Prop 8 Question

Thu Jan 21 12:04:28 PST 2010

Not quite an answer to the question asked, but in the Supreme Court, not infrequently the respondent appears but refuses to defend the judgment below.  The Court's practice in such cases is to appoint an amicus to appear and defend the judgment below.  This happened as recently as Tuesday, when the Court decided Kucana v. Holder, a case in which the government was unwilling to defend the judgment of the court of appeals.  Thus, the fact that no party to an appeal is willing to defend a judgment is not thought to be a bar to justiciability.

Larry Rosenthal
Chapman University School of Law

________________________________

From: conlawprof-bounces at lists.ucla.edu on behalf of Paul Finkelman
Sent: Thu 1/21/2010 10:34 AM
To: Jonathan Adler; paul.finkelman at yahoo.com; conlawprof at lists.ucla.edu
Subject: Re: Prop 8 Question

I believe Georgia refused to appear in Cherokee Nation v. Ga and Worcester v. Ga.

Anyone know when the last time a state (or other party) would not appear?

----
Paul Finkelman
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)

paul.finkelman at albanylaw.edu

www.paulfinkelman.com <http://www.paulfinkelman.com/>  

________________________________

From: Jonathan Adler <jha5 at case.edu>
To: "paul.finkelman at yahoo.com" <PAUL.FINKELMAN at YAHOO.COM>
Sent: Thu, January 21, 2010 11:27:48 AM
Subject: RE: Prop 8 Question

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<mailto:jha5 at case.edu>
http://www.jhadler.net <http://www.jhadler.net/> 
SSRN: http://ssrn.com/author=183995

From: conlawprof-bounces at lists.ucla.edu<mailto:conlawprof-bounces at lists.ucla.edu> [mailto: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<mailto:dcruz at law.usc.edu>
Cc: mtushnet at law.harvard.edu<mailto:mtushnet at law.harvard.edu>; conlawprof at lists.ucla.edu<mailto: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<mailto: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<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<mailto:dcruz at law.usc.edu>
Cc: mtushnet at law.harvard.edu<mailto:mtushnet at law.harvard.edu>; conlawprof at lists.ucla.edu<mailto: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<mailto:conlawprof-bounces at lists.ucla.edu> [conlawprof-bounces at lists.ucla.edu<mailto:conlawprof-bounces at lists.ucla.edu>] On Behalf Of Janet Alexander [jca at stanford.edu<mailto:jca at stanford.edu>]
Sent: Wednesday, January 20, 2010 8:29 PM
To: Howard Wasserman; Eric Segall; dcruz at law.usc.edu<mailto:dcruz at law.usc.edu>
Cc: mtushnet at law.harvard.edu<mailto:mtushnet at law.harvard.edu>; conlawprof at lists.ucla.edu<mailto: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<mailto: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<mailto:conlawprof-bounces at lists.ucla.edu>
>[conlawprof-bounces at lists.ucla.edu<mailto:conlawprof-bounces at lists.ucla.edu>] On Behalf Of Eric Segall [esegall at gsu.edu<mailto:esegall at gsu.edu>]
>Sent: Wednesday, January 20, 2010 10:50 AM
>To: dcruz at law.usc.edu<mailto:dcruz at law.usc.edu>
>Cc: mtushnet at law.harvard.edu<mailto:mtushnet at law.harvard.edu>; conlawprof at lists.ucla.edu<mailto:conlawprof at lists.ucla.edu>
>Subject: Re: Prop 8 Question
>
>And that satisifes Article III?
>
> >>> David Cruz <dcruz at law.usc.edu<mailto: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<mailto: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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