Prop 8 Question

Thu Jan 21 08:16:28 PST 2010

Cases in which one side refused to appear or defend its position are
unusual, but not unheard of.  The state of Georgia did not make an
appearance in *Chisholm v. Georgia*, Madison did not make an
appearance in *Marbury
v. Madison*, and Miller did not defend himself in *U.S. v. Miller*.  I would
assume there are others.

JHA

------
Jonathan H. Adler
Professor of Law
Director, Center for Business Law & Regulation
Case Western Reserve University School of Law
11075 East Boulevard
Cleveland, OH 44106
ph) 216-368-2535
fax) 216-368-2086
cell) 202-255-3012
jha5 at case.edu
http://www.jhadler.net
SSRN: http://ssrn.com/author=183995

*From:* conlawprof-bounces at lists.ucla.edu [mailto:
conlawprof-bounces at lists.ucla.edu] *On Behalf Of *Edward A Hartnett
*Sent:* Thursday, January 21, 2010 9:07 AM
*To:* 'Janet Alexander'; Howard Wasserman; Eric Segall; dcruz at law.usc.edu
*Cc:* mtushnet at law.harvard.edu; conlawprof at lists.ucla.edu
*Subject:* RE: Prop 8 Question

And I agree with Janet that Article III should not be interpreted to
constitutionally bar someone claiming a federal right – as the plaintiffs in
the Prop 8 litigation are claiming – from both 1) receiving their claimed
right and 2) a federal forum in which to litigate that claimed right.

I reiterate that I have not followed the details of the Prop 8 litigation
closely enough to have a view of the justiciability issues in that case.
Based on a quick look at the complaint this morning, some local officials
are joined as defendants.   Have they, too, declined to defend the
constitutionality of their actions?  If they are defending, then there is a
genuine case, regardless of the presence of intervening defendants.  And I
would be astounded if, in as politically diverse a state as California, no
local official could be found who would be willing to defend.    Did the
plaintiffs chose to sue only those defendants who would not defend?  Or is
there something in CA law that somehow prohibits local officials from
separately defending their actions?

Edward A. Hartnett

Richard J. Hughes Professor

     for Constitutional and Public Law and Service

edward.hartnett at shu.edu

Phone: 973-642-8842

Fax:  973-642-8546

SSRN author page: http://ssrn.com/author=253335

*From:* Janet Alexander [mailto:jca at stanford.edu]
*Sent:* Wednesday, January 20, 2010 10:16 PM
*To:* Edward A Hartnett; Howard Wasserman; Eric Segall; dcruz at law.usc.edu
*Cc:* mtushnet at law.harvard.edu; conlawprof at lists.ucla.edu
*Subject:* RE: Prop 8 Question

I'd agree with Ed's response (why do we need federal courts to intervene if
state officials are not enforcing an arguably unconstitutional state law)
but for the fact that in this case, denying standing (and concluding that
therefore there is no Art III case or controversy) would also deny the *
plaintiffs'* asserted federal rights.  What is the consequence of the
state's refusal to defend Prop 8 in court?  It is NOT that same-sex
marriages can be performed.  Rather, no city is permitting same-sex
marriages, and if any were to be performed there would be a serious question
of their legality and of whether the persons so married would have
enforceable legal rights.  If the refusal of the state to defend the
amendment meant that a court could not take jurisdiction of the case, and
therefore could not decide the constitutionality of the amendment, then by
"helping," the state officials would have assured that Prop. 8 could never
be struck down as unconstitutional, and would therefore continue to limit
the civil rights of gay and lesbian couples.

At 06:42 PM 1/20/2010, Edward A Hartnett wrote:

I think it is important to separate several issues that seem to me are being
conflated in this discussion:

1) standing to bring a case as a plaintiff

2) standing to defend a case as a defendant

3) standing to appeal (as in Diamond)

and

4) feigned or collusive cases, where the parties are not truly adverse. See,
e.g., US v. Johnson, 319 US 302 (1943), where intervention of an adverse
party did not cure the lack of true adversariness between the original
plaintiff and defendant.

I don't yet have views on these questions in the Prop 8 litigation, in part
because I haven't followed it closely enought to know precisely what relief
is being sought from which defendants, and precisely who would be bound by
the judgment sought.

As for Janet Alexander's question:  While I have lots of problems with
current standing doctrine, see 97 Mich 2239 (1999), I am not troubled at all
by the idea that no one could get to federal court to complain about the
failure of state officials to enforce state law -- even if the basis for the
state officials' decision was their view of federal law.

Suppose a governor were to commute all death sentences, including those
imposed pursuant to a state referendum, believing -- contrary to SCOTUS
precedent -- that the death penalty violates the 8th amendment.  It doesn't
bother me that the proponents of the death penalty could not get a federal
court to review that decision.

Or suppose the people of California were to legalize gay marriage by
referendum, believing that the equal protection clause of the 14th amendment
required that action.  Again, it doesn't bother me that those who think that
view of the 14th amendment to be incorrect could not get a federal court to
decide that substantial federal constitutional question.

Or suppose, pre-Lawrence, that a state AG were to refuse to enforce a state
law (even one enacted by referendum) punishing same-sex sodomy, believeing
that Bowers was an incorrect interpretation of the 14th amendment.  Yet
again, it doesn't bother me that this intrepretation of federal
constitutional law could not be challenged in a federal court.

It seems to me to be perfectly acceptable to have the refusal of a state
official to carry out state law ultimately  judged by the state's legal and
political processes.  Where does a party get a federal right to have a state
official comply with state law?

What would be more troubling, I think, would be for state officials to
collude to produce a federal court judgment that would tend to tie the hands
of their successors.  Cf. Horne v. Flores, 129 S.Ct. 2579 (2009) ("Scholars
have noted that public officials sometimes consent to, or refrain from
vigorously opposing, decrees that go well beyond what is required by federal
law. See, e.g., McConnell, Why Hold Elections? Using Consent Decrees to
Insulate Policies from Political Change, 1987 U. Chi. Legal Forum 295, 317
(noting that government officials may try to use consent decrees to “block
ordinary avenues of political change” or to “sidestep political
constraints”); Horowitz, Decreeing Organizational Change: Judicial
Supervision of Public Institutions, 1983 Duke L.J. 1265, 1294-1295 (“Nominal
defendants [in institutional reform cases] are sometimes happy to be sued
and happier still to lose”); R. Sandler & D. Schoenbrod, Democracy by
Decree: What Happens When Courts Run Government 170 (2003) (“Government
officials, who always operate under fiscal and political constraints,
‘frequently win by losing’ ” in institutional reform litigation)).

Ed Hartnett
Seton Hall

________________________________________
From: conlawprof-bounces at lists.ucla.edu [conlawprof-bounces at lists.ucla.edu]
On Behalf Of Janet Alexander [jca at stanford.edu]
Sent: Wednesday, January 20, 2010 8:29 PM
To: Howard Wasserman; Eric Segall; dcruz at law.usc.edu
Cc: mtushnet at law.harvard.edu; conlawprof at lists.ucla.edu
Subject: RE: Prop 8 Question

Contemplating what could happen if the proponent/intervenors were
held not to have standing suggests what is wrong about the Court's
current restrictive standing doctrine. Is it really conceivable that
the voters could pass an initiative barring same-sex marriage, a
same-sex couple who want to marry sues to challenge the law on
federal constitutional grounds, state officials decline to defend the
law (and perhaps announce that they will recognize a de facto local
option to recognize same-sex marriages), and no one can engage the
federal courts to decide a substantial constitutional question
because those who oppose same-sex marriage have only a generalized
grievance?

At 11:41 AM 1/20/2010, Howard Wasserman wrote:
>Probably because it was passed via popular democratic processes, so
>the back-up defender of the law is the private organization(s) that
>worked to enact it. It does not seem (to me) different than granting
>standing to members of the legislature to defend a piece of enacted
>legislation that the executive refused to defend.
>
>
>Howard M. Wasserman
>Associate Professor of Law
>FIU College of Law
>University Park, RDB 2065
>Miami, Florida  33199
>(305) 348-7482
>(786) 417-2433
>howard.wasserman at fiu.edu
>Faculty Page: http://law.fiu.edu/faculty/faculty_wasserman.htm
> http://ssrn.com/author_id=283130
>________________________________________
>From: conlawprof-bounces at lists.ucla.edu
>[conlawprof-bounces at lists.ucla.edu] On Behalf Of Eric Segall [
esegall at gsu.edu]
>Sent: Wednesday, January 20, 2010 10:50 AM
>To: dcruz at law.usc.edu
>Cc: mtushnet at law.harvard.edu; conlawprof at lists.ucla.edu
>Subject: Re: Prop 8 Question
>
>And that satisifes Article III?
>
> >>> David Cruz <dcruz at law.usc.edu> 01/20/10 10:05 AM >>>
>The official ballot proponents of Prop 8 were granted standing to
>intervene as defendants.
>
>David B. Cruz
>Professor of Law
>University of Southern California Gould School of Law
>Los Angeles, CA 90089-0071
>U.S.A.
>
>On Jan 20, 2010, at 6:48 AM, "Eric Segall" <esegall at gsu.edu> wrote:
>
> > I am guessing the answer is obvious but can someone tell me how
> > there is federal jurisdiction over this case given that the State of
> > California is not defending the validity of Prop 8. Could lobbyists
> > defend an Act of Congress that the DOJ refused to defend?
> >
> > Thanks,
> >
> > Eric
> > _______________________________________________
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