In Perry v. Brown, 2011 Cal. LEXIS 11683, filed on November 17, 2011, the Supreme Court of California was asked by the United States Court of Appeals for the Ninth Circuit the question of whether the official proponents of an initiative measure have standing to defend the constitutionality of the initiative or appeal a judgment invalidating the initiatve when public officials refuse to do so.
The Supreme Court decided a procedural issue that might arise in any action involving an initiative. In the federal case, the opponents of Proposition 8 are challenging its constitutionality. Proposition 8 would add a section to the California Constitution providing that "[o]nly marriage between a man and a woman is valid or recognized in California." The Supreme Court was not deciding the substantive question of the constitutional validity of Proposition 8, which will be decided by the Ninth Circuit.
The Court noted that in the past official proponents of initiative measures have been allowed to participate as parties, either as interveners or real parties in interests, and they did not have to show that their property, liberty or other personal legally protected interests would be affected if the measure was invalidated. They were also allowed to participate in such lawsuits whether or not the government officials were also defending the measure.
In an opinion by our new Chief Justice Cantil-Sakauye, the Court wrote that in situations where the public officials have declined to defend the initiative's validity, and in light of the "nature and purpose of the initiative process embodied in article II, section 8 of the California Constitution . . . and the unique role of initiative proponents in the constitutional initiative process . . .," it would constitute an abuse of discretion to deny official proponents a role in the proceedings. (Opn. , pg. 10.) The Court continued:
"In other words, because it is essential to the integrity of the initiative process embodied in article II, section 8 that there be someone to assert the state's interest in an initiative's validity on behalf of the people when the public officials who normally assert that interest decline to do so, and because the official proponents of an initiative (in light of their unique relationship to the initiative measure under art. II, sec. 8 and the relevant provisions of the Elec. Code) are the most obvious and logical persons to assert the state's interest in the initiative's validity on behalf of the voters who enacted the measure, 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. 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. 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 in the validity of the measure or to appeal a lower court judgment invalidating the measure when those public officials decline to assert that interest or to appeal an adverse judgment."
(Opn., pgs. 10-11.)
I know, that's a fine way to start the Holiday season. Now the 9th Circuit can work on the substantive aspects of the appeal, and hopefully, Proposition 8 will be declared unconstitutional.
Have a Happy Thanksgiving!