Vikram David Amar

Understanding "Standing" in the Proposition 8 California Same-Sex Marriage Appeal: Part One in a Series

By VIKRAM DAVID AMAR and ALAN BROWNSTEIN

Wednesday, September 8, 2010

Over the next few months, the U.S. Court of Appeals for the Ninth Circuit will take up an appeal that is being brought by the sponsors of Proposition 8 (the California initiative banning same-sex marriage) to undo U.S. District Court Judge Vaughn Walker's ruling, made after a long trial, that the initiative violates the Fourteenth Amendment of the U.S. Constitution. When the Ninth Circuit begins its work, the first question the appellate judges will consider is whether the folks trying to preserve Proposition 8 are appropriate parties in the case -- that is, whether anyone who favors Proposition 8 has "standing" under the Constitution and relevant laws to defend the initiative measure in federal court.

If the Ninth Circuit determines that no defendant (other than the Attorney General and Governor, who have both declined to defend the initiative in either the trial or appellate court) has standing, then the appeal will be dismissed. If that happens, the findings and opinion resulting from the trial conducted by Judge Walker will also likely be erased. This is so because if the only defendants who had constitutional standing in the trial court (the elected executive officials) chose not to defend the measure, then the trial that took place was not a product of a live "case or controversy" under the Constitution; it was, instead, a trial between appropriate plaintiffs on one side and invalid parties -- the Proposition's sponsors -- on the other side. And the results of such a contest where only one side is properly represented cannot be afforded legal respect or significance.

Under this reasoning, the Ninth Circuit would send the case back to Judge Walker to return to square one, and to process the litigation simply on the basis that the plaintiffs should win by default, because the appropriate defendants -- the Attorney General and the Governor -- have conceded the matter. Under such a scenario, unless something new develops, Proposition 8 would be invalidated, but the invalidation would come in a ruling that could never be taken up to the higher courts to set any precedent that might be applicable outside California or that might induce (or even allow) the U.S. Supreme Court to weigh in.

In the space below, we begin to analyze some of the arguments supporting the idea that Proposition 8 sponsors should be recognized as having standing in federal court. In Part Two of this series, we will develop other arguments -- beyond even those yet identified by the parties -- that may call into question such standing. And in a later column, we will discuss the attempts by Imperial County (a California county whose electorate voted overwhelmingly in favor of Proposition 8) to intervene in the federal lawsuit (that is, to become a party when no one has named the county as a defendant) in order to defend the gay-marriage ban.

The U.S. Supreme Court Case That Raises Questions About the Initiative Sponsors' Standing

As many analysts have recognized, the argument against standing for the Proposition 8 sponsors stems from a 1997 U.S. Supreme Court case, Arizonans for Official English v. Arizona , involving a constitutional challenge to an Arizona initiative making English the official language of that state. By the time that case rose to the Supreme Court level, the only litigants still willing to defend the initiative against constitutional attack were the sponsors of the measure; the state officials charged with enforcing the state law were content to live with the lower court ruling striking the measure down.

The high Court ultimately dismissed the case on the ground that it had become "moot," because after the case was filed the plaintiff -- a state employee who was challenging the initiative's effect on the way she was forced to do her job -- had left the State's employ and thus was no longer affected by the initiative. But before the Court held the dispute to be moot, the Justices unanimously observed the following, on the question of the standing of the initiative sponsors to defend the measure in federal court:

"We have recognized [in a case from New Jersey] 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. [The Arizona initiative sponsors], 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 [constitutionally]-qualified defenders of the measures they advocated. . . . We thus have grave doubts about whether [the initiative sponsors] have standing under Article III [of the Constitution]. . . "

Although this language was not necessary to the Court's ultimate resolution of the Arizona case (and is thus what lawyers call "dicta"), one of us observed in an earlier column that this language, because of its breadth, force and unanimity, may very well cause problems for Proposition 8's sponsors.

Since that earlier column, the Proposition 8 sponsors have tried to show, in preliminary briefing on the standing question, that California cases recognize the special status of initiative sponsors to defend initiative measures in state court, such that even if the dicta from the Arizona case were to be followed, California initiative backers should be deemed to be appropriate constitutional defendants in federal court as well. The City of San Francisco -- one of the plaintiffs challenging Proposition 8 -- has filed preliminary briefs disagreeing with this analysis. Although there is much more briefing before the Ninth Circuit to come, it is helpful to analyze in some detail the legal back-and-forth between these parties thus far.

The Sponsors' Recitation of California Law and San Francisco's First Retort: Sponsor Standing in Lieu of Elected Official Defense Must Be Established

The Proposition 8 sponsors point to many cases in which California courts permit initiative sponsors to intervene in lawsuits when the initiatives are challenged. San Francisco's first significant response to this is that these cases are unhelpful to the Proposition 8 sponsors because the cases involve California initiative sponsors being permitted to intervene in state court "alongside public officials"; '[i]n none of these cases did [sponsors] assert or establish independent standing to defend a law 'in lieu of public officials.'"

This assertion by San Francisco is not quite right, and it may also be beside the point. It is not quite right because one case -- indeed, the very first case -- the Proposition 8 sponsors discuss, Strauss v. Horton, is one in which initiative sponsors were permitted to intervene in the California Supreme Court where, as things turned out, they were the only defendants who ended up defending the initiative on the merits, because the public elected executive officials decided (as they did in Judge Walker's Proposition 8 trial) not to defend. While it may be true that the sponsors in Strauss were permitted to intervene before anyone knew the Attorney General would concede the case, the California Supreme Court nonetheless went on -- after the Attorney General made clear his ultimate agreement with the plaintiffs that the initiative was invalid -- to adjudicate the merits of the dispute, something that a federal court simply could not do unless a valid party were defending the measure's legality.

It is somewhat surprising that San Francisco did not acknowledge, let alone deal with, this case, not only because the Proposition 8 sponsors relied on it, but also because this case was the unsuccessful state-court challenge to Proposition 8 itself in 2009. (That unsuccessful state- court challenge, of course, was followed by the federal challenge brought in Judge Walker's court.)

In addition to ignoring the important case of Strauss, San Francisco's argument here may fail on its own terms: The single New Jersey state decision that the U.S. Supreme Court itself relied on in the Arizona case -- as demonstrating an adequate state-law authorization of legislator standing to defend a state measure -- involved a situation in which a New Jersey court permitted legislators to intervene to defend a legislative measure alongside the state Attorney General, not in lieu of him. So, at least as to state-legislator standing, state-law cases allowing intervention to defend even when executive officials are also defending appear adequate to confer federal constitutional standing. If the same rules apply for initiative-sponsor standing (as San Francisco and the Proposition 8 sponsors seem to think is true under the Arizona case dicta -- at least they offer no reason why the rules shouldn't be the same), then the California cases cited by Proposition 8's sponsors help the sponsors quite a bit.

Evaluating Specific Language From California Cases Suggesting or Rejecting a Sponsor's Right to Defend

The second argument San Francisco makes has to do with some particular language from one important California Supreme Court case the Proposition 8 sponsors invoke, touching on a right of sponsors to intervene when elected officials may not be vigorously defending. San Francisco deflects this language by characterizing it as "dicta." In the case, Building Indus. Ass'n of So. Cal. v. City of Camarillo, a group interested in preserving the initiative process argued that a particular provision of California's Evidence Code must be construed a certain way because otherwise public officials may not vigorously defend initiatives and the initiatives would then go undefended. The court responded by saying: "This argument would have merit if intervention [by the sponsors] was unavailable. But. . . we believe that [under these circumstances] the trial court in most instances should allow intervention by proponents of the initiative [and to] fail to do so may well be an abuse of discretion [because] [p]ermitting intervention by the initiative proponents under these circumstances would serve to guard the people's right to exercise initiative power, a right that must be jealously defended by the courts."

While it is true that in this Camarillo case there was no actual initiative sponsor whose actual request to intervene was being reviewed, it is hard to see the wording just quoted as "dicta." As noted earlier, dicta is language a court uses that is not necessary to justify or explain the result the court reaches in the given case. But when a court says an "argument would have merit if X were true, but the argument lacks merit because X is not true," then the falsity of X does not strike us as dicta -- it appears to be essential to the court's rejection of the argument, and thus to the court's resolution of the case.

A third argument San Francisco advances relies on a different California case, one not mentioned by the Proposition 8 sponsors, but one in which intervention was not permitted for an organization seeking to defend a statutory initiative (coincidentally, a statutory ban on same-sex marriage, the very statutory initiative whose invalidation by the California Supreme Court in 2008 led to Proposition 8, a state constitutional amendment).

Yet this case can't help San Francisco very much, because the group that tried to intervene to defend the statutory initiative there "played no role in sponsoring [the measure] because the organization was not even created until one year after voters passed the initiative." For this reason, the court's opinion rejecting intervention observed explicitly that "this case does not present the question of whether an official proponent of an initiative [under] Election Code section 342 [that is, an official sponsor] has a sufficiently direct and immediate interest to permit intervention in litigation challenging the validity of the law enacted" -- which is precisely the question the Supreme Court's dicta from the Arizona case may require the Ninth Circuit to address in the present case.

The Asserted Similarities Between California and Arizona Case Law

San Francisco asserts a fourth argument as well -- that Arizona case law authorizes initiative sponsors to intervene on terms no different than those recognized in California cases. As San Francisco puts its point: "But that did not cause the Supreme Court [in the Arizona case] to conclude that Arizona law conferred authority upon initiative sponsors to effectively represent the state itself. Rather, the Court concluded that no Arizona law existed that appointed initiative sponsors to represent the State."

We have not researched Arizona cases to see if they are indeed similar to the California cases on which Proposition 8's sponsors rely. But even if they are, San Francisco's argument has a significant flaw; the U.S. Supreme Court did not conclude -- as San Francisco mistakenly says the Court concluded -- that "no Arizona law existed" that may have conferred federal standing on the Arizona initiative sponsors. Instead, the Supreme Court, seemingly choosing its words carefully, said it was "aware of no Arizona law" amounting to an effective appointment of initiative sponsors to defend. It is important to observe here that even though the Supreme Court directed the Arizona initiative sponsors to brief the issue of their standing, the sponsors' brief there cited not a single Arizona case on the question of state-law authorization, much less any of the cases San Francisco cites to demonstrate that Arizona law is similar to California's. So ignorance of Arizona case law by the Supreme Court would certainly be understandable.

More generally, one reality about dicta is that, since nothing necessarily turns on it, the Supreme Court can (and does) use it to float notions without the Court having to do the research to be sure it understands everything completely. (Indeed, that is why dicta is not considered binding in later cases.) So it is possible that, even if (as San Francisco asserts) Arizona cases and California cases are similar in all relevant respects, the Supreme Court would, upon learning of Arizona cases of which it was unaware, have found standing to exist.

On balance, then, the arguments asserted by San Francisco, at least thus far, don't easily overcome the arguments made by, and the cases unearthed by, the Proposition 8 sponsors. But as we noted above, there is much more briefing -- by San Francisco, by the same-sex couples who themselves are plaintiffs too, and by Proposition 8 sponsors -- to come. And there are additional arguments, some of which tend to negate sponsor standing, that none of the parties may themselves frame. In Part Two of this series, we'll explore some of these possibilities.


Vikram David Amar, a FindLaw columnist, is the Associate Dean for Academic Affairs and Professor of Law at the University of California, Davis School of Law. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.

Alan Brownstein is a Professor of Law and the Boochever and Bird Endowed Chair for the Study and Teaching of Freedom and Equality at the University of California, Davis, School of Law.

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