9th Cir. Certifies Prop 8 Standing Issue to California Supreme Court

Posted on January 4th, 2011 by Katherine Franke

The 9th Circuit just issued a ruling in Perry v. Schwarzenegger, the Prop 8 case, sending the question of standing over to the California Supreme Court.  Since the question of standing is a matter of state law, the court reasoned, and the state law isn’t clear, they sent it over to the California Supreme Court to decide the question of whether the Prop 8 proponents (who were not defendants in the underlying Perry case) have standing to appeal

The argument kind of pointed in this direction.  Here’s the question they certified:

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.

Here’s the full opinion.

So, we wait.


  1. Yes, and as I understand it, the CA Supreme Court is under no particular obligation to answer within any particular time frame. (I think the Ninth Circuit cannot set deadlines for its sister court.) Any idea how fast the CA Supreme Court usually gets to certified questions?

  2. No idea – it happens so infrequently – so it’s hard to say. Surely the California Court has a sense of the importance of the issue. In some respects I share Nan Hunter’s view that it’s not such a bad thing to have the case slow down a bit while the DOMA and DADT cases proceed apace. See http://bit.ly/fwxuvL

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