In a pair of orders today, the United States Court of Appeals for the Ninth Circuit determined that Imperial County did not have standing to defend the constitutionality of California's Prop 8, and solicited the views of the California Supreme Court as to whether the people who put Prop 8 on the ballot could intervene to defend its constitutionality when the Governor and Attorney General refused to do so. In a third order, Judge Stephen Reinhardt explained why his wife's role as Executive Director of the ACLU of Southern California did not disqualify him from the case.
Because no party has been determined to have standing (yet), there is no ruling from the Ninth Circuit regarding Judge Walker's district court opinion finding Prop 8 to be unconstitutional. In order, then:
Imperial County: The Court determined that the Deputy Clerk of Imperial County lacked standing because her role was to do whatever the chief Clerk ordered, and since the chief Clerk didn't sue, she couldn't. The County itself lacks standing because other than stamping marriage licenses (the clerk's job), the County itself had no protectible interest here.
Prop 8 proponents: Because the panel could find no controlling California legal precedent on the topic, and given its importance, the Ninth Circuit has asked the California Supreme Court to answer this question:
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
"Standing" is the doctrine which says that not-just-anyone can sue to enforce rights; you have to have suffered some concrete injury (or be threatened by same) as a result of the government action being challenged. Ordinarily, since this Proposition constitutes an amendment to the California Constitution, the state itself would defend its constitutionality under the U.S. Constitution. But the Governor and Attorney General refused to do so here, and so the question is ... can anyone else defend Prop 8?
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. Proponents argue that such a harsh result is avoided if the balance of power provided in the California Constitution establishes that proponents of an initiative are authorized to defend that initiative, as agents of the People, in lieu of public officials who refuse to do so. Similarly, under California law, the proponents of an initiative may possess a particularized interest in defending the constitutionality of their initiative upon its enactment; the Constitution’s purpose in reserving the initiative power to the People would appear to be ill-served by allowing elected officials to nullify either proponents’ efforts to “propose statutes and amendments to the Constitution” or the People’s right “to adopt or reject” such propositions. Cal. Const. art. II, § 8(a). Rather than rely on our own understanding of this balance of power under the California Constitution, however, we certify the question so that the Court may provide an authoritative answer as to the rights, interests, and authority under California law of the official proponents of an initiative measure to defend its validity upon its enactment in the case of a challenge to its constitutionality, where the state officials charged with that duty refuse to execute it.
California's Rules of Court expressly allow for this certification process. As Calitics' Robert Cruickshank notes:
Basically, California's constitution and various CA Supreme Court decisions in the last few decades have indicated that the initiative power is a right inherent to the people of the state, and does not stem from the Legislature. It sets up the people as a kind of fourth branch of government. And therefore, if the Governor and the Attorney General refuse to defend a proposition in court, that could essentially nullify the fundamental rights of the voters. Since ballot initiatives stem from the people, presumably the people - in the form of the initiative proponents - DO have standing to defend Prop 8 in court and to appeal it to the 9th Circuit in order to preserve the people's initiative power.
But because such a ruling would have a significant impact on future legal battles over California ballot initiatives, the 9th Circuit is deferring to the CA Supremes. The CA Supremes could say "yes, the proponents do have standing" or "no, they proponents do not have standing," or they could simply not respond at all. The first and third options are more likely, and based on the CA Supremes' longstanding (and I believe flawed) unwillingness to interfere with ballot initiatives, the CA Supremes will probably conclude that the Prop 8 proponents do indeed have standing to appeal.
Judge Reinhardt issued a concurring opinion on this topic, and I don't know if you'll find it enlightening, patronizing or somewhere in between. He explains why standing matters, and notes that these issus were wholly avoidable in this case -- had Boies/Olson sued all the state's counties as opposed to just Los Angeles and Alameda or had the Governor or Attorney General defended Prop 8's constitutionality.
As for Judge Reinhardt's separate opinion explaining his refusal to disqualify himself from the case, well, here's some flavor:
The chief basis for the recusal motion appears to be my wife’s beliefs, as expressed in her public statements and actions, both individually and in her capacity as Executive Director of the American Civil Liberties Union of Southern California (ACLU/SC). She has held that position for 38 years, during 20 of which we have been married, although over one year ago she announced her retirement effective next month.
My wife’s views, public or private, as to any issues that may come before
this court, constitutional or otherwise, are of no consequence. 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....
When I joined this court in 1980 (well before my wife and I were married), the ethics rules promulgated by the Judicial Conference stated that judges should ensure that their wives not participate in politics. I wrote the ethics committee and suggested that this advice did not reflect the realities of modern marriage–that even if it were desirable for judges to control their wives, I did not know many judges who could actually do so (I further suggested that the Committee would do better to say “spouses” than “wives,” as by then we had as members of our court Judge Mary Schroeder, Judge Betty Fletcher, and Judge Dorothy Nelson). The committee thanked me for my letter and sometime later changed the rule. That time has passed, and rightly so.
I do not participate in any actions by this court when the organization of which my wife is the Executive Director makes any appearance or files any brief, amicus or otherwise, before this court. The clerk’s office was notified of this policy many years ago and it has been implemented in numerous cases. In fact, it is impossible to know how many times I have actually recused myself from such cases because the Clerk’s office automatically assigns cases covered by my policy to panels of which I am not a member rather than to a panel I am on, as a result of this directive.
There's no timeline for when the California Supreme Court might rule on the question certified. Imperial County can seek rehearing en banc from a larger panel of the Ninth Circuit, or has 90 days to petition the Supreme Court of the United States for certiorari.
See also craigkg's diary, which (a) got here first and (b) has some of the site's sharper legal minds kicking around some of the related issues.