Prop 8: Standing, Intervention, and the “Case or Controversy” Clau-ZZZZZZZ

This post responds to some questions sent in by a couple of people following up on my previous Prop 8 post. So here are 1400+ more words about standing, intervention, and the “case or controversy” clau–hey, where’d everyone go?

It’s pretty well-settled that citizens as a general matter don’t have standing to sue over a law just because they disagree with it. That rule generally makes a fair amount of sense to me: you don’t want disgruntled voters to run into court every time they disagree with they way their elected representatives are doing their jobs. That’s what elections are for, after all.[FN1]

Similarly, just because you agree with a law doesn’t mean you have standing to appeal from a judgment striking that law down if that judgment doesn’t require you to do (or not do) anything or otherwise cause you any direct injury. That’s the holding coming out of Diamond v. Charles (1986), where the Supreme Court said that a pro-life doctor, who had intervened at trial, had no standing to appeal a trial court decision striking down restrictions on abortion. Procedurally, that case is somewhat similar to the Prop 8 situation, in that you had an intervenor-defendant who wanted to go it alone on an appeal without any of the original government defendants. The Supreme Court said that the lower court’s judgment striking down the law didn’t require the doctor to do or not do anything, so he had no stake in getting the judgment thrown out on appeal.

So this tees up the following question: if you don’t have standing to appeal, how can you be allowed to intervene in the first place? The Supreme Court in Diamond sidestepped the question, saying that the courts of appeals disagree on the question of whether standing is a requirement to intervene, but we’re not going to resolve that split right now.

Some courts (including, I think, the Ninth Circuit) have taken the view that intervenors without standing of their own can tag along as long as the case has at least one plaintiff and one defendant who do have standing. The idea here seems to be that the purpose of the standing requirement is to help ensure that there is a “case or controversy” before the court so that the court isn’t wasting its time, so as long as that “case or controversy” is present, it’s a proper case for the court to hear, and you may as well allow intervenors to participate, since intervenor participation can have significant benefits, such as helping the court make correct decisions. This is basically Howard Wasserman’s view of intervenors as “amici on steroids.”

Leaving to the side for the moment the issue of whether that view of intervention makes sense,[FN2] the question remains whether in the Prop 8 case the government defendants really were “adverse” to the plaintiffs at trial, as required to create a “case or controversy.” I think the answer is yes. If the government defendants actually had been marrying gay couples in defiance of Prop 8, that could have been a different story: in that case the plaintiffs would have been getting what they want from the defendants anyway (namely, marriage), so there would have been no need for the courts to get involved: no “case or controversy”, case dismissed. But as I understand the government’s position, they said, we hate Prop 8, but we still won’t (and can’t) marry you as long as it remains on the books, so you need to persuade a court that it’s unconstitutional. That has to be enough to create a “case or controversy” enabling the trial court to hear the plaintiff’s case; otherwise, the government could strategically deny plaintiffs their day in court by refusing to contest the litigation (while still refusing to do what the plaintiffs want).

So I think that explains how Judge Walker properly could have allowed the sponsors to participate at trial: it’s not that they had standing at trial but not on appeal; they never had standing (Judge Walker would say), but the government defendants’ presence in the case at trial, though minimal, was sufficient to satisfy the “case or controversy” requirement, making it unnecessary to inquire as to the sponsors’ standing. The government defendants’ decision not to appeal the case (which I don’t have a problem with) leaves the sponsors as the only remaining party adverse to the plaintiffs, which necessitates, for the first time on appeal, an examination as to whether they have standing as required to create a case or controversy.

So that brings us back to the bigger question: do ballot initiative sponsors have standing to defend their law on appeal? Arizonans for Official English v. Arizona (1997), which the Ninth Circuit directed the sponsors to address in its papers, suggests that they don’t.

That case was ultimately decided on other grounds, but the Court (unanimously) expressed “grave doubts” that the sponsors of an English-only initiative had standing to defend the law on appeal. Noting that the sponsors were not elected officials and that there was no provision in Arizona law specifically authorizing sponsors to act as agents of the state to defend their law, the Court in that case rejected the argument that “as initiative sponsors, they have a quasilegislative interest in defending the constitutionality of the measure they successfully sponsored.” So Arizonan would seem to suggest pretty powerfully that the Prop 8 sponsors do lack standing to pursue the appeal.

But maybe the Ninth Circuit or Supreme Court won’t care about backing away from Arizonan. I wouldn’t be surprised at all to see Scalia & Co. push to unwind some of their earlier standing doctrine. The prevailing conservative worldview is that every day, the federal government doing stuff far in excess of its constitutional powers (like health care, bailouts, what have you), people are running around taking away guns, and white people and dudes are being discriminated against in various and sundry ways. That’s a lot of (supposedly) aggrieved conservatives who want their day in court, and it’s quite likely that the conservative justices are champing (chomping?) at the bit to strike down all sorts of laws.

And in any event, the rule from Arizonans does seem a little insane. Michael Dorf posted on this recently and his argument seems pretty persuasive:

The ballot initiative process is available precisely because the People cannot always trust their elected representatives to carry out their will. Thus, when elected officials decline to defend a ballot initiative in court, they are directly frustrating the whole point of the ballot initiative process. Perhaps that is their prerogative, but if so, it makes sense for someone else to come in to defend the ballot initiative’s constitutionality.

So you could see the courts going out of their way to create a kind of limited standing for initiative sponsors.  For example, it could be contingent upon, a refusal by all qualified government officials to defend the law, and a showing that the sponsors will be able to properly represent the state and that nobody will be prejudiced by their participation. (You could think of this as a rough analogue, conceptually anyway, to shareholder derivative actions.)

So there you have it.  That wasn’t so bad now, was it?  (Be glad that I managed to restrain myself from talking about nonmutual collateral estoppel. Seriously, I’d originally included a bit on that but decided to leave it out.)

[FN1] One of the cases reaffirming this rule is Lujan v. Defenders of Wildlife (1992), where environmental groups tried to sue the Secretary of the Interior to get him to enforce provisions of the Endangered Species Act. One of the things that made this case controversial is that the Supreme Court rejected the environmental groups’ more case-specific arguments, including that they were harmed by the damage to their ecosystem, and that they were harmed as people interested, personally and/or professionally, in the endangered species at issue, even though they had no interest in the specific project (and, hence, the specific animals) at issue in the litigation. The Supreme Court said that if you have no direct interest in the specific government action at issue here, you have no standing to sue.

[FN2] The courts who take the contrary view, requiring that intervenors have standing, seem to be concerned that when you intervene in a case, you become a party to that case, and that carries with it a whole litany of serious consequences. So it makes no sense to allow people to intervene unless their stake is so direct and important that they independently would have standing. This is the view expressed by Jonathan Adler, Michael Dorf, and Vikram Amar. This approach has a certain elegance to it but, for a variety of reasons, I’m not totally convinced it’s the right way to think about intervention.

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