Tuesday, January 4, 2011

Breaking: news on Prop8 appeal

From the Prop8 Trial Tracker
The 9th Circuit Court of Appeals today issued a “ruling” of sorts on the appeal of Judge Vaughn Walker’s ruling that found Prop 8 to be unconstitutional*. The “ruling” was actually a certification of a question to the California Supreme Court about the all-important matter of whether Prop 8 proponents have standing to appeal Judge Walker’s decision. Here’s the question they want answered:

Whether under Article II, Section 8 of the California Constitution, or otherwise under California law, 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.

So what does that all mean? Let me boil it down. Basically, California’s constitution and various CA Supreme Court decisions in the last few decades have indicated that the initiative power is a right inherent to the people of the state, and does not stem from the Legislature. It sets up the people as a kind of fourth branch of government, with its own sovereign power. And therefore, if the Governor and the Attorney General refuse to defend a proposition in court, that could essentially nullify the fundamental rights of the voters. Since ballot initiatives stem from the people, presumably the people – in the form of the initiative proponents – DO have standing to defend Prop 8 in court and to appeal it to the 9th Circuit in order to preserve the people’s initiative power.

But because such a ruling would have a significant impact on future legal battles over California ballot initiatives, the 9th Circuit is deferring to the CA Supremes.....

The CA Supremes can take as long as they want in answering the 9th Circuit. It could be days, weeks, or months. Whatever the outcome, it shows again the need to reform our initiative process. One reason our state government fails is that we’ve essentially set up a fourth branch of government – the people – that can negate anything done by the other three branches, but without any real checks or balances on the powers of that fourth branch.

Update: More commentary from lawyers and legal observers:


dr.primrose said...

It's probably going to take a long time. The California Supreme Court takes forever to get things decided. (This is mostly due to the fact that, unlike most cases, all death sentences get directly appealed to the California Supreme Court, skipping over the intermediate Court of Appeal. A huge amount of the California Supreme Court's time is spent dealing with these cases and other things necessarily get shunted aside.)

I think the last (or close to it) certification question that they handled involved the decade-long fight between the Krishna Society and the Los Angeles airport over soliciting at the airport. The Ninth Circuit certified the question in June 2008 but the California Supreme Court's decision did not come out until March 2010, almost two years later.

Maybe it won't take that long but I wouldn't count on it. That was a pretty important case, too.

I don't think, however, that's bad (which may be a minority opinion here). Getting five votes in the U.S. Supreme Court is really doubtful, I think, and bringing a federal lawsuit under those circumstances was too risky -- we could end up with something really awful.

This issue is almost certainly going to be back on the California ballot in 2012. If Prop. 8 is reversed, this lawsuit becomes moot and the issue doesn't go to the U.S. Supreme Court.

JCF said...

I think this is mainly a good decision . . . I just hope it restores marriage equality to CA, ASAP!

IT said...

Dr Primrose, I agree.

Jim Pratt said...

I agree with you on the delay being good. Any delay increases the chance of a favorable shift in the membership of the Supreme Court through retirement.

I would disagree with the commentary in the article, about Cal state government being a failure because of the power of a "fourth branch", the people, that can negate the others. First, the writer forgets the Declaration of Independence (government derives its powers from the consent of the governed -- the people are supreme). Second, that the court has invalidated Prop8 on constitutional grounds shows that there is a check on the power of the majority of the people to oppress a minority.

IT said...

But Jim, the whole appeal process suggests that this is still in question, and if Scalia thinks that all power comes from the people (and decides that way), then there IS no check on the mob.

indeed, that's a big argument here in CA from the proponents--they argue that "the people spoke" and the judiciary has no right to review.