Wednesday, January 05, 2011

Who Has Done the Most to Make Judge Reinhardt Unhappy?

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 County Clerk, 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.

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 California law, but whether that gives rise to an Article 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.

16 comments:

Russell said...

Professor:

Personally, I find the criticism of the plaintiffs' counsel particularly unjustified. So far as I can tell, the choice of defendants followed from the plaintiffs' counties of residence (Compl. paras. 9-12). Assuming they wanted to get marriage licenses in their home counties, they simply didn't have standing to sue any other county clerks, who hadn't injured them.

Leaving to the side that Judge Reinhardt might not think that standing rule was justified, it seems like a straightforward application of existing doctrine. His complaint therefore amounts to the fact that the plaintiffs did not choose to seek certification of a statewide class under Rule 23. I'm sure that was a strategic choice by counsel, but it's explicable on grounds other than an attempt to frustrate review.

Michael C. Dorf said...

Russell,

To be clear, I'm not endorsing Judge Reinhardt's tacit critique of the plaintiffs' counsel's tactical decision. But granting that seeking class cert for a defendant class would have created additional procedural issues for the plaintiffs, that would bring us back to at least a kind of incompetence--unless they had no inkling that the state defendants would choose not to defend Prop 8. And if they did anticipate the possibility that no one would defend Prop 8, then they were deliberately running a large risk of a very limited judgment.

AF said...

How common is it to seek class cert for a defendant class in cases challenging the constitutionality of a law? It strikes me as very uncommon. I believe the much more common --virtually universal? -- approach is to bring the case against the defendants that have violated the rights of plaintiffs and then let the force of precedent do the work. But perhaps I am wrong on this and certifying defendant classes in constitutional challenges is more routine than I realize.

But if I am right, it hardly seems like the only reasons for choosing not to certify a class are incompetence or strategy. To be sure, attorneys of the stature of Boies and Olson likely realized that this situation was possible. But I doubt that certifying a defendant class would have been seriously considered in any event.

Michael C. Dorf said...

Perhaps Judge R thought that it was fishy for plaintiffs' counsel not to seek class certain or otherwise add sects once it became clear that the original defts wouldn't defend. Also, at oral argument, Judge R offered Boies a mechanism foe ensuring standing but he declined.

Michael C. Dorf said...

That should say class cert and add defts. Foiled by my iPad's autocorrect.

egarber said...

So what happens if the Appeals Court ultimately finds nobody has standing to defend the law? Does the whole case get thrown out, even though opponents won on the merits in the district court? And if so, doesn't that create a perverse incentive in situations where an AG supporting a given law doesn't like his chances? "I don't want to lose here, so I'll just derail the whole thing by messing up the standing question..."

Paul Scott said...

"Yet, according to what their counsel represented to us at oral argument, the complaint they filed and the injunction they obtained determines only that Proposition 8 may not be enforced in two of California’s fifty-eight counties."

I do not understand how a Judge of such quality and experience ( and presumably all of his clerks) can continue to get that issue so wrong. I hope I am just missing something here, but it was clear to me that Boise kept repeating that those subject to the injunction were the Clerks of those two counties AND (much more importantly) the Governor and AG. If the Governor and AG are bound, then the entire State is bound. What I am missing here that JR thinks is so critical?

Secondly, I think the question to the California Sup. Ct. is odd. Shouldn't the 9th Cir. only ask that question if it first has resolved that Standing would exist if the Cal Sp. Ct. resolved that issue affirmatively? That is, the 9th Cir. must have already asked itself - "if we assume that the Cal Sp. Ct. would allow standing, how would we resolve Art. III standing?" And it must have concluded that Art. III standing does exist if Cal. Sp. Ct. agrees that proponents have standing in State Court. Is the above correct?

Michael C. Dorf said...

Paul,

1) I think Reinhardt's concern is that the 2 named clerks, the Governor and the AG may not be bound--at least not w/r/t other persons not before the court. To begin, there are general limits on the preclusive effects of judgments against government officials, but even if we assume that a suit against the Governor and AG would normally be preclusive in future actions involving other plaintiffs, that's not clearly true where, as here, the govt defendants put on no defense: Issue preclusion only applies to issues that are actually litigated and resolved. Beyond that worry, it's not entirely clear whether a determination that no one has standing on appeal would result in the vacating of the underlying district court order. I think the better answer is that it does not, but the parties disagree about this, as SR notes.

2) I completely agree with you about certification: Given the introduction of additional delay it will occasion, the 9th Circuit only should have certified if it first decided that the result would be dispositive of the standing question.

esegall said...

I wonder if Olson and Boies ever cared a whole lot about getting this case heard on appeal (especially at the SCT level) given the uncertainties there. Remember, gay rights groups originally didn't want this lawsuit brought for fear the Supremes weren't ready. Certainly, the lawsuit so far has done much to advance the cause all of which could be undone by a negative ruling above. It is very hard to believe they didn't anticipate the standing issues.In any event, I think it is extremely unlikely this Supreme Court hears the merits of this case due to the standing issues especially as Ginsburg seems to be against standing in these kinds of cases.

Michael Ejercito said...

If we assume, for the sake of argument, that proponents have no standing, then would not the injunction be overbroad to the extent it applies to the defendants' actions in relation to persons other than the plaintiffs? For if a same-sex couple other than the plaintiffs were denied a marriage license by the defendant county clerks, such action does not affect any protectable legal interests by the plaintiffs. (And there is no evidence plaintiffs have power of attorney over other persons in same-sex couplings.)

Michael Ejercito said...

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).
County clerks are not employees of the governor and attorney general. And even if such an order can be issued, it can be challenged in court. See Keating v. Edmondson , where the Oklahoma Supreme Court heard a challenge by the governor against the attorney general's opinion and engaged in a de novo review of the attorney general's opinion. (They upheld the attorney general's opinion.)

Michael Ejercito said...

Assuming they wanted to get marriage licenses in their home counties, they simply didn't have standing to sue any other county clerks, who hadn't injured them.
Agreed.

In fact, it is quite possible that the governor and attorney general should not have been defendants at all, since neither of them had denied the plaintiffs a marriage license. It is of course, inexplicable as to why, if they did not want to defend Proposition 8, they did not simply argue that the plaintiffs' alleged injury did not flow from their official duties (as their counterparts in Oklahoma successfully argued before the Tenth Circuit in a case raising these exact legal questions.)

Michael Ejercito said...

And if they did anticipate the possibility that no one would defend Prop 8, then they were deliberately running a large risk of a very limited judgment.
A very limited judgment would still give the plaintiffs the relief which they were seeking.

The goal of reaching a Supreme Court decision was that of the American Foundation of Equal Rights, not the named plaintiffs. Olson and Boies were bound to use whatever proper legal procedures available to get the plaintiffs the relief they were seeking, even if it means other similarly situated persons in California and the rest of the country have to initiate their own litigation.
Perhaps Judge R thought that it was fishy for plaintiffs' counsel not to seek class certain or otherwise add sects once it became clear that the original defts wouldn't defend.
It was not fishy. It was the lawyers' duty to represent the best interests of their clients.

A ruling limited to ordering the defendant county clerks to issue marriage licenses to the plaintiffs would achieve that, even if no one else benefits from the ruling.

Michael Ejercito said...

If the Governor and AG are bound, then the entire State is bound.
Wrong. Not all state and local officials are agents of them.

The fifty-six county clerks who were not sued do not work for the governor or attorney general, and they will continue to apply Prop. 8 barring a change in state law or a court order.

The controller, treasurer, and insurance commissioner are not bound by the ruling. (Although even if they were, they would hardly be in a position to grant plaintiffs marriage licenses.)

Michael Ejercito said...

I think Reinhardt's concern is that the 2 named clerks, the Governor and the AG may not be bound--at least not w/r/t other persons not before the court.
Again, this has to do with issues of standing, and I fail to see how plaintiffs have a protectable legal interest at stake if the defendants denied persons not before the court marriage licenses.
I wonder if Olson and Boies ever cared a whole lot about getting this case heard on appeal (especially at the SCT level) given the uncertainties there.
They did when they took the case.

But now they have a duty to their clients, and that duty implies using the standing issue to preserve a favorable ruling to their clients, even if it means that other same-sex couples, to get married, have to initiate their own litigation in courts which might feel bound by Baker v. Nelson.
In any event, I think it is extremely unlikely this Supreme Court hears the merits of this case due to the standing issues especially as Ginsburg seems to be against standing in these kinds of cases.
One thing to consider is that there is other litigation on very similar legal questions which have yet to exhaust appellate review (Bishop v. Oklahoma, Gill v. Office of Personnel Management, In Re Marriage of J.B. and H.B.. In particular, Gill is before the First Circuit, Marriage of J.B. is pending appellate review by the Texas Supreme Court, and Bishop is at the trial court level, and will probably be decided by this summer. The Supreme Court may decide to hear all these cases simultaneously with Perry (perhaps by writ of certiorari before judgment) or delay a decision to hear Perry until Bishop, Gill, and Marriage of J.B. clear the Tenth Circuit, First Circuit, and Texas Supreme Court, respectively.

Michael Ejercito said...

Issue preclusion only applies to issues that are actually litigated and resolved. Beyond that worry, it's not entirely clear whether a determination that no one has standing on appeal would result in the vacating of the underlying district court order.
Would vacating the lower court order for lack of standing have any practical effect?

It would seem that it would result in a default judgment for the plaintiffs (since defendants refused to defend), and thus plaintiffs ultimately win.