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(This is a long post, so if you are familiar with the issue or if you want to jump to my conclusion, the essence of this post is contained in paragraphs 13-16. But I think my strongest point is in paragraph 15. Why should governments be able to defeat constitutional amendments passed by the People simply by not appealing them? At the end, I have also helpfully attached a short case note on the decision in AOE v Arizona, which is the most relevant precedent on this issue. Another precedential decision is Don’t Bankrupt Washington Committee v. Continental Ill. Nat. Bank & Trust Co. of Chicago).

1. Reader(s), you know that every now and again I like to make long, boring and rather irrelevant posts on gay marriage, particularly surrounding the case Perry v Schwarzenegger about the Proposition 8 constitutional ban on gay marriage in California. This is not one of those posts.

2. Instead, this is a long, boring and rather irrelevant post on whether the supporters of Prop 8 have standing to challenge Perry v Schwarzenegger on appeal. (“Standing”, btw, just means whether a person has the power to act as a party in a lawsuit). And, Reader, as you know, I have long-stated my support for legalising gay marriage despite the fact that it has been conclusively proven that there is anecdotal correlation between gay marriage and natural disasters like earthquakes and floods. But on reflection, I think that the Proposition 8 supporters should have standing to challenge the trial judge’s decision to support gay marriage.

3. The question of standing is almost always a very simple one. There will be someone who is injured and someone who cause that injury; the first has standing to sue and the latter has standing to defend and to appeal if he loses. The question, however, is complicated by those who wish to make it more complicated than it really is. What if there is someone who hasn’t suffered any injury but still wishes to sue? Can they have standing?

4. I think the easiest way to conceptualise this is the answer is ‘no’ riddled with a dozen loopholes, each of which has evolved with the times. So the case law differs markedly between the legal systems of the Commonwealth nations and its bastard offspring in the United States. But the essential issues (I would imagine) surrounding standing ought to be the same. The difference is that because of our different systems of government, the loopholes began differently and evolved differently. Of course, I do not proclaim to have any understanding of how standing works in America. They have crazy politicians and they have crazy judges. They are utterly unpredictable.

5. Prima facie, in Australia you require a right, legitimate expectation or interest to be affected either directly or indirectly in order to have standing (Bateman’s Bay Aboriginal Land Council v Aboriginal Community Fund). That means, for example, if a woman has an abortion, then a church cannot simply intervene (as they tried to do in Re McBain; Ex parte AG (Cth)). In other words, you require a private right or a special interest to be interfered with. In addition, public rights can be infringed.

6. In Australia et al, in administrative law, standing to protect public rights turns on whether you have the Attorney-General’s fiat (ie the AG’s permission to sue). And in time, that question evolved, now that the AG is no longer an apolitical person bound by strict conventions. A modern AG would obviously never grant his fiat to an action that could embarrass the government, so the question is now whether X should have standing despite the lack of fiat.

7. Of course, this loophole wouldn’t exist in the US, where the AG fulfills a very different role from the Australian AG. Indeed, in California, the AG is directly elected by the people.

8. In questions of Australian Constitutional law, the question never quite seems to appear. Because of the fused legislature and executive, the person who wrote the law is also the government who must implement that law. And implementation, in practice, gives you standing one way or another. Or, some law will affect you; therefore you challenge its constitutionality. But the question never seems to appear because the answer is always black and white. But the issue of standing is always there. For example, (some) academics had long speculated that the Commonwealth’s method of granting money to the States using the Grants Power was unconstitutional. But no one had standing to challenge it except the States themselves – and obviously, they’re never going to oppose being given money. So it went unchallenged until 2009 when constitutional lawyer, Brian Pape, received $1000 under the Rudd government’s stimulus package. And, because that $1000 was given under the Grants power, he had standing to challenge the constitutionality of the Act which allowed the government to give him that $1000. (Pape v Cth)

9. Of course, what I just said cannot apply to the US where the legislature and the executive are not fused as they are in Australia. In Australia, the person with >50% of the seats in Parliament forms government. In the US, the person who wins the Presidential election forms government – and those elections are separate to the elections for who sits in Congress. So perhaps, next year, the Republican-dominated Congress might pass an Act that Obama’s Administration will refuse to uphold. Then who has standing? And the question would probably be equally complicated if it is not a piece of legislation passed by a Congress of elected politicians. Because, let’s remember, Prop 8 was written (and voted for) by ordinary unelected people through California’s proposition process.

10. I should add also that there is (apparently) a distinction in American law between standing at trial and standing on appeal. Therefore, the supporters of Prop 8 had standing to defend the action at trial (even though both the then  Governor, Arnold Schwarzenegger and the then Attorney General refused to defend the action) via an amicus brief. But they do not have standing to appeal once they have lost. In a way, this makes sense. Defending an action is quite different from starting a new action in a higher court. If a plaintiff sues and there is no defendant, then to be properly informed then a Court should (and must) call a party to advise them of opposing arguments. That is the essence of the adversarial system of law. But starting a new trial is quite different. Apparently, there is Supreme Court precedent on this exact point – the unanimous SCOTUS decision of Arizonans for Official English v Arizona, which also dealt with a constitutional amendment passed by proposition ballot.

11. I will note, however, that in Australian law participation in an earlier stage of the proceedings is sufficient to grant standing. For example, in the case of Ainsworth v Criminal Justice Commission, a party was allowed to make submissions during a non-judicial inquiry and that was sufficient to give them standing during the later judicial inquiry and so on.

12. And in all that I have just said, nothing should be surprising to any properly trained Australian law student. But what is missing from their understanding is what ties all these threads together. And that is an understanding of why the requirement of standing exists. It has been held in Australia (and in the US) that the Courts will not give ‘advisory opinions’ because that breaches the separation of powers which exists between the judicature and the legislative/executive branches. An advisory opinion is where a person asks the Court – in this hypothetical situation, what would be the result?

13. The rationale behind Courts not ruling on advisory opinions is that it is not very judicial behaviour. Courts exist to resolve disputes, so if there is no dispute, then there is nothing to resolve. In the modern day, the ‘least dangerous branch’ (political) theory says that Courts are the “least dangerous branch” of the government and the most impartial because they can only react to cases that come before them. They have no power to seek out cases of their own accord – and this is particularly important in America where there is far more potential for abuse of judicial power. There are other reasons as well – preventing a multiplication of suits; because the adversarial system of justice works best when both parties are incentivised to make the best arguments because of the potential damage to their rights, interests or legitimate expectations.

14. But in the case of Perry v Schwarzenneger, how does that offend against the notion that there should not be advisory opinions? This is not a hypothetical situation, but a very real situation in which the marriage rights of very many homosexual couples will be directly affected. Are we content to let this District Court decision lie on one of the most contentious social disputes of the 20th Century? This case would be one of the most important cases on the Equal Protection clause in a very long time.

15. In most cases, the public interest should be vindicated by the elected government. And, if the government should decline to appeal then the remedy is not legal but political. Advocates for Prop 8 should place political pressure on the government to appeal or wait until a new government is elected. But, as Australian law recognises (by the evolution of the AG’s fiat exception) there are some times when this is inappropriate. Surely one of these cases is when the legislation (or Constitutional amendment) debated was created through a proposition ballot. That means, the People defied the government to create a law that the government itself did not pass.

16. Let’s choose a less contentious issue to talk about. What if the government refused to appeal against a challenge to a Proposition which restricted the powers of government (which were used for oppressive means). What if there was noone else with standing? The law would be struck down. And its not as though anyone could later revive the law once they got standing. And thus, the government could conspire to defeat the will of the People. More importantly, they could defeat the proposition process, a mechanism designed to grant the People additional power against the Government they elected. This is especially important in the US where their expansive Bill of Rights makes it far more important that Courts are properly informed of all arguments. This is recognised by the fact that US Courts are far more lenient with amicus briefs than Australian or Commonwealth Courts.

17. Of course, there are strong arguments on the other side as well. Allowing a party without standing (ie without harm to their interests) to appeal is just allowing busy-bodying. It allows Churches to challenge abortion laws and IVF laws (as in Re McBain) when the aborting mother was perfectly content to do nothing. Could future parties intervene into family court actions; into divorce or child protection proceedings? Or, in this case, perhaps they could challenge the rights of married couples when those rights cause absolutely no harm to the party attempting to sue.

18. Moreover, creating this exception would allow parties without standing to take over the mantle of government and assume its interests? Do we really want more supposed public interest groups abounding in the Courts? The liberal ACLU and its conservative counter-part, the American Centre for Law and Justice already clog the Courts with endless cases trying to push for one issue or another. They are politicising the Courts. Do we want to extend this further? The NY Times recently published an article saying that the US Chamber of Commerce’s very active SCOTUS practice has increased the percentages of cases falling in favour of corporations. (See here for a NYT article on the same issue back in 2008 by excellent legal commentator Jeffrey Rosen).

19. I think these objections all dissolve if you create a narrow exception to the standing rule for proponents of a Proposition initiative to appeal from a decision that has already been lost. How will it multiply suits if there has already been a law suit? It’s just extending the process upwards and obviously it involves an important issue if it was put to the people in a proposition ballot, so its probably worth the expense to the Courts. The ACLU or ACLJ can hardly use it to push any agenda that was not already pushed by the proposition itself.

20. Don’t get me wrong; obviously this is a complex and difficult issue. There are compelling considerations on both sides. On balance, however, I think that the decision in Arizonans for Official English should be overturned. Obviously, that cannot be done by the 9th Circuit, but the supporters of Prop 8 will simply appeal to the SCOTUS where it can be overturned. And, since it is apparently compulsory to quote Voltaire, I do not recognise the legal expertise of any lawyer who thinks that it is within the equal protection of the laws to deny homosexuals the right of marriage, but I will fight for his right of standing to bring his ludicrous arguments before the Courts.

Disclaimer: Again, I repeat, I have no knowledge of the laws of standing in the United States. This blog post is talking about whether, as a matter of policy, it is in the best interests of justice that supporters of a proposition initiative should have standing to appeal. Obviously, at trial the question will turn on the exact phrasing of Article III of the US Constitution, the prior case law and the wording of the California Constitution. Despite its length and prolixity, this article serves only as an introduction to the issue of standing.

Arizonans for Official English v Arizona (AOE v Arizona)

I felt that this post would be somewhat lacking without a brief summary of AOE v Arizona. In that case, an Arizonan proposition was passed which made English the official language of Arizona. A State employee, Ms Yniguez, sued Governor Mofford as well as Arizona, the AG and the Director of her agency (Yniguez v Mofford). The (Federal) District Court ruled the proposition unconstitutional. The AOE, who were the principal sponsors of the proposition, sought standing to appeal. The District Court found they did not have standing. The 9th Circuit Court of Appeals (the same Court which is now ruling on Proposition 8, though with different judges) found that they did have standing. The question of standing reached the Supreme Court, which made a unanimous opinion written by Ginsburg J.

In a strongly reasoned decision (the relevant parts are extracted at the very bottom), Ginsburg J. thought that being a principal sponsor alone did not grant a right of standing. The work and effort AOE expended to place the proposition before the People and to pass the proposition did not grant standing. Nor did the quasi-legislative role it played grant standing (even though State legislatures themselves have standing to defend and appeal the constitutionality of its Acts). Crucially, however, Ginsburg J. said

“We thus have grave doubts whether AOE and Park [the director of AOE] have standing under Article III to pursue appellate review. Nevertheless, we need not definitively resolve the issue.”

Instead, the SCOTUS decided the case was invalid for another reason. Because Ms Yniguez quit her State job, the appeal was on a hypothetical question. (Technically, this is called ‘mootness’ and makes the appeal an advisory opinion, which as explained is unconstitutional).

Therefore, the decision is not binding upon lower Courts though it is highly influential. Furthermore, because many of the present justices sat on that very decision, they are likely to reach the same conclusion. The list of Justices in AOE who still sit on the SCOTUS are Scalia, Kennedy, Thomas, Ginsburg, Breyer JJ. The new justices are Roberts CJ and Alito, Sotomayor, Kagan JJ. In other words, if the old justices vote the same way then the obiter in AOE will stand as good and binding law.

Even if AOE v Arizona stands however, the supporters of Prop 8 may still have standing. AOE did not participate in the original trial. If Australian law is followed, that should be sufficient to grant AOE standing. Needless to say, American exceptionalism would prevent any sane American judge from looking at Australian law.

Additionally, the main thrust of the decision was that this was required out of respect for the place of the States in the Federal system of government. In particular, Federal Courts should not make binding decisions on what a particular State statute means unless absolutely required. That includes deciding that a particular law means X and then deciding that X offends the Federal Constitution. I have no experience with this body of law (since there is only one common law in Australia and the High Court adjudicates on both State and Federal matters). Perhaps AOE v Arizona could be distinguished on this ground somehow (though I doubt it).

The meaning of the very same proposition was also debated by the Arizona Supreme Court at the same time, and the SCOTUS held that the Courts should have awaited the decision in that case before deciding constitutionality. That may also explain why some conservative justices voted unanimously – they may not necessarily agree that principal sponsors of proposition initiatives should not have standing.


For a nice summary of arguments during the 9th Circuit Hearing on Perry v Schwarzenegger see (I found this after I wrote this article).

For the most relevant passage of AOE v Arizona:

Article III, §2, of the Constitution confines federal courts to the decision of “Cases” or “Controversies.” Standing to sue or defend is an aspect of the case or controversy requirement.Northeastern Fla. Chapter, Associated Gen. Contractors of America v. Jacksonville, 508 U.S. 656, 663-664 (1993) (standing to sue); Diamond v. Charles, 476 U.S. 54, 56 (1986) (standing to defend on appeal). To qualify as a party with standing to litigate, a person must show, first and foremost, “an invasion of a legally protected interest” that is “concrete and particularized” and ” `actual or imminent.’ ” Lujan v. Defenders of Wildlife504 U.S. 555, 560 (1992) (quotingWhitmore v. Arkansas495 U.S. 149, 155 (1990)). An interest shared generally with the public at large in the proper application of the Constitution and laws will not do. See Defenders of Wildlife, 504 U. S.,at 573-576. Standing to defend on appeal in the place of an original defendant, no less than standing to sue, demands that the litigant possess “a direct stake in the outcome.” Diamond, 476 U. S., at 62 (quoting Sierra Club v. Morton405 U.S. 727, 740 (1972) (internal quotation marks omitted)).

The standing Article III requires must be met by persons seeking appellate review, just as it must be met by persons appearing in courts of first instance. Diamond, 476 U. S., at 62. The decision to seek review “is not to be placed in the hands of `concerned bystanders,’ ” persons who would seize it “as a `vehicle for the vindication of value interests.’ ” Ibid. (citation omitted). An intervenor cannot step into the shoes of the original party unless the intervenor independently “fulfills the requirements of Article III.” Id., at 68.

In granting the petition for a writ of certiorari in this case, we called for briefing on the question whether AOE and Park have standing, consonant with Article III of the Federal Constitution, to defend in federal court the constitutionality of Arizona Constitution Article XXVIII. Petitioners argue primarily that, as initiative proponents, they have a quasi legislative interest in defending the constitutionality of the measure they successfully sponsored. AOE and Park stress the funds and effort they expended to achieve adoption of Article XXVIII. We have recognized that state legislators have standing to contest a decision holding a state statute unconstitutional if state law authorizes legislators to represent the State’s interests. SeeKarcher v. May, 484 U.S. 72, 82 (1987). [n.20] AOE and its members, however, are not elected representatives, and we are aware of no Arizona law appointing initiative sponsors as agents of the people of Arizona to defend, in lieu of public officials, the constitutionality of initiatives made law of the State. Nor has this Court ever identified initiative proponents as Article III qualified defenders of the measures they advocated. Cf. Don’t Bankrupt Washington Committeev. Continental Ill. Nat. Bank & Trust Co. of Chicago460 U.S. 1077 (1983) (summarily dismissing, for lack of standing, appeal by an initiative proponent from a decision holding the initiative unconstitutional).


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