– guest-blogged by W. Kevin Vicklund
Late last year, I guest-blogged on the old Dispatches about whether the government should be required to appeal a policy it doesn’t want to defend. While I ended up deciding that the executive branch should be allowed to cut bait after the initial trial without being forced to appeal, I left open what the legislative branch or proponents should be able to do. Two events in the past year have clarified my thinking on this. NB: I was originally going to post this the weekend before Thanksgiving, but came down with an illness. Since today is the final day of hearings (starting at 2:30 PST) for the Proposition 8 appeal at the Circuit Court panel level, it seemed appropriate to post it now.
First, Obama decided not to appeal decisions against DOMA. What he did instead was the perfect solution: he told the legislature that if they wanted it defended, hire their own damn lawyers. The legislature is clearly a proper defendant under even the most stringent standing analysis. Politically, it’s potentially a savvy move. He gets to not only make a stand on principle, he deflects criticism by allowing the appeal to still happen, and he forces the legislature into making their own statement. I wholeheartedly agree with this position. Furthermore, the Supreme Court has ruled in the past that a state legislature has standing to defend or prosecute (including the right to appeal) a law that the executive branch refuses to touch, so long as it is permitted by state law [see Karcher v. May (1987) 484 U.S. 72].
It’s not so clear cut with the Prop 8 trial. If Prop 8 had granted them a legally cognizable benefit, or the outcome of the trial had caused them harm (such as being required to pay part of plaintiffs’ attorney fees), there would be no question in my mind that they should be allowed to appeal. In fact, about five years ago I did extensive research into intervenor-initiated appeals, as part of a discussion with Larry Fafarman over whether the Dover trial could have been appealed. As it turns out, the federal courts are less permissive than I am – an intervenor assessed part of attorney fees is often only allowed to appeal the fee assessment, rather than the decision as a whole. While I’m not going to dig up old research, suffice it to say that if it weren’t for the fact that Prop 8 was an initiative, proponents would not be allowed to appeal – and I would agree (though I suspect Ed would not). They would be allowed to intervene in any appeal, however.
Now, I could stop here. After several months of occasional consideration, I hadn’t been able to devise a scenario in which a policy I would actually support would be prevented from being appealed by an intervenor (at least, provided my other thoughts on standing doctrine were implemented). Thus, in my ideal legal system, I would not have a practical need for initiative proponents to have a special right of appeal. But the real world is not ideal, and I may not have sufficient imagination, so it behooves us to examine whether proponents should have that right in principle. The second event I mentioned addresses this issue: the California Supreme Court issued a ruling the week before Thanksgiving that the proponents do have standing. Please note that from here on out, my review will be based on legal principles as they currently are applied, rather than how I think they ought to be applied, except for where the law isn’t settled.
There are two bases upon which the proponents could assert standing. The first is the traditional standing rule of “particularized interest.” Unfortunately, what this means is that to have standing, a party must have a stake in the case distinct from the population in general. While proponents of an initiative certainly possess a requisite stake in the lead-up to the election, my analysis indicates that the courts would find this stake disappears once the election occurs. Post-election, a proponent’s stake in the initiative is no different than any other citizen’s stake. One might argue that they could be entitled standing similar to that in a class action (where the class is the voters who voted for the initiative), but there is a significant difference. A class action has an opt-out mechanism for those who don’t wish to participate, either because they want to pursue their own suit or they don’t want to join any suit. This option isn’t available for a person who has had a change in heart, or simply wants the lawsuit to go away. As such, I cannot see a federal court granting standing on particularized interest. In fact, the California didn’t even bother addressing this issue in their ruling, as the other basis for standing was much stronger.
The California SC ruling is maddening in its lack of distinction between the ability to intervene and the right to appeal. While related, these are two distinct concepts, and the court failed to address the difference. Of the various post-election challenges it cited, in all but one the original defendant also appealed. The only one in which the defendant didn’t appeal, it was at the municipality level. The Supreme Court has recognized that actions at the municipality level often meet the “particularized interest” criteria; the proponents in this case almost certainly met this criteria. As a result, not even the caselaw is clear on whether proponents have the right to appeal absent an appeal by one of the original defendants.
This leaves us with legal principles. While the proponents take on a quasi-legislative role, it does not give them the full rights and responsibilities of the legislature. Therefore, it is not as simple as asking whether the legislature would be allowed to appeal. However, the purpose of the initiative is to force the government to do that which it has failed to do, so allowing it veto power after a court decision diminishes that purpose – especially since it doesn’t have the right to modify the initiative unless permitted by the initiative itself. On the other hand, the proponents aren’t elected to represent the voters, and there is little, if any, opportunity for voter feedback if proponents have unilateral ability to appeal. Contrast with Kitzmiller v. Dover, the 2005 ID case, where the city council was replaced by voters and sought feedback on whether to pursue an appeal. In fact, the voter feedback on Prop 8, if anything, was to not appeal, as they had a choice between electing an AG that favored appeal or one that didn’t. The voters chose the one that favored not appealing the decision.
In the end, I think that, at least in the case of a direct initiative, the correct answer, and the decision the 9th Circuit will come to, is that proponents do have the right to appeal. In the case of other types of initiatives, where the government plays a role in passing the law, the courts would likely rule against the right to appeal (barring other circumstances, of course).
And now for some predictions!
The 9th Circuit Court panel is hearing the final arguments in the various appeals of the Prop 8 trial. There are four issues: standing, whether to release the video of the trial, whether to vacate the decision because the trial judge is gay and in a long-term relationship, and the merits of the case. My predictions:
1. The first three issues will be consolidated into a single ruling, issued this month. Standing will be granted, the video of the trial will be released, and the decision won’t be vacated.
2. The court will affirm the decision on the merits. If the ruling on the merits is not consolidated with the other issues, it will likely be a 2-1 decision.
3. Proponents will request an en banc hearing rather than appeal directly to SCOTUS. Every day that Prop 8 remains in effect is a win for them, so expect them to delay as much as possible. Also, in order to be put on the October 2012 term SCOTUS docket, any appeal would have to be presented before the end of January. This is not in the best interests of proponents.
4. SCOTUS will only hear this with the various DOMA challenges, and only if there is a discrepancy between the various Circuit Court rulings. If so, Kennedy authors the decision striking down the gay marriage bans, completing the trifecta.