New Spat Over Standing in Proposition 8 Case

Attorneys representing Prop. 8 opponents today voiced their opposition to effortsby a newly-elected Imperial County official to defend the same-sex marriage ban before the 9th Circuit.

Some background: When Governor Schwarzenegger and then-Attorney General Jerry Brown declined to appeal last year's district court decision striking down Prop. 8, a deputy county clerk in Imperial County (Isabel Vargas) sought to intervene on behalf of voters in that county.

In January, the 9th Circuit issued a ruling denying that effort, saying "Were Imperial County's elected County Clerk the applicant for intervention, that argument might have merit. A County Clerk is not before us, however, so we need not, and do not, decide now whether a County Clerk would have been permitted to intervene..."

Republican Chuck Storey became the new County Clerk in January. And unlike his elected predecessor (who retired), Storey wants to get involved in the Prop. 8 case. He filed a motion to intervene last month.

In their response filing today, attorney Theodore Olson writes: "No county clerk has any legally protected interest in taking sides over what the marriage laws say; the interpretation of those laws belongs to state officials, and the clerk’s only interest is to follow the State’s directive in applying those laws." He goes on to say that in any case, Storey's motion comes too late anyway since "the court has already issued its judgment in the appeal Mr. Storey seeks to join."

The issue of standing looms large. At the request of the Ninth Circuit, the State Supreme Court is now considering whether state law allows proponents of ballot measures to defend them when no one else in state government will. If the Supreme Court says it does not that could be the end of the appeal, as the 9th Circuit would have little choice but to dismiss it. Oral arguments in that case will come no sooner than September, with a ruling expected 90 days after that.