This morning, the California Supreme Court heard arguments on an important issue of California law that may affect whether the sponsors of Proposition 8 can continue to pursue their federal court appeal in Perry v. Brown, the case challenging Prop 8.
The federal Ninth Circuit Court of Appeals is hearing the appeal from federal District Judge Vaughn R. Walker’s August 2010 ruling striking down Prop 8. This January, the Ninth Circuit asked the California Supreme Court to answer a specific question of California law: Do the sponsors of an initiative like Prop 8 have special authority under California law to defend ballot initiatives in an appeal even when the state Attorney General or other responsible state officials have decided not to?
Under the California Constitution, when state laws are challenged as unconstitutional, elected state officials—usually the Attorney General or the Governor—are responsible for making all decisions relating to the legal defense of the law. That includes the decision whether or not to file an appeal when a court issues a decision striking down the law.
In the Perry case, both Attorney General Kamala Harris and Governor Jerry Brown concluded that they agree that Proposition 8 is unconstitutional and that appealing Judge Walker’s ruling is not in the best interests of the state. Because neither of these elected officials appealed the decision, the sponsors of Prop 8 cannot appeal Judge Walker’s decision unless they can show that they are personally harmed by permitting same-sex couples to marry or that state law gives them some special authority simply because they are initiative sponsors.
The U.S. Supreme Court has expressed “grave doubts” that the sponsors of a ballot initiative have standing to appeal a federal court decision invalidating the initiative—unless state law gives them some special right to do so. That is why the Ninth Circuit asked the California Supreme Court to weigh in on the case and decide whether California law grants special power to the proponents of Prop 8 to appeal the trial court ruling that Prop 8 is unconstitutional.
As NCLR, Lambda Legal, and Equality California argued in a friend-of-the court brief filed with the California Supreme Court, there is nothing in California law that gives initiative sponsors any special interest in an initiative once it is passed or that purports to deputize them to represent the interests of the state. To the contrary, the California Constitution and California law give the Attorney General and the Governor—not private initiative sponsors—the responsibility to decide whether and how to appeal a federal court decision striking down a state law. Both conservative and progressive elected officials have occasionally exercised that discretion in the past by choosing not to expend state resources to defend invalidated measures.
It is never possible to predict what a court will do based on the questions asked at oral argument, but the tenor of some of the justices’ questions today was concerning. With some notable exceptions, many of the California Supreme Court’s questions today did not address the specific legal issues before it or delve into the relevant provisions of the California Constitution. Instead, some of the justices seemed to be discussing the initiative process in general terms without considering that the state constitution specifically delegates the power to defend state laws to its elected officers.
The initiative process is already frequently misused to target vulnerable groups, due in part to the Court’s past reluctance to enforce any meaningful limits on the process, even when those limits are mandated by the California Constitution. It would compound that mistake to give initiative proponents an unprecedented new power to step outside of their proper legislative role, usurping the power that the California Constitution gives only to elected state officials in the executive branch.
If the California Supreme Court does expand the rights of initiative proponents in this unprecedented way, the Ninth Circuit will still need to consider whether the Prop 8 proponents meet the requirements for appealing in federal court. The Ninth Circuit could still decide that the Prop 8 proponents cannot appeal Judge Walker’s ruling because they have no personal stake in the outcome of the case: Unlike same-sex couples who are hurt every day by being forbidden to marry, the sponsors of Prop 8 would not suffer any harm from a decision that eliminates discrimination against gay couples. But regardless of how the Ninth Circuit rules on whether the proponents have standing in federal court, a decision from the California Supreme Court giving such power to initiative proponents under state law would be a terrible blow to equality—not just for LGBTQ people, but for any group targeted by ballot initiatives, which disproportionately seek to limit the rights of the most vulnerable people in our society. The argument today did not inspire confidence that our state supreme court justices sufficiently appreciate those stakes.