The Prop 8 plaintiffs. Photo: KQED

The California Supreme Court has decided that it will hear the issue of whether proponents of Proposition 8 can stand in to represent voters when the state refuses to do so. The schedule that the court has set for filing briefs indicates the case will stretch well into September or beyond.

(Full announcementfrom the court below.)

In January the Federal Ninth Circuit Court of Appeals punted the case — Perry v. Schwarzenegger — to the court by asking for guidance on a highly unusual issue — whether proponents of a California ballot measure have “standing” — the legal right to sue due to sufficient impact on them by the matter at hand — when the state in the form of elected officials has declined to take up the case.

The officials in this case were Attorney General Jerry Brown and Governor Arnold Schwarzenegger, who refused to defend the lawsuit, which was filed on behalf of two same-sex couples denied marriage licenses.

U.S. District Court Judge Vaughn R. Walker then decided for the plaintiffs, ruling that Proposition 8 violated the Due Process and Equal Protection clauses of the 14th Amendment, and was therefore unconstitutional.

The defendants, the sponsors of Proposition 8, then filed an appeal. (That hearing was broadcast on radio and TV, and you can listen to an archive of it here.)

The Appeals Court then decided it could not rule on the case until the question of standing was decided by California courts. Which is what the court has in front of it now.

Here is the full announcement from the court today:

The California Supreme Court today unanimously voted to decide a question of state law in the Proposition 8 case pending before the United States Court of Appeals for the Ninth Circuit (Perry v. Schwarzenegger (Hollingsworth) S189476 (9th Cir. No. 10-16696).

Pursuant to the Ninth Circuit’s request, made under California Rules of Court, rule 8.548, the “legal standing” question to be addressed by the California Supreme Court is:

“Whether under Article II, Section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure possess either a particularized interest in the initiative’s validity or the authority to assert the State’s interest in the initiative’s validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so.”

The California Supreme Court shortened the normal briefing schedule to expedite consideration and resolution of the issues in the matter and to accommodate oral argument as early as September 2011.

The briefing schedule set by the court is follows:

The opening brief on the merits is to be served and filed on or before Monday, March 14, 2011. The answer brief on the merits is to be served and filed on or before Monday, April 4.

A reply brief may be served and filed on or before Monday, April 18.

Any person or entity wishing to file an amicus curiae brief must file an application for permission to file such brief, accompanied by the proposed brief, on or before Monday, May 2, 2011.

Any party may serve and file an omnibus reply to any or all amicus curiae briefs on or before Monday, May 9, 2011.

California Supreme Court Will Hear Issue of “Standing” in Prop 8 Trial 12 March,2013Jon Brooks

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