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Sunday, August 15, 2010

Standing on the brain

Some semesters are particularly good times to teach some subjects. Steve Gey has told me about teaching Federal Courts at Florida State during the heart of the 2000 Election and Bush v. Gore; it became a class on that dispute and all the issues it triggered. This coming semester is shaping up as a good time for Federal Courts (which, unfortunately, I will not be doing). Lots of people--Jonathan Adler, Emily Bazelon, Michael Dorf, Vik Amar, and others--are talking about standing. And standing will be the word of the day in the courts and in the news in the coming months.

In denying the request for a stay of his judgment in Perry, Judge Walker emphasized his doubt that the proponents of Prop 8--who were permitted to intervene under FRCP 24 in the district court and became the primary defenders of the law when top state officials refused to defend the law--had standing to appeal the decision. Judge Walker did not finally determine that point; he only expressed doubt leading to his finding that the proponents had not shown a likelihood of success on the merits of an appeal, as necessary for a stay. So we will see three rounds of standing conversations--first as the Ninth Circuit, Justice Kennedy, and perhaps the full Supreme Court decide whether to stay Judge Walker's judgment pending appeal; second as the Ninth Circuit considers standing as part of the actual appeal; and third as SCOTUS considers standing in deciding whether to grant cert and what to do with the case if it does grant cert.

The standing issue here falls in the nether regions of two Supreme Court cases. Diamond v. Charles involves our basic current situation. State officials refused to appeal a lower-court judgment permanently enjoining enforcement of an abortion restriction and a private citizen, who had been allowed to intervene in the district court, sought to appeal on his own. The Supreme Court held that he lacked standing to appeal in the absence of the state officials who actually would be subject to the injunction. Although the law affected him as a doctor and father, that was not a sufficiently unique interest to confer standing to appeal (even if it was sufficient to allow him to intervene in the trial court--more on that later). The one thing that might distinguish this case is that the Illinois law had been enacted by the legislature, while Prop 8 was enacted via referendum. Thus, Prop 8 proponents argue that they are not ordinary citizens for purposes of Prop 8, as was Dr. Diamond, because they were responsible for Prop 8 becoming law through the direct-democratic process. That runs us into a second case, Arizonans for Official English v. Arizona, where the Court expressed "grave doubts" as to whether the proponents of a ballot initiative had standing to appeal an adverse judgment in the absence of state officials, but declined to resolve the issue because the case had become moot (the original plaintiff no longer worked for the state).

Diamond controls here, unless the Court backs away from the dicta (which the full Court joined) in Arizonans. Of course, there are good arguments for backing away from that dicta, which Dorf lays out. One problem is inconsistency. In Arizonans, the Court recognized that a state legislature has Article III standing to appeal a decision in the face of executive refusal, if state law authorizes the legislature to represent state interests in court. Where a law has been enacted via direct democracy, the argument goes, the proponents of the ballot measure functionally stand in the legislature's shoes (they exercised quasi-legislative power) and should have the same Article III status, provided state law grants initiative proponents the power to defend their measures (as California has). And Diamond expressly stated that a state "has the power to create new interests, the invasion of which may confer standing. In such a case, the requirements of Art. III may be met." Thus, the Court seems to have anticipated just this situation. Of course, Diamond predates cases such as Lujan v. Defenders of Wildlife, in which the Court has cut back on the power of legislatures to confer Article III standing by statute. So even if California law gives initiative proponents unique rights, a federal court still must run it through an Article III analysis and decide whether the state-created rights are sufficient for Article III purposes.

One underlying point is how closely the "interests" required for intervention under the Federal Rules of Civil Procedure align and overlap with the concrete and particularized unique interests required for Article III standing. In other words, are standing and intervention the same? The Diamond Court noted a circuit split on the subject, a split that continues today (and at least one district court has read Diamond as accepting a gap between the two concepts). But Adler and Ed Whelan both argue that it is strange to say the proponents had a sufficient interest to intervene and provide the primary defense in the trial court, but not sufficient interest to lead the challenge in the court of appeals when the trial court rejected their arguments. Thus, if Judge Walker is correct about proponent's lack of standing to appeal, it should mean they lacked standing to defend in the district court and Judge Walker's judgment must be vacated.

I am  less bothered by this apparent gap. I always have looked at intervenors as amici on steroids, given a fuller role at the trial-court level and having an interest in the outcome and expertise on the subject somewhat greater than the rest of the population, while not necessarily possessing full party status or possessing an interest that rises to full-party level. So a gap between standing and intervention is not entirely illogical, just as a gap between standing and amicus status is not illogical. Prop 8 proponents are not "injured" in any unique way by the injunction, because they are not the ones enjoined to do or stop doing anything--the governor and the AG are] But the proponents still possess views on the constitutionality of Prop 8 that are beneficial to the Court, provided the directly affected parties remain present in the case. SCOTUS itself has used such "super-amici" to provide primary arguments, even where they would have lacked standing as parties. Dorf points to Dickerson v. United States, the case that affirmed the constitutional nature of Miranda. Dickerson appealed his conviction on the ground that it relied on an un-Mirandized confession; the United States defended the conviction on the ground that the conviction was valid under Miranda, but did not want to defend it on the ground that Miranda had been (or could be) overridden by statute. So the Court appointed an amicus (Prof. Paul Cassell) to brief and argue that issue. But no one would believe that, had Dickerson won below and the United States declined to appeal, Cassell would have had standing to appeal.  I would point to a similar example from last term--Reed Elsevier v. Muchnick. The parties entered into a global settlement agreement and sought settlement-class certification, but the court of appeals rejected the settlement on the ground that the district court lacked subject matter jurisdiction over the case, a conclusion with which all sides disagreed. On appeal to SCOTUS, all sides argued the district court had jurisdiction, so the Court appointed an amicus to argue the absence of jurisdiction. But again, had the court of appeals found jurisdiction and the parties chosen not to appeal, no one would have had standing to do so. The point is that courts often hear from voices in a case whose interests and arguments diverge from those of the parties, but that does not give those voices all the same rights as the parties themselves, particularly in moving from the district court to the court of appeals.

Moreover, suppose Adler and Whelan are correct--the problem is not proponent's lack of standing to appeal, but their lack of standing to intervene as primary defendants in the first place. Then what happens? It seems to me the case goes back to Judge Walker to start ove. But now there is no one defending the state law. So the next move would be entry of a default to return to the district court, where the state officials would consent to a judgment (not a default, since the state officials properly are parties to the case) enjoining the law, accepting and establishing all the plaintiffs' legal and factual arguments or the court might enter summary judgment, accepting the plaintiffs' factual allegations as true (Vik Amar makes this point). In other words, we end up right back here. On the other hand, as Adler quotes a Time story, California will have a new governor and a new AG come January, so who knows what would happen if the judgment were vacated and the case began anew?

Adler points to one other issue of California law that I did not know about. Another interested party in the case would be individual counties and county clerks (and their deputies), who are charged with issuing marriage licenses and solemnizing marriages. The deputy clerk of Imperial County sought to intervene to defend the law in the district court, a motion that was denied after Judge Walker issues his decision. That deputy clerk has sought to appeal the denial of her motion to intervene and the ruling on the merits, arguing, in essence, that she would be subject to the injunction because she would have to issue marriage licenses to same-sex couples, even if she believes state law is constitutional. I have not read the briefs on this, but my wild guess for a response is that no same-sex couple sought a license from Imperial County, so that deputy clerk is not actually subject to this injunction (she would not be in contempt of Judge Walker's order if she refused to issue a license, although she may be wrong as a matter of law) and thus not a proper party to the case (again, this is a guess-feel free to explain in Comments why I am wrong).

As Bazelon points out, the standing controversy has sparked some schadenfreude among liberals, who (as with the first round of birther suits in 2008) see conservative interests being hoisted on a doctrinal petard of their own creation. Bazelon regrets that this case could be undone by a "technicality"--a word I despise, although I take her point. Still, you never know when doctrine is going to come to life.

Posted by Howard Wasserman on August 15, 2010 at 03:23 PM in Civil Procedure, Constitutional thoughts, Current Affairs, Howard Wasserman, Law and Politics | Permalink


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You guys know that the County Registrar (Isabel Vargas) is a STATE official rather than a county one when it comes to issuing marriage licenses? You're glossing over Judge Walker's decision which explains why Vargas has no interests in it. Lockyer v. City and County of San Francisco forecloses them from having their own interest in "defending the statute". If an order binds Mark Horton (the State Registrar) and those under him, that includes ALL of the county clerks who are in their official capacity as marriage license issuers. The decision applies statewide. Period.

Posted by: Gray Peterson | Aug 16, 2010 5:11:28 PM

On the limited issue of Imperial County: it seems that the county does not have a live case or controversy until an actual marriage license is requested in that county by a same sex couple. At that point, the county clerk could refuse that request, which could lead to two different courses of action:

(1) The couple seeking to marry contacts state officials, and those state officials exercise whatever authority they have to force the clerk for Imperial County to issue the marriage license. The county officials could then sue the state and thus assert their interest in following the law as sufficient to grant standing. It would then be the responsibility of the state to defend their actions by arguing that Prop 8 is unconstitutional, presumably by relying on Perry.

(2) The couple seeking to marry sues the county officials, who can then defend Prop 8 in their own trial.

However, it seems doubtful that any court will find that Imperial County has standing to appeal Perry based on a hypothetical fear that it will sometime in the future affect them.

Posted by: Andrew MacKie-Mason | Aug 16, 2010 4:47:40 AM

If TJ is right on his last point, to what extent is "lack of substantial federal question" a relic of SCOTUS's mandatory appellate jurisdiction that disappeared in 1988?

Posted by: Howard Wasserman | Aug 15, 2010 8:08:47 PM

There is no way there is a lack of § 1331 jurisdiction in the district court. The case is brought under federal law (§ 1983 and the Fourteenth Amendment) and there is no way the argument that a ban on same-sex marriage violates the Fourteenth Amendment is frivolous under Bell v. Hood (to the extent that case has any meaning anymore). There may be a question of the standing of the proponents to defend, but there is no question that the district court has jurisdiction over a dispute made possible by federal law between the plaintiffs and the state-officer defendants. Nothing in the current posture could cause the plaintiffs to lose, in the sense of having the case dismissed. At worst, they lose their judgment for the moment, but then get a consent judgment from the state official defendants that puts them back where they are now.

Will: You probably are correct that, if California law gives them an interest, there will be standing in federal court. But Lujan seems to suggest that federal courts will not simply defer to a legislature (there it was Congress) conferring standing beyond Article III. So I think some independent discussion will be necessary.

Posted by: Howard Wasserman | Aug 15, 2010 8:04:48 PM

Will, I don't know of any Supreme Court authority that the substantiality requirement for Supreme Court appellate jurisdiction and original district court are the same. As for circuit level authority, the Port Authority case that the student note was attacking is on point. The note itself actually does not draw a distinction between appellate and original jurisdiction -- it argues that when the Supreme Court dismisses an appeal "for lack of a substantial federal question," it is really saying "this case isn't important enough for plenary consideration" (akin to cert. denial) rather than acting on jurisdictional grounds.

Posted by: TJ | Aug 15, 2010 8:04:38 PM

I could be misremembering (despite having written a few pages of a law review article about this two years ago) but I did not think that the "substantial federal question" requirement to invoke the Supreme Court's appellate jurisdiction was the same as the non-frivolous federal question requirement to invoke the jurisdiction of the federal district courts. (And this author (JSTOR link) apparently agrees with me.) But I'll admit to having lost track of this issue. Is it established (and if so, by what authority?) that the two are the same?

Posted by: WPB | Aug 15, 2010 7:39:01 PM

Howard, though you are certainly correct in your description of the duty of an appeals court to check district court jurisdiction, it leads to an endless loop in this case. There is a very plausible argument that the district court lacks federal question jurisdiction under Baker v. Nelson (I know you hate the "substantial federal question" requirement of federal jurisdiction, but accept current law for now); and there is an equally plausible argument that the proponents lack standing. But choosing one Article III doctrine over an other is outcome-determinative in this case (whereas in the usual case the court of appeals gets to choose because they all lead to the same outcome).

Here, if the court of appeals says there is no jurisdiction under Baker v. Nelson, the result is dismissal and the Plaintiffs lose. If the court of appeals says there is no jurisdiction under Arizonans for Official English, the result is either that the district court judgment stands (appeal dismissed) or a remand without the Proponents (either default or consent judgment)--in sum, the Plaintiffs win. So if the court of appeals has the ability and duty to check district court jurisdiction, but such checking leads to the opposite outcomes, what then?

Posted by: TJ | Aug 15, 2010 7:29:26 PM

Courts have an independent obligation to check jurisdiction (meaning all Article III requirements) of itself and all the courts below it in all cases. So if a party attempts to put a case before the court of appeals (even if that party is not properly before the court of appeals) and, in he course of deciding that, the court of appeals realizes that the the *district court* lacks subject matter jurisdiction, the court of appeals is obligated to consider and address the district court's jurisdiction.

Much depends on the relationship between FRCP 24 and standing. I am of the view that there properly was a defending party before the district--the state officials who did appear in the case, although they were not going to put on a defense. But there also must be proper parties before the court of appeals independent of the district court. So that leaves several possibilities: 1) The intervenors have standing to appeal; 2) The intervenors could properly intervene, but they lack standing on appeal--the judgment stands, but is unappealable without the state; or 3) Intervention and standing overlap, the proponents lack standing (and thus should not have been allowed to intervene)--entire judgment is vacated, return to district court for entry of a consent judgment (not, as I said earlier, a default judgment).

Posted by: Howard Wasserman | Aug 15, 2010 6:26:35 PM

Gary: You may well be correct about whether a "do-over" is required-- I continue to learn more about this issue as I read about it. But in general (and I can't tell if this is your question) there is nothing strange about an appellate court taking meta-jurisdiction over the question of whether it has appellate jurisdiction.

Howard: I don't mean to assert for sure that there *is* a difference between Arizona and California on this issue. The City of San Francisco's brief in opposition to the stay argues at length that there is no such difference, and I haven't looked at the relevant cases (or the briefs before the Supreme Court in AOE, or the histories of the two state constitutions, or so much more).

But I do think that this question really just is one of state law. Nobody requires the state governor or the state or attorney general to demonstrate any further Article-III "interest" other than their state-law power to defend the laws of the state. And since states are not constricted to the federal system of separation of powers, others who possess the same state-law power must have the same Article-III "interest."

And moreover, that conclusion makes perfect sense in light of the history and purpose of popular constitutional amendment--viz., a concern by the voters that only the people themselves (and not their elected representatives) could be trusted to represent the people of the state on certain issues.

Again, I don't know whether California law does follow such a theory, but if it does, I think Article III standing must follow straightforwardly. (And the Supreme Court apparently thinks so too, if it meant what it said in Karcher and Arizonans for Official English)

Posted by: WPB | Aug 15, 2010 6:18:49 PM

We have been talking about "Article III standing" as if it were a distinct doctrine, but standing emerges from the more general requirement of a "case or controversy." So if there is no case or controversy before an appellate court (because the only party with a concrete interest refuses to defend the law), why was there a case or controversy before the district court (when the only party with a concrete interest refused to defense the law)?

If this analysis is correct, I don't see the need for a do-over. The 9th Circuit only needs to vacate the underlying opinion and order a default judgment.

Posted by: TJ | Aug 15, 2010 5:23:41 PM

I do not want to drag this out but is it the rule, that a person without "standing" to appeal can invoke the appellate jurisdiction of the court of appeals to have the higher court review the "jurisdiction" of the lower court? That would seem to eviscerate the appellate standing rules, and turn the court of appeals into some roving commission to police district court jurisdiction. More importantly, how would the lack of standing in the intervenors destroy the actual live "case and controversy" that existed between the plaintiff couples and the state gov't defendants in the district court? The state defendants would not defend but they also would not grant licenses without a court order.

Posted by: gary myers | Aug 15, 2010 5:05:04 PM

Will: Fair point about the differences between Arizona law and (apparently) California law. But state law alone will not be enough; there still must be a finding that the interest is high enough for Article III purposes.

Gary: A court (both the district court and the court of appeals) have jurisdiction to determine their jurisdiction, which includes the Article III standing of any parties. So even if the case never fully gets to the Ninth Circuit, it independently can inquire into jurisdiction, including standing at the district court level.

Posted by: Howard Wasserman | Aug 15, 2010 4:36:33 PM

If the Prop. proponents did not have "standing" to intervene, why would that require the Distict Ct. judgment be vacated? That "error" would not destroy the "case and controversy" between plaintiff couples and the State defendants, who did not defend but nmost importantly did not - and apparently would not - grant plaintiff couples any marriage licenses without a court order. And what process would be involved in vacating the present ruling for a do over? If intervenors have no standing (either at trial or on appeal), how is the case even before the court of appeals? Who would raise that erroneous intervention issue - the intervenors, i.e., we were wrongfully allowed to be heard in a default judgment hearing? And why would not the erroneous order granting intervention be harmless error given the intervenors non-success on the merits?

As to Imperial Valley clerk's "standing", none of the plaintiffs in this non-class action, sought a license from that clerk. That clerk is not named as a defendant subject to Judge Walker's judgment order. r Moreover, given that government actors are not subject to non-mutual collateral estoppel principles, the clerk would not be "bound" to adhere to the District Court opinion. And the single judge District Ct. opinion does not carry any precedential weight in any later suit. Thus, it is hard to see any "injury" to the Imperial Valley clerk - he or she can continue to enforce Prop. 8's ban. Only if the one of the State bureaucrats named as defendants (and bound by Walker's judgment) has the state law authority to control the issuing decisions by the county clerks, would the Imperial Valley clerk be "injured" by Walker's opinion. And even in that situation - where the Imperial County clerk is a mere agent of the State bureaucrat - the latter's decision not to appeal would "bind" the clerk-agent.

Posted by: gary myers | Aug 15, 2010 4:26:06 PM

On the question of whether the ability to intervene does or does not track Article III standing, readers might be interested to know that there is divided authority on the question of whether intervenors must satisfy the Article III standing required to appeal, or may somehow intervene with less standing. Some of the split is discussed in this 8-year-old student note, although there have been developments since then, such as the Tenth Circuit's 2007 en banc decision in San Juan County v. United States.

As for Arizonans for Official English, as I understand the proponents' argument, they do not wish to "back away" from the dicta there. AOE correctly recognized that the right of a group to defend the constitutionality of a ballot initiative they have proposed is itself a question of state law, and the proponents claim that under California law, they do have such a right. I have read the briefs on the issue, but not the underlying cases, and don't know whose interpretation of state law is correct.

Posted by: WPB | Aug 15, 2010 3:58:26 PM

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