Can the proponents of Proposition 8 appeal Judge Walker’s ruling?

Posted by Arthus S. Leonard on

"There has been a bit of chatter on-line about whether Judge Walker's decision in Perry v. Schwarzenegger, 2010 Westlaw 3025614 (N.D.Cal., Aug. 4, 2010), finding Proposition 8 unconstitutional, can be appealed by the Proponents of Proposition 8, who are defendant-intervenors in the case, when the actual named defendants, Gov. Schwarzenegger, Attorney General Brown, and a handful of other state officials, have not signified their intention to appeal.   Indeed, one might even question Judge Walker's decision to allow the Proponents to intervene when the defendants signified that they were not going to defend Proposition 8 from the constitutional challenge.

"In papers filed opposing the motion to stay the judgment, counsel for the plaintiffs raise this point, in a section titled 'There Is a Significant Question As To Whether Proponents Even Have Standing to Invoke the Jurisdiction of the Court of Appeals.'  This section of the paper relies on two U.S. Supreme Court opinions: Arizonans for Official English v. Arizona, 520 U.S. 43 (1997), and Diamond v. Charles, 476 U.S. 54 (1986). 

"In Diamond, a doctor who was opposed to abortion sought to defend some Illinois anti-abortion measures that had been declared unconstitutional by a federal district court. ...

... "The Arizona case is a bit different.  Arizona's constitution was amended by ballot initiative to make English the official language of the state, requiring that all state business be conducted in English.  A Hispanic employee of the state sued to have the amendment declared  unconstitutional, and won her case.  The state decided not to appeal.  At that point, the proponents of the amendment sought to intervene to appeal the ruling. ...

... "Justice Ginsburg wrote: 'An intervenor cannot step into the shoes of the original party unless the intervenor independently fulfills the requirements of Article III.'  The Arizona English organization claimed that they were intervening in the case in a quasi-legislative capacity, but the Court was doubtful.  'AOE and its members, however, are not elected 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.'

"Because the ultimate result in this case was to dismiss the lawsuit, the Court noted, the Arizona English organization could still pursue enforcement of the English-only amendment in the state courts, and thus lacked a concrete injury that needed to be vindicated through federal appeal.


... "So where does this leave us?  A strong indication from the Supreme Court that initiative proponents whose efforts result in the enactment of laws or constitutional amendments generally do not have standing to participate as parties in subsequent litigation concerning their constitutionality, and are even less likely to be found to have standing to appeal an adverse ruling on constitutionality if the state, itself, decides not to appeal.  Although the Supreme Court refrained from actually ruling on the question in the Arizona case, it certainly signaled a disposition against finding standing in such a situation.

"Whether the 9th Circuit will construe things that way when it is called to rule on the Proponents' appeal of Judge Walker's decision is uncertain, as is the question whether the Supreme Court would extend its reasoning in the Arizona English case to cover this situation.  But it is certainly a plausible argument that a decision by the governor and attorney general may mean that the case stops here.

"On the one hand, that would be fortunate for those who want to marry in California.  On the other hand, it means that Judge Walker's decision remains merely a trial court ruling and order, with no precedential authority beyond the state of California.  For those who think that Walker's very persuasive decision can survive appellate review, this may seem like a lost opportunity to achieve a regional (9th Circuit) or nationwide precedent that could then be used to attack similar amendments in more than 30 states."

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