The Ninth Circuit Panel needs a little help here!

The Ninth Circuit Panel needs a little help here!

by Spencer Hamilton on Saturday, February 19, 2011 at 12:45am

In my note: Is this the end of Proposition 8? (http://www.facebook.com/note.php?note_id=433920627263#!/note.php?note_id=466487706750&comments) I outlined the history of Prop 8 until 12/6/10 when oral arguments were presented to the court. Now Judges Stephen Reinhardt, Michael Daly Hawkins, and N. Randy Smith need help from the CA Supreme Court. Citing a case from from a state where someone was able to intervene on behalf of the Legislature. This is called ‘standing’ which says: I can defend this law, because I have been harmed personally by this verdict and I will attempt to show how--or--I will stand and defend the law on someone else's behalf (which Imperial County Clerk's office was doing) because I can show how the verdict has harmed them Gladstone, Realtors v. Village of Bellwood, (1979) Warth v. Seldin,  (1975).

Imperial County Clerks office had been told by Judge Vaughan Walker that they in fact didn’t have Article 3 standing under California law, but does protectmarriage.com have such standing? In the absence of the Governor, executor of the law and his judicial counterpart who is the head prosecutor, the Attorney General do the sponsors of an initiative have the legal responsibility or right to stand in their absence?

From: (http://my.firedoglake.com/alec82/2010/08/14/prop-8-the-issue-of-standing/)  To seek intervention under Federal Rule of Civil Procedure 24(a), the Proponents had to make a four-part showing, establishing
(1) that their motion was timely,
(2) that they had a significant protectable interest relating to the transaction that was the subject of the action,
(3) that they were situated so that the disposition of the action might have practically impeded or impaired their ability to protect their interest and
(4) that their interest was not adequately represented by the named parties. The district court found that "as official proponents" they had a significant protectable interest, and that they were not adequately represented because the Attorney General informed the court that he believed Prop 8 was unconstitutional.

Furthermore:  Although the court noted that Proponents had a “significant protectable interest,” as it had determined when granting their motion to intervene, the court also cited Diamond v Charles, (1986) for the proposition that their interest under Federal Rule of Civil Procedure 24(a)(2) may be “plainly insufficient to confer standing.” In other words, in the absence of state defendants, the Proponents lacked standing to continue the suit or to appeal the district court’s order. Certainly, the Supreme Court noted in Diamond that a successful intervention at the district court level was insufficient to confer standing “in the absence of the State.” Id. at 68.

Due to it being a matter of State Law (and some points federal), this will be looked at by the California Supreme Court as the Ninth Circuit is landlocked by this issue according to state law. If the California Supreme Court says that they do have standing then the Ninth Circuit will have to address the constitutionality of Prop 8 which may or may not be accepted by the Supreme Court to hear. If protectmarriage.com has no standing then Judge Vaughan Walker’s verdict is upheld, and ends up reaffirming the verdict the CA Supreme Court rendered in 2008 with the In re Marriage cases. Either way, it can be a real slap in the face to the states with mini DOMAs in their constitutions, even if it takes a while to build momentum!