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    Last up on the docket yesterday in Perry v. Schwarzenegger is the Plaintiffs' and Plaintiff-Intervenor's Joint Opposition to Defendant-Intervenors' Motion For A Stay Pending Appeal (the "Opposition").  The Opposition, written by Olson and Boies and joined by the City and County of San Francisco, vociferously argues against a stay and forcefully addresses the four justifications that should be met in order for Judge Walker to consider granting a stay:

..."(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies."

    The Opposition begins with an assertion that the appeal is meritless, that the "Proponents simply repeat in their stay motion the various unsubstantiated, unfounded, and illogical arguments this Court first rejected at summary judgment, and then rejected again after a full blown trial."

    And then the case takes a twist...

2.  There Is A Significant Question As To Whether Proponents Even Have Standing To Invoke The Jurisdiction Of The Court Of Appeals

To invoke the jurisdiction of the court of appeals, an appellant must meet all of the requirements for Article III standing.  See Arizonans for Official English v. Arizona, 520 U.S. 43, 64-65 (1997).  Where private persons have intervened in a lawsuit to defend a state law, and the trial court has ruled for the plaintiff, intervenors cannot by themselves prolong the litigation through an appeal unless the intervenors independently establish their Article III standing.  See Diamond v. Charles, 476 U.S. 54, 68-71 (1986).

At this point in time, none of the originally named defendants has noticed an appeal.  Under Diamond, Proponents cannot carry that appeal unless they satisfy the requirements of Article III.

It is doubtful that ballot initiative supporters such as Proponents could meet that standard.  Proponents might point to Yniguez v. Arizona where the Ninth Circuit invoked the "legislator standing" doctrine to hold that the ballot proposition proponents met Article III standing requirements.  But the Supreme Court unanimously vacated that decision and there expressed "grave doubts whether [ballot initiative proponents] have standing under Article III to pursue appellate review."  As the Supreme Court recognized, ballot proposition proponents are not materially different from citizens dissatisfied with a government's failure to enforce a generally applicable law; they lack the concrete injury particularized to themselves and not shared generally by the public necessary to invoke the jurisdiction of the federal court.  And Proponents cannot rightly claim to qualify for "legislator standing" because no provision of California law authorizes initiative sponsors "to represent the State's interests."

In the absence of any showing by Proponents that this Court's ruling injures them in a concrete and particularized manner - a manner that distinguishes them from other supporters - there is a possibility that Proponents' appeal ultimately may be dismissed for lack of standing.  As Proponents themselves have recognized, "because the standing of Defendant-Intervenors to appeal from a ruling holding Proposition 8 unconstitutional has been called into question (see Doc # 148 at 15), the very real possibility exists that none of the current parties to this case would be both willing and able to appeal such a ruling by this Court (or to seek Supreme Court review of such a ruling by the Court of Appeals)." Doc # 331 at 3.  This, too, demonstrates that Proponents cannot show a strong likelihood of success on appeal.

Plaintiffs' Opposition from Scribd (some citations omitted)

    Essentially, this portion of the Opposition asserts that the Prop 8 Proponents may not have the legal standing to litigate the appeal.  If that is, indeed, the determination made by the Ninth Circuit Court of Appeals, then the appeal will be effectively killed - dismissed - since the parties who do have standing to bring an appeal, namely Governor Schwarzenegger and California's Attorney General, Jerry Brown, have not appealed, but, instead, have filed their requests with the Court to allow marriage equality to take effect.  

    Notably, on the same day the Prop 8 decision was delivered, the Court also entered Judge Walker's 17-page Order denying the motion of Imperial County, who was backed by "Advocates for Faith & Freedom," to intervene in order to bring the appeal to the Ninth Circuit.  Judge Walker "noted that 'Imperial County raises serious concerns whether the existing defendants are willing and able to seek appellate review.' But, he concluded, Imperial County itself lacked standing."

    Plaintiff-Intervenor's attorney, San Francisco Deputy City Attorney Therese Stewart, has said:

"The court may have to decide whether the "Yes on 8" interveners (sic) have standing to appeal, and if they don't the decision at the district court level will be final."

    All of this appears to support denial of a stay in the case, but many questions arise from the revelation that the Proponents may not have standing.  IANAL and so, hopefully, some of our Kossack attorneys will weigh in to help us sort this out.

    Some germane questions:

    Will the Ninth Circuit again invoke "legislator standing" as it did in Yniguez v. Arizona and allow the Proponents' appeal to go forward, knowing that the Supreme Court has already voiced its apprehension concerning backers' standing?

    If the Ninth Circuit determines the Proponents do not have standing, the appeal is dismissed, and Judge Walker's ruling is final, then will marriage equality finally have been achieved -- but only for California?  Or can the Proponents request cert from the Supreme Court to definitively decide the issue of standing?

    How best for all of us who recognize marriage equality as a Constitutional right to continue to advocate and fight this battle?


Originally posted to dharmafarmer on Sat Aug 07, 2010 at 10:35 AM PDT.

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