Lawyers in the Proposition 8 court case went before the Supreme Court of California on Tuesday to argue whether Prop. 8 proponents have standing under state law that could allow them to defend Proposition 8 before the 9th Circuit Court of Appeals.
For background on what has brought us to this point, please click here.
In oral arguments that lasted for about an hour Tuesday lawyer Charles Cooper acting on behalf of the pro-Proposition 8 team argued that it is “integral” and “inescapable” that proponents of Proposition 8 have the right to defend the validity of their ballot initiative. The Justices were keen to clarify whether Cooper was arguing about a broader right to automatically be able to defend all ballot initiatives — a fundamental question that, they noted, has never been considered by the Court — or just a right to appeal in this case. Cooper confirmed that he was arguing for the latter.
The Justices quizzed Cooper on what would happen to the state’s authority if they determined Prop. 8 proponents had standing, asking would such a ruling remove authority from the state? Cooper argued that the state interest and the particularized interest of Prop. 8 proponents is equal, and state authority doesn’t disappear just because proponents have been given standing to appeal. This is merely a transfer of power, he said, providing proponents the right to defend a law they have enacted.
Cooper also argued that proponents’ interest is merely an extension of the fundamental right to propose initiatives — to deny them the right to the appellate process in this case is to damage that right. Cooper, when pressed, struggled however to define exactly how denying the right to appeal would harm proponents of Proposition 8 beyond limiting their power to appeal.
Ted Olson, lawyer for the Plaintiffs, was up next and argued that only California’s governor or attorney general has standing to defend state laws in court and that while Proposition 8 proponents have a right to campaign and enact a constitutional amendment because that is a legislative power that is preserved for the people under California’s law, they do not have the authority to argue on behalf of the state in court because that is an administrative power. As such, he said, Proposition 8 proponents lack standing to appeal and there is nothing under California law that provides them with the right to appellate review. (On a side note, initiative proposers can reserve the right to defend laws enacted at the ballot by including that right in the ballot proposal, but this was not done in the Proposition 8 case.)
Olson also pointed out that initiative proponents act solely out of their own interests and cannot claim to be acting on behalf of the state, or in fact “the people” — because they were not elected. This, Olson said, is reason enough to deny standing.
The Justices seemed troubled by several issues should they rule in agreement with Olson’s view of California law.
Perhaps the most crucial question came from Justice Carol A. Corrigan who said that a finding in favor of Plaintiffs that initiative proponents do not have standing could, in effect, open the door for the state’s administration to have a “pocket veto” on ballot initiatives by simply choosing not to defend the laws in court and thus nullifying the legislative power California’s citizens have reserved for themselves. Olson argued that this was not the question before the Court and that the Justices should confine themselves only to the issue of standing, however this illustrates the deference the Court has traditionally shown to the legislative power of the Californian people.
The Court will deliver its verdict within 90 days. If the Supreme Court decides proponents lack standing, the 9th Circuit seems likely to dismiss this case. If the Court determines proponents do have standing under state law the 9th Circuit may then hear the constitutional arguments surrounding Proposition 8. The court called also issue a less definitive opinion that merely advises the 9th Circuit without giving a conclusion on the standing issue but suggests the landscape of California state law and how it should be weighed in this case.
Photo used under the Creative Commons Attribution License, with thanks to angela n.