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Tuesday, January 04, 2011

Prop 8 and buck-passing

The three -judge panel sitting on the Prop 8 case has decided to certify the standing issue to the state Supreme Court.  For those of us who were watching the oral argument, it was clear that the panel was very proud of itself for having found this further delay tactic.  I don't suppose anyone will be terribly upset by this buck-passing, though no party was particularly enthusiatic about it when Reinhardt suggested that they may bring in the state court.

True enough, Ginsburg intimated in Arizonans that underlying state law might be able to attempt to confer standing (and that case observed that there was no such law in Arizona).  But it is very hard to squeeze out of Arizonans a real opening to find standing for the proponents here based on non-existent state law in California (if state law can overcome the federal constitutional hurdle).  Certification works well, it would seem, when there is some outcome-determinative state law at issue that is unclear.  In the case that will now be before the state Supreme Court, the federal court has invited it to simply make up new law whole cloth -- with no real sense from Arizonans that it really will be outcome-determinative, whatever the state court decides.  Certification is fun for law geeks but it really seems counter-indicated here.  The best explanation for the 9th Circuit decision is not legal but political.  If the 9th Circuit can dilly-dally just long enough, we may be able to moot the Prop 8 federal case with gay marriage in California before it gets to the US Supreme Court.

Posted by Ethan Leib on January 4, 2011 at 04:15 PM | Permalink


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There could be limits to Karcher; one could imagine an argument that delegation to a legislator is fine but delegation to a private group isn't. Standing law is a moving target. But, in principle, if there were some express state law that delegated the right to defend laws to official ballot sponsors when and if the AG refuses (it wouldn't have to be in the state constitution, I don't think), that could satisfy the Court -- and render standing here consistent with Karcher and Arizonans. My concern is that asking the California Supreme Court to make up this express delegation to meet Karcher is lame. If the 9th Circuit wanted to find a way to apply Arizonans and distinguish the case, it could just as well have made up the California law itself instead of looking for cover. That state court will sully itself in this process if it goes down this path.

As you well know, moving is rarely a pleasant affair....

Posted by: Ethan Leib | Jan 4, 2011 6:19:35 PM

Okay. Then we do agree that if the California Constitution did have an explicit provision granting Karcher standing to initiative proponents, there would be standing in this case?

I think that means that we ultimately agree on everything but the question of what California law says-- and, perhaps, whether the California Supreme Court can be trusted to answer the question of what California law says honestly.

Happy moving!

Posted by: WPB | Jan 4, 2011 5:56:17 PM

The short of it (and I have to move cross-country shortly so I have to be short) is that I don't think there is any state law that works the way the explicit state law does in Karcher. Ultimately, this case -- like Arizonans before it -- has no state law on point to confer standing. Asking the state court to make it up to provide cover is ingenious but also disingenuous. [Can you be both of those things at the same time?]

I think the 9th Circuit needed either to follow the tea leaves in Arizonans (there is no standing) -- and to deal with the remedial mess that outcome creates. Or it needed to bite the bullet and find standing, daring Ginsburg to re-think her "dicta" and make the court address what is a totally plausible argument: that if the AG won't enforce the law, someone has to be able to defend it, whatever made up Art III doctrine stands in the way. I am not sure which of those outcomes from the 9th Circuit was the correct one from the legal standpoint. But I think this certification resolution isn't much of one at all -- and just defers the adjudication of the hard underlying questions for another day.

Posted by: Ethan Leib | Jan 4, 2011 5:41:58 PM

Delay may well be the goal here, for better or worse. But there also is a tension between Arizonans (and Diamond, where O'Connor got this idea) and the citizen-suit cases. So maybe the Ninth Circuit (or SCOTUS) will have to reconcile those two lines of cases to even decide standing here. And that only gets done if this case is sufficiently different than Arizonans, which is more easily determined by an understanding of state law.

Posted by: Howard Wasserman | Jan 4, 2011 5:32:50 PM


What do you find so unpersuasive about the Karcher argument in the proponents' brief? As I understand it, everybody (including the Supreme Court) agrees that various members of a state government-- not just members of the state executive branch, but at least members of the state legislature-- can have standing to litigate on the state's behalf if state law authorizes them to do so. And that state law gives an Article III interest/injury to members of the state legislature for the same reasons it gives one to members of the state executive. So we all agree that state law can sometimes define who has Article III standing in this sense-- by giving them authority to defend the state's interests in certain circumstances. Right?

And if that is so, why isn't it equally possible, at least in principle, that state law can delegate the same sort of state authority to those who are not full-time state officials? Especially in the case of the initiative, where the people are exercising direct legislative power, and where there are logical reasons (listed in the panel opinion) to delegate that power outside of the executive or legislative branch? If a state has that sort of hybrid delegation of litigating authority, why wouldn't standing doctrine simply take it as it finds it-- just as it does in the case of state legislative standing?

I can understand why one might think California law is ultimately unclear about whether the state *has* created such an interest. But I genuinely don't understand why one would think that California law is irrelevant-- at least under Karcher, as interpreted in Arizonans.

I am always interested to learn how different other people's priors are than my own. My only skepticism about certification is that it may already be obvious that there *is* standing. I'm surprised to see-- and eager to understand-- your belief that certification is a waste of time because there is *not* standing.

Posted by: WPB | Jan 4, 2011 5:23:08 PM


It may, as you say, "make[] a lot of sense for state law to have a role to play in determining standing," but there is little indication from Arizonans about how that role is to be fulfilled. If standing is a constitutional doctrine (as the Supreme Court believes it to be) and that doctrine requires something other than generalized injury, demanding an injury in fact (as the Supreme Court requires), it is just very hard to understand how state law that really doesn't exist right now could come to furnish a form of standing that probably doesn't meet federal constitutional requirements anyway. Even if the California Supreme Court steps forward and creates a doctrine of "initiative sponsor standing," there is no reason to think the Supreme Court would allow that to qualify for Art III purposes, just as citizen suit provisions cannot overcome constitutional strictures.

Certification is not tragic, of course. It just seems to be a waste of time to me. But a waste of time may be just what lots of people want.

Posted by: Ethan Leib | Jan 4, 2011 5:07:48 PM

This seems extremely unfair to the panel opinion. For the reasons stated in the briefs (and conceded by both sides, as I understand it), it makes a lot of sense for state law to have a role to play in determining standing here. Since state law, not federal law, determines the structure and separation of powers of state government, surely it is a question of state law what kind of powers the initiative proponents have been delegated by the people of California.

But the state law question is pretty tough-- as the excellent briefing on the state law questions by both sides indicate. So certification is the natural and fair solution, even if it doesn't make the parties happy.

Posted by: WPB | Jan 4, 2011 4:43:22 PM

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