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Just minutes ago, the California Supreme Court handed down its answer to the 9th Circuit's question in Perry v. Schwarzenegger as to whether the Proposition 8 Defendant-Intervenors have standing under California state law to appeal an adverse decision in state court when state officials refuse to do so.  

The official certified question to the California Supreme Court from the 9th Circuit was: "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.”  

The California Supreme Court has answered "yes." (the case can be found here)

Under California Law, Proposition 8 Defendant-Intervenors would have standing under California state law to appeal Judge Vaughn Walker's August 4, 2010 decision holding Proposition 8 unconstitutional.  

This question came about because during the initial trial, the Governor, Arnold Schwarzenegger (R-CA) and Attorney General, Jerry Brown (D-CA) refused to defend Proposition 8 in court.   After the decision, both refused to appeal the decision.  Their decision not to defend Proposition 8 in court allowed the substitution of Defendant-Intervenors, who in this case were the official proponents of Proposition 8.  Because our current Governor, Jerry Brown (D-CA), and our current Attorney General, Kamala Harris (D-CA), have refused to appeal, those challenging Proposition 8 have argued that the Defendant-Intervenors do not have standing to properly appeal.  

Although this ruling will get a lot of fanfare, it's important to keep it in perspective.  This opinion doesn't give standing to the Prop 8 Defendant-Intervenors standing to appeal.  This opinion will merely go back to the 9th Circuit and they will take it into account.  This opinion also does not automatically mean that the 9th Circuit will now hold that the Defendant-Intervenors have standing to appeal in federal court.  Standing in federal courts is governed by the constraints of Article III of the Federal Constitution and not by state law.  Not even Congress can create standing in federal court without that standing comporting with the requirements of Article III.  

So then why did the 9th Circuit certify this question to the California Supreme Court?  Is this just a big circus and total waste of time?  Well, maybe (they don't call it the "9th Circus" for nothing).  But as the 9th Circuit pointed out in its certified question that state law can sometimes create an interest in federal law that allows for standing within Article III.  That question must still be decided by the 9th Circuit.  

More analysis to follow later......  

Originally posted to SoCalLiberal on Thu Nov 17, 2011 at 10:08 AM PST.

Also republished by LGBT Kos Community and California politics.

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