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Prof. Cruz on the standing question in the Prop. 8 case

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At his blog, Cruz Lines, Prof. David Cruz, who joined us for the live chat of the Prop. 8 arguments at the Ninth Circuit last month, proffers his views on what the California Supreme Court could do on the standing question -- and what it means:

The Supreme Court of the United States (SCOTUS) has previously doubted that initiative proponents suffer a sufficient injury to have standing when measures they sponsored are invalidated, but it has suggested (without definitively ruling) that legislatures have the requisite injury when their laws are invalidated provided state law authorizes them to defend their laws in court. The proponents want to extend that rule from legislatures to initiative proponents. So they want to argue that California law authorizes them to represent the state’s interests in defending Prop 8.

And California courts have, generally without extensive analysis, allowed ballot proponents to defend their initiatives – in state court, thus necessarily subject to the supervision of California state judges. That is not a general-purpose vesting of proponents with authority to represent all the states’ voters in any court. Rather, California courts, not bound by federal standing rules, have made individual decisions to allow proponents to defend laws in California’s own state courts.

But individual legislators have not had standing to represent the entire legislature without legal authorization to that end. When legislatures have passed resolutions allowing representatives to defend measures in court, that has sometimes been allowed to satisfy standing rules. The proponents, however, cannot point to an authorization by the voters of California to represent our collective interests in any courts including federal courts. Indeed, although some initiatives have contained clauses that have authorized their proponents to defend the measures, Prop 8’s proponents did not choose to include any such language.

Accordingly, the California Supreme Court should choose to answer the certified question about the authority California law does or does not give to the Proponents (as it is a matter of their discretion whether they choose to), and then after briefing and oral arguments, hand down a decision along the lines sketched above. Based on the earlier Prop 8 challenge before SCOCA and other past certified questions, I would think this would happen within six months at the very most. Then, the Ninth Circuit should hold that the proponents do not have standing; dismiss their attempted appeal; and lift their stay of Judge Walker’s order directing the Governor and the Attorney General of California to allow same-sex couples to marry again. If the appeal effort is resolved on these narrow, somewhat technical grounds, there would then be a decent chance that SCOTUS would not bother to review the Ninth Circuit’s decision and equal freedom to marry would be restored in California.
Standing has been a major hurdle for the intervenors. Prof. Cruz wrote a post for us about the standing issues in the federal court last August.

Standing is at issue because the Governor and Attorney General (Schwarzeneggar and Brown) wouldn't defend the case. The new Governor and AG (Brown and Harris) are taking the same position. It really helps to have elected officials on our side.

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