In 2004 Chris Geider and friends began De Novo as law students, which soon received much positive press.As of 2010, I was the last (extremely inactive) administrator left, and found that I needed to move it to a different platform to keep it operational. Thus, this is my attempt to revive this blog.
Given my line of work, there is no better way to begin than by talking about the Prop 8 arguments today before the Ninth Circuit. As I explain in an editorial (followup here) the CA governor and attorney general are not defending/appealing Prop 8. Do the proponents of Prop 8, a Deputy County Clerk, and a Board of Supervisors have standing to do so?
Supreme Court precedent is a bit murky as to the proponents of Prop 8. In a previous case, Karcher, the Supreme Court found that legislators *do* have standing with certain state court provisions conferring standing on them. In a later case, the Court expressed "grave doubts" about private citizens being able to enforce such measures.Ultimately, it will be hard for Prop 8 proponents to prevail - they perhaps had an interest in defending the Proposition as validly enacted law, but after succeeding in that, it must falls to those charged by the state to defend the law to do so - whether legislators as in Karcher, or the AG.
Imperial County presents a more interesting question . The deputy clerk claimed standing because she had to issue licenses, and was as such bound by Judge Walker's injunction (at oral arguments, the judges - Judge Hawkins especially - made much of the fact that the clerk herself had chosen to stay silent). Indeed, Judge Walker had said that the various county clerks had no discretion to "disregard" the defendants' (i.e. inter alia, the governor and AG's) direction.
David Boies first distinguished the governor/AG's obligation to follow the injunction from the clerk's obligation to follow the governor/AG's direction. In other words, *she* could not be held in contempt by the court for disobeying the order itself, but could be brought to account by the governor/AG in state proceedings. Thus the injunction did not affect her directly. Boies sidestepped a question from Judge Reinhardt as to whether this authority would have allowed the AG/governor to simply direct the clerk to ignore Prop 8, obviating the need for all this pesky litigation, noting that the AG/governor had never so directed. Imho, he should have responded by saying that that authority absolutely existed - that the deputy clerk would have had to obey the AG/governor, and that the AG/governor would have to brought to task by a separate lawsuit, similar to one in which the Pacific Legal Foundation, unsuccessfully tried to force AG Jerry Brown to defend Prop 8.
The issue may not be quite as clear cut, though I think, ultimately, there is no standing. First, Judge Walker's prohibited clerks from disregarding instructions by those "bound" by his injunction. Yet, arguably, he was simply describing state law - indeed, his sentence structure suggests that only the instructors and *not* the instructees, i.e., the "clerks," are "bound" by the injunction. Thus, additionally, while his order extended to those under the "control and supervision" of the defendants, it would seem that he meant "direct" control and supervision.
Yet, even if one concedes the point above, the clerk may still argue that her duty flows from the injunction, which forces the AG/governor to give her certain instructions.While this appears to violate the direct injury (and relatedly, the causation) requirement of standing, it seems that conservative members of the Court are willing to endow the principles of direct injury and causation with substantial flexibility when interests to which they are sympathetic are at stake.
Relatedly (perhaps) Boies also explained that the deputy clerk's was purely ministerial (relying in part on a case prohibiting Mayor Newsom from issuing marriage licenses). The distinction is a cloudy one, and may be certified to the California Supreme Court.
Finally, the issue of the Board of Supervisors' standing to intervene never really came up in the arguments, nor did I see a brief responding to the argument. The counsel for the Board notes in their brief that the City of SF had been allowed to intervene to represent a governmental interest argument - so why not them? Judge Walker's order denying Imperial's intervention does convincingly argue that the County does not sufficiently have a separate interest from the state of California to intervene in its own right, yet never explains why the City of San Francisco was given leave to intervene. It will be interesting to see if this argument gets any play in the opinions.
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