Box Turtle Bulletin
News and commentary about the anti-gay lobby“Now you must raise your children up in a world where that union of man and box turtle is on the same legal footing as man and wife…”
News and commentary about the anti-gay lobbyThis commentary is the opinion of the author and does not necessarily reflect that of other authors at Box Turtle Bulletin
August 17th, 2010
I am now going to gaze into my crystal ball, read the tea leaves, check in with Sybill Trelawney, and make a prognostication: the Proponents of Proposition 8 in Perry v. Schwarzenegger will be denied standing at either the Ninth Circuit or the US Supreme Court level.
There are four reasons why I think it likely that the Proponents will not be found to have standing.
The first is case law. I’m not an attorney, I don’t have extensive knowledge of the patterns of judicial rulings which would apply to the case. But I have read the filings of both sides in this case and it appears to me that the arguments for denying standing are straight-forward and based on clear rules while those of the Proponents are based on exceptions and possibilities and “gosh darnit but we paid for it.”
Second, it appears that the Ninth Circuit is not seeing standing at present. The Ninth issued its order sua sponte, or without request: “The court sua sponte orders that this appeal be expedited pursuant to Federal Rule of Appellate Procedure 2.”
However, there were filings for both appeal and for expediting the case. To my limited understanding of the law, either the Ninth erred in its language or it isn’t recognizing the filings of one of the parties as being official at present. A pretty obvious guess would be that the Proponents are not considered to have standing at present, and if there were any question about that presumption, it is cleared up by this sentence: “In addition to any issues appellants wish to raise on appeal, appellants are directed to include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing.”
Third, the Ninth references Arizonans For Official English v. Arizona as the case to which they are looking to see if there is standing. The case went something like this:
In 1988, Arizona voters narrowly passed Proposition 106, a constitutional amendment to require all official acts of the state to be conducted in English. Maria Yniguez, a state employee, sued claiming that she used both English and Spanish in her work and that the proposition violated her First Amendment rights. The Governor was the official defendant.
A Federal District Court judge found that the amendment was overly broad and unconstitutional and the Governor decided not to appeal. The Federal judge denied that the Attorney General could be given standing and also denied standing to Arizonans for Official English (AOE), the committee that wrote, funded, and campaigned for Proposition 106.
On appeal, the Ninth Circuit countermanded the judge and found that AOE, and its chairman Bob Park, had standing to appeal the judge’s decision.
Meanwhile, Yniguez had quit her state job to go work for the private sector, which meant that there was no Plaintiff in the case. But the Ninth decided that because Yniguez had sued for damages, the case was not moot and could continue. They upheld the judge’s ruling that the proposition was unconstitutional and awarded Yniguez damages.
However, the Supreme Court unanimously ruled that because Yniguez no longer was an employee then the entire case was moot and they tossed it out. So, the primary ruling of AOE v. Arizona was not about the standing of intervenors at all.
However, and this is the important part, in addition to ruling the case moot, Judge Ginsburg wrote the following:
(a) Grave doubts exist as to the standing of petitioners AOE and Park to pursue appellate review under Article III’s case or controversy requirement. Standing to defend on appeal in the place of an original defendant demands that the litigant possess “a direct stake in the outcome.” Diamond v. Charles, 476 U.S. 54, 62 . Petitioners’ primary argument–that, as initiative proponents, they have a quasi legislative interest in defending the measure they successfully sponsored–is dubious because they are not elected state legislators, authorized by state law to represent the State’s interests, see Karcher v. May, 484 U.S. 72, 82 . Furthermore, this Court has never identified initiative proponents as Article III qualified defenders. Cf. Don’t Bankrupt Washington Committee v. Continental Ill. Nat. Bank & Trust Co. of Chicago, 460 U.S. 1077. Their assertion of representational or associational standing is also problematic, absent the concrete injury that would confer standing upon AOE members in their own right, see, e.g., Food and Commercial Workers v. Brown Group, Inc., 517 U. S. ___, ___, and absent anything in Article XXVIII’s state court citizen suit provision that could support standing for Arizona residents in general, or AOE in particular, to defend the Article’s constitutionality in federal court. Nevertheless, this Court need not definitively resolve the standing of AOE and Park to proceed as they did, but assumes such standing arguendo in order to analyze the question of mootness occasioned by originating plaintiff Yniguez’s departure from state employment. See, e.g., Burke v. Barnes, 479 U.S. 361, 363 , 364, n. Pp. 18-21.
This is fairly clear that while the SCOTUS did not “definitively resolve the standing” of the supporters of the proposition, it stated its “grave doubts”, found their argument “dubious”, called their assertion of associational standing “problematic”, found no language in the proposition itself that gave them standing, and pretty much tossed them out on their ear.
This appears to be a fairly close parallel. And by the court referencing this case – and by implication eliminating or de-emphasizing all other possible arguments (Strauss v. Horton, etc.) – it gives the Proponents a significantly difficult challenge to overcome
Fourth and finally, it is my impression that the SCOTUS does not like to address controversial issues before it is ready to do so. And standing is one of their favorite ways of saying “go away, we don’t want to talk about that now.”
One case that comes to my mind is Elk Grove Unified School District v. Newdow. Michael Newdow, a prominent atheist, sued the Elk Grove Unified School District for requiring his daughter to say the Pledge of Allegiance, including the words “one nation under God.”
A federal judge found the Pledge violated the Establishment Clause and the Ninth Circuit agreed. But the SCOTUS had an out. While three were ready to find that the Pledge is not unconstitutional (and Scalia recused himself), the four liberal judges and Kennedy all found that because Newdow’s ex-wife had full custody of their child, and because she was a Christian, then Newdow had no standing to sue over her education, religious or otherwise. (Subsequently the Ninth reversed itself on another case and the SCOTUS did not hear an appeal.)
I’m thinking that if “Hey, that’s my kid” isn’t enough to have standing, then “Hey, that’s my initiative” isn’t going to fare much better if the court is not yet ready to hear a case on the constitutionality of same-sex marriage. Surely the father of a child has more standing than the father of a proposition.
Now obviously, this is all guesswork. And some of our fine legal scholar readers may poke enough holes in my logic to let is serve as a sieve. But this is what my crystal ball is telling me today.
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Bruno
August 17th, 2010
My gut feelings jibe with this, too. But ultimately it’ll be SCOTUS that settles this issue of standing, it would seem, as I’m sure that issue itself could be appealed to Kennedy.
Jon
August 17th, 2010
I think point 3 hits the nail squarely on the head. Courts don’t like to decide bigger issues if there’s a smaller issue (such as standing, or mootness, or subject matter jurisdiction) that can be used to decide the case. And I can very much see Kennedy, in particular, wanting to put off having to deal with this question.
If it goes as I suspect, the 9th Circuit will deny the appeal because the appellants lack standing. The appellants will then be able to appeal only that decision to the Supreme Court, where there may not even be 4 justices who want to hear their arguments on that point. But even if there are, I would expect a 5-4 or 6-3 decision on the standing issue (affirming the 9th Circuit).
While I think it would be fantastic for this case to be heard on its merits in the Supreme Court and to get a decision that affirms the right of all Americans to marry, I’m also frightened about what would happen in the U.S. if we won through a judicial decision. I’m not sure I fear secession, but I do fear that culture warriors will turn into real world warriors — the Civil War was proceeded by an awful lot of violence in places like Kansas. I think that even 5 more years of marriages in California and some other new states (RI or NY?) would just make it that much more real and normal so that people won’t freak out to the same degree when it comes to the entire nation.
Mark F.
August 17th, 2010
Interesting analysis. However, if the appellants do not have standing, then a state can de facto overturn a voter approved initiative by simply refusing to defend it. This seems wrong.
Jason D
August 17th, 2010
Mark, I’m curious, why does that seem wrong to you?
Michael Bussee
August 17th, 2010
Is it that the state is “refusing to defend it” — or that the defendants (The Governor and Attorney General, once Judge Walker ruled it unconsitutional)are electing not to appeal it? Must they pursue all appeals just because a mjority of the voters were in favor of denying basic rights?
Lael
August 17th, 2010
Mark, don’t forget, in addition to vows to uphold an individual state’s constitution, all government employees are also required to uphold the US constitution. This includes elected officials. The reasoning that they felt the state amendment violated the US constitution (which Walker agreed in his decision)shows that they did their duty, which can be contrary to what the majority of the population wants. They have 2 sets of standards that they MUST uphold.
Since they held the position publicly that the amendment was in fact unconstitutional, it serves no purpose to pursue it further.
Samuel
August 17th, 2010
Tim: You are mistaken about point 2. The court is setting a schedule for the filing of briefs and the appellate record. The filings to date have consisted only of the notice of appeal and the motion papers on the stay. The meat of the filings comes later. I would also note that the schedule they set is not all that different from the briefing schedule that would have governed anyway. The real impact of the order on the timeline will be on the court’s own speed in rendering a decision. In any event, it is a mildly good sign that they ordered expedition, since if they were likely to overturn Walker’s decision, there would be no harm in leaving the stay in place for a longer time period.
@Mark F:
Even though I don’t think that the Prop 8 proponents don’t have standing and even though I hope that they lose, I agree with you that it is very troubling that elected officials can put on a lackluster defense and refuse to take measures to vindicate the will of the voters. The best example of this is Prop 187, which limited public benefits to illegal aliens. It passed with 59% of the vote, but Grey Davis opposed it and got more political capital with his base by colluding with the opponents of the measure to kill it. So Davis entered into a “settlement mediation” in which he basically agreed with his purported adversaries to gut 90% of the law, including a number of provisions that had a good likelihood of passing muster. No one had the opportunity to stand up and make the arguments in defense of the law.
Michael Bussee
August 17th, 2010
Samuel — you said, “I agree with you that it is very troubling that elected officials can put on a lackluster defense and refuse to take measures to vindicate the will of the voters.”
Maybe the defense was “lack-luster” because the actual evidence and “expert witnesses” ARE lackluster. Where is (was) the real evidence in support of Prop 8? You can’t pull sparkling evidence out of thin air.
“No one had the opportunity to stand up and make the arguments in defense of the law.”
That’s not what the Judge found. He seemed to go out of his way to allow tesimony — even though it did not realy meet criteria a “expert” testimony. You can’t prove something without evidence. Most of their witnesses backed out. Blankehorn was the best they could muster.
Jason D
August 17th, 2010
Michael I believe samuel’s statement “No one had the opportunity to stand up and make the arguments in defense of the law.” was in reference to the Grey Davis example.
RWG
August 17th, 2010
@Mark F and replies: You should not be troubled by the apparent ease of overturn for a voter initiative, especially in this case. Yes, the State of California choose not to defend it, but Judge Walker permitted the proponents to defend it. He gave them standing in his court to intervene. He allowed them to present all the evidence they wanted for the trial record. Judge Walker gave the proponents every possible opportunity to win on the merits. They could not. So they’ve had their day on court. The initiative they sponsored was given a fair hearing and found to be unconstitutional. The 9th Circut will decide the case on the basis of the evidence presented in District Court. No new evidence can be submitted. They had their chance, and they blew it.
Mark F.
August 17th, 2010
I’m not saying that the state should be compelled to defend anything. However, it seems that the voters of CA who passed the measure should have some right to be represented on appeal. Otherwise, the executive branch of CA has a de facto veto power over voter initiatives. That is troubling to me.
Priya Lynn
August 17th, 2010
I don’t have any problem with that.
ebohlman
August 17th, 2010
Mark: Adam Bonin at DailyKos has been making a similar argument. However, two points come to my mind:
1) If Brown in his professional opinion believes that Prop 8 was unconstitutional and that the State would be unlikely to prevail in an appeal, and Schwartzenegger agrees with that judgment, then not appealing is a reasonable and prudent measure to conserve State resources; appealing would require spending extra taxpayer money, and California is facing a severe revenue shortage.
2) Apparently the Prop 8 proponents could have included specific language in the measure that would have increased their chance of being found to have standing; several other initiatives on the ballot in 2008 included that language. Prop 8 didn’t. Thus the lack of standing, if decided as such, stems at least in part from the proponents’ failure to pursue an available remedy.
Timothy Kincaid
August 17th, 2010
Mark F.
I’m not a legal scholar, but the problem that you run into is who speaks for The People?
We all know that voters do not always agree fully with all provisions of an initiative that they may approve. And, I would guess more often than not, they don’t agree with the motivations of those campaigning for an initiative.
So is it really logical that the campaign manager of an initiative speaks for The People? Such folks often have entirely different agenda than The People.
The courts generally think – as best I can tell – that the elected representatives of The People speak for The People and pretty much no one else.
So it may be unfair that an elected representative – be it Governor or attorney general – may not adequately defend some initiative, but at least they answer back to the folks. Initiative sponsors answer to no one.
But there is one exception, and not a rare or unusual one. Sometimes the authors of a proposition recognize that it will not be popular with politicians and write within the language that they will defend the proposition against legal challenge. Thus it becomes part of the law that they have standing.
The Prop 8 folk were either too shortsighted or careless and did not make such a provision. I think they never expected a Federal challenge and just assumed that it would all be over in November 2008.
Now the system isn’t perfect, but it is fairly consistent with our principles of being a democratic republic and electing representatives.
Mark F.
August 17th, 2010
Mr. Kincaid:
Well, your points are reasonable.
MIhangel apYrs
August 18th, 2010
with respect, and as a Brit my interest is purely fraternal:
as someone said on a different thread we’re in the danger of overworking this. We don’t KNOW why the decisions were made, nor what decisions will be made: we’re speculating with lots of different opinions, rather like how “many angels can dance on a pinhead?” (ans : as many as want to!)
We’re now in the flow of the US judicial system, for good or ill, and we have to deal with each situation as it comes. It’s going to be a rough enough ride anyway without worrying in anticipation.
I suggest that Perry’s legal team have enough smarts to worry for us: what could be useful is “hearts and minds” propagandising to work on public opinion.
This is, of course, all said from the security of a civil partnership in the UK: but I do understand the worry you guys have, especially people no longer in the first flush of youth.
Love
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