Breaking: Cal Supremes on Prop 8

The California Supreme Court has just issued its opinion on the recent certified question in Perry v. Brown, the Proposition 8 case. The short answer, so far as I can see, is that the case is headed back to the Ninth Circuit with only minimal guidance on the core inquiry: do the backer of Proposition 8 have standing to defend it?

Rather than read and contemplate the opinion, however, in true busy associate fashion I have given it a skim and will now fire off a few disorganized thoughts before turning the forum over to the comments where, no doubt, someone anonymous will do the hard work of saying something profound. Thanks for that in advance.

As you will recall, last year a panel of the United States Court of Appeals for the Ninth Circuit used the “certified question” procedure to send a portion of the case to the California Supreme Court. As Boaltie federal court nuts are no doubt aware, the procedure is designed to further our federal system of government by providing the federal courts with an avenue by which they may ask state courts to resolve “novel or complex questions of state law.” (This is also know as “judicial restraint” or “punting the question,” depending on the circles in which you run.)

In this case, the question certified was:

Whether under article II, section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure possess either a particularized interest in the initiative’s validity or the authority to assert the State’s interest in the initiative’s validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so.

In plain English, what the Ninth Circuit really wanted to know was whether the proponents of Proposition 8 had standing to defend it from a constitutional attach in federal court. Obviously (at least to those Boaltie federal courts nuts), Article III standing presents a rather common question of federal law, and not a “novel or complex question” of state law. But by disguising the inquiry in language like “particularized interest” (see the quotation above), the Ninth Circuit hoped to find a backdoor path to the issue -- that language is designed to tip off the Ninth Circuit as to whether voter-backers of Proposition 8 have an interest under California law that also is legally cognizable under Article III of the United States Constitution.

If you wonder why a federal court needs a state court’s help with this issue (i.e.., with whether a person has been injured in a way that is cognizable under Article III), you’re asking good questions. And, according to my very hasty read of the opinion, the California Supreme Court is on our wavelength. Rather than state “yes, these voters have been injured,” the Cal Supremes have avoided that question and asserted only that the backers of Proposition 8 have chosen a procedural path that is valid under California law. That’s a distinction with a substantial difference: instead of accepting the Ninth Circuit’s invitation to answer its own standing inquiry (which was a question of federal law anyway) the California Supreme Court appears to have addressed the relevant California law and left the rest of matters as they found them. Good for them.

The next step is a return to the Ninth Circuit where, hopefully, the panel will commence to answering its own threshold question: have the backers of Proposition 8 been (1) injured, in a way that is (2) fairly tracable to the defendant's wrongful conduct and that is (3) redressable by court order?

All of the above comes with the caveat that I have not read the entire opinion. I’ll get to it later today, I hope, but in the meantime discuss away.