Standing Legally
I’ve opined several times before that the legal concept of “standing” should be interpreted broadly, particularly in the realm of Constitutional law, with an eye towards encouraging litigation of disputes on their merits. Too often the courts choose to attack a litigant’s standing as a way of avoiding making an actual decision on the merits of a case. Well, that won’t be happening with the Prop. 8 case. The California Supreme Court has made clear that the proponents of Prop. 8 do, in fact, have standing to defend that law despite the refusal of the Attorney General and the Governor to do so.
Now, as of the time of writing this post, I’ve not read the meat or reasoning of the opinion. I’m only aware of the conclusion:
…when the public officials who ordinarily defend a challenged state law or appeal a judgment invalidating the law decline to do so, under article II, section 8 of the California Constitution and the relevant provisions of the Elections Code, the official proponents of a voter-approved initiative measure are authorized to assert the state‘s interest in the initiative‘s validity, enabling the proponents to defend the constitutionality of the initiative and to appeal a judgment invalidating the initiative.
This is an entirely satisfactory resolution of this particular issue to me. Although it places the day of ultimate victory further away, advocates of same-sex marriage should consider this a victory, not a setback. The proponents are well-motivated to defend the law that they themselves wrote and considered important enough to take the trouble of putting on the ballot and advocating. Consequently, they will give their law the full-throated defense that it needs in order for the judicial analysis of that law’s conformity (or lack thereof) with the Federal Constitution to be meaningful and worthy of intellectual respect. And it allows the Attorney General and Governor to express their judgment about the law’s Constitutionality.
The rule of law requires that everyone be able to respect the legitimacy of the judicial process. This decision furthers that concept by encouraging advocacy and developing a meaningful adversarial process; it is very important that the side which loses the case understand that it was treated fairly, and did not lose for some arbitrary reason. So, let us now move forward to consideration of the merits of the legal issue, and not again be sidetracked by any further procedural smokescreens, raised by anyone.
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
The proponents are the individual California voters who signed their names as “proponents” of the ballot initiative in the initial filing with the Secretary of State. In the case of Prop. 8, those people are: Dennis Hollingsworth, Gail Knight, Martin Gutierrez, Hak-Shing William Tam, and Mark Jansson. The phrase “proponents” refers collectively to these five specific people.Report
Dankeschon.Report
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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.
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