Legal Commentary

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, 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 judgment enjoining the law, accepting and establishing all the plaintiffs' legal and factual arguments. 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.