Breaking: Proposition 8 Question Certified to Ca. Supreme Court (Update: “Dear Ca. Supreme Court, We Really, Really Want to Hear This Case” and other updates)
[Guest post by Aaron Worthing; if you have tips, please send them here.]
Update: Updates throughout this post, and a new post on the memo explaining why Reinhardt didn’t disqualify himself, here.
I just learned this via Legal Insurrection. I will post more as I learn more.
The gist is this. Certification is where they officially ask another court a question. I have never heard of a court refusing to answer, so we can expect after a few rounds to see them answer it. Here they are asking the California Supreme Court to tell them whether the pro-proposition 8 forces have standing.
By the way, Reinhardt still hasn’t issued that promised memo on his very real conflict of interest yet.
So if the Ca. Supreme Court wants to game the system, they have a choice. On one hand, this panel looks very good for anyone who favors court-imposed gay marriage. On the other hand, if they grant the standing to the panel, its extremely likely to rise to the U.S. Supreme Court, and that is dicier question. No ruling might be better than a negative precedent, in their mind. Or they can gamble that Kennedy will give them a nationwide victory for gay marriage.
That being said, I think if we go by the law, they have to grant them standing. Their precedent, and the very logic of the initiative process demands that the proponents be treated as if they were the lawmakers for these purposes. But we have been down this road before.
Update: I read the order and here are some thoughts.
First, there is no attempt to address the claims that Imperial County should be allowed to intervene. Bear in mind, San Francisco was allowed to intervene in opposition to Proposition 8, but Imperial County was not. Instead they write this entire order on the assumption that if the proponents of Proposition 8 don’t have standing, no one has standing. I suppose like Reinhardt’s explanation as to why he is not conflicted out they will get a memo to use later explaining their reasoning. Update: Legal Insurrection claims that Imperial County’s standing was decided in another opinion. So I stand corrected. The hazards of blogging a breaking news story. And Reinhardt has finally issued that memo. I will read both opinions and share any additional thoughts shortly.
Second, you know I considered taking a moment to restate why I and Patterico felt that felt that the proponents had to have standing. But guess what? I don’t have to! The Ninth Circuit panel makes the case for me! Seriously read it and you will get an eloquent explanation of why the best reading of California’s constitution requires that the Ca. Supreme Court grant standing.
Only there is one problem with that. It’s the court making the argument. Seriously, read it. Hopefully I will have it posted below the fold but if not, go to Legal Insurrection and read it. You will get characterizations of the proponent’s arguments like this:
Although the Governor has chosen not to defend Proposition 8 in these proceedings, it is not clear whether he may, consistent with the California Constitution, achieve through a refusal to litigate what he may not do directly: effectively veto the initiative by refusing to defend it or appeal a judgment invalidating it, if no one else – including the initiative’s proponents – is qualified to do so. Proponents argue that such a harsh result is avoided if the balance of power provided in the California Constitution establishes that proponents of an initiative are authorized to defend that initiative, as agents of the People, in lieu of public officials who refuse to do so. Similarly, under California law, the proponents of an initiative may possess a particularized interest in defending the constitutionality of their initiative upon its enactment; the Constitution’s purpose in reserving the initiative power to the People would appear to be ill-served by allowing elected officials to nullify either proponents’ efforts to “propose statutes and amendments to the Constitution” or the People’s right “to adopt or reject” such propositions.
And bear in mind, the court never talks about the arguments on the other side. At best they argue that the precedents don’t quite show what the proponents need. But if there are any arguments to make against granting standing, you never hear it.
Mind you, if I was a federal judge hearing this case I would have granted them standing. I agree with the Ninth Circuit’s sentiment. But if they aren’t going to decide they should have at least faked neutrality. They should have said, simply that they didn’t feel that the authorities were sufficiently clear to draw a conclusion as to the state of California law and be done with it. Instead they go on and on in an order that reads more like the proponent’s brief than a neutral order. They shouldn’t care how this turns out, but obviously they do.
Yes, I hope the California Supreme Court rules in their favor on this issue. But it is not enough to see the right thing happen, but to see the right thing happen the right way. And once again, the Ninth Circuit shows us why it is hard to support them even when we agree with them.
Anyway, hopefully this will work to embed the opinion below the fold and you can read for yourself:
[Posted and authored by Aaron Worthing.]