The Ninth Circuit panel in the primary Prop 8 appeal has just issued an order certifying to the California supreme court a question of state law relating to the standing issue in the case. Here’s the opening paragraph of the panel order:
Before this panel of the United States Court of Appeals for the Ninth Circuit is an appeal concerning the constitutionality under the United States Constitution of Article I, § 7.5 of the California Constitution (“Proposition 8”). Because we cannot consider this important constitutional question unless the appellants before us have standing to raise it, and in light of Arizonans for Official English v. Arizona, 520 U.S. 43 (1997) (“Arizonans”), it is critical that we be advised of the rights under California law of the official proponents of an initiative measure to defend the constitutionality of that measure upon its adoption by the People when the state officers charged with the laws’ enforcement, including the Attorney General, refuse to provide such a defense or appeal a judgment declaring the measure unconstitutional. As we are aware of no controlling state precedent on this precise question, we respectfully ask the Supreme Court of California to exercise its discretion to accept and decide the certified question below.
The panel has stayed further proceedings in the case pending final action by the California supreme court on the certified question.
In addition, the panel has issued an opinion affirming in part and dismissing in part Imperial County’s separate appeal. Judge Reinhardt has also filed a concurring opinion that applies to both cases. And he’s issued his promised memorandum setting forth his reasons for not disqualifying himself.
I haven’t yet had time to read any of these documents, and I expect to have more to say after I have done so.