With the panel judges on the Prop 8 appeal so clearly focused in on the question of standing, the San Francisco City Attorney’s office has brought to their attention a new ruling on the issue.
It’s part of the effort by that office, a long-time advocate for gay marriage and an official intervenor in the Perry v. Schwarzenegger case, to persuade the Ninth Circuit U.S. Court of Appeals that anti-gay marriage forces don’t have standing to appeal the district court ruling render the voter-approved ban unconstitutional. A ruling dismissing the appeal for lack of standing is widely thought to be a way to more quickly end the litigation and open up same-sex marriage again in the state.
A Dec. 20 Washington D.C. district court ruling held that proponents of a referendum in an voting case lacked Article III standing to appeal an action by the U.S. attorney general. Therese Stewart, chief deputy city attorney, told the Ninth Circuit U.S. Court of Appeals that the ruling in LaRoque v. Holder “offers a thorough discussion of referendum/initiative proponent standing” and rejects the Prop 8 proponents’ argument that they have standing as quasi-legislators.
The Ninth Circuit panel, comprised of Michael Daly Hawkins, Stephen Reinhardt and N. Randy Smith, heard oral arguments on Dec. 6. The first hour of the two-hour arguments focused on standing. Since California’s governor and attorney general had declined to defend the ban in courts, proponents of the measure have fought to preserve it.
Reinhardt, the most liberal of the three judges, repeatedly suggested that the court could certify a question to the California Supreme Court on whether proponents of an initiative have standing to defend a ballot measure when the state's attorney general won't.
That would likely cause a months-long delay, and David Boies, the Boies, Schiller and Flexner attorney representing the Perry plaintiffs argued that a trip to the state court was unnecessary, that regardless of what it said, the appellants must have a personal, concrete and particularized injury.
Of course, the LaRoque opinion is not binding on the Ninth Circuit. The court can consider it for “whatever persuasive authority the court finds in it,” said UC-Irvine law school Dean Erwin Chemerinsky said.
The official proponents have not responded to the city’s Dec. 28 filing. A Ninth Circuit opinion could be months away.