Review set on Prop. 8 issue (UPDATED)
on Feb 17, 2011 at 6:20 am
The California Supreme Court agreed Wednesday afternoon to decide whether the backers of the Proposition 8 ban on same-sex marriage have a right — under state law — to stand in for state officials to defend the measure’s constitutionality. All seven Justices of the state court voted to respond, on an expedited schedule, to the request by the Ninth Circuit Court for a decision on the state law question.  (UPDATE: A news release by the state court and the text of the order can be found here.  Thanks to Howard Bash (man of How Appealing blog for the link.)
Whatever answer the state court provides on the role of ballot measure backers under California law will not be the final word, however, on whether they can continue their defense of the ban in federal court. The issue of “standing” to pursue the case in the federal court is a national issue under the federal Constitution. However, if the state court should rule that only state officials have the sole authority to defend a voter-approved measure in court, that may well doom the proponents’ case before the Ninth Circuit. State officials have refused to defend Proposition 8 in court, so it would not get a defense unless its backers are allowed to make one.
The state court ordered the proponents of the measure to file their opening brief on March 14. The opponents of Proposition 8 are to respond on April 4, and the proponents then get to file a reply by April 18.  Briefing would be completed by filing of friend-of-court briefs on May 2, and responses to those by May 9. The court said it would not expect to extend any of those deadlines.
The order said that the Court was revising its normal briefing schedule, in order to speed up the case and “to accommodate oral argument in this matter as early as September 2011.” The order did not set a specific oral argument date, however. (UPDATE: Under the state court’s present calendar, no arguments are scheduled in July and August; argument dates in September are from the 6th through the 9th.)
The state court acted some six weeks after the Ninth Circuit had “certified” to the state judges the state law question.  The Circuit Court panel said that “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.”
Although the city and county of San Francisco had asked the state court to modify the question submitted by the Ninth Circuit, the state court’s order did not mention that request. It thus appeared ready to answer the question as posed by the Circuit Court.
Here is the question as phrased by the Circuit Court: “Whether under Article II, Section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure possess either a particularized interest in the initiative’s validity or the authority to assert the state’s interest in the initiative’s validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so.”
The Circuit Court panel said that it was not aware of any controlling state precedent on the issue, and that is why it referred the matter to the state tribunal.
The opponents of the gay marriage ban urged the state court not to respond to the question, arguing that the issue of “standing” to pursue the case in the Ninth Circuit was solely a matter of federal law. The backers of Proposition 8 urged the state court to answer the question.
U.S. District Judge Vaughn R. Walker of San Francisco, in a broad ruling last Aug. 4 based on the federal Constitution, struck down Proposition 8. The state officials opted not to appeal, just as they had chosen not to defend the law in Judge Walker’s Court. The proponents of the proposition then filed an appeal to the Ninth Circuit; that Court raised the issue of whether those proponents have “standing” to appeal in the absence of an appeal by the state.
After holding a hearing on the appeal on Dec. 6, the three-judge panel then opted to get the advice of the state court before proceeding further with the case. It said it would “accept and follow” whatever ruling the state Supreme Court issued on the scope of state law. It still would have to decide on its own, however, whether the proponents have Article III “standing” under the federal Constitution.
Since the Circuit Court will not move forward on the case until after it gets a response from the state Supreme Court, the schedule adopted by the state court means the Proposition 8 case is likely to run on in the lower courts, perhaps late into this year if not beyond.  It is expected that, in some form, the case on Proposition 8’s validity will ultimately reach the U.S. Supreme Court. It may not do so, however, until well into 2012, at the earliest.
