Get Used to It: Ep. 168, "An Update on Prop 8"

(typing) (introductory music) - Hi, welcome to Get Used To It. I'm Sheila Kuehl, and as always, I will be your host and guide for the hour. Today, we have an update on what's going on with the Prop 8 litigation. Those of you in California know very well I think what Prop 8 was. An initiative passed by the people of California by a little bit, to put something in the constitution that says that our marriages by lesbian and gay people will not be recognized in California. Lots of court stuff going on in different courts. And that's what we're gonna catch up on today. I have two wonderful guests to discuss this and let us know where we are even just at this moment. My first guest is David Cruz. He's a professor at the USC Gould School of Law and an expert on constitutional law. Welcome. - Thank you. - Very happy to have you here. - [David] Great to be here. - My other guest is Laura Brill, who is a partner in a fabulous law firm and named partner, and more importantly, or perhaps less importantly, cause it's good to be a partner. She has been the person who has prepared and filed a number of Amicus brief in the Prop 8 cases. And we'll talk about those and where we are at the moment. Welcome Laura. - Thank you very much. Great to be here, Sheila. - Thanks, David we'll start with you. One of the things I think it might be helpful to do is to give us sort of a quick rundown on what has the California Supreme Court done and then the federal court kind of in order so that we can remember how these things all got started, at least in California. - And how we got where we are now. - [Sheila] How we got where we are today. - Yes, sure, absolutely. So the exciting, good news that started off this cascade of events was the California Supreme Court decision in May of 2008 in a set of decisions called In re Marriage Cases. That was the case that held that it violated the California Constitution to not let same sex couples marry. When that became final that summer of the next month, that's when we started seeing couples get married, the estimated 18,000 same sex couples. However, looming over all of these marriages was Prop 8, which had been out for signatures, which got qualified to. - Let me interrupt you for just a second. Because since you are, I guess maybe all of us are Kahn law theorist, but you're the expert, that case in the Supreme Court, why did the California Supreme Court find or discover that it was unconstitutional under the State Constitution not to allow same sex couples to marry? What was the theory or theories? - They had basically two sets of arguments that the California Constitution protects various Liberty rights that cannot be denied without due process of law, unless you have sufficiently powerful justifications. And that the right to marry was one of those. And that same sex couples could take advantage of the right to marry just as a different sex couple could. That was really not what marriage was about. It was about the legal commitment and the unit of support. And then the other set of reasoning was about the discrimination that because it fenced out gay and lesbian couples for marriage, that this was sexual orientation discrimination and that under the equal protection guarantees that the government in California has under our constitution, that when you have this kind of discrimination, anti-gay discrimination, it could be anti straight, anti bisexual, any sexual orientation discrimination that has to also be subject to this judicial scrutiny that's very skeptical and demands a really powerful justification. And there just isn't one first. - So the California court interprets the California Constitution, but the United States Supreme Court had already said that marriage per se, not for us, but marriage itself was one of those rights that couldn't be taken away without a lot of due process or the process that was due, but. - Under the parallel clause in the US Constitution, both the California and US Constitutions. - Right. But in terms of equal protection, this was, did the California Supreme Court go farther than they had about sexual orientation or were they just saying, we really knew this? - This was a new development. This was one of the exciting things that the court decided in line with the big weight of scholarly opinion on this is that sexual orientation discrimination really is the kind that needs the highest degree of judicial protection. That there has been this long history of purposeful discrimination against lesbian, gay and bisexual people that sexual orientation generally doesn't have anything to do with your ability to contribute to society. And that the discrimination had been motivated by stereotypes and prejudices in most cases. - And then Prop 8. - Right. So as couples were getting married, this measure came down and the fight to try to convince the public to vote one way or another on it went on through the summer and early fall in the November '08 elections. We saw a very high turnout of voters in California. And as you mentioned by a narrow measure, Prop 8 was passed. Because the California Constitution had relied, sorry, because the California Supreme Court had relied on the California Constitution to strike down the marriage ban that we had in our statutory law, Prop 8 changed the California Constitution and said, okay, if we can't win under the existing rules, we'll change the ground rules. And they wrote the ban on same sex couples marrying into the State Constitution. So that went into effect then November 5th, 2008. - [Sheila] And then? - Then we basically immediately that day saw a lawsuit filed arguing that this was not permissible once again, under California law, although the voters can change the constitution through an initiative measure, they can only make certain kinds of changes, things that are deemed more minor called amendments, as opposed to a more profound or far reaching change called a revision and the argument that because you're taking away fundamental rights from a group, because you're taking them away from a group that is the victim of this history of purposeful discrimination and gets this kind of heightened scrutiny from the judiciary, that this is a really profound change in how the courts can protect individual rights of people under the State Constitution. So that lawsuit got litigated was filed in the State Supreme Court. They agreed to hear that challenge, which was based on these procedural rules for what voters can and can't do in California law. - And how is a revision accomplished in California law if not by a vote? - It is by a vote, but it has to start in the legislature. You either need two thirds of each house of the state legislature to vote in favor of a proposed revision and then send it to the people for a vote or you need the same margin, two thirds of each house to vote in favor of a State Constitutional convention to let the people decide, well, what kinds of changes would we like? That's what some people are batting about now with respect to things like our budget and our redistricting, our political system. But in either case, the key is you need this super majority vote of two thirds of each house. Since our legislature had voted twice to pass marriage equality bills, that was just not going to happen. - [Sheila] Right? - And that's why, the proponents of Prop 8 took it as an initiative measure. - So it sounds like a good legal theory, but. - It was, but at the end of the day, the California Supreme Court split five plus one, basically six votes upheld it, Justice Carlos Moreno, who has just announced his retirement gave us the loan dissenting vote that said, yeah, this really is a profound change about the way that our courts protect individual fundamental rights and shouldn't be adopted through this not deliberative mechanism, through a way that facilitates soundbites that are misleading and causes the people to adopt something that arguably is in deep tension with our basic constitutional commitments. - But this, the California Supreme Court said this initiative had appropriately direct addressed this issue and therefore they upheld it, which didn't mean that it did away with their original opinion, right? In other words, such discrimination, the kind of discrimination would still violate the constitution except for marriage because of Prop 8 and the due process we might see it used in the future. - Most of it is still there. Right, yeah. So what the court said then was, okay, this can be validly adopted through the initiative process. It's not a profound revision. It didn't have to start in the legislature. It doesn't touch our holding that when you discriminate against gay and lesbian people outside of marriage as such, that you have to pass this very difficult test. It didn't take away the rights to all of these substantive obligations and benefits of marriage that same sex couples had become eligible for. So as a result of that decision, something like our domestic partnership scheme is required as a matter of California Constitutional Law. It's not just legislative grace that gives that to couples in the state. And they also said it didn't touch any of the existing marriages that were entered into legally by same sex couples prior to the date it went into effect. - So then there was a decision to try the federal courts. - Right, so. - And now why would that have been done? - So, because we had reached the end of possible state law grounds for stopping probate from going into effect from invalidating it, holding it unlawful, that left as the only alternative, federal law, the US Constitution is superior to state law. And so if Prop 8's marriage ban conflicts with something in the federal constitution, it strikes down it's not valid. It can't have any legal effect and so a couple of couples, same sex couples with their private attorneys, high profile, as they may be, David Boies and familiar to many people who paid a lot of. - One for Bush and one for Gore in that major, major case. - In 2000, right. - But both on our side this time. - On our side, right. So the very liberal and very conservative attorneys agreeing that there is no reason for keeping gay people out of marriage that doesn't violate our fundamental constitutional commitments. And that is as true of the US Constitution in their view as it was of the State Constitution. - So at the entry level of the district court, it's just like a trial court in California, they take evidence, witnesses come and testify. So there was kind of a big trial? - Yeah, there was a trial for 10 days, almost two weeks in January last year where they presented evidence witnesses, the couple's testimony, they had an impressive array of experts from a variety of scholarly fields to talk about the history of marriage, the history of anti-gay discrimination and the like, and they were opposed at trial by the official sponsors of Prop 8, the state, although they were the defendants didn't believe that this was constitutional. They had become convinced by the California Supreme Court's reasoning and their own thinking about the matter that Prop 8 does violate the constitution. So they refused to put on arguments in defense of it. And the district court let the Prop 8 sponsors come in then to act as defendants, to put on a couple of. - People who had put the initiative on the ballot. - Right, the ones who initially qualify this, who sponsored it, who filed a piece of paper with the secretary of state to be able to start gathering signatures for the measure. They were the ones who played the role of the defendant. - Well, let me ask you, Laura, I mentioned at the beginning that you had gathered, prepared and filed Amicus briefs. Can you tell a little bit about what level of trial those go to and what they are really? - Sure. An Amicus brief is a brief that's put together by somebody other than the parties who has an important point of view that the court should hear that generally should go beyond just what the basics that the parties have briefed. And so in all of these cases, because they've been so ho high profile or been a large number of Amicus briefs filed at different levels. So they've been filed at the appellate court level. Generally they're not filed in the trial court, although they can be, but usually they're filed at the appellate court and the Supreme Court level and so both in the marriage cases and the Prop 8 case before the California Supreme Court, there were dozens of Amicus briefs filed by a really incredible array of groups chiming in to say, there is a California State Constitutional right to marry. And at the Prop 8 stage that you can't take away this right by, you know, a bare majority of the people who happened to show up to vote. - So who were the people that you represented? - And from my brief, in the California litigation, I represented women's rights organizations who wanted to make the arguments about how sexual orientation discrimination was similar and a species of sex discrimination. And one of the important reasons for that argument is because typically sex discrimination has already been recognized as a kind of discrimination that merits heightened scrutiny. David was talking about the different levels of scrutiny that courts give to different types of classifications. And so it's an easier way to get heightened scrutiny if sexual orientation discrimination is a kind of. - It's interesting, there's a difference in California between the scrutiny level for sex discrimination than there is in the federal level, right? Because California made the decision early on, I think to treat it as serious sex discrimination, as seriously as discrimination on the basis of race. - Yes that's right. - Which means that the state has to have the most, what is the language? - A compelling justification. - [Sheila] Compelling justification to do it. - That's right, that's right and so, and then on the federal side, there are these sort of grades of scrutiny. So economic distinctions like between an optometrist and an ophthalmologist, for example, those would be the types of discrimination that the courts would typically say, well, there's reasons to discriminate and so we don't have to look too closely about laws that make those kinds of classifications, but then you look at different ones and well, if you're talking about people with certain kinds of illnesses, those maybe should get a little bit more gender should be in the middle and sexual orientation. The Supreme Court really hasn't decided where sexual orientation should be. So it's kind of an open question. - So you filed with the, originally in the case that said you can't discriminate against sexual, people on the basis of sexual orientation in California, it's unconstitutional. The very first case that David talked about. - That's right. That's right. And then a similar argument on the bringing the perspective of gender discrimination to this revision amendment question to say the argument there was, yes, it should, the California Supreme Court should have regarded Proposition 8 as a revision and held it unconstitutional. And the perspective that the groups that are concerned about gender equality wanted to give in that case was how the initiative process could be used to disadvantage women or disadvantage others on the basis of gender if it were so easy. - Does the court have to decide if you can file an Amicus brief? - In these cases because they've been so high profile in general, the parties have just submitted blanket letters that said anyone can, you know, we don't oppose anybody filing a bunch. - But generally I'm just because we're going to talk later about the standing issue, which is we want to try to help people understand the difference between sort of procedural rules and the substantive. I mean, even due process has its own distinctions. Normally when you file an Amicus brief, does the court decide whether or not you can and on what basis? - Normally the rule is that if the parties consent, you can just file and if the part, and normally the parties do consent, because if they don't, all you have to do is file a motion with the court and the courts typically just grant them because they want to have an open process. You'd have to, it's only. - Do you have to have some kind of interest in the case, I mean. - Not a direct, you have to say why you care, but you don't have to have a monetary interest or. - The parties you. The Amicus is sort of looser in terms of who can file one. - Yes, exactly. And so there were at least at the state court at stage, like the American Medical Association, American Psychological Association, it really can be anybody who thinks religious groups, you know, who think that the court would benefit by their insights that they. - So you didn't file an Amicus at the district court level? - No, not at the district court level, but then in the ninth circuit, I filed a different Amicus brief that was really, it was on behalf of an expert in State Constitutional Law and state courts. And it was a really, it was a different brief about the skepticism with which the court should approach the initiative process as a whole. - Before we get to that, we need to sort of understand what the district court said. So were you following that decision? - Oh yes. I think we all probably were. - That we could do it online, you know? I mean, it used to be, we'd have to wait for the sketches to come back, but now it's just instant. So what happened at the district court level on the federal case, which was really not only, it's about Prop 8 in a way, but it's really broader than that, isn't it? It's really about our right to marry. - Yes I think that's right. The trial was really interesting. And one of the best things I think to come out of it was that the judge allowed a lot of testimony and a lot of factual finding. And so his opinion is about 130 pages long and full of the evidence that our side submitted saying, you know, that there is no rational basis and that for this type of discrimination and that gay people make as good parents as straight people. And that there's a real disadvantage in while we have domestic partnership benefits. That there's a real difference between being called a domestic partner, which is a status that nobody understands. And if you travel to a foreign country is meaningless and your parents don't understand or Arizona as opposed to being married. And so there are all these wonderful factual findings that there's no basis for the discrimination and that the status of marriage means something. - So what did the judge do on these? Was it the same kind of two theories about equal protection and due process? - Yes, it was same types of theories. And so he found a due process violation, and he found also that discrimination on the basis of sexual orientation should be subject to heightened scrutiny. And also found that the argument that we had made in the state court that sexual orientation discrimination is a type of gender discrimination. So he had basically. - [Sheila] It's like the kitchen sink. - Yeah, on all. - So even though it wasn't rational to discriminate, he still thought it should get heightened scrutiny? - [Laura] That's right. - Just in case somebody else was gonna make a decision about it, not him, right? - That's right and it's an important, because not a lot of, in a lot of the cases that have been about federal constitutional protections for gay rights, the discrimination has been so baseless that the courts have said, well, we can strike this down on rational basis review on the sort of baseline. - And what's the problem with that? It sounds like a good thing if it's not even rational. - No, that it's a great. - Or it's one standard put it as I recall from law school, not wholly irrational. - Right, right. It's a good thing for striking down those laws. But in general, that standard is regarded as very deferential and so we've been in kind of an odd position where the discrimination against us has been struck down repeatedly on the basis of review that's supposed to be kind of more deferential, but it's helpful in general, if you have a standard that says, well, this kind of discrimination on its face is something we're suspicious about and don't think states should be doing, it's more of an automatic. - Well, it would easier on a rational basis for a state to think up something that would sound rational and that's all they would need. - [Laura] That's right. - Whereas with heightened scrutiny, you have to find something more important. You have an important reason or a compelling reason or. - Right, that's right. And so, for example, the New York Court of Appeal, which is the high court in New York, had upheld marriage discrimination in New York, under rational basis review. And the rationale that the sort of hypothetical rationale was that heterosexual couples can accidentally procreate and therefore marriage discrimination is okay because gay people don't accidentally procreate, which doesn't make any sense and didn't even make any sense under rational basis review. But that's the type of sort of bizarre interest that can be asserted and that some courts have accepted. - So the opinion was so favorable to those of us who would like to see Prop 8 out of the constitution, or at least negated in the California Constitution that somebody appealed to the next level. Now what's the next level in a federal court from the district court? - Right, the next level is a court of appeals because we are in California, it's the ninth circuit court of appeals. And it was not the state officials who were the real defendants in the case, but it was the proponents of the initiative who appealed at a. - So let me ask you about that, because that sounds sort of weird, right? A law passes in California, generally, who's supposed to defend that law in court? - Well, generally the authority to litigate on behalf of the state is in the Governor and in the Attorney General. The Governor is the Supreme executive and has the power to faithfully execute the law. And the Attorney General is under the Governor as the person who kind of implements the state. - Top lawyer of the state. - For the state, so. So they did earlier on in the district court, they did answer the complaint. So the state answered and in the answer said that Prop 8 didn't violate the federal constitution. And then they kind of took a step back at that point and didn't actively defend the case, I think because they had become persuaded that it was a constitutional violation, so. - And the Attorney General actually outright specified that before the district court, the Governor said, I'm not gonna defend, but Jerry Brown said it is on constitution. - So the Governor then was Arnold Schwarzenegger, the Attorney General was Jerry Brown, who's now, currently the Governor. They would've been the two people to sort of righteously defend this. But when you said that the California Supreme Court in 2008, found that such discrimination violated the State Constitution before Prop 8, does that give them any reason not to defend Prop 8? Or do you think it was all kind of just political? - Well, I would say neither, I wouldn't put it quite that starkly. I mean, I think that as people who have the responsibility for making sure that our laws are fairly and properly implemented it's and for not incurring expense on behalf of the state, that's unnecessary. And for being able to guide the state and settle where it's appropriate, that it's part of the responsibility for executing the laws, deciding how to litigate and whether to forcefully advance certain arguments or not advance certain arguments. So I think it's, I think they acted appropriately in not taking an active role and there's sort of a, there's a political solution. If people don't like that which is to vote them out of office and in this election, everybody ran on the question of Prop 8 and whether they would defend it in court. And Meg Whitman said she would defend Prop 8 and she lost, Steve Cooley said he would defend Prop 8 and he lost. So there's been a democratic process. - [Sheila] People have spoken. - To the extent we can read those. - So we all vote for Prop 8, but then we'll vote for people that won't defend it. - That's right. That's right. - But it wasn't a new development in the federal court in the California Supreme Court after Prop 8 was adopted. The Attorney General agreed that it was unconstitutional and he litigated that position on behalf of the state even though the state was a defendant, they took that position. So this is something that has happened. Our laws presuppose that our constitution is superior both to statutes and to initiatives. And that the US Constitution is superior to any form of state law. So when you take an oath to uphold the laws, that includes upholding the constitution of the United States. - But when the initiative has amended the constitution. - The initiative only amended the California Constitution. It can't touch by itself, the US Constitution and that was the basis then for the federal district court lawsuit. The State leadership took the same position back in the 1960s when an initiative said, let's get rid of all the fair housing laws and encourage discrimination on the basis of race and housing. They not only did not defend that initiative, they attacked it as unconstitutional, under the US Constitution. - Right. So here we are, the district court has given such a wonderful opinion. The state officials don't wanna appeal it to the ninth circuit. So those people who put the initiative on the ballot file the appeal, then what happens at the ninth circuit? - So then what happens at the ninth circuit is a lot of briefing and a full arguments from both on the merits and on this question of standing. - Okay, let's talk about the question of standing. Can you explain either of you or both, what the heck is standing? - Yeah, it's the label given to a set of rules about who can come into a court and raise what kinds of arguments in what sorts of cases. So state courts have their own set of standing rules. The federal courts have their own set of standing rules. - And so you have to cross that threshold every time you file something in court? - Right, any time you file. And if you had, in this case, you had the plaintiff couples filed the lawsuit in the federal district court. They were denied marriage licenses because of the effect of Prop 8. So they had a clear, immediate, very serious harmful injury. And if their legal theory was right, a violation of their fundamental, constitutional rights. They clearly had standing to file that lawsuit. - What about the other guys in the district court? - Because they were only coming in as defendants to a case that was already properly there between the plaintiff couples and the state defendants, we didn't have to worry about their standing in the. - So it's looser in terms of who's going to answer a case. - It's who invokes the power of the federal courts has to meet this threshold standard, this test of standing. - And the initiative proponents in the district court, they were in the posture, as David was saying of intervening to defend it because the state officials weren't actively defending it. And so they said, hey, there's this initiative and it needs a defense. - And that was okay with the district court? - So that was okay with the district court, because there was a real case. There were people who were being denied marriage licenses, and there were, who needed to have some avenue to indicate their rights. And then there were, and so in the adversarial process, the district court would say, well, I want to hear both sides. And so if the state is going to take a step back, then, you know, you may be. - Well, let these go do it. - Yeah, you may present your case on why I should have pulled yours. - But it's different in the ninth circuit because having lost in the district court level, the proponents then wanted to file an appeal to the next level, probably hoping to get to the United States Supreme Court eventually. - [Laura] That's right. - So they file the appeal, which raises a new question of standing of what happened? - Cause typically if you think about it outside this kind of unique posture of constitutional law, if David and I had a contract dispute and we were in a district court and we had settled it and there was a final judgment, and let's say David had sued me. And I said, okay, I'll pay you. I'm allowed to settle my case and end it. I don't have any kind of obligation to appeal. And so if some third party says, hold on, I have an interest in your matter. I'm gonna appeal anyway, everybody would look at that and say, what are you talking about? This is a dispute between two parties and they can end it when they feel like it. So we're in a little bit different posture because of the public nature of this dispute. But that's essentially what it was, is that the state was willing to accept the judgment and say, Prop 8 is unconstitutional, we don't wanna enforce it. We're willing to live by this judgment that's been fully litigated. And then you have these proponents saying, hold on, you guys can't settle as between yourselves. We wanna keep it going. - And the fact that the proponents, the official sponsors of Prop 8 had been, had entered the case as these intervener defendants, that by itself isn't enough to guarantee that they have the kind of injury from the judgment, from the decision of the trial court that federal standing rules require. So whoever takes the appeal has to have an adequate what the court calls "injury". If it had been the state, the fact that their law was invalidated, would've been enough. They're not the state, they're this collection of private individuals. - Right. - And so, they have to convince the court and the ninth circuit court of appeals specifically said brief and address this question. Why do you have standing? What is the rules, the case law developing this notion of standing for the federal court says it has to be a concrete injury. It's not enough that you have an ideological interest in the subject. It's not enough that you passionately care about it. It's not enough that you think the decision is mistaken and that the government is therefore behaving unlawfully. If they follow that decision, you need some palpable injury to yourself. And just like the trial court found when it's struck down Prop 8, it's virtually impossible to articulate how anyone is harmed by letting same sex couples get married. How anyone would then be harmed personally, by letting Prop 8 be invalidated, be enjoined so that no one could enforce it. - It can't be that easy, can it David? Because otherwise the ninth circuit would've said already get outta here, which is not really what they did. So just to clarify, here's this case coming to the ninth circuit on appeal, on the merits, from the decision that the district court judge made. But before the court will even consider the merits, they could look at whether or not the people bringing the appeal, even have a right to bring the appeal. - Yes, and in fact, they have to look at it. They have to look at it because if they don't have standing, then there is no jurisdiction to look at the merits. - Now, before we talk about what the ninth circuit did with that question, what is the federal court generally, what kind of standards do they follow? Is there any precedent about people who brought an initiative, being able to litigate in a federal court, just on that basis? - We've got some indirect precedent. We don't have direct holdings from the Supreme Court on this, except for one short unexplained opinion with one sentence in the 1980s, the sponsors of a measure in Washington state, an initiative measure were in a case as defendants. It was just like this one, they were in a case as defendants, the state defendants lost. They decided not to appeal. The official sponsors wanted to appeal. They were allowed to, they tried to take this up after losing the court of appeal to the US Supreme Court. And the US Supreme Court said, we don't have jurisdiction because you don't have standing. - So the appellate court in that case did think they had standing or had decided to punt it maybe. - Yeah, I'm not sure right now, quite on the details, but what the Prop 8 proponents, the sponsors are trying to argue here is, well, that case is different because state law could give someone an interest in a case. And that then when you lose the decision would count as an injury for these federal standing rules. So there's this connection then. - They're arguing that they do have standing. - Yeah and so they're saying, look, there are lots of cases where ballot sponsors have been allowed in the California courts to defend the measures that they had sponsored. And they say, therefore, we should think that California law gives us a special interest different from the other 51 point, whatever percent of the voters it was, who also voted for Prop 8, that would let us have standing and so you should be able to hear the appeal back in the federal court. So that's the one and not very explained decision we have from the Supreme Court. We then get a more recent decision from a US Supreme Court case stemming from Arizona. - About which we've heard a lot lately. - Yes, they seem to have this knack for getting themselves into legal trouble. - Or into the headlines. - [David] At least that. - Yeah. - And in that case, there was a challenge brought in federal district court to Arizona's initiative adopted English only rule, and a state employee filed this lawsuit saying you're violating the US Constitution with this English only rule. The case got appealed up to the ninth circuit. The state defendants didn't want to appeal. So the official sponsors in Arizona did the ninth circuit, a panel of three judges, which is how they hear cases in the first instance, ruled and said, you guys do have standing. - You guys the proponents of the initiative. - You guys the proponents of the Arizona initiative have standing because you spent this money on this and you've made this effort to get this passed. And that makes you look kind and different than the other voters who voted in favor of it. They then took this up to the Supreme Court. Before the Supreme Court opinion came down, the state employee who started the lawsuit, went to another job. She left the government. So the Supreme Court said, this case is moot. You don't have the actual plaintiff anymore. She doesn't have this beef, but they went on to say more. They said, we have this very grave doubt that the ballot sponsors from Arizona actually had standing in federal courts. It's not consistent seemingly with our ordinary rules about the type of personal injury, as opposed to an ideological injury that you have to have. And so even we don't have to decide that today because the plaintiff is out of the case, but we seriously doubt that. Justice Ginsburg, one of the liberal Supreme Court justices. - We know about liberal with Ruth Bader Ginsburg. - We could go into that on another episode. - Okay. - But wrote an opinion for a unanimous Supreme Court calling into doubt the ninth circuit's theory that ballot sponsors have standing. - Well, it's an interesting question then, because from what I understand, you said was the ninth circuit, the very same federal appellate bench that's going to hear or is hearing the appeal, the Prop 8 appeal, which also includes Arizona and other states. - Two of the same judges. Judge Reinhardt and Judge Hawkins who are on the Proposition 8 panels were on the Arizona. - But that was an opinion, right? Was it reversed by the, we have graved outs language of the United States. - Yes, the Supreme Court unanimously had reversed them. And the other thing in addition. - So it's not precedent. - [David] They were vacated. - I see. - In addition to what David said, the Arizonans case had a lot of language too, that the ninth circuit should have certified various questions of state law to the Arizona Supreme Court to get their view. - The United States Supreme Court said they should have asked Arizona? - [Laura] Should have asked Arizona. - Under their own state law? - That's right. That's right. And so there was when so you've got two judges on the panel who were unanimously reversed in 1997 on a very similar question. message. - [Sheila] And given message about state law. - Yeah and a very detailed question that says, that went into a lot of explanation about why it's sort of better to decide things on state grounds rather than federal grounds, if you can. And when a state hasn't answered a question, you should look to the state. And so it's not that surprising that having that kind of an opinion, they would say, well, gee, this looks pretty similar. Why don't we do what the Supreme Court suggested? - So what did the ninth circuit do? Just to review, they have the merits of the case from the district court over here on this desk. They're not gonna talk about that yet because they're considering whether these initiative proponents have standing to even bring the appeal at all. If they don't, everything goes out and the federal district court would, what would happen if they didn't have standing? - Final judgment finding on the defendants in the case - Unless then they asked the US Supreme Court to reverse that standing decision from the ninth circuit. - Right and that would be likely, go ahead. - If it's based on state law, if the reason that there's no standing is because the state doesn't give standing or the state doesn't recognize. - Well, that's a second thought at the moment. Because I wanna get to that, let's say the ninth circuit hasn't gone to the state yet. Let' say. - Oh, if they haven't. - Let's say at the moment in time, cause we're, I'm trying to think chronologically. So the merits of the case are sitting on the side here waiting for the ninth circuit to look at them. And the ninth circuit says not very long ago. Okay, I think we have to look at standing first. They're thinking about what the Supreme Court said to them. They're thinking about Arizona. So what did they do next? - Right, so after that, they heard this argument in December, 2010 in the ninth circuit that addressed both the merits questions about due process. - So they argued and briefed the merit. Just in case they were gonna take it up. - Well, they assumed, I think they assumed that there was jurisdiction, and I mean, there is an appeal pending and they were directed to brief the things together so. - But they also took argument about standing. - Right and after hearing that, then right after the holidays, I think it was January 4th, the ninth circuit then issued an order and they said, we're not deciding this yet. We're going to ask the California Supreme Court respectfully to answer this question. What kind of interest, what kind of special distinctive interest does California give balance sponsors like in particular, these Prop 8 proponents, what authority are they given under state law to defend measures, to assert the interests of the state to assert their own interests? What kind of specific interest might they be given? - And you said there were some cases I can see why the ballot proponents wanna do this because there were some cases in California that seemed to give ballot proponents the ability to come into state court. - Well, California has much broader standing requirements than federal. If you contrast the two, I mean, they're quite stark. And the federal courts are constantly creating barriers to coming in and asserting rights. And the state courts have very open, you know, come in. If you have a dispute, we'll resolve it generally. I mean, there are limits, but in general it's been, the state courts have been much more open to conferring standing. So the fact that there have been state court cases where initial proponents have raised issues, doesn't really decide ultimately whether there's enough of an interest to meet the federal standard. - Well, I think our side was thinking, hmm, federal court, that's good. You know, limited standing. And so consequently, these guys won't get in. Although I think looking ahead, people thought, well, they'll probably certify it, given that direction from the Supreme Court, they'll probably. Now certifying it to the state doesn't mean the state would say, yes. - That's right. - We'd be happy to do it. They have to decide, right? - That's right and they've decided, no, we don't wanna decide in a variety of different cases over the years, but I think probably most people anticipated they would take this one because it's. - So just recently, the California Supreme Court said. - What they said, we will very brief order, but we will take your question. And here's the briefing schedule. And we will, we expect to have oral argument as early as September, 2011. So that's, doesn't sound very early to a lot of people, but is fairly early by their standards. - Yeah based on California State Court practice in the Supreme Court, they set an accelerated briefing schedule. So the briefing starts in March, 2011 and will be done by May, 2011, giving them time to analyze all the briefs, do their own research, start formulating provisional opinions is their typical practice in the California Supreme Court. So that they've got a good sense of where they think they're going to come out when they get to these oral argument probably in September. And then within 90 days after delivering or after hearing the argument, the California Supreme Court is supposed to deliver its opinion. So these certified questions from the ninth circuit court of appeals in the federal system to the California Supreme Court in recent years have tended to take from about a year to almost three years. So the fact that they're on track to have this wrapped up by January, 2012, puts you at sort of at one year and really the short end of that time cycle. - Now, have we already lost Justice Moreno? When is he retiring? - He, I think everybody expects he won't be there by this at the September, 2011. - So we've got a new Chief Justice and we're down one Justice. It's going to be a very interesting consideration. What do you think? - Well, Jerry Brown will appoint somebody, so hopefully he'll make a good appointment. And the court will, everyone on the court will hear the arguments made. And I don't think that we can, you know, anything about what's, other cases and how they decided the Prop 8 case wouldn't necessarily foretell where they're gonna come down on this question. - So is it your guess that they might say initiative sponsors would have standing to appeal under state law? - Well, the part of the question is not just standing to appeal, it's really who do they get to represent, who do initiative sponsors get to represent, whose interests can they litigate on behalf of. - And you talked about an injury too. That must be the element in the state as well, right for coming into court? - Yeah, there were really sort of two questions or two bases of standing that the ninth circuit asked about. And on the federal standing question, there's one question they ask, which is what's your injury and not just any injury, but what's your particularized injury that goes beyond the public at large. So whatever kind of amorphous qualms the proponents have about same sex marriage, I think most people would say, well, you might not like it, but that's an injury. The extent that's an injury, that's not particularized as to you. And it's unclear what other injury they may have. The other question was, does California somehow put you as the proponents in the place of the Attorney General or in the place of the Governor to actually be the state to defend. And that would be, mean that's kind of a really broad notion that would give initiative proponents a huge, you know, power well beyond what legislators have and what the Governor have and what they have term limits and can't defend. They can't take actions forever. So that would be a really broad rule. - And they're embracing that. They're saying, yes, that's right. And they're saying, because the initiative power that the people have under the California's Constitution is so important, which state cases have repeatedly said, it was adopted during the progressive era to give the people a check against legislators that might have been under undo influence of corporate interests, the railroad, right. Back in the era of the Robert Barrons. And so they say, so it's entirely appropriate that we would have this, but the thing is, the Governor and the Attorney General are elected by the entire people of the state. So when they represent the state interest, they have a democratic pedigree for that claim. These ballot proponents do not. They were not adopted by the voters as representing our interests. Their substantive proposal, Prop 8 was adopted. Some ballot initiatives include a clause that says, and here, if this is approved, the ballot proponents will have the authority to defend this measure in court. They didn't choose to include such a provision in Prop 8. - Well, that could be very telling because sometimes although silence can not necessarily be taken as the opposite of saying something in the law, as we know still that could be very telling, they had the opportunity to put in such a clause and did not. - Right and the rest of our laws say, the Governor is the Supreme executive and the Attorney General is the person who defends the State in court. So it's not like this is a power that hasn't been conferred on anybody. It is specifically conferred and it's conferred on the people who decided, you know, what, it's in the best interest of California not to keep fighting this. - Is there kind of a general notion though, in terms of what you were talking about, that somebody should be able to be serving as the Attorney General when the Attorney General won't, cause we have lots of different arenas where we have the ability of the public to serve as an Attorney General when these things are not being prosecuted or something, you know, is just being ignored by those who are elected. - Right, I think that that is their argument. And you know, I think one counter to that is, as we were talking about before, you know, what if you don't like what your elected officials have done, then go out and campaign against them. You have the recall power, recall them if you think they've done, if they've defeated your initiative. And so it's not that this would be the end of the process. This is sort of one step in the process, but that's essentially what they're saying. - Statutory law, we often put in the ability of someone to stand in the place of an Attorney General, if they don't do it. But we had to specifically say that. To your point about what was said in the initiative and was not said in Prop 8 could be very telling. So do you have any guesses about how the Supreme Court might go? We don't know who the seventh Justice is. We don't know much about the new Chief Justice, but. - Well, I don't like to guess. I think they'll look at it really fairly and that I think if anyone does look at it fairly, the consequences of having unelected officials for unknown periods of time taking positions to the state itself doesn't wanna take and preventing the state from settling litigation, it's a very troubling idea that, you know, random people think of the initiative we had on the ballot about the environment. You've got principally out of state interests who wanna take away environmental protections that the State thinks are appropriate. Let's say it had passed and there were a federal ruling that this violated some kind of federal environmental protection. And the elected officials said we can live with that cause we think that this was not an appropriate, it's bad for the state economy. It's bad as a matter of the environment, its bad for all these other reasons, we were not gonna keep it up. So the idea that somebody else, because they had a million dollars and were able to get something on the ballot and get people to adopt it, can defeat that. I don't know where that power, it's not clear where that power really comes from. - And they also would be doing so at no cost themselves, right? So there's a reputational cost to an elected statewide official like the Governor or the Attorney General who makes a political decision in full view of the public who elected him or her to not defend something or to not appeal something. There is the prospect of removal from office. This is going to live with them, right? Gray Davis has been recalled. He can't ever ignore that. It will tail him wherever he goes. These elect, these ballot, proponents, the Prop 8 sponsors, they're not elected officials. No one has put them in charge of anything. They would suffer no consequences. They can't be recalled. They can't be voted out of office. - But it's an interesting, just not exactly devil's advocate, but to see, to unpack this a little bit. When the initiative process first started, as you pointed out, it was about the people taking some power over a corrupt legislature. In the past couple of decades however, that's not been the case. I'm not just talking about the legislature, which of course I would have to say was not corrupt. - [Laura] They weren't talking about you Sheila. - But really about who brings initiatives because what happens now of course, is that unless you're a billionaire or multimillionaire or you've got access to that, you cannot even get the signatures anymore. You must pay signature gatherers. And so, so many of the initiatives that have gone on the ballot have really not come up from, you know, the hearts of the people, et cetera. However, when they do get on the ballot and the people get an opportunity to vote and they vote, then you could probably easily argue that they did the people a favor. They gave them just as Jerry Brown is arguing about the tax extension. They gave the people the ability to vote on this, which they would not have had and to overturn the court's decision about this and real people went out and real people voted. I mean, there was a lot of money to convince the real people to vote and from my point of view, a lot of lies in their ads, but they voted. So we've got sort of a conflict here, bunch of rich guys that don't have a personal interest, bunch of voters who might feel they do. But as you said, not a real injury, not a particular injury. Voters can't just bring a case, because they voted for something, right? - Right, I mean, that might be an argument then to say that in a different situation where an initiative does authorize someone to step into the shoes of the Attorney General and the Governor to take over. - [Sheila] Specifically in its language as that. - Right, then maybe we have to bear the costs that Laura's talking about in order to preserve an avenue for this, for the people who try to preserve a policy that they are trying to adopt. But, when as here, there was at least that potential avenue and it hasn't been taken advantage of then I don't think you can say that the system was structured to prevent the people from doing something. It's the people who are now trying to wrap themselves in the people of California's authority. Didn't take a step that they could have. We would've seen a different fight if you had said William Kamm is going to be authorized to represent all of us. - And I think, you know one thing, people like to vote on things, but in general, the initiative processes had really very harmful consequences for California because of how easy it is to qualify things for the ballot. I mean, we've just overturned the two thirds majority to pass a budget as you know, but that's stymied the government for years and years. - Stymies us because you need two thirds to raise a tax. - That's right, you need two thirds to raise a tax. - And now to raise a fee because of the other initiative that came in under the radar at the same time. - That's right and you have designated allocations of how the money has to be spent and so. And the people, you know, there is a sense that in addition to having initiative process, we need to have, we have a legislature and we're supposed to have a form of government that in which we represent elected officials to represent us and they have staff and they can study various issues and don't necessarily make decisions based on soundbite, misleading television ads. - And they have to have conversations with their colleagues and engage in that deliberative process. - Right so there is a real tension, but it's not a bad thing for the tension to end up with the power being in elected officials who are representatives. - So as a last question, because you won't believe this, but we've only got three minutes left in the hour. I know it goes fast, doesn't it? Does the, well, the California Supreme Court consider whether the initiative proponents are injured in some way, if they don't get to do this. I mean, does the notion of injury play into that or is it simply, they are given some kind of rights by something? - You know, I expect it's more likely to turn on the procedural nature of what their role is in qualifying an initiative for the ballot, rather than something about our marriages affecting them. That more likely. If there is an injury and they find an injury, that's more likely to be the source of it. - Yeah, so you phrased it in terms of rights. You could think about authority or authorization. What sorts of power are they given as a matter of state law? - Well, it's interesting what interest you would have bringing in an initiative to ballot. And I guess that's what we're going to see by the end of the year or by theoretically, September. - I mean, without a vote of the people specifically saying, we are putting our trust in you as individuals, they're like a committee or a set of lobbyists who draft a proposal for the legislature to consider. The people step into the shoes of the legislature within initiative. They're the ones who vote on this. The people who suggested it, they're no one. - But the voters don't have the right to appeal either because all they've done is vote. - Right and legislatures typically don't unless they take a vote to authorize someone to defend a lawsuit. - Well, I know this all sounds a little sort of complicated and arcane, but I thank you both very much for being on the show. And I look forward to, you know, we're gonna keep doing iterations of this as California Supreme Court says what they're doing, and then we go back to the ninth circuit. It may be. So we'll see. So thank you both very much. Thank you for being with us, these rules affect your life. So being informed is a good thing. Get used to it. (upbeat music)