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Prop 8 Proponents' Standing to Appeal

by Professor Will Huhn on December 6, 2010

in Constitutional Law,Equal Protection,Right to Privacy,Standing,Wilson Huhn

     The Ninth Circuit heard oral argument today in the Prop 8 case.  The first hour of oral argument was devoted to the question of whether the Constitution permits the proponents of Prop 8 to appeal the decision of the trial court to the court of appeals.

     On August 4, 2010, Federal District Court Judge Vaughn Walker issued his decision finding that California Proposition 8 to be unconstitutional under the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment.  However, Governor Arnold Schwartzenegger and Attorney General Jerry Brown agreed with Judge Walker's decision and refused to appeal it.  The groups who supported the adoption of the ballot initiative intervened in the case in order to appeal Judge Walker's decision to the federal court of appeals.  On September 6 I posted this entry, The Prop 8 Case: Standing to Appeal, setting forth the general rules of standing and suggesting that the proponents do not meet the requirements that the Supreme Court has found necessary to confer jurisdiction on the federal courts to hear an appeal.

     The principal case that the judges of the Ninth Circuit questioned the attorneys about today was Arizonans for Official English v. Arizona, decided by the United States Supreme Court in 1997.  In that case, as in this one, a federal district court had struck down a state law that had been adopted by the people.   In that case the law was a ballot measure that made English the official language of the state.  And also as in this case, the Governor of the state decided not to appeal the trial court's decision striking down the law.  The Ninth Circuit Court of Appeals allowed the proponents of the ballot measure, Arizonans for Official English (AOE)  to appeal the lower court decision.   In a unanimous opinion written by Justice Ginsburg, the Supreme Court of the United States expressed "grave doubts" that AOE had standing to appeal under Article III of the Constitution.  Here is an extended portion of Justice Ginsburg's opinion on AOE's standing:

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. … 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.' " …. An intervenor cannot step into the shoes of the original party unless the intervenor independently "fulfills the requirements of Article III." …

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. … AOE and its members, however, are notelected 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 (1983) (summarily dismissing, for lack of standing, appeal by an initiative proponent from a decision holding the initiative unconstitutional).

AOE also asserts representational or associational standing. An association has standing to sue or defend in such capacity, however, only if its members would have standing in their own right. … The requisite concrete injury to AOE members is not apparent. …

We thus have grave doubts whether AOE and Park have standing under Article III to pursue appellate review.

     At oral argument today Charles Cooper, the attorney for the proponents of Proposition 8,  cited a New Jersey case decided before Arizonans for Official English in support of the proposition that his clients had standing.  According to this report of the proceeding from Adam Bink at Prop 8 Trial Tracker quoting analyst Brian Leubitz, when asked to cite a federal case that supported his position Mr. Cooper admitted:

I donât have a case to show Article 3 standing for proponents.

This concession is significant because the state courts may have different standards for conferring standing than the federal courts; federal courts are bound by the requirements of Article III, Section 2, that limit the jurisdiction of the federal courts to "cases" and "controversies."  The states are free to confer broader jurisdiction on their own courts.

     In another post, Bink quotes Shannon Minter, another attorney active in same-sex marriage cases, who made this observation:

Judges Reinhardt and Hawkins seemed quite critical of Charles Cooperâs claim on behalf of the proponents that Prop 8 could be justified based on arguments relating to procreation. The judges pressed Cooper on how procreation could be a justification for Prop 8 when California law gives same-sex couples exactly the same parentage rights as heterosexual couples.

     That really goes to the core of the problem of standing as well.  In order to have standing to file an appeal, a party must show that it has been harmed by the decision of the trial court.  Neither the proponents of Proposition 8 nor anyone else will be harmed if Prop 8 is declared unconstitutional.  The only people who will be effected, as a practical matter, are gay and lesbian couples and their children, all of whom will greatly benefit when Prop 8 is overturned.

     Here are links to other reports on and reactions to today's oral argument:

     The National Organization for Marriage, National Organization for Marriage Decries Biased Hearing in Ninth Circuit

     Lisa Keen, Keen News Service: Prop 8 arguments: Feisty questions on standing and merits for both sides

     Jessica Garrison, L.A. Times: Prop. 8: Judges question whether gay-marriage foes have legal standing [Updated]

Wilson Huhn teaches Constitutional Law at The University of Akron School of Law. Visit his website for background and information about the Constitution, as well as links to other sites devoted to Constitutional Law.

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