As a team effort with my husband, Brian Leubitz, we will attempt to provide some initial legal analysis of the Opening Brief filed by the Proponents of Prop. 8.  I am writing about the issues of standing and jurisdiction.  Brian Leubitz will provide an analysis of the Proponents’ arguments about the merits of Judge Walker’s decision.

Standing

The Ninth Circuit specifically ordered the Proponents to show why they have standing to maintain this appeal.  (See a detailed discussion of standing here.  But in short, it means “What gives you the right to maintain this appeal?”)  Specifically, the Court ordered the Proponents to address the case of Arizonans for Official English, the Supreme Court case that held that ballot initiative proponents do not have standing to defend the constitutionality of the law passed by their initiative.

The Proponents begin their argument by ignoring Arizonans for Official English and instead focusing on Karcher v. May, a 1987 US Supreme Court case (484 U.S. 72).  In Karcher, a New Jersey statute expressly gave the Speaker of the Assembly the right to defend the constitutionality of a law when the state’s Attorney General refused.  California has no such law, and California certainly has no law authorizing the proponents of a proposition to defend the constitutionality of a law.  Nevertheless, Proponents argue that they have been appointed by the State of California to defend Prop 8 because the California Supreme Court, in Strauss v. Horton, allowed them to intervene in the state-court challenge to Prop 8.

This argument is laugh-out-loud ridiculous.  In Strauss v. Horton, standing for the appeal was already established because Karen Strauss and the other plaintiffs were directly injured by being denied the right to marry the person of their choosing.  The Proponents did not have to show that they had the authority to maintain an appeal for one very simple reason: they were not maintaining an appeal.  So it’s wrong for the Proponents to now argue that the Court allowing them to intervene in a case in which standing was already established is the same as the New Jersey statute in Karcher that expressly allowed the Assembly Speaker to defend the constitutionality of a statute on appeal.

The fact remains that no law exists that gives the Proponents any legal right to defend the constitutionality of Prop 8.  That’s why the Ninth Circuit specifically ordered the Proponents to address the Arizonans for Official English case.

Arizonans for Official English involved a constitutional challenge to an Arizona ballot initiative that declared English the official language of Arizona.  The District Court held that the statute was unconstitutional, and the State of Arizona did not appeal.  AOE, the official proponents of the ballot initiative, attempted to step in and defend the constitutionality of the law by pursuing an appeal of the District Court’s decision.  Sound familiar?  The Court’s decision that AOE did not have standing to appeal the District Court’s decision is short and simple:

Petitioners’ primary argument–that, as initiative proponents, they have a quasi legislative interest in defending the measure they successfully sponsored–is dubious because they are not elected state legislators, authorized by state law to represent the State’s interests. Furthermore, this Court has never identified initiative proponents as Article III qualified defenders. Their assertion of representational or associational standing is also problematic, absent the concrete injury that would confer standing upon AOE members in their own right, and absent anything in Article XXVIII’s state court citizen suit provision that could support standing for Arizona residents in general, or AOE in particular, to defend the Article’s constitutionality in federal court. . . .  (Citations omitted.)

In the end, we can think of the standing issue like this: the Proponents are a square peg that the Ninth Circuit has to fit somewhere.  The Ninth Circuit may, as the Proponents argue, try to shove that square peg into the round hole that is Karcher by finding that the Proponents are similar to the Speaker of the New Jersey Assembly who was expressly authorized by a New Jersey statute to defend the constitutionality of a law.  Alternatively, they could easily slide the square peg into the square hole that is Arizonans for Official English by reaffirming the long-held doctrine that proponents do not have standing to defend the constitutionality of a ballot initiative that they sponsor.

The Court already has expressed its concern that the Arizonans for Official English case prohibits them from having standing.  The Proponents’ arguments about Karcher likely will do nothing to convince the Court otherwise.

Follow me to the flip for a discussion of Jurisdiction . . .

Jurisdiction

Be sure to have a big bucket of popcorn for the oral argument on this issue.  Their argument could be easily ripped to shreds by anyone who’s taken a high school Government class, so Ted Olson and the three judge panel will positively cream the Proponents here.

They argue that Judge Walker exceeded his jurisdiction by issuing an injunction that affects people other than the Plaintiffs who filed the lawsuit.  They claim that the only way an injunction could apply to others is if a class was certified.  In other words, they argue that in deciding Brown v. Education (in which a class was never certified), the Court did not have the authority to broadly strike down all laws that segregated schools based on race; instead, it only had the jurisdiction to narrowly order that the 20 children who brought that case be admitted to the Topeka school.  They argue that in Loving v. Virginia (in which a class was never certified), the could did not have the authority to broadly strike down laws prohibiting interracial marriage; instead, it only had jurisdiction to allow Richard Loving to marry Mildred Jeter.  All other interracial couples were on their own and had to file their own lawsuits.

In making this argument, Proponents attack the principle of judicial review, something that every high school student learns is the bedrock principle of the judicial system and one of the key “checks and balances” that makes our constitutional government work.  Since the Supreme Court decided Marbury v. Madison in 1801, courts have been empowered to declare that a statute violates the Constitution.  And they almost always do this without ever certifying a class.

So if the Proponents are taking aim at the bedrock principle of our judicial system, they must have marshaled a vast body of cases that support this radical argument, right?  Well, they rely entirely on one case.  And, uh, the Ninth Circuit has already said that that one case doesn’t apply to this situation.  The Proponents rely on  Zepeda v. INS, a case in which the Ninth Circuit held that when issuing a preliminary injunction that applies to parties not before the Court, it must certify a class first.  But Judge Walker did not issue a preliminary injunction; he issued a permanent injunction.  (Without digging too far into this, preliminary injunctions are subject to a heightened standard because at the time it issues, the case has not yet been decided on its merits.)  The Ninth Circuit has held that, without question, Zepeda doesn’t apply in the case of a permanent injunction like the one Judge Walker issued.  (Bresgal v. Brock, 843 F.2d 1163)  Instead, Judge Walker has full authority to strike down a law in its entirety and without ever certifying a class, just like in Brown v. Board of Education and Loving v. Virginia, and every other case where a court has exercised its power of judicial review.

Nothing destroys credibility quicker than making a frivolous and poorly researched argument like this.