Do Prop. 8's Proponents Have Standing to Appeal?

I see no reason to add to the already excellent spate of commentaries on the flaws in the reasoning and legal analysis devised by Judge Vaughan Walker to hold California's Proposition 8 unconstitutional under the Due Process and Equal Protection Clauses of the Fourteenth Amendment. (For examples of such commentaries, see this, this, this, this and this; see also many more links collected here.) But other than this post [UPDATE 08/16/2010: and now there are more commentaries, collected here], I have not seen any significant analysis of the remarks made by Judge Walker in refusing to extend a stay of his decision enjoining the enforcement of California's constitutional amendment past next Wednesday, August 16. In his opinion (issued August 12), Judge Walker writes (those of you with access to Westlaw will be able to use the hyperlinks):

The court first considers whether proponents have shown a likelihood of success on the merits of their appeal. The mere possibility of success will not suffice; proponents must show that success is likely. Winter, 129 S.Ct. at 375. Proponents assert they are likely to succeed “[f]or all the reasons explained throughout this litigation.” Doc # 705 at 7. Because proponents filed their motion to stay before the court issued its findings of fact and conclusions of law, proponents do not in their memorandum discuss the likelihood of their success with reference to the court's conclusions. Neither do proponents discuss whether the court of appeals would have jurisdiction to reach the merits of their appeal absent an appeal by a state defendant.

To establish that they have standing to appeal the court's decision under Article III, Section 2 of the Constitution, proponents must show that they have “suffered an injury in fact, which is fairly traceable to the challenged action and is likely to be redressed by the relief requested.” Didrickson v. United States Dept. of Interior, 982 F.2d 1332, 1338 (9th Cir.1992). Standing requires a showing of a concrete and particularized injury that is actual or imminent. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). If the state defendants choose not to appeal, proponents may have difficulty demonstrating Article III standing. Arizonans for Official English v. Arizona, 520 U.S. 43, 67, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997).

As official proponents under California law, proponents organized the successful campaign for Proposition 8. Doc # 708 at 58-59 (FF 13, 15). Nevertheless, California does not grant proponents the authority or the responsibility to enforce Proposition 8. In Lockyer v City & County of San Francisco, the California Supreme Court explained that the regulation of marriage in California is committed to state officials, so that the mayor of San Francisco had no authority to “take any action with regard to the process of issuing marriage licenses or registering marriage certificates.” 33 Cal.4th 1055, 1080, 17 Cal.Rptr.3d 225, 95 P.3d 459 (2004). Still less, it would appear, do private citizens possess authority regarding the issuance of marriage licenses or registration of marriages. While the court has ordered entry of a permanent injunction against proponents, that permanent injunction does not require proponents to refrain from anything, as they are not (and cannot be) responsible for the application or regulation of California marriage law. See Cal Health & Safety Code § 102180. The court provided proponents with an opportunity to identify a harm they would face “if an injunction against Proposition 8 is issued.” Doc # 677 at 7. Proponents replied that they have an interest in defending Proposition 8 but failed to articulate even one specific harm they may suffer as a consequence of the injunction. Doc # 687 at 30.

When proponents moved to intervene in this action, the court did not address their standing independent of the existing parties. See Doc # 76 at 3; see also Perry v. Proposition 8 Official Proponents, 587 F.3d 947, 950 n2 (9th Cir2009). While the court determined that proponents had a significant protectible interest under FRCP 24(a)(2) in defending Proposition 8, that interest may well be “plainly insufficient to confer standing.” Diamond v. Charles, 476 U.S. 54, 69, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986). This court has jurisdiction over plaintiffs' claims against the state defendants pursuant to 28 USC § 1331. If, however, no state defendant appeals, proponents will need to show standing in the court of appeals. See Arizonans for Official English, 520 U.S. at 67.

Proponents' intervention in the district court does not provide them with standing to appeal. Diamond, 476 U.S. at 68 (holding that “Diamond's status as an intervenor below, whether permissive or as of right, does not confer standing to keep the case alive in the absence of the State on this appeal”); see also Associated Builders & Contractors v. Perry, 16 F.3d 688, 690 (6th Cir.1994) (“The standing requirement * * * may bar an appeal even though a litigant had standing before the district court.”). The Supreme Court has expressed “grave doubts” whether initiative proponents have independent Article III standing to defend the constitutionality of the initiative. Arizonans for Official English, 520 U.S. at 67.

Proponents chose not to brief the standing issue in connection with their motion to stay, and nothing in the record shows proponents face the kind of injury required for Article III standing. As it appears at least doubtful that proponents will be able to proceed with their appeal without a state defendant, it remains unclear whether the court of appeals will be able to reach the merits of proponents' appeal. In light of those concerns, proponents may have little choice but to attempt to convince either the Governor or the Attorney General to file an appeal to ensure appellate jurisdiction. As regards the stay, however, the uncertainty surrounding proponents' standing weighs heavily against the likelihood of their success.

Judge Walker here invokes a line of previous authority which draws a distinction between the right to intervene in federal court under Rule 24 of the Federal Rules of Civil Procedure (whether as a matter of right, or as a matter of the court's discretion), and the standing of an intervenor to appeal from an adverse decision if the principal party against whom the decision is rendered chooses not to appeal. The Supreme Court's decisions in this area are not crystal clear.

In the California case in Judge Walker's court, the principal defendants were Governor Schwarzenegger and the Attorney General, Jerry Brown. Both chose not to defend the constitutionality of the amendment, which had passed by a significant majority at the polls. (In doing so, they placed their personal views above their duties to uphold California law. Apparently, only laws enacted by the Legislature are worthy of their support.) As a consequence, neither is expected to appeal the decision, as well.

The persons who had caused the proposition to appear on the ballot were allowed to intervene to defend its constitutionality. In the same way, Judge Walker allowed San Francisco County to intervene as well to oppose the measure, although in an unpublished decision the same day he ruled on Prop. 8's unconstitutionality, Judge Walker denied a motion by Imperial County to intervene on behalf of the Proposition -- go figure -- after having delayed his decision on the motion for eight months. (This is not a judge whose decisions bear the stamp of impartiality -- the only words adequate to describe his judicial approach are "outcome-oriented.")

However, as Judge Walker indicates in the passage quoted above, the test for intervention in a case is not the same as the test for standing under Article III of the Constitution. Under the latter, the judicial power of the United States extends only to "cases or controversies" as determined by the courts, which require there to be a real plaintiff with a concrete "injury-in-fact" in order to have standing to bring a federal lawsuit. In the Perry v. Schwarzenegger case, the aggrieved plaintiffs ostensibly had standing to sue because they claimed they had been deprived of the "freedom to marry whom they chose." (They were not so deprived, of course -- any more than any man or woman of whatever sexual orientation is deprived of choosing a partner of the same sex.) The standing of a defendant is ordinarily not in question -- if he, she or it is not the proper defendant, the court can make that determination and enter a dismissal as to that defendant.

On appeal from a judgment, however, the requirement for there to be a "case or controversy" remains -- all the way through the United States Supreme Court. And in judging that factor, the courts will look at who is appealing from the judgment. If you want to delve into all the legal arguments, you may download from this link (95-page .pdf) the appellants' emergency request to the Ninth Circuit for a stay; it provides a host of legal arguments as to why Judge Walker got it wrong, and addresses specifically the standing issues at pp. 19-24.

Thus in Diamond v. Charles (1986) 476 U.S. 54, a case cited by Judge Walker, the plaintiffs challenged in federal court the constitutionality of Illinois' abortion statute, which had been passed over a veto by that State's Governor. The District Court had twice held parts of the statute unconstitutional, and the Seventh Circuit Court of Appeals had on two separate appeals affirmed in part and reversed in part. The suit had been brought by four physicians who provided abortions; the defendants named were the Attorney General of Illinois, the Director of the Department of Public Health, and the State's Attorney of Cook County. Dr. Diamond, a pediatrician in Illinois opposed to abortions (but not subject to the law's provisions), asked to intervene in order to serve as guardian ad litem for unborn fetuses, as well as on grounds of conscience and as the parent of a daughter who was a minor.

The second judgment by the Court of Appeals also upheld an award of attorneys' fees against the State and Dr. Diamond. The State took no further steps to appeal, but Dr. Diamond filed an appeal (the remedy at that time, when a statute was declared unconstitutional) to the United States Supreme Court, which noted probable jurisdiction (meaning that it postponed questions of jurisdiction over the appeal until after briefing and argument on the merits). In a judgment in which all Justices concurred, the Supreme Court after arguments dismissed the appeal for want of jurisdiction. The majority opinion (representing the views of five Justices) was authored by Justice Blackmun; Justice O'Connor offered a concurring opinion as to the issue involved here, in which Justices Burger and Rehnquist joined, and Justice White simply concurred in the judgment.

Justice Blackmun noted that although under the Court's rules, the State remained a "party" to the appeal, it was not an appellant, but only an appellee. The requirements of Article III meant that there had to be an appellant before the Court who evidenced the appropriate injury-in-fact sufficient to create standing. Without the State appealing in support of its law, that meant that only Dr. Diamond could provide that standing.

In Part IV of his opinion (in which only Justices Brennan, Marshall, Powell and Stevens joined), Justice Blackmun took apart, one by one, the arguments advanced by Dr. Diamond as to why he had standing to appeal the judgment below. His interests in the statute's enforcement, for example, were inadequate because they differed from those of the abortionist-plaintiffs: they faced potential criminal prosecution under the statute, while Dr. Diamond did not. Dr. Diamond argued that with its prohibition on abortions, the statute would generate greater pediatric fees for his practice, because he would have more patients; the Court found such an interest too "speculative." His interest in the general standards of the practice of medicine were too amorphous to engender standing, and he failed to show that he, as opposed to his daughter, was the best person to protect her putative right against receiving abortifacients. And only the State has standing to assert the rights of fetuses generally.

In the concluding part of his opinion, Justice Blackmun pointed out that status as an intervenor under Rule 24 does not necessarily imply that standing has been met, since standing is a requirement for the original plaintiff, and not for subsequent parties who join in the case. And then he held that Dr. Diamond's liability for attorneys' fees did not confer standing upon him to attack the merits of the judgment below.

In her concurring opinion, Justice O'Connor disagreed with the majority's analysis of the consequence of Illinois not being an appellant, but only an appellee. In her view, there was no jurisdiction over Dr. Diamond's appeal because he was not a proper party to the appeal in the Sixth Circuit, and hence had no statutory basis on which to appeal to the Supreme Court. Dr. Diamond should not have been allowed to appeal as a party to the Court of Appeals, she argued, but rather he should have been allowed only to file a brief as amicus curiae. She stated her reasons succinctly (476 U.S. at 77): "Dr. Diamond simply has no claim or defense in this sense; he asserts no actual, present interest that would permit him to sue or be sued by appellees, or the State of Illinois, or anyone else, in an action sharing common questions of law or fact with those at issue in this litigation."

The Supreme Court addressed the issue of Article III standing for proponents of a State initiative measure in Arizonans for Official English v. Arizona (1997) 520 U.S. 43, another case cited by Judge Walker. While not definitively resolving the issue, Justice Ginsburg, writing for a unanimous Court, expressed "grave doubts" that the proponents could satisfy Article III requirements (again, the hyperlinks in the quote are to Westlaw):

The standing Article III requires must be met by persons seeking appellate review, just as it must be met by persons appearing in courts of first instance. Diamond, 476 U.S., at 62, 106 S.Ct., at 1703. The decision to seek review “is not to be placed in the hands of ‘concerned bystanders,’ ” persons who would seize it “as a ‘vehicle for the vindication of value interests.’ ” Ibid. (citation omitted). An intervenor cannot step into the shoes of the original party unless the intervenor independently “fulfills the requirements of Article III.” Id., at 68, 106 S.Ct., at 1706-1707.

In granting the petition for a writ of certiorari in this case, we called for briefing on the question whether AOE and Park have standing, consonant with Article III of the Federal Constitution, to defend in federal court the constitutionality of Arizona Constitution Article XXVIII. Petitioners argue primarily that, as initiative proponents, they have a quasi-legislative interest in defending the constitutionality of the measure they successfully sponsored. AOE and Park stress the funds and effort they expended to achieve adoption of Article XXVIII. We have recognized that state legislators have standing to contest a decision holding a state statute unconstitutional if state law authorizes legislators to represent the State's interests. See Karcher v. May, 484 U.S. 72, 82, 108 S.Ct. 388, 395, 98 L.Ed.2d 327 (1987).[Footnote omitted.] 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. Cf. Don't Bankrupt Washington Committee v. Continental Ill. Nat. Bank & Trust Co. of Chicago, 460 U.S. 1077, 103 S.Ct. 1762, 76 L.Ed.2d 338 (1983) (summarily dismissing, for lack of standing, appeal by an initiative proponent from a decision holding the initiative unconstitutional).

The irony in these remarks is that the Court went on to find that the case had become moot by reason of subsequent events. Nevertheless, the Court stated (520 U.S. at 73):

We have taken up the case for consideration on the petition for certiorari filed by AOE and Park. Even if we were to rule definitively that AOE and Park lack standing, we would have an obligation essentially to search the pleadings on core matters of federal-court adjudicatory authority-to inquire not only into this Court's authority to decide the questions petitioners present, but to consider, also, the authority of the lower courts to proceed. As explained in Bender v. Williamsport Area School Dist., 475 U.S. 534, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986):

“[E]very federal appellate court has a special obligation to ‘satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under review,’ even though the parties are prepared to concede it. Mitchell v. Maurer, 293 U.S. 237, 244 [55 S.Ct. 162, 165, 79 L.Ed. 338] (1934). See Juidice v. Vail, 430 U.S. 327, 331-332 [97 S.Ct. 1211, 1215-1216, 51 L.Ed.2d 376] (1977) (standing). ‘And if the record discloses that the lower court was without jurisdiction this court will notice the defect, although the parties make no contention concerning it. [When the lower federal court] lack [s] jurisdiction, we have jurisdiction on appeal, not of the merits but merely for the purpose of correcting the error of the lower court in entertaining the suit.’ United States v. Corrick, 298 U.S. 435, 440 [56 S.Ct. 829, 831-832, 80 L.Ed. 1263] (1936) (footnotes omitted).” Id., at 541, 106 S.Ct., at 1331(brackets in original).

See also Iron Arrow Honor Soc. v. Heckler, 464 U.S. 67, 72-73, 104 S.Ct. 373, 375-376, 78 L.Ed.2d 58 (1983) (per curiam) (vacating judgment below where Court of Appeals had ruled on the merits although case had become moot). In short, we have authority to “make such disposition of the whole case as justice may require.” U.S. Bancorp Mortgage Co., 513 U.S., at 21, 115 S.Ct., at 390 (citation and internal quotation marks omitted). Because the Ninth Circuit refused to stop the adjudication when Yniguez's departure from public employment came to its attention, we set aside the unwarranted en banc Court of Appeals judgment.

If neither Governor Schwarzenegger nor Attorney General Brown joins in appealing Judge Walker's injunction, therefore, the Ninth Circuit could use the opinions in Diamond and Arizonans for Official English as justification to hold that the proponents of Proposition 8 lacked standing. To respond to that argument, the proponents would have to show either that they were authorized by State statute to represent legislators' interests (when the latter were not involved), or that they will suffer a direct and sufficient injury by reason of the enforcement of the injunction. This was evidently the motivation behind Justice Walker's taunt that none "of them seek to wed a same-sex spouse." (For the proponents' arguments that they do have such standing under California law, see pp. 19-24 of their brief linked above.)

And as Judge Walker also notes, both the Governor and the Attorney General filed pleadings with the court that agreed with the opponents that there was no need to stay his ruling further: "Both plaintiffs and the state defendants have disavowed the harms identified by proponents. Doc # 716 at 2 (Attorney General states that any administrative burdens surrounding marriages performed absent a stay 'are outweighed by this Court's conclusion, based on the overwhelming evidence, that Proposition 8 is unconstitutional.'); Doc # 717 at 6 (Governor opposes a stay based on California's strong interest in 'eradicating unlawful discrimination and its detrimental consequences.')."

Thus the plaintiffs knew what they were doing when they brought suit in California. We have elected officials who could be counted on not to defend Proposition 8, and the result is a collusive judgment between the Governor, the Attorney General, the opponents of Prop. 8, and an all-too-sympathetic judge. Can nothing be done about this?

According to a number of analysts, nothing can, or should, be done. In the view of Orin Kerr at Volokh Conspiracy, the panel likely to be assigned to the appeal would be the same panel that gave Judge Walker a favorable decision earlier, which was then reversed by the Supreme Court. (That would be the merits panel, not to be confused with the motions panel, which changes monthly, and to which any request for a stay pending appeal will be referred by the Court clerk.) Also, according to Daniel S. Cohen, the whole issue will probably be moot by the time it could be heard by the Supreme Court, because in 2012 California will have enacted a ballot initiative approving same-sex marriages.

If the proponents of Proposition 8 will not suffer a sufficient injury (for purposes of Article III standing) from having their measure ruled unconstitutional, and if the State's elected officials refuse to represent the majority of the voters, then who can represent the people of the State of California? I would argue that this situation calls for the appointment of a Special Deputy Attorney General to represent the interests of the majority in the name of the State. Jerry Brown has the authority to name such a deputy, as does Governor Schwarzenegger. The latter is not running for re-election, but the former is running to replace him.

This, then, is a defining moment. If Jerry Brown says he will not appoint a special deputy at this point, the proponents should engage in some gamesmanship of their own. They should first bring postjudgment motions sufficient to delay the time for any appeal until after the elections; meanwhile, I know, the stay will be lifted, and gay marriages will take place. And for this strategy to work, Meg Whitman (or the Republican candidate for Attorney General, Steve Cooley) will have to publicly commit to authorizing an appeal from the judgment if they are elected in November.

[UPDATE: Steve Cooley, the Republican candidate for Attorney General, has stated that if elected, he would support an appeal of Judge Walker's ruling. Also, there may be some saving grace in the fact that Imperial County is not pulling out of the case. Although Judge Walker denied their motion to intervene (while allowing the City and County of San Francisco to do so), they have now filed a notice of appeal from that denial, as well as from Judge Walker's decision against Proposition 8. (H/T: Paul Powers at StandFirm.) In his unpublished order denying their motion to intervene, Judge Walker asserted:

California law provides no basis for Imperial County’s assertion that it has an interest in California marriage law, much less that its interests here are not adequately represented by an existing California defendant . . . Instead, as a matter of law, only the state itself has an interest in California marriage law [citing Lockyer v. City and County of San Francisco (2004) 33 Cal.4th 1055, 1080].

This is an oversimplification, however, of the holding in Lockyer. That was the case which invalidated the unilateral decision of the Mayor of the City and County of San Francisco, who ordered the county clerk to begin issuing marriage licenses to same-sex couples before there had been any ruling as to the constitutionality of California's previous enactment of a statutory ban on same-sex marriages. In the process of ruling that the mayor had no such authority to make a determination on his own of whether a State law was unconstitutional, the California Supreme Court acknowledged that certain agencies, such as the State's Public Utilities Commission, had been vested by the legislature with certain adjudicatory powers, which could encompass determinations of constitutionality. It then held that the county clerk's duty to issue licenses was ministerial, and involved no adjudicatory powers.

The current situation is not a parallel to the one in Lockyer, however, but is its mirror image. In Lockyer, the local official took it upon his own to determine that a duly enacted State statute was unconstitutional. In the Perry case, however, if the county clerk of Imperial County refuses to issue licenses for the marriage of same-sex couples, he or she will be upholding a State constitutional amendment in the face of a federal district court's ruling that the amendment was unconstitutional. By denying Imperial County's right to intervene to challenge his ruling, Judge Walker ensured that the county clerk would not be bound by the terms of his injunction -- since the county clerk works neither for the Governor nor the Attorney General, who are the only California officials (along with their deputies and subordinates) who are so bound.

And in Lockyer, the California Supreme Court itself indicated, in another passage not cited by Judge Walker, that under certain circumstances a local official might well decide not to perform a ministerial duty, in order to provide a speedy and efficacious means of testing the validity of the directive (33 Cal.4th at 1098-99, footnote omitted):

Some academic commentators, while confirming that as a general rule executive officials must comply with duly enacted statutes even when the officials believe the provisions are unconstitutional, have suggested that there may be room to recognize an exception to this general rule in instances in which a public official's refusal to apply the statute would provide the most practical or reasonable means of enabling the question of the statute's constitutionality to be brought before a court. (See, e.g., May, Presidential Defiance of “Unconstitutional” Laws: Reviving the Royal Prerogative (1994) 21 Hastings Const. L.Q. 865, 994-996.) As we have just seen, the line of public finance cases relied upon by the city may be viewed as an example of just such a limited exception, and there are a number of other California decisions in which a constitutional challenge to a statute or other legislative enactment has been brought before a court for judicial resolution by virtue of a public entity's refusal to comply with the statute, under circumstances in which the public entity had a personal stake or interest in the constitutional issue and the public entity's action was the most practicable or reasonable method of obtaining a judicial determination of the validity of the statute. (See, e.g., County of Riverside v. Superior Court (2003) 30 Cal.4th 278, 132 Cal.Rptr.2d 713, 66 P.3d 718 [impingement on county's home rule authority]; Star-Kist Foods, Inc. v. County of Los Angeles (1986) 42 Cal.3d 1, 5-10, 227 Cal.Rptr. 391, 719 P.2d 987 [impingement on county's taxing authority].)

Thus, it hardly seems proper to deny the right of Imperial County to challenge Judge Walker's ruling on the ground that it had no basis on which to assert a right of intervention. If Imperial County officials refuse to implement his decision, they could face civil liability under 28 U.S.C. § 1983 for that failure, with the possibility of damages. [UPDATE 08/16/2010: I have rethought this point after some more research. The issue of § 1983 liability turns on whether in following Prop. 8 rather than Judge Walker, the officials would be implementing a statewide policy, or just their own local interpretation of the measure. See my next post on this topic for more details.] Just as with the doctors who faced potential criminal liability in Diamond v. Charles (above), this potential liability under federal law should have -- under Judge Walker's analysis, at least -- given the County officials a sufficient stake in the outcome to make his denial of their motion to intervene reversible error -- and by the same token, that stake in the outcome should supply the County officials with standing to carry the principal appeal on the merits.

Judge Walker's one-sided attempt to block the participation of the only real parties who had both a right to be involved and a concrete stake in the outcome should in and of itself serve as a beacon to any appellate court that his decision was wholly outcome-oriented. The Ninth Circuit, of course, is generally just as liberal as Judge Walker (and particularly with regard to its current motions panel), so there is no telling whether they will be able to resist an equally outcome-oriented approach in handling the appeal. The first gauge of what will happen in the Ninth Circuit is whether it will act to continue the stay of his injunction pending the outcome of the appeal. (And if it does not, the door will thereby be opened for an appeal to Justice Kennedy and the full Supreme Court to issue the stay, as described in this post.) So stay tuned -- the case is by no means a done deal yet.]

Nevertheless, the people who voted for Proposition 8 have every right to feel disenfranchised. The courts, the State's elected officials, and its homosexual activists are colluding in broad daylight to prevent any ruling on the merits by anyone other than a single -- and decidedly not impartial -- judge.