Brody's Notes... U. S. 9th Circuit Court Asks California Supreme Court A Matter Of Standing In Prop 8 Case

By Brody Levesque (Washington DC) JAN 4 | Earlier this afternoon, the U. S. 9th Circuit Court of Appeals sent a question regarding the legal standing of the supporters of Prop 8, which according to legal observers in California, means that the fate of the case may rest on the answer the State's high court gives the federal 9th Circuit Court.

According to Max Follmer, legal analyst and reporter at The Huffington Post:

The federal appeals panel decided, pdf- (Link) they cannot proceed with their consideration of the case until the California Supreme Court resolves a matter of state law.

"Having considered the parties’ briefs and arguments, we are now convinced the Proponents’ claim to standing depends on Proponents’ particularized interests created by state law or their authority under state law to defend the constitutionality of the initiative, which rights it appears to us have not yet been clearly defined by the Court. We therefore request clarification in order to determine whether we have jurisdiction to decide this case."

In a nutshell:

In August, Judge Vaughn Walker of the U.S. District Court in San Francisco ruled that California's gay marriage ban—Prop 8—violated the U.S. Constitution. Neither Governor Arnold Schwarzenegger, who was the named defendant in the case, nor Attorney General Jerry Brown, appealed the decision. But private groups that supported Prop 8 during the election were unhappy with the judge's ruling. They pressed the appellate court in San Francisco to take up the case.

Anyone who brings an appeal needs to demonstrate what's called "standing," or the legal right to initiate a lawsuit based on that party's interest in the case. Since the proponents of Prop 8 weren't the named defendants in the case (the private parties are not the government officials charged with enforcing the gay marriage ban), the federal appeals panel said it was unclear under state law whether they had standing to bring the challenge.

The federal appeals judges want the California Supreme Court to answer that question before the case proceeds.

Standing is a foundational, constitutional requirement, part of the big 3 in federal civil procedure; standing, jurisdiction, and venue. Follmer notes;

"You can't get to the facts until you satisfy them first. Much higher-court litigation concerns appeals of these issues, and many cases are won on them." 

Under California law, the proponent of a ballot initiative has the right to defend the initiative in light of the California government's decision not to defend it in court when challenged. This could end the case on a technicality and presumably prevent the US Supreme Court from reviewing it since it would be a decision interpreting state law rather than the federal constitution. 

"If the California supreme court gives standing to the defendants, then the Ninth Circuit would reach the merits. Federal courts must apply certain state procedural rules from the state in which they sit, so the California Supreme Court must answer the question in the first instance."

MSNBC On Prop 8 Ruling: