November 17, 2011

California Supreme Court rules that Prop 8 proponents have standing under California law to litigate the ballot measure’s constitutionality

The Supreme Court issued its decision in Perry v. Brown, S189476, today, answering the Ninth Circuit’s certified question. As we anticipated, the Court, in an opinion authored by the Chief Justice, held the proponents of Prop 8 do have standing under California law to litigate the ballot measure’s constitutionality: “In a postelection challenge to a voter-approved initiative measure, the official proponents of the initiative are authorized under California law to appear and assert the state’s interest in the initiative’s validity and to appeal a judgment invalidating the measure when the public officials who ordinarily defend the measure or appeal such a judgment decline to do so.” (Typed opn., 5.) As we noted here, the Court could have answered the question more quickly, but today’s opinion indicates the Court wished to take this opportunity “fully to explain the basis upon which an official initiative proponent’s ability to participate as a party in such litigation rests.” (Typed opn., 3.)

The case will now move forward in the Ninth Circuit, where that court will have to decide whether the Prop 8 proponents’ standing under California law is sufficient to confer standing within the meaning of Article III of the federal constitution. (See Lujan v. Defenders of Wildlife (1992) 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 [“injury in fact” for purposes of Article III standing requires the “invasion of a legally protected interest which is concrete and particularized”].)

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