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California Supreme Court Hears Oral Arguments on Prop 8 Standing

The California Supreme Court hears oral arguments on the issue of whether the proponents of Prop 8 have standing under California law to defend the statute in lieu of the official government defendants, who declined to defend the statute.  Charles Cooper, defending Prop 8, is asked by the justices whether or not he is basing his claim of standing on an assertion that the proponents have their own particularized injury in the case, or whether they are purporting to take up the state’s interest that the governor or attorney general would normally represent.  Cooper replies that he is relying on both.  They also ask whether Cooper is limiting his argument just to the Prop 8 case, or whether he thinks ballot proponents should always have the right to intervene.  He responds that he is arguing the latter point.

Ted Olson, speaking for the plaintiffs against Prop 8, says that there is no case law in California giving ballot proponents the right to represent the state if the state’s officers decline to defend a law.  The justices question him as to whether the governor and attorney general essentially have the right to second guess a vote of the people, and he argues yes, saying that the separation of powers leaves to the executive the authority to make decisions about enforcing the law.  The justices reply that California state law would allow the proponents to intervene in state court, asking why that right shouldn’t carry over to federal court.

They also point out that the California initiative process is designed to reserve to the people themselves a great deal of power in the proposing and adopting of laws and constitutional amendments.  By the end of the hearing, the justices appear to be leaning towards a decision ruling that the proponents would have standing under California law in state court, and allowing the Ninth Circuit to make its own determination about the consequences of that decision for Prop 8 in the appellate court.

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