Can the Proponents of Proposition 8 Appeal Judge Walker's Ruling?

There has been a bit of chatter on-line about whether Judge Walker's decision in Perry v. Schwarzenegger, 2010 Westlaw 3025614 (N.D.Cal., Aug. 4, 2010), finding Proposition 8 unconstitutional, can be appealed by the Proponents of Proposition 8, who are defendant-intervenors in the case, when the actual named defendants, Gov. Schwarzenegger, Attorney General Brown, and a handful of other state officials, have not signified their intention to appeal.   Indeed, one might even question Judge Walker's decision to allow the Proponents to intervene when the defendants signified that they were not going to defend Proposition 8 from the constitutional challenge.

In papers filed opposing the motion to stay the judgment, counsel for the plaintiffs raise this point, in a section titled "There Is a Significant Question As To Whether Proponents Even Have Standing to Invoke the Jurisdiction of the Court of Appeals."  This section of the paper relies on two U.S. Supreme Court opinions: Arizonans for Official English v. Arizona, 520 U.S. 43 (1997), and Diamond v. Charles, 476 U.S. 54 (1986). 

In Diamond, a doctor who was opposed to abortion sought to defend some Illinois anti-abortion measures that had been declared unconstitutional by a federal district court.  The state government decided not to appeal; not too surprising since the measures were enacted by the legislature over the governor's veto.  Dr. Diamond had been allowed by the trial court to intervene as a party defendant to defend the measure, when a bunch of doctors filed suit contesting its constitutionality.  His basis for intervening was his moral objection to abortions, his status as a pediatrician and as the parent of a minor daughter who might be able to get an abortion without his permission if the Illinois law was invalidated.  The Supreme Court held that Diamond did not have standing to bring the issue of the law's constitutionality to the Supreme Court.  The key sentences: "Diamond's status as an intervenor below, whether permissive or as of right, does not confer standing sufficient to keep the case alive in the absence of the State on this appeal.  Although intervenors are considered parties entitled, among other things, to seek review by this Court, an intervenor's right to continue a suit in the absence of the party on whose side intervention was permitted is contingent upon a showing by the intervenor that he fulfills the requirements of Article III."  The Court found that Diamond's interests as an individual doctor and parent did not meet the Article III test - he had no individualized injury as a result of the law being invalidated by the lower courts.

The Arizona case is a bit different.  Arizona's constitution was amended by ballot initiative to make English the official language of the state, requiring that all state business be conducted in English.  A Hispanic employee of the state sued to have the amendment declared  unconstitutional, and won her case.  The state decided not to appeal.  At that point, the proponents of the amendment sought to intervene to appeal the ruling.  The 9th Circuit allowed them to intervene as appellants, but ultimately affirmed the district court, finding the amendment unconstitutional, and the proponents petitioned the Supreme Court for review.  By now, the state employee who had initiated the case had left her job and was no longer working for the state; indeed, she left her job before the 9th Circuit had ruled on the appeal.  In response to the cert petition, the Supreme Court asked for briefing on mootness (since the plaintiff no longer had standing as a state employee to challenge the amendment) and standing of the intervenor proponents to pursue the appeal on their own. 

The Court decided that because the plaintiff was no longer employed by the state, there was no longer a live case or controversy, so the matter had to be dismissed.  That is, the ruling that the state amendment was unconstitutional was void, apparently.  (I'm not too clear on this from a quick reading of the opinion.)  But the important point for our purposes is that the Court opined that the proponents of the amendment initiative probably did not have standing to appeal the 9th Circuit's ruling in the absence of the state as an appellant.  Because the Court premised its reversal of the 9th Circuit on the mootness point, it did not have to decide the standing point.

Justice Ginsburg wrote: "An intervenor cannot step into the shoes of the original party unless the intervenor independently fulfills the requirements of Article III."  The Arizona English organization claimed that they were intervening in the case in a quasi-legislative capacity, but the Court was doubtful.  "AOE and its members, however, are not elected representatives, and we are aware of no Arizona law appointing initiative sponsors as agents of the people of Arizona to defend, in lieu of public officials, the constitutionality of initiatives made law of the State.  Nor has this Court ever identified initiative proponents as Article-III-qualified defenders of the measures they advocated."

Because the ultimate result in this case was to dismiss the lawsuit, the Court noted, the Arizona English organization could still pursue enforcement of the English-only amendment in the state courts, and thus lacked a concrete injury that needed to be vindicated through federal appeal.

The Court found it did not have to resolve this issue, however, due to the mootness disposition. "We thus have grave doubts whether AOE and Park [its leader] have standing under Article III to pursue appellate review.  Nevertheless, we need not definitely resolve the issue. Rather, we will follow a path we have taken before and inquire, as a primary matter, whether originating plaintiff Yniguez still has a case to pursue...."

So where does this leave us?  A strong indication from the Supreme Court that initiative proponents whose efforts result in the enactment of laws or constitutional amendments generally do not have standing to participate as parties in subsequent litigation concerning their constitutionality, and are even less likely to be found to have standing to appeal an adverse ruling on constitutionality if the state, itself, decides not to appeal.  Although the Supreme Court refrained from actually ruling on the question in the Arizona case, it certainly signaled a disposition against finding standing in such a situation.

Whether the 9th Circuit will construe things that way when it is called to rule on the Proponents' appeal of Judge Walker's decision is uncertain, as is the question whether the Supreme Court would extend its reasoning in the Arizona English case to cover this situation.  But it is certainly a plausible argument that a decision by the governor and attorney general may mean that the case stops here.

On the one hand, that would be fortunate for those who want to marry in California.  On the other hand, it means that Judge Walker's decision remains merely a trial court ruling and order, with no precedential authority beyond the state of California.  For those who think that Walker's very persuasive decision can survive appellate review, this may seem like a lost opportunity to achieve a regional (9th Circuit) or nationwide precedent that could then be used to attack similar amendments in more than 30 states.

Comments

[Steve]

I think that, even if the 9th Circuit finds no standing for the intervenors, this supreme court would find the grounds, no matter how badly it would screw up the law relating to intervenors, so that they could get to the marriage issue. They have already made up rules in this case, with the preposterous decision forbidding the broadcast of the trial proceedings. You KNOW that they would not have overreached for any other issue, except, perhaps, abortion!

[Art Leonard]

D'accord...

[SteveW]

Looking just at the issue of whether or not a stay should be granted, doesn't the "grave doubt" about the intervenors' standing mean that they cannot show a probability of winning an appeal, and, thus, they cannot justify a stay?

[Bruce]

I'm a bit confused. If the intervenors lack standing to appeal, how could they have standing to defend Prop 8 at the trial court? If the intervenors don't have standing at the trial court, how could the case go to trial when no one with legal standing is there to defend Prop 8? Shouldn't Judge Walker have dismissed the case prior to trial because there was not a controversy between two parties with proper standing? It seems like we are trying to have it both ways.

[Art Leonard]

One would think so. That's one of the contributing factors to believing that grounds for a stay are very weak.

[Art Leonard]

This is a very interesting question. A bit of second-guessing here would suggest that Judge Walker should not have granted the Proponents' motion to intervene. But it was an unusual situation. Attorney General Brown took the position that the plaintiffs were correct, so he would not defend the amendment. But the governor took the position that he was not taking a position - i.e., would not agree with either side -- and thus was not conceding the case, as such - so letting the Proponents was necessary as a practical matter in order to have the arguments on both sides presented.

Perhaps it is possible for somebody to have derivative standing as long as there is another qualified Article III party in the case, but to lose that standing if the qualified Article III party drops out.

[Jason]

Brian Devine discusses here the issue of eligibility to intervene versus Article III standing:

http://prop8trialtracker.com/2010/08/09/prop8-stay-and-standing/#more-4005

He gives this (uncited) quote:

The law of the Ninth Circuit holds that a “public interest group may have a protectable interest in defending the legality of a measure it had supported.”

[Art Leonard]

You have quoted him out of context. That quote was in the context of allowing initiative proponents to intervene in a case brought by somebody else who possesses Article III standing.

The issue on appeal, under the Diamond ruling by the Supreme Court, is different, as he points out.

Also, it is significant that the Supreme Court expressed grave doubt about whether initiative proponents have Article III standing to appeal a ruling about the constitutionality of their initiative if the government decides not to appeal.

[David]

Is it possible that the Ninth Circuit court concedes with the emergency stay request while deciding whether they have the right to appeal? It seems that if they believe there is no appeal jurisdiction, they shouldn't consider an emergency stay.

[Alex]

@Bruce,

Did you not note Walker's citiation of the Arizona decision? Walker is simply relying upon precedent, which in this case is that the intervenors can be a part of the trial but not file the appeal.

[Clay Henderson]

It is interesting that in their official capacities, Brown and Schwarzenegger were not required to defend Prop 8, as in the case of Roemer v Evans (Colorado's Amendment 2 case). Even though Roemer had been the honorary chairman of the "No on 2" campaign, once the initiative passed, he was required by state law to, in his capacity as Governor of Colorado, defend the law - all the way to the SCOTUS. (Ultimately, SCOTUS overturned the law, setting the stage for Lawrence v Texas [in which SCOTUS overturned same-sex specific sodomy laws], and setting the stage for the current bushel of GLBT rights cases.)

[Dan Golub]

Thanks for this. Two questions:

1. If unappealed, does the decision even have precedential value *within* California? Judge Walker enjoined the state from enforcing Prop 8 but he didn't compel any local governments to issue marriage licenses. And if you wanted to sue one of them to get them to do so, you couldn't cite his opinion as precedent to whichever federal judge you found yourself in front of. It sounds like the decision might free up counties who want to issue licenses to do so, but not create a truly enforceable right to marriage throughout the state.

2. Judge Walker declined to grant Imperial County the right to intervene in the case, and they had sought to do so specifically so that someone would have grounds to appeal. If the decision becomes unappealable, would the decision not to allow them to intervene become a reviewable issue itself?

[Art Leonard]

Actually, the Arizona decision is distinguishable from this case, because in the Arizona decision, the initiative sponsors did not participate in the trial. They sought to intervene after the trial when the governor decided not to appeal the trial court's ruling that the initiative was unconstitutional.

But one has to consider the Arizona case in conjunction with the earlier Illinois case, Diamond, also cited by Judge Walker. In Diamond, a doctor intervened AT TRIAL to defend some anti-abortion provisions that the legislature had enacted over the governor's veto. When the trial court declared the provisions unconstitutional, the governor decided not to appeal, and the doctor tried to do so. Supreme Court said the doctor lacked Art. III standing.

Neither of these cases are exactly on point. Also, in the Arizona case, the Supreme Court did not rule definitely about whether the initiative sponsors had standing to appeal without the state appealing, since it disposed of the case on different grounds. But the court expressed "grave doubts," citing the earlier Diamond case.

Put them all together and we have "grave doubts" from the Supreme Court, not a definitive ruling.

It would actually seem strange that the proponents of Prop 8 would not be entitled to defend its constitutionality in court at all levels of the process. But the Supreme Court has developed a strange body of case law on "standing" under the leadership of former C.J. Rehnquist and continuing influence of new C.J. Roberts. It would be ironic, wouldn't it, if the conservative standing doctrine developed by the right-wingers on the S.Ct. were not to be use to deny any right of appeal in the Prop 8 case.

[Art Leonard]

1. If the decision is not appealed as a result of finding that neither the proponents of Prop 8 nor Imperial County has standing, then Judge Walker's order is final and unappealable. His order effectively removes Prop 8 from the California Constitution. In the absence of Prop 8, the California Constitution, as authoritatively construed by the California Supreme Court, guarantees the right of same-sex couples to marry as a matter of state constitutional due process and equal protection. That is, the status quo ante prior to Nov. 5, 2008, is restored.

2. On the second question, I'm uncertain whether Imperial County has independent standing to appeal. Judge Walker denied their motion to intervene. Granting a motion to intervene is a matter of discretion on the part of the trial judge. He was not required to let anybody intervene. (He did allow the City of San Francisco to intervene on the plaintiffs' side...) I'm not aware that they tried to appeal that denial at the time, but I doubt such an appeal would have been successful, since this was discretionary on the part of the judge.

If the 9th Circuit decides that they don't have standing to intervene, I imagine they could appeal that ruling to the Supreme Court. At this point we are building hypotheticals on hypotheticals. The first thing to focus on is whether the 9th Circuit concludes that the ruling should be stayed pending its determination whether appellants have standing. I don't know that they would want to reach a decision on that without some deliberation, in light of the lack of a clear, totally-on-point Supreme Court precedent. If I were sitting on that bench, I woudl want briefing from both sides and oral argument on the issue of whether either potential appellant has Article III standing to bring the appeal.

On the other hands, I agree with Judge Walker's analysis. There are really no grounds to stay his ruling any further, unless the 9th Circuit disagrees with his analysis in some particular.

[Lymis]

"If unappealed, does the decision even have precedential value *within* California? "

Of course it does. That's what the court ruling was about. No case is required to be appealed. If not appealed, for whatever reason, the ruling stands.

"he didn't compel any local governments to issue marriage licenses."

Sure he did. Individual local governments don't have the authority to decide who to issue licenses to. If that weren't clear before, the ruling against the County of San Francisco early in this whole process made that clear. Counties issue marriage licenses with the authority that comes to them as agents for the state. Walker's ruling required the state government and everyone associated with them to issue marriage licenses.
It is marginally possible that a county or local government could choose to stop issuing marriage licenses entirely, but they cannot issue them only to opposite sex couples.

[Mayuram V.Sankaran]

It may be recalled that Judge Walker in the case under consideration found that Proposition 8 was unconstitutional as being violative of the 'equal protection' and the 'due process' clauses under the relevant Amendments to the Constitution, but the illustrative cases cited by him like the 'inter-racial marriages' and the 'school desegregation' cases may not be very apt analogies to the issue tackled by the impugned Proposition 8, in my opinion. The issue here stands on a different footing altogether!

[Art Leonard]

Judge Walker was relying on a panoply of cases under both the Due Process and Equal Protection Clauses. He was not relying solely on the two examples you cited.

There are several rulings by the Supreme Court on the question whether the state can burden the right to marry. Interracial marriage was merely one of them. To my mind, the more pertinent one was the case where the Court struck down a state law against prison inmates marrying while incarcerated, because the reasoning of the Court about the significance of marriage is very relevant to the plaintiffs' claims in Perry - especially the claim that procreative capacity is not an essential element of marriage. The Court held that even a life prisoner in a state that did not allow conjugal visits was entitled to marry, because marriage involves many other aspects besides sex and reproduction.

As to the Equal Protection issue, obviously the EP clause has been applied in a wide range of cases, of which the school segregation cases was only one.

[Gray Coyote]

On the one hand, that would be fortunate for those who want to marry in California. On the other hand, it means that Judge Walker's decision remains merely a trial court ruling and order, with no precedential authority beyond the state of California. For those who think that Walker's very persuasive decision can survive appellate review, this may seem like a lost opportunity to achieve a regional (9th Circuit) or nationwide precedent that could then be used to attack similar amendments in more than 30 states.

The job of AFER was to overturn Proposition 8. To that, they succeeded spectularly. Kristin Perry and the rest of the plaintiffs are Ted Olson and David Boies clients. They must look out for their clients first above anything else.

Remember, there are two states just north of California which have seperate but equal for gay couples.

[Art Leonard]

It is the essence of "test case" litigation, which this is, that the plaintiffs sign on with the idea that they are representing the interests of many other people, and that strategic decisions should be made in the case that transcend the interests of the individual plaintiffs.

It is a common tension in public interest litigation. I recall back in the 1980s when the DC Circuit issued a dreadful decision on the gays-in-the-military issue. The plaintiff was hot to petition the Supreme Court for certiorari. He was represented by one of the gay public interest law firms (now defunct). It was the consensus of attorneys from the gay public interest law firms at the time that it would not be in the best interest of the movement for a petition to be filed with the court at that time, and the attorneys that were representing that individual persuaded him to agree not to seek Supreme Court review.

Some people might criticize that, but in hindsight it seems to me that it was the correct decision.

[Robert]

makes sense to me. hope you are right and same sex marriage happens. but something tells me that some how, some one, some thing, some technicality, will prevent same sex marriage from becoming the law of the land. obama, pelosi, and reid all actively oppose it, yet glenn beck, chris mathews, and keith olberman support it. its hard to predict where this is going. up is down,and down is up.

[Art Leonard]

I'd love for somebody to give me a definition of "actively oppose" in the context of same-sex marriage.

To me, somebody who actively opposes it is somebody who supports state DOMAs and anti-gay marriage constitutional amendments, somebody who speaks out publicly in strong opposition. To me, somebody whose official position is "I don't support same-sex marriage," by itself, is not an "active opponent."

I would characterize the president's position as inactive opposition - that is, he says he doesn't support same-sex marriage, he largely leaves it to his spokespeople to comment on it, and he puts out the statement that he considers both DOMA and Prop 8 to be "discriminatory." But he evidently thinks that DOMA is constitutional (it is possible for a discriminatory measure to be constitutional, under the topsy turvy equal protection jurisprudence of our Supreme Court), or at least constitutionally defensible, otherwise his Justice Department would not be defending it. But let's see whether they appeal Judge Tauro's ruling. Interestingly, they haven't asked for a stay, leaving open the question whether Sec. 3 of DOMA is no longer in effect in Massachusetts, now that Judge Tauro has entered his formal judgment in the court files (starting the 60 days running in which an appeal would have to be filed).

[mq]

After reading so many outrageous claims in the blogosphere, it's really a pleasure to see the thoughtful deliberation here.

During the pre-trial proceedings Walker asked Cooper how 'traditional' marriage would be harmed by allowing gays to marry. He repeatedly replied that he did not know. Many hours and countless $$ later, he still hasn't convinced anyone that 'traditional marriage' or his client, Prop H8 author Andy Pugno, would be harmed. As a result, Pugno has no standing, and is trying to get a cash-strapped, conservative county clerk to bail him out. Mr Pugno lives nearby along with many of the LDS members that were strong-armed by their bishop to donate time and $$ to the yes on H8 campaign. Now he's using his supporters to fund his quest for State Assembly. He has access to virtually unlimited funds for continuing the Prop 8 saga, regardless of how much money is wasted. I'm straight, married, and a Jesuit, but I'm appalled at Mr. Pugno's attempts to force his Knights of Columbus beliefs and homophobia onto the rest of us.