UPDATED Wednesday 2:50 p.m.  The certified question issue has now been docketed at the California Supreme Court, under case number S189476, Perry v. Schwarzenegger (Hollingsworth).

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The Ninth Circuit Court, putting off for the time being a ruling on the constitutionality of a state’s ban on same-sex marriage, on Tuesday asked the California Supreme Court to clarify state law on a core procedural dispute in the case.  The issue is whether the backers of so-called “Proposition 8” have any right, under state law, to defend the measure’s validity when state officials refused to do so.  Only if the state court answers “yes” to that question would the backers of Prop. 8 have a realistic chance of being allowed to pursue the appeal of a federal judge’s ruling striking down the ban.  The question sent to the state court, the court said, “is dispositive of our very ability to hear this case.”

The Circuit Court acted in a series of opinions and orders.  The opinion passing the “standing” issue to the state’s highest court is here.  A separate opinion by one of the judges providing some further explanation of  the “standing” issue is here.  A separate ruling by the same panel, refusing to allow officials of one California county to join in defending Prop. 8, is here.  And one of the judges on the panel, Circuit Judge Stephen R. Reinhardt, filed an opinion explaining why he had refused earlier to disqualify himself from the case.

If it turns out in the end that no one has a legal right to be in federal court to defend Prop. 8’s constitutionality, it is unclear — at least for now — what would happen to U.S. District Judge Vaughn R. Walker’s decision in August striking down the ban under the federal Constitution.  The two sides in the case disagree on whether that ruling would stand, unreviewed by a higher court, or whether it would have to be wiped off the judicial books.  The Circuit Court mentioned that disagreement, but did not seek to solve it.

Its order seeking advice on state law from the California Supreme Court was not a surprise.  The prospect that the three-judge Circuit Court might do just that had come up during the panel’s hearing on the case on Dec. 6.   In Tuesday’s opinion, the unanimous panel commented: “It is critical that we be advised of the rights under California law of the official proponents of an initiative measure to defend the constitutionality of that measure upon its adoption by the People when the state officers charged with the laws’ enforcement, including the Attorney General, refuse to provide such a defense or appeal a judgment declaring the measure unconstitutional.”

The panel, impliedly rejecting the argument by the backers of Prop.8 that California state law already assured them of a legal right to defend the ban, said that it was “aware of no controlling state precedent on this precise question.”  So, while one judge said the proponents “advance a strong argument on this point,” the panel said “we respectfully ask the Supreme Court of California to exercise its discretion to accept and decide” a specified question.

Here is the text of the question put to the state court: “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 Circuit Court, noting its refusal to find “standing” in a separate appeal by local officials in Imperial County, commented that “we may reach the merits of the constitutional questions presented only if Proponents have standing to appeal.”  “Proponents” refers to the individuals and their organization who planned, promoted, and persuaded California voters to approve Prop. 8.

In a federal court, there is no jurisdiction to decide a case at either the trial level or the appeals level unless someone with an actual, legal interest in the outcome is a party in the case.  ‘Standing” is thus a constitutional question under Article III.

Tuesday’s opinions from the Circuit Court made it clear that the judges were not, at this point, announcing a final decision on whether the Prop. 8 backers do have “standing” to go forward with the appeal.  However, the fact that the panel did say that it was those backers, or no one, who could appeal, left the strong impression that the case would end at the Circuit Court without a ruling on Prop. 8’s constitutionality if the California Supreme Court says “No” to the state law-based claims of the Proponents.

The panel reinforced that impression by relying quite heavily upon one decision by the U.S. Supreme Court on whether backers of a ballot measure may sue to defend it in federal court even if state officials fail to do so.  That ruling was in a 1997 case, Arizonans for Official English v. Arizona.

That is the Justices’ most recent pronouncement on that particular issue.  In the Arizona case, the Court raised serious doubts — without explicitly deciding the issue — whether proponents of a ballot measure would have Article III standing to defend the measure if state officials did not do so.  The two sides in the Prop. 8 case differ on just what the Arizona precedent means.

The Circuit Court panel on Tuesday cited that precedent on the first page of its opinion.  And, in remarks later in the opinion, the panel said that, while the Justices had offered only in dicta their doubts that initiative backers have a  right to stand in for state officials, that was “a forceful statement in a decision by a unanimous Court and we believe we would be unwise to disregard it.”

In asking for advice on state law, the Circuit Court said it was putting the pending appeal on hold, with further proceedings “stayed pending final action by the Supreme Court of California.”  The lawyers involved in the case, it added, must notify the Circuit Court within three days after the state court accepted or rejected the plea to answer the certified question, and again within three days if the state court answers the question.  The same Circuit Court panel, it said, will retain jurisdiction over the case.

Judge Reinhardt, in his separate opinion further discussing the decision to seek legal help from the state court, unleashed rhetorical criticism of both sides in the case, and the officials of Imperial County, for preparing the case in a ways that may make it impossible legally for the Circuit Court to rule on the constitutional question.   The challengers sued too few people in California, the judge remarked, and the backers of Prop. 8 did not reach far enough to assemble a cast of legal defenders of the measure to assure that someone would have a right to go on defending it.  He also impliedly criticized state officials for failing to mount a defense of a state law, as such officials customarily do.  Those officials, he suggested, may have run counter to California’s strong tradition of putting major legislative powers in the hands of its voters.

The Reinhardt opinion — typical for a judge known to have strong, liberal views on many judicial questions — implied that he would be quite disappointed if it turned out that the Circuit Court would be unable to decide the merits of the ban on same-sex marriage.   He said that constitutional question was “critical” and “of interest to all Americans, and particularly to the millions of Californians who voted for Proposition 8 and the tens of thousands of same-sex couples who wish to marry in that state.”

And the judge used his opinion to revive some of his ongoing criticism of the Supreme Court, and others influencing trends in the law, for erecting a widening array of procedural obstacles — like “standing” — that tend to limit access to the courts.  The judge remarked: “In these times, before we are free to decide such important questions the parties must often overcome difficult procedural barriers.  Why Congress and the Supreme Court have required them to do so is a subject for another day, although I have made my views on the subject clear elsewhere.”  In a footnote, he cited his prior comments on such obstacles.

Judge Walker’s ruling last summer nullifying Prop. 8 — a decision that has been put on hold temporarily by the Circuit Court — has been challenged in appeals only by two groups.  With the Circuit Court’s separate ruling Tuesday rejecting “standing” for one of those groups, the Imperial County officials, that left only the Prop. 8 Proponents as potential defenders.

In turning down the plea by Imperial County officials to enter the case now, the panel concluded that none of those officials “has demonstrated a ‘significant protectable interest’ at stake in this action.”  One of the county officials seeking to defend the measure, the panel said, is a deputy county clerk.  Any interest a county clerk might have in this case, it added, belonged to the county clerk, not to a deputy.  The opinion said it did not adopt Judge Walker’s view that even a county clerk, not a deputy, would not be allowed to join in the case.

The panel also concluded that neither Imperial County itself nor its board of supervisors could be allowed into the case.  Aside from holding that the county and its officials could not intervene in the case under federal court procedural rules, it also ruled that they lacked “standing” under Article III, and thus ordered their appeal dismissed for lack of jurisdiction.

Imperial County and its officials, the panel noted, retain the option of seeking review in the en banc Circuit Court of their plea to join in the case.  The deadline for pursuing that form of relief was extended until after the Court decides the separate case involving the Prop. 8 Proponents.

Judge Reinhardt’s participation in the entire case had been challenged by the Prop. 8 Proponents, who argued that his wife — Ramona Ripston, a leader of the American Civil Liberties Union in southern California — had a personal interest in the outcome of the case as a strong critic of Prop. 8 and a strong supporter of same-sex marriage, and her organization had taken some role in this very case when it was before Judge Walker.

The judge had refused prior to the Dec. 6 hearing to recuse.  He said he would explain in a later opinion.  That opinion also was issued Tuesday.  In it, he noted that “the chief basis” for seeking his recusal was “my wife’s beliefs.”  Those views, he wrote, whether public or private, “as to any issues that may come before this court, constitutional or otherwise, are of no consequence.”

He described her as “a strong, independent woman who has long fought for the principle, among others, that women should be evaluated on their own merits and not judged in any way by the deeds or position in life of their husbands (and vice versa).”  He said he shared that view, and suggested that the law does so, too.

The challenge to him, he added, “is based upon an outmoded conception of the relationship between spouses.”  The judge also dismissed as of little significance what he described as a small role of his wife’s group in litigating the Prop. 8 case in the federal courts.

Posted in Featured, Cases in the Pipeline

Recommended Citation: Lyle Denniston, Prop. 8: Right-to-appeal issue looms (UPDATED WEDNESDAY), SCOTUSblog (Jan. 4, 2011, 7:01 PM), https://www.scotusblog.com/2011/01/prop-8-right-to-appeal-issue-looms/