The California Supreme Court has announced that they will issue a ruling/advisory opinion tomorrow regarding Proposition 8. But this will not be a ruling on the validity of Proposition 8 nor will it be a binding ruling.
To briefly explain.
The 9th Circuit Court Of Appeals (or more directly a 3 judge panel from the court) asked the California Supreme Court to offer its opinion on the issue of standing with regard to the parties who stepped in to defend Proposition 8 when it was challenged.
Standing is basically the idea that you need to have some interest at stake to be involved in a case. For example assume you are driving down the street and witness a car accident. One of the drivers sues the other for damages and the defendant chooses not to fight the case. You think that the defendant is innocent so you decide to go to court and fight the case out.
The judge in that case would say that you don’t have the right to do that because you have no real interest at stake. It’s not your accident and you have no legal right to act on behalf of the defendant unless he lets you, and perhaps not even then.
In the case of Proposition 8, those opposed to the law sued the state of California on various grounds and the state ultimately decided not to defend itself. In essence it acted like our hypothetical defendant.
When this happened various parties, including one California county, chose to step in and fight the lawsuit.
The question thus arises, did they have the right to do so ? If the state is sued over the validity of a law and the state doesn’t argue the point, can someone else step in or do the plaintiffs simply win ?
This is the issue that the 9th Circuit asked the California Supreme Court to offer its opinion on and that will be the subject of the ruling tomorrow.
Once the ruling/opinion is issued then the 3 judge panel of the Federal court will review the issue, taking into account both the California Supreme Court opinion and other legal opinions and evidence. It will then decide the issue for itself and that opinion will be binding.
But the opinion will almost certainly be appealed to the full Appeals Court and probably from there to the US Supreme Court so there will be many more months of decisions and debates.
As to what the various courts will decide, it is hard to say but the general consensus seems to be that the Federal Appeals court panel will most likely follow the guidance of the California Supreme Court and that both the full Appeals Court and the US Supreme Court will do the same.
Looking to the California Supreme Court I tend to think they will rule that the defendants in the case did not have standing. There is a long line of court doctrine in both the state and federal courts holding that if the state is sued over a law and chooses not to defend it then nobody else can step in.
If that is indeed the ruling then we may have the equivalent of a bunt, Proposition 8 will fall because the defendants either did not respond to the lawsuit (as in the state of California) or did not have standing to respond (as in the case of the current defendants).
But the broader issue of whether the original Walker opinion that held the law itself was unconstitutional will not be decided.
However I’ve long learned that you should never try to pre-guess what a court will do.