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California Supreme Court agrees to rule on Prop 8 standing issue

By Daniel Richey

[JURIST] The Supreme Court of California [official website] announced Wednesday that it will decide a critical procedural issue [release, PDF] to determine whether a pending federal appeal of the invalidation of Proposition 8 [text, PDF; JURIST news archive], California's same-sex marriage ban, can continue. In January, the US Court of Appeals for the Ninth Circuit [official website] asked [order, PDF; JURIST report] the Supreme Court to weigh in on whether supporters of Proposition 8 have standing to defend the measure when state officials have refused to do so. The issue requires the court to interpret Article II, Section 8 of the California Constitution [text, PDF] to determine:

Whether ... 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.

If the court answers in the negative, the Ninth Circuit would likely dismiss the case, and it is unclear whether the August invalidation [JURIST report] of Proposition 8 by the US District Court for the Northern District of California [official website] would stand. The parties disagree as to what effect a dismissal would have, and the circuit court noted the issue but did not address it.

When Judge Vaughn Walker of the Northern District of California struck down Proposition 8, then-governor Arnold Schwarzenegger and former attorney general and current Governor Jerry Brown [official website], who were originally defendants in the lawsuit, refused to continue defending the measure on appeal [JURIST report], leaving defendant-intervenors Project Marriage [advocacy website] and other groups to defend the law. In January, the Ninth Circuit also upheld [opinion, PDF] a lower court decision refusing to allow officials from Imperial County, California [JURIST report] to intervene, and Judge Stephen Reinhardt [FJC profile] issued a memorandum opinion [text, PDF] on his decision not to recuse himself [JURIST report]. The Ninth Circuit heard oral arguments [video; JURIST report] in the case, Perry v. Schwarzenegger [case materials] last December. The hearing was divided into two one-hour sessions, with the first section focusing on the issue of standing, and the second focusing on Proposition 8's constitutionality. In August, a three-judge panel for the Ninth Circuit issued a stay [JURIST report] on Walker's ruling, pending appeal.

Full post as published by JURIST - The Paper Chase on February 17, 2011 (boomark / email).