January 4, 2011
By Adam Bink
Update 13: Olson said he would be submitting briefs et al to the CA Supreme Court if/when it is allowed.
Update 12: I’m on a press call with Ted Olson et al. I’ll update with any interesting info.
Update 11: Here’s a quick reaction that Shannon sent over e-mail. We’ll see you at 2:30 PM PST for Q&A.
This will delay the day that Proposition 8 is gone for good, but hopefully not for long. The Ninth Circuit asked the California Supreme Court to decide whether initiative proponents can force the state to defend an initiative that has been struck down by a federal court. There is nothing in California law that gives initiative proponents such an extraordinary power. Both Kamala Harris and Jerry Brown were very clear when they ran for office as Attorney General and Governor that no more state money should be spent on appealing a federal court ruling that Proposition 8 violates the equal protection rights and the core fundamental rights of hundreds of thousands of its citizens. Their opponents expressed the opposite view, and the voters spoke. That should be the end of the matter.
I am confident the California Supreme Court will hold that California law does not give initiative proponents any special power to override the decisions of the state’s elected representatives. In the meantime, however, Proposition 8 remains on the books, and every day that goes by, LGBT people in California are denied the freedom to protect their families and express their love and commitment through marriage.
Update 10: We have a special treat coming to help answer all of your questions. I asked Shannon Minter, the Legal Director at National Center for Lesbian Rights and the lead attorney on the original In re Marriage Cases ruling at the California Supreme Court, to stop by here at 2:30 PM PST and answer some questions. The format will be similar to the chat we hosted several months ago.
So, check back here at 2:30 PM PST/5:30 PM EST with your best questions in hand, and we’ll field ‘em.
To read Shannon’s earlier chat on the case, you can find that here.
Update 9: On the question of how the CA Supreme Court could rule, they could rule that proponents have standing; do not have standing; or make no ruling at all. If they rule there is standing, then the 9th Circuit would make a ruling on the merits (constitutionality) of the case. If they rule there is no standing, the case could be thrown out without a ruling on the constitutionality, as Arizonans for Official English v. Arizona was by the US Supreme Court, where the Court specifically said it makes no ruling on the constitutionality while remanding a lower court decision. Robert will have more on what he sees as most likely to come out of the CA Supreme Court.
Update 8: Robert Cruickshank of Calitics, who often guests here, will have another analysis piece coming at 12:30 PM PST.
Update 7: After talking to a few con law experts in the field, some analysis. At issue is whether ballot initiative proponents (e.g. ProtectMarriage.com) are allowed to defend initiatives in a case when the State (e.g. the Attorney General and the Governor) decline to do so. That we’ve known all along. On the table is that the question of “standing” is a federal one. Our side argued that even if California law allows initiative proponents to defend a ballot initiative under state law, standing could still not be conferred in the federal courts. If the California Supreme Court decides that initiative proponents like ProtectMarriage.com cannot defend the initiative in state court, then it’s more doubtful it would be able to do so in federal court. And that is the reason the 9th Circuit is asking for clarification from the California Supreme Court re state law.
Update 6: With thanks to Kathleen, here’s a Scribd version to read through:
Update 5: Folks are asking about the timeline. There’s nothing on the timeline of a CA Supreme Court decision. There is this:
The case is withdrawn from submission, and further proceedings in this
court are stayed pending final action by the Supreme Court of California. The
parties shall notify the Clerk of this Court within three days after the Court accepts
or rejects certification, and again within three days if the Court renders an opinion.
The panel retains jurisdiction over further proceedings.
IT IS SO ORDERED.
Update 4: Here’s the meat of the ruling. I bolded the key parts:
“Filed Order for PUBLICATION (STEPHEN R. REINHARDT, MICHAEL DALY HAWKINS and N. RANDY SMITH) for certification to California State Supreme Court. Before this panel of the United States Court of Appeals for the Ninth Circuit is an appeal concerning the constitutionality under the United States Constitution of Article I, § 7.5 of the California Constitution (“Proposition 8”). Because we cannot consider this important constitutional question unless the appellants before us have standing to raise it, and in light of Arizonans for Official English v. Arizona, 520 U.S. 43 (1997) (“Arizonans”), it is critical that we be advised of the rights under California law of the official proponents of an initiative measure to defend the constitutionality of that measure upon its adoption by the People when the state officers charged with the laws’ enforcement, including the Attorney General, refuse to provide such a defense or appeal a judgment declaring the measure unconstitutional. As we are aware of no controlling state precedent on this precise question, we respectfully ask the Supreme Court of California to exercise its discretion to accept and decide the certified question below. (See order for full text) The Clerk is hereby directed to transmit forthwith to the Court the original and ten copies of this order and accompanying memorandum, as well as a certificate of service on the parties. Cal. R. Ct. 8.548(d). The clerk shall also transmit the following along with this request: ten copies of the district court Findings of Fact / Conclusions of Law / Order (704 F. Supp. 2d. 921 (N.D. Cal. 2010)); ten copies of the Permanent Injunction issued by the district court (docket entry 728 in No. C 09-2292-VRW (N.D. Cal. Aug. 12, 2010)); a copy of the video recording of the oral argument heard in these appeals on December 6, 2010; the briefs of the parties and intervenors in this appeal; and the briefs amicus curiae filed by (1) the Center for Constitutional Jurisprudence and (2) Equality California in No. 10-16696. The Clerk shall provide additional record materials if so requested by the Supreme Court of California. Cal. R. Ct. 8.548(c). The case is withdrawn from submission, and further proceedings in this court are stayed pending final action by the Supreme Court of California. The parties shall notify the Clerk of this Court within three days after the Court accepts or rejects certification, and again within three days if the Court renders an opinion. The panel retains jurisdiction over further proceedings. IT IS SO ORDERED.  (RP)”
On the issue of standing for Imperial Valley (h/t Karen Ocamb):
FILED PER CURIAM OPINION (STEPHEN R. REINHARDT, MICHAEL DALY HAWKINS and N. RANDY SMITH) AFFIRMED; DISMISSED. The district court order denying the motion to intervene is AFFIRMED. Movants’ appeal of the district court order concerning the constitutionality of Proposition 8 is DISMISSED for lack of standing. The deadline for filing a petition for panel rehearing or rehearing en banc is hereby EXTENDED until the deadline for such petitions in No. 10-16696, which will be 14 days after an opinion is filed in that appeal. The Clerk is DIRECTED to stay the issuance of the mandate in this case until the mandate issues in No. 10- 16696. AFFIRMED in part; DISMISSED in part. FILED AND ENTERED JUDGMENT.  (RP)
Update 3: The filing can be found here.
Update 2: Reading through the documents, the 9th Circuit has issued a question to the CA Supreme Court asking if proponents have standing. No decision on the merits yet. More soon.
Update: According to the American Foundation for Equal Rights, the 9th Circuit ruled that Imperial County is denied standing in the process.
The breaking news is that the 9th Circuit will rule any minute on the Prop 8 case. The filings are being uploaded and I’m sorting through. I will update this post from the top.