Perry v. Schwarzenegger, Proposition 8, the Stay, and Standing to Appeal

Judge Walker has lifted the stay of Perry v. Schwarzenegger finding Proposition 8 unconstitutional, or, more precisely, in an Order issued today, he has ordered that the previous "judgment shall be STAYED until August 18, 2010 at 5 PM PDT at which time defendants and all persons under their control or supervision shall cease to apply or enforce Proposition 8."

One of the more interesting aspects of the Order is the discussion of whether the Proponents have satisfied the "likelihood of success on the merits" prong of a stay analysis.  This prong is always a difficult one, especially when it is being decided by the same judge who issued the original order: in essence, it requires the judge to conclude that it is likely the decision will be reversed.  However, Perry introduces another wrinkle given the uncommon procedural posture of the case.  Recall that the named defendants, Governor Schwarzenegger and other California officials, are not defending the case.  Instead, Proposition 8 was defended by the "proponents" of Proposition 8.

Judge Walker writes:

If, however, no state defendant appeals, proponents will need to show standing in the court of appeals.  

Proponents’ intervention in the district court does not provide them with standing to appeal.

Order at 5.  Walker cites Arizonans for Official English v Arizona, 520 US 43, 67 (1997), in which a unanimous Supreme Court held that the organization, Arizonans for Official English (AOE) that had sponsored the English-only constitutional amendment passed by ballot initiative and AOE's chairperson, Robert Park, did not have standing. The Supreme Court wrote:

Petitioners argue primarily that, as initiative proponents, they have a quasi legislative interest in defending the constitutionality of the measure they successfully sponsored. AOE and Park stress the funds and effort they expended to achieve adoption of [the state constitutional amendment].  We have recognized that state legislators have standing to contest a decision holding a state statute unconstitutional if state law authorizes legislators to represent the State's interests.  AOE and its members, however, are not elected representatives, 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.

520 US at 67.

In his Order, Walker continues, 

Proponents chose not to brief the standing issue in connection with their motion to stay, and nothing in the record shows proponents face the kind of injury required for Article III standing. As it appears at least doubtful that proponents will be able to proceed with their appeal without a state defendant, it remains unclear whether the court of appeals will be able to reach the merits of proponents’ appeal. In light of those concerns, proponents may have little choice but to attempt to convince either the Governor or the Attorney General to file an appeal to ensure appellate jurisdiction. As regards the stay, however, the uncertainty surrounding proponents’ standing weighs heavily against the likelihood of their success.

Order at 6. 

Certainly, Perry v. Schwarzenegger has tremendous import for same-sex marriage in California and elsewhere. 

However given the burgeoning number of ballot initiatives about a vast array of subjects, Perry v. Schwarzenegger raises potential issues about judicial review of all such laws. 

What happens when the state does not approve and therefore does not defend a law adopted by ballot initiative?  At trial in Perry, the judge allowed "Proponents" of the ballot initiative to defend the law.  And, according to the judge, their performance was not very exemplary: "Proponents had a full opportunity to provide evidence in support of their position and nevertheless failed to present even one credible witness on the government interest in Proposition 8."  Order at 6.  

What if the Proponents lack Article III standing to appeal the decision finding the law unconstitutional?  This could essentially insulate the judge from being appealed. 

On the other hand, what if the Proponents are granted Article III standing?  This might dilute Article III standing or allow private parties - - - or certain private parties - - - to assume the mantle of government and articulate its interests.

RR