Monday, August 09, 2010

Ballot Initiative Sponsor Standing

In my latest FindLaw column I consider the possibility of backlash against Judge Walker's ruling in Perry v. Schwarzenegger.  Although I basically agree with Judge Walker on the merits, I nonetheless remain quite nervous about this case getting to the SCOTUS too early: Either we'll lose and lock in a bad decision for a decade or more, or we'll win and risk a constitutional amendment.  I don't say that backlash is inevitable but I do think the risk is real.

I note briefly in the column that Judge Walker had one way to avoid a decision on the merits: He could have held that there was no live case or controversy.  The key state defendants declined to defend Prop 8, but Judge Walker permitted Prop 8's sponsors to intervene to do so.  Yet that decision was dubious in light of Arizonans for Official English v. Arizona.  Speaking for a unanimous Court there, Justice Ginsburg expressed "grave doubts" about the Article III standing of the sponsors of a ballot initiative to defend it when its constitutionality is challenged.

Here I want to express some of my own doubts about the Supreme Court's doubts.  To translate, I think that the 9th Circuit was right in allowing a ballot initiative's sponsors to have standing to defend it when the relevant govt officials refuse to defend it.  In the interest of full disclosure, I should say that I was a law clerk to 9th Cir Judge Stephen Reinhardt when he wrote the decision finding such standing, and about which Justice Ginsburg expressed her grave doubts.

I am not a big fan of ballot initiatives, but if a state permits them it is typically because of a preference for direct democracy over republicanism.  The risk in the latter is that elected officials do not identify the common good sufficiently closely with public opinion.  (Again, I think that this is a virtue of republicanism, but the premise of the ballot initiative process is contrary.)  The ballot initiative process is available precisely because the People cannot always trust their elected representatives to carry out their will.  Thus, when elected officials decline to defend a ballot initiative in court, they are directly frustrating the whole point of the ballot initiative process.  Perhaps that is their prerogative, but if so, it makes sense for someone else to come in to defend the ballot initiative's constitutionality.

To my mind, this situation is closely analogous to the one the Court faced in Dickerson v. United States.  There, the appeals court had sustained the defendant's conviction on the ground that a federal statute had overruled the Miranda decision.  The Clinton Justice Dep't declined to defend the statute, and so the Supreme Court appointed a leading academic critic of Miranda to do so.  True, there was a technical difference: The U.S. continued to be a party, arguing that even under Miranda, the defendant's conviction should be affirmed.  But the only real contested issue in the SCOTUS--and the issue the Court took the case to decide--was the constitutionality of the statute.

Modern standing doctrine was more or less made up about 40 years ago.  The underlying textual basis for it--the requirement that there be a "case" or "controversy"--seems readily satisfied by a contest pitting people who want to challenge a law's constitutionality against the sponsors of the ballot initiative that led to the law's enactment.

So to recap: I agree with Judge Walker on the merits; I also think that given the stakes, perhaps he should have tried to duck the merits; given what the SCOTUS said in Arizonans for Official English, he could have ducked by finding no standing for the sponsors of Prop 8; but I also think that the dicta in Arizonans for Official English is wrong (to the extent that mere grave doubts can be wrong).


Rick said...

Yes, Walker could, in theory, have resolved the case by finding no standing for Prop. 8 sponsors. But why should he have avoided a decision on the merits? Whichever way he rules, his ruling obviously won’t be the last word on anything, even including the issue of standing. So far, there’s little evidence of any backlash against Walker’s ruling. Any real risk of a backlash would come after the Ninth Circuit—or most likely SCOTUS has spoken. In any event, Prop. 8 sponsors’ standing to intervene in the case—and/or to appeal Walker’s decision is an issue on appeal for the Ninth Circuit which still can resolve the case based solely on the standing ground. Thus, it’s hard to see that Walker’s ruling would up the ante in the case as the professor has feared.

Michael C. Dorf said...

Rick: If you follow the link to my column (which I have now updated) you'll see that I worry about backlash against a SCOTUS ruling, not against the Dist Ct ruling. By your logic, no district judge should ever worry about any legal question he or she has to decide since they're all subject to de novo review on appeal. In fact, however, district court rulings frame questions in ways that matter on appeal.

Joe said...

Your substantive case is reasonable. Did Walker deal with the Arizonans precedent in his earlier ruling?

As to the risk, the 9CA should take the Ashwander principle to heart, and focus on what has to be decided: Prop 8 or at most CA practice. A ruling limited to CA is quite possible, pragmatics alone warranting some jurisprudential messiness, something far from absent (see the VRA case by Roberts) in this Court.

Rick said...

The bonus comments on your blog have seemingly sounded the alarm that Judge Walker, by deciding on the merits of Prop. 8, has ignited the chain reaction of a nuclear bomb. All judges should worry about legal questions, but none should duck them just to avoid a “backlash.” I don’t think Judge Walker should have asked in his thinking what kind of ruling would do more harm than good for LGBT movement. Had he done that, he would have been biased. Legal pundits are rightfully concerned about the potential backlash from a momentous case like Prop. 8, but they should not demand that a judge decide any case with that mentality.

Michael C. Dorf said...

Ultimately, I don't disagree. As I say in the column, a judge has to decide the issues that come before him--although I also say that it's sometimes legit for the SCOTUS to take a more holistic approach in the discretionary decision whether to grant cert, as per Bickel.


The Prop 8 sponsors alerted Judge Walker to the risk that there might be no live controversy on appeal in supporting the intervention motion of Imperial County, but he overrode it.

Rick said...

Surely, it would not be improper for SCOTUS to take a more holistic approach in the discretionary decision whether to grant cert. But my disagreement with the professor stems from his conclusion that Walker perhaps “should have tried to duck the merits.” What if Walker had “ducked the merits” by invoking Baker v. Nelson to summarily dismiss plaintiffs’ case for want of a substantial federal question? Would that fit your conclusion about ducking the merits?

egarber said...

Hi Prof,

In your article, you mention that the SCOTUS could just leave it alone for a while, no matter what the Ninth rules.

But suppose the Ninth upholds the decision, establishing the constitutional right to marry in its region. It's not hard to imagine lots of people moving out there from other parts of the country where the liberty hasn't been recognized. Would the Supreme Court allow a prolonged fundamental disparity of that flavor? Are there any modern examples where the SCOTUS has chosen that route on a big, basic constitutional rights question?

Joe said...

Thanks. Did he explain why? Did he in effect ignore the ruling you cited or did he find a way to distinguish it?

Larry Rosenthal said...

I think there is some confusion here. In the district court, I think it clear that the case had to be resolved on the merits. The plaintiffs had standing to sue given that Proposition 8 prevented them from marrying, and the state defendants' unwillingness to defend Proposition 8 was not a sufficient reason for the district court to enjoin it, even had the district court denied intervention. The Supreme Court has repeatedly held that federal courts are not mere "recorders of contracts" and therefore a consent decree supported by no more than the agreement of the parties, but otherwise lacking support in federal law, is unenforceable under Rule 60. Moreover, there is a strong argument that as a matter of state law, the state defendants lacked authority to agree to a consent decree absent a finding of a federal constitutional violation. The question whether the intervenors have standing to appeal is separate, however. Under Diamond v. Charles, only state officials have standing to appeal a judgment invalidating a state law. I agree with Professor Dorf that there is reason for a different rule of appellate standing with respect to state laws passed by voter initiative, despite the adverse dicta in Arizonans for Official English, but this is a different question from whether Judge Walker was obligated to decide the case before him on the merits.

Larry Rosenthal
Chapman University School of Law

Michael C. Dorf said...


Thanks for your comment. You may be right, but given that the Arizonans dicta was about Art III limits, it's not obvious that they should differ on appeal from how they operate at trial. In Vik Amar's FindLaw column today (at he says:

"Although the answer is complicated, my initial sense is that if these sponsors are not appropriate parties on appeal, they also lacked standing to defend in the trial court. Which means the trial itself should not have occurred, because there wasn't the constitutionally required concrete and adverse advocacy on both sides."

That's my initial sense too. I agree with you that it doesn't follow that the dist court should have just rubber-stamped whatever the parties wanted, but I do think the appellate standing and trial court standing inquiries are more closely linked than you indicate--or at least that they should be more closely linked.

Andy said...

I don't understand the problem. If the proponents lacked standing to intervene, and also to appeal, then the result is the same. I can't remember if CA answered the complaint, but if not, then it is a default judgment. If they did, then it is a summary judgment. I don't see how going through a trial is any different than going through a summary judgment hearing. The fact that the Court let an extra party present evidence at the hearing on the defense side didn't change anything. The Court would have made the exact same factual findings, except that it would have ignored the proponents stupid arguments. The Proponents set their own trap and created great theater for the other side in the tradition of Bryant at the Scopes Trial. Just because they fell into their own trap, doesn't mean they can appeal.

Larry Rosenthal said...

It can't be right that this case was nonjusticiable in the district court because the intervenors lacked "standing" to defend the case. After all, if the intervenors lacked standing and the remaining defendants agreed with the plaintiffs, isn't this the kind of collusive litigation that an Article III court may not hear? On that view, Judge Walker should have dismissed the case for lack of jurisdiction -- when there is no justiciable case before a court because there are not truly adverse parties or for any other reason, then an Article III court lacks jurisdiction because it has no "case or controversy" before the court. By this reasoning as well, an article III court never has jurisdiction to enter a default judgment because no defendant with "standing" is present. And, a defendant could always defeat the court's jurisdiction by refusing to defend the case on the merits if Article III requires a defendant with "standing" willing to defend the case. Article III has never been understood to require the presence of a defendant with "standing" or one willing to defend the case on the merits -- hence Article III tolerates default judgments and consent decrees -- but for an appeal to be prosecuted, it requires an appellant with standing, just as it requires a plaintiff with standing to initiate the case.

Michael C. Dorf said...

I don't think you're disagreeing with either me or Vik. We both say that if there's no Art. III case or controversy between the plaintiffs and the intervenors on appeal then there was no case or controversy between them at trial. And vik and I both say that if so, then what should have happened at trial is a default judgment against the official defts (or, as Andy notes, depending on when the defts tanked, a SJ). You seem to be upset about the shorthand lack of deft-intervenor "standing" rather than the substance of what we're saying. I'll give you that a more precise way to put it would be to say that once the official defts conceded, the dist ct was empowered to enter a default against them, from that point forward--with no remaining live c or c btwn the plaintiffs and the original defts--intervention should only have been allowed by a deft against whom the plaintiffs were asserting a claim for relief or who would be prejudiced by the grant to plaintiffs of the relief they get by virtue of the default jment. That's pretty much what I said in my column, to which the post here links. I wrote:

"If Judge Walker really wanted to duck the merits, his best option might have been to enter a default judgment. The state defendants declined to defend the constitutionality of Prop 8, and so Judge Walker permitted its sponsors to intervene to do so. But a 1997 Supreme Court case, Arizonans for Official English v. Arizona, casts serious doubt on the legal standing of a ballot initiative's sponsors to act as the initiative's sole defender in federal court. So Judge Walker might have simply declared the plaintiffs victorious by default without necessarily teeing up the same-sex marriage issue for the Supreme Court."

Michael C. Dorf said...

Finally (by which I mean I'll read any further comments with interest but I'm done responding to this thread), there are unusual circumstances in which the case-or-controversy analysis differs on appeal from at trial. For example, suppose a state court hears a case that would be barred in federal court because it would be deemed advisory. Nonetheless, if the state court orders the deft to do something in response (pay money, refrain from action, etc), and that is affirmed by the state high court on appeal, then the SCOTUS can take the case, even though the original lawsuit presented no c or c. The judicial remedy against the deft is (by hypothesis) an Art III injury sufficient to create a live c or c.

But I don't see Perry as presenting anything like these circumstances.

Larry Rosenthal said...

If there was no case or controversy before the district court once the state defendants declined to defend Proposition 8, I do not see how the district court could have entered a default or any other kind of judgment in favor of the plaintiffs. If there was no case or controversy, the district court was obligated to dismiss the complaint for lack of jurisdiction. After all, the federal judicial power extends only to a "case or controversy."

A.W. said...


great post, i would add that if the proponents are not granted standing, the federal courts will have in essence given the governor and/or attorney general power to effectively veto any law, including their state constitution, at least if anyone can present a challenge to it that would survive a motion to dismiss.

A basic due respect for the constitution of california requires them to give at least the proponents standing...

Andy said...

I disagree with A.W. A basic respect for the state sovereignty requires federal courts to defer to state law on whether state officers are required to defend a law in federal court. A federal court can't force a state to appear in an action (or can they send marshall's to the AG's house to get him). And if those officials decide to default, that is their prerogative as far as the federal court is concerned. The people of the state, if they disagree, can go into state court to force an appearance if state law allows, change the state law if it does not, and vote the politicians out of office. The proponents are arguing that the courts are usurping the will of the people, but now they are arguing that the courts should usurp the job of the state's duly elected legal officers by allowing nonparties to make their arguments for them.

A.W. said...


I am not saying any state official should be forced to defend it.

I am just saying that the people should be ALLOWED to defend it.

To do otherwise gives those state officials an effective veto over state law.

Seriously, what is the point of the cali constitution stating that the people have a right to amend their constitution withtout the permission or blessing of the Governor or AG, if the law will not have any defense unless the governor and/or AG provide it. You would nullify by federal procedure the entire idea of popular constitutional amendments.

Great_Dharma said...

Would the 9thCA possibly allow the current intervenors to defend the case if they accepted Imperial County of California as willing to defend?

Or would this not be allowed for other reasons. If the county is subdivision of the state and the state does not wish to defend the law in court, if the county can show an injury or investment in the case it seems likely to be allowed.

However, I do not know how that is possible with the current evidence on the hearing as the appeals court can not hear new evidence.

Michael Ejercito said...

A default judgment is one remedy available when the defendants refuse to defend a case. Another remedy is dismissal of the case, like in Moore v. Charlotte-Mecklenburg Board of Education .

Michael Ejercito said...

If the county is subdivision of the state and the state does not wish to defend the law in court, if the county can show an injury or investment in the case it seems likely to be allowed.
Yes, the county was a subdivision of the state.

And yet, the Supreme Court recognized the standing of the appellant county clerk in Richardson v. Ramirez. Similarly, the Tenth Circuit and district court dismissed the state of Oklahoma and its officials as defendants in Bishop v. Oklahoma's Question 711 claim, leaving only the Tulsa County District Court Clerk as a defendant. Clearly, the court in Bishop would have entered a default judgment due to lack of a live case or controversy if the Tulsa County Clerk lacked standing to defend independent of the state.

Biber said...

As I'm sure you're aware, Article 1, Section 21 of the Pennsylvania Constitution states fairly unambiguously.

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