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Perry v. Schwarzenegger standing issue

Judge Walker refused to grant a stay of his ruling in Perry v. Schwarzenegger. At the moment, the California governor and attorney general are refusing to defend Prop 8, and Judge Walker held that the intervenors, the organizations that supported Prop 8, might not have standing to appeal his ruling.

If Perry v. Schwarzenegger ends up standing because of a lack of appellate standing, there will be great irony. Because Governor Schwarzenegger himself would not have been elected governor if not for the same issue of appellate standing being resolved in favor of intervenors.

In 2003, the ACLU and others sued to stop the California recall election of Governor Davis on dubious constitutional grounds. Naturally, Governor Davis and his allies in the attorney general's office refused to defend the suit on more than a perfunctory basis, but the district court permitted the sponsors of the recall to intervene. The district court ruled against the injunction; a three-judge panel of remarkably activist judges reversed and enjoined the election. It was the proponents of the recall (for whom I was one of the attorneys) who successfully moved for en banc review that struck down the injunction, paving the way for Governor Schwarzenegger to be elected. And no one raised the standing question.

Update: Ed Whelan cites to the Prop 8 brief, which pretty clearly demonstrates standing under the conjunction of Karcher v. May, 484 U.S. 72, 82 (1987) and California law in Building Indus. Ass'n v. City of Camarillo (Cal. 1986). I don't know what Judge Walker was thinking. Earlier.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.