Legal Commentary

Ninth Circuit Panel Considering the California Same-Sex Marriage Case Certifies Standing Question to California Supreme Court About

By Eugene Volokh

Here?s the order certifying the question, and Judge Reinhardt?s concurring opinion. The question is:

Whether under Article II, Section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure possess either a particularized interest in the initiative?s validity or the authority to assert the State?s interest in the initiative?s validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so.

Here is what strikes me as the heart of the panel?s reasoning for certifying this question (see the opinion itself for the citations):

?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.? Having been granted intervention in the district court is not enough to establish standing to appeal; ?an intervenor?s right to continue a suit in the absence of the party on whose side intervention was permitted is contingent upon a showing by the intervenor that he fulfills the requirements of Art. III.? Where a plaintiff in federal district court must demonstrate ?an ?injury in fact? ? an invasion of a legally protected interest? by the defendant ? so too must an appellant prove his standing by establishing ?a concrete injury related to the judgment? he seeks to appeal. States, however, ?ha[ve] the power to create new interests, the invasion of which may confer standing.? ?In such a case, the requirements of Article III may be met.?

Proponents contend that they possess such an ?interest that is created and secured by California law? ? an interest in the validity of the voter-approved initiative they sponsored, which interest is ?inva[ded]? by the judgment declaring Proposition 8 unconstitutional. argue that their interest as the official proponents of the initiative is different in kind than that of the citizens of California generally. If Proponents do possess such a particularized interest, they would have standing to appeal the judgment below.

Proponents also claim an alternative and independent additional basis for standing: The State of California itself has an undisputed interest in the validity of its laws, and Proponents argue that ?they may directly assert the State?s interest in defending the constitutionality of its laws.? Proponents allege they are able to represent the State?s interest because they ?have ?authority under state law? to defend the constitutionality of an initiative they have successfully sponsored ... acting ?as agents of the people? of California ?in lieu of public officials? who refuse to do so.? If California does grant the official proponents of an initiative the authority to represent the State?s interest in defending a voter-approved initiative when public officials have declined to do so or to appeal a judgment invalidating the initiative, then Proponents would also have standing to appeal on behalf of the State.

Thanks to How Appealing for the pointer.

UPDATE: I neglected to link to the Ninth Circuit?s opinion rejecting the attempt to intervene by Imperial County and its deputy clerk.

Full post as published by The Volokh Conspiracy on January 04, 2011 (boomark / email).