Apart from the AG, why should any group get ‘special rights’ in court, particularly on a matter of the public good?

If some random proponents group has ‘standing’ in court, just because they paid for signatures, then anyone should be able to get such standing, even though they do not have a particularized injury.

Put another way, the cases that got thrown out when people sued over their air and water were being ruined? Those plaintiffs all ought to have had standing, because ‘clean air’ and ‘unpolluted water’ are public goods that everyone has a ‘claim to’, or, in other language, ‘give rise to a special interest’.

I’m not sure one can create a formal set of rules that would have kept Prop8 off the ballot or proponents out of the courts, while allowing other policy issues that seem less like the impermissible ‘vote on minority rights’.

All the same, if one is going to have rules that restrict access to the courts (‘standing doctrine’), it does seem that they ought to be either consistently, uniformly applied, or ‘the system’ looks rigged too much.

http://www.law.cornell.edu/rules/frcp/Rule24.htm

I see no compelling evidence that the laws made by initiative in California (or anywhere) are any better or worse overall…

ARE YOU KIDDING??? Californians passed initiatives to ban eating horse meat and to mandate the size of chicken coops. Seriously.

…then the laws made by the legislature.

Oh, wait. You may have a point.

Sigh…. I really do love my state.

I agree. But I think the supporters of an initiative should have automatic standing to defend it in court if the government declines to do so. I would support a change in the law to make that so, if necessary.

I see no compelling evidence that the laws made by initiative in California (or anywhere) are any better or worse overall then the laws made by the legislature.

Kathleen Perrin has been hosting all the docs on her scribed account.

(much appreciation to her for doing so)

Sorry for the cut and paste but I think that’s the best way to answer.

I see your point, but imagine that same sex marriage had passed via an initiative, but then a court found it unconstitutional and the state declined to appeal. Still feel good about your legal philosophy?

I’m still comfortable enough with it. Provided, of course, that the initiative was given a sound defense.

It creates a de facto ability for the executive branch to repeal any initiative.

I disagree. It does allow them the ability to confirm a court veto with which they agree, but that is quite a different animal from executive repeal.

The whole point of an initiative is to have direct democracy and bypass the rest of the government.

Yes. I’m not overly fond of unfettered pure democracy – preferring a more repulican representative approach. But I also appreciate the ability of the people to override the elected legislature.

All that said, I live in California. This is the state that passed initiatives to mandate the space that chickens have in coops, and to ban eating horse meat. Sometimes my fellow citizens aren’t as much interested in reading input or learning facts (something that we at least pretend happens in a legislature) as they are in ‘voting their heart’.

So I don’t hold ‘the vote of the people’ on statutes and points of law (or even on amending the constitution for specific laws) in the highest regard.

For me, the issue is this: the case got a fair hearing (that’s important to me). A judge was clear and detailed and relied on the law in making a judgment. That is a reasonable position at which to say that the matter is settled.

(and were this not marriage, few would think that tossing out one of CA’s very many silly initiatives deserved appeal.)

I would not necessarily fault a governor or attorney general if they wished to appeal this (or any other) decision, provided that it was on matters of law and not to further a homophobic culture (and think that Steve Cooley was VERY mistreated by partisans who lied through their teeth to paint him as a homophobe for saying he would appeal even though he supports same-sex marriage). But I also don’t think that the decision to abide by the court’s ruling is some dereliction of duty.

The two opening briefs, which cover standing and jurisdiction; the proponent’s reply brief (11/02/10); the request for certification from the Supremes, and Judge Reinhardt’s ‘special mention’ concurrance (1/4/11) can be found here:
http://www.ca9.uscourts.gov/content/view.php?pk_id=0000000513

Olsen’s brief to the CA Supreme court is here,
via SCOTUS blog

Proponents’ brief to the CA Supreme court is here, also via SCOTUS blog.

You can get a sense for how confusing the situation is.

http://volokh.com/2011/02/16/do-prop-8-proponents-have-standing-to-defend-the-law/#comments

I’m going to conjecture that the appellate court seems concerned what happens if they find no standing for proponents.

That might explain why the pursuit of a certification that seems so outre, notwithstanding Ginsbergs **dicta** in Arizonans.

In particular, what happens under California law to Judge Walker’s injunction, the day after? They seem to want to know whether proponents would have standing to continuing fighting in the State’s courts, basically. A fight which might spill back to the Federal District court…?

Consider this exchange at orals:

Q: You’re counting on the AG to go into state court and order other clerks to follow the injunction.

Boies: no, we don’t know.

Q: Well, you’re lucky the election came out the way it did [laughter]

(In this exchange, I think Boies was just being narrow/precise, because he certainly could augment/amplify his answer that his only expectation is that they could be compelled to follow the law/injunction; but one can nevertheless get a sense of the concern from the bench.]

It is in this context that they brought up the issue of certifying a class for the suit, although how that would help the State/AG defend the injunction is not plain to me, but perhaps it could have.

It is also in this context that issues relating to jurisdiction and constitutional avoidance come up. It’s not plain to me that those aren’t fairly easily dealt with.

Anyway, if you skim Volokh, go armed knowing what a “facial challenge” is, because so many are thinking what Olsen-Boies did was “as applied”.

You also might need some info on the nature of precedent, etc. Easy-to-read outline, here:
http://www.lacba.org/showpage.cfm?pageid=9375

If you come away with a general assessment that a federal lawsuit can be like a chess match, you are like me.

Some folks have trouble with your, you’re, and yore. I have trouble with roll and role.

Oh, don’t be concerned. That’s neither here nor their they’re there.

I love how conservatives bemoan about Judge Walkers single decision on prop 8, yet they celebrate the single Federal Judge’s decision on Obamacare.

As my (religious conservative) brother-in-law has observed, “Judicial activism!!” is usually just a coded way for people to whine that “those f*ckers on the Supreme Court handed down a ruling that personally annoys me.”

I wanted to see how many were statues and how many were changes to the CA Constitution.

I also wanted to see how many were issues of public policy (technical sense of the term: http://en.wikipedia.org/wiki/Public_policy_doctrine) and how many were highly specific, e.g. these four trees will not be cut down, appropriate $100M to save the whales, allow so-and-so to issue a bond for a project.

To play devil’s advocate, which ones were “bad” and which were “good” and why?

I wanted to test the hypothesis that questions of public policy are not fit to go before a plebicite. I’m still in the deciding stage of that assessment.

I also looked up the CA constitution. There are very few restrictions on what kind/type of referendum you can bring. As I recall, only a few things are excluded (http://ballotpedia.org/wiki/index.php/Laws_governing_the_initiative_process_in_California).

I was interested in seeing whether matters of public policy were reserved for the legislature, but they are not.

I do recall that there is/was considerable fight over the wording of the proposition, but I don’t recall whether this was beneficial, ultimately, to a court, who might want to determine the intent of the law. Not being familiar with referenda, I have no idea whether there is more clarity in them in general than, you know, than when the legislature enacts.