Do Prop 8 Proponents Have Standing to Appeal?

A three-judge panel of the Ninth Circuit today asked the California Supreme Court whether proponents of Proposition 8, the same-sex marraige ban, have standing to appeal the district court's ruling that Prop 8 is unconstitutional.  (The panel also upheld the district court's denial of a motion to intervene in the case by a County, its Board, and its Deputy Clerk.  We covered that ruling here.)

Plaintiffs in the case did not originally include Prop 8 proponents as defendants.  But the district court permitted them to intervene and file an answer.  The district court then ruled that Prop 8 was unconstitutional and enjoined its enforcement by the named defendants.  The proponents appealed, but the named defendants did not.  The Ninth Circuit asked the parties to brief the question whether proponents had standing to appeal, and, after briefing, now ask the California Supreme Court whether California law confers standing to appeal upon proponents of a proposition.  Here's the certified question:

Whether under Article II, Section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure 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.

Op. at 2.

The Ninth Circuit is understandably gun shy on the question: they've false-started before.  The prior case involved Arizona's "English only" constitutional amendment (by ballot initiative).  As in this case, the district court in that case ruled the amendment unconstitutional, and state officials declined to appeal.  Supporters of the measure appealed, however, and the Ninth Circuit ruled that they had standing.  The Supreme Court in Arizonans for Official English v. Arizona "expressed grave doubts whether [ballot initiative supporters] have standing under Article III to pursue appellate review," but vacated on other grounds. 

Back to the Prop 8 case, the Ninth Circuit wrote in its certification to the California Supreme Court,

Having been granted intervention in the district court is not enough to establish standing to appeal; "an intervenor'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." . . .  States, however, "ha[ve] the power to create new interests, the invasion of which may confer standing."

Op. at 7-8 (quoting Diamond v. Charles). 

Thus ruling under Arizonans for Official English and Diamond v. Charles that the proponents' Article III interest could be established under state law--but also finding no definitive state authority that said proponents possessed a particularized interest--the Ninth Circuit certified the question to the California Supreme Court.

If proponents don't have a state-law interest (and therefore lack standing to appeal), the Ninth Circuit may lack jurisdiction to hear the case.  The district court ruled Prop 8 unconstitutional, and nobody with standing has yet come forward to appeal.  The Ninth Circuit stayed the district court injunction, and the parties predictably disagree about the legal status of Prop 8 if the Ninth Circuit ultimately has no jurisdiction to hear the appeal.

SDS