Metropolitan News-Enterprise


Wednesday, January 5, 2011


Page 3


Ninth Circuit Asks S.C. to Weigh in on Standing in Proposition 8 Case


From Staff and Wire Service Reports


The Ninth U.S. Circuit Court of Appeals yesterday asked the California Supreme Court to determine whether state law allows Proposition 8’s sponsors to defend the measure in the face of the refusal of the attorney general and governor to do so.

A three-judge panel of the Ninth U.S. Circuit Court of Appeals certified the question to the state high court. The state court does not have to respond, but legal experts expect it to.

The panel suggested that without the state court’s input, it would have to dismiss the case.

“This court is obligated to ensure that it has jurisdiction over this appeal before proceeding to the important constitutional questions it presents, and we must dismiss the appeal if we lack jurisdiction,” the judges wrote.

The panel indicated during oral arguments last month that it might seek the state court’s guidance because the question of who is eligible to fight for Proposition 8 remains unsettled under both federal and California law.

After district judge struck down the ban in August as a violation of gay Californians’ civil rights, then-Gov. Arnold Schwarzenegger and then-Attorney General Jerry Brown both took the unusual step of refusing to appeal the decision. Brown is now governor, and the new attorney general, Kamala Harris, promised voters she would not defend the measure either.

“We are now convinced that proponents’ claim to standing depends on proponents’ particularized interests created by state law or their authority under state law to defend the constitutionality of the initiative,” the panel said. “We therefore request clarification in order to determine whether we have jurisdiction to decide this case.”

The panel also rejected attempts by the Imperial County Board of Supervisors and the county’s deputy marriage clerk to intervene as alternate defendants. Lawyers for the board and deputy clerk had said they should be allowed to participate in the case because Imperial County voters overwhelmingly favored the gay marriage ban.

But the panel said that unlike the county’s elected clerk, neither the appointed deputy nor the supervisors were directly responsible for enforcing marriage laws.

If the state Supreme Court determines that the coalition of religious and conservative groups that sponsored Proposition 8 lack the prerogative to defend the measure, it is unclear whether the ban would be unenforceable or remain in effect.

Lawyers for the two gay couples who successfully sued to overturn the ban in the lower court have argued that the trial judge’s decision overturning Proposition 8 would be binding statewide. That would allow same-sex marriages to resume in California, but would remove the case from its long-assumed course to the U.S. Supreme Court, plaintiffs lawyer Theodore Olson said yesterday.

Gay marriage opponents argue that if they are ineligible to appeal, the lower court decision would have to be vacated since they were allowed to defend Proposition 8 at trial. If the Ninth Circuit leaves the lower court decision in place, they could appeal to the U.S. Supreme Court on the standing issue.

California voters passed Proposition 8 in November 2008. The measure, which amended the California Constitution to define marriage as a union between a man and a woman, overrode a California Supreme Court ruling from earlier that year that declared the state’s one man-one-woman marriage laws unconstitutional.

Also yesterday, Judge Stephen Reinhardt, who sits on the panel with Judge N. Randy Smith and Senior Judge Michael Daly Hawkins, issued a memorandum further explaining his denial of a motion that he recuse himself because he is married to Ramona Ripston, executive director of the ACLU’s Southern California affiliate.

The couple have been married for 20 years, during which time he has always had a policy of recusing himself from appeals in which the ACLU/SC is involved, whether as or on behalf of a party, or as amicus, Reinhardt explained.

In this case, however, the group had no involvement at the appellate level, and only minimal involvement at the district level. Such a relationship is too remote to require disqualification, he said.

Reinhardt cited then-Chief Justice William Rehnquist’s decision not to disqualify himself from Microsoft Corp’s appeal in its antitrust dispute with the federal government 10 years ago, at a time that Rehnquist’s son was representing the company in other antitrust matters.

Reinhardt also noted that seven Supreme Court justices with spouses or children who were practicing law at the time issued a policy stating that they would not generally recuse themselves from cases in which those family members had been involved in the lower courts.

The case is Perry v. Schwarzenegger,.10-16751.


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