By Mike Dorf
Yesterday the Ninth Circuit panel hearing the Prop 8 appeal issued a per curium opinion and an order: The per curiam rejected the argument that the Imperial County Deputy Clerk should be permitted to intervene, on the ground that the party with a protectable legal interest, if any, is the
, not the Deputy. The order certified a question to the California Supreme Court, asking whether, under state law, the proponents of a state ballot initiative have a sufficient stake in the case to give them standing to defend it in federal court. County Clerk
The certification order strikes me as somewhat peculiar. It's true that the Supreme Court in dicta in the Arizonans for Official English case suggested that state law could deputize ballot initiative sponsors "as agents of the people of [a State] to defend, in lieu of public officials, the constitutionality of initiatives made law of the State." But for this suggestion to make sense--given that standing is a limitation derived from Article
III of the federal Constitution--state law would only serve as a predicate for a determination of federal law, much in the same way that to determine whether there is a procedural due process claim in any particular case, the content of state law defines liberty and property interests, but whether state law has in fact provided someone with a cognizably liberty or property interest is itself a federal question. So, I could see the 9th Circuit asking the California Supreme Court what substantive rights initiative sponsors have under law, but whether that gives rise to an Article California III interest should remain a federal question. The certification order doesn't rule out that approach, but it doesn't exactly endorse it either.
And then there's Judge Reinhardt's concurrence in the two orders. Writing only for himself, he first laments the procedural maze that litigants and courts must navigate in order to reach the merits in a case like this. During the course of his opinion, he blames, roughly in order of descending responsibility, three actors. I consider them very briefly in turn
1) Judge Reinhardt goes after the U.S. Supreme Court for fashioning standing rules and other justiciability doctrines that prevent courts from deciding the merits.
Conservatives who want to restrict court access in civil rights cases are the general target of Judge Reinhardt's ire in lamenting justiciability limits, but it's worth noting that throughout his concurrence he expresses at least as much concern for the Californians who voted for Prop 8 as for the same-sex couples that want to get married. It's also worth noting that the Supreme Court opinion that stands as the greatest obstacle to the Ninth Circuit reaching the merits (and that disagreed with the views Judge Reinhardt had previously expressed about ballot initiative sponsor standing) was not written by a conservative Justice but by Justice Ginsburg. Put differently, Judge Reinhardt's pique with standing rules is not exactly ideological.
2) Judge Reinhardt is also clearly annoyed with the plaintiffs' lawyers for not suing enough defendants (including county defendants) to ensure that the case could be resolved on the merits. He states that the heartbreak over standing "would have been unnecessary and Plaintiffs could have obtained a statewide injunction had they filed an action against a broader set of defendants, a simple matter of pleading. Why preeminent counsel and the major law firms of which they are a part failed to do that is a matter on which I will not speculate." Perhaps not, but there really are only two possibilities: Incompetence or deliberate tactics. Although he avoids speculation, Judge Reinhardt's reference to "preeminent counsel" is either meant to be a sarcastic dig at David Boies and Ted Olson or, more likely, is meant to suggest that the mess was made deliberately--and that he doesn't like it.
3) Finally, Judge Reinhardt is somewhat more sympathetic, but still unhappy, with the statewide elected officials who chose not to defend Prop 8 in court. He says that elected officials have the right not to defend a law "in extraordinary circumstances" but does not say whether he thinks these are such circumstances. To my mind, the elected officials were in a tough spot because of the standing doctrine. Suppose you are a state AG trying to decide whether to defend a law in court when you think the law is unconstitutional but when you know that its validity is an open question. If you think--as I think (and as I wrote yesterday)--that elected officials are entitled to reach their own judgments about constitutionality, then you ought to have some leeway neither to defend nor enforce the law. But given the Court's standing doctrine, that could prevent an adjudication of the law's validity from ever occurring. If you don't enforce the law, then no one will have standing to sue to force you to enforce the law because that would violate separation-of-powers principles filtered through Article III (says the Supreme Court in the Lujan case); if you do enforce the law but don't defend it, then under Arizonans for Official English, no one else may be able to defend it.
One answer to this dilemma is to say that it is no problem at all: The whole point of imposing an obligation of independent constitutional interpretation on elected officials is to provide the People with extra security for their constitutional rights; in this view, if any branch thinks a law unconstitutional, it won't be enforced. That's fair but inapplicable here, because while the state elected officials are not defending Prop 8, they are enforcing it. They have not ordered County Clerks to issue marriage licenses to same-sex couples and to disregard Prop 8--and I've heard that they may lack that power under California law (although I'm not an expert in California law, so I don't know whether that's true). But whether by choice or by law, the result is that while this case languishes, Prop 8 continues in force. Thus, Judge Reinhardt's ultimate gripe with the state elected officials may be that in trying to demonstrate their purity by refusing to defend Prop 8, they may end up prolonging its life.