January 4, 2011

Prop. 8 case: Ninth Circuit asks California Supreme Court for opinion

When the Ninth Circuit Court of Appeals heard oral argument in the appeal from the district court decision holding that Prop. 8–the anti-same-sex-marriage initiative–violates the United States Constitution, we noted the possibility that the Ninth Circuit could ask the California Supreme Court to answer a question of state law relevant to the Ninth Circuit’s determination whether the Prop. 8 proponents have standing to appeal when California’s Governor and Attorney General refused to appeal. Today, the Ninth Circuit did just that.

In its order, the court asks the Supreme Court to answer the question: “Whether under Article II, Section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure possess either a particularized interest in the initiative’s validity or the authority to assert the State’s interest in the initiative’s validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so.” The Ninth Circuit says that “it is not clear whether [the governor] may, consistent with the California Constitution, achieve through a refusal to litigate what he may not do directly: effectively veto the initiative by refusing to defend it or appeal a judgment invalidating it, if no one else – including the initiative’s proponents – is qualified to do so.”

As we’ve mentioned, the Supreme Court is not obligated to answer questions posed by the Ninth Circuit, but it does so more often than not. Under rule 8.548 of the California Rules of Court, “the Supreme Court may consider whether resolution of the question is necessary to secure uniformity of decision or to settle an important question of law, and any other factor the court deems appropriate.”

This would seem like a tough request for the Supreme Court to turn down. However, one reason it might do so is if it thinks California law on the subject is already clear enough. The Ninth Circuit order cites a California Court of Appeal opinion and relevant dictum in a California Supreme Court opinion, but states that only a direct holding from the state’s high court will do. The Supreme Court might disagree.

Unless the Supreme Court expedites the process, it might be a number of weeks before we know whether the court will even answer the question posed. Rule 8.548 doesn’t provide a deadline for the court to decide, but the rule does allow 20 days for “any party or other person or entity” to send a letter supporting or opposing the Ninth Circuit’s request and then another 10 days for any party to reply to such a letter.

In a related matter, the Supreme Court last September summarily denied a writ petition that sought to compel Governor Schwarzenegger or Attorney General Brown to defend Prop. 8 before the Ninth Circuit. That summary denial has no precedential effect.

Noting the previous high-profile Supreme Court opinions on same-sex marriage, the Ninth Circuit’s order contains the understatement that the appeal before the Ninth Circuit “concerns a subject that is familiar to the Supreme Court of California.” Whether the Supreme Court agrees to answer the Ninth Circuit’s question will determine if familiarity breeds contempt.

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