More on Standing to Defend Prop. 8

There are quite a few interesting posts on the standing issues in Perry v. Schwarzenegger, including pieces by the following:

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.

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