Judges Stephen Reinhardt, Michael Hawkins and Randy Smith did their work fast deciding the Prop 8 case, Perry v Schwarzenegger, with the oral arguments being on December 6th. The order today denies the motion to intervene by the deputy clerk of Imperial County, seen as a necessary step to giving the appeal a governmental appellant. As to the Prop 8 supports standing to appeal, the appeals court is certifying a question to the Supreme Court of California.
Basically the "stuff" issued today is on balance good for the Prop 8 opponents, i.e. the marriage equality side. The County of Imperial cannot join the suit as an intervenor. That leaves the appeal without a governmental entity as an appellant. The U.S. Supreme Court has hinted that non governmental entities do not have standing in suits over such ballot measures, but the 9th Circuit panel wants to hear the California Supreme Court's opinion on whether under state law in California such non-governmental entities do have standing in California courts. This is likely to weigh very heavily upon whether the 9th Circuit will allow the Protect Marriage Prop 8 proponents hand standing in the case. If they do have standing, then we will proceed to a decision upon the merits, ie. whether or not Prop 8 is in fact constitutional.
Here is a run down of the opinions and memos issues today as I've summarized so far.
Order certifying question to California Supreme Court
The 9th Circuit Cout of Appeals has certified the following question to the California Supreme Court, a question the Court sees as necessary before rendering final judgment on the merits of the prop 8 case before it:
Whether under Article II, Section 8 of the California Constitution, or
otherwise under California law, the official proponents of an initiative
measure possess either a particularized interest in the initiative’s validity or
the authority to assert the State’s interest in the initiative’s validity, which
would enable them to defend the constitutionality of the initiative upon its
adoption or appeal a judgment invalidating the initiative, when the public
officials charged with that duty refuse to do so.
It is necessary for the prop 8 proponents to have standing in order to appeal the ruling of Judge Walker that declared Prop 8 unconstitutional. Without standing to appeal, Judge Walker's decision will be un-appealable and therefore final as all state defendants in the case have indicated they will not appeal including Governor Brown and AG Harris. The panel states in their order
This court is obligated to ensure that it has jurisdiction over this appeal
before proceeding to the important constitutional questions it presents, and we
must dismiss the appeal if we lack jurisdiction. The certified question therefore is
dispositive of our very ability to hear this case.
[...]
Proponents contend that they possess such an “interest that is created and
secured by California law” – an interest in the validity of the voter-approved
initiative they sponsored, which interest is “inva[ded]” by the judgment declaring
Proposition 8 unconstitutional. Proponents’ Br. 22. They argue that their interest
as the official proponents of the initiative is different in kind than that of the
citizens of California generally. If Proponents do possess such a particularized
interest, they would have standing to appeal the judgment below.
[...]
Proponents allege they are able to represent the State’s interest because they “have ‘authority under
state law’ to defend the constitutionality of an initiative they have successfully
sponsored . . . acting ‘as agents of the people’ of California ‘in lieu of public
officials’ who refuse to do so.” Id. (quoting Karcher v. May, 484 U.S. 72, 82
(1987) and Arizonans, 520 U.S. at 65). If California does grant the official
proponents of an initiative the authority to represent the State’s interest in
defending a voter-approved initiative when public officials have declined to do so
or to appeal a judgment invalidating the initiative, then Proponents would also
have standing to appeal on behalf of the State.
The Court says it does not want to rely solely upon the statements in a case decided by the U.S. Supreme Court, Arizonans for Official English v. Arizona, 520 U.S. 43 (1997), which casts serious doubt upon the standing of the Prop 8 proponents. They are allowing the California Supreme Court to decide whether in their opinion under California law the proponents of ballot initiative measures have standing to appeal a decision without the assistance of a governmental entity.
Standing of Imperial County
As to the ability of Imperial County to intervene in the suit giving it a governmental appellant, the Court said no.
Specifically, we require that an applicant for intervention make four
showings to qualify under this Rule: “(1) it has a ‘significant protectable interest’
relating to the property or transaction that is the subject of the action; (2) the
disposition of the action may, as a practical matter, impair or impede the
applicant’s ability to protect its interest; (3) the application is timely; and (4) the
existing parties may not adequately represent the applicant’s interest.” Donnelly v.
Glickman, 159 F.3d 405, 409 (9th Cir. 1998). An applicant’s “[f]ailure to satisfy
any one of the requirements is fatal to the application, and we need not reach the
remaining elements if one of the elements is not satisfied.” Perry v. Proposition 8
Official Proponents, 587 F.3d 947, 950 (9th Cir. 2009).
The lower court had found Imperial County is not eligible to intervene in the case and the panel today ruled that the lower court did not abuse the discretion it has in making that determination. The county failed to make certain arguments before the lower court that may have granted it standing in the case and thereby waived their ability to make them on appeal to intervene. Thus the County does not have standing to seek intervention in the appeal.
the Reinhardt concurrence
Judge Reinhardt's concurrence is a very interesting and important piece upon access to the courts. Reinhardt is basically saying we are overemphasizing the issue of standing in too many cases and how that is closing access of many people to court action that may be necessary to safeguard civil rights. It is an issue that cuts both directions for both sides. I tend to agree and personally think Protect Marriage should be given standing rather than letting the case end on a "technicality." In such matters, proceeding to the merits is better, in my opinion as the ultimate question will eventually come before the court anyway. Like my favorite Justice of all time, William Brennan, I firmly believe that the courts ought to be open to hear the pleas of the people who seek their assistance, which in this appeal ironically means the bigots that put Prop 8 on the ballot. </soap box>
Memo Re Motion to Disqualify
Reinhardt dismisses the attempts to get him to recuse himself from the case on the basis of his wife's open advocacy of marriage equality.
My wife has no tangible interest in this case’s outcome, and I do not believe that my impartiality in this case can reasonably be questioned on the basis of either her public statements or the ACLU/SC’s involvement in any judicial proceedings. For these reasons, I deny Proponents’ motion.
Memo Re Additional Counsel
The Court is listing off the attorneys (and their contact info) tied to the case as per a rule of the California Supreme Court.
Links to the Court documents issued today:
Order Certifying a Question to the Supreme Court of California (Proponents Appeal)
Opinion affirming in part/dismissing in part (Imperial County's appeal)
Concurrence by Judge Reinhardt
Memorandum re: Motion to Disqualify
Memorandum re: Additional Counsel