Michael Hamar

Prop 8 Proponents May Lack Standing to Appeal Perry Ruling

Filed By Michael Hamar | August 10, 2010 12:30 PM | comments

Filed in: Marriage Equality, Politics
Tags: California, National Organization for Marriage, Perry v. Schwarzenegger, Prop. 8, U. S. Supreme Court, Yes on 8

I mentioned in an earlier post that some 43 years ago the U.S. Supreme Court noh8.jpgstruck down a ballot initiative derived amendment to the California Constitution that would have allowed California residents to discriminate against black citizens in leasing and real estate sales decision. The amendment was a "will of the majority" response to California statutes that barred housing discrimination.

The Christianists may face another obstacle in their effort to appeal the U. S. District Court ruling in Perry vs. Schwarzenegger; they have no standing to appeal the ruling since they were merely intervenors, not the actual defendants.

Here's what I mean via the pleadings in the Perry lawsuit:

ARNOLD SCHWARZENEGGER, in his official capacity as Governor of California; EDMUND G BROWN JR, in his official capacity as Attorney General of California; MARK B HORTON, in his official capacity as Director of the California Department of Public Health and State Registrar of Vital Statistics; LINETTE SCOTT, in her official capacity as Deputy Director of Health Information & Strategic Planning for the California Department of Public Health; PATRICK O'CONNELL, in his official capacity as Clerk- Recorder of the County of Alameda; and DEAN C LOGAN, in his official capacity as Registrar- Recorder/County Clerk for the County of Los Angeles, Defendants

[NOTE: This list does NOT include the Prop 8 proponents who are described as follows]

DENNIS HOLLINGSWORTH, GAIL J KNIGHT, MARTIN F GUTIERREZ, HAKSHING WILLIAM TAM, MARK A JANSSON, PROTECTMARRIAGE.COM - YES ON 8, A PROJECT OF CALIFORNIA RENEWAL, as official proponents of Proposition 8, Defendant-Intervenors.

What this argument comes down to in ordinary English is as follows: If none of the "real defendants," if you will, files an appeal, then there can be no appeal by mere intervenor parties. The Prop 8 crowd intervened in Perry saying that they had an interest in the case, but still they were not the actual defendants.

Previous U.S. Supreme Court decisions do not auger well for the Prop 8 intervenors. The first case of relevance is Arizonans for Official English v. Arizona, 520 U.S. 43 (1997). That case arose when an Arizona state employee at the time, sued the State and its Governor, Attorney General, and Director of the Department of Administration alleging that State Constitution Article XXVIII-key provisions of which declare English "the official language of the State," the Free Speech Clause of the First Amendment.

The Federal District Court declared the Article fatally over broad after reading it to impose a sweeping ban on the use of any language other than English by all of Arizona officialdom and declined to allow the Arizona courts the initial opportunity to determine the scope of Article XXVIII (which derived from a 1988 Arizona ballot initiative that established English as the official language of the State).

In addition, the court denied the motion of newcomers Arizonans for Official English Committee (AOE) and its Chairman Park, sponsors of the ballot initiative that became Article XXVIII, to intervene to support the Article's constitutionality. The Supreme Court stated as follows:

To qualify as a party with standing to litigate, a person must show, first and foremost, "an invasion of a legally protected interest" that is "concrete and particularized" and "'actual or imminent.'" Lujan v. Defenders of Wildlife, 504 U. S. 555, 560 (1992) (quoting Whitmore v. Arkansas, 495 U. S. 149, 155 (1990)). An interest shared generally with the public at large in the proper application of the Constitution and laws will not do. See Defenders of Wildlife, 504 U. S., at 573-576. Standing to defend on appeal in the place of an original defendant, no less than standing to sue, demands that the litigant possess "a direct stake in the outcome." Diamond, 476 U. S., at 62 (quoting Sierra Club v. Morton, 405 U. S. 727, 740 (1972) (internal quotation marks omitted)).

The standing Article III requires must be met by persons seeking appellate review, just as it must be met by persons appearing in courts of first instance. Diamond, 476 U. S., at 62. The decision to seek review "is not to be placed in the hands of 'concerned bystanders,'" persons who would seize it "as a 'vehicle for the vindication of value interests.'" Ibid. (citation omitted). An intervenor cannot step into the shoes of the original party unless the intervenor independently "fulfills the requirements"....

AOE and its members, 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 Article-III-qualified defenders of the measures they advocated.

The Court ultimately resolved the issues before it on other grounds. Nonetheless, the language does not seem to bode well for the Prop 8 proponents.

Another case that did get to the merits of a party's standing to appeal a lower court ruling is Diamond v. Charles, 476 U.S. 54 (1986). In that case, the the appellees were physicians who provide abortion services in Illinois and who filed a class action in Federal District Court challenging the constitutionality of the Illinois Abortion Law of 1975, as amended, and seeking declaratory and injunctive relief. Diamond, a pediatrician not part of the class action plaintiff group, filed a motion to intervene as a party defendant based on his conscientious objection to abortions and on his status as a pediatrician and as a parent of a minor daughter. Ultimately, the District Court permanently enjoined the enforcement of certain provisions of the law. The State of Illinois chose not to appeal the lower court rulings. Given this scenario, Diamond sought to appeal the ruling on his own.

The U. S. Supreme Court held that the appellant doctor - who was solely an intervenor, and not an actual party to the lawsuit just like the Prop 8 proponents - had no standing to appeal the lower court decisions that he disliked. In ruling against the disgruntled, Christian right physician, the Court stated in part as follows:

Article III of the Constitution limits the power of federal courts to deciding "cases" and "controversies." This requirement ensures the presence of the "concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions." Baker v. Carr, 369 U. S. 186, 369 U. S. 204 (1962).

The presence of a disagreement, however sharp and acrimonious it may be, is insufficient by itself to meet Art. III's requirements. This Court consistently has required, in addition, that the party seeking judicial resolution of a dispute "show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct" of the other party.

[T]he decision to seek review must be placed "in the hands of those who have a direct stake in the outcome." Sierra Club v. Morton, 405 U. S. 727, 405 U. S. 740 (1972). It is not to be placed in the hands of "concerned bystanders," who will use it simply as a "vehicle for the vindication of value interests." United States v. SCRAP, 412 U. S. 669, 412 U. S. 687 (1973).

Had the State of Illinois invoked this Court's appellate jurisdiction under 28 U.S.C. ยง 1254(2) and sought review of the Court of Appeals' decision, the "case" or "controversy" requirement would have been met, for a State has standing to defend the constitutionality of its statute.

Had the State sought review, this Court's Rule 10.4 makes clear that Diamond, as an intervening defendant below, also would be entitled to seek review, enabling him to file a brief on the merits and to seek leave to argue orally. But this ability to ride "piggyback" on the State's undoubted standing exists only if the State is, in fact, an appellant before the Court; in the absence of the State in that capacity, there is no case for Diamond to join.

With none of the defendants in Perry vs. Schwarzenegger moving to appeal the District Court decision, under the reasoning of Diamond, the Prop 8 proponents have no basis for an appeal and the case should be over.

Having watched Christianist organizations file frivolous lawsuits and appeals time and time again, I suspect that the Prop 8 proponents will not slink away into the night. Nonetheless, under existing precedent their efforts should be rejected. And in light of the existing case law, they ought to be hit with sanctions if they file frivolous appeals and motions for rehearing. They lost and they need to get over it and stop denigrating LGBT Americans for no purpose other than to line their own pockets and further their theocratic agenda.


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But if it is not appealed, then it will never get to the Supreme Court and possibly help those not in California, right?

That makes lack of standing all the more likely to be cited, since the Supreme Court probably doesn't want to be address the issue.

CA gubernatorial elections are in November 2010. Should the current administration choose not to pursue an appeal, Christianists would use this as a campaign issue to elect a more conservative administration that would then then proceed with the appeal.

The state has only 30 days to file an appeal. Certainly their decision not to do that could affect the upcoming election, but any new administration would take office too late to appeal Judge Walker's decision.

No, Christians would follow christ's teachings to help the least of us, love one another as we would ourselves, and to judge not and not throw stones. That is what "real" christians will do. Two dudes/gals getting married is none of your business unless one of them is you.

This always was a California case, and we should not be too greedy by betting on the gamble that a Supreme Court decision will uphold Judge Walker. One thing that the Supreme Court could do to cause trouble is to overturn the decision, and to send it back to Judge Walker with such narrow instructions to conduct additional trial evidence gathering on issues that they define, that the record would then be stacked to give the Supremes what they may want in order to overturn Walker's decision. This procedure is call "reversed, and remanded." This would be a nasty turn of events.

In court, you are always better off stopping as soon as you have a "win", if you can. Too many other possibilities may erupt, and then get out of control.

Can we presume then, that if the appellants are found not to have standing, and it is clear that none of the California officials with proper standing will initiate an appeal, then the stay on Judge Walker's decision will be lifted soon thereafter and SS couples can resume getting married in CA?

And how long do we expect before a ruling on appellant standing, yes or no, gets issued?

If the state has only 30 days to file an appeal, then I gather that means it must be an appeal that the appellate court accepts as valid ... so, maybe this issue will be settled within 30 days or shortly thereafter ... ??

(BINALIJPTB1O - "But I'm not a laywer, I just pretend to be one online.")

I have read some interesting conjecture on other sites, PHB, to be specific that Imperial County may make the move to appeal on behalf of proponents. See comments on PHB here: http://www.pamshouseblend.com/diary/16976/did-the-legal-team-in-perry-just-win-for-good

Breaking reports indicate that Imperial County has in fact attempted to appeal the ruling. Since Imperial County was not a party to the case and was not allowed to intervene in the case, at first blush it would seem that that county may have no standing to appeal the decision. Just like the Prop 8 proponents. Obviously, through disingenuous legal contortions, appellate courts can almost always find a way to hear an appeal if the Court wants to do so. Therefore, it is hard to tell what mat happen.

Nonetheless, courts typically try to aviod taking cases on appeal if there is any way to do so. Given this reality, the Imperial County board of supervisors may be merely playing up to local homophobes as opposed to seriosly believing that the County's appeal will have significant hope of being successful.

Let's hope so. I think the more narrowly tailored GLAD bill has a better chance of testing the waters for us than this one.

It would be great if no appeal happened here. I'd rather this not go to the Supreme Court and the biggest state in the union can lead the way, culturally, on this issue.