The Strange Career of Same Sex Marriage Litigation

Why would a federal court ask state justices to do something that they have no right to do?

An odd ruling out of the Ninth Circuit today, which is hearing the appeal of Judge Walker’s opinion overturning Proposition 8.  The Ninth Circuit panel has asked the California Supreme Court for advice on the question of the intervenor’s standing to be heard in the case. Full order here.

You might recall that after Judge Walker’s ruling, neither then-Gov. Schwarzenegger nor then-AG Jerry Brown elected to appeal it.  Now, various groups, including the clerk of (quite conservative) Imperial County, California, has asked to intervene and appeal the case for themselves, and the 9th Circuit theoretically is asking the California Supremes for guidance on the standing question.

This is strange to me, because standing is a question of federal constitutional law, deriving from the US Constitution’s provision that federal courts can only hear “cases and controversies.”  So why would a state Supreme Court have anything to say about it?  The Ninth Circuit has asked the California Supremes whether California law gives these sorts of intervenors standing to sue regarding initiatives, but I’m wondering why that’s relevant: if a federal court doesn’t have jurisdiction under Article III, it doesn’t matter what state law says.

Second, in order for a question to be certified to a state court, that court must able to accept certified questions.  My understanding is that the California Supreme Court does not accept these questions.  So what’s the point?

Obviously, it couldn’t be this easy, or the Ninth Circuit wouldn’t have done it this way.  But it seems bizarre.  I’ll keep checking.

UPDATE:  Here’s why the Ninth Circuit said it’s okay:

“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.

There is something to this: state law creates property rights, for example, so a federal court would need to know whether someone has a property interest before a plaintiff has suffered “injury-in-fact” (a key part of the test).  But you can only go so far with that: when the state of Massachusetts in Massachusetts v. EPA said that it had a protected property interest in the coastline and was thus a proper plaintiff to bring a climate change case, the Court didn’t just say, “well, the state said it, so it must be true.”  And the Four Horsemen rejected it despite that.

Author: Jonathan Zasloff

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic - Land Use, the Environment and Local Government. He grew up and still lives in the San Fernando Valley, about which he remains immensely proud (to the mystification of his friends and colleagues). After graduating from Yale Law School, and while clerking for a federal appeals court judge in Boston, he decided to return to Los Angeles shortly after the January 1994 Northridge earthquake, reasoning that he would gladly risk tremors in order to avoid the average New England wind chill temperature of negative 55 degrees. Professor Zasloff has a keen interest in world politics; he holds a PhD in the history of American foreign policy from Harvard and an M.Phil. in International Relations from Cambridge University. Much of his recent work concerns the influence of lawyers and legalism in US external relations, and has published articles on these subjects in the New York University Law Review and the Yale Law Journal. More generally, his recent interests focus on the response of public institutions to social problems, and the role of ideology in framing policy responses. Professor Zasloff has long been active in state and local politics and policy. He recently co-authored an article discussing the relationship of Proposition 13 (California's landmark tax limitation initiative) and school finance reform, and served for several years as a senior policy advisor to the Speaker of California Assembly. His practice background reflects these interests: for two years, he represented welfare recipients attempting to obtain child care benefits and microbusinesses in low income areas. He then practiced for two more years at one of Los Angeles' leading public interest environmental and land use firms, challenging poorly planned development and working to expand the network of the city's urban park system. He currently serves as a member of the boards of the Santa Monica Mountains Conservancy (a state agency charged with purchasing and protecting open space), the Los Angeles Center for Law and Justice (the leading legal service firm for low-income clients in east Los Angeles), and Friends of Israel's Environment. Professor Zasloff's other major activity consists in explaining the Triangle Offense to his very patient wife, Kathy.

10 thoughts on “The Strange Career of Same Sex Marriage Litigation”

  1. The Ninth Circuit cited the appropriate California rule: the Cal SC can take the certified question, if it wants. Interestingly, the Cal rule allows anyone to weigh in on whether the court should grant the request. Rule 8.548(e)(1). So, fire away.

    The US SC certified a question to the Montana SC last term, I think, that had to do with standing. Mootness, might be a better way to describe that one.

  2. The point is that the STATE has standing, and the plaintifs are arguing that they, as the initiative backers, are entitled to exercise that standing in the state's place, if the state doesn't exercise it, as a matter of state law. From the Ninth circuit, via Volokh:

    "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."

    Whether the initiative backers are entitled to exercise the State's standing in it's stead is a matter of state law, not federal, since the claim it that it's California law that entitles them to do so.

  3. Brett —

    I cited this and addressed it in the update; maybe your post crossed. State law might indeed be RELEVANT for federal standing analysis, but it can't be DISPOSITIVE. Lujan requires "injury-in-fact"; the state can't wave its magic wand and say, "Presto! These people have sustained injury-in-fact". There has to be, well, a FACT. Now, I think the whole Lujan framework is a little silly, especially as a matter of constitutional law, but as long as the Supremes demand that we use it, then we have to.

  4. No maybe about it.

    The state, according to the court, has standing, if the question of whether a state law is constitutional is brought before a federal court. This much is pretty uncontroversial. The question under state law is who may exercise that standing. Certainly you wouldn't dispute that state law would be dispositive as to whether the Governor might exercise that standing if the AG declined, right? That if the Governor and AG got into a fight about it, the state Supreme court would have the final say, not a federal circuit court. So if state law really says that initiative backers get to exercise that standing if the state government declines, it's up to the state judiciary to confirm or deny this.

  5. California Rule of Court Rule 8.548(a) provides: "On request of the United States Supreme Court, a United States Court of Appeals, or the court of last resort of any state, territory, or commonwealth, the Supreme Court may decide a question of California law if: (1)The decision could determine the outcome of a matter pending in the requesting court; and (2)There is no controlling precedent."

    Where did Mark get the idea California's Supreme Court doesn't accept certified questions?

  6. Methinks that the Ninth Circuit certified the case to the CA Supreme Court in order to keep it from going to the US Supreme Court. If the CA Supreme Court rules "no standing", it will be easier for the US Supreme Court to deny cert. After all, the US Supreme Court cannot decide state law contrary to a state's highest court. Anthony Kennedy may view this as a form of judicial statesmanship, and John Roberts (who is much smarter and more cynical) might view this as a fight he wants to avoid. (Scalia, Thomas, and Alito, presumably, would vote to grant cert.) CA will get same-sex marriage from the ballot box or legislature in just a few years anyway, so Roberts would lose little by giving the future CA voters a mulligan today.

    One thing to remember about this case: it was relatively easy because the law was established by referendum, and the record shows that the law's proponents appealed to nothing but bigotry. An attack on a legislative product would be easier to defend, both at the trial and appellate level. Maybe this is what Roberts is waiting for.

  7. Brett, that's a good way to put it; that makes sense.

    I also think that Ebenezer Scrooge is right; much easier to allow the state court to get rid of this. I said a while ago that AMK would love to uphold this law, because then it only applies to California and he doesn't have to decide whether nationwide the Constitution mandates gay marriage.

  8. The funny thing about all this is that "standing" on appeal is really a different question than standing in the federal district court. The latter asks whether a plaintiff can invoke the federal court's jurisdiction and requires an injury in fact. Standing on appeal, by contrast, is really about who can properly substitute for an AWOL state Attorney General. (Think about it: on appeal, either the losing party appeals or it doesn't, and that's that; it's only because we're talking about an AG not appealing do we have an issue here.) The trouble is that the Supreme Court has used the same word to describe the appellate problem that it uses to describe the trial problem. If state law matters here, as the 9th circuit seems to think, it's because we're really describing a separate problem — one in which state law can matter, because we're trying to figure out, under state law, who can serve as a substitute for the state AG. By contrast, in your typical district court standing question, state law is wholly irrelevant, because of the injury in fact requirement and because this kind of standing derives from Article III.

  9. It seems this would be pretty easy to look up. In general, complainants don't have even a ghost of an argument for substituting their judgement for that of state officials (imagine how much fun this would be in criminal cases), so if there's a special exception for initiative sponsors one would think it would be obviously visible.

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