Monday, August 16, 2010

Standing room only?

From a lawyerly POV, the most interesting thing about an appeal of the decision striking down Prop 8 is, can there even *be* an appeal?

Federal courts hear cases only where a party has standing to appear before the court, and while the Prop 8 proponents were allowed to intervene in the suit, that may not get them standing to appeal. Vikram Amar:
The Supreme Court has said that both plaintiffs and defendants need to have a particularized and direct stake in the outcome of a dispute for it to qualify as a "case or controversy" that is properly resolved in a federal court under Article III of the Constitution. In 1997, in Arizonans for Official English v. Arizona, the Court strongly suggested that the sponsors of an Arizona initiative that imposed English as the official state language lacked standing under Article III to defend the measure against constitutional attack.

As the unanimous Court observed, the sponsors "are not elected representatives [of the state], and 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. Nor has this Court ever identified initiative proponents as Article-III-qualified defenders of the measures they advocated. . . . We thus have grave doubts" about whether the Arizona initiative sponsors have standing.
Amar concludes that if the proponents lacked standing to appeal, they also lacked standing to intervene, tho I'm not sure whether that's right; I think there's a different analysis for piggybacking on a proceeding vs. bearing the burden oneself.

Jonathan Adler rounds up some commentaries here and there. One of his commenters cites some pertinent authority:
By not appealing the judgment below, the State indicated its acceptance of that decision, and its lack of interest in defending its own statute. The State’s general interest may be adverse to the interests of appellees, but its failure to invoke our jurisdiction leaves the Court without a “case” or “controversy” between appellees and the State of Illinois. Cf. Princeton University v. Schmid, 455 U. S. 100 (1982).

Had the State sought review, this Court’s Rule 10.4 makes clear that Diamond, as an intervening defendant below, also would be entitled to seek review, enabling him to file a brief on the merits and to seek leave to argue orally. But this ability to ride “piggyback” on the State’s undoubted standing exists only if the State is, in fact, an appellant before the Court; in the absence of the State in that capacity, there is no case for Diamond to join.
Politically, I would think that the 9th Circuit would seize at any opportunity to avoid sending the merits of the case to SCOTUS (depending on the panel), and I would enjoy seeing the standing-conscious justices, such as Scalia, wrestle with their consciences on that issue.

The real injury however is to California's voters; I am no fan of their referendum process, but it's their law, and the whole point is for the people to bypass representative government. If their elected officials can then collude in a proposition's being stricken, by refusing to defend in court, that seems to defeat the whole purpose. Since the AG (the perennial Jerry Brown) is running for governor, it will be interesting how that works in the campaign.

... Another post on the standing issue:
Here’s the problem: The Supreme Court has yet to decide "whether a party seeking to intervene before a district court must satisfy not only the requirements of" Rule 24 as well as the Article III "case or controversy" requirement. See Diamond v Charles, 476 US 54, 68-69 (1986) (emphasis supplied). What is clear is that regardless of their ability to intervene under Rule 24 before the District Court, the Proponents must establish Article III standing if they are to appeal without the party on whose side intervention was permitted, in this case the State defendants. In other words, even if they could intervene under Rule 24 before the District Court, to maintain the appeal or continue the case they must fulfill the Article III standing requirements.
So it's at least an open question whether Rule 24 intervention gives Article III standing.


  1. If the proponents have no standing, then why did the judge allow them to intervene?

    Doesn't intervention require standing?

    I would think (without checking the pleadings) it would have had to be 24(b) permissive intervention (there'd be no statutory right to intervene and I can't imagine the proponents having an interest in property or a transaction subject to the action... etc for intervention of right under 24(a)). To intervene they have to a claim or defense that shares common questions of law or fact with the main action. If they've got that, standing. If not, no standing, but how did he allow intervention?

  2. I really don't think it's the same standard, but don't have time to look at it right now. You know, it's well settled law that only one plaintiff needs to have standing -- because once article III is properly invoked, then the constitutional question is resolved. Beyond that, it's no longer a constitutional threshold, just a matter of compliance with the rules, and there's no reason why rules can't be more permissive.

  3. The quote from Diamond seems pretty clear that piggybacking is different from holding up one whole side of a controversy. Of course, we may get some new standing law out of this one.