Metropolitan News-Enterprise


Friday, November 18, 2011


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Supreme Court Rules in Proposition 8 Case:

Initiative Sponsor May Appeal Ruling Striking Down Measure


From Staff and Wire Service Reports


The sponsors of ballot propositions can step in to defend their initiatives from legal challenges if the governor and attorney general refuse to do so, California’s highest court said yesterday in a precedent-setting ruling that could prove pivotal to the future of the state’s same-sex marriage ban and its notoriously vigorous citizens’ initiative process.

Responding to a certified question from the Ninth U.S. Circuit Court of Appeals, which is considering the constitutionality of the state’s voter-approved same-sex marriage ban, the California Supreme Court said the lawmaking power granted to citizens under the state Constitution doesn’t end once propositions have been approved or rejected by voters.

“We conclude that California law authorizes the official proponents, under such circumstances, to appear in the proceeding to assert the state’s interest in the initiative’s validity and to appeal a judgment invalidating the measure,” Chief Justice Tani Cantil-Sakauye wrote for a unanimous court.

Veto Power

In the 61-page opinion, the chief justice said denying initiative backers a seat at the table would effectively grant the governor and attorney general veto power over initiatives with which they disagreed, a situation the justices said would undermine the law-making powers California gave voters in 1911.

“Neither the governor, the attorney general, nor any other executive or legislative official has the authority to veto or invalidate an initiative measure that has been approved by the voters,” the chief justice said. “It would exalt form over substance to interpret California law in a manner that would permit these public officials to indirectly achieve such a result by denying the official initiative proponents the authority to step in to assert the state’s interest ...”

Prior cases, the chief justice said, have consistently permitted sponsors to defend initiatives. The plaintiffs had argued that those decisions only involved measures in which the sponsors had personal interests at stake in the litigation, and were decided as “a liberal exercise of judicial discretion,” but Cantil-Sakauye said they were reading the cases too narrowly.

Argument Rejected

The chief justice also rejected the plaintiffs’ contention that the constitutional and statutory provisions setting forth the role of the attorney general in defending laws from constitutional attack preclude private citizens from doing so.  None of those provisions make the attorney general’s role exclusive, Cantil-Sakauye said.

Nor is the fact that taxpayers might be stuck with having to pay the sponsors’ attorney fees determinative of standing, the chief justice said. Any liability for attorney fees is a question separate from standing, she said.

 A three-judge panel of the Ninth Circuit asked the state court in January to clarify who is eligible to fight for voter-approved initiatives in court when state officials opt not to. The panel said the question was unsettled under both federal and California law, but central to its deliberations in the ongoing same-sex marriage skirmish because if the backers of the 2008 initiative known as Proposition 8 lacked legal standing, it would have to dismiss the case.

The coalition of religious and conservative groups that qualified Proposition 8 for the ballot and successfully campaigned for its passage have asked the Ninth Circuit to reverse a federal trial judge’s ruling in August 2010 striking down the measure as a violation of gay Californians’ civil rights. Both former Gov. Arnold Schwarzenegger and Gov. Jerry Brown, in his previous role as state attorney general, took the unusual step of refusing to appeal the decision, and current Attorney General Kamala Harris took the same stance.

Harris said in a statement that while her office argued against standing for sponsors, the court’s ruling to the contrary does not resolve the merits of the challenge. “I firmly believe that Proposition 8 violates the equal protection and due process clauses of the U.S. Constitution and am confident that justice will prevail,” the state’s chief legal officer declared.

But if the Ninth Circuit does accept the Supreme Court’s interpretation, it would clear the way for the appeals court to analyze the substance of the appeal. The ban’s supporters cheered the likelihood of that happening now that the state court has weighed in.

“We are delighted that the Supreme Court has clearly reaffirmed our right, as the official proponents of Prop8, to defend over seven million Californians who amended their own State Constitution to restore traditional marriage,” Protect Marriage General Counsel Andy Pugno said. “This victory is an enormous boost for Proposition 8 as well as the integrity of the initiative process itself.”

Lawyers for the two gay couples who successfully sued to overturn the ban in the lower court had argued that if the ban’s backers did not have the right to appeal, the trial judge’s decision would stand and same-sex marriages would be legal in California for the first time since Proposition 8 passed three years ago.

After the Supreme Court ruling was issued, the couples’ lawyers said they still felt confident the ban ultimately would be struck down by the Ninth Circuit and possibly reach the U.S. Supreme Court.

“We are very anxious to move forward on the merits,” former U.S. Solicitor General Ted Olson said.

The ruling establishes a state precedent that could be used in other ballot initiative cases the attorney general or governor decline to defend. Instances are rare of state officials refusing to appeal rulings that are adverse to voter-approved laws, but they have come up in California every couple decades or so.

Civil rights groups criticized the Supreme Court’s expansive view of the initiative process, predicting it would put minorities at a political disadvantage.

“Allowing the Prop 8 proponents to have special rights in court may open the floodgates to wealthy special interests to do the same,” said Courage Campaign chairman Rick Jacobs, whose group champions liberal causes in California. “The judges of the 9th Circuit must determine if people who had enough money to buy a ballot measure that calls for people to vote on each other’s rights should have special rights in federal court.”

The case is Perry v. Brown, 11 S.O.S. 6157.


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