Karcher v. May Might Lend Support to the Standing Argument
Karcher v. May, 484 U.S. 72 (1987)
This is a quick, on-the-fly analysis of a case that the Proposition 8 proponents cite in favor of their standing to appeal Judge Walker’s decision. As you will see, it at least lends some support to their argument. This isn’t a detailed legal analysis. As such, citations have been removed. This is really just my quick analysis and commentary. Note: this depends on a lot of assumptions that may or may not be legal realities.
Some General Supreme Court Law
“One who is not an original party to a lawsuit may, of course become a party by intervention, substitution, or third-party practice. But we have consistently applied the general rule that one who is not a party or has not been treated as a party to a judgment has no right to appeal therefrom.”
This case involved a school prayer law that was challenged on constitutional grounds by a number of unhappy teachers and students. The law was passed by a conservative legislature despite the governor’s veto. When plaintiffs brought suit, government officials (i.e. attorney general and governor) declined to defend the statute. A number of conservative legislators moved to intervene in their official capacities as representatives of the legislature. The lower court allowed this but went on to hold that the statute was unconstitutional. This decision was later affirmed by a divided court of appeals. Sometime during the legislators’ appeal of that decision, they lost their re-election campaigns, and the new representatives (“new legislators”) of the legislature declined to appeal the Court of Appeals ruling. The former legislators (“old legislators”) then moved to carry the appeal as personal representatives of the previous legislature.
In plain English: the old legislators were allowed to participate in the case and appeal as official representatives of the legislature. They lost twice. They appealed. They lost their positions in the legislature. The new legislators, as official representatives of the new legislature declined to appeal. The old legislators (of course) got pissed off and tried to continue the appeal as personal representatives of the old legislature.
The Supreme Court essentially said no, you can’t do that. Why? Because the new legislators became official representatives when they took over the legislature. The old legislators then became everyday people who happened to represent the legislature in the past. The Court cited to a previous case to hold that “[a]cts performed by the same person in two different capacities are generally treated as the transactions of two different legal personages.” In other words, they weren’t the same people from a legal standpoint that they once were. They no longer mattered because they didn’t have any direct stake in the case.
Here is an important part of the decision. The old legislators were originally allowed to participate as official representatives of the legislature, as that body “was responsible for enacting the statute and because no other party defendant was willing to defend that statute. The Legislature sought to perform a task which normally falls to the executive branch, but which, in this case, the executive branch refused to perform.”
Here is where you can draw some parallel reasoning to the Proposition 8 case. The people of California, as empowered by the State Consitution to enact constitutional amendments through ballot initiative, passed Proposition 8. Plaintiffs sued and the Governor and Attorney General were named as defendants. They declined to defend that amendment, just as the officials in Karsher. So, all of the pro-Proposition 8 folks moved to intervene, and the district court allowed some of them to. They clearly lost and now seek to appeal.
I would say that they are acting in some sort of official capacity because they (the “people”) passed the amendment. When the Governor and Attorney general declined to defend, as in Karcher, they “sought to perform a task that normally falls to the executive branch.” Except, Karcher, they never lost their status. They are still the people that shepherded the campaign and passed the amendment. And, the District Court allowed them to participate in the suit in the status they have always had. So, the simplistic argument goes, if they had status to step into the shoes of the executive branch then, and nothing changed since then, they still have that status. Going all the way back to the first paragraph, you could argue that Judge Walker treated them as a party to the first suit. And, given the extraordinary circumstances involved here (both procedurally and on the merits as a matter of national interest), it seems unlikely to me that the Court of Appeals punts on this.
1) Supporters intervene in a quasi-official role as the People.
2) Judge allows this.
3) They lose.
4) They appeal.
5) They still have this quasi-official role and no one else wants to defend this thing.
6) Court says, this is a Karcher situation, except you never lost your quasi-official status. Executive Branch wont defend. You’re claiming to represent the People. You’re still the People. So, you get to play.