Tuesday, September 6, 2011
On Justice Goodwin Liu's first day sitting as a justice on the California Supreme Court, the matter before the court was one the court has encountered several times before: same-sex marriage. However, Liu is not the only new Justice; the Chief Justice, Tani Gorre Cantil-Sakauye, pictured right, assumed her post in January 2011.
The extended history of same-sex marriage and Proposition 8 before the California Supreme Court is complicated, but today's hearing also involves the federal litigation surrounding Proposition 8. The California Supreme Court's task in Perry v. Brown (previously Perry v. Schwarzenegger) is to answer a question of state law certified to the court by the Ninth Circuit; a certification that the California Supreme Court accepted.
The question is this:
Whether under Article II, Section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure [PROPOSITION 8] possess either a particularized interest in the initiative's validity or the authority to assert the State's interest in the initiative's validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so.
The Ninth Circuit wants the question answered in order to assist it in determining whether the proponents, who seek to appeal the decision of federal district court judge Vaughn Walker, have Article III standing to invoke the power of the federal judiciary on appeal.
The general rule for Article III standing requires satisfaction of several elements. First, the moving party must have "injury in fact" by suffering injury to a “legally cognizable interest," and the injury must be concrete and particularized as well as actual or imminent. Secondly, there is a causation element: the injury in fact has to be fairly traceable to the challenged action of the opposing party. Finally, there must be a substantial likelihood that the injury would be redressed if the party were awarded a favorable decision by the court. This is not an examination of the merits, but requires a finding that the injury is capable of being redressed assuming the party prevailed.
The California Supreme Court is thus not determining the issue of federal court standing and its opinion will not be outcome determinative for the Ninth Circuit. However, if the California Supreme Court holds that the proponents do not have a "particularized interest in the initiative's validity" and that the proponents do not have "authority to assert the State's interest in the initiative's validity" under state law, this would mean that the proponents will have great difficulty satisfying the "injury in fact" element of Article III standing.
From the oral argument webcast, there is little indication of the California Supreme Court's views. Under state rules, the court must render its decision in 90 days.
UPDATE: Watch the full video of the oral argument: