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A Disappointing Holding on Standing

The big news out of the US Supreme Court today is, of course, the same-sex marriage cases.  CJLF takes no position on the underlying issue.  We are quite interested in the "standing" question.  When the state's executive fails to defend the constitutionality of an initiative measure in court, can the proponents step in and defend it?

The answer should be yes.  Initiative proponents invest much time and money getting their measure qualified and then campaigning for it.  Whether their interest is tangible or intangible, that investment should be more than enough to allow them to defend their measure in court.

Even more importantly, without such standing, the people's precious power of initiative can be defeated by collusive litigation between an opponent and an executive that simply does not want to enforce the measure.  This is a very dangerous situation indeed.

Today in the Prop. 8 case, the Ninth Circuit is directed to dismiss the appeal for lack of jurisdiction, leaving in place an unreviewable district court injunction against enforcing a state statute.  Even if one disagrees with the statute and believes it to be unconstitutional (a point on which I know our readers are sharply divided), this is not a good result.

Justice Kennedy dissents, joined by Justices Thomas, Alito, and Sotomayor, a line-up you don't see every day:

In my view Article III does not require California, when deciding who may appear in court to defend an initiative on its behalf, to comply with the Restatement of Agency or with this Court's view of how a State should make its laws or structure its government. The Court's reasoning does not take into account the fundamental principles or the practical dynamics of the initiative system in California, which uses this mechanism to control and to bypass public officials--the same officials who would not defend the initiative, an injury the Court now leaves unremedied.


| " leaving in place an unreviewable district court injunction against enforcing a state statute. "|

-- Unreviewable? Does this mean that it cannot be revisited by the district court,
or by some other body?


I think this holding only applies to federal courts i.e. California can determine who has standing in its own courts.

This is really a separation of powers issue. If the executive branch can decide what laws to enforce without any reprisal what is the point of passing laws in the first place. If the executive refuses to enforce the laws, why would they follow a writ of mandate?

This should be scary to any person regardless of political persuasion.

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