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According to this law review article in the Brigham Young Law review, Judge Walker may have completely missed the point when it comes to the question of standing for Proponents of Prop 8 to appeal. He notes that the federal circuits split on the issue of whether an intervenor must have independent Article III standing. He then says:

We argue that those courts that do not require intervenors to have Article III standing view standing as a requirement imposed on all federal courts, that is, that at least one party must have standing before the court can maintain jurisdiction; conversely, the courts that do require intervenors to have Article III standing view standing as a requirement imposed on all parties that come before a federal court. Thus, it is a subtle distinction in analytical approach that divides the circuits on this issue. We recognize that viewing standing as a requirement on the court still necessarily depends on a party having standing; however, we argue that the court need only ensure that the original party to bring suit has standing-not that every party before the court has standing. Under this approach, by ensuring that at least one of the parties before it has standing, the court satisfies its obligation under Article III and may properly take jurisdiction.

The standing requirement exists to prove that a real case or controversy exists. Once the court implicitly grants that the original parties had standing, it grants that a real case or controversy exists. There is no requirement that each party entering that real case or controversy as an intervenor must independently show that standing exists as to them.

In other words, once the court accepts jurisdiction, it rules that there is a real case or controversy at issue. Once there is a case or controversy, the parties have standing.

If parties completely extraneous to the dispute attempt to intervene, they can be knocked out under Rule 24. A  finding of sufficient “protectable interest” under rule 24 then becomes a proxy for standing.

Additionally, the rules for granting the plaintiffs standing include the rule that the defendents must have “caused” the plaintiff’s injury. Therefore, a finding of sufficient causation to trigger standing in the plaintiffs also by implication grants sufficient “standing” to the defendants, because they have caused the harm to the plaintiff. They of course, have not been injured; instead it is alleged they have caused an injury to another. But if they have not sustained an injury, how can they have standing in the case? After all, the minimum requirements for standing include the requirement for injury. The answer, it seems, is that their “standing” is derivative, through the plaintiff’s causation requirement. Their potential “injury” ( in the form of an adverse decision) gives them a solid interest in defending the suit. The defendants are inextricably bound up in the case and are alleged to have caused the plaintiffs injury; therefore they have standing. But not independently.

Since defendants get their standing by derivation from the plaintiff’s act of proving standing, intervenors would presumably derive standing in the same way.

However, there are cases that fly in the face of the article’s analysis: Diamond v Charles, for example. 

There, a group of doctors challenged a new Illinois law that placed certain restrictions on abortion. The State defended the action in the district court. Diamond, another doctor, intervened in the District Court on the side of the State. He claimed his interests as a doctor and a parent, as well as conscienscious objections to abortion,  gave him an interest in the litigation. He wanted the law to stand. The District Court allowed him to intervene.  

The District Court ruled that the law was unconstitutional. The State appealed to the Court of Appeals, but that Court affirmed the District Court. The State did not appeal to the Supreme Court. 

Diamond, however, attempted to carry the appeal on his own behalf to the Supreme Court. But, the Supreme Court ruled that Diamond did not have standing to appeal.

The court said in Diamond:

Because a private party whose own conduct is neither implicated nor threatened by a criminal statute has no judicially cognizable interest in the statute’s defense, we dismiss the appeal for want of jurisdiction

It seems to me that Diamond’s interest was much more speculative and remote than the interests of the Prop 8 proponents.  In Diamond, the Supreme Court seems to have questioned whether Diamond really had status as a Rule 24 Intervenor.

…the District Court granted Diamond’s motion to intervene. [Footnote 6] The District Court did not indicate whether the intervention was permissive or as of right, and it did not describe how Diamond’s interests in the litigation satisfied the requirements of Federal Rule of Civil Procedure 24 for intervenor status.

The Court appeared to consider Diamond merely a concerned bystander:

It is not to be placed in the hands of “concerned bystanders,” who will use it simply as a “vehicle for the vindication of value interests.” United States v. SCRAP, 412 U. S. 669, 412 U. S. 687 (1973).

The rule of Diamond seems to be this: where an intervenor has a very thin claim to a Rule 24 protectible interest, such that his right to intervene is questionable, it is possible that an appellate court may find his interest in the case  insufficient to proceed alone with an appeal.

Diamond did not seem to have much of an interest in the case, at least by normal standing rules. He intervened based on his “conscientious” object to abortion; as well as his broad interest as a doctor.  And as a parent of a teenage daughter. These are qualities that hardly distinguish him from the general public. Only his status as a doctor seemed to have been different. And in that, he was not of the class that would be adversely affected by the law, since he would not be doing abortions anyway. It is pretty clear that Diamond was merely a concerned bystander; the District Court probably allowed him in the case only because he did not want to seem impartial in a highly publicized, politicized case.

The circumstances in Diamond were quite different than the Prop 8 case. In Diamond,  a state law was involved – not an intiative. When a state law is passed, the state of course is the primary defender of that law.

The State’s acquiescence in the Court of Appeals’ determination of unconstitutionality serves to deprive the State of the power to prosecute anyone for violating the Abortion Law. Diamond’s attempt to maintain the litigation is, then, simply an effort to compel the State to enact a code in accord with Diamond’s interests. But “the power to create and enforce a legal code, both civil and criminal” is one of the quintessential functions of a State.

But where an initiative is involved, state officials lack any serious interest in defending the law; they refused to pass it in the first place. The direct will of the people has replaced the legislature and the State government.  And so, constitutionally, that interest must have  some means to defend a suit against their initiative. 

In the Prop 8 case, neither the governor or the Attorney General would put up a defense. In that case, some means must constitutionally arise to give initiative proponents the possibility of defending their initiative. Otherwise, the Supreme Court will be allowing states, and sympathetic Federal Judges, the means of entirely destroying the results of the initiative – by means of slick legal technicalities. And no one could put up a defense to an attempt to undo the will of the people, clearly expressed.

A legal device more harmful to democracy could not be imagined.  

Remember Baker v. Carr’s rationale for standing, that standing ensures the presence of the “”concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.”

It is laughable that the courts would give the State standing here, and deny it to the Proponents of Prop 8. The state has shown no interest whatsoever in defending the case.

Since the whole purpose of the standing rule is to make sure that the courts do not interfere with the political process (Allen v.  Wright: “More important, the law of Art. III standing is built on a single basic idea — the idea of separation of powers.”) the court’s exclusion of any real defense of the initiative would be a travesty of the worst type.

It would replace the will of seven million voters with the musings of a rather bizarre Federal District Court judge. And in the process, it would have stripped those seven million of any real chance to defend themselves and their initiative in court.

Brilliant.

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