Althouse: In the Prop 8 case, the 9th Circuit panel has decided to ask the California Supreme Court to answer a key question of state law.

January 4, 2011

In the Prop 8 case, the 9th Circuit panel has decided to ask the California Supreme Court to answer a key question of state law.

The state law question is whether the official proponents Prop 8 have "authority to assert the State’s interest in the initiative’s validity... when the public officials charged with that duty refuse to do so."

This is the threshold standing question. Standing is a matter of federal constitutional law, but the 9th Circuit has apparently perceived an element of the issue to depend on state law, and it is seeking an authoritative interpretation of state law from the state's highest court.

24 comments:

traditionalguy said...: Sounds as if Prop 8 is skating on thin ice.; 1/4/11, 4:05 PM
former law student said...: The whole point of the initiative, the referendum, and the recall, was for citizens to take back the government from elected officials controlled by special interests. If those same controlled officials can simply ignore the will of the citizenry, then these tools of democracy are useless.

What if Grey Davis had simply ignored his recall? What would have happened.; 1/4/11, 4:09 PM
Anonymous said...: A far better question is if California's ballot initiative methods are lawful, and an initiative is passed thereby, how is it that the state officials can rightfully refuse to assert what the citizens have lawfully (unless later struck down) done.; 1/4/11, 4:09 PM
Calypso Facto said...: I agree, Quayle. The military phrase "dereliction of duty" comes to mind.; 1/4/11, 4:15 PM
Pastafarian said...: I've never understood the purpose behind the concept of "standing". Of course, as an idiot, there are many things that I don't understand. "Toilet paper", for example -- what's up with that? I mean, what's the use for this stuff? Who writes letters while dropping a deuce?

But seriously: Maybe one of you lawerly commenters can explain it to me. Hypothetical: A new law allows hunting of Eskimos. I want to challenge this law, because I feel sorry for the poor snow-bunnies.

But I guess I can't, because I don't have standing -- I'm not an Eskimo myself, so I don't have anything to lose personally from this law, or to gain if it's declared unconstitutional.

I could argue that I'd lose the opportunity to see Eskimos in National Geographic; but I guess this would be called too tenuous of a connection to be valid.

Why don't they let anyone bring any suit, as long as it's not frivolous, and judge it on its merits? Why does it matter whether the plaintiff is harmed, as long as someone is harmed?; 1/4/11, 4:18 PM
A.Worthing said...: i am all over the issue like a monkey ninja over at patterico's: http://patterico.com/

namely here on reinhardt's refusal to recuse himself: http://patterico.com/2011/01/04/reinhardt%e2%80%99s-risable-memorandum-explaining-why-he-refused-to-disqualify-himself/

and here on the order itself: http://patterico.com/2011/01/04/breaking-proposition-8-question-certified-to-ca-supreme-court/

my take is that reinhardt is full of crud on why he thinks he has the right to rule on this. and as for the order, it amounts to "we really, really, really want to hear this so please rule favorably on standing."; 1/4/11, 4:19 PM
AST said...: wv: penal

I would enunciate a "Rolling Stones" rule: You can't always get what you want, and it doesn't mean you've been denied any rights.

We've gone nuts over claims of rights that no one has ever imagined before.; 1/4/11, 4:24 PM
Richard Dolan said...: This order is remarkably sensible, in a case that has been anything but. The author of the article to which Ann links speculates whether, if the 9th Circuit concludes that appellants lack standing, the case will be remanded with instructions to dismiss it for lack of a live case or controversy. Normally, if there was a live controversy at the district court level (because plaintiffs had sued the defendants empowered and required by state law to carry out the terms of Prop 8), the fact that those defendants decided not to appeal would not support such a remand. No one is required to appeal an adverse judgment; whether a state officer fails in his duty under state law by refusing to take an appeal doesn't change the fact that there was a live case before the district court sufficient to support its exercise of jurisdiction.

But the gamesmanship may be so egregious that the court may, in its discretion, direct dismissal if the appellants lack standing. That happens when, for example, a case becomes moot on appeal by reason of a settlement, or abates by reason of the death of the defendant. Nothing like that happens when the proper defendants decline to appeal, and others lacking standing try to take their place. I'm not sure what principle the court would invoke to do remand with instructions to dismiss, but, hey, it's the 9th Circuit. They do crazy stuff all the time. Possible, but not the most likely outcome.; 1/4/11, 4:25 PM
sunsong said...: Sounds to me like they are being careful - so that their own (9th Circuit) ruling will be less likely to be struck down.

The panel grilled Boies about this - whether elected officials could essentially *veto* a proposition by not appealing it. It makes sense to me to see what the California Supreme Court has to say about it.; 1/4/11, 4:31 PM
Anonymous said...: "I've never understood the purpose behind the concept of "standing""

One of the reasons for standing is to be sure that the party most affected by the law is the party in court.

A partially affected or an unaffected party in court cannot be relied on to make the strongest and most vigorous arguments for a position, which arguments are key to our adversarial system.

We believe that bad legal arguments in court make for bad rulings (i.e. bad judge-made law), therefore we want the most interested parties before the judges, and we presume (hope) that each parties' direct interests will result in the best contest of arguments.; 1/4/11, 4:32 PM
former law student said...: To say that only state elected officials can have standing frustrates the purpose of the initiative and renders it a nullity. No such requirement can be read into the state constitution.; 1/4/11, 4:34 PM
Anonymous said...: The way this case has been handled from the start has eroded much of my respect for the federal courts.; 1/4/11, 5:00 PM
Revenant said...: I would certainly hope that the proponents have standing, even though I think Prop 8 was a disgrace.

After all, if state officials are the only ones with standing, what is there to stop them from simply ignoring any referendums they disagreed with? Referendums are supposed to represent the expressed will of the people, not of the government; the people should have standing to see them enforced.; 1/4/11, 5:14 PM
Bender said...: "authority to assert the State’s interest in the initiative’s validity"

That, of course, is a gross mischaracterization of the issue. It is not the interest of the State, i.e. the government, much less government officials, that is at issue, but the interest of the People, wholly separate and apart from the machinery of government, as is explicit in the whole initiative and referendum processes.

Ballot proposals are actions by the People themselves, and are only resorted to when the government itself fails or outright refuses to do the will of the People. Government cannot use that same refusal as grounds for further refusing to proceed. If that were the case, then no initiative is ever safe from the government merely refusing to enforce it.

Before we ever get to the issue of the nonsensical concept of "same-sex marriage," there is first the paramount issue of the right of the people to govern themselves.; 1/4/11, 5:32 PM
Methadras said...: If the proponents are persona non grata then what is the voice of the citizenry that voted yes for the initiative to begin with. It's staggering to me that the amount of money used for and against this initiative can be evaporated by one lawsuit that one judge can overturn, and when sent to a higher authority, the very people sent to defend it are basically no-shows. So now what? Well, sounds like Prop. 8 becomes a no-show too. It's like small claims, if you don't show, judgment goes to the one who does. If no one shows, then nothing ever happened.; 1/4/11, 5:33 PM
Methadras said...: former law student said...

To say that only state elected officials can have standing frustrates the purpose of the initiative and renders it a nullity. No such requirement can be read into the state constitution.

Well, then the real question is, is who can have standing in such a scenario. If the elected official won't or refuses to have standing then can someone or someplace be chosen to do it in their stead?; 1/4/11, 5:34 PM
Palladian said...: "Before we ever get to the issue of the nonsensical concept of "same-sex marriage,"

Isn't the whole idea of the government licensing people's romances and sanctioning human breeding pairs nonsensical? What legitimate business is it of government? Why do social conservatives and so-called liberal progressives feel the need to involve the State in regulating their particular "moral" pet causes, whether it be regulating who can participate in holy (holey) matrimony or mandating the use of nasty compact fluorescent light bulbs? Is it because your pet moral causes would founder without the authoritarian power of the State to force compliance?

The energy wasted on advocating "same sex marriage" would have been better expended on an effort to get the government out of people's romantic and/or religious rites and ceremonies altogether.; 1/4/11, 5:50 PM
AmPowerBlog said...: Thanks Professor.

Saw this first at William Jacobson's and he didn't break it down into non-lawyer's terminology. And I'm normally up on this stuff, LOL!; 1/4/11, 6:03 PM
dbp said...: Palladian:

"Isn't the whole idea of the government licensing people's romances and sanctioning human breeding pairs nonsensical? What legitimate business is it of government"

Society has an interest in ensuring that children are raised in a stable environment. Government furthers this interest by establishing (or really, maintaining, since marriage predates the nation-state)a legal framework for such stable environments.; 1/4/11, 6:40 PM
Roy Lofquist said...: In legal proceedings logic is not a primary consideration. It's not even secondary. The purpose of law is to provide stability. People should be able to predict the effects of their actions. It's termed Stare Decisis - that which has been decided.

Per this doctrine "common law" or "Black Letter Law" has traditionally prevailed. To break precedent with commonly accepted societal norms, as codified, is judicially radical. Prop 8 was a reaction, by the people, to a perceived radical action by the California Supreme Court.

I don't believe that the Federal courts will tolerate these shenanigans. I base this on the actions of the USSC in the case of the 2000 Presidential election. In that action the USSC issued a similar request to the FSC which it ignored by proceeding to issue another disputed ruling before answering. The language was lawyerly but I sense that the USSC sent a clear message about overdogs and underdogs.; 1/4/11, 7:41 PM
sonicfrog said...: Society has an interest in ensuring that children are raised in a stable environment. Government furthers this interest by establishing (or really, maintaining, since marriage predates the nation-state)a legal framework for such stable environments.

Then outlaw having children in unstable environments, which, of course, means that all children who are victims of divorce should be taken away from their parents, since so many divorces result in unstable environments.; 1/5/11, 12:44 AM
Revenant said...: Then outlaw having children in unstable environments, which, of course, means that all children who are victims of divorce should be taken away from their parents, since so many divorces result in unstable environments.

"Of course?"

Your argument would make sense if and only if taking children from their divorcing parents and giving them to other people was somehow more "stable" than leaving them in the custody of one or both of their parents. I'm sure you aren't dumb enough to believe THAT is true, so why would you say "of course"?; 1/5/11, 3:14 AM
Revenant said...: The energy wasted on advocating "same sex marriage" would have been better expended on an effort to get the government out of people's romantic and/or religious rites and ceremonies altogether.

Two points:

(1): Having your marriage officially recognized by the state gives you rights and privileges above and beyond what other people get.

(2): The overwhelming majority of Americans are either currently married or expect to be in the future.

In short, you are asking a large majority of voters to give up their government benefits just so they don't have to listen to people argue about same-sex marriage. Good luck with that.; 1/5/11, 3:22 AM
Methadras said...: Roy Lofquist said...

The purpose of law is to provide stability.

That's only partially correct. The real purpose of law is to protect money. Through that protection, you provide stability.; 1/5/11, 3:29 AM