Tuesday, July 02, 2013

          Prof Dodson to BNA: Standing Issues in Hollingsworth, Windsor May Boil Down to Parties' Litigation Strategy

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          Professor Scott Dodson weighs in as the Supreme Court splits the difference on jurisdictional issues in same-sex marriage cases, allowing ruling on merits in challenge to DOMA and setting aside all but district court opinion in Prop 8 case.

          Reproduced with permission from The United States Law Week, 82 U.S.L.W. 35 (July 2, 2013). Copyright 2013 by The Bureau of National Affairs, Inc. (800-372-1033) 

          Key Ruling: Supreme Court splits the difference on jurisdictional issues in same-sex marriage cases, allowing ruling on merits in challenge to DOMA and setting aside all but district court opinion in Prop 8 case.

          Key Takeaway: California's decision to sit out Prop 8 case entirely may have been the single biggest factor in Supreme Court's decision to forgo merits ruling. Professor Scott Dodson has more.

          Hollingsworth v. Perry, U.S., No. 12-144, 6/26/13

          United States v. Windsor, U.S., No. 12-307, 6/26/13

          By Tom P. Taylor

          The landmark end-of-term rulings by the U.S. Supreme Court on same-sex marriage both address complex jurisdictional issues. In one case, the question of jurisdiction proved no more than a speed bump on the way to striking down the Defense of Marriage Act, while in the other, the question of standing tore the litigation over California's Proposition 8 down to its district court foundation (United States v. Windsor, U.S., No. 12-307, 6/26/13; Hollingsworth v. Perry, U.S., No. 12-144, 6/26/13).

          Civil procedure experts that spoke with BNA June 26 in the wake of the decisions pointed out that while both cases involved a government decision not do defend validly enacted laws, the outcomes may be attributable more to the litigation strategies--or lack thereof--employed by the government actors rather than their state or federal affiliation.

          “As to Article III jurisdiction, differences in litigation strategy may be more important than the difference between state governments and the federal government,” Adam N. Steinman, a professor at Seton Hall University School of Law, Newark, N.J., told BNA June 26.

          “In Windsor, the federal government enforced DOMA … and then proceeded to seek review of both the district court and appellate court rulings that DOMA was unconstitutional,” Steinman, whose teaching and scholarship focus on both civil procedure and federal courts, said.

          “In Perry, on the other hand, the California government did not appeal the district court's order and injunction. The standing inquiry in Perry might have come out differently if the California government had taken the same steps the U.S. government took in Windsor,” he added.

          Scott Dodson, a professor at UC Hastings College of the Law, San Francisco, also saw California's decision to sit things out as critical.

          “The main difference in the two cases, for purposes of standing, is that although governments were the defendants in both cases and essentially agreed with the plaintiffs in both cases, California refused to appeal at all in Hollingsworth (leaving it only to private parties to appeal), while the United States appealed in Windsor,” Dodson, who also teaches civil procedure and federal courts, told BNA June 26.

          Government Glad to Refund Money

          Justice Anthony M. Kennedy opened the court's June 26 session by announcing its decision in the Windsor case, involving a challenge to DOMA brought by a widow Edith Windsor seeking to recover $363,053 in estate taxes paid after her same-sex spouse passed away in 2009.

          Even though the federal government agreed with Windsor that DOMA--which prevented the federal government from recognizing the couple's valid New York marriage for purposes of the estate tax--was unconstitutional, the court said that the fact that the government was on the hook for returning the tax money after Windsor prevailed in both the district and circuit courts was enough of an injury to confer standing.

          “That the Executive may welcome this order to pay the refund if it is accompanied by the constitutional ruling it wants does not eliminate the injury to the national Treasury if payment is made, or to the taxpayer if it is not,” the court said.

          But the court was less forgiving in Hollingsworth, where it found that the official proponents of Prop 8--the successful California ballot initiative that limited marriage to between a man and a woman--did not have standing to appeal a district court's order barring state officials from enforcing it.

          Despite a ruling by the California Supreme Court holding that the proponents were authorized to defend the measure under state law, Chief Justice John G. Roberts Jr. said that they in fact lacked the required standing to pursue appeals in federal court.

          “Their only interest in having the District Court order reversed was to vindicate the constitutional validity of a generally applicable California law,” Roberts wrote. Such a “generalized grievance,” he added, “is insufficient to confer standing.”

          Addressing Scalia's Concerns

          Justice Antonin Scalia penned a forceful dissent in Windsor, which he read, in part, from the bench.

          Calling the majority's jurisdictional ruling “jaw-dropping,” and “an assertion of judicial supremacy” over the elected branches of government, Scalia argued that the court's power to decide “what the law is,” is only incident to its power to resolve disputes by providing meaningful remedies.

          Where, as here, the government asks the court to bless the very injury it asserts, no such controversy exists, he explained.

          By deciding such cases, Scalia worried, the court risks becoming the arbiter of disputes between the executive and legislative branches involving constitutional questions. Those disputes would be better handled through a “tug of war between the President and the Congress, which has innumerable means (up to and including impeachment) of compelling the President to enforce the laws it has written.”

          Dodson called Scalia's concerns over the role of the judiciary “somewhat overblown.”

          First, “Each case presents a similar standing problem--what to do when the government agrees with a district-court order that its law is invalid,” Dodson pointed out.

          But, “such a circumstance occurs extremely rarely,” he added. “The government almost always asserts the validity of its own laws.”

          Dodson also noted that “the Court has dismissed patently manufactured disputes before on standing grounds when no amicus or intervenor with sincere views represented the other side.”

          In this case, the Bipartisan Legal Advisory Group of the House of Representatives intervened in the case to defend DOMA. According to Kennedy's opinion, the group “present[ed] a substantial argument for the constitutionality of … DOMA.”

          “So, the Court might still have dismissed the Windsor appeal on prudential standing grounds had BLAG not zealously represented the arguments in opposition,” Dodson said.

          Windsor,” he concluded, “is a narrow decision. It applies only when the United States agrees with the district-court decision but nevertheless refused to comply with it and takes an appeal, and only when some other entity with sincere opposition adequately represents the other side.”

          Federal Court, Federal Law

          In Hollingsworth, the court was forced to look at the interplay between state law--which the California Supreme Court said gave the Prop 8 proponents the right to defend the law--and requirements for standing in federal court.

          Hollingsworth makes clear, if it was not already, that standing in federal court is a matter of federal law,” Dodson said. “Now, had state law created an agency relationship between the state and the Prop 8 proponents, federal law might have recognized their standing to appeal on behalf of the state's interests.”

          But Roberts firmly rejected that theory, concluding that “the most basic features of an agency relationship are missing here”--features such as the principal's right to control the agent's actions, a fiduciary obligation owed by the agent to the principal, and a principal's duty to indemnify the agent against expenses and other losses.

          Having rejected the proponents' arguments in favor of standing, the court vacated the judgment of the U.S. Court of Appeals for the Ninth Circuit and remanded with instructions that the circuit court dismiss the case for lack of jurisdiction.

          Notably, Roberts does not address the question of how the district court's order--which was left intact--should be applied going forward, Steinman told BNA.

          However, “he recognizes that the district court injunction 'permanently enjoin[ed] the California officials named as defendants from enforcing [Prop 8], … “directing the official defendants that all persons under their control or supervision” shall not enforce it,” Steinman said.

          As Dodson put it, the district court opinion “is valid and controlling according to its terms. It is not controlling outside of California. Nor, frankly is it controlling on any other court in any other case.”

          But, he added, “because it resulted in a state-wide invalidation of Prop 8 and injunction against state-wide California officials from enforcing Prop 8, and because California has no desire to enforce Prop 8 anyway, the end result is likely that California will begin issuing same-sex marriage licenses throughout the state.”

          All this, Steinman pointed out, seems to be confirmed by a tweet from California Attorney General Kamala Harris (@KamalaHarris): “If a CA county decides to violate the law and not enforce this injunction, CA will take legal action. #Prop8”

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