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Prop 8 Heads Back to Cal. Supremes
Ninth Circuit panel punts on question of Proponents’ standing to appeal
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BY ARTHUR S. LEONARD
he 9th US Circuit Court panelconsidering the appeal of last year’s ruling by now-retired Dis-trict Judge Vaughn Walker that struck down California Proposition 8 on thegrounds that it violates the US Consti-tution’s 14th Amendment issued tworulings on January 4 regarding criticalissues of standing.In one ruling, the court referred a question to the California SupremeCourt as to whether the Official Propo-nents of the successful 2008 voter initia-tive have the particularized interest nec-essary to give them standing to appeal Walker’s ruling or, alternatively, statelaw authority to represent California indefending a constitutional provision they proposed and voters accepted.In its other ruling, the panel concludedthat neither Imperial County, its Boardof Supervisors, nor its deputy clerk havestanding to appeal. That ruling affirmed Walker’s decision at the trial stage todeny Imperial’s motion to intervene.Debates about standing likely seemarcane to most people interested in theoutcome of this vital litigation, but in fact the issues involved are crucial. The panelnoted that if the Proponents do not havestanding, the effort to appeal Walker’sruling is at an end. None of the namedpublic officials in the case — the gover-nor, attorney general, and state officialscharged with administering the marriagelaws — defended Prop 8 before Walker,and none has appealed his ruling.Both January 4 rulings were issued on behalf of the entire panel and not attrib-uted to any single member.In a separate opinion, Judge StephenReinhardt, one of the three panel mem- bers, explained why he had denied a motion by the appellants that he recusehimself from the case due to his wife’srole as the executive director of the American Civil Liberties Union of South-ern California. The most pressing immediately beforethe appeals panel is whether the OfficialProponents, who represent the Protect-Marriage.Com—Yes on 8 campaign that prevailed in the 2008 ballot fight, havestanding to mount their appeal. In a 1997 pronouncement in a lawsuit chal-lenging an Arizona constitutional amend-ment requiring that all state business beconducted in English — passed by vot-ers over the opposition of leading stateofficials, who then refused to defend it in the courts — the US Supreme Court observed that state ballot initiative pro-ponents do not enjoy such standing inthe absence of authorization under statelaw or what is known as a particular-ized interest as individuals that would beaffected by the outcome of a lawsuit. The 9th Circuit panel pointed out thethorny issue raised by this legal ques-tion: If an initiative is passed over theopposition of state officials and thenchallenged successfully in federal court,those officials would have an effective veto over the ballot question’s passage by refusing to appeal — unless its propo-nents are allowed to step in.Charles Cooper, arguing on behalf of the Proponents before the panel last month, made that argument force-fully. He also argued that the California Supreme Court had earlier answered thequestion by allowing the Proponents to
“It is not clear whether the governor may achieve through a refusal tolitigate what he may not do directly:effectively veto the initiative.”