Earlier this week, there was a potentially key development in Perry v. Schwarzenegger -- the federal case challenging Proposition 8. There were several related opinions issued on Tuesday dealing with the issue of stanhding.
By way of background, standing is a legal concept that finds its roots in the provision of Article III that federal courts hear "cases and controversies." Standing is about who has the right to bring a case. The ultimate concept underlying standing is that the parties in a case should have a "real" interest in the case. To take a less significant issue, if two people are involved in a car wreck, most people would agree that only those two people (and perhaps their spouses or insurance companies) should have the ability to decide whether they want to go to court to resolve who has to pay for what damages or whether or not they should settle. When you get up to the big issues involving government action, it is easy to make an argument as to why any person should have standing, but, with some limited exceptions, courts have kept the field very narrow.
While the exact line drawn as to who has standing for cases of public interest is debatable, there are two strong reasons for a narrower definition of standing which ares somewhat contradictory. The first reason is to avoid numerous cases being filed. Take for example the field of election law. Generally, the right to challenge an election is limited to the candidates. If everyone had "standing" to challenge an election, then you could have 100 or more law suits proceeding forward on the merits. (Think of all of the cases challenging President Obama's eligibilty, most of which got dismissed on standing issues.) The second reason has to do with wanting a fair presentation of the issues. If anybody had standing, then it would be simple to arrange a case in which one side did not present the strongest arguments on their side of the issue. That case would then serve as a precedent when somebody who had a real interest in the legislation tried to present a case.
In the Proposition 8 case, the original law suit was filed against the State of California, its officials, and two of the officials with authority to issue marriage licenses from two large counties. However, when the initial defendants officials decided that they were not going to take a position supporting Proposition 8, some of the people who put Propsition 8 on the ballot and a county that supported proposition 8 decided to attempt to intervene (i.e. join the case) as additional defendants so that somebody would actually be deciding the case. The district court allowed the official proponents of Propsition 8 to intervene, but denied the county the right to intervene. When the district court found Proposition 8 unconstitutional, both groups sought to appeal. Tuesday's opinions addressed both groups.
As to the County, the request to intervene was found by the County Board of Supervisors and a Deputy County Clerk. In its opinion, the panel found that neither had the right to intervene. Apparently, like in most states, the County Board of Supervisors merely has budgetary authority over the Clerk's Office and has no power to actually give orders to the County Clerk about the performance of his or her duties. (Apparently, in rural California, the County Clerk is the one who issues marriage licenses.) As such, the panel found that the Board did not have the authority to assert the interest of the County Clerk's office over what marriage licenses should be issued. As to the Deputy Clerk, the panel found that a Deputy was merely the agent of the actual elected County Clerk. As such, without a showing that the Deputy Clerk was authorized to act on behalf of the County Clerk in filing the motion to intervene, the Deputy Clerk did not have independent authority to intervene.
As to the proponents, the panel issued an order that certified a question to the California Supreme Court. While federal courts do have authority to interpret state statues, especially on major issues, federal courts are reluctant to resolve issues which have not previously been addressed by state courts. Federal courts are authorized to send a "certified question" to a state's highest court under such circumstances. While the California Supreme Court has previously heard cases in which propnents of a ballot issue have intervened (including its review of Proposition 8), apparently, none of those cases discussed the right of the proponents to intervene. As such, the Ninth Circuit asked the California Supreme Court to answer the question of whether, under California law, the official proponents of an initiative have either a particularized interest in the validity of the proposition or the authority to assert the State's interest which would permit them to intervene in the case.
As the order recognizes, if the proponents do not have standing, then the appeal must be dismissed. What the means for the actual judgment of the trial court is somewhat in dispute as the state officials were still parties and thus could, arguably, be bound by the decision. As those state officials are also the individuals who give legal direction to the county clerks, it is unclear whether any of those county clerks could file a law suit seeking to defend Proposition 8.
A concurring opinion was issued by Judge Reinhardt. In that opinion, Judge Reinhard attacked both sides for letting such an important issue come down to such procedural grounds. Basically, in Judge Reinhardt's view, given the number of counties in California that voted in favor of Proposition 8, it was hard to believe that the proponents could only find a Deputy Clerk (not an actual clerk) who was willing to defend Proposition 8. Likewise, he attacked the opponents of Proposition 8 for only naming 2 of the 58 local officials as defendants (apparently with the intent of using state courts to enforce the federal court ruling against the other 56). In Judge Reinhardt's view, while standing is important, the trend of using standing (and other procedural grounds) to avoid having to decide important cases is a bad thing.
Judge Reinhardt also issued a memorandum explaining why his wife's service as executive direction of a regional office of the ACLU did not require him to recuse in a case in which that office (while it had publically taken a position on the issue) was not a party and had not sought to appear as an amicus. A very good opinion on being a judge with a spouse who was also a working lawyer or other type of public figure.
For those interested in the minutiae of legal business, the orders were accompanied by a list of counsel to receive the order. After the two-page caption, there were seven pages listing the lawyers for the parties, and twenty-seven pages listing all of the parties that had filed briefs as amicus curiae and the counsels for those individuals and organizations.
The bottom line is that the ball is back with the Supreme Court of California to decide if they will answer the certified question, and, if they do decide to answer the question, for further briefing and argument over the question with the California Supreme Court.