Exciting Developments On Prop 8 Appeal

Commentary by Boyce Hinman

The U.S. 9th District Court of Appeals has just released two very interesting documents on the appeal of a lower court’s decision that overturned California’s Proposition 8.

In one document it ruled that Imperial County lacks legal standing to appeal the lower court decision. That seems to leave only the people who put the proposition on the ballot (called the proponents) as the only significant remaining appellants in the case.

If the appeals court decides that these proponents also lack standing, then the appeal would be over at that level, although the supporters of Proposition 8 would probably appeal to the U.S. Supreme Court.

The second document dealt, in a novel way, with the question of whether or not the proponents have standing. In that document, the appeals court asked the California Supreme Court to rule on whether or not the proponents of Proposition 8 have legal standing under California law to appeal a lower court ruling overturning the proposition.

Interestingly, the 9th U.S. Appeals Court agreed to be bound by the decision of the California Supreme Court on this issue.

The Appeals Court document went on to say, that, if the California Supreme Court said the proponents do not have legal standing, then the Appeals Court would not address whether or not the decision overturning proposition 8 was correct.

In that case, Proposition 8 would remain invalid, unless the U.S. Supreme Court overturned the ruling invalidating the proposition. It remains to be seen whether or not the California Supreme Court will have further hearings, with testimony, on this issue.

In the second document, the appeals court refused to grant legal standing to appeal to: The County of Imperial; The Imperial County Board of Supervisors; and The Deputy Clerk of Imperial County.

The court said, to have legal standing and appellant must:
1. Demonstrate a significant protectable interest affected by the case.
2. Demonstrate that a decision in the case might affect the appellant’s ability to protect that interest.
3. Submit their appeal in a timely manner.
4. Demonstrate that any other appellants are unlikely to adequately represent their interests.

The court also added that “An applicant’s failure to satisfy any one of the requirements is fatal to the application.” It then went on to say that none of the above applicants had demonstrated a “significant protectable interest” in the case.

On this point it noted that the County Clerk might have had a protectable interest, but the Clerk had not appealed the lower court decision and no evidence was presented that the Clerk had authorized the Deputy Clerk’s request to intervene in the case.

The Deputy Clerk had also claimed a significant interest because she would be bound by the injunction of the court in this case. But the appeals court responded that County Clerks, not their Deputies would be bound by such injunctions, and the County Clerk was not appealing on this basis.

The appeals court had the following to say about the request of the Imperial County Board of Supervisors to intervene. It noted that the Board claimed a significant protectable interest in that it has responsibility for ensuring that County Clerks and their Deputies faithfully perform their duties including those related to marriage.

However the court noted that Boards of Supervisors have authority, under local charters, to control actions of Clerks and Deputy Clerks on local issues, but they have no power to direct those employees to do one thing or another regarding the granting of marriage licenses. The rules for that are determined by state law, not local charters or laws.

In addition, the appeals court said the specific duties of the Supervisors are not affected by the decision overturning Proposition 8. Therefore, they have no significant protectable interest.

Then the court dealt with the separate appeal by the County of Imperial. The county had said it has an interest because promoting opposite sex marriage reduces the need for social services funded by county government.

However, the county failed to make this claim in the lower court hearing on the case. Furthermore the county failed to submit any data to the appeals court substantiating this claim of financial costs. The court said the burden of proof is on the appellant in this situation. Absent such proof the appeals court must rule against the county.

So, the next step is to await action of the California Supreme Court in response to the question that has been sent to it.

You may read copies of the two decisions released by the 9th Circuit Court of Appeals by visiting www.calcomui.org/nwsflsh010411.html and then scrolling down to and clicking on the links at the bottom of the  article.


Boyce Hinman is the founder of the California Communities United Institute. He can be reached at This e-mail address is being protected from spambots. You need JavaScript enabled to view it or calcomui.org

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