California's Prop. 8 Entitled to Its Day in Court

      As California’s secretary of state, Jerry Brown helped draft and win overwhelming voter approval of a far-reaching initiative in June 1974 requiring disclosure of campaign spending in state races and establishing conflict-of-interest restrictions on state and local officeholders. Brown’s support for Proposition 9 helped win nomination on the same day as the Democratic candidate for governor and in November a narrow victory over the Republican candidate.
      Imagine, however, that modern-day Republicans who see constitutional flaws in virtually any campaign finance regulations had won the state races for governor and attorney general in November 1974. And imagine further that in litigation over the initiative, a federal judge had ruled Proposition 9 unconstitutional and that the hypothetical governor and attorney general – who had opposed the measure all along -- then chose not to appeal the ruling.
      Under that scenario, would the official sponsors of the ballot initiative have standing to appeal the ruling, hoping to reverse it or at least to get a definitive decision? If not, wouldn’t the state officials who refused to appeal the ruling have succeeded in nullifying the will of the people of California in passing the initiative?
      Fast forward four decades, and that is the legal question now pending before the California Supreme Court on the litigation over Proposition 8, the 2008 ballot initiative that bars marriage rights for same-sex couples. Brown, now back in the governor’s office, and a Democratic attorney general, Kamala Harris, are declining to appeal a federal judge’s ruling that the anti-gay marriage initiative violates federal constitutional rights. The official sponsors of the ballot measure, ProtectMarriage.com and the organization’s leaders, responded by seeking to appeal in place of the state officials. And the Ninth U.S. Circuit Court of Appeals decided that it needs the California high court to say whether, as a matter of state law, a ballot initiative sponsor has legal standing to do so.
      From all that appears from the arguments in the case last week [Sept. 6], the California court is inclined to say yes. Among the seven justices, a majority appeared ready to rule that safeguarding what the court has previously called the “precious” right of initiative requires recognizing the right of the initiative’s sponsors to defend it in court if state officials refuse.
      Leaving an initiative with no one to defend would amount to “nullifying the great power that the people have reserved for themselves,” remarked Justice Joyce Kennard, one of the court’s liberals. Conservative Justice Ming W. Chin similarly saw a threat to the initiative process if state officials could acquiesce in judicial rulings to strike down ballot measures. “So the attorney general and the governor get to pick the laws they want to enforce?” he asked. The Chief Justice, Tani Cantil-Sakauye, appointed at the start of the year, warned in like vein that the initiative process would be “illusory” if ballot measure sponsors could not step in to ensure a full defense in court.
      The oral arguments and friend-of-the-court briefs in the case, Perry v. Brown, featured a reversal of traditional ideological positions on legal standing. Conservative groups typically thought of as opposed to expansive views of legal standing argued in favor of the anti-gay marriage group’s right to appeal the earlier ruling, while groups ordinarily thought of as liberal, including the League of Women Voters and gay rights’ organizations, argued against standing.
      The Ninth Circuit felt obliged to ask for advice because neither the California nor U.S. Supreme Court has definitively answered the question up to now. The U.S. Supreme Court, in a New Jersey case, did recognize the right of state legislators to defend a state law when executive officials refuse, but based the ruling on the particulars of New Jersey law (Karcher v. May, 1987). A decade later, the court indicated “grave doubt” whether sponsors of an Arizona ballot measure could defend it in court, but dismissed the case as moot without reaching a definite conclusion (Arizonans for Official English v. Arizona, 1997).
      In California, state courts have traditionally been liberal in allowing ballot measure sponsors to intervene in litigation without specifying the exact basis for doing so. “This issue has never come up definitively in our jurisprudence,” remarked Justice Goodwin Liu, who was confirmed to his post only a few days earlier after his nomination to the Ninth Circuit was thwarted by Republican opposition.
      Liu suggested, however, that the California court’s ruling on the state law issue may not be determinative for the Ninth Circuit. That’s because federal courts have interpreted the “case or controversy” requirement of Article III of the U.S. Constitution somewhat strictly. Even after getting an answer from the California court, the Ninth Circuit could rule that with no state officials to defend Proposition 8, there is no longer a live controversy for federal courts to consider.
      Gay rights groups might understandably hope for a ruling that blocks any further appeal and wipes Proposition 8 off the books. As Kennard remarked, however, the state court’s ruling will not be limited to gay issues. The initiative process has been much abused in recent decades, in California and elsewhere. But it remains a potentially valuable safeguard for the people against unresponsive and unaccountable government. There is little to be lost, and much to gain, in making sure that once enacted, a popularly approved ballot initiative gets its day in court, at every level, until a final resolution.