Prop 8 Heads Back to Cal. Supremes

BY ARTHUR S. LEONARD | The 9th US Circuit Court panel considering the appeal of last year’s ruling by now-retired District Judge Vaughn Walker that struck down California Proposition 8 on the grounds that it violates the US Constitution’s 14th Amendment issued two rulings on January 4 regarding critical issues of standing.

In one ruling, the court referred a question to the California Supreme Court as to whether the Official Proponents of the successful 2008 voter initiative have the particularized interest necessary to give them standing to appeal Walker’s ruling or, alternatively, state law authority to represent California in defending a constitutional provision they proposed and voters accepted.

In its other ruling, the panel concluded that neither Imperial County, its Board of Supervisors, nor its deputy clerk have standing to appeal. That ruling affirmed Walker’s decision at the trial stage to deny Imperial’s motion to intervene.

Ninth Circuit panel punts on question of Proponents’ standing to appeal

Debates about standing likely seem arcane to most people interested in the outcome of this vital litigation, but in fact the issues involved are crucial. The panel noted that if the Proponents do not have standing, the effort to appeal Walker’s ruling is at an end. None of the named public officials in the case — the governor, attorney general, and state officials charged with administering the marriage laws — defended Prop 8 before Walker, and none has appealed his ruling.

Both January 4 rulings were issued on behalf of the entire panel and not attributed to any single member.

In a separate opinion, Judge Stephen Reinhardt, one of the three panel members, explained why he had denied a motion by the appellants that he recuse himself from the case due to his wife’s role as the executive director of the American Civil Liberties Union of Southern California.

The most pressing immediately before the appeals panel is whether the Official Proponents, who represent the ProtectMarriage.Com—Yes on 8 campaign that prevailed in the 2008 ballot fight, have standing to mount their appeal. In a 1997 pronouncement in a lawsuit challenging an Arizona constitutional amendment requiring that all state business be conducted in English — passed by voters over the opposition of leading state officials, who then refused to defend it in the courts — the US Supreme Court observed that state ballot initiative proponents do not enjoy such standing in the absence of authorization under state law or what is known as a particularized interest as individuals that would be affected by the outcome of a lawsuit.

The 9th Circuit panel pointed out the thorny issue raised by this legal question: If an initiative is passed over the opposition of state officials and then challenged successfully in federal court, those officials would have an effective veto over the ballot question’s passage by refusing to appeal — unless its proponents are allowed to step in.

Charles Cooper, arguing on behalf of the Proponents before the panel last month, made that argument forcefully. He also argued that the California Supreme Court had earlier answered the question by allowing the Proponents to appear and defend Prop 8 in the state litigation filed immediately upon its passage, questioning whether it had been properly enacted under the California Constitution. In that litigation as well, the governor and attorney general declined to defend the initiative. In fact, Attorney General Jerry Brown, who is now governor, actually stepped up to question its constitutionality.

Even as it focused on this concern, however, the appeals panel apparently rejected Cooper’s argument that California law already answers the standing question.

“In the absence of controlling authority from the highest court of California on these important questions of an initiative proponent’s rights and interests in the particular circumstances before us,” the panel wrote, “we believe we are compelled to seek such an authoritative statement of California law.”

The panel did seem sympathetic to the position the Proponents articulated, writing, “Although the Governor has chosen not to 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, if no one else — including the initiative’s proponents — is qualified to do so.”

In the opinion concerning Imperial County, the court noted that Judge Walker denied the motion to intervene on the grounds that neither the County nor its Board of Supervisors “had any interest in the administration of the state marriage laws,” and that the deputy clerk and other local officials involved in administering the state marriage law function under the direction of the State Registrar and “have no discretion to disregard a legal directive from the existing state defendants.” None, in other words, has “a significant protectable interest of its own to justify intervention.”

The 9th Circuit panel first addressed the standing of the deputy clerk, Isabel Vargas, and rejected standing on a narrower ground than Walker applied. The panel, simply noting that Vargas was an appointee of the county clerk, wrote, “whatever ‘significant protectable interest’ may exist in those duties and powers is an interest belonging to the principal, not the deputy.” The panel left open the possibility that a different analysis would be undertaken if the county clerk had stepped forward to appeal the trial court ruling.

The panel was, however, dismissive of the claims to standing by the county and its Board of Supervisors, observing that marriage is a state law question, not an issue of local law, and that these local government intervenors failed to present evidence they had any tangible stake in the outcome of the case.

Although the federal appeals panel referred the question of the Proponents’ standing to the California Supreme Court, that bench is under no obligation to accept it or to respond to it in the formulation it was presented. The state high court could also ask both parties to prepare briefs on the standing issue, something that could stretch out for months.

One would hope that with constitutional rights at stake, the California court would move expeditiously, whatever direction it takes.

As a longtime legal observer and analyst, I have no feel for how this issue should be answered as a matter of California law, but, as a purely political matter, I have sympathy for the argument that somebody needs to have standing to appeal. A majority of the voters approved Proposition 8, and it appears unseemly that the votes of millions should be cast aside by a single federal district judge without any possibility of appellate review. A basic proposition of American jurisprudence is that a losing party at trial has a right to at least one appeal of their case.

It is altogether possible that the California Supreme Court will take the position that in default of an appeal by the named defendants, Proponents should be allowed to appeal as representative of the voters who approved their initiative.

Regarding his decision not to recuse himself, Judge Reinhardt explained that the circuit’s administration automatically refrains from assigning him to panels in cases where the ACLU of Southern California is a party or representing a party. The ACLU filed no briefs in the appellate portion of this case, and merely signed on to an amicus brief at the trial level before Judge Walker. At the only meeting the group had with the plaintiffs, it, along with other leading LGBT rights organizations, urged them not to file the case. When the newly formed American Foundation for Equal Rights announced the litigation in 2009, most establishment gay groups felt it was not yet time to raise the marriage issue in the federal judiciary, as opposed to state courts around the county.

Reinhardt did not see the necessity to recuse from a case just because his wife heads an organization that has a public position on the issue at stake. The circuit’s conflict of interest rules speak in terms of an actual “interest” in a case, which is usually taken to mean a personal, tangible interest, not just an opinion, even if publicly expressed.

“My wife’s views, public or private, as to any issues that may come before this court, constitutional or otherwise, are of no consequence,” he wrote. “She is a strong, independent woman who has long fought for the principle, among others, that women should be evaluated on their own merits and not judged in any way by the deeds or position in life of their husbands (and vice versa). I share that view and, in my opinion, it reflects the status of the law generally, as well as the law of recusal, regardless of whether the spouse or the judge is the male or the female.”

Reinhardt pointed out that the ACLU of Southern California has taken positions on a host of issues that have come before the 9th Circuit; he has recused himself only where his wife’s group is a party or represents a party in the case.