Understanding standing: The Court’s Article III questions in the same-sex marriage cases (VI)

By Marty Lederman
on Jan 21, 2013 at 6:52 am

On March 26 and 27, the Court will hear oral argument in the same-sex marriage cases, Hollingsworth v. Perry (the challenge to California’s Proposition 8) and United States v. Windsor (the challenge to Section 3 of the federal Defense of Marriage Act).  The first briefs in the cases will be filed tomorrow, January 22.  In advance of those filings, the blog is publishing a series of posts by Marty Lederman of the Georgetown University Law Center on the Article III questions the Court has asked the parties to address in the two cases.  This is the penultimate post in that series.

[UPDATE:  On January 11th, Justice Kennedy denied the Perry petitioners’ motion for leave to file a brief in excess of the word limits.  Because the parties will undoubtedly want to devote the vast majority of their briefs to the merits of the equal protection question, they are unlikely to spend many pages arguing about standing . . . and therefore it is very possible that the Article III arguments will receive much more extensive treatment in amicus filings.]

In my previous post, I described the argument the petitioners in Hollingsworth v. Perry are likely to make in support of their standing to appeal.  It is a bit more difficult to predict exactly how the Perry respondents (the plaintiffs in the trial court, as well as the intervenors City and County of San Francisco), and their amici, will organize their arguments against the petitioners’ standing.  I think it is fair to assume, however, that they will sound three principal themes:

1.  For starters, respondents are likely to cast in a disparaging light the California Supreme Court’s interpretation of California law to authorize initiative proponents to represent California’s interests in a case such as this.  As Professor David Cruz has suggested, that state court decision is certainly open to serious criticism, and the petitioners are likely to exploit it, and to argue that the actual answer offered by the state court about the authority of initiative sponsors to represent the state in litigation is not as clear as it appears to be — that it remains uncertain precisely what role California law assigns to initiative proponents vis-à-vis the State of California.

The California Supreme Court’s answer to the certified question —  that California law assigns initiative proponents to represent “the state’s interests” where state officials do not do so — was not based on the text of any provision of the California Constitution or statutes.  To the contrary, California law, like federal law, expressly vests the state Attorney General with the “charge” of “all legal matters in which the State is interested,” except the business of The Regents of the University of California and of such other boards or officers as are by law authorized to employ attorneys,” Gov. Code § 12511, and directs that the AG “shall . . . prosecute or defend all causes to which the State, or any State officer, is a party in his or her official capacity,” id. § 12512.  See also California Const. art. V, § 13 (“[s]ubject to the powers and duties of the Governor, the Attorney General shall be the chief law officer of the State”).  The state supreme court did not cite any provisions of state law suggesting that these functions can or shall be assigned to initiative proponents.

The California Supreme Court therefore relied on two other, nontextual considerations.  The first was the history of participation of initiative proponents in state-court litigation:  “California courts have routinely permitted the official proponents of an initiative to intervene or appear as real parties in interest to defend a challenged voter-approved initiative measure,” wrote the court, “in order ‘to guard the people’s right to exercise initiative power’” (quoting one such case, Building Industry Assn. v. City of Camarillo).  The California Supreme Court construed this common practice to reflect a judicial effort “to enable such proponents to assert the people’s, and hence the state’s, interest in defending the validity of the initiative measure” (emphasis added).  But it is not at all obvious that in those past intervention cases the California courts gave serious consideration to whether the intervenors had state-law authority to appear on behalf of the state, let alone to control the litigation on the state’s behalf over the objection of the state executive officials who ordinarily make such decisions, such as the California Attorney General.

Which brings us to the state supreme court’s principal justification, which was a frankly functionalist one — namely, preservation of the efficacy of the California initiative process:  “The initiative power would be significantly impaired,” it reasoned, “if there were no one to assert the state’s interest in the validity of the measure when elected officials decline to defend it in court or to appeal a judgment invalidating the measure.”  Moreover, the court identified the official proponents of an initiative measure as the appropriate parties to take up the state’s cause in such a case, since they “have a unique relationship to the voter-approved measure that makes them especially likely to be reliable and vigorous advocates for the measure and to be so viewed by those whose votes secured the initiative’s enactment into law.”

As Professor Cruz wrote on the day of the California Supreme Court’s decision:

Ordinary principles of statutory and constitutional interpretation . . . would seem to weigh heavily against CASC’s conclusion today as a matter of interpretation, and the court does not even pretend to try to parse the meaning of the provisions of law on which it claims it is basing its decision.  The court’s ruling thus is better understood not as an interpretation of state law but as a common-law holding, an interpolation, or a judicial construction, a rule the court chose to adopt to give effect to the values reflected in the California constitution and the state Election Code – “to guard the people’s right to exercise the initiative power.”

The state supreme court’s reasoning is open to significant question, and not only because it was so untethered to text and precedent.  For example, California Attorney General Kamala Harris had argued to the court (at pages 19-20 of her brief) that because the official proponents of an initiative measure, unlike the attorney general, are private individuals who have not been elected to public office, who do not take an oath to uphold the California Constitution or laws, who cannot be recalled or impeached, and who are not subject to the conflict of interest rules or other ethical standards that apply to public officials, it would not make sense to construe California law to implicitly assign such proponents the authority to represent the state in litigation.  (The City and County of San Francisco made a similar argument in their brief, at pages 26-29.)

The California Supreme Court replied to Attorney General Harris’s argument by noting that the proponents’ authority to participate as a party and to assert legal arguments in defense of the state’s interest in the validity of the initiative measure “is extremely narrow and limited and does not imply any authority to act on behalf of the state in other respects.”  But that was nonresponsive:  The Attorney General’s point was not that the proponents might act for the state “in other respects,” but instead that when they purport to act for California in this respect, in litigation, the proponents would have no obligation to act solely in the interest of the state and would not be accountable to the people.  The state supreme court also responded that the proponents “are properly subject to the same ethical constraints that apply to all other parties in a legal proceeding.”  But the court did not suggest that those ethical constraints include the requirement of the proponents to act as a faithful agent or fiduciary of the state, or even that the proponents are obliged to uphold the state and federal Constitutions.

The California Supreme Court also acknowledged that authorizing initiative sponsors to represent the state could have significant practical ramifications.  The City and County of San Francisco, in particular, had explained to the court that such proponents may be “indifferent to the effects and implications an overreaching interpretation of their measure may have on the state’s laws, policies and overall governance.”  For example:

Whereas the Attorney General must consider the cost of litigation, including damages and attorneys’ fee liability, these Proponents have argued that they are not liable for any attorneys’ fees the State will incur by taking an unsuccessful appeal.

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What if three [of the five] official proponents did not appeal—does each of the proponents hold the State’s litigating authority, or must there be a majority vote? What if they disagree on strategy? Are they delegated the authority to represent the State for their lifetimes, or only for a period of time after the election? Since Proponents’ argument rests only on “necessity,” not constitutional text, there is no constitutional provision or statute that courts can consult to resolve these questions.

Moreover, without text, there is no principled way to draw a line between delegating Proponents the authority to appeal on behalf of the State and delegating Proponents other decisions. Is the consent of proponents required before the Attorney General settles litigation concerning an initiative? Before the Attorney General stipulates to facts on a summary judgment motion? Before the Attorney General declines to take enforcement action against someone who violates an initiative measure?

The response of the California Supreme Court to the specter of such “untoward consequences” was simply to say that “we have no occasion in this case to address other legal questions that may arise in future cases,” such as “if there is a conflict between the positions taken by initiative proponents and by other defendants who are appearing on behalf of the state.”  But the appellees and their amici were not asking the Court to resolve such questions; they were instead identifying such an inevitable parade of horribles as a strong reason not to construe state law to authorize ballot proponents to represent the State.

Notwithstanding these serious criticisms of the California Supreme Court’s analysis, it is unlikely the U.S. Supreme Court will reject that court’s views of state law outright.  The general rule, after all, as the Court explained in Bush v. Gore, is that “comity and respect for federalism compel us to defer to the decisions of state courts on issues of state law.”

Nevertheless, if the Court is dubious about the California Supreme Court’s interpretation of state law, that might conceivably color the way the Court approaches the respondents’ argument about possible Article III limits on the authority of a state to expand the category of persons entitled to represent the state’s interests in federal court.

2.  Which brings us to the second principal theme the Perry respondents are likely to invoke — namely, an argument that although a state has some leeway to assign the authority to represent the state to persons outside the state’s executive branch, Article III itself nevertheless should be understood to impose some outside limits on that assignment power.  As Walter Dellinger has recently argued:

The U.S. Supreme Court will surely be concerned about how far states can go in authorizing litigation in federal court by citizens who themselves have no legal stake in the matter in dispute. Could it really be, for example, that decades after a state constitutional revision, citizens who in the distant past had been official proponents of the provision are empowered to intervene and participate in any litigation about the application of federal constitutional law to some matter arguably implicated by the long ago referendum?  That question suggests that the need for some federal limits on state power to create standing to litigate in federal court.

For example, the respondents, taking a cue from the Court’s decision in Arizonans for Official English, might argue that Article III should be read to require that if a state opts to assign the state’s litigating authority to initiative sponsors, it can do so only if such sponsors are deemed “agents of the people of [the State] to defend, in lieu of public officials, the constitutionality of initiatives made law of the State.”  520 U.S. at 65 (emphasis added); see also Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. at  771-72 (suggesting  that if a qui tam relator were required to act as an agent of the United States, that might be a sufficient basis for Article III standing); Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. at 804, 814 (noting that a private prosecutor in a criminal contempt case “is appointed solely to pursue the public interest in vindication of the court’s authority,” and stressing that “we must have assurance that those who would wield this power will be guided solely by their sense of public responsibility for the attainment of justice”).

If the Court were to impose such an “agency” requirement, or something similar, as a gloss on Article III, it is not clear that the Proposition 8 sponsors would satisfy such a test.  The California Supreme Court simply held that the proponents have the authority under state law to “represent the State’s interests.”  As explained above, the state court did not clarify what relationship, exactly, this is said to create between the proponents and the state; what obligations, if any, the proponents have to the state; whether the proponents must account for all of the state’s various interests; whether the proponents have some sort of fiduciary relationship to the state; what happens when the proponents and the attorney general disagree about how the state’s interests will best be advanced (such as if the attorney general enters into a settlement with the plaintiffs that the proponents think undesirable); etc.  The Supreme Court might conceivably articulate an Article III floor and then ask the court of appeals to recertify the question to the California court to determine whether the proponents satisfy the Article III minima.

Respondents might also emphasize another ambiguity in the California Supreme Court’s opinion.  That court made numerous references to the notion that state law provides initiative proponents the authority to represent “the people’s interest,” which it appeared to equate with “the state’s interest.”  The court was unclear, however, about whether the “people’s” interest in question is the interest of the people in voting for the initiative, or the interest of the people in enforcement of state law:  The court toggled back and forth between references to the need “to protect the people’s right to exercise their initiative power” and the people’s interest in “the initiative’s validity.”  The latter interest appears to be the same as the sovereign’s interest in enforcement of its laws, and thus would be consistent with the idea of the proponents standing in for the Attorney General to defend the state’s own interest in preserving the validity of its laws.  The former interest, however, is more akin to the interest of the lawmaking body in seeing to it that its legislative handiwork is honored.  If what the California Supreme Court meant was that the proponents have the authority to defend this latter sort of interest, that might be insufficient to establish Article III standing.  It is uncertain the Court would hold, for example, that a legislature has standing to challenge the executive’s nonenforcement of an ordinary statute, on the theory that such representation is necessary to preserve the legislative power.  It could be that the Court would hold that the legislature has no more interest than a private citizen in ensuring that the law is implemented, and that neither has standing to sue in order to secure such an objective.  (I discuss this argument in an earlier post, in connection with the question of BLAG’s standing in Windsor.)  If so, the authority of California initiative sponsors “to protect the people’s right to exercise their initiative power” might be insufficient to establish standing in Perry.  And in that case, further certification to the California Supreme Court might be advisable in order to identify precisely which of the “people’s” or the state’s interests the proponents are authorized under state law to represent — after which, the federal court of appeals and, ultimately, the Supreme Court, could better assess the question of the proponents’ Article III standing.

3.  The third likely theme of the respondents’ argument against petitioners’ standing will be an effort to distinguish or minimize the precedential effect of what some have described as the “leading” Supreme Court precedent on this question, Karcher v. May.

Karcher is hardly a landmark case — it was one of those quick, unanimous decisions the Court issues early in every Term.  (It was decided only eight weeks into the October 1987 Term.)  It is sure to get much more attention in the next three months than it has received in the quarter-century since it was decided.

The case involved an Establishment Clause challenge to a New Jersey statute requiring public schools to permit their students to observe a minute of silence before the start of each school day.  The legislature had passed the law over the governor’s veto, and the New Jersey Attorney General and the state officials named as defendants all declined to defend the law against the constitutional challenge.  Karcher, the Speaker of the New Jersey General Assembly, along with the President of the State Senate, moved in their official capacities to intervene in the district court “on behalf of the [state] legislature” to defend the law.  The district court granted the motion, and allowed the legislature to intervene, as represented by the two officers.  The court then held that the statute was unconstitutional.  The two legislative officers appealed, and the court of appeals affirmed, without anyone questioning the legislators’ (or the legislature’s) standing to appeal.

Karcher then appealed to the Supreme Court.  But in the meantime he had been replaced as Speaker of the General Assembly, and therefore no longer spoke for the state legislature (or even for the General Assembly).  Federal Rule of Appellate Procedure 43(c)(1) provided that “[w]hen a public officer is a party to an appeal or other proceeding in the court of appeals in an official capacity and during its pendency … ceases to hold office, the action does not abate and the public officer’s successor is automatically substituted as a party.”  Since in this case Karcher’s “successors,” the then-current Speaker and President, did not seek to appeal on behalf of the New Jersey legislature, Karcher could not rely upon Rule 43(c)(1).  He therefore claimed that he had intervened, not on behalf of the current New Jersey legislature, but instead as a representative of the earlier incarnation of the New Jersey legislature, the one that had enacted the law in question.  The Court rejected that characterization of what had occurred in the lower courts.  Thus, because Karcher no longer had the authority to represent the state legislature, the Court dismissed his appeal.  The fact that he might represent the earlier iteration of the legislature did not salvage his case, since that no-long-existing legislature was not a “party” to the case, and the jurisdictional statute at issue gave only “parties” the right of appeal.

The Court was then confronted with the question of whether it also had to vacate the court of appeals’ decision declaring that the statute was unconstitutional.  If Karcher did not have authority to represent the New Jersey Legislature even when he was Speaker (as he was when the case was in the lower court), or if the legislature did not have the authority to represent the state’s interests, then Karcher would not have had authority to appeal the district court decision to the court of appeals on behalf of the state.  The Supreme Court held, however, that “as a matter of New Jersey law,” both forms of representation were authorized.

First, citing In re Forsythe, Justice O’Connor wrote that “[t]he New Jersey Supreme Court has granted applications of the Speaker of the General Assembly and the President of the Senate to intervene as parties-respondent on behalf of the legislature in defense of a legislative enactment.”  That is, she read state law to say that the Speaker and Senate President have authority under state law to represent the state legislature.  (The case she cited as authority —Forsythe — actually said nothing of the sort.  But that doesn’t matter for present purposes.)

That didn’t settle the issue before the Court, however — indeed, it only teed up the principal question of whether the state legislature could in turn appeal on behalf of the State of New Jersey when the state executive officials declined to do so.  As to that question, Justice O’Connor’s entire analysis was the following sentence:  “Since the New Jersey Legislature had authority under state law to represent the State’s interests in both the District Court and the Court of Appeals, we need not vacate the judgments below for lack of a proper defendant-appellant.”  She cited no authority in New Jersey law for the proposition in bold.  (The Forsythe case, which she cited for the earlier step in her argument, does not support it:  The state court in Forsythe did not suggest, let alone hold, that the New Jersey Legislature (or any of its officers) “had authority under state law to represent the State’s interests in both the District Court and the Court of Appeals” (emphasis added).)

The court of appeals in Perry read the bolded passage in Karcher to support the view that “[a]ll a federal court need determine [for purposes of Article III] is that the state has suffered a harm sufficient to confer standing and that the party seeking to invoke the jurisdiction of the court is authorized by the state to represent its interest in remedying that harm.”

But Karcher might not be all it’s cracked up to be for purposes of the Article III question in Perry.  For one thing, as I’ve suggested above, Justice O’Connor appears to have simply created from whole cloth the New Jersey “law” that the legislature “had authority under state law to represent the State’s interests” in federal court.

More importantly, even on the assumption that Justice O’Connor properly construed New Jersey law to confer authority on the state legislature “to represent the State’s interests” in federal court, her concluding statement — that the Court therefore “need not vacate the judgments below for lack of a proper defendant-appellant” — was not a holding about Article III standing, at least not from all that appears.  No party in Karcher raised an Article III objection; nor did any party, or the Court, consider whether a state legislature would have Article III standing if state law authorized it to “represent the State’s interests in [Article III courts].”  (The brief for amicus United States came closest, suggesting that Article III might impose some limits:  It stated that “[s]ubject to any constraints imposed by Article III and state law, a state may confer this interest [in defending a state statute] upon other government officials or otherwise provide for its assertion in a judicial proceeding” (emphasis added).)

Therefore it might be the case that Karcher, fairly read, has very little if anything to say about Article III standing.  To be sure, in Arizonans for Official English, the Court cited Karcher for the proposition that “[w]e have recognized that state legislators have standing to contest a decision holding a state statute unconstitutional if state law authorizes legislators to represent the State’s interests.”  520 U.S. at 65.  But as explained above, Karcher holds no such thing about state legislatures, let alone about “state legislators”; and, in any event, that passing statement in Arizonans was itself dicta, since the Court ultimately had no need to decide whether the initiative sponsors in Arizonans had Article III standing to appeal, id. at 66-67.

Most importantly, even if the Arizonans dictum were correct — that is, even if the Court in Karcher had “recognized that state legislators have [Article III] standing to contest a decision holding a state statute unconstitutional if state law authorizes legislators to represent the State’s interests” — it still would not follow that state law can just as easily confer such authority upon private parties.  At least state legislators such as Karcher, acting in their official capacities, have a legal obligation to act in the best interests of the state — indeed, they likely have sworn an oath to support both the state and federal constitutions.  In this sense they are obliged to act as agents of the state.  The same is not necessarily the case for initiative proponents under California law.

[UPDATE:  The private Proposition 8 challengers (the two couples who successfully argued in the courts below that the Fourteenth Amendment entitles them to California marriage licenses) have devoted only three paragraphs of their brief to the standing question — even though a victory on standing grounds would preserve the injunction they received from the district court, a judgment that would, at a minimum, entitle them to be married under California law.  Stranger still, the challengers’ short standing discussion does not even address the rationale on which the court of appeals relied to find that the Proposition 8 sponsors had standing to appeal — i.e., that the sponsors have state law authority to represent California’s interests:  The only oblique reference to that rationale in the challengers’ brief is the single, unadorned sentence that “[p]roponents, who are not public officials, do not have a close relationship with the State like the state legislators did in Karcher v. May, 484 U.S. 72, 81-82 (1987).”

* * * *

Where do all of these arguments leave the Court on the question of the Proposition 8 proponents’ standing to appeal in Perry?  I would hesitate to predict.  What is fair to say, however, is that the question is very much up for grabs.

A coda on standing and intervention

As explained above, the theory on which the court of appeals decided that the Proposition 8 proponents had Article III standing is that California law affords them the authority to “speak for the state” — “to defend, in lieu of public officials, the constitutionality of initiatives made law of the State” — and that therefore “Proposition 8’s proponents have standing to bring this appeal on behalf of the State.”

For what it is worth, however, that was not the ground on which the district court relied when it granted the proponents’ motion for intervention as parties pursuant to Rule 24(a)(2).  In their motion to intervene, the proponents identified their own personal “interests relating to the . . . transaction” as the grounds for intervention.  In particular, they stressed that they had “indefatigably labored in support of Proposition 8,” and had “devoted substantial time, effort, and resources through fundraising, campaigning, monetary donations, organizing volunteers, and assisting the Committee [Protectmarriage.com].”  They even cited an earlier district court case, Bates v. Jones, holding that “[t]he individualized interest of official proponents of ballot initiatives in defending the validity of the enactment they sponsored is sufficient to support intervention as of right” (emphasis added).

There was not a word in their motion suggesting that they sought to represent the state or its interests, or that their motion was based on California’s right to intervene.

Likewise, in granting the intervention motion, the district court explained that the movants had the requisite “interests relating to the . . . transaction” because, “as official proponents, they have a significant protect[a]ble interest in defending Prop 8’s constitutionality.”  No word about the state or the state’s interests.

Therefore, the district court never had the occasion to consider, as Rule 24(a)(2) requires, whether the defendant parties, including the California Attorney General, would “adequately represent” the interests of the State of California (in which case Rule 24(a)(2) would not authorize proponents’ intervention).

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In my final post I’ll briefly discuss what would become of Proposition 8 if the Court holds that the Perry petitioners do not have standing to appeal.