9th Circuit Punts On Perry Prop 8; Certifies Standing To California

Liberty & Justice by Mirko Ilic

We have unexpectedly quick news out of the 9th Circuit Court of Appeals on the Perry v. Schwarzenegger Proposition 8 marriage equality appeal. As you will recall, the case is in the 9th on appeal from the three week long evidentiary trial in the Northern District of California last January in front of Judge Vaughn Walker with closing arguments made on June 16 (summary of EW live coverage here) and Judge Walker’s opinion finding such marriage discrimination unconstitutional was issued on August 4th. The current appeal had oral argument less than a month ago, on Monday December 6th.

Now we have the surprisingly fast first decision, if you can call it a “decision”. It is really a disguised punt. The main opinion is in docket No. 10-16696, where the effective docket order reads:

Filed Order for PUBLICATION (STEPHEN R. REINHARDT, MICHAEL DALY HAWKINS and N. RANDY SMITH) for certification to California State Supreme Court. Before this panel of the United States Court of Appeals for the Ninth Circuit is an appeal concerning the constitutionality under the United States Constitution of Article I, § 7.5 of the California Constitution (“Proposition 8”). Because we cannot consider this important constitutional question unless the appellants before us have standing to raise it, and in light of Arizonans for Official English v. Arizona, 520 U.S. 43 (1997) (“Arizonans”), it is critical that we be advised of the rights under California law of the official proponents of an initiative measure to defend the constitutionality of that measure upon its adoption by the People when the state officers charged with the laws’ enforcement, including the Attorney General, refuse to provide such a defense or appeal a judgment declaring the measure unconstitutional. As we are aware of no controlling state precedent on this precise question, we respectfully ask the Supreme Court of California to exercise its discretion to accept and decide the certified question below. (See order for full text).


The case is withdrawn from submission, and further proceedings in this court are stayed pending final action by the Supreme Court of California. The parties shall notify the Clerk of this Court within three days after the Court accepts or rejects certification, and again within three days if the Court renders an opinion. The panel retains jurisdiction over further proceedings. IT IS SO ORDERED.

Now, as you will also recall, there were two cause numbers consolidated for oral argument and that, really, comprise the same effective case. In the second one, Docket No. 10-16751, the part of the action initiated by Imperial County attempting to intervene and provide governmental cover for standing on appeal, the effective corollary docket order reads:

FILED PER CURIAM OPINION (STEPHEN R. REINHARDT, MICHAEL DALY HAWKINS and N. RANDY SMITH) AFFIRMED; DISMISSED. The district court order denying the motion to intervene is AFFIRMED. Movants’ appeal of the district court order concerning the constitutionality of Proposition 8 is DISMISSED for lack of standing. The deadline for filing a petition for panel rehearing or rehearing en banc is hereby EXTENDED until the deadline for such petitions in No. 10-16696, which will be 14 days after an opinion is filed in that appeal. The Clerk is DIRECTED to stay the issuance of the mandate in this case until the mandate issues in No. 10- 16696. AFFIRMED in part; DISMISSED in part. FILED AND ENTERED JUDGMENT.

In the second cause number, 10-16751, the court issued a 21 page per curiam (by the whole panel collectively) opinion addressing the Imperial county attempt at intervention. the court held:

None of the Imperial County movants has demonstrated a “significant protectable interest” at stake in this action, as it was brought by Plaintiffs, and we affirm on that basis alone.

The court effectively laughed at the attempt to use Deputy County clerk Isabel Vargas as a mule for intervention, wondering why the hell a minion would be used instead of, you know, the actual County Clerk. A real valid question, and the court found no good answer. The court similarly found that the Imperial County Board of Supervisors was not a proper vehicle, stating “…the Board plays no role with regard to marriage, which is “a matter of ‘statewide concern’ rather than a ‘municipal affair'”. The court rounded out the fisking as follows:

Moreover, the duties of the Supervisors themselves are not directly affected by this litigation, so they lack a significant protectable interest.

Second, the County itself has failed to demonstrate any interest of its own, apart from those claimed by Vargas or the Board of Supervisors.

So, in a nutshell, the argument by Imperial County that they were entitled to intervene as a matter of right was denied in full. Oh, and the 9th also found that Vaughn Walker was correct in finding no necessary basis for permissive intervention by Imperial County as well, and affirmed that denial. So Imperial County, unless they get some appellate relief, which is unlikely, is toast.

And, so that completes the fun today, right? Oh no! We have more! The estimable Judge Stephen Reinhardt lodged a concurring opinion that is a little, shall we say, more interesting. I will excerpt a few key quotes, but this one is only ten pages long and is well worth the read. I think you will quickly understand why I have said Reinhardt is such a wonderful treasure as a judge.

Today’s two orders involve a procedural question known as “standing.” The public may wonder why that issue is of such great importance, and what the significance of our standing decisions is. For that reason, while I agree entirely with our two dispositions, both of which are filed in the names of all three of us who are considering the appeals and both of which represent our unanimous views, I believe it desirable to set forth a few explanatory remarks of my own.

The standing problem arises out of a trend in our judicial system over the past few decades. It is a trend that emphasizes technical rules over deciding cases on the merits, and indeed over the merits themselves.

Reinhardt’s disdain for the avoidance of meritorious claims on technical standing issues just drips off the pages. Indeed he cites his own previous tomes on just this subject in a prominent footnote (See footnote 3 for the cites). But as to the instant case, Reinhardt acidly remarks:

All I can say now is that the issues concerning standing were wholly avoidable in this case.

He goes on to take a crystal clear shot directly at the broadside of Ted Olson and David Boies for filing their action, and obtaining their relief, against one two of the 58 counties in California:

Whether Plaintiffs are correct or not, it is clear that all of this would have been unnecessary and Plaintiffs could have obtained a statewide injunction had they filed an action against a broader set of defendants, a simple matter of pleading. Why preeminent counsel and the major law firms of which they are a part failed to do that is a matter on which I will not speculate.

Ouch. Reinhardt then goes on to blast Schwarzenegger and Jerry Brown, the Governor and Attorney General at the time respectively, for not giving the intervenors appellate cover (as I have consistently carped about as well) and Imperial County for the incredibly lame effort of trying to appear through a common deputy clerk. Reinhardt is spot on in each of these regards.

The last paragraph from Steve Reinhardt’s concurring opinion summarizes where the case stands, and is likely to do so better than I could, so I am going to let him speak:

None of this means that ultimately there is no standing in this case. Because of a United States Supreme Court ruling regarding the availability of standing to proponents of initiatives, Arizonans for Official English v. Arizona, 520 U.S. 43 (1997), we have certified to the Supreme Court of California the question of an initiative proponent’s authority and interests under California law. Although that matter must be decided by the Supreme Court of California, Proponents advance a strong argument on this point. Thus, in the end, there may well be standing to maintain this appeal, and the important constitutional question before us may, after all, be decided by an appellate court – ours, the Supreme Court, or both – and may apply to California as a whole, instead of by being finally decided by a trial court, or by default, in only two counties or in none. As a result, the technical barriers and the inexplicable manner in which the parties have conducted this litigation may in the end not preclude an orderly review by the federal courts of the critical constitutional question that is of interest to all Americans, and particularly to the millions of Californians who voted for Proposition 8 and the tens of thousands of same-sex couples who wish to marry in that state. In the meantime, while we await further word from the Supreme Court of California, I hope that the American public will have a better understanding of where we stand today in this case, if not why.

The one last parting thought I have is that this California Supreme Court certification process is likely to take some time. Six months would be a miracle, a year is far more likely. First off, the California Supreme Court does not have to accept consideration, and there will be a briefing process on whether they even should do that. Assuming they then accept consideration on the merits, and I do think it extremely likely they will, there will then be a full briefing schedule on the merits before any decision.

It would have been expected that the Court under Chief Justice Ron George (very nice article here) would take this up, but he just left and the new Chief Justice, Tani Cantil-Sakauye, literally was just sworn in yesterday. She is known as being cautious and moderately conservative, but fair and open minded. Which, really, is probably a fair description of Ron George, so there may not be that much of a change at the top of the California Supremes.

I still look for the California Supreme Court to certify this issue, and my best guess is they will find standing, the case will be sent back to the 9th Circuit for a merits decision and the 9th will uphold Vaughn Walker. Assuming all that is the case and plays out accordingly, it will sure eviscerate much of the ability of the US Supreme Court to avoid the merits on standing (which I think they otherwise would do). The bad news is this is going to take well over a year, and could easily be two years if there is an en banc process as well in the 9th. An attempt to repeal Proposition 8 will almost certainly be on the ballot for the 2012 election and if it gets repealed, this case is moot. That would not be so bad, as it would reinstate marriage equality in California. However if it fails, and Barack Obama loses in 2012, and there is a very early opening on the Supreme Court, the resulting extreme rightward shift would be very detrimental. There are a lot of ways this could go in the future, stay tuned!

UPDATE: Here is Judge Reinhardt’s collateral final order on the earlier motion to disqualify him that he previously denied long before oral argument.

[The absolutely incredible graphic, perfect for the significance and emotion of the Perry Prop 8 case, and the decision to grant marriage equality to all citizens without bias or discrimination, is by Mirko Ilić. Please visit Mirko and check out his stock of work.]

  1. Teddy Partridge says:

    Thank you, bmaz.

    There was also, apparently, an order issued by Reinhardt alone with regard to his non-recusal from the case based on his wife’s soon-to-end employment with the Southern California ACLU. That sounds like it might be fun reading, too:

    When I joined this court in 1980 (well before my wife and I were married), the ethics rules promulgated by the Judicial Conference stated that judges should ensure that their wives not participate in politics. I wrote the ethics committee and suggested that this advice did not reflect the realities of modern marriage–that even if it were desirable for judges to control their wives, I did not know many judges who could actually do so (I further suggested that the Committee would do better to say “spouses” than “wives,” as by then we had as members of our court Judge Mary Schroeder, Judge Betty Fletcher, and Judge Dorothy Nelson). The committee thanked me for my letter and sometime later changed the rule. That time has passed, and rightly so.


    I do not participate in any actions by this court when the organization of which my wife is the Executive Director makes any appearance or files any brief, amicus or otherwise, before this court. The clerk’s office was notified of this policy many years ago and it has been implemented in numerous cases. In fact, it is impossible to know how many times I have actually recused myself from such cases because the Clerk’s office automatically assigns cases covered by my policy to panels of which I am not a member rather than to a panel I am on, as a result of this directive.

    • BoxTurtle says:

      I predict the h8ers will sue the Clerks office to challenge the assignment as a violation of some obscure regulation.

      Boxturtle (Your honor, the 1851 county sanitation ordenance clearly intends…)

    • BoxTurtle says:

      Everytime FDL posts that graphic, somewhere a redneck’s head explodes.

      Boxturtle (Ditch the robes and put ’em in Fredricks, we can take out the rednecks by the dozen!)

    • demi says:

      Yeah, it’s a great one. But, I have a little problem understanding the guts of the post. I am not an attorney. If I was, I wouldn’t need to read a post here. Bmaz probably is doing his best, but we speak different languages. I’ve followed this case fairly closely and watched the feed from the 9th Circuit’s Appeal. Still scratching my head a bit.

      I hope Teddy has a non-lawyerish versiosn of the outcome. Sorry to be so lame, but, I bring my best here and sometimes, it’s just not enough.

      • Teddy Partridge says:

        My non-lawyer understanding is that these federal appeals court judges are unwilling to wade into the federal standing issue or — heaven forfend! — the merits of the case itself until they have a certificate from the California Supreme Court that these sppellants — the Prop 8 folks who intervened in the federal case to defend Proposition 8 when the legal, constitutional officers of California (Arnold and Brown, Gov and AG respectively) decided that Prop 8 was unconstitutional and they would not defend it.

        The CA Supreme Court has already ruled that the AG and Governor cannot be made to defend a law they don’t think is constitutional. They ruled (iirc) that the Proponents (pro-Prop8 folks) can intervene in a federal case to defend in the stead of the state. Now the question is: can they intervene to APPEAL a ruling they don’t like, against Prop 8? The feds would like to know the California Supremes’ certification of state law.

        It seems weird to me that the feds wouldn’t just decide what they think state law is about these appellants’ right to appeal. But they seem intent on building a solid case for SCOTUS, so I guess there’s a reason to ask the state Supremes to weigh in.

  2. BoxTurtle says:

    I’m not going to use the word “punt”. It is critical that the pro-9 folks get standing if we’re going to get Walkers decision in front of the Supremes. And we really want that.

    I think the 9th fully recognized that. And they agreed with you that the Supremes would deny standing even if the 9th allowed it. So they did the one thing that could get the pro-9 folks standing.

    The 9th wants to be heard on this and they want something that will win 5 votes with the supremes. I think the’re just playing the hand they’re dealt.

    bmaz, what happens with the stay?

    Boxturtle (Guessing it remains in force, but will Walker void it now?)

  3. WilliamOckham says:

    Typo alert:

    Now, as you will also recall, there were two cause numbers consolidated for oral argument and that, really, compromise the same effective case.

    I think that should be case and comprise.

  4. SebastianDangerfield says:

    This really is a bizarre punt. In Arizonans for Official English, the Supremes had no trouble taking a look at state law and ruling that there was no standing on the ground that “we are aware of no Arizona law appointing initiative sponsors as agents of the people of Arizona to defend, in lieu of public officials, the constitutionality of initiatives made law of the State.” If there is no statute granting initiative proponents this kind of authority, I rather doubt the state supreme court can invent such authority. Sheesh.

    As for the rap on the Boies/Olson strategery, I’m not so sure that filing the action against a broader set of defendants is “a simple matter of pleading.” If you want to enjoin every clerk in the state, you’d need a lot of plaintiffs — or a class action. I’ve always assumed that the Boies/Olson borg made the decision to seek relief only for particular plaintiffs in order to shop for (and hold on to) a favorable venue — and given that they drew Walker I can’t say that they didn’t do a good job there. Just because they didn’t file the lawsuit that Reinhardt would have preferred doesn’t mean that there weren’t good reasons for framing the suit the way they did. Plus, let’s face it, if the suit succeeds in procuring a Ninth Circuit decision invalidating the marriage amendment, for all practical purposes you have the same result as a statewide injunction. And it’s simply 20-20 hindsight to postulate that they should have sued more officials because the Governor and the AG would decide to throw the towel in.

    • bmaz says:

      Those are pretty darn good points. The organization that did this, AFER, I think could have found the plaintiffs in each county pretty easy, but I think the other points, as to forum insurance so that it is either in SF or LA are quite valid. And having 58 plaintiff sets is unwieldy to boot. The thing that has always bugged me, and I argued this personally and strongly to Olson, is why didn’t he and Boies lean on Schwarzenegger and Brown to give the necessary nominal cover on appeal same as they did at the trial level? But nooooooo, Olson and Boies fought standing for appeal. I am pretty sure that if they had asked, the state reconsiders; this is sure what I would have done.

      • SebastianDangerfield says:

        I would think that having secured relief for one’s clients at trial, and with the defendants’ forgoing of their right to appeal, the only position to take consistent with their ethical obligation to their clients was to fight the initiative proponents’ standing (particularly given the Arizonans for Official English decision). It would be the height of bad representation to say, “Sure we got you the relief that you want and the state has folded, leaving only the proponents of the initiative on the field, who probably don’t have standing, but we’re going to go ahead and acquiesce to standing because we want to get a splashy appeals court decision and maybe one from the Supremes as well.”

        Reinhardt appears frustrated as he is driven by a desire to decide a landmark case. But the lawyers’ job at this stage is to preserve the relief for their clients, not drive the case forward.

        As for the broader cause, I don’t think that a dismissal based on standing would be such a bad outcome. The suit would have yielded a great District Court decision which brought relief to the plaintiffs, and our side lives to fight another day. I know many are itching to see the Supremes deal with the issue now, which is a perfectly respectable position. And I certainly hope that Kennedy is ready to make his mark on history by doing the right thing on this issue, but I’m risk-averse in terms of sending cases to this Supreme Court. I’m even more concerned about sending a Reinhardt decision on this issue to this Court; we all love him of course, but as I’ve pointed out before, an opinion from him is like a matador’s red cape to most of the Court.

        • bmaz says:

          Oh, I understand. Believe me, I understand. But Olson, Boies and their clients have clearly stated that they got in this to go to the Supreme Court and to win for all, not just themselves. There were four plaintiffs, but they were the faces of an organization and the goal was the Supreme Court on the merits, and that was the statement both early and that I personally heard from them at closing arguments last June. I still think Reinhardt might well let Mike Hawkins write the decision, not to mention there very well could be an en banc. So it is not necessarily Steve Reinhardt’s red cape that gets unfurled on a petition for cert. Not that they wouldn’t know he lurks in the background of course. That said, I am convinced there are four votes and Kennedy here irrespective of who authors the opinion sent up from the 9th.

        • SebastianDangerfield says:

          Yeah, fair enough. I certainly had the impression that Boies and Olson were gunning to take this to the Supremes, but once the state folded its hand, at that point I rather think they had to rein in their ambitions to preserve their gains.

          It will be interesting to see what the California Supreme court does with this. There are definitely occasions I’ve seen where a federal appeals court tries to get clarity from a state supreme court in order to properly decide a federal issue and then gets back useless mush. (I had a case where the question was whether state law offered a means of redressing the plaintiff’s injury, independently of federal constitutional claims under Section 1983, and the state supreme court eventually answered that the state’s court system has jurisdiction to entertain Section 1983 claims; not helpful.)

          I would hope that Reinhardt would give the opinion to Hawkins. And absolutely rehearing en banc (in one of those kooky 9th Circuit demi-en bancs) is definitely a possibility. And I certainly hope you’re right about Kennedy. My view on that question changes from week to week.

        • bmaz says:

          There is not only his opinion in Lawrence, there is now eight more years of clear social movement toward equality under the law (and Kennedy is affected by things like that), but I am informed, by people I know that know him, that they very much think he is in a place where he ready and willing to sign on to this. Obviously there is not direct statement from him, but they are convinced that is the case. I know for a fact Ted Olson thinks so too.

        • SebastianDangerfield says:

          A lawgeek PS: Much of the problem here arises from allowing parties that may or may not have standing to intervene in the first place. There’s currently a circuit split over whether an intervenor must satisfy Article III, and the Court has reserved the question. Of course standing rules have become ridiculously restrictive thanks to the Rehnquist Court, but if you’re going to have standing rules at all, it seems ridiculous to give people full party rights (including the right to inflict discovery requests on an actual party) if those people couldn’t have brought suit in the first place. Plus, in cases like this one, it would be helpful to clear up the standing question on the front end, rather than while a case is on appeal.

          I do find it amusingly ironic that the Rehnquist’s restrictive approach to standing (designed, of course, to work to the detriment of those who try to enforce civil rights or protect the environment) might make insulate Walker’s ruling from reversal.

        • bmaz says:

          Well, yeah, for one thing, whatever the rules are there should at least be consistency between trial court and appellate court. I have had more than my fill of fucking standing issues (1983 work you know), but when someone first said there may be a problem on appeal without the nominal state cover, I laughed and said of course the DIs can appeal. Boy was I wrong there….

  5. MadDog says:

    I’m still searching for an appropriate adjective for this ruling.

    Ingenious or bizarre were the first to come to mind, but both still seem to lack that special “something”.

    So if I understand this correctly, the 3 judges of the Federal Court of Appeals for the Ninth Circuit basically passed the baton to the Supreme Court of California, perhaps temporarily, but perhaps not.

    If and when the Supreme Court of California makes a ruling, then depending upon the results of that ruling the Federal Court of Appeals for the Ninth Circuit then may or may not do some more stuff.

    Perhaps if I combined the words “Ingenious or bizarre” it would help me. Ingeniously bizarre, or perhaps bizarrely ingenious.

    My head hurts! *g*

    • Peterr says:

      My take is that the 9th is looking to inoculate themselves against SCOTUS for overstepping the line between federal and state court responsibilities. From Reinhardt’s concurrence cited above by bmaz, with emphasis added:

      However, in these times, before we are free to decide such important questions the parties must often overcome difficult procedural barriers. Why Congress and the Supreme Court have required them to do so is a subject for another day, although I have made my views on the subject clear elsewhere. [3] Here the question is simply whether there is standing.

      Reinhardt lays the blame for the mess with standing not simply at the feet of Congress but also with SCOTUS. I haven’t read his article referenced in the footnote, but it sure sounds to me like Reinhardt isn’t happy with where SCOTUS has gone on matters of standing. Thus, he concurred with the decision to get the CA Supremes to weigh in, in order to get that court’s thoughts on the record, and in so doing, to take away one possible reason for SCOTUS to void the 9th’s ultimate decision in this case.

      IOW, Reinhardt is a belt-and-suspenders kind of guy.

      • MadDog says:

        I can understand your point, but that brings me to rather absurd conclusion that the Federal Court of Appeals for the Ninth Circuit is saying that they are confused by the US Supreme Court’s “Standing” dicta in Arizonans for Official English v. Arizona (courtesy of Lyle Denniston of SCOTUSblog):

        …In the Arizona case, the Court raised serious doubts — without explicitly deciding the issue — whether proponents of a ballot measure would have Article III standing to defend the measure if state officials did not do so. The two sides in the Prop. 8 case differ on just what the Arizona precedent means.

        The Circuit Court panel on Tuesday cited that precedent on the first page of its opinion. And, in remarks later in the opinion, the panel said that, while the Justices had offered only in dicta their doubts that initiative backers have a right to stand in for state officials, that was “a forceful statement in a decision by a unanimous Court and we believe we would be unwise to disregard it…”

        And that the Federal Court of Appeals for the Ninth Circuit seems to be asking the Supreme Court of California to clear up the 9th’s confusion on the US Supreme Court’s dicta on “Standing”.

        My head still hurts. *g*

        • bmaz says:

          It is not just AOE case, there are two other cases Diamond and Karcher, that combine with AOE to create the issue. Remember, even Vaughn Walker thought there was an issue in this regard

        • MadDog says:

          I agree there is an issue, but it is still rather comical to see a Federal Appeals Court ask a State Supreme Court to clear up the Federal Appeals Court’s confusion on a US Supreme Court case.

          Shorter 9th Circuit Appeals Court to California Supreme Court: “We don’t understand SCOTUS. Do you?”

        • bmaz says:

          No, it is not that at all. They understand the Supremes perfectly, and want a vehicle to take the issue of standing out of the hands of the Supremes. Having the California Supreme Court delineate that there is standing as a matter of law would go one hell of a long way in doing just that. It is a tactical move, and other than taking a lot of time, it is a very good and sound move. I think you are seriously mischaracterizing what is going on here.

        • Peterr says:

          MadDog is right about the comical nature of it, however.

          It’s absurd that SCOTUS should need to be dealt with in this manner, but as Don Rumsfeld might have said, “You have to argue before the SCOTUS you’ve got, not the SCOTUS you’d like.”

        • MadDog says:

          What, we can’t see the humor in this? *g*

          Seriously, I do understand your point about having California backstop the Standing issue.

          It’s just that I also find it seriously humorous too! *g* As in:

          9th Circuit Appeals Court: Hey man, sure could some help here.

          California Supreme Court: Dude, uhmmm…that’s Federal!

          9th Circuit Appeals Court: Yeah, but it’s your State!

          California Supreme Court: Dude, we don’t do Federal! You do!

          9th Circuit Appeals Court: Aw, come-on man. Nobody will know!

          California Supreme Court: Nope. It’s Federal!

          9th Circuit Appeals Court: It’s your State!

          California Supreme Court: Federal!

          9th Circuit Appeals Court: State!

          California Supreme Court: FEDERAL!!!

          9th Circuit Appeals Court: STATE!!!

        • bmaz says:

          How would you like to be the new Calif Chief Justice and get handed this hot potato within 24 hours of having been sworn in to your new job? Hi there Judge! We gots yer first case for ya right here!

        • Peterr says:

          You’re getting close.

          I think this panel of judges on the Federal Court of Appeals for the Ninth Circuit is asking the Supreme Court of California to help them clear up SCOTUS’ anticipated confusion on standing.

          Reinhardt seems pretty clear, if you ask me, but constrained from expressing it by the clouds from the big bench in DC.

        • MadDog says:

          This is why I both find it humorous as well as confusing.

          Perhaps you or bmaz can explain to me why SCOTUS would take a Standing ruling from the California Supreme Court as determinative when SCOTUS itself is the one that has created the confusion.

          In other words, I’m asking why SCOTUS would defer to a State Supreme Court regarding Standing in a Federal case?

        • Peterr says:

          It’s not that SCOTUS would defer, exactly. . .

          9th Circuit Appeals Court: Hey man, sure could some help here.

          California Supreme Court: Dude, uhmmm…that’s Federal!

          9th Circuit Appeals Court: And SCOTUS has never stepped on your turf? Never taken a dump on your opinions? Never told you to go take a jump in a lake?

          California Supreme Court: *sigh* Don’t remind us. But what are you after here?

          9th Circuit Appeals Court: It’s the Inigo Montoya approach. You back us up on the standing thing, and our case will twist SCOTUS into pretzels as they try to escape their own logic on standing.

          California Supreme Court: Wait. Wait. We take this question, and SCOTUS suffers?

          9th Circuit Appeals Court: Humiliations galore.

          California Supreme Court: That is a noble cause . . .

          Fear of humiliation can be a strong motivator. Reinhardt is asking the CA Supremes to put that fear into SCOTUS, so they don’t try to kill the case on standing and let it proceed on the merits.

        • MadDog says:

          As bmaz said in the post itself:

          …I still look for the California Supreme Court to certify this issue, and my best guess is they will find standing…

          As I’m certainly NAL, that won’t stop me from babbling on, but do take my commentary with a grain of salt – or more likely the entire salt shaker. *g*

          Since this case arose, I’ve had serious doubts on the Standing issue.

          It would seem to this IANAL that should the California Supreme Court find standing as bmaz has surmised, they have the difficult task of constructing a really superior argument that the remaining Joe Schmoe movants somehow, some way are entitled to standing.

          As I see it, that is threading a very fine needle. An argument that somehow, some way individual citizens, who have not shown they are harmed, are still viable parties in challenging this.

          I can’t see that SCOTUS would bless the idea of a wide-open Standing argument that individual citizens, who have not shown they are harmed, can challenge laws they dislike willy-nilly.

          I will be very interested to see just what shape this Standing ruling that bmaz expects from the California Supreme Court to look like.

          It’s gonna have to be laser-focused, narrow enough to avoid opening the floodgates, but wide enough and respectable enough that not only the “liberal” 9th buys it, but the far more conservatve SCOTUS buys it as well.

        • MadDog says:

          And another question arises:

          Will the remaining movants’ legal team decide at this stage to “flop” on the Standing issue?

          After all, they are the ones who must make the case for standing. Do they decide that losing the Standing issue is the lesser evil in the 9th rather than potentially losing later with SCOTUS?

          Correct me if I’m wrong here Legal Eagles, but a decision by either the California Supreme Court or the 9th Circuit that the movants don’t have standing would mean that Judge Walker’s decision is valid for California, but does not set precedent for the rest of the country as decision affirmed by SCOTUS would.

        • bmaz says:

          Well, I could be reading it wrong; but it isn’t just me. I talked to a couple of long time California appellate specialists this afternoon and they read it the same way. We shall see, but I think there is a pretty good chance that is how it goes.

        • bmaz says:

          Oh no, the Protect Marriage group that the Calif Sup Ct will be deciding on was not only the Defendant Intervenor below, they were the formal sponsors of the initiative that placed Proposition 8 on the ballot in California. What the Calif Sup Ct would be ruling is that since propositions are citizen initiatives, and not creatures of state legislatures, that the sponsor proponent citizens of the initiative have standing to protect their effort. If the state supreme court decides that as a matter of law, and I think they will, that is a pretty solid basis.

  6. CTuttle says:

    *heh* It’s a battle of the bullpens in extras…! ;-)

    I think the football analogies are best saved for our Congressional/Executive actions/inactions…! Where safeties, fumbles, and, pick six’s seem to run rampant…! ;-)