February 16, 2011
Today in the federal court challenge to California’s Proposition 8, the California Supreme Court agreed to accept a question sent to it last month by the Ninth Circuit Court of Appeals and provided a timeline for the briefing and argument on that question. The question posed to the California Supreme Court by the Ninth Circuit panel is whether California law gives ballot initiative sponsors the extraordinary power to override the decisions of elected state officials about how to litigate court challenges to state laws. In the context of this case, Perry vs. Schwarzenegger, the question is whether the proponents of Prop 8 can force an appeal of the federal district court decision holding that Prop 8 is unconstitutional. In today’s order, the California Supreme Court did not answer that question, but agreed to answer it after an expedited briefing and argument schedule, with oral arguments to come as soon as September of 2011.
As we see it, the California Supreme Court should have no trouble deciding that the supporters of Proposition 8 do not have the right to force an appeal of Judge Walker’s ruling. The California Constitution vests the power to decide how to handle lawsuits involving the constitutionality of ballot initiatives squarely in the hands of the Attorney General and the Governor. That includes the authority to decide whether or not to appeal a court ruling invalidating the initiative.
This is not a new issue. In fact, in several well-known cases, California’s elected officials have refused to defend voter-enacted initiatives on appeal. In 1967, the California Attorney General refused to defend a voter-approved ballot initiative that would have amended the California Constitution to allow real estate owners to discriminate on the basis of race when renting their property. The California Attorney General not only declined to defend that shameful amendment in court, he actually asked the United States Supreme Court to strike it down.
Similarly, in 1999, the Governor refused to appeal a ruling by the U.S. District Court striking down Proposition 187, which would have required the State to withhold health care, public education, and other critical state services to undocumented immigrants.
In these cases, California officials were doing what the voters elected them to do — deciding whether these laws could and should continue to be defended on appeal after courts decided that they were unconstitutional.