Bench Memos

California Supreme Court Accepts Certified Question in Prop 8 Appeal

As reflected in the order appended to its news release here, the California supreme court yesterday agreed to decide the question of state law that the Ninth Circuit panel in the Prop 8 appeal had certified to it—namely, whether 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.” As the Ninth Circuit panel explained in its order, that question of state law bears directly on Prop 8 proponents’ Article III standing to appeal Judge Vaughn Walker’s anti-Prop 8 ruling.

Under the California supreme court’s expedited briefing schedule, Prop 8 proponents will file their brief by March 14; the anti-Prop 8 plaintiffs will file their response by April 4; and Prop 8 proponents may file a reply by April 18. Amicus briefs are to be filed by May 2, with the parties filing replies to amicus briefs by May 9.

The court’s order states that oral argument may occur “as early as September, 2011.”

My own guess is that this schedule makes it highly unlikely that any U.S. Supreme Court decision on the merits in this case (if indeed the Court were to grant review of the ultimate Ninth Circuit ruling) would occur before the spring of 2013.


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