 was a ballot initiative that proceeded through all the qualifying requirements of the State of California. It was voted upon and properly certified as passed. It seems to me that those circumstances alone would grant standing to any individual voter in the state to defend the proposition. The voters of California have sufficient interest in the initiative process to allow them to seek a full legal defense of voter approved propositions.
August 16, 2010, 2:35 amGuy says:
Wouldn’t the city have to attempt to exercise its eminent domain power for the case to be ripe? (setting aside the fact the claim is frivolous, unless municipalities are persons under the 14th Amendment)
August 16, 2010, 2:43 amRoger says:
It would be amusing if the Ninth Circuit voided this entire Mickey Mouse trial because neither side had standing.
August 16, 2010, 2:51 amSteve says:
The initiative proponents can intervene as of right. They don’t need Article III standing.
You generally won’t have standing if you’ve suffered the same harm as every other voter or every other taxpayer, even if you have in fact suffered harm. A generalized injury will not do.
August 16, 2010, 2:51 amAnon21 says:
I have little to add here, except that boy, it would be great if all the legal academics who seem to assume that there is perfect symmetry between the requirements for intervention and the requirements for standing to appeal would actually address this point. I am getting the distinct impression that a lot of people (or at least Profs. Adler and Amar) are simply pontificating about standing with only a vague idea of what they’re talking about.
August 16, 2010, 3:01 amBruce Hayden says:
I do find it interesting that many of the same people who seem so adamant about lack of standing in this case, seemed to take the opposite side when it came to the Arizona immigration law, where there wasn’t any real current harm, and any future harm was purely hypothetical.
August 16, 2010, 3:07 amGuy says:
Whose standing?
August 16, 2010, 3:20 amJPSobel says:
As I am not a lawyer, I’m sure that you will find many holes in the details of any example I propose. The given example was presented to illustrate an idea, and not as a model for hypothetical case study.
As to your objection that a lawsuit would not be ripe without action under the new law, the City could initiate an eminent domain suit against a “friendly” property owner. That property owner might be an opponent of the proposition willing to sacrifice an insignificant property in a test case on the new law. The defendants in the lawsuit might then be the State of California and the property owner, both of whom have greater interest in losing the suit. (Yes, the initiative proponents could be granted the right to intervene, but, under Judge Walker’s reasoning, possibly not the right to appeal.)
Again, I’m sure there are a number of flaws in the legal set-up of the example. The larger point is that the defense of the voter initiative would be left to parties that would prefer not to win the case. The whole situation seems counter-intuitive to the idea of an adversarial legal system and to the interest of the initiative process. If the defendants lose, the voter initiative is overturned. And, if the primary defendants are the only ones with standing to appeal, they can elect not to do so. In which case, the voter initiative remains overturned without review, even if the opinion is flawed.
By restricting those eligible for standing to fully defend a voter proposition, the state is afforded a backhanded method to have an initiative overturned.
August 16, 2010, 4:26 amPaul Thomas says:
The fundamental sticking point, as I see it, in this case is the Supreme Court’s repeated embrace of a standing doctrine which defines “the proper enforcement of the laws” as “not an injury” to citizens. If you actually believe that to be the case, then I do not see how one could find standing here. (The only cognizable injury that anyone has unearthed is the damage to administration of the laws.)
Here’s the thing, though– I’d bet the farm that most nonlawyers don’t believe that to be the case. Partly, no doubt, because it’s not really in the national consciousness as an issue, but mostly because it’s patent nonsense. There is no actual difference between illegitimate government action and illegitimate government inaction. And one can most certainly be hurt by the fact that bodies intended to protect you are neglecting that duty.
Denying the right of appeal here would be outrageous on the facts, as it would virtually amount to granting the State of California a veto power over its own constitutional amendment process. But as I said, I do not see how one can square allowing an appeal with the Court precedent which strips victims of government inaction of any legal remedy. I think that precedent is based on severely fallacious reasoning (and, as a purely tactical matter, this case notwithstanding, hurts liberals far more often than it helps them). But it is what it is.
August 16, 2010, 5:00 amMax Power says:
I don’t think you understand what “standing” is. A defendant does not need standing for a lawsuit to proceed; standing is a question that is asked of plaintiffs. Proceedings in district court can be improper when the court lacks jurisdiction over a defendant, say — which is clearly not the case here — but “standing” is just not a concept that is applicable to defendants. And there is no question whatsoever that the plaintiffs in this case had standing. They wanted a marriage license; they were denied marriage licenses; the denial of marriage licenses was traceable to the state’s enforcement of Prop 8; the injunction of Prop 8 would remedy plaintiffs’ denial of a marriage license.
August 16, 2010, 6:18 amMax Power says:
Aren’t you pretty much ignoring the Court’s decision in Diamond v. Charles? Or is there something I’m missing? It appears to me that the Court held, as commenter Steve pointed out above, that the showing of interest required for intervention is less stringent than the showing required for independent Article III standing. Thus, the initiative proponents may well have had an “interest” sufficient to intervene under Fed. R. Civ. P. 24(a)(2), but not Article III standing.
August 16, 2010, 6:28 amMax Power says:
No, it wouldn’t. There was a full federal proceeding in which the constitutionality of the law was examined and found unconstitutional by an independent Article III judge not affiliated with the California state government. Unless you are suggesting that the state government somehow controlled Walker, and can control Article III judges as a matter of course and cause them to find voter initiatives unconstitutional whenever the state doesn’t approve of them, the state of California does not have a “veto power over its own constitutional amendment process” merely because it decides to accept the decision of an independent federal tribunal.
August 16, 2010, 6:35 amAttorney-in-training says:
Actually, it was not raised sua sponte. The issue that the Proponents do not have standing to appeal was raised in the Plaintiff’s brief asking the judge to deny a stay. The judge cited the fact that their legal standing is questionable as support for denying a stay.
August 16, 2010, 6:47 amMax Power says:
Just to clarify my point: I certainly recognize that the intervenors needed to show an “interest” under Fed. R. Civ. P. 24 to intervene, and that the trial might well have been void if they could not do so. But no one is arguing, to my knowledge, that the proponents had no “interest” in the defense of the proposition, which, again, is a different question than standing.
August 16, 2010, 6:48 amBrett Bellmore says:
And that is the precise problem here: The pretense that, in the case of a ballot initiative forced upon an unwilling state government by the PEOPLE, the state government is the ‘real party’, not the PEOPLE. It’s an assumption almost diametrically opposed to the actual facts.
August 16, 2010, 7:24 amfred says:
1. They have standing. The requirements for standing (stated simply)are injury, causation and redressability. You can’t say they don’t have an injury – they raised millions of dollars, got an initiative on the ballot, worked thousands of hours to promote and get Prop 8 passed. Now, a plaintiff comes around that wants to undo all of their work and reverse the whole process. They certainly have an identifiable interest in preventing the unraveling of all they have accomplished. Their harm was caused by the plaintiffs filing of the suit and the judge’s decision. And a court can effective redress their wrong. In other words, as one commenter noted, standing is generally something that applies to plaintiffs ability to bring the case in the first instance. However, once a case has been brought and has resulted in the curtailment or elimination of a definable right previously “owned” by the defendent, that defendant has standing.
August 16, 2010, 7:39 am2. Californis law requires that initiatives be “sponsored” and creates a specific category of individual called a “official sponsor” of the inititive. These sponsors essentially stand in the place of governmental officials who have refused to, or have not, passed legislation to address the matter. So Prop 8 proponents are not simply members of the public with no other definable interest in the matter other than their membership in the general public; they are people with a quasi-governmental status, created by California law. They have a special definable interest in seeing Prop 8 be enforced, and not cast aside because of the very unusual circumstances of this case which are…
3. That the responsible officials who are supposed to defend the state constitution are refusing to do so. That fact makes a big difference.
Jonathan H. Adler says:
I didn’t ignore Diamond, but I don’t think I was entirely clear in my post above. So let me try to explain.
First, in Diamond the Supreme Court noted that state law may create interests that are sufficient to confer standing, and I am persuaded that California law, as interpreted by the California Supreme Court, does so here.
Second, while the standard for intervention under the federal rules is not the same as that required for Article III standing, whether an intervenor must satisfy the requirements of Article III standing is actually an open question that Diamond explicitly left unresolved. See this student note.
Third, as Diamond noted, an intervenor may, in effect, “piggyback” on another party’s standing. The question, which I do not believe Diamond resolves is: What happens if there is no party upon which to piggyback at the trial level? I don’t think this deprives the trial court of jurisdiction, but I do think it means that if the intervenors lacked standing under California law, Judge Walker should have entered a default or consent judgment, or granted summary judgment, and not have held a trial in which the intervenors are treated as a complete and sufficient substitute for the actual parties in interest.
Third,
August 16, 2010, 7:53 amjrose says:
Max and Steve,
Can’t Diamond be distinguished because only in Perry did the state completely refuse to participate in the defense at trial?
August 16, 2010, 7:55 amgary myers says:
Both Profs. Amar and Adler suggest if the Prop. 8 proponents lack “standing” to both intervene and appeal, the appropriate remedy is a do-over – with the same eventual judgment – at the D. Ct. level via a default judgment proceeding or sj motion. To them, this would remove the “findings” made by Walker. I still do not see why any “intervention error” can be said to be harmful. An opinion by a single D.Ct. judge carries no precedential weight without, or even within, the district. More technically, Walker’s findings are “binding” only on the parties before him, who by not appealing, do not seem to desire them vacated. Most importantly, gov’ts and their agents are generally not viewed as being subject to non-mutual collateral estoppel principles and rules. If so, the Walker findings would not be binding on the CA state and county local officials even in some other law suit which challenges Prop. 8. Where’s the harm then that would trump a determination that allowing the proponents into the hearing was a “harmless” error in this context?
August 16, 2010, 8:10 amAlec says:
Any authority for that “proper remedy,” counselor? The cases you and Whelan appear to be relying on for your argument include Moore, a case where two parties agreed that an anti-busing statute was constitutional. Vacating a “judgment” that the statute was constitutional makes sense; there is no case or controversy, and it isn’t even clear, procedurally, how a case like that gets in front of a district court in the first place (in the case of Moore, a three judge panel).
As far as your confidence that California law confers standing, as I wrote elsewhere:
As far as Imperial County, the court provided plenty of reasons why they did not have a sufficient protectable interest to intervene. You don’t discuss those, or the California cases cited in support of Walker’s determination. And frankly, the conservative discussion of Karcher v May, 484 US 72 (1987), has so far been weak. As I pointed out elsewhere, the dicta in that case stated that “the New Jersey Legislature had authority under state law to represent the State’s interests.” Id. at 82 (citing In re Forsythe, 450 A2d 499, 500 (1982)) (emphasis supplied). But in Forsythe, the New Jersey Attorney General was also present in that case, defending the validity of the law with the New Jersey legislative officials. In other words, the New Jersey Supreme Court did not have to address the question of their independent ability to defend the constitutionality of a legislative enactment under state law, without the Attorney General present as a co-defendant. So although Karcher is cited for the proposition that “legislators may obtain standing to defend the constitutionality of a legislative enactment when authorized by state law,” Planned Parenthood v Ehlmann, 137 F3d 573, 578 (1998), the original decision relied upon in Karcher’s dicta did not address the independent adequacy of legislative standing because the Attorney General charged with defending state law’s was present as a defendant. Moreover, most courts to address the question have limited the ability of the state legislatures to obtain standing only where they are specifically authorized to sue “on behalf of the state.” Alaska Legislative Council v Babbitt, 181 F3d 1333, 1338-39 (D.C. Cir. 1999).
August 16, 2010, 8:17 amDissenting Reason says:
Alec,
What are your legal credentials? Where have you passed the bar?
August 16, 2010, 8:19 amShelbyC says:
ITSM that the whole standing issue on ballot initiaves, where the people of a state collectively have the power to impose constraints on their representives, but the representives are the only ones who have standing to defend the constraints imposed upon them, needs to be rethought. Perhaps the interverors, as people of California, should have Art III standing. Legislative standing presents the same issue, but doesn’t seem to have presented the same problems.
August 16, 2010, 8:21 amAlec says:
I don’t really think it is relevant to this discussion, but California and Michigan.
August 16, 2010, 8:26 amNormanMailer says:
Standing or not, I’m just glad that from the looks of it Prop 8 looks to be going the way of Betamax: http://lawblog.legalmatch.com/2010/08/06/the-end-of-the-beginning-proposition-8-overturned-in-federal-court/
The parties should hurry up and litigate the appeal so that it can quickly be dismissed.
August 16, 2010, 8:36 amDebrah says:
A most excellent analysis from copper-zinc alloy.
Organic synthesis has never produced such brass.
August 16, 2010, 8:47 amDissenting Reason says:
I suspected you were admitted in CA. In preparing for the bar in California, did you study under what conditions state law confers Article III standing on intervenors in federal court?
August 16, 2010, 8:48 amShelbyC says:
Is that a trick question? How can state law confer Article III standing?
August 16, 2010, 8:57 amruuffles says:
I’ve been following the standing issue when it first cropped up on some liberal blogs and have just recently seen the state law aspect mentioned. Does the possibility exist for the 9th circuit to chicken out, grant the stay, and certify the standing question to the California Supreme Court? Of course this assumes the 9th cares what the CA courts think …
August 16, 2010, 9:04 amORID says:
I guess the point I want to make is this. If, during the appeals process it is found that SSM does not violate the 14th amendment, the plaintiffs would have no standing on their other complaints (namely, economic and emotional harm) because I don’t believe they explained how they particularly were economically harmed and the emotional harm is not traceable to California.
Paul Thomas’ point on American’s understanding of “standing” is right, however the plaintiffs are challenging not enforcement of a law but a legislative action.
August 16, 2010, 9:13 amMax Power says:
Prof. Adler:
First of all, thank you for your response. I appreciate your engagement with us anonymous commenters; it’s a privilege.
I’m with you that “state law may create interests that are sufficient to confer standing.” The Court in Karcher clearly held as much. I’m not totally sure, however, that California law does what New Jersey law did in Karcher. Karcher depended on a New Jersey state supreme court case that explicitly held that the “New Jersey Legislature [has]. . . authority under state law to represent the State’s interests” in litigation. Karcher, 484 U.S. at 82 (citing In re Forsythe, 450 A.2d 499, 500 (N.J. 1982)). The San Francisco brief opposing a stay before the Ninth Circuit, at least on its face, does a pretty good job distinguishing the California cases from the New Jersey case law:
I concede that I have not read each of these California state cases, but if they say what San Francisco says they say, I don’t see how this is like Karcher instead of like Arizonans for Official English.
August 16, 2010, 9:43 amMax Power says:
By the way, the San Francisco brief discussing the standing issue is available here.
August 16, 2010, 9:46 amAttorney-in-training says:
What a bizarre argument. I find it hard to believe that you’re even being serious. Said harm is definitely traceable to California, as it is the result of plaintiffs being denied the right to marry the person of their choice.
August 16, 2010, 9:47 amParatrooperJJ says:
Why would the proponents not get a writ of mandamus to force the AG’s office to defend the law?
August 16, 2010, 9:58 amMax Power says:
From the California Supreme Court, you mean? I don’t know very much about California state law, but I don’t imagine that the state AG has a legal duty under state law to appeal. Perhaps he had a legal duty to appear before Judge Walker and defend the law there, or else allow someone else to do so (i.e., the intervenors), but once a federal judge has spoken and pronounced the law unconstitutional in a binding and final judgment, where does California state law create an absolute to appeal that final decision? If there is no such duty, but it is instead a political or strategic decision, how could the state supreme court order him to appeal?
August 16, 2010, 10:10 amMark Field says:
I said on the other thread that I find the standing issue fascinating because of the political dilemma it presents to both sides. The conservative justices have spent 40 years limiting standing, liberals have demanded broader standing. Now there’s a critical case in which each side has to take the opposite view of standing. My guess is that the conservatives on the Court will contradict themselves and allow the intervenors to appeal, while the liberals will claim to follow existing precedent without really justifying that precedent.
August 16, 2010, 10:13 amMark Field says:
Under CA law, mandamus can issue to the executive branch only if the duty is mandatory, i.e., no discretion exists in the official. As Max Power noted, the issues here involve the AG’s discretion, so mandamus isn’t available.
August 16, 2010, 10:15 amjrose says:
For the general question on “the precise relationship between the interest required to satisfy the Rule [24(a)(2)] and the interest required to confer standing” that’s true, but didn’t Diamond directly hold that an intervenor must have Article III standing when appealing on their own?
August 16, 2010, 10:25 amSteve says:
That’s right, but I think Prof. Adler meant the question is open as to whether an intervenor must satisfy Article III requirements merely to intervene. Mind you, such a notion seems rather silly to me – particularly where the intervenor is seeking to enter the case as a defendant. But the Court did say they were declining to reach that issue, it’s true.
August 16, 2010, 10:30 amMax Power says:
It did, but I didn’t interpret Prof. Adler as saying otherwise. It appears to me he believes that intervenors do in fact have Article III standing on their own because California decisional law allows initiative proponents to act as representatives or agents of “the people” in lawsuits involving their initiatives. As I posted above, I’m not sure I agree personally with that, but it’s ultimately a matter of the correct interpretation of California state law.
August 16, 2010, 10:32 amruuffles says:
I think the standing issue actually makes this case much less critical. Before standing became a problem for the proponents, the CW was that if the 9th circuit upheld Walker’s decision, the Supreme Court would grant cert. But if there’s no standing to appeal, then the district court decision stands, but no 9th circuit precedent is produced, isolating it to California. This seems somewhat more preferable than leaving it up to Justice Kennedy: the liberals point toProp 8 struck down, the conservatives point to the avoidance of a nationwide (and circuit wide) decision in favor of SSM.
August 16, 2010, 11:02 amGuy says:
Although I understand these concerns, it still seems right to me, it seems intolerable for a state to be forced to appeal against its will. Perhaps if it passed a law designating proponents as its representatives for the purposes of the initiative they supported the situation would be different, but until the state passes such a law, they should be able to have an initiative process without being punished by having people unaffiliated with the government be able to hijack it. As far as “proper enforcement of the laws”, that’s what is always being sued for, the standard is proper enforcement plus concrete harm. The alternative is that anyone is allowed to sue for anything, and standing is out the window.
August 16, 2010, 11:24 amMarc says:
I don’t know how to embed a link, but Judge Walker released all the evidence in the trial (113 pdf files and about 10 vidios).
August 16, 2010, 11:26 amGuy says:
But the Attorney General is the people’s representative, not Proponents. Protect Marriage is only a special interest group.
August 16, 2010, 11:27 amGuy says:
But the Supreme Court sometimes appoints amici to represent positions they think are not adequately defended, as in Dickerson, is that improper?
August 16, 2010, 11:29 amGuy says:
I think it’s pretty cynical of you to say they “ha[ve] to” take opposite views. Standing issues may be subconsciously influenced by opinions on the underlying merits, but no one tries to allow that to happen in their own minds. Plus, as Justice Ginsburg’s dicta shows, the fact that liberals usually have a more relaxed view of standing doesn’t mean they take it to extremes. Sometimes standing issues are easy regardless of legal ideology.
August 16, 2010, 11:37 amMichael Ejercito says:
The veto power comes from not appealing an adverse ruling, especially if the adverse ruling contradicts Supreme Court precedent.
August 16, 2010, 11:51 amMark Field says:
Fair enough.
Agreed. I suggested this possiblity on one of the other threads.
August 16, 2010, 11:58 amL says:
This was the second comment, but I don’t think it ever got addressed.
Obviously you would lose this lawsuit, but not because of standing. You would have standing to bring such a suit.
August 16, 2010, 12:04 pmMichael Ejercito says:
There is more.
In Zepeda v. INS, the Ninth Circuit ruled, “A federal court may issue an injunction [only] if it has personal jurisdiction over the parties and subject matter jurisdiction over the claim; it may not attempt to determine the rights of persons not before the court.”
For example, let us take this position to the case I had mentioned, Term Limits Inc., which struck down Amendment 73, Section 3 of the Arkansas Constitution. The underlying injunction would only apply to the plaintiffs named in the original suit, so technically it does not apply to other potential plaintiffs, namely candidates for Congress who want to run for more turns than Amendment 73 allows. (Of course, as a practical matter, it will not be enforced, since Arkansas knows that any attempt of enforcement would quickly result in an injunction and a summary ruling in favor of the plaintiffs. “We find in favor of the plaintiffs, see Term Limits Inc. v. Thornton, 514 U.S. 779)
This means that the district court’s injunction only applies to the state’s actions in regards to the specific plaintiffs.
August 16, 2010, 12:11 pmAnderson says:
I think it’s pretty cynical of you
At least since Bush v. Gore, regarding the Court with anything *less* than cynicism is … naive.
August 16, 2010, 12:35 pmjrose says:
I don’t follow why he would point that out. What difference does it make to his argument?
August 16, 2010, 12:43 pmruuffles says:
Another benefit to killing the appeals on lack of standing: district courts opinions aren’t binding on other judges in the district, much less the state or circuit. In addition to a Gov or AG elected in 2010 that may want to appeal or mount an actual defense, I don’t see anything stopping a new Prop 8 from being put on the ballot.
August 16, 2010, 12:45 pmChris Travers says:
IANAL, etc.
Well, one unspoken concern is that we don’t really want the executive to have perfect authority to nullify laws. That goes against the spirit of separation of powers. If the executive states they aren’t going to defend the law one might argue that it’s worth having a surrogate defendant. I.e. telling the state “if you won’t defend the law, we’ll let the next closest group do so.” I wouldn’t be surprised if in cases challenging Constitutionality of a law where the state offers no defence if standing requirements might be loosened.
The second issue is that in some cases in the past, federal appellate courts have looked to state law to see who the state law designates as acceptable for intervention. I don’t know what California law designates here. But I would think that being a government officer in an enjoined class (i.e. county clerk of Imperial County) might be sufficient to provide standing to appeal. The only cases I know of, however, are those involving state law which specifically grants this option, and federal courts recognizing that.
August 16, 2010, 12:48 pmMark Field says:
The new state officials won’t be able to appeal because the time to do so will have expired. A new Proposition would be an interesting question, but it’s not likely as a practical matter.
August 16, 2010, 12:50 pmMark Field says:
It’s not an unspoken concern at all. The US Constitution makes it a mandatory duty for the president “to faithfully execute the laws”. Sadly, there’s no means of enforcing this short of impeachment.
August 16, 2010, 12:53 pmMichael Ejercito says:
But remember that any court order from the district court only binds the defendant’s actions in regards to the plaintiffs. “A federal court may issue an injunction [only] if it has personal jurisdiction over the parties and subject matter jurisdiction over the claim; it may not attempt to determine the rights of persons not before the court.” (Zepeda v. INS, 9th Circuit)
If new state officials, believing that Proposition 8 is constitutional as the Supreme Court never ruled nor denied cert to a decision against Proposition 8, enforce it against people other than the plaintiffs, the original court ruling will not stop them. The people denied marriage licenses will have to file a new lawsuit either in state or federal court, and Judge Walker’s decision will not be binding.
And there is one more question. If another case arises in another state and the Ninth Circuit upholds the definition of marriage as one man and one woman, how would this affect Judge Walker’s ruling? Will there be grounds to void the injunction?
August 16, 2010, 12:57 pmMike Schilling says:
The pretense that, in the case of a ballot initiative forced upon an unwilling state government by the PEOPLE
of Utah, which is where most of the money behind Prop 8 came from. Does that give the government of Utah standing?
August 16, 2010, 1:08 pmMichael Ejercito says:
Indeed.
The reason laws should have vigorous defense against constitutional challenges is because in the end, it is the best way to serve both inferior laws and the U.S. Constitution.
That is why the state should pursue the appeal, or the courts should recognize standing either of the proponents or Imperial County. What would happen if the Ninth Circuit or Supreme Court hears a similar case and finds in favor of the state?
August 16, 2010, 1:08 pmMichael Ejercito says:
The government of Utah did not ask for intervener status, let alone fund the campaign.
August 16, 2010, 1:12 pmMark F. says:
Well, point taken, but you are saying that even if the state sincerely and truly believes that there is no good case for the law, they need to mount some defense, however stupid. Suppose, for example, California voters approved a law outlawing mosques. Is Jerry Brown supposed to mount some sort of “defense” of that, maybe saying that the First Amendment is not binding on the states? Or that Islam is not a religion?
However, I agree that the Intervenors or Imperial County should probably have standing on appeal.
August 16, 2010, 1:23 pmPlugInMonster says:
Equal protection is equal protection. Anthony Kennedy will vote to overturn Prop 8 and gay marriage will be law of the land!
14th Amendment trumps the haters.
August 16, 2010, 1:43 pmChris Travers says:
Courts have, in the past, given special leave for third parties to defend laws against Constitutional challenges when the executive declines to do so.
August 16, 2010, 1:46 pmruuffles says:
Can you give the names of some cases? I’m wondering if there’s any where the challenge succeed in the lower courts, and the third party is try to get the ruling reversed.
August 16, 2010, 1:50 pmMark F. says:
This seems appropriate. Otherwise, the executive has a (de facto) veto power that he is not authorized to have.
August 16, 2010, 1:51 pmSteve says:
But remember that any court order from the district court only binds the defendant’s actions in regards to the plaintiffs. “A federal court may issue an injunction [only] if it has personal jurisdiction over the parties and subject matter jurisdiction over the claim; it may not attempt to determine the rights of persons not before the court.” (Zepeda v. INS, 9th Circuit)
Really? When someone challenges a law in federal court and the law is unconstitutional, it’s still a binding law as to everyone except that one individual? News to me.
Of course a law can be declared unconstitutional across the board. Zepeda is obviously distinguishable.
August 16, 2010, 1:52 pmChris Travers says:
It seems to me that same-sex marriage doesn’t provide equal protection. I’ve already given one example of why there might be rational policy reasons to keep same-sex unions legally separate. I just don’t think that Prop 8 meets any rational basis by itself.
I actually think we will get a dogs breakfast of an opinion with the lineup as follows:
1) Scalia/Thomas, dissenting, noting that SSM bans are per se Constitutional and it is not the role of the court to second guess them.
2) Kennedy, dissenting, noting that rational basis review is very deferential and easily met.
3) Ginsburg, concurring in judgement only stating that more than rational basis needs to be met.
4) Roberts/Alito concurring in judgement only, throwing out the appeal for lack of standing
5) Opinion of the court by Breyer/Kagan/Sotomayor stating that in this case, rational basis is not met under the tests discussed in Romer v. Evans and USDA v. Moreno.
Then the rest of us will be left scratching our heads and saying “What does this mean?”
August 16, 2010, 1:52 pmgrendel says:
Just because there is no recourse in the courts does not mean there is no recourse. This very well might be a political question. If the people are unhappy with the way the executive is or is not upholding the laws, they always have the option of voting the bums out.
August 16, 2010, 1:58 pmruuffles says:
A thought I had earlier but still applicable: Mayor Newsom: “Good enough for me!” and issues licenses.
August 16, 2010, 2:02 pmAnderson says:
Really? When someone challenges a law in federal court and the law is unconstitutional, it’s still a binding law as to everyone except that one individual? News to me.
This was my thought. Was Virginia free to deny marriage licenses to every interracial couple who applied, *except* for the Lovings?
August 16, 2010, 2:02 pmbadlaw says:
As I read through this thread, I wanted to say I really liked this response. Mostly for the way it is written.
August 16, 2010, 2:23 pmGuy says:
My question was assuming the premise that Protect Marriage had no standing to intervene, that’s why I said “assuming it was error”. I was asking why there would be any need for vacatur if the trial was granted in error, because it seems like an unnecessary trial is harmless error covered by Rule 61 of the federal rules of civil procedure, which reads:
August 16, 2010, 2:26 pmruuffles says:
Should have kept reading. You would have loved the rebuttals.
August 16, 2010, 2:29 pmbadlaw says:
I totally agree.
August 16, 2010, 2:31 pmSteve says:
I think you are helping to confuse the issue by using the phrase “standing to intervene.” I know what you mean, but you don’t need Article III standing to intervene. You only need to satisfy the requirements of Rule 24.
August 16, 2010, 2:48 pmShelbyC says:
Well, Loving is a little different b/c it was a criminal case, but there both RJ and Stare Decisis apply. That wouldn’t be true in a Prop 8 case with different parties, say a civil or divorce proceeding.
August 16, 2010, 3:11 pmMark Field says:
Assuming this is true, it only solves half the problem. I thought your original comment was directed at executive officers who simply fail to enforce a law. That happens pretty regularly, and there’s no real remedy for it.
August 16, 2010, 3:31 pmChris Travers says:
Sorry if I was unclear. I meant those who fail to defend the law in court. Enforcement is, after all, subject to scarce resource allocation and the like.
August 16, 2010, 3:57 pmJoe Kowalski says:
Does anyone know the history of Romer v. Evans as it wound its way to the courts? I recall Gov. Romer was opposed to Co. Amendment 2, and there was an early injunction to keep the law from being applied, so did Romer choose to continue the appeals process to defend the amendment? Or was there a pro-Amendment 2 (Republican?) AG in office at the time who continued the case regardless of the Governor’s wishes?
August 16, 2010, 4:56 pmJohn Herbison says:
Something I am not clear on. Has any named party-Defendant filed a notice of appeal from the August 4 decision? I understand that Imperial County has filed a notice of appeal, but the appeal there would be from the ruling whereby the trial judge denied that count’s motion to intervene before the trial court. What if no named party-Defendant files a notice of appeal?
The Defendant-Intervenors who defended the constitutional amendment are not bound by the injunction. If I recall correctly from reading these D-Is’ application for a stay pending appeal, they do not address their separate standing to appeal, but appear to assert vicarious or derivative interests arising from Imperial County’s notice of appeal.
Just a point of curiosity. The injunction was issued by the U.S. District Court for the Northern District of California. Imperial County lies adjacent to the Mexican border, and is presumably outside the Norther District. Does that matter?
August 16, 2010, 5:21 pmPersonFromPorlock says:
You know, maybe we just need to declare that in a government of laws, not men, a law can be tested against the Constitution without reference to individuals or their ‘standing’.
August 16, 2010, 5:34 pmGuy says:
So… advisory opinions ahoy? You realize that standing is a self-imposed check on unrestrained judicial power, right?
August 16, 2010, 5:39 pmGray Peterson says:
People keep ignoring it because they think it’s unfair for the Proposition 8 Proponents have had their standing questioned, and we have this obsession with “Fair Fights”.
This is legal war.
August 16, 2010, 5:40 pmChris Travers says:
In another thread I commented about the tendency of people involved in an ideological war to engage in subconscious tactics aimed at portraying the other side as fragmented and more easily overcome. This is the same thing. “Of course we’re going to win.” And of course we hear that from both sides. Any way of rationalizing that will be done, because it’s a ritual aimed at shoring up support from one’s own group and fragmenting the other group. A lot of bad arguments get made on both sides in pursuit of their goals of war.
You’ve also just contradicted yourself by stating it’s legal war and you want a fair fight. All’s fair in love and war, as we say, and there’s no such thing as a fair fight in a war.
I’ve decided not to be a footsoldier in that war. I think we are going to see Perry affirmed or vacated on a narrow basis, and one that does not provide the total victory both sides are looking for.
August 16, 2010, 6:46 pmMichael Ejercito says:
He should at least appoint outside counsel to stand in if no one in his department can do the job.
So John Bouvier, author of A Law Dictionary Adapted to the Constitution and Laws of the United States (1868), was a hater?
Whom did he hate? Polygamists?
That is what the Ninth Circuit implied in Zepeda. An injunction can only be enforced against the parties in the litigation, towards other parties in the litigation. It can not address outside parties. It did not in any way limit the precedential value of court rulings.
The binding force of a ruling that a law is unconstitutional comes from the binding effect of an appellate court ruling on lower courts. Thus, while the actual court order in Term Limits Inc. v. Thornton only applies to the parties in the original litigation, the ruling binds lower courts (in this case, all courts) to use the Supreme Court’s interpretation of Article 1 as it applies to term limits of U.S. senators and representatives. Thus, if a state government or the federal government were to impose term limits on U.S. senators and representatives, and the affected persons file suit for an injunction, the court would be bound by the precedent to grant summary judgment in favor of the plaintiffs.
There is the difference between the court orderand the precedential value of the court ruling.
The order in Loving only addressed the granting of a marriage license to the Loving and striking down the criminal conviction. The state of Virginia would not have been in contempt had they prosecuted another interracial couple for marrying.
But if they did so, the defendants would move to dismiss the indictment, and the court would summarily grant the motion to dismiss and perhaps even award attorney’s fees, due to the fact that the Loving precedent binds the court.
Res judicata would not have applied to Virginia prosecuting others for violating the ban on interracial marriage; stare decisis would have done so.
It depends on if Imperial County would be bound by the injunction.
Of course, if being outside the district prevents Imperial County from intervening, due to the fact that it would not be bound by the injunction, then the ruling does not affect Imperial County. Indeed, Imperial County would be able to continue to recognize Proposition 8 (and indeed, they would be bound to do so, as no court under which they are subject ruled Proposition 8 unconstitutional, and the only applicable precedent to courts which could have jurisdiction over Imperial County would be Baker v. Nelson and Adams v. Howerton.)
August 16, 2010, 7:18 pmGuy says:
Why not?
August 16, 2010, 8:30 pmMichael Ejercito says:
From Legal Definitions
In Loving v. Virginia and Term Limits Inc. v. Thornton, res judicata means that the judgments in those cases are binding upon the parties only. Res judicata does not apply to similar cases where the parties are different, such as prosecuting another person for violating the ban on interracial marriage, or a suit from another person demanding placement on the ballot for a U.S. House race.
But stare decisis does apply to similar court cases, and the Loving and Term Limits Inc. rulings bind how courts interpret the 14th Amendment and Article 1, respectively.
August 16, 2010, 8:46 pmGuy says:
Right, I was thinking collateral estoppel, should be more careful.
August 16, 2010, 9:31 pmORID says:
I stand by my comment that apart from the 14th amendment claims I don’t think the plaintiffs have a claim against the state. Can a 17 year old now sue to have voting rights since there is no “rational basis” for restricting the franchise to 17? Can a 13 year old sue for a driver’s license (if he was the same physical, emotional state as the average 17 year old?). When they get denied can they claim emotional harm?
August 16, 2010, 9:32 pmGuy says:
What claims did they bring aside from the 14th Amendment/1983 claims?
August 16, 2010, 10:00 pmGuy says:
They can sue, but they would have the cases dismissed for failure to state a claim, since the laws in question both survive the rational basis test.
August 16, 2010, 10:07 pmORID says:
Guy,
I guess my reference was to the fact that the judge found emotional and economic harm as well as legal harm. Maybe it was not proper for the judge to rule on a claim that wasn’t brought in front of him? Wouldn’t the 1983 damages claim also be based on more than simply legal harm?
How would it be a “rational basis” to say that a 17 year old and 364 days cannot vote, yet a 18 year old can? Maybe I don’t understand the “rational basis test”. As I posted somewhere on this site before, it would clearly be irrational if Prop 8 said “People born on Thursday can’t get married.” Isn’t that what “rational basis test” means?
August 17, 2010, 12:48 amLior says:
@ShelbyC:
Here’s my (non-specialist) understanding:
1. Plaintiffs who wish to marry were being injured by the State of California, when it enforced Prop 8 and denied them marriage licenses.
2. But, the “State” is an abstraction; it does not hold opinions and does not appear in court as such. Rather, certain natural persons are charged with forming legal opinions for the state and representing it in court.
3. Thus, when a state is sued the court has to determine which people may appear before it to represent the state. The question is at hand is whether “Yes on 8″ may represent the State of CA when the Attorney General and Governor decline to so.
4. Since the state is organized via its laws, it is natural to assume that these laws explain who may represent the state in such situations. As I understand it, this is what the Supreme Court has ruled (quite sensibly). In other words, the question of “who may represent the state” is a question of state law. Any other rule would have the Federal Government decided for the state which people may represent it.
August 17, 2010, 2:01 amL says:
No. “Rational basis test” means you look to see if the law is rationally related to a legitimate governmental interest. It’s two inquiries. First, what is the governmental interest and is it legitimate? Second, is the proposed law rationally related to it?
If the state wants to restrict the franchise to those with the knowledge, wisdom, and experience that comes with age, I think most would call that a legitimate interest. Restricting the franchise to those above a certain age may not be the perfect way to pursue that interest, but is it rationally related to that interest? It clearly is.
(I’m not saying rational basis is the standard to review age-based restrictions on voting — I’m just saying this is how you would apply it if you were.)
“People born on Thursday can’t get married” is not rationally related to any legitimate governmental interest — or any governmental interest at all.
August 17, 2010, 9:55 amMichael Ejercito says:
Why did not collateral estoppel result in a dismissal of the California case? This issue had already been litigated before the Supreme Court, albeit by dismissal for want of a substantial federal question.
And anyway, could not a summary judgment on the basis of collateral estoppel be appealed? This would seem to be a way to get this issue before the Supreme Court if the appeals are rejected for lack of standing. For example, if Arkansas were to enforce Section 3, Amendment 73 against a candidate for Congress not among the parties in Term Limits Inc. v. Thornton, the lower court could rule on summary judgment against the state using the doctrine of collateral estoppel, but I do not see how this would stop the state from appealing. (In practice, the appellate court would dismiss the appeal on the basis of Term Limits Inc., and the Supreme Court will not grant cert.)
And even if the ruling stands without being appealed, what happens if the Ninth Circuit or Supreme Court rules in a manner that undermines the legal basis for the lower court ruling? Smelt v. United States could reach the Ninth Circuit, and Bishop v. United States could reach the Supreme Court.
From Building Industry Assn. v. City of Camarillo, (1986) 41 Cal.3d 810
August 17, 2010, 12:00 pmjoe silva says:
I’m not a lawyer and also not inclined to follow the nuanced legal arguments. Simply, I see a majority favoring a proposition, a judge declaring it unconstitutional, and the same judge saying that the people favoring the proposition have no standing to appeal his decision. I don’t have a stake in the outcome but the process seems monarchical.
August 17, 2010, 4:22 pmMichael Ejercito says:
Indeed.
And refusing the appeal could cause problems further down the road. I have mentioned other cases on the constitutionality of marriage amendments and DOMA. What happens if the Ninth Circuit or Supreme Court issues a ruling in those cases that undermines the legal foundation of Judge Walker’s ruling?
August 17, 2010, 4:53 pm