Appeal On Proposition 8 Highlights A Critical Legal Issue

Commentary by Boyce Hinman

The issue is: who does and does not have legal standing to appeal a US District Court decision? The answer to that question may determine whether or not Judge Walker’s decision overturning Proposition 8 stands or falls.

Judge Vaughan Walker, has ruled that Proposition 8 is invalid because it violates the 14th amendment to the US constitution, which guarantees equal protection of the law to all, and also violates the constitution’s due process clause.

Several conservative organizations and individuals appealed to the 9th US Circuit Court of appeals urging that court to overturn Judge Walker’s decision. So did Imperial County. However it is quite possible that the appeals court will rule that those submitting the appeal don’t have legal standing to do so. If so, then only the US Supreme Court could overturn the ruling. But the Supreme Court might also decide that those appealing Judge Walker’s decision did not have standing to do so.

Usually when a court invalidates a California law or constitutional provision, either the Governor or the California Attorney General submit an appeal in support of that law or provision. And their legal standing to do so has rarely, if ever, been denied. However, neither of them are willing to appeal Judge Walker’s decision.

So, what is this concept of legal standing?

It is based on Article III of the US Constitution. The concept is that not everyone can submit an appeal asking that a lower court decision be overturned. Stated generally, people have standing to challenge a government action only if they are injured by the action.

For example, we in California could not appeal a decision by a Minnesota Court allowing people to carry guns in that state. We could not demonstrate that we out here were harmed by that decision.
Second, that harm must be concrete and particular, not hypothetical. In the above example we could not claim to have standing because some day some one from Minnesota might travel to California and shoot us.

Third, there must be a direct causal relationship between the court decision being appealed and the perceived harm to the person or agency seeking to overturn the decision. For example, the Governor, if he chose to appeal, might say Judge Walker’s decision would cause such an increase in marriage license applications that the offices issuing marriage licenses would be overwhelmed. (That might demonstrate that he has standing to appeal Walker’s decision. It would not necessarily persuade the appeals court that the decision should be overturned.)

Finally the person or organization seeking standing to appeal a lower court’s decision must show that overturning that decision will, in fact, prevent or reverse the concrete harm caused by that decision.
For a detailed explanation of the concept of legal standing direct your browser to the following address:

The opponents of Proposition 8 have challenged the legal standing of those appealing Judge Walker’s decision. They say those appealing the decision have no standing to do so. If the US 9th Circuit Court of appeals agree with them, then Judge Walker’s decision would stand unless the Supreme Court says they have standing and itself issues a ruling overturning Walker’s decision.

The deadline for submitting an appeal to Walker’s decision is September 11. The supporters of Prop 8 need an appellant who clearly has standing to appeal, such as the Governor or Attorney General, But they are unwilling to do so.

So up steps the Pacific Justice Institute. In late August, they submitted a request to the California Third District Court of Appeal asking the court to force the Governor or Attorney General to submit an appeal asking that Walker’s decision be overturned. But within two days the California Appeals court refuses to do that.

It is possible, that the story will essentially be over by September 11. If all of the relevant courts decide that no one with standing has appealed Judge Walker’s decision, then Proposition 8 will be toast.

Article III of the U.S. Constitution

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