Standing Legally


Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering Republican. Recovering Catholic. Recovering divorcé. Editor-in-Chief Emeritus of Ordinary Times. Relapsed Lawyer, admitted to practice law (under his real name) in California and Oregon. On Twitter, to his frequent regret, at @burtlikko. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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5 Responses

  1. Avatar Dan Miller says:

    Quick question–how did the court decide who counts as a “official proponent” of an initiative? Is there generally only one campaign umbrella that coordinates all the pro- or anti- activity on these things? I looked at the judgement, but I’ll freely admit that I couldn’t wade through all that legalese.Report

  2. Having now quickly read the bulk of this opinion, I must say it is quite elegant.

    That they also chose to make the decision solely by addressing the “authority to assert the state’s interest” portion of the certified question without at all reaching the “particularized injury” portion was, I thought, a very wise dodge.  Had they addressed the “particularized injury” portion of the question in this case, regardless of how they came down on it, I think they probably would have had to address the substantive merits of the case far too much.  By that I mean that if they come out and find a particularized injury to the intervenors resulting from the invalidation of Prop 8, then they’ve quite likely found the roots of a rational basis for it; if they come out and say no particularized injury due to some specific provision of California law, then they probably give the 9th Circuit a means of limiting any decision overturning Prop 8 to California while also adding additional authority to the notion that there is no rational basis for Prop 8.

    To be honest, I somewhat suspect that the 9th Circuit was hoping that the California Supremes would hone in on the particularized injury issue enough that it would do one of these things.  The 9th Circuit, I would think, was perfectly capable of analyzing the particularized injury issue without certifying that part of the question; though there was a significantly greater basis for the 9th Circuit to certify the “authority to assert the interests of the state” part of the question, they surely knew that there was a pretty good likelihood that the California Supremes would answer that part of the question in the affirmative.

    Had the 9th Circuit just ruled in the affirmative on that part of the question without certifying it, I suspect it would not have raised many eyebrows even though it is a question where certification makes a good amount of sense.  And I have trouble envisioning a situation where the California Supreme Court could have concluded that there was a particularized injury alleged but no authority to assert the state’s interests.

    What I’m getting at is:

    1. If standing is satisfied by answering either one of the certified question elements in the affirmative; and

    2.  The 9th Circuit is no less capable of answering one of those two questions than the California Supreme Court; and

    3.  Without addressing questions directly related to the merits of the case, it is fairly easy to answer the more-appropriately certified question in the affirmative, but nearly impossible to answer the less-appropriately certified question in the affirmative….

    It’s difficult to avoid the conclusion that the certified question was hoping to get more than just an answer to the standing issue.  Kudos to the California Supremes for not taking the bait.