California’s Attorney General, Edmund G. Brown, Jr., formally notified the Ninth Circuit Court Friday night that the state will not appeal a federal judge’s ruling striking down the Proposition 8 ban on same-sex marriage.  That position, along with a flurry of other filings in the Circuit Court, puts new emphasis on a basic issue: can anyone else carry on the case?  And that comes down mainly to a question of state law: who speaks for California, legally?

A three-judge panel of the Circuit Court is set to rule quickly –  probably in the coming week — on whether it will put on hold District Judge Vaughn R. Walker’s August 4 decision striking down Proposition 8, and clearing the way — if it is not postponed — for couples of the same sex to wed as early as Wednesday after 5 p.m.   But the question of whether the Circuit Court would have authority to decide the case, after a full review, has taken on potentially decisive significance.  (It should be noted that both sides, in their new filings, also debate the merits of the constitutional issues raised by Proposition 8 as part of their discussion of whether the decision should be delayed.)

The backers of the marriage ban claimed, in their Thursday filing asking for a postponement of Judge Walker’s decision, that they have “standing” to appeal (that is, a legal right to do so) even if state officials do not.  However, the same-sex couples who won the case, in their opposing brief filed Friday evening, directly disputed that claim.  And so did the city-county of San Francisco in its own brief in opposition, also filed Friday night.  (The proponents of the ban are to file their reply on Monday morning, setting the stage for the Circuit Court panel to act.)

The gay couples, while firmly opposing any delay of the decision against Proposition 8, suggested an alternative to the Circuit Court should it decide to issue such a stay over their objection: put the review of the ban on a faster track than the Circuit Court has already established.   In an order last week, the Circuit Court set a briefing schedule that will not be completed until late December, with a hearing no earlier than in January.  The challengers’ alternative would have briefing completed by Oct. 29 with an oral argument no later than Nov. 15.  (That alternative suggestion was made in a way that sought to reinforce the couples’ claim that their rights will be harmed if the case is delayed.)

Adding another element to the controversy over who may appeal is a claim by the local governing body of Imperial County, Calif., and its marriage licensing officer that they have their own, independent right to pursue an appeal.  In a filing Friday in their own, related case pending in the Circuit Court, they asked to be allowed to support the Proposition 8 backers’ plea for postponement.  (The county and its officers have not yet gained permission to enter the case at all; that is what they are seeking in their own appeal; Judge Walker denied their request, finding that they do not speak for the state’s legal interests in the dispute and have none of their own.)

While the “standing” issue depends to some degree upon how the Circuit Court interprets two Supreme Court precedents that suggest that sponsors of ballot measures do not have a right to appeal when the state government involved does not, the ultimate decision on “standing” may actually turn on what California courts have said in interpreting state law on when ballot measure backers can enter a case or appeal.   In the new filings before the Circuit Court, that state law issue is vigorously debated by both sides.

The Supreme Court precedents that have a bearing on the controversy are Karcher v. May, decided in 1987, and Arizonans for Official English v. Arizona, decided ten years later.  In the Karcher case, the Court said that state legislators may sometimes have a right to defend in court a state law if the state government itself does not, depending on what state law says on that specific question.  In the Arizona case, the Court noted that it had never allowed ballot measure sponsors to stand in for the state, if the state does not appeal when such a measure has been struck down.  The Court, however, decided the Arizona case on another, separate ground, not that one.

Thus, in the Proposition 8 case, both sides have focused a significant part of their “standing” arguments on what California law says about someone other than the state seeking to speak for the state in court.

The ballot measure’s proponents contended that the California Supreme Court, in a 2008 ruling also involving Proposition 8, “granted the application of initiative proponents to defend initiatives they have sponsored but the State Attorney General and other public officials refuse to defend….Thus, Proponents may directly assert the State’s interest in defending the constitutionality of its laws, an interest that is indisputably sufficient to confer appellate standing.”

State law, the brief went on, thus makes this case different from the Supreme Court case in 1997 involving Arizona.  “Here…, settled principles of Califonria law, including but not limited to the very same type of legal authority relied upon by [the Supreme Court in] Karcher — a State Supreme Court decision permitting intervention– establishes Proponents’ authority ‘as agents of the people…to defend, in lieu of public officials,’ the constitutionality of Proposition 8.”

Moreover, the brief asserted, the backers of Proposition 8 have their own direct interest in defending the initiative they sponsored.  That, too, is recognized by state court rulings, the brief argued.  “California courts have repeatedly allowed proponents to intervene to defend initiatives they have sponsored.”

In a further point, the proponents suggested that, in any event, the Circuit Court need not rule on their claim to “standing” because Imperial County and its officers do have “standing” to appeal, and that would be sufficient to put the proponents’ case also before the Circuit Court.  The county’s officials, according to the brief, have their own official interests in enforcing Proposition 8, and thus in defending it.

While the state’s attorney general, in urging the Circuit Court not to stay the decision, did not discuss the “standing” issue, both the same-sex couples and local officials in San Francisco did so, seeking to undercut the claims by the Proposition 8 backers.

The gay couples’ brief argued: “In the absence of an appellant with the requisite standing to appeal, there is no appellate jurisdiction, and a stay cannot issue.”  No state official, it noted, had yet filed an appeal, and the attorney general had just indicated there would not be an appeal.  The proponents “cannot prosecute this appeal on their own,” it asserted.

Reacting to the proponents’ claim that they have the same right as state legislators could have to defend in court a state law that the state refuses to defend, the gay couples argued that the “proponents can identify no provision of California law that authorizes them to represent the interests of the State of California in this case.”  None of the state court rulings on the issue, the brief added, supports the claim of standing for the backers, as agents of the state or on their own.  The proponents’ interest in the case, the brief said, is “no different from the generalized interest of every other voter who supported the ballot measure.”

The couples also disputed the “attempt to piggy-back on the purported standing of Imperial County.”  It is, they contended, “sheer speculation” that the Circuit Court will even allow Imperial County into the case.

The San Francisco brief opposing postponement of the judge’s decision was confined to the “standing” issue, and sought to refute, case by case, the proponents’ interpretations of the state courts’ rulings on that issue.  And, the city-county brief argued, the proponents do not even mention “the most directly relevant California case” — a 2005 decision in an earlier dispute over gay marriage in the state.  In that ruling, the brief said, “the court held that the ‘interests of [those] who worked to put the initiative on the ballot, or who contributed time and money to the campaign effort,’ were not ‘sufficiently direct and immediate’ ” even to allow them to enter the case as intervenors.

The San Francisco brief concluded: “At the end of the day, California decisional law pertaining to the right of initiative sponsors to intervene in litigation to represent their interests is no different” from the legal situation that prevailed before the Supreme Court’s Arizona decision in 1997 suggesting that ballot measure sponsors had no right to represent a state’s interests.

Once the proponents file their reply brief Monday, it will be up to the Circuit Court panel to decide, in the first instance, who speaks for California — at least in this case.

If the case moves on to the Supreme Court, the Justices would have the opportunity on their own to examine what California court rulings say on the issue of representing California’s state interests, although the Justices might be inclined to defer to what the federal courts in California had said on the subject.  The Supreme Court also would have a chance to interpret further what it had said in the Karcher and Arizona cases on the “standing” to appeal question.

Posted in Cases in the Pipeline