This discusses two rulings. DOMA and Proposition 8. I like the DOMA decision. I like the specific result of the Proposition 8 ruling, but do not like the way they got there.
The issue with proposition 8 is that California lost, and then chose not to appeal. Lawyers for the group that passed proposition 8 then stepped in and took the case. Their argument basically was that if they were not allowed to do this, then any proposition passed by Californians that the government did not like the government could unpass by posting a lackluster defense and then not appealing it.
The 9th circuit did not know whether they should grant standing. They remanded it to the California Supreme Court to decide that. The California Supreme Court said that under California law they did have standing. The 9th heard it. The Supreme Court has now disagreed.
But I agree with that argument from the supporters of proposition 8. California gives voters the power to pass proposition that the state does not like. The state has now been handed a legal tool which undermines that in federal court. (I do not understand precedent well enough to know whether state courts will look to the Supreme Court or the California Supreme Court on this.)
The 9th circuit did not know whether they should grant standing. They remanded it to the California Supreme Court to decide that.
That's neither procedurally nor factually correct; they certified a question to the California Supreme Court about the authority of petitioners under State law to defend the proposition in court; this was not a remand, and although the Ninth Circuit based its finding of standing on the result, the question to the California Supreme Court was not directly on standing (which is a federal question, not a state law question, and thus wouldn't have been an appropriate question for certification to the state court.)
The Supreme Court has now disagreed.
The Supreme Court, to be clear, disagreed with the Ninth Circuit's conclusion on standing, not the California Supreme Court's answer on the question of state law authority. In fact, they based their disagreement in part on the California Supreme Court answer, and on how that answer clearly indicated that the state law authority did not have the requisite elements of an agency relationship, which would be necessary for the petitioners to have the standing on the basis that they were representatives of the State interest rather than on the basis of particularized harms they themselves faced as the result of an adverse decision.
California gives voters the power to pass proposition that the state does not like.
It gives the voters -- through the reserved legislative powers state held by the electorate -- the power to pass laws (including Constitutional amendments) that the elected representatives of the state don't like.
It also gives the voters the power to voters to elect representatives -- and to remove them if they don't like their actions.
I do not understand precedent well enough to know whether state courts will look to the Supreme Court or the California Supreme Court on this.)
State courts -- and federal courts -- will look to the state Supreme Court on the state law question, and would look to the US Supreme Court on the federal law question (except that the question of Article III standing is, unlike many other federal law questions, almost never relevant to a state court except perhaps as persuasive authority on the application of similar state standing rules when there is no controlling state precedent available.)
Your proposition 8 concerns are very intriguing on a practical level, I would suggest the following:
California lost, by posting a lackluster defense.
This is a case of Constitutional law review, where legal precedent must be presented to the Court (in other words there will be little if any dispute of material facts that will be decided by a fact finder, simply a ruling on law), it is not as if California could or the other side could withhold legal precedent from the Court (even if it is adverse to their position), in fact the lawyers could be sanctioned for knowingly withholding case law that is on point. Further, the Court performs its own research, review, and analysis of the existing case law. In my opinion there are far to many safeguards for these types of abuses or throwing of a case.
There is a world of difference between "put up an acceptable defense" and "defended to the limit of their ability".
Opponents of the proposition pick a district court with a judge whose bias is known. The state puts up a defense, loses, and then does not appeal. There are, now, no safeguards blocking this sequence. Nobody can be sanctioned for it. And nobody aside from the disinterested state has standing to complain.
The protection of the court is useless if you cannot get your day in court.
Opponents of the proposition pick a district court with a judge whose bias is known. The state puts up a defense, loses, and then does not appeal. There are, now, no safeguards blocking this sequence. Nobody can be sanctioned for it.
Incorrect. California voters, if the issue is important to them, can remove the offending officials. And they don't even have to wait until the next regular election for the particular officers targetted, given California's recall provisions. (And, given that California directly elects executive officers like the Attorney-General separately, rather than them being appointees, it can do so in a reasonably fine-grained manner.)
And, the people that have run statewide proposition campaigns are, by demonstrated experience, fairly uniquely qualified to apply that sanction should it be necessary.
That is indirect, and is consistently ineffective.
For example, consider hypothetical state propositions limiting when elected officials can solicit donations, or providing for specific penalties to elected officials should they fail to do certain things (eg pass a budget on time). There are many such propositions that could be popular with voters, and would certainly be unpopular with any elected official.
For that class of proposition, the ability to vote in different elected officials does not actually give the public an effective tool to get the state to support the proposition.
Opponents of the proposition pick a district court with a judge whose bias is known.
First you can not "pick" a District Court Judge, cases are assigned to District Court Judges.
The state puts up a defense, loses, and then does not appeal. There are, now, no safeguards blocking this sequence.
The first ruling is the safeguard...Judges can not just rule according to their gut or "bias" they have to follow precedent - they can not ignore case law nor can the attorneys.
Besides, if you think the State is acting so unethically, in basically throwing the case (which again is not really possible in a Federal Court Civil Rights Case), then they will simply take the appeal to blok a private party from doing so, and just lose that case. Then what? Appeal to the SCOTUS? Well as it stands the SCOTUS does not have to take any case, in fact the majority of cases they appealed to them they do not to take, approximately 90% of every case they hear is some death penalty appeal. SCOTUS has a history of passing on very important issues, and could have passed on DOMA if they wanted.
The protection of the court is useless if you cannot get your day in court.
They had there day in Court and lost, they decided not to appeal, no one can force a party to appeal. It is not for private parties to assume they could have done better than the State and interject themselves in the State's place and appeal. That opens a floodgate of real issues. Who has standing when multiple parties want to take the case? What if one of those parties is actually adverse to the position?
You may not pick the judge, but you can pick the district. Also not every case filed will go all of the way through to a decision, so you can file multiple cases then actually litigate the one that wound up in front of the judge that you want. (There are safeguards against that. They are imperfect...)
Furthermore while in theory judges have to follow precedent and case law, in practice there are lots of cases where well-meaning and dedicated judges, presented with the same facts, precedent, and case law, will come to opposite conclusion. Were it otherwise, the Supreme Court would never have dissenting opinions.
Finally, courts do have the right to request that the arguments that they wish to hear about particular points of law be made in front of them. For example in proposition 8, the justices required that the standing argument be made, even though neither side wanted to advance it. In the Affordable Healthcare Act this went further. An attorney, Robert Long, wound up having to be appointed specifically to make the case to the Supreme Court for a point that neither side wished to argue. That point being that the law was a tax, and therefore under the Anti-Injunction Act no lawsuit could be brought about it until after someone had been injured by actually paying it.
That last point matters in this case. The state actively did not want to defend this case in front of the district court. The judge wanted it defended. That is how a different set of attorneys got involved in the first place.
IANAL, but I believe that to have 'standing' you must show that you have been affected or harmed by the law in question.
The petitioners were claiming that they should have standing without demonstrating that they had been affected or harmed by the law in question. To rule in favor of the petitioners would have been to throw out the entire principle of 'standing'.
In a hypothetical future case, where the petitioners did have evidence of harm, they would not be prohibited by today's ruling from making a successful petition despite the State's lack of interest in defending the law.
At least that is how it seems to my amateur and cursory review of today's decision.
On the other hand, I can see why the federal courts don't see that as being their problem. If California wants to have a crazy, dysfunctional, mutually self-vetoing electoral system of both direct and representative democracy at the same time, then that's a matter for California.
Yeah, from the perspective of the U.S.'s federal structure it's difficult to conclude there's standing for federal courts here. When federal courts strike down a state law as inconsistent with federal power (either violating the Constitution, or superseded under the Supremacy Clause by federal statute), it's a dispute between the state and the federal governments, and the state can appeal. But if the state says, "on second thought, you're right" and declines to appeal the matter, there's no longer an active dispute between the two levels of government.
If it's to be remedied at any level, I'd say it would have to be handled by California. For example, the California Constitution could include a provision that officially appoints the backer of an initiative as a state officer empowered to defend the initiative against challenges.
Yeah, from the perspective of the U.S.'s federal structure it's difficult to conclude there's standing for federal courts here.
Given that the 9th court concluded that there was standing, and 4 out of 9 on the Supreme Court did likewise, I believe that you are significantly overestimating the difficulty of coming to that conclusion.
It is true that the court as a whole decided against standing existing. But several of the most important judges in the country heard the facts, knew the law, and concluded that standing did exist.
I like the prop 8 ruling for the fact that it bars interest groups from fighting constitutionality rulings in the future. This basically eliminates the possibility of 'Citizen's-united-ization' of the court system. Otherwise interest groups could dump hoards of cash into fighting court cases that they would otherwise not be a party to. While I would have liked to see a stronger ruling on Prop 8, I'm even happier that the court provided an avenue for keeping money out of the last government institution that has a fighting chance.
Comments
This discusses two rulings. DOMA and Proposition 8. I like the DOMA decision. I like the specific result of the Proposition 8 ruling, but do not like the way they got there.
The issue with proposition 8 is that California lost, and then chose not to appeal. Lawyers for the group that passed proposition 8 then stepped in and took the case. Their argument basically was that if they were not allowed to do this, then any proposition passed by Californians that the government did not like the government could unpass by posting a lackluster defense and then not appealing it.
The 9th circuit did not know whether they should grant standing. They remanded it to the California Supreme Court to decide that. The California Supreme Court said that under California law they did have standing. The 9th heard it. The Supreme Court has now disagreed.
But I agree with that argument from the supporters of proposition 8. California gives voters the power to pass proposition that the state does not like. The state has now been handed a legal tool which undermines that in federal court. (I do not understand precedent well enough to know whether state courts will look to the Supreme Court or the California Supreme Court on this.)
That's neither procedurally nor factually correct; they certified a question to the California Supreme Court about the authority of petitioners under State law to defend the proposition in court; this was not a remand, and although the Ninth Circuit based its finding of standing on the result, the question to the California Supreme Court was not directly on standing (which is a federal question, not a state law question, and thus wouldn't have been an appropriate question for certification to the state court.)
The Supreme Court, to be clear, disagreed with the Ninth Circuit's conclusion on standing, not the California Supreme Court's answer on the question of state law authority. In fact, they based their disagreement in part on the California Supreme Court answer, and on how that answer clearly indicated that the state law authority did not have the requisite elements of an agency relationship, which would be necessary for the petitioners to have the standing on the basis that they were representatives of the State interest rather than on the basis of particularized harms they themselves faced as the result of an adverse decision.
It gives the voters -- through the reserved legislative powers state held by the electorate -- the power to pass laws (including Constitutional amendments) that the elected representatives of the state don't like.
It also gives the voters the power to voters to elect representatives -- and to remove them if they don't like their actions.
State courts -- and federal courts -- will look to the state Supreme Court on the state law question, and would look to the US Supreme Court on the federal law question (except that the question of Article III standing is, unlike many other federal law questions, almost never relevant to a state court except perhaps as persuasive authority on the application of similar state standing rules when there is no controlling state precedent available.)
Thank you for the corrections and clarifications.
I'm a non-lawyer going off of my memory of what was said in the media, and clearly got some important details wrong.
Your proposition 8 concerns are very intriguing on a practical level, I would suggest the following:
This is a case of Constitutional law review, where legal precedent must be presented to the Court (in other words there will be little if any dispute of material facts that will be decided by a fact finder, simply a ruling on law), it is not as if California could or the other side could withhold legal precedent from the Court (even if it is adverse to their position), in fact the lawyers could be sanctioned for knowingly withholding case law that is on point. Further, the Court performs its own research, review, and analysis of the existing case law. In my opinion there are far to many safeguards for these types of abuses or throwing of a case.
There is a world of difference between "put up an acceptable defense" and "defended to the limit of their ability".
Opponents of the proposition pick a district court with a judge whose bias is known. The state puts up a defense, loses, and then does not appeal. There are, now, no safeguards blocking this sequence. Nobody can be sanctioned for it. And nobody aside from the disinterested state has standing to complain.
The protection of the court is useless if you cannot get your day in court.
Incorrect. California voters, if the issue is important to them, can remove the offending officials. And they don't even have to wait until the next regular election for the particular officers targetted, given California's recall provisions. (And, given that California directly elects executive officers like the Attorney-General separately, rather than them being appointees, it can do so in a reasonably fine-grained manner.)
And, the people that have run statewide proposition campaigns are, by demonstrated experience, fairly uniquely qualified to apply that sanction should it be necessary.
That is indirect, and is consistently ineffective.
For example, consider hypothetical state propositions limiting when elected officials can solicit donations, or providing for specific penalties to elected officials should they fail to do certain things (eg pass a budget on time). There are many such propositions that could be popular with voters, and would certainly be unpopular with any elected official.
For that class of proposition, the ability to vote in different elected officials does not actually give the public an effective tool to get the state to support the proposition.
And that is moving the goalposts (particularly as to the "indirect" portion), and unsupported (as to the "consistently ineffective".)
The rather special case you assert as an example, whatever merits it might have, clearly doesn't show that it is "consistently" anything.
First you can not "pick" a District Court Judge, cases are assigned to District Court Judges.
The first ruling is the safeguard...Judges can not just rule according to their gut or "bias" they have to follow precedent - they can not ignore case law nor can the attorneys.
Besides, if you think the State is acting so unethically, in basically throwing the case (which again is not really possible in a Federal Court Civil Rights Case), then they will simply take the appeal to blok a private party from doing so, and just lose that case. Then what? Appeal to the SCOTUS? Well as it stands the SCOTUS does not have to take any case, in fact the majority of cases they appealed to them they do not to take, approximately 90% of every case they hear is some death penalty appeal. SCOTUS has a history of passing on very important issues, and could have passed on DOMA if they wanted.
They had there day in Court and lost, they decided not to appeal, no one can force a party to appeal. It is not for private parties to assume they could have done better than the State and interject themselves in the State's place and appeal. That opens a floodgate of real issues. Who has standing when multiple parties want to take the case? What if one of those parties is actually adverse to the position?
You may not pick the judge, but you can pick the district. Also not every case filed will go all of the way through to a decision, so you can file multiple cases then actually litigate the one that wound up in front of the judge that you want. (There are safeguards against that. They are imperfect...)
Furthermore while in theory judges have to follow precedent and case law, in practice there are lots of cases where well-meaning and dedicated judges, presented with the same facts, precedent, and case law, will come to opposite conclusion. Were it otherwise, the Supreme Court would never have dissenting opinions.
Finally, courts do have the right to request that the arguments that they wish to hear about particular points of law be made in front of them. For example in proposition 8, the justices required that the standing argument be made, even though neither side wanted to advance it. In the Affordable Healthcare Act this went further. An attorney, Robert Long, wound up having to be appointed specifically to make the case to the Supreme Court for a point that neither side wished to argue. That point being that the law was a tax, and therefore under the Anti-Injunction Act no lawsuit could be brought about it until after someone had been injured by actually paying it.
That last point matters in this case. The state actively did not want to defend this case in front of the district court. The judge wanted it defended. That is how a different set of attorneys got involved in the first place.
IANAL, but I believe that to have 'standing' you must show that you have been affected or harmed by the law in question.
The petitioners were claiming that they should have standing without demonstrating that they had been affected or harmed by the law in question. To rule in favor of the petitioners would have been to throw out the entire principle of 'standing'.
In a hypothetical future case, where the petitioners did have evidence of harm, they would not be prohibited by today's ruling from making a successful petition despite the State's lack of interest in defending the law.
At least that is how it seems to my amateur and cursory review of today's decision.
On the other hand, I can see why the federal courts don't see that as being their problem. If California wants to have a crazy, dysfunctional, mutually self-vetoing electoral system of both direct and representative democracy at the same time, then that's a matter for California.
Yeah, from the perspective of the U.S.'s federal structure it's difficult to conclude there's standing for federal courts here. When federal courts strike down a state law as inconsistent with federal power (either violating the Constitution, or superseded under the Supremacy Clause by federal statute), it's a dispute between the state and the federal governments, and the state can appeal. But if the state says, "on second thought, you're right" and declines to appeal the matter, there's no longer an active dispute between the two levels of government.
If it's to be remedied at any level, I'd say it would have to be handled by California. For example, the California Constitution could include a provision that officially appoints the backer of an initiative as a state officer empowered to defend the initiative against challenges.
Yeah, from the perspective of the U.S.'s federal structure it's difficult to conclude there's standing for federal courts here.
Given that the 9th court concluded that there was standing, and 4 out of 9 on the Supreme Court did likewise, I believe that you are significantly overestimating the difficulty of coming to that conclusion.
It is true that the court as a whole decided against standing existing. But several of the most important judges in the country heard the facts, knew the law, and concluded that standing did exist.
I like the prop 8 ruling for the fact that it bars interest groups from fighting constitutionality rulings in the future. This basically eliminates the possibility of 'Citizen's-united-ization' of the court system. Otherwise interest groups could dump hoards of cash into fighting court cases that they would otherwise not be a party to. While I would have liked to see a stronger ruling on Prop 8, I'm even happier that the court provided an avenue for keeping money out of the last government institution that has a fighting chance.