Le·gal In·sur·rec·tion

I just received an automated e-mail from the 9th Circuit, as follows (emphasis mine):

Filed Order for PUBLICATION (STEPHEN R. REINHARDT, MICHAEL DALY HAWKINS and N. RANDY SMITH) for certification to California State Supreme Court. Before this panel of the United States Court of Appeals for the Ninth Circuit is an appeal concerning the constitutionality under the United States Constitution of Article I, § 7.5 of the California Constitution (“Proposition 8”). Because we cannot consider this important constitutional question unless the appellants before us have standing to raise it, and in light of Arizonans for Official English v. Arizona, 520 U.S. 43 (1997) (“Arizonans”), it is critical that we be advised of the rights under California law of the official proponents of an initiative measure to defend the constitutionality of that measure upon its adoption by the People when the state officers charged with the laws’ enforcement, including the Attorney General, refuse to provide such a defense or appeal a judgment declaring the measure unconstitutional. As we are aware of no controlling state precedent on this precise question, we respectfully ask the Supreme Court of California to exercise its discretion to accept and decide the certified question below. (See order for full text) The Clerk is hereby directed to transmit forthwith to the Court the original and ten copies of this order and accompanying memorandum, as well as a certificate of service on the parties. Cal. R. Ct. 8.548(d). The clerk shall also transmit the following along with this request: ten copies of the district court Findings of Fact / Conclusions of Law / Order (704 F. Supp. 2d. 921 (N.D. Cal. 2010)); ten copies of the Permanent Injunction issued by the district court (docket entry 728 in No. C 09-2292-VRW (N.D. Cal. Aug. 12, 2010)); a copy of the video recording of the oral argument heard in these appeals on December 6, 2010; the briefs of the parties and intervenors in this appeal; and the briefs amicus curiae filed by (1) the Center for Constitutional Jurisprudence and (2) Equality California in No. 10-16696. The Clerk shall provide additional record materials if so requested by the Supreme Court of California. Cal. R. Ct. 8.548(c). The case is withdrawn from submission, and further proceedings in this court are stayed pending final action by the Supreme Court of California. The parties shall notify the Clerk of this Court within three days after the Court accepts or rejects certification, and again within three days if the Court renders an opinion. The panel retains jurisdiction over further proceedings. IT IS SO ORDERED. [7598921] (RP)

Here is the certified question centering on whether the proponents of Prop. 8 have standing under California state law:

I. Question Certified

Pursuant to Rule 8.548 of the California Rules of Court, we request that the Court answer the following 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.

We understand that the Court may reformulate our question, and we agree to
accept and follow the Court’s decision. Cal. R. Ct. 8.548(b)(2), (f)(5).

In a separate opinion, the Court denied standing to Imperial County, so if the proponents of Prop. 8 have no standing, it is not clear that there will be a party to defend Prop. 8.  If that is the case, it is unclear whether the 9th Circuit will uphold the district court, or find that since no one had standing to defend Prop. 8, there was no case or constroversy so the district court decision is vacated.  This all may be a consequence of the tactical decisions of plaintiffs' counsel.

In a concurring opinion, Judge Reindhardt took a swipe at plaintiff's counsel for strategically organizing the litigation to achieve a result which, though tactically ingenious, in fact deprived the Court of a rational means of review:

There can be little doubt that when the Plaintiffs filed this action their purpose was to establish that there was a constitutional right to gay marriage, and to do so by obtaining a decision of the Supreme Court to that effect. Yet, according to what their counsel represented to us at oral argument, the complaint they filed and the injunction they obtained determines only that Proposition 8 may not be enforced in two of California’s fifty-eight counties. They next contend that the injunction may not be appealed but that it may be extended to the remaining fifty-six counties, upon the filing of a subsequent lawsuit by the Attorney Generalin state court against the other County Clerks. Whether Plaintiffs are correct or not, it is clear that all of this would have been unnecessary and Plaintiffs could have obtained a statewide injunction had they filed an action against a broader set of defendants, a simple matter of pleading. Why preeminent counsel and the major law firms of which they are a part failed to do that is a matter on which I will not speculate. [footnotes omitted.]

This is one of the problems I have highlighted before.  The plaintiffs and the trial court, as well as California state officials, all played games with the litigation as if this merely were of interest to the parties.  From the conduct of the trial, to the district court's heavily "factual" opinion, the strategic litigation tactics truncated a fair consideration of the case.  Now this gamesmanship may come back to haunt those who seek to overturn Prop. 8.

Here is the full Certification Order:

Perry v Schwarzenegger - Order Certifying a Question to the Supreme Court of California

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