Courts free to decide Prop. 8 issue anew if high court case dismissed

In its order agreeing to review the federal court litigation surrounding California's limiting of marriage to opposite-sex couples (Proposition 8), the U.S. Supreme Court asked the parties to brief the question of whether the petitioners - who are the Prop. 8's proponents, not the California officials who were sued in federal district court - have standing under Article III, Section 2 of the U.S. Constitution.

That question was posed because at trial California's then-governor (Arnold Schwarzenegger) and then-attorney general (Jerry Brown) refused to defend Prop. 8, and sided with the plaintiffs. As a result, Prop. 8's proponents were allowed to intervene and present evidence. On appeal to the 9th U.S. Circuit Court of Appeals, current Gov. Jerry Brown and current Attorney General Kamala Harris again argued that Prop. 8 is unconstitutional, and also that its proponents do not have Article III standing.

At the request of the 9th Circuit, the state Supreme Court ruled that, under California law, proponents of popular initiatives have standing to defend those initiatives. Perry v. Brown, 52 Cal. 4th 1116 (2011). The 9th Circuit then held: "The exclusive basis of our holding that Proponents possess Article III standing is their authority to assert the interests of the State of California, rather than any authority that they might have to assert particularized interests of their own." Perry v. Brown, 671 F.3d 1052, 1074 (9th Cir. 2012).

From this, Dean Erwin Chemerinsky, of UC Irvine School of Law, has suggested that, if the U.S. Supreme Court decides that Prop. 8's proponents lack Article III standing, then the 9th Circuit's decision affirming Judge Vaughn Walker's trial court judgment would be vacated, meaning his opinion striking down Prop. 8 and enjoining its enforcement would stand. But if it is upheld at all, would Judge Walker's judgment enjoin the enforcement of Prop. 8 for anyone other than the two same-sex couples who brought the challenge to Prop. 8? Probably not.

If Prop. 8's proponents are found to lack Article III standing because no one with such standing opposed the plaintiffs' claims, Judge Walker's judgment would become a "default" judgment from a federal trial court, with no precedential effect in future cases. It would only enjoin the enforcement of Prop. 8 against the named plaintiffs, and would have no collateral estoppel effect on the state's enforcement of Prop. 8 as to any other same-sex couple, thus allowing any other federal or state trial judge to decide the issue of its constitutionality anew. See United States v. Mendoza, 464 U.S. 154, 162 (1984) (nonmutual offensive collateral estoppel does not apply against the government).

However, another issue related to Article III standing could lead to the case being dismissed: a finding that it does not satisfy the "case or controversy" requirement of Article III. See Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11 (2004) (the requirement for Article III standing "enforces the Constitution's case-or-controversy requirement."). That means the two sides must have a legitimate controversy which they both seek to litigate. Moore v. Charlotte-Mecklenberg Bd. of Educ., 402 U.S. 47, 48 (1971) (where both the plaintiff and defendant seek the same relief, "[t]here is ... no case or controversy within the meaning of Art. III of the Constitution"); National Assn. for Advancement of Colored People v. State of California, 511 F. Supp. 1244, 1263 (E.D. Cal. 1981) (where requisite legal adversity does not exist between plaintiffs and defendants, there is no "case or controversy"); League of Women Voters v. F.C.C., 489 F. Supp. 517, 520 (C.D. Cal. 1980) ("Where it is clear that both sides desire the same result, the requisite adversariness is lacking and the action is not a case or controversy").

Here, the two sides with the potential for Article III standing would have been the plaintiffs and the state officials, but the state officials sought the same relief as the plaintiffs, so there is no real "case or controversy." See Flast v. Cohen, 392 U.S. 83, 100 (1968) ("federal courts will not entertain friendly suits, ... or those which are feigned or collusive in nature."); Muskrat v. United States, 219 U.S. 346, 361 (1911) (a lawsuit where the government "has no interest adverse to the claimants" is not a "case or controversy.").

In deciding that Prop. 8's proponents have standing under state law to defend it, state Supreme Court Justice Joyce Kennard observed: "[T]he validity of a duly enacted state initiative measure (particularly one that amends the state Constitution, as Proposition 8 does) is a matter of great public importance that can be determined only through judicial proceedings. Such proceedings are most likely to produce a result that will be reliable, and that the public will find acceptable, if the issue is thoroughly and vigorously litigated. ... The judicial system is designed to operate through public proceedings in which adversaries litigate factual and legal issues thoroughly and vigorously. When an initiative measure is challenged in court, the integrity and effectiveness of the judicial process require that a competent and spirited defense be presented." Perry v. Brown, 52 Cal. 4th at 1168-70 (Kennard, J. concurring).

Thus, because they could have defended it in state court, Prop. 8's opponents might have pursued their federal constitutional challenge there and received a precedential decision on the merits which could ultimately be reviewed by the U.S. Supreme Court. ASARCO, Inc. v. Kadish, 490 U.S. 605, 623-24 (1989).

However, since federal courts have more limited jurisdiction than state courts, in federal court both sides must have both Article III standing and be engaged in a true adversary proceeding for a valid judgment to be entered. Therefore, if the U.S. Supreme Court determines that Prop. 8's proponents lack Article III standing, the state officers' siding with the plaintiffs will likely result in the case being dismissed. Such an outcome would be consistent with Article III's placing "constitutional and prudential limits [on] the powers of an unelected, unrepresentative [federal] judiciary in our kind of government." Elk Grove Unified Sch. Dist.v. Newdow, 542 U.S. at 11.

Kris Whitten is a retired California deputy attorney general.