The 9th Circuit panel that has been presented with an appeal from now-retired U.S. District Judge Vaughn Walker's ruling last year that California Proposition 8 (providing that only the marriage of one man to one woman will be valid or recognized in California) violates the 14th Amendment issued two opinions on January 4, 2011. Both were issued on behalf of the entire panel and not attributed to any single member.
In one, the court ruled that neither Imperial County, its Board of Supervisors, nor its Deputy Clerk has "standing" to appeal the district court's ruling, and affirmed Judge Walker's decision to deny their motion to intervene at the trial level.
In the other, the court certified to the California Supreme Court the question whether, under California law, the proponents of an initiative measure have either the particularized interest necessary to ground standing to appeal, or the authorization of state law to represent the state in defending the constitutional provision that they proposed.
In addition, Judge Stephen Reinhardt, a member of the panel, issued an opinion explaining why he had denied a motion by the appellants that he recuse himself from the case due to the position and activities of his wife, the Executive Director of the American Civil Liberties Union of Southern California.
In the opinion concerning Imperial County, the court related that Judge Walker had denied the motion to intervene on the ground that neither the County nor the Board of Supervisors "had any interest in the administration of the state marriage laws," and that the deputy clerk and other local officials involved in administering the state marriage law function under the direction of the State Registrar and "have no discretion to disregard a legal directive from the existing state defendants," and thus none of these movants had "a significant protectable interest of its own to justify intervention."
The 9th Circuit panel first addressed the standing of the Deputy Clerk, Isabel Vargas, and rejected standing on a narrower ground than had Judge Walker. The court noted that Vargas was an appointee of the County Clerk and, as such, derived any authority she had from the County Clerk. "It follows," said the court, "that whatever 'significant protectable interest' may exist in those duties and powers is an interest belonging to the principal, not the deputy." Without deciding the question, the court implied that a separate and perhaps different analysis would be undertaken if it was the County Clerk who stepped forward as an appellant in this case.
The court also rejected the argument that the deputy clerk's interest was in avoiding "legal uncertainty and confusion" as to the applicability of Proposition 8 if Judge Walker's decision was not appealed, purportedly based on a state constitutional provision requiring administrators to enforce laws unless they have been declared unconstitutional by an appellate court. The court took the position that under the Supremacy Clause of the federal constitution, state officials would be bound to comply with rulings by a federal district court, regardless whether they were appealed.
As to the Board of Supervisors of the County, or the County government itself, the court was equally dismissive, observing that marriage is a state law question, not an issue of local law, and that these local government intervenors had failed to present evidence that they had any tangible stake in the outcome of the case. The court noted that these government entities had not presented Judge Walker with any evidence concerning tangible impact of a ruling on Prop 8 upon them as governmental bodies.
However, the 9th Circuit panel has evidently not reached a decision about whether the Proposition 8 proponents and their organization, ProtectMarriage.Com-Yes on 8, have standing. The court notes that if Proponents do not have standing, the appeal is at an end, since the named defendants in the case, the governor, the attorney general, and state officials charged with administering the marriage laws, have not appealed Judge Walker's ruling.
According to a pronouncement by the U.S. Supreme Court in Arizonans for Official English v. Arizona, 520 U.S. 43 (1997), the proponents of a state ballot initiative would not have standing to appeal an adverse federal district court ruling on its constitutionality unless they could show that they were authorized to represent the state on appeal as a matter of state law, when state officials refused to appeal, or had a particularized interest as individuals that would be affected by the outcome. (That case involved a state constitutional amendment enacted by initiative requiring that all state business be conducted in English, which was passed by the voters over the opposition of leading state officials, who then refused to defend it in the courts.)
The 9th Circuit panel points out the difficulty: If an initiative is passed over the opposition of state officials and is then challenged successfully in federal court, those officials who had opposed its enactment could have an effective veto over the measure by refusing to appeal, unless the amendment's proponents are allowed to appeal. Charles Cooper, arguing on behalf of the Proponents before the panel last month, made that argument forcefully. Cooper also argued that the California Supreme Court had answered the question by allowing Proponents to appear and defend Prop 8 in the litigation that was filed immediately upon its passage, questioning whether it had been properly enacted under the California Constitution's initiative provisions. In that litigation, neither the governor nor the attorney general had taken an active role in defending Prop 8, and Attorney General (now governor) Jerry Brown had actually questioned its constitutionality.
Although the panel repeated this concern in its January 4 opinion, nonetheless it apparently rejected the argument that California law already answers the standing question. "In the absence of controlling authority from the highest court of California on these important questions of an initiative proponent's rights and interests in the particular circumstances before us," wrote the court, "we believe we are compelled to seek such an authoritative statement of California law."
Bowing to Cooper's argument, they wrote, "Although the Governor has chosen not to defend Proposition 8 in these proceedings, it is not clear whether he may, consistent with the California Constitution, achieve through a refusal to litigate what he may not do directly: effectively veto the initiative by refusing to defend it or appeal a judgment invalidating it, if no one else – including the initiative's proponents – is qualified to do so." The court continued with a brief discussion that seemed to indicate its sympathy for the argument, but its hesitancy to decide a question of state law that has not been actually, explicitly decided by the state's highest court. The court pointed out that there was only one decision brought to their attention that seemed to involve similar circumstances, Simac Design, Inc. v. Alciati, 92 Cal.App.3d 146 (1979), but it was not a supreme court decision and thus not an authoritative statement of state law, and it also struck the court as distinguishable in some respects. The court also noted that a statement that seemed to bear on this question in an earlier California Supreme Court decision, Building Industry Association v. City of Camarillo, 718 P.2d 68 (Cal. 1986), was not part of the holding in that case, merely a side-comment by the court (known in legal terminology as "dicta"), and thus not an authoritative statement of California law.
An interesting side issue lingering in the case also surfaced in the footnotes: Whether, if nobody has standing to appeal and the governor and attorney general provided no defense for Prop 8 before the district court, the district court's decision should be "vacated" for lack of jurisdiction, or whether, on the other hand, if there can be no appeal, the district court's decision might be considered binding only on the named actual defendants (governor, attorney general, and state officials charged with overseeing enforcement of the marriage laws, as well as the two specific county clerks who were named as defendants because they had denied marriage licenses to the two same-sex couples who are the named plaintiffs in the case). The court indicated that the issue of standing necessarily had to be decided "before proceeding further with this matter" and was careful not to indicate any opinion about what the consequence would be of finding that the court of appeals lacked jurisdiction to hear the appeal.
So these two rulings clear away some underbrush (the Imperial County matter) and leave things a bit up in the air as to the Proponents' appeal and the ultimate fate of Judge Walker's ruling. The California Supreme Court is not required to accept the certification, and can decide to rephrase the questions posed to it if prefers to do so, and there is no telling how long that court might take to decide whether it wants to answer the question and then to answer it. Indeed, the California Supreme Court could decide to ask the parties to brief and argue the question of standing, which could cause the certification proceeding to stretch out for many months. One would hope that with constitutional rights at stake, the California court would move expeditiously, whatever direction it takes.
As to how it should answer this question, I really haven't a clue as a matter of California law, although I also find appealing, as a purely political matter, the argument that somebody needs to have standing to appeal, since a majority of the voters approved Proposition 8 and it appears unseemly that the votes of millions should be cast aside by a single federal district judge without any possibility of appellate review. It seems to me a basic proposition of American jurisprudence that a losing party at trial has a right to at least one appeal of their case, provided they assert that right in a timely manner. And it is possible that the California Supreme Court, consistent with that dictum in the City of Camarillo case, will take the position that in default of an appeal by the named defendants, Proponents should be allowed to appeal as representative of the voters who approved their initiative.
Finally, as to the recusal motion… It seems the ACLU of Southern California was careful not to file any briefs, amicus or otherwise, in the 9th Circuit in this appeal, and was not a litigant in the case below, apart from signing on to an amicus brief and attending a meeting with the plaintiffs before the case was filed, at which they urged — in concert with other LGBT rights organizations – that the case not be filed. (Indeed, it was this active opposition to the filing of the case that led the plaintiffs to oppose extending intervenor status to anybody other than the City of San Francisco in this case. In retrospect, a good thing, as it saved the possibility that Judge Reinhardt, whose past judicial record indicates receptivity to the kinds of questions posed on the merits in this case, would be on the panel if the case went to the 9th Circuit.) Judge Reinhardt explained that in light of his position on recusal, the circuit's administration automatically refrains from assigning him to panels in cases where the ACLU of Southern California is a party or representing a party. But in terms of the conflict of interest rules, he did not see the necessity to recuse from a case just because his wife heads an organization that has a public position on the merits. The circuit's conflict of interest rules speak in terms of an actual "interest" in a case, which is usually taken to mean a personal, tangible interest, not just an opinion, even if publicly expressed.
"My wife's views, public or private, as to any issues that may come before this court, constitutional or otherwise, are of no consequence," he wrote. "She is a strong, independent woman who has long fought for the principle, among others, that women should be evaluated on their own merits and not judged in any way by the deeds or position in life of their husbands (and vice versa). I share that view and, in my opinion, it reflects the status of the law generally, as well as the law of recusal, regardless of whether the spouse or the judge is the male or the female." Judge Reinhardt continued at length expanding this basic theme and pointing out the absurd lengths of disqualification to which the appellants' motion might run, noting that the ACLU of Southern California has taken positions on a host of issues that have come before the 9th Circuit, but that he has been consistent in sitting on such cases unless his wife's organization is an actual party or representing a party in the case.