Prop 8: Proponents May Lack Standing to Appeal

shraby

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Sat Aug-07-10 08:19 PM
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Prop 8: Proponents May Lack Standing to Appeal

Brought over from DailyKos. <http://www.dailykos.com/storyonly/2010/8/7/890986/-Prop-8:-Proponents-May-Lack-Standing-to-Appeal>

Last up on the docket yesterday in Perry v. Schwarzenegger is the Plaintiffs' and Plaintiff-Intervenor's Joint Opposition to Defendant-Intervenors' Motion For A Stay Pending Appeal (the "Opposition"). The Opposition, written by Olson and Boies and joined by the City and County of San Francisco, vociferously argues against a stay and forcefully addresses the four justifications that should be met in order for Judge Walker to consider granting a stay:

..."(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies."

(snip)

2. There Is A Significant Question As To Whether Proponents Even Have Standing To Invoke The Jurisdiction Of The Court Of Appeals

To invoke the jurisdiction of the court of appeals, an appellant must meet all of the requirements for Article III standing. See Arizonans for Official English v. Arizona, 520 U.S. 43, 64-65 (1997). Where private persons have intervened in a lawsuit to defend a state law, and the trial court has ruled for the plaintiff, intervenors cannot by themselves prolong the litigation through an appeal unless the intervenors independently establish their Article III standing. See Diamond v. Charles, 476 U.S. 54, 68-71 (1986).

At this point in time, none of the originally named defendants has noticed an appeal. Under Diamond, Proponents cannot carry that appeal unless they satisfy the requirements of Article III.

It is doubtful that ballot initiative supporters such as Proponents could meet that standard. Proponents might point to Yniguez v. Arizona where the Ninth Circuit invoked the "legislator standing" doctrine to hold that the ballot proposition proponents met Article III standing requirements. But the Supreme Court unanimously vacated that decision and there expressed "grave doubts whether have standing under Article III to pursue appellate review." As the Supreme Court recognized, ballot proposition proponents are not materially different from citizens dissatisfied with a government's failure to enforce a generally applicable law; they lack the concrete injury particularized to themselves and not shared generally by the public necessary to invoke the jurisdiction of the federal court. And Proponents cannot rightly claim to qualify for "legislator standing" because no provision of California law authorizes initiative sponsors "to represent the State's interests."

In the absence of any showing by Proponents that this Court's ruling injures them in a concrete and particularized manner - a manner that distinguishes them from other supporters - there is a possibility that Proponents' appeal ultimately may be dismissed for lack of standing. As Proponents themselves have recognized, "because the standing of Defendant-Intervenors to appeal from a ruling holding Proposition 8 unconstitutional has been called into question (see Doc # 148 at 15), the very real possibility exists that none of the current parties to this case would be both willing and able to appeal such a ruling by this Court (or to seek Supreme Court review of such a ruling by the Court of Appeals)." Doc # 331 at 3. This, too, demonstrates that Proponents cannot show a strong likelihood of success on appeal.

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<http://www.dailykos.com/storyonly/2010/8/7/890986/-Prop-8:-Proponents-May-Lack-Standing-to-Appeal>