But if you don't change yourself / You have no right to complain
On Thursday, August 12, U.S. District Court Chief Judge Walker issued his decision to deny an indefinite stay (here) of his ruling that Proposition 8 is unconstitutional (here). The $64,000 question now on many people’s minds is, will there be an appeal? Governor Schwarzenegger and Attorney General Brown have stated that the government defendants will not appeal. The official Prop 8 proponents, who intervened in the trial court to defend the measure, have already filed a lengthy “emergency motion” (here) with the U.S. Court of Appeals for the Ninth Circuit.
But the plaintiffs and Judge Walker have questioned whether the proponents even have the legal entitlement – “standing” – to appeal Walker’s ruling. Although the answer is not clear, there is a strong argument that the proponents do not. And if the Ninth Circuit and possibly the Supreme Court agree, then Judge Walker’s decision on the merits holding Proposition 8 unconstitutional and enjoining its enforcement will stand, restoring the freedom to marry to same-sex couples in California.
The question of the proponents’ standing to appeal, or lack thereof, is a complicated one, but it’s grounded in some basic constitutional principles. Article III of the Constitution limits the federal courts to hearing “cases” or “controversies.” For some years now the Supreme Court has interpreted this to mean that parties asking federal courts to act must have “standing.” One constitutional requirement for standing is that the party suffer an injury sufficient to give him, her, it, or them an appropriate stake in the dispute. This injury must be “concrete and particularized,” and it cannot be a mere “generalized grievance.” It is not enough that people object to the government not following what they believe the law to be; the Supreme Court uses standing doctrine to limit the number of people who have the right to take up the time of the federal judiciary. As part of this gatekeeping, the Court has said that the federal courts are not to be treated as "a vehicle for the vindication of the value interests of concerned bystanders." So, parties need to be injured in some way more than just passionately disapproving of what the government is doing if they’re going to be able to have the federal courts pass on their complaints.
These requirements of injury and standing apply in appeals and not just at trial. So, in a case called Diamond v. Charles in 1986, the Supreme Court rejected an attempt by a pro-life doctor to appeal a decision enjoining parts of Illinois’s abortion-restricting law. The state government was a defendant at trial, lost, and opted not to appeal. Pro-life physician Eugene Diamond had intervened as a defendant at trial, and he tried to appeal. When the case came before the Supreme Court, the Court dismissed his appeal. The Court held that Diamond did not show that he had personally suffered or been imminently threatened with an adequate injury. “The presence of a disagreement, however sharp and acrimonious it may be,” the Court ruled, “is insufficient by itself to meet Art. III's requirements.”
The Prop 8 proponents are in the same position. They intervened at trial to defend the measure they’d qualified for the California ballot because of their value interests in supporting mixed-sex only civil marriage and their sharp disagreement with the plaintiffs about Prop 8’s constitutionality or unconstitutionality, and because the governmental defendants refused to argue that Prop 8 was constitutional. As in Diamond, the state was the original defendant, it lost, and it has chosen not to appeal; and now the proponents are trying to appeal to the Ninth Circuit.
In addition, in 1997 the Supreme Court decided Arizonans for Official English v. Arizona, a case dealing with ballot initiative proponents who wanted to defend their measure in the federal courts. Because the Court held that subsequent developments made the suit challenging Arizona’s English-only initiative moot, it did not need to rule definitively on whether ballot proponents satisfy constitutional standing requirements. But, in light of established standards for constitutional “injury,” the Supreme Court expressed “grave doubts” that the proponents would have standing in federal court.
Prop 8’s proponents therefore need some way to get around the force of the Diamond decision and the thoughtful dicta in Arizonans for Official English. The basic gist of their argument is that, since California court decisions allow official ballot proponents to defend their measures in court, that should be enough special stake in challenges to ballot initiatives to satisfy the Constitution’s “case or controversy” requirement and thereby give them standing in federal court. (The proponents’ standing or lack thereof didn’t really matter in the trial court because state defendants were present, and it was the state’s law that the plaintiff challenged; they therefore had a case or controversy. The participation of the Prop 8 proponents at trial was like icing on the Article III cake, but we still need cake for the Ninth Circuit to have an appeal.)
The proponents are trying to rely on decisions allowing legislatures standing to defend their statutes as well as other dicta from Arizonans for Official English. In Karcher v. May in 1987, the Supreme Court rejected an attempt by former New Jersey legislative leaders to appeal a decision enjoining a state law. Like here, in Karcher the Attorney General and named governmental defendants refused to defend the law. So the New Jersey legislature, represented by its then-officers, had intervened to defend the law and lost. But the legislature refused to appeal, and the Supreme Court held that the officers who by then were former officers did not have standing themselves to appeal. Arizonans for Official English characterized Karcher as “recogniz[ing] 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 Prop 8 proponents are arguing that they are like representatives of a state legislature, and that state law (here, California court decisions allowing ballot proponents to defend their measures) should suffice to satisfy constitutional standing requirements. They argue that this state authorization to defend distinguishes them from the Arizona ballot proponents before the Supreme Court in Arizonans for Official English.
But Arizonans for Official English rejected the relevance of Karcher on the ground that the ballot proponents there “[we]re not elected representatives.” The same is true of the Prop 8 proponents here. Although Arizonans for Official English further noted that those proponents lacked state law authorization, the Supreme Court did not hold there or even say that this would be sufficient for constitutional standing. At most the dictum there suggests that such authorization would be necessary.
This is where the uncertainty comes in. Will the Ninth Circuit and/or Supreme Court rule that when a state authorizes ballot initiative proponents to defend successfully passed measures in state courts, that gives them enough stake in federal court suits challenging those measures to satisfy constitutional standing requirements? Should they say that?
Arguably not. In some of the cases relied upon by the proponents in their appeal to the Ninth Circuit, the state or federal legislatures had acted by majority vote to authorize particular parties to represent the entire legislature. This afforded a significant limitation on the circumstances in which federal courthouse doors would be thrown open to people who merely disapproved of the way laws were being interpreted or enforced (or not enforced). Moreover, in other cases relied on by the proponents, like U.S. v. Lovett decided by the Supreme Court in 1946 or Cheng Fan Kwok v. INS decided in 1968, the legislatures actually appeared simply as amicus curiae (“friends of the court”), not actual Article III parties; appellate jurisdiction over those cases was proper because the regular governmental defendants were in the case (even though they may have agreed with the plaintiffs there about aspects of the statutes’ unconstitutionality). Granted, the Supreme Court’s decision in INS v. Chadha did allow Congress’s actual intervention as a defendant when the INS did not defend a challenged statute. But the Court took pains to argue that the dispute there counted as a constitutional “case or controversy” wholly aside from Congress’s participation.
The Prop 8 proponents’ final argument for why they should be able to file an appeal in the Ninth Circuit claims that Judge Walker erred in denying Imperial County and related defendants to intervene in the suit, and that Imperial County would have Article III standing if that ruling were reversed. It is not clear that Imperial County would have standing were it a party; Walker opined that it would not, and his reasoning seems sensible.
Regardless of the answer to Article III standing question for Imperial County, though, the fact remains that it is not a party. And Judge Walker’s order denying intervention does not appear to be wrong. Although Judge Walker did not rely on the tardiness of Imperial County’s motion to intervene, timeliness of a motion to intervene is a legal requirement for a non-party to join a case (whether intervention “as of right” or “permissive” intervention). The plaintiffs made persuasive arguments that there was no objective justification for Imperial County to have waited as long as it did to move to intervene. Judge Walker thought that the parties were not prejudiced by this tardiness and there was no evidence of bad faith, but it is not clear that those factors make Imperial County’s motion timely.
Moreover, Walker convincingly concluded that California law does not give local governments like counties interests separate from those of the state. His analysis of the other elements of the legal test for intervention rights also seem right. (The Prop 8 proponents’ motion to the Ninth Circuit makes too much of one poorly worded sentence where Walker wrote that “Imperial County’s ministerial duties surrounding marriage are not affected by the constitutionality of Proposition 8.” But Walker’s opinion makes clear that he meant that the ministerial nature of the duties would not be affected whether or not Prop 8 were upheld or invalidated, and that he fully appreciated that the ministerial duty would be to issue marriage licenses as directed by the State Registrar, who will act based upon the outcome of the litigation challenging Prop 8.)
None of this means that it is impossible for the Ninth Circuit or the Supreme Court to identify new constitutional standing rules that would empower official ballot proponents like the Prop 8 proponents here, or that those courts could not reject Judge Walker’s eminently reasonable understanding of California law regarding issuance of marriage licenses and somehow find Imperial County to have both a right to intervene and Article III standing to pursue an appeal. But if existing law is the touchstone, the plaintiff same-sex couples have the advantage here and the Prop 8 proponents should be held not to have standing to appeal in the absence of the state defendants’ deciding to do so themselves.