In a docket entry posted today on the California Supreme Court's website, the court announced that it will be hearing arguments on Sept. 6 in the certified question it accepted from the U.S. Court of Appeals for the Ninth Circuit in the Perry v. Brown challenge to Proposition 8 about whether the proponents of Proposition 8 have standing to appeal the August 2010 trial court ruling striking down Proposition 8 as unconstitutional.
The question before the California Supreme Court on that date, at its base, is whether California law allows the proponents of ballot initiatives to defend laws -- like Proposition 8 -- in court in a situation -- as with Proposition 8 -- where the state's officeholders have chosen not to appeal the loss at the trial court.
Following the December 2010 arguments regarding the appeal before the Ninth Circuit, the appeals court sent the certified question to the California Supreme Court, asking it to answer a question that relates to the Article III requirement under the U.S. Constitution that all matters before the federal courts be "cases" or "controversies." That requirement has been interpreted to mean that there must be a party with "standing" bringing the case -- or here, the appeal.
The question posed by the Ninth Circuit is:
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.
In February, the California Supreme Court accepted the certified question and set a schedule for the filing of briefs on the question "to accommodate oral argument in this matter as early as September, 2011." Today, the court set that oral argument for 10 a.m. Sept. 6 in San Francisco.
Following the argument, an answer would be sent to the Ninth Circuit, which would then take the Perry case -- which was brought by the American Foundation for Equal Rights and litigated by lead attorneys Ted Olson and David Boies -- back under advisement and decide how it wishes to proceed on the federal standing question.
If the California Supreme Court finds the proponents to have a "particularized interest" or "the authority to assert the State's interest," the Ninth Circuit could then find the proponents to have standing. At that point, the appeal of the Perry trial court decision -- the "merits" decision from the trial court that Proposition 8 is unconstitutional -- could go forward.
But, as Boies said at the December 2010 arguments before the Ninth Circuit, the standing question will not be answered definitively by the California Supreme Court. As such, the appeals court could call for additional briefing and/or oral arguments following the California Supreme Court decision on the certified question, which could put off a decision on the merits of the case -- even if the proponents are found to have standing -- further.
[This post was expanded and updated through 9:55 p.m.]
[UPDATE @ 10:30 PM: Chad Griffin, AFER co-founder and board president, said in a statement:
"I am very pleased that the Supreme Court of California calendared our case for the first day of their fall session. The governor and attorney general of California – and the United States District Court – all have found Proposition 8 unconstitutional. I am confident that the California Supreme Court will swiftly reach a decision on this question, and that this nation is now one step closer to seeing the dark walls of discrimination finally crumble."]