An odd ruling out of the Ninth Circuit today, which is hearing the appeal of Judge Walker’s opinion overturning Proposition 8.Â The Ninth Circuit panel has asked the California Supreme Court for advice on the question of the intervenor’s standing to be heard in the case. Full order here.
You might recall that after Judge Walker’s ruling, neither then-Gov. Schwarzenegger nor then-AG Jerry Brown elected to appeal it.Â Now, various groups, including the clerk of (quite conservative) Imperial County, California, has asked to intervene and appeal the case for themselves, and the 9th Circuit theoretically is asking the California Supremes for guidance on the standing question.
This is strange to me, because standing is a question of federal constitutional law, deriving from the US Constitution’s provision that federal courts can only hear “cases and controversies.”Â So why would a state Supreme Court have anything to say about it?Â The Ninth Circuit has asked the California Supremes whether California law gives these sorts of intervenors standing to sue regarding initiatives, but I’m wondering why that’s relevant: if a federal court doesn’t have jurisdiction under Article III, it doesn’t matter what state law says.
Second, in order for a question to be certified to a state court, that court must able to accept certified questions.Â My understanding is that the California Supreme Court does not accept these questions.Â So what’s the point?
Obviously, it couldn’t be this easy, or the Ninth Circuit wouldn’t have done it this way.Â But it seems bizarre.Â I’ll keep checking.
UPDATE:Â Here’s why the Ninth Circuit said it’s okay:
â€œThe standing Article III requires must be met by persons seeking appellate review, just as it must be met by persons appearing in courts of first instance.â€ Having been granted intervention in the district court is not enough to establish standing to appeal; â€œan intervenorâ€™s right to continue a suit in the absence of the party on whose side intervention was permitted is contingent upon a showing by the intervenor that he fulfills the requirements of Art. III.â€ Where a plaintiff in federal district court must demonstrate â€œan â€˜injury in factâ€™ â€” an invasion of a legally protected interestâ€ by the defendant â€” so too must an appellant prove his standing by establishing â€œa concrete injury related to the judgmentâ€ he seeks to appeal. States, however, â€œha[ve] the power to create new interests, the invasion of which may confer standing.â€ â€œIn such a case, the requirements of Article III may beÂ met.â€Â Proponents contend that they possess such an â€œinterest that is created and secured by California lawâ€ â€” an interest in the validity of the voter-approved initiative they sponsored, which interest is â€œinva[ded]â€ by the judgment declaring Proposition 8 unconstitutional. argue that their interest as the official proponents of the initiative is different in kind than that of the citizens of California generally. If Proponents do possess such a particularized interest, they would have standing to appeal the judgment below.
Proponents also claim an alternative and independent additional basis for standing: The State of California itself has an undisputed interest in the validity of its laws, and Proponents argue that â€œthey may directly assert the Stateâ€™s interest in defending the constitutionality of its laws.â€ Proponents allege they are able to represent the Stateâ€™s interest because they â€œhave â€˜authority under state lawâ€™ to defend the constitutionality of an initiative they have successfully sponsored … acting â€˜as agents of the peopleâ€™ of California â€˜in lieu of public officialsâ€™ who refuse to do so.â€ If California does grant the official proponents of an initiative the authority to represent the Stateâ€™s interest in defending a voter-approved initiative when public officials have declined to do so or to appeal a judgment invalidating the initiative, then Proponents would also have standing to appeal on behalf of theÂ State.
There is something to this: state law creates property rights, for example, so a federal court would need to know whether someone has a property interest before a plaintiff has suffered “injury-in-fact” (a key part of the test).Â But you can only go so far with that:Â when the state of Massachusetts in Massachusetts v. EPA said that it had a protected property interest in the coastline and was thus a proper plaintiff to bring a climate change case, the Court didn’t just say, “well, the state said it, so it must be true.”Â And the Four Horsemen rejected it despite that.