“Hey neighbor let me give you some advice”
Williams Institute fellow Craig Konnoth has written a “Viewpoint” opinion piece in the Sacramento Bee here, where he argues that the outcome of the very close race between Steve Cooley and Kamala Harris “is important for same-sex marriage rights nationally.” Cooley has said that he would defend Proposition 8 if he were Attorney General; Harris has said she would not due to its unconstitutionality, in her view and the view of federal district court Chief Judge Vaughn Walker. Although Konnoth’s piece is generally on point, it may raise some alarms that it should not.
Konnoth writes that, “[g]iven the deadlines involved, it is unclear whether Cooley will have a chance to intervene at either the appellate or Supreme Court levels. However, if the courts allow him to intervene in the case, it would solve the standing problem [created by Jerry Brown’s and Arnold Schwarzenegger’s refusal to defend Prop 8], and the Supreme Court could face the issue head-on.” I believe this fear to be misplaced.
The deadline has already passed for California to file an appeal in the Prop 8 litigation. Although the United States Court of Appeals for the Ninth Circuit has the power to waive almost every one of the procedural rules that govern its hearing of appeals, the rules themselves are explicit that the one rule the Court of Appeals cannot waive is the deadline for filing a notice of appeal. Because allowing Cooley to intervene to re-enter California as a defendant would clearly be an end-run around this nondiscretionary limitation, I am confident that an intervention motion would be denied. Thus, even if Cooley were to win the Attorney General race, he will not be able to intervene on behalf of California in the Prop 8 litigation.
Now, he would likely be able to seek to have California participate in an “amicus” capacity, as a “friend of the court” but not an official party. Some people have suggested (in the Desert Sun article here, for example) that even such an official representation by the state would harm the plaintiffs’ chances on appeal. But that is far from clear.
First, in this hypothetical, California’s official approval of the Prop 8 defenders’ conclusions should not affect whether or not the courts conclude that the Prop 8 proponents have or lack standing to appeal. Subsequent approval by one elected official should not be taken as adequate authorization for the ballot proponents to defend the statute on their own, since the voters did not authorize the proponents to defend even though they could have: prior initiatives in California have at times specified that their proponents would be empowered to defend them in Court.
Second, the judges of the Ninth Circuit Court of Appeals, the Justices of the U.S. Supreme Court, and just about everyone else knows that Californians are closely divided about the merits of Prop 8’s ban on same-sex couples’ marrying civilly. The fact that one elected state official (Cooley, continuing this hypothetical scenario), not representing a party to the appeal, believes Prop 8 to be constitutional should therefore not carry much weight. Indeed, cases from other federal Courts of Appeals have allowed governors to file amicus briefs on behalf of states. Thus, even if Steve Cooley tried to file a brief arguing in favor of Prop 8 in the Ninth Circuit, Jerry Brown as Governor might be able to file an amicus brief for California arguing against the constitutionality of Prop 8. Can anyone really think such dueling amicus briefs would have much influence on judicial decisionmaking?
[To complicate the matter for federal jurisdiction scholars who may read this, there is a statute, Section 2403(b) of title 28 of the United States Code, that allows States to intervene for argument on the question of the constitutionality of a statute of the state affecting the public interest. Assuming a ballot initiative is embraced within the meaning of “a statute,” there is still a question about the interaction of this statute with the Federal Rules of Appellate Procedure, which contain the deadline for parties to file notices of appeal. Section 2403(b) was clearly written contemplating states that had never been parties to the litigation, as it requires that in suits presenting the kind of constitutional challenge at issue, where “a State … is not a party” the federal court “certify” to the attorney general of the state that there is such a suit. So the argument that Section 2403(b) is not intended to authorize States to get back into a case they voluntarily chose not to appeal is at least as strong as the general argument about the Federal Rules of Appellate Procedure’s treatment of intervention.
[But even if Cooley were allowed to invoke Section 2403(b)’s intervention for argument purposes on behalf of California, this provision does not appear to contemplate that the state would actually be a party, which would be necessary for Article III standing. Rather, it provides that the state will “have all the rights of a party and be subject to all liabilities of a party as to court costs to the extent necessary for a proper presentation of the … law relating to the question of constitutionality.” (emphases added) Thus, a proper Article III party must have already taken the appeal to the Ninth Circuit or the Supreme Court so that there is a constitutional “action, suit or proceeding in a court of the United States” in which California could intervene for the limited purposes authorized by Section 2403(b). And insofar as Section 2403(b) allows limited intervention as of right by a state even in the Supreme Court, it provides that the court /Court “shall permit the state to intervene” (emphasis added) for limited purposes, not the attorney general to intervene. Although the attorney general gets the certified notice of the suit, the statute does not prescribe that it is a state’s attorney general who gets to make an intervention decision. As described above at the Court of Appeals level, Governor Brown might resist a (hypothetical as of this writing) Attorney General Cooley’s attempt to have California intervene at the Supreme Court. And even if California (and perhaps federal) law ultimately sided with Cooley, as I argued above there would still need to be a proper Article III case in the Supreme Court for California to intervene in.]