The court now stands in recess. We'll post an update as soon as a decision is announced. Please re-read this post for our thoughts about the outcome legal experts are predicting.
Oral arguments WRAP UP:
It seems clear to us that the hearing before the California Supreme Court could not have gone better for the proponents of Proposition 8. There was no justice who appeared to be supportive of the position of Ted Olsen that an initiative proponent cannot intervene to defend their initiative and that an initiative must go undefended if the governor and attorney general refuse to do so. At a bare minimum, the court is likely to issue a ruling noting that state law gives initiative proponents liberal standing to intervene. More likely, the court could find that initiative proponents have a particularized interest in their initiative such that they may stand in the shoes of the state when state officials, as here, refuse to defend an initiative enacted by the people themselves. Otherwise, the law would confer on the governor and attorney general a right to nullify an initiative, a right never contemplated by the California Constitution.
Remember, the issues in this particular hearing arise in response to a question from the Ninth circuit as to the right of an initiative proponent to appeal Vaughn Walker’s ruling that Prop 8 is unconstitutional. There can be little doubt that at least Presiding Justice Stephen Reinhart WANTS the proponents to have standing, because that is the only way the Ninth Circuit can issue a ruling on the merits.
It seems crystal clear that Justice Reinhart is going to get his wish. The proponents will be granted standing to appeal, and the Ninth Circuit will then deal with the merits of the case – is Proposition 8 unconstitutional under the 14th Amendment of the US Constitution?
2:01PM -- Cooper wrap up: For the first time we hear from Justice Baxter, the most conservative member of the Court. He asks if there is a difference from the state’s interests and the interests of the people who have enacted an initiative. Cooper nails the point that the proponents have the authority to represent the state in court.
1:57PM -- Do initiative proponents have a particularized interest? Justice Liu is challenging Ted Olsen’s position that initiative proponents have a “particularized” interest in the initiative separate from a general state interest. Liu says this position stretches common sense.
1:49PM -- Justice Kennard is growing impatient and tired of Ted Olsen evading the basic point that if his position is adopted, there will be nobody to defend a state initiative passed by the people. “Mr. Olsen, perhaps I will ask you a simpler question. Who is left to defend the initiative if the state officials do not?”
1:47PM -- Olsen is alone. Doesn’t the judiciary have to demand that they have the best arguments before them to make a decision. Would you really have us here today only you arguing this case? Justice Kennard makes it clear that Ted Olsen is arguing that when the people have exercised their great power of the initiative, they are powerless to defend their decision. This nullifies the power of the people to decide initiatives. There has not been a single comment or question that suggests that any justice is at all sympathetic to the position being advocated by Ted Olsen. Even the most liberal justice, Gordon Liu, seems highly skeptical if not outright opposed to Olsen’s position.
1:43PM -- Justice Werderger asks if we couldn't simply tell the Ninth Circuit that California allows liberal intervention rules and it is up to the Ninth Circuit to determine if they have standing under federal law.
1:40PM -- The Chief Justice is asking what happens to the state’s interests if the state officials refuse to defend an initiative. She is making the point that the question goes far beyond Prop 8 and goes to the heart of the initiative process. Olsen claims the interests remain, but the implication is then that it can’t be defended. Justice Chen points out that Olsen’s position is that the initiative process is an empty vessel. How can an initiative be enforced if it cannot even be defended in court?
1:36PM -- Justice Kennard tells Olsen that if the court agrees with him, they would be creating a right for the attorney general and governor to nullify an initiative. No such power exists in the state constitution.
1:33PM -- Justice Liu taking on Olsen, pointing out that the initiative process has historically served as a check against the legislature and makes it crystal clear, “the initiative proponents clearly would have standing to appeal in state court.” That is essentially what the Ninth Circuit Court of Appeals has asked of the California Supreme Court. Ted Olsen basically is taking the position that the decision of the Attorney General not to defend an initiative is dispositive. Justice Liu, “Mr. Olsen I don’t know how you can even say that.”
1:29PM -- Ted Olsen up now. Justice Chen goes to the heart of the matter: does the Attorney General get to pick and choose which laws he will defend? And Werderger hammers it: Can the Attorney General and governor veto an initiative when the people have reserved the right of initiative to themselves. Ted Olsen is floundering.
1:26PM -- Justice Werderger is wondering if the Court could simply issue a ruling that state courts have liberal intervention rights and leave it at that. That would probably suffice in this case, but Cooper is making the point that it is not easy to get intervention in state court. Now the Chief Justice is pointing out that most of the state intervention cases are in circumstances where government officials stand shoulder to shoulder with the proponents. This is a different case, say suggests. Cooper responds that it would be an abuse of discretion if intervention were not allowed which is what the cases have found. He handled that well.
1:18PM -- Justice Kennard pointing out that the result of this hearing will apply to all state initiatives, not just Prop 8. This is important because if initiative proponents cannot defend an initiative, it gives veto power to the governor and attorney general.
1:12PM -- Goodwin Liu's first comment as a justice is to commend Chuck Cooper’s briefing and makes the observation that if this case (Perry v Schwarzenegger) were being litigated in state court there would be no doubt that the proponents have the right to defend the initiative. Cooper agrees that this is true and that, by extension, should be able to do so in federal court. Now Liu trying to determine is the right to stand in the state’s shoes extends beyond standing.
1:10PM -- Justice Kathyryn Werderger seems to be skeptical that initiative proponents have the right to represent the state when the officials responsible (governor and AG) don’t do so. She keeps picking at differences between the cases cited by Cooper and this case.
1:07PM -- Justice Joyce Kennard is asking Chuck Cooper whether standing requires a particularized interest in the outcome. This would be a legal interest distinct from the general public (a state interest). Cooper says they are entitled to standing under both a general state interest and a particularized interest. The proponents have a direct interest because of their standing as a proponent. They also have the right to stand in place of the state when the state does not defend an initiative.
Read our preview of what is at stake today in this hearing right here.