How Different Are Ballot Initiative Sponsors From Orcas?
By Mike Dorf
Most of the news coverage of the recent California Supreme Court ruling in the Prop 8 case has treated it as though it completely decides the question whether the Prop 8 sponsors have standing to pursue their appeal of the district court ruling invalidating Prop 8. Here I'd like to question that assumption.
The Ninth Circuit asked the California Supreme Court to address the following question:
Suppose that California law permitted lawsuits to be brought on behalf of orcas in cases in which the defendant was infringing the orcas' interests by, for example, holding them captive and forcing them to perform tricks for humans. Suppose further that the reason for this rule of standing in California courts was based on the (perfectly reasonable) judgment that orcas have concrete and particularized interests in avoiding captivity under harsh conditions. Would it follow that lawsuits could be brought on behalf of dolphins and whales in federal district court in California?
Of course not. Why not? Because the question of whether a party has standing to sue in federal court is a question of federal law. In particular, Article III has been interpreted to require that a plaintiff have suffered a concrete and particularized Article III injury. I would be sympathetic to the notion that Article III be interpreted to give orcas and other sentient non-humans standing to sue in federal court, just as corporations and other artificial entities have Article III standing to sue in federal court. But that's because of the underlying interests of orcas, not because the California courts (by hypothesis) permit orcas to sue in state court. Article III imposes limits on the federal courts, not the state courts, and so there are many circumstances in which a lawsuit that is maintainable in state court cannot be maintained in federal court.
The same principle should apply to ballot initiative sponsor standing. Whether the sponsor of a ballot initiative has Article III standing in federal court is a question of federal (constitutional) law that a federal court must resolve for itself, without according any deference to a state court.
So why did the Ninth Circuit apparently think otherwise? The culprit here is surely the Supreme Court, which, in Arizonans for Official English v. Arizona, expressed "grave doubts" about the notion of ballot initiative sponsor standing but tempered those doubts with the following statement: "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." That language suggests, by negative implication, that if state law had appointed initiative sponsors as agents of the people of the state to defend its laws, in lieu of public officials, then such initiative sponsors would have standing in federal court. The Ninth Circuit concluded that it should ask the California Supreme Court whether ballot initiative sponsors have been appointed as the people's agents to defend its laws in order to determine whether to give them standing in the Prop 8 case.
As the California Supreme Court explained, that approach apparently makes sense. The state is, after all, an artificial entity that can only be represented in court by people, and so the question arises: Which people? If the Attorney General and the Governor of a state each claim the right to represent the state in court, the court (including a federal court) must decide which one really represents the state. And the U.S. Supreme Court has said the answer to that question -- who represents the state? -- should be determined by state law.
So far so good, but does that mean that federal courts must simply accept a state court's answer to the question of who represents the state? The California Supreme Court, to its credit, did not think so. It said that the effect of its "opinion‘s clarification of the authority official proponents possess under California law may have on the question of standing under federal law is a matter that ultimately will be decided by the federal courts."
How much deference should the Ninth Circuit give to the California Supreme Court decision? We are accustomed to federal courts simply accepting state court determinations of state law as completely final pursuant to the Erie doctrine. But that is in cases in which state law applies in federal court directly. There are many other circumstances in which the content of state law is a threshold question relevant to a determination of federal law, and in those cases, state court determinations of state law are not quite so final.
For example, whether there was probable cause to believe a crime was committed -- a federal question under the Fourth Amendment as made applicable to the states under the Fourteenth Amendment -- will depend on what counts as a crime under state law. But a state court cannot escape the Fourth Amendment by labeling its state's criminal law enforcement something else. Likewise, whether a person has been deprived of property without due process in violation of the Due Process Clause will depend on whether state law creates a property interest in the first place. In these and other circumstances, state law is a kind of "fact" that the federal courts consider in applying the federal law test. But the state courts' federal-purpose characterization of its own law does not bind the federal courts in applying the federal tests. In the procedural due process cases, for example, the state cannot escape its obligation to provide due process simply by relabeling what amounts to a property interest something else, like "shmoperty."
So too in the Prop 8 case, perhaps the right way to think about this issue should be to ask whether the California Supreme Court reasonably concluded that ballot initiative sponsors speak for the state. Given that the state itself often appears as a party before the Supreme Court appealing a determination made by the California state courts, we might worry about self-dealing if the California Supreme Court gets to decide conclusively for the federal courts who represents the state's interest. A somewhat-but-not-completely-deferential approach would balance the state court's greater familiarity with state law against this risk of self-dealing.
Is there precedent for this sort of review of federal court reasonableness review of state court determinations of state law? Sure. The leading example is the Rehnquist/Scalia/Thomas concurrence in Bush v. Gore. Notwithstanding such guilt by association, this approach may make sense in this context.
Accordingly, now that the case is back before the Ninth Circuit, that court should inquire into the reasonableness of the California Supreme Court's conclusion that ballot initiative sponsors are empowered to speak for the state when other elected officials decline to defend an initiative.
Most of the news coverage of the recent California Supreme Court ruling in the Prop 8 case has treated it as though it completely decides the question whether the Prop 8 sponsors have standing to pursue their appeal of the district court ruling invalidating Prop 8. Here I'd like to question that assumption.
The Ninth Circuit asked the California Supreme Court to address the following 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 California Supreme Court answered the first half of the question with a unanimous and resounding "yes." It thus concluded that it didn't have to address the second half of the question. Here I want to question why nearly everyone seems to think that the California Supreme Court decision completely determines the outcome in federal court. I'll begin with an analogy.
Suppose that California law permitted lawsuits to be brought on behalf of orcas in cases in which the defendant was infringing the orcas' interests by, for example, holding them captive and forcing them to perform tricks for humans. Suppose further that the reason for this rule of standing in California courts was based on the (perfectly reasonable) judgment that orcas have concrete and particularized interests in avoiding captivity under harsh conditions. Would it follow that lawsuits could be brought on behalf of dolphins and whales in federal district court in California?
Of course not. Why not? Because the question of whether a party has standing to sue in federal court is a question of federal law. In particular, Article III has been interpreted to require that a plaintiff have suffered a concrete and particularized Article III injury. I would be sympathetic to the notion that Article III be interpreted to give orcas and other sentient non-humans standing to sue in federal court, just as corporations and other artificial entities have Article III standing to sue in federal court. But that's because of the underlying interests of orcas, not because the California courts (by hypothesis) permit orcas to sue in state court. Article III imposes limits on the federal courts, not the state courts, and so there are many circumstances in which a lawsuit that is maintainable in state court cannot be maintained in federal court.
The same principle should apply to ballot initiative sponsor standing. Whether the sponsor of a ballot initiative has Article III standing in federal court is a question of federal (constitutional) law that a federal court must resolve for itself, without according any deference to a state court.
So why did the Ninth Circuit apparently think otherwise? The culprit here is surely the Supreme Court, which, in Arizonans for Official English v. Arizona, expressed "grave doubts" about the notion of ballot initiative sponsor standing but tempered those doubts with the following statement: "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." That language suggests, by negative implication, that if state law had appointed initiative sponsors as agents of the people of the state to defend its laws, in lieu of public officials, then such initiative sponsors would have standing in federal court. The Ninth Circuit concluded that it should ask the California Supreme Court whether ballot initiative sponsors have been appointed as the people's agents to defend its laws in order to determine whether to give them standing in the Prop 8 case.
As the California Supreme Court explained, that approach apparently makes sense. The state is, after all, an artificial entity that can only be represented in court by people, and so the question arises: Which people? If the Attorney General and the Governor of a state each claim the right to represent the state in court, the court (including a federal court) must decide which one really represents the state. And the U.S. Supreme Court has said the answer to that question -- who represents the state? -- should be determined by state law.
So far so good, but does that mean that federal courts must simply accept a state court's answer to the question of who represents the state? The California Supreme Court, to its credit, did not think so. It said that the effect of its "opinion‘s clarification of the authority official proponents possess under California law may have on the question of standing under federal law is a matter that ultimately will be decided by the federal courts."
How much deference should the Ninth Circuit give to the California Supreme Court decision? We are accustomed to federal courts simply accepting state court determinations of state law as completely final pursuant to the Erie doctrine. But that is in cases in which state law applies in federal court directly. There are many other circumstances in which the content of state law is a threshold question relevant to a determination of federal law, and in those cases, state court determinations of state law are not quite so final.
For example, whether there was probable cause to believe a crime was committed -- a federal question under the Fourth Amendment as made applicable to the states under the Fourteenth Amendment -- will depend on what counts as a crime under state law. But a state court cannot escape the Fourth Amendment by labeling its state's criminal law enforcement something else. Likewise, whether a person has been deprived of property without due process in violation of the Due Process Clause will depend on whether state law creates a property interest in the first place. In these and other circumstances, state law is a kind of "fact" that the federal courts consider in applying the federal law test. But the state courts' federal-purpose characterization of its own law does not bind the federal courts in applying the federal tests. In the procedural due process cases, for example, the state cannot escape its obligation to provide due process simply by relabeling what amounts to a property interest something else, like "shmoperty."
So too in the Prop 8 case, perhaps the right way to think about this issue should be to ask whether the California Supreme Court reasonably concluded that ballot initiative sponsors speak for the state. Given that the state itself often appears as a party before the Supreme Court appealing a determination made by the California state courts, we might worry about self-dealing if the California Supreme Court gets to decide conclusively for the federal courts who represents the state's interest. A somewhat-but-not-completely-deferential approach would balance the state court's greater familiarity with state law against this risk of self-dealing.
Is there precedent for this sort of review of federal court reasonableness review of state court determinations of state law? Sure. The leading example is the Rehnquist/Scalia/Thomas concurrence in Bush v. Gore. Notwithstanding such guilt by association, this approach may make sense in this context.
Accordingly, now that the case is back before the Ninth Circuit, that court should inquire into the reasonableness of the California Supreme Court's conclusion that ballot initiative sponsors are empowered to speak for the state when other elected officials decline to defend an initiative.