Lead Opinion
Opinion
At the request of the United States Court of Appeals for the Ninth Circuit, we agreed to decide a question of California law that is relevant to the underlying lawsuit in this matter now pending in that federal appellate court. (Perry v. Brown (9th Cir., No. 10-16696); see Cal. Rules of Court, rule 8.548.) As posed by the Ninth Circuit, the question to be decided is “[w]hether under article II, section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure possess either a particularized interest in the initiative’s validity or the authority to assert the State’s interest in the initiative’s validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so.”
In addressing this issue, we emphasize at the outset that although in this case the question posed by the Ninth Circuit happens to arise in litigation challenging the validity, under the United States Constitution, of the initiative measure (Proposition 8) that added a section to the California Constitution providing that “[ojnly marriage between a man and a woman is valid or recognized in California” (Cal. Const., art. I, § 7.5), the state law issue that has been submitted to this court is totally unrelated to the substantive question of the constitutional validity of Proposition 8. Instead, the question before us involves a fundamental procedural issue that may arise with respect to any initiative measure, without regard to its subject matter. The same procedural issue regarding an official initiative proponent’s standing to appear as a party in a judicial proceeding to defend the validity of a voter-approved initiative or to appeal a judgment invalidating it when the public officials who ordinarily provide such a defense or file such an appeal decline to do so, could arise with regard to an initiative measure that, for example, (1) limited campaign contributions that may be collected by elected legislative or executive officials, or (2) imposed term limits for legislative and executive
As we discuss more fully below, in the past official proponents of initiative measures in California have uniformly been permitted to participate as parties—either as interveners or as real parties in interest—in numerous lawsuits in California courts challenging the validity of the initiative measure the proponents sponsored. Such participation has routinely been permitted (1) without any inquiry into or showing that the proponents’ own property, liberty, or other personal legally protected interests would be specially affected by invalidation of the measure, and (2) whether or not the government officials who ordinarily defend a challenged enactment were also defending the measure in the proceeding. This court, however, has not previously had occasion fully to explain the basis upon which an official initiative proponent’s ability to participate as a party in such litigation rests.
As we shall explain, because the initiative process is specifically intended to enable the people to amend the state Constitution or to enact statutes when current government officials have declined to adopt (and often have publicly opposed) the measure in question, the voters who have successfully adopted an initiative measure may reasonably harbor a legitimate concern that the public officials who ordinarily defend a challenged state law in court may not, in the case of an initiative measure, always undertake such a defense with vigor or with the objectives and interests of those voters paramount in mind. As a consequence, California courts have routinely permitted the official proponents of an initiative to intervene or appear as real parties in interest to defend a challenged voter-approved initiative measure in order “to guard the people’s right to exercise initiative power” (Building Industry Assn. v. City of Camarillo (1986)
We have cautioned that in most instances it may well be an abuse of discretion for a court to fail to permit the official proponents of an initiative to intervene in a judicial proceeding to protect the people’s right to exercise their initiative power even when one or more government defendants are defending the initiative’s validity in the proceeding. (See Building Industry Assn., supra,
Accordingly, we respond to the question posed by the Ninth Circuit in the affirmative. In a postelection challenge to a voter-approved initiative measure, the official proponents of the initiative are authorized under California law to appear and assert the state’s interest in the initiative’s validity and to appeal a judgment invalidating the measure when the public officials who ordinarily defend the measure or appeal such a judgment decline to do so.
I. Factual and Procedural Background
We begin with a brief summary of the factual and procedural background of the current proceeding.
In May 2008, a majority of this court concluded that the California statutes limiting the designation of marriage to opposite-sex couples violated the right of same-sex couples to the equal protection of the laws as guaranteed by the then governing provisions of the California Constitution. (In re Marriage Cases (2008) 43 Cal.4th 757 [
Proposition 8 was submitted to the Attorney General, circulated for signature, and formally filed with the Secretary of State for submission to the voters by five California electors—Dennis Hollingsworth, Gail J. Knight, Martin F. Gutierrez, Hak-Shing William Tam, and Mark A. Jansson—who are the official proponents of the initiative measure under California law. (Elec. Code, §§ 342, 9001.) Shortly after commencing the initiative petition process, the proponents established ProtectMarriage.com—Yes on 8, a project of California Renewal (hereafter ProtectMarriage.com) as a “ballot measure committee” (see Gov. Code, § 84107) to supervise all aspects of the campaign to qualify the measure for the ballot and to seek to obtain its adoption at the ensuing election.
One day after the November 2008 election at which Proposition 8 was approved by a majority of voters, opponents of the measure filed three petitions for an original writ of mandate in this court, challenging the validity
While those petitions were pending, and before this court decided whether to accept the matters for decision, the official proponents of Proposition 8 filed motions to intervene in each of the proceedings, to defend the validity of Proposition 8. Shortly thereafter, this court agreed to hear and decide the petitions and, in the same order, granted the official proponents’ motions to intervene in the proceedings.
After briefing and oral argument, this court, on May 26, 2009, handed down its decision in Strauss, supra,
On May 22, 2009, just a few days before the decision in Strauss, supra,
On May 28, 2009, the proponents of Proposition 8 and ProtectMarriage.com (hereafter Proponents) filed a motion to intervene in the Perry proceeding, maintaining that the existing parties in the action would not adequately represent the interests of those who wished to defend the measure.
On June 12, 2009, all named defendants filed answers to the complaint. In their answers, the named defendants other than the Attorney General refused to take a position on the merits of plaintiffs’ constitutional challenge and declined to defend the validity of Proposition 8. The answer filed by the Attorney General also declined to defend the initiative, but went further and affirmatively took the position that Proposition 8 is unconstitutional.
On July 2, 2009, the district court held a hearing on a number of matters, including the motion to intervene filed by Proponents. At that hearing, the district court observed that “under California law, as I understand it, proponents of initiative measures have the standing to represent proponents and to defend an enactment that is brought into law by the initiative process” and suggested that such intervention by the official initiative proponents was particularly appropriate “where the authorities, the defendants who ordinarily would defend the proposition or the enactment that is being challenged here, are taking the position that, in fact, it is constitutionally infirm[].” Neither plaintiffs nor any of the named defendants objected to Proponents’ motion to intervene and the district court granted the motion.
At the conclusion of the trial, the district court issued a lengthy opinion, setting forth numerous findings of fact and conclusions of law and determining that Proposition 8 violates both the due process and equal protection clauses of the federal Constitution. (Perry I, supra,
Proponents, as interveners in the district court, filed in the Ninth Circuit a timely appeal of the district court judgment invalidating Proposition 8.
In the briefs filed in the Ninth Circuit on that issue, plaintiffs argued that Proponents lacked standing to appeal and that, as a consequence, the appeal in Perry should be dismissed. Proponents vigorously contested plaintiffs’ contention, pointing out that they had been permitted to intervene and participate as parties in defense of Proposition 8 both by this court in Strauss, supra,
After conducting oral argument, the three-judge panel of the Ninth Circuit assigned to this case issued an order on January 4, 2011, requesting this court to answer the question of California law set forth above; namely, whether, under California law, the official proponents of an initiative measure that has been approved by the voters possess either “a particularized interest in the initiative’s validity” or “the authority to assert the State’s interest in the initiative’s validity” so as to afford the proponents standing to defend the constitutionality of the initiative or to appeal a judgment invalidating the initiative when the public officials who ordinarily would provide such a defense or file such an appeal decline to do so. (Perry II, supra,
In explaining its reason for submitting this question to this court, the Ninth Circuit stated in part: “Although the Governor has chosen not to defend Proposition 8 in these proceedings, it is not clear whether he may, consistent with the California Constitution, achieve through a refusal to litigate what he may not do directly: effectively veto the initiative by refusing to defend it or appeal a judgment invalidating it, if no one else—including the initiative’s proponents—is qualified to do so. Proponents argue that such a harsh result is avoided if the balance of power provided in the California Constitution establishes that proponents of an initiative are authorized to defend that initiative, as agents of the People, in lieu of public officials who refuse to do so. Similarly, under California law,. the proponents of an initiative may possess a particularized interest in defending the constitutionality of their initiative upon its enactment; the Constitution’s purpose in reserving the initiative power to the People would appear to be ill-served by allowing elected officials to nullify either proponents’ efforts to ‘propose statutes and amendments to the Constitution’ or the People’s right ‘to adopt or reject’ such propositions. Cal. Const., art. II, § 8(a). Rather than rely on our own understanding of this balance of power under the California Constitution, however, we certify the question so that the [California Supreme] Court may provide an authoritative answer as to the rights, interests, and authority under California law of the official proponents of an initiative measure to defend its validity upon its enactment in the case of a challenge to its constitutionality, where the state officials charged with that duty refuse to execute it.” (Perry II, supra,
On February 16, 2011, we agreed to decide the question of California law as requested by the Ninth Circuit and established an expedited briefing schedule that would permit this court to conduct oral argument in this matter as early as September 2011. All parties and numerous amici curiae timely filed briefs in this matter, and oral argument was held on September 6, 2011.
II. Relevance of State Law to Standing Under Federal Law
Decisions of the United States Supreme Court establish that the determination whether an individual or entity seeking to participate as a party in a federal court proceeding or to appeal from an adverse judgment entered in such a proceeding possesses the requisite standing to satisfy the “case or controversy” provisions of article III of the United States Constitution is ultimately a question of federal law upon which the federal courts have the final say. (See, e.g., Phillips Petroleum Co. v. Shutts (1985)
As the question posed by the Ninth Circuit indicates, in the present case two potential bases for standing are implicated: (1) The official proponents of a successful initiative measure may have authority to appear in court to assert the state’s interest in defending the validity of a duly enacted state law,
A. Standing to Assert the State’s Interest in an Initiative’s Validity
With respect to the question of who possesses standing to assert the state’s interest in defending the validity of a state constitutional provision or statute when the state measure is challenged in a federal proceeding, we believe the United States Supreme Court’s decision in Karcher v. May (1987)
In Karcher, a lawsuit was filed in federal district court contending that a recently enacted New Jersey statute that required primary and secondary public schools in that state to observe a minute of silence at the start of each schoolday was unconstitutional as a violation of the establishment clause of
Karcher and Orechio, acting in their official capacities as Speaker of the New Jersey General Assembly and President of the New Jersey Senate, appealed the district court judgment to the Court of Appeals for the Third Circuit. The Third Circuit heard the appeal on the merits and ultimately affirmed the district court decision invalidating the statute.
After the Third Circuit handed down its decision, Karcher and Orechio lost their posts as presiding legislative officers and were replaced by other legislators in those legislative posts. Despite this change in status, Karcher and Orechio filed an appeal of the Third Circuit decision in the United States Supreme Court. The new state legislative presiding officers who had replaced Karcher and Orechio notified the United States Supreme Court that they were withdrawing the legislature’s appeal, but at the same time informed the court that Karcher wanted to continue his appeal of the Third Circuit decision in the Supreme Court. Karcher confirmed that position.
The United States Supreme Court postponed consideration of the jurisdictional issue pending its hearing of the case, and, after oral argument, the high court issued its decision, concluding that because Karcher and Orechio were no longer the legislative leaders of the respective houses of the New Jersey Legislature, they lacked standing to appeal. The court explained: “Karcher and Orechio intervened in this lawsuit in their official capacities as presiding officers on behalf of the New Jersey Legislature. They do not appeal the judgment in those capacities. Indeed, they could not, for they no longer hold those offices. The authority to pursue the lawsuit on behalf of the legislature belongs to those who succeeded Karcher and Orechio in office.” (Karcher, supra,
Karcher and Orechio further argued that if, as the high court concluded, their appeal was to be dismissed for want of jurisdiction, the court should also vacate the judgments of the district court and the Third Circuit that had
As the foregoing italicized passage demonstrates, in Karcher the Supreme Court looked to state law to determine whether a prospective litigant had authority to assert the state’s interest in defending a challenged state measure in federal court. Upon reflection this result is not surprising, inasmuch as logic suggests that a state should have the power to determine who is authorized to assert the state’s own interest in defending a challenged state law.
As plaintiffs accurately point out, Karcher, supra,
In addressing the standing issue in Arizonans for Official English, supra,
Although for the foregoing reasons the court expressed “grave doubts” whether the initiative proponents in question had standing under article III to pursue appellate review (Arizonans for Official English, supra,
As the italicized portion of the passage from Arizonans for Official English quoted above indicates, the high court’s doubts as to the official initiative proponents’ standing in that case were based, at least in substantial part, on the fact that the court was not aware of any “Arizona law appointing
We note in this regard that in its order submitting the present question to this court, the Ninth Circuit stated explicitly that, in its view, if the official proponents of an initiative have authority under California law to assert the state’s interest in the initiative measure’s validity in such a case, then, under federal law, the proponents would have standing in a federal proceeding to assert the state’s interest in defending the challenged initiative and to appeal a judgment invalidating the initiative. (Perry II, supra,
Under the controlling federal authorities, the role that state law plays in determining whether an official proponent of a successful initiative measure has a sufficient personal “particularized interest” in the validity of the measure to support the proponent’s standing under federal law appears to be more complex than the role played by state law when the official proponent is authorized by state law to assert the state’s interest in the validity of the initiative.
Under the particularized interest standard, federal decisions establish that a federal court considers whether a prospective party is able to demonstrate “an invasion of a legally protected interest which is (a) concrete and particularized, . . . and (b) ‘actual or imminent, not “conjectural” or “hypothetical.” ’ ” (Lujan v. Defenders of Wildlife (1992)
In the present case, the parties disagree as to whether an official initiative proponent possesses a special or distinct interest in the validity of an initiative measure the proponent has sponsored once the initiative has been approved by the voters and adopted as state law, and, even if so, whether the nature of that interest and of the injury the proponent would suffer if the initiative measure is invalidated are sufficient to accord the proponent standing for federal law purposes under the particularized interest standard.
Plaintiffs, by contrast, assert that although the official proponents of an initiative may possess a personal, particularized interest under the California Constitution and the applicable statutory provisions in having an initiative measure they have proposed submitted to the voters, once an initiative measure has been approved by the voters the official proponents have no greater personal legally protected interest in the measure’s validity than any other member of the public. Accordingly, plaintiffs argue that once an initiative measure has been enacted into law, its official proponents do not possess a distinct, particularized interest in the initiative’s validity.
As we explain, we need not decide whether the official proponents of an initiative measure possess a particularized interest in the initiative’s validity once the measure has been approved by the voters. For the reasons discussed below, we conclude that when public officials decline to defend a voter-approved initiative or assert the state’s interest in the initiative’s validity, under California law the official proponents of an initiative measure are authorized to assert the state’s interest in the validity of the initiative and to appeal a judgment invalidating the measure. Because that conclusion is sufficient to support an affirmative response to the question posed by the Ninth Circuit, we need not decide whether, under California law, the official proponents also possess a particularized interest in a voter-approved initiative’s validity.
III. Analysis of Initiative Proponents’ Standing Under California Law
A. Basis of Initiative Proponents’ Standing
Article II, section 1 of the California Constitution proclaims: “All political power is inherent in the people. Government is instituted for their
Although California’s original 1849 Constitution declared that “[a]ll political power is inherent in the people,” it was not until 60 years later—in 1911—that the California Constitution was amended to afford the voters of California the authority to directly propose and adopt state constitutional amendments and statutory provisions through the initiative power. In Associated Home Builders etc., Inc. v. City of Livermore (1976)
As a number of our past decisions have explained, the progressive movement in California that introduced the initiative power into our state Constitution grew out of dissatisfaction with the then governing public officials and a widespread belief that the people had lost control of the political process. (See, e.g., Independent Energy Producers Assn. v. McPherson (2006)
The California constitutional provisions setting forth the initiative power do not explicitly refer to or fully prescribe the authority or responsibilities of the official proponents of an initiative measure,
Elections Code section 342 defines the proponent of an initiative measure as “the elector or electors who submit the text of a proposed initiative or referendum to the Attorney General with a request that he or she
Once an initiative measure has qualified for the ballot, several provisions of the Elections Code vest proponents with the power to control the arguments in favor of an initiative measure. Although any voter can file with the Secretary of State an argument for or against the initiative (Elec. Code, § 9064), a ballot argument shall not be accepted unless it has been “authorized by the proponent” (Elec. Code, § 9065, subd. (d)). If more than one argument is filed, Elections Code section 9067 provides that in preparing the ballot pamphlet “preference and priority” shall be given to the ballot argument submitted by the official proponents of the initiative measure. Proponents similarly control the rebuttal arguments in favor of an initiative. (See Elec. Code, § 9069.) Moreover, proponents retain the power to withdraw a ballot argument at any time before the deadline for filing arguments. (See Elec. Code, § 9601.)
Under these and related statutory provisions (see, e.g., Elec. Code, §§ 9002, 9004, 9604), the official proponents of an initiative measure are recognized as having a distinct role—involving both authority and responsibilities that differ from other supporters of the measure—with regard to the initiative measure the proponents have sponsored.
Neither the state constitutional provisions relating to the initiative power, nor the statutory provisions relating to the official proponents of an initiative measure, expressly address the question whether, or in what circumstances,
The decisions in which official initiative proponents (or organizations that have been directly involved in drafting and sponsoring the initiative measure) have been permitted to participate as parties in California proceedings involving challenges to an initiative measure are legion. (See, e.g., Strauss, supra,
Although in most of these cases the official initiative proponent’s participation as a formal party—either as an intervener or as a real party in interest—was not challenged and, as a consequence, this court’s prior decisions (with the exception of the Building Industry Assn, decision discussed below) have not had occasion to analyze the question of the official proponent’s authority to so participate, the prevalence and uniformity of this court’s practice of permitting official proponents to appear as formal parties to defend the initiative measure they have sponsored nonetheless is significant. As Chief Justice Marshall explained in an early decision of the United
Plaintiffs acknowledge that California trial and appellate courts have repeatedly and consistently permitted the official proponents of an initiative to appear as formal parties to defend the initiative measure they have sponsored. Plaintiffs maintain, however, that in all of the prior cases the official proponents were permitted to intervene or to appear as real parties in interest only by virtue of a liberal exercise of judicial discretion and then only to represent the proponents’ own personal interests rather than to assert the state’s interest in the validity of the measure.
Plaintiffs’ characterization of the precedents, however, is not based on the text of those decisions. As already noted, in all but one of this court’s prior decisions we have not been called upon to address the basis of our uniform practice of permitting official initiative proponents to intervene or to appear as real parties in interest in such litigation, and, in particular, to explain whether the proponents’ participation was to assert the state’s interest in the validity of the measure or to defend the proponents’ own particularized personal interest in the validity of the measure (or perhaps in both capacities).
Prior to an election, litigation involving an initiative measure may arise with regard to a wide variety of issues, including, for example, (1) whether the proposed measure may not be submitted to the voters through the initiative process in light of its subject matter (see Independent Energy Producers, supra,
Once an initiative measure has been approved by the requisite vote of electors in an election, however, the measure becomes a duly enacted constitutional amendment or statute. At that point, in the absence of a showing that the particular initiative in question will differentially affect the official proponents’ own property, liberty or other individually possessed legal right or legally protected interest, it is arguably less clear that the official proponents possess a personal legally protected stake in the initiative’s validity that differs from that of each individual who voted for the measure or, indeed, from that of the people of the state as a whole. Although the matter is subject to reasonable debate, one may question whether the official proponents of a successful initiative measure, any more than legislators who have introduced and successfully shepherded a bill through the legislative process, can properly claim any distinct or personal legally protected stake in the measure once it is enacted into law.
Nonetheless, as we have seen, the decisions of this court and the Courts of Appeal in postelection challenges to voter-approved initiative measures have uniformly permitted the official proponents of an initiative measure to intervene, or to appear as real parties in interest, to defend the validity of the challenged initiative measure. In the postelection setting, the ability of official initiative proponents to intervene or to appear as real parties in interest has never been contingent upon the proponents’ demonstration that their own personal property, liberty, reputation, or other individually possessed, legally protected interests would be adversely or differentially affected by a judicial decision invalidating the initiative measure. (See, e.g., Brosnahan v. Eu, supra,
As already noted, although most of our prior cases have not had occasion to discuss or analyze the source of the authority possessed by the official proponents of an initiative to intervene in a postelection challenge to defend the initiative measure the proponents have sponsored, one case—Building Industry Assn., supra,
In Building Industry Assn., supra,
In the course of its opinion, the court in Building Industry Assn., supra,
Although this passage in Building Industry Assn., supra,
First, the passage recognizes that although public officials ordinarily have the responsibility of defending a challenged law, in instances in which the challenged law has been adopted through the initiative process there is a realistic risk that the public officials may not defend the approved initiative measure “with vigor.” (Building Industry Assn., supra,
Second, the passage explains that because of the risk that public officials may not defend an initiative’s validity with vigor, a court should ordinarily permit the official proponents of an initiative measure to intervene in an action challenging the validity of the measure in order “to guard the people’s right to exercise initiative power.” (Building Industry Assn., supra,
Third, contrary to plaintiffs’ contention that the numerous decisions permitting initiative proponents to intervene or to appear as real parties in interest in postelection litigation challenging an initiative measure simply reflect unfettered discretionary judgments in favor of the proponents’ participation, the passage in Building Industry Assn., supra,
Plaintiffs argue that the passage in Building Industry Assn., supra,
In our view, there is no need to decide whether the passage in Building Industry Assn, is properly considered a holding or dictum, because in any event we believe that the passage accurately describes at least one fundamental basis of this court’s uniform practice of permitting the official proponents of an initiative to intervene or to appear as real parties in interest in cases challenging the validity of a voter-approved initiative measure. The statement in Building Industry Assn, that permitting intervention by such proponents serves to guard the people’s right to exercise the initiative power finds support in numerous cases in which official initiative proponents advanced many of the most substantial legal theories that were raised in support of the challenged measure and were discussed in this court’s opinion. (See, e.g., Strauss, supra,
The experience of California courts in reviewing challenges to voter-approved initiative measures over many years thus teaches that permitting the official proponents of an initiative to participate as parties in postelection cases, even when public officials are also defending the initiative measure, often is essential to ensure that the interests and perspective of the voters who approved the measure are not consciously or unconsciously subordinated to other public interests that may be championed by elected officials, and that all viable legal arguments in favor of the initiative’s validity are brought to the court’s attention. Although the legal arguments advanced by the official proponents of an initiative are not always the strongest or most persuasive arguments regarding the validity or proper interpretation of the initiative measure that are brought to a court’s attention, past decisions demonstrate the importance of affording such proponents the opportunity to participate, along with elected officials, in asserting the state’s interest in the validity of a challenged initiative measure. Such participation by the official initiative proponents enhances both the substantive fairness and completeness of the judicial evaluation of the initiative’s validity and the appearance of procedural fairness that is essential if a court decision adjudicating the validity of a voter-approved initiative measure is to be perceived as legitimate by the initiative’s supporters.
Moreover, although our past decisions have not had occasion to discuss or identify the specific source of the authority possessed by the official proponents of an initiative measure to assert the state’s interest in the initiative’s validity, we conclude that at least in those circumstances in which the government officials who ordinarily defend a challenged statute or constitutional amendment have declined to provide such a defense or to appeal a lower court decision striking down the measure, the authority of the official proponents of the initiative to assert the state’s interest in the validity of the initiative is properly understood as arising out of article II, section 8 of the California Constitution and the provisions of the Elections Code relating to the role of initiative proponents. The initiative power would be significantly impaired if there were no one to assert the state’s interest in the validity of the measure when elected officials decline to defend it in court or
Accordingly, we conclude that when the public officials who ordinarily defend a challenged measure decline to do so, article II, section 8 of the California Constitution and the applicable provisions of the Elections Code authorize the official proponents of an initiative measure to intervene or to participate as real parties in interest in a judicial proceeding to assert the state’s interest in the initiative’s validity and to appeal a judgment invalidating the measure.
Plaintiffs advance a number of objections to a determination that the official proponents of an initiative are authorized to assert the state’s interest in the validity of a voter-approved initiative when the public officials who ordinarily defend a challenged state law decline to do so. For the reasons discussed below, we conclude that none of the objections has merit.
1.
Plaintiffs initially rely upon the provisions of the California Constitution setting forth the authority and obligation of the Governor and the Attorney General with regard to the enforcement of the law (Cal. Const., art. V, §§ 1, 13),
The constitutional and statutory provisions to which plaintiffs point establish that in a judicial proceeding in which the validity of a state law is challenged, the state’s interest in the validity of the law is ordinarily asserted by the state Attorney General. These constitutional and statutory provisions, however, have never been interpreted to mean that the Attorney General is the
The State of California, of course, is composed of three branches of government, a great number of elected and appointed public officials, and myriad state and local agencies, boards, and public entities. In many instances the interests of two or more public officials or entities may conflict and give rise to differing official views as to the validity or proper interpretation of a challenged state law. In such instances, it is not uncommon for different officials or entities to appear in a judicial proceeding as distinct parties and to be represented by separate counsel, each official or entity presenting its own perspective of the state’s interest with regard to the constitutional challenge or proposed interpretation at issue in the case.
The case of Amwest, supra,
Although Amwest is one of the many California cases, cited above, in which an initiative proponent was permitted to intervene as a formal party and to appeal an adverse decision (see ante, at pp. 1143-1144), Amwest is also a case in which the named government defendants themselves took conflicting positions regarding the validity of the new statute. In that case, the Governor, the Attorney General, and the State Board of Equalization—all represented by the Attorney General—maintained that the new statute was constitutionally valid. By contrast, the Insurance Commissioner—represented by separate counsel—took the position that the new statute did not further the purpose of Proposition 103 and was invalid. (See Amwest, supra,
As Amwest illustrates, it is hardly uncommon for public officials or entities to take different legal positions with regard to the validity or proper interpretation of a challenged state law. (See, e.g., In re Marriage Cases, supra,
Moreover, even when there is neither a conflict of interest nor a difference of opinion among the government officials or entities named in the litigation, in those instances in which the Attorney General or another public official declines to defend a state statute or constitutional provision in a court proceeding because of that official’s view that the challenged provision is unconstitutional, other public officials or entities, represented by separate counsel, have been permitted to assert the state’s interest in defending the challenged law. (See, e.g., Connerly v. State Personnel Bd., supra,
Thus, the constitutional and statutory provisions relating to the Attorney General’s authority and responsibilities do not preclude others from asserting the state’s interest in the validity of a challenged law.
2.
Plaintiffs next argue that appearing in court to assert the state’s interest in the validity of a challenged law or to appeal a judgment invalidating the law is exclusively an executive branch function. Because the authority to propose and adopt state constitutional amendments or statutes embodied in the initiative provisions of the California Constitution is essentially a legislative authority (see, e.g., Professional Engineers in California Government v. Kempton (2007)
Past authority, however, does not support plaintiffs’ claim that appearing as a party in court to assert the state’s interest in the validity of a challenged law is exclusively an executive function. In INS v. Chadha (1983)
Although we are not aware of any California case in which the Legislature has appeared as a formal party to defend a challenged state law when the Attorney General or other public officials have declined to do so, plaintiffs have cited no case that supports the claim that it would violate the separation of powers doctrine embodied in the California Constitution for the Legislature to provide such a defense when other public officials decline to do so. In a number of California cases, the Legislature or one of its constituent houses has appeared as a party in litigation challenging the validity of a proposed or adopted initiative or referendum measure (see, e.g., Senate of the State of Cal. v. Jones, supra,
3.
Plaintiffs also raise another, somewhat related, separation of powers claim, contending that permitting an initiative proponent to assert the state’s interest in the validity of a challenged initiative measure will interfere with the Attorney General’s exercise of the powers of his or her office in representing the state’s interest. Our recognition that official initiative proponents are authorized to assert the state’s interest in an initiative’s validity when public officials have declined to defend the measure, however, does not mean, as plaintiffs suggest, that the proponents are authorized to “override” the Attorney General’s or other public officials’ authority to make their own decisions regarding the defense of the measure. As we have discussed, in many past cases initiative proponents have been permitted to participate as formal parties defending an initiative measure along with the public officials named as defendants, and in those instances each party has been permitted to proffer its own arguments and control its own actions in defense of the initiative.
Similarly, the ability of official initiative proponents to defend a challenged initiative measure on behalf of the state is not inconsistent with the discretion the Attorney General may possess to decline to defend a challenged measure or to decline to appeal from an adverse judgment when the Attorney General is of the view that a challenged initiative measure is unconstitutional. (Cf. State of California v. Superior Court (1986)
4.
Plaintiffs also contend that because the official proponents of an initiative measure are private individuals who have not been elected to public office, take no oath to uphold the California Constitution or laws, cannot be recalled or impeached, and are not subject to the conflict of interest rules or other ethical standards that apply to public officials, they cannot properly assert the state’s interest in the validity of a challenged initiative measure.
Our determination that the official proponents of an initiative are authorized to assert the state’s interest in the validity of the initiative measure when public officials have declined to defend the measure, however, does not mean that the proponents become de facto public officials or possess any official authority to enact laws or regulations or even to directly enforce the initiative measure in question. Rather, the authority the proponents possess in this context is simply the authority to participate as parties in a court action and to assert legal arguments in defense of the state’s interest in the validity of the initiative measure when the public officials who ordinarily would assert the state’s interest in the validity of the measure have not done so. This authority is extremely narrow and limited and does not imply any authority to act on behalf of the state in other respects. Because of the limited nature of the proponents’ authority, they are properly subject to the same ethical constraints that apply to all other parties in a legal proceeding.
As discussed above, we recognized in Building Industry Assn., supra,
Moreover, even outside the initiative context it is neither unprecedented nor particularly unusual under California law for persons other than public officials to be permitted to participate as formal parties in a court action to assert the public’s or the state’s interest in upholding or enforcing a duly enacted law. For example, under the so-called “public interest” exception in mandate actions, private citizens have long been authorized to bring a mandate action to enforce a public duty involving the protection of a public right in order to ensure that no government body impairs or defeats the purpose of legislation establishing such a right. (See, e.g., Green v. Obledo (1981)
In sum, even though the official proponents of an initiative measure are not public officials, the role they play in asserting the state’s interest in the validity of an initiative measure in this judicial setting does not threaten the democratic process or the proper governance of the state, but, on the contrary, serves to safeguard the unique elements and integrity of the initiative process.
5.
Finally, plaintiffs suggest that a determination that the official proponents of an initiative are authorized to assert the state’s interest in the validity of a challenged initiative in a court proceeding will result in untoward consequences in other contexts.
For example, plaintiffs contend that if official initiative proponents are permitted to assert the state’s interest in an initiative’s validity and to appeal an adverse judgment when the Attorney General and other public officials have declined to do so, the proponents’ action in filing an appeal may subject the state to substantial monetary liability for attorney fees should the proponents’ efforts in support of the challenged measure prove unsuccessful. The question of who should bear responsibility for any attorney fee award in such circumstances, however, is entirely distinct from the question whether the official proponents of an initiative are authorized to assert the state’s interest in the validity of a challenged initiative measure and is not before us in this proceeding. Our conclusion that official initiative proponents are authorized to assert the state’s interest in the validity of a challenged initiative measure when public officials decline to do so does not mean that any monetary liability incurred as a result of the proponents’ actions should or must be borne by the state. The attorney fee issue can properly be addressed if and when the question arises in the future. (Cf. Connerly v. State Personnel Bd., supra, 37 Cal.4th at pp. 1178-1179 [distinguishing status of intervener initiative proponents from that of amicus curiae in concluding that amicus curiae could not properly be held liable for private-attomey-general attorney fee award].)
C. Out-of-state Decisions
As the foregoing discussion indicates, in reaching the conclusion that the official proponents of an initiative are authorized under California law to defend a challenged initiative measure and to appeal from a judgment invalidating the measure when public officials decline to defend the initiative, we have relied upon the history and purpose of the initiative provisions of the California Constitution and upon the numerous California decisions that have uniformly permitted the official proponents of initiative measures to appear as parties and defend the validity of the measures they have sponsored.
In addition, we note that in recent years each of the two other state supreme courts that has addressed the question whether the official proponents of an initiative measure have standing under state law to intervene in an action challenging the validity of the initiative measure has concluded that, under each state’s respective law, initiative proponents generally are authorized to intervene as of right in such an action in state court.
1.
In Alaskans for a Common Language v. Kritz (Alaska 2000)
In analyzing the question of the official proponents’ right to intervene, the Alaska Supreme Court noted that prior to the vote on the initiative measure at issue in that case, the attorney general’s office had raised potential questions regarding the constitutionality of the measure and the governor had personally opposed the measure during the election campaign. (Alaskans for a Common Language, supra, 3 P.3d at pp. 909-910.) Nonetheless, observing that courts generally “recognize a presumption of adequate representation when government entities are parties to a lawsuit because those entities are charged by law with representing the interests of the people” (id at p. 913), the Alaska Supreme Court stated that “[b]ased on the presumption of adequate government representation, we presume that the Attorney General’s Office would not fail to defend the constitutionality of the initiative energetically and capably. Based on that same presumption, we also presume that the governor would not interfere” (id at p. 914).
The court in Alaskans for a Common Language, supra, 3 P.3d 906, went on to explain, however, that despite the court’s presumption that the government defendants would energetically and capably defend the challenged measure, inasmuch as the initiative proponents had “used the process of direct legislation to enact a law that the executive branch questioned and opposed[,] [t]hey cannot be faulted for wanting to guarantee that the initiative is defended zealously or for trying to ensure that the credibility of institutional arguments in favor of the initiative is not diminished by the previous comments from the executive branch. To them, and to the public in sympathy with the initiative, the governor’s opposition and the Attorney General Office’s questions . . . during the campaign, could create an appearance of adversity. Every strategic decision made by the Attorney General’s Office in defending the legislation might be publicly questioned and second-guessed by the initiative’s sympathizers. That this suspicion may be unfounded does not make it less inevitable.” (
The Alaska Supreme Court went on to conclude; “Here, because of the nature of direct legislation through the initiative process, the possible appearance of adversity of interest is sufficient to overcome the presumption of adequate representation. Indeed, we believe that [an initiative] sponsor’s direct interest in legislation enacted through the initiative process and the concomitant need to avoid the appearance of adversity will ordinarily
The Alaska Supreme Court reached a contrary conclusion, however, with respect to the other organization that had sought intervention in the trial court. Pointing out that “[t]he record fails to show, and U.S. English has not asserted, that its directors, officers, or incorporators were sponsors of the initiative in Alaska or were members of the initiative committee” (Alaskans for a Common Language, supra,
2.
In Sportsmen for 1-143 v. Fifteenth Judicial Court (2002)
IV. Conclusion
In response to the question submitted by the Ninth Circuit, we conclude, for the reasons discussed above, that when the public officials who ordinarily defend a challenged state law or appeal a judgment invalidating the law decline to do so, under article II, section 8 of the California Constitution and the relevant provisions of the Elections Code, the official proponents of a voter-approved initiative measure are authorized to assert the state’s interest in the initiative’s validity, enabling the proponents to defend the constitutionality of the initiative and to appeal a judgment invalidating the initiative.
Kennard, J., Baxter, I., Werdegar, I., Chin, J., Corrigan, I., and Liu, J., concurred.
Notes
The order in Strauss, supra,
The decision rendered by the federal district court after trial was published as Perry v. Schwarzenegger (N.D.Cal. 2010)
Hereafter, except when specifically referring to either the district court’s decision or the Ninth Circuit’s order, this opinion will refer to the federal lawsuit simply as the Perry action.
In the Strauss litigation filed in this court, the petitioners challenged the validity of Proposition 8 only on state constitutional grounds, and did not raise the question of the constitutional validity of the measure under the federal Constitution. (See Strauss, supra,
The relevant portion of the transcript of the July 2, 2009 hearing reads: “[W]ith respect to the motion to intervene, that basically is unopposed and, it does seem to me, substantially justified in this case, particularly where the authorities, the defendants who ordinarily would defend the proposition or the enactment that is being challenged here, are taking the position that, in fact, it is constitutionally infirm]]. And so, it seems to me, both for practical reasons and reasons of proceeding in this case in an orderly and judicial fashion that intervention is appropriate. [][] Certainly, under California law, as I understand it, proponents of initiative measures have the standing to represent proponents and to defend an enactment that is brought into law by the initiative process. [][].. . [A]re there any objections to granting the motion to intervene? [][] (No response.) [f] . . . Hearing none, that motion will be granted.”
The district court in Perry also granted a motion filed by the City and County of San Francisco (San Francisco) to intervene in the action on behalf of plaintiffs. As an intervener, San Francisco has participated as a party in these proceedings in the district court, in the Ninth Circuit, and in this court. Although plaintiffs and San Francisco have filed separate briefs in this court, the legal arguments raised by these parties largely overlap and for convenience we shall refer to the arguments presented by any of these parties as plaintiffs’ arguments.
At a later stage of the district court proceedings, the County of Imperial, the Imperial County Board of Supervisors, and the Imperial County Deputy County Clerk/Recorder moved to intervene in the action to defend the validity of Proposition 8. The district court did not rule on the Imperial County motion to intervene until after the trial was completed and the court had handed down its ruling on the merits. At that point, the district court denied the intervention motion. Thereafter, Imperial County, its board of supervisors and its deputy county clerk/recorder appealed the denial of their motion to intervene to the Ninth Circuit. On the same day the Ninth Circuit filed its order submitting the question of Proponents’ standing to this court, the Ninth Circuit issued an opinion affirming the district court’s denial of intervention by Imperial County, its board of supervisors and its deputy county clerk/recorder. In affirming the denial of intervention, the Ninth Circuit opinion relied in part on the fact that intervention had been sought by the deputy county clerk/recorder rather than the county clerk/recorder herself; the opinion left open the question whether a county clerk/recorder would have standing to intervene. On February 25, 2011, the newly elected County Clerk/ Recorder of Imperial County filed a motion in the Ninth Circuit seeking to intervene in the action. That motion is currently pending in the Ninth Circuit.
Initially, all five of the individual proponents of Proposition 8 moved to intervene in the Perry litigation. In the course of the district court litigation, one of the individual proponents— Hak-shing William Tam (Tam)—moved to withdraw as a defendant intervener. The district court did not rule on Tam’s motion to withdraw until after it issued its decision on the merits, and at that point the district court denied the motion to withdraw as moot.
Tam did not join in the appeal from the district court judgment that was filed in the Ninth Circuit by the other four individual proponents and ProtectMarriage.com. For convenience,
Under federal law, a party who has been permitted to intervene in a lower court proceeding is entitled to appeal a judgment in the absence of the party on whose side intervention was permitted only upon a showing that the intervener independently fulfills the case or controversy requirements of article DI of the federal Constitution. (See, e.g., Diamond v. Charles (1986)
In addition to disagreeing as to whether Proponents have standing to appeal, in their briefs and oral argument before the Ninth Circuit plaintiffs and Proponents disagreed on the consequences that would flow from a determination by the Ninth Circuit that Proponents lack standing to appeal and the dismissal of their appeal. Plaintiffs contended that a dismissal of the appeal would leave the district court judgment in effect and that the district court ruling would be binding on the named state officers and on the two named county clerks. Proponents contended, by contrast, that if the Ninth Circuit determines they lack standing to appeal, that court would be required not only to dismiss the appeal but also to vacate the district court judgment. (See Perry II, supra,
Decisions of the United States Supreme Court clearly establish that “a State has standing to defend the constitutionality of its statute.” (Diamond v. Charles, supra,
In In re Forsythe, supra,
Thus, in Forsythe, the parties who the United States Supreme Court in Karcher subsequently concluded had authority under state law to represent the state’s interest in defending a challenged statute were permitted to intervene in a New Jersey Supreme Court case to defend the validity of a challenged statute alongside the New Jersey Attorney General who was also defending the statute.
We note that unlike in Karcher, supra,
As the passage from Arizonans for Official English quoted above (ante, at p. 1136) indicates, the high court in that case also cited The Don’t Bankrupt Washington Committee v. Continental Illinois National Bank & Trust Company of Chicago, supra,
The constitutional provisions relating to the initiative power are currently set forth in article II, sections 8 and 10, article IV, section 1, and article XVIH, sections 3 and 4 of the California Constitution.
Article n, section 8, provides in relevant part: “(a) The initiative is the power of the electors to propose statutes and amendments to the Constitution and to adopt or reject them.
“(b) An initiative measure may be proposed by presenting to the Secretary of State a petition that sets forth the text of the proposed statute or amendment to the Constitution and is certified to have been signed by electors equal in number to 5 percent in the case of a statute, and 8 percent in the case of an amendment to the Constitution, of the votes for all candidates for Governor at the last gubernatorial election.
“(c) The Secretary of State shall then submit the measure at the next general election held at least 131 days after it qualifies or at any special statewide election held prior to that general election. The Governor may call a special statewide election for the measure.”
Article II, section 10 provides in relevant part: “(a) An initiative statute . . . approved by a majority of votes thereon takes effect the day after the election unless the measure provides otherwise. Q] . . . [j[|
“(c) The Legislature . . . may amend or repeal an initiative statute by another statute that become effective only when approved by the electors unless the initiative statute permits amendment or repeal without their approval.
“(d) Prior to circulation of an initiative ... petition for signatures, a copy shall be submitted to the Attorney General who shall prepare a title and summary of the measure as provided by law.
“(e) The Legislature shall provide the manner in which petitions shall be circulated, presented, and certified, and measures submitted to the electors.”
Article IV, section 1 provides in full: “The legislative power of this State is vested in the California Legislature which consists of the Senate and Assembly, but the people reserve to themselves the powers of initiative and referendum.”
Article XVIII, section 3 provides in full: “The electors may amend the Constitution by initiative.”
Article XVIII, section 4 provides in relevant part: “A proposed amendment . . . shall be submitted to the electors and if approved by a majority of votes thereon takes effect the day after the election unless the measure provides otherwise.”
Elections Code section 9001 also requires the proponents of an initiative measure, in submitting their request for a title and summary, to pay a fee which is to be refunded to the proponents if the measure qualifies for the ballot within two years from the date the summary is furnished to the proponents.
Past decisions have frequently drawn a distinction, for purposes of intervention, between, on the one hand, the official proponents of an initiative measure or organizations that were directly involved in drafting and sponsoring the measure, and, on the other hand, other advocacy groups that ideologically support the measure.
As noted above (fh. 1, ante, at p. 1128), in the Strauss litigation our court granted the motion filed by the official proponents of Proposition 8 to intervene as formal parties in defending the initiative measure, but at the same time denied a motion to intervene that had been filed by another pro-Proposition 8 advocacy group. (See also Connerly v. State Personnel Bd. (2006)
In light of this distinction, plaintiffs’ reliance upon the Court of Appeal decision in City and County of San Francisco v. State of California (2005)
Neither the statutory provision relating to intervention nor the provision pertaining to the status of a real party in interest addresses the question whether a would-be party’s proposed participation is to assert its own interest or to assert the state’s interest.
Code of Civil Procedure section 387—the intervention statute—provides in relevant part: “(a) Upon timely application, any person, who has an interest in the matter in litigation, or in the success of either of the parties, or an interest against both, may intervene in the action or proceeding. . . . Q] (b) If any provision of law confers an unconditional right to intervene or if the person seeking intervention claims an interest relating to the property or transaction which is the subject of the action and that person is so situated that the disposition of the action may as a practical matter impair or impede that person’s ability to protect that interest, unless that person’s interest is adequately represented by existing parties, the court shall, upon timely application, permit that person to intervene.”
Code of Civil Procedure section 367—the real party in interest statute—provides simply: “Every action must be prosecuted in the name of the real party in interest, except as otherwise provided by statute.”
Although past California decisions have generally not had occasion to explicitly address the rationale or basis underlying the authority of official initiative proponents to participate as interveners or real parties in interest, the Ninth Circuit’s question to this court demonstrates that the underlying basis for proponents’ participation under California law is potentially
This does not mean that state officials cannot participate in such litigation and take a position on whether the preelection challenge has merit. (See, e.g., Schmitz v. Younger (1978)
Plaintiffs point out that the invalidation of Proposition 8 in the underlying federal litigation did not result from any action or inaction by the Governor or Attorney General but from a decision by the federal district court after a contested trial. Ordinarily, however, public officials who are defending a state law against a constitutional challenge can be expected to appeal an adverse trial court judgment to an appellate court. Indeed, from the outset of the federal district court proceedings in the underlying case, the district court itself emphasized its expectation that its decision would constitute only the first stage of proceedings that would lead to an appellate court determination of the significant constitutional question at issue in the proceeding. The inability of the official proponents of an initiative measure to appeal a trial court judgment invalidating the measure, when the public officials who ordinarily would file such an appeal decline to do so, would significantly undermine the initiative power.
Because the Ninth Circuit has asked us to determine only whether the official proponents of an initiative measure have authority under California law to assert the state’s interest in the validity of an initiative when the public officials who ordinarily defend the measure decline to do so, we have no occasion to address the hypothetical question whether in a case in which public officials have declined to defend the measure and the official initiative proponents are not available or do not seek to assert the state’s interest in the validity of the measure, other individuals or entities would be entitled to intervene in the proceeding to assert the state’s interest in the validity of the initiative. We express no opinion on that question.
Article V, section 1 of the California Constitution provides in full: “The supreme executive power of this State is vested in the Governor. The Governor shall see that the law is faithfully executed.”
Article V, section 13 of the California Constitution provides in relevant part: “Subject to the powers and duties of the Governor, the Attorney General shall be the chief law officer of the State. It shall be the duty of the Attorney General to see that the laws of the State are uniformly and adequately enforced.”
Government Code section 12511 provides in relevant part: “The Attorney General has charge, as attorney, of all legal matters in which the State is interested . . . .”
Government Code section 12512 provides: “The Attorney General shall attend the Supreme Court and prosecute or defend all causes to which the State, or any State officer is a party in his or her official capacity.”
Code of Civil Procedure section 902.1 authorizes the Attorney General to intervene and participate in any appeal in any proceeding in which a state statute or regulation has been declared unconstitutional by a court.
Plaintiffs’ reliance on the Court of Appeal’s ruling in Beckley v. Schwarzenegger (Sept. 1, 2010, C065920), summarily denying a petition for writ of mandate that sought to compel the Governor and the Attorney General to file notices of appeal from the federal district court’s decision in Perry, is misplaced. The question whether the Governor or the Attorney General has discretion to decline to defend a challenged law or to appeal a lower court ruling invalidating the law is totally distinct from the issue whether some other official or individual has standing to do so, and thus the order in Beckley has no bearing on the determination whether the official proponents of an initiative have standing to file such an appeal.
In Chadha, a federal statutory provision that authorized either house of Congress, by resolution of that house alone, to invalidate a decision by the Immigration and Naturalization Service (INS) to allow a particular deportable alien to remain in the United States was challenged as a violation of the separation of powers doctrine. In that proceeding, the INS—represented by the United States Attorney General—agreed with the petitioner alien’s claim that the one-house veto provision was unconstitutional, and Congress was permitted to intervene in the court of appeals to defend the challenged statute. When the case reached the Supreme Court, the high court explicitly held that “Congress is both a proper party to defend
The propriety of congressional or legislative participation in court proceedings in defense of a challenged statute is also illustrated by the circumstances surrounding the United States Attorney General’s recent decision to cease defending the validity of a provision of the federal Defense of Marriage Act (1 U.S.C. § 7) in court actions challenging that statute. At the same time the Attorney General announced that he would no longer defend the statute in question because he and the President of the United States had concluded that the measure was unconstitutional, the Attorney General stated: “I have informed Members of Congress of this decision, so Members who wish to defend the statute may pursue that option. The Department will also work closely with the courts to ensure that Congress has a full and fair opportunity to participate in pending litigation.” (Statement of the Atty. Gen. on Litigation Involving the Defense of Marriage Act (Feb. 23, 2011) <http://www.justice.gov/opa/pr/2011/February/ll-ag222.html> [as of Nov. 17, 2011].)
We note that in both the public interest and private attorney general contexts, the authority of private individuals to act on behalf of the public interest under California law was initially recognized by judicial decision notwithstanding the absence of any specific constitutional or statutory provision expressly granting such authority. (See, e.g., Green v. Obledo, supra, 29 Cal.3d at pp. 144-145, and cases cited; Serrano v. Priest, supra, 20 Cal.3d at pp. 45-47.)
The court added a narrow qualification to its broad holding that initiative proponents are entitled to intervene in such litigation as a matter of right, explaining that “Alaska courts should retain discretion to deny intervention in exceptional cases, because [the relevant Alaska statute relating to initiative sponsors] places no limit on the number of initiative sponsors and therefore potentially opens the door to an unlimited number of motions for intervention. As an alternative to limiting intervention in those cases, courts may instead choose to reduce duplication by requiring those sponsors with substantially similar interests to consolidate then-briefing and to participate through lead counsel.” (Alaskans for a Common Language, supra,
We note that both Alaskans for a Common Language, supra,
Concurrence Opinion
While joining fully in the court’s unanimous opinion authored by the Chief lustice, I write separately to highlight the historical and legal events that have led to today’s decision and to explain why I concur in that decision.
I
This case marks the fourth time in recent years that this court has addressed issues related to the ongoing political and legal struggle about whether same-sex marriages should be recognized as valid in California. In 2004, this court held that San Francisco public officials exceeded their authority when they issued marriage licenses to same-sex couples without a prior judicial determination of the constitutionality of a California statute restricting marriage to heterosexual couples. (Lockyer v. City and County of San Francisco (2004)
Thereafter, in May 2008, this court held that California’s statutory law denying same-sex couples the right to marry violated the privacy, due process, and equal protection provisions of our state Constitution as it then read. (In re Marriage Cases (2008)
Six months later, in November 2008, California’s voters approved Proposition 8, an initiative that amended California’s Constitution by adding a new provision expressly limiting marriage to heterosexual couples. (Cal. Const., art. I, § 7.5.) In May 2009, this court rejected state constitutional challenges to Proposition 8, determining that it had been validly enacted by the procedures prescribed for constitutional amendments, rather than the more rigorous procedures prescribed for constitutional revisions, and determining also that Proposition 8 did not violate the separation of powers doctrine. (Strauss v. Horton (2009)
In May 2009, shortly before this court issued its opinion rejecting the state law challenges to Proposition 8 (Strauss, supra,
After the trial, the federal district court issued an opinion concluding that Proposition 8 violates both the due process and the equal protection clauses of the federal Constitution. Only the initiative proponents appealed, to the United States Court of Appeals for the Ninth Circuit, which issued an order asking this court to decide, as a matter of state law, whether proponents of an initiative that the voters approved have either a “particularized interest” in the initiative’s validity or the authority to “assert the State’s interest” in defending the initiative. (See maj. opn., ante, at pp. 1130-1132.) Without deciding whether initiative proponents have a “particularized interest” in the initiative’s validity, this court’s unanimous opinion holds that under California law the official proponents of a voter-approved initiative have authority to “assert the state’s interest” in the validity of that initiative, and to appeal a judgment invalidating the initiative, when state officials have declined to do so. (Maj. opn., ante, at pp. 1126-1127, 1165.)
II
I agree with today’s holding and with the reasoning of the court’s unanimous opinion. I briefly explain why.
As the majority opinion in Strauss pointed out, this court’s decisions in the three earlier same-sex marriage cases illustrate the proper roles of, and the limitations imposed upon, each branch of California’s government—the executive, the legislative, and the judicial—under our state Constitution. (Strauss, supra,
California’s state trial and appellate courts have routinely permitted initiative proponents to defend an initiative’s validity, and to appeal from a judgment holding an initiative invalid, particularly when state officials have declined to do so. (See maj. opn., ante, at pp. 1142-1144.) The two main reasons for this standard practice are easily stated.
First, the validity of a duly enacted state initiative measure (particularly one that amends the state Constitution, as Proposition 8 does) is a matter of great public importance that can be determined only through judicial proceedings. Such proceedings are most likely to produce a result that will be reliable, and that the public will find acceptable, if the issues are thoroughly and vigorously litigated. As the court’s opinion notes (maj. opn., ante, at pp. 1151-1152), initiative proponents generally have the motivation and the resources to litigate thoroughly and vigorously in defense of initiative measures they have sponsored (particularly when state officials have declined to do so), and thereby to assist the courts in a way that is vital to the integrity of the entire process.
Second, the initiative power was added to the state Constitution in 1911 (Cal. Const., art. II, §§ 8, 10) because of the view, widely held among California’s voters, that the Legislature and state officials had become so dependent on special interests that they were unable or unwilling to take actions that the public interest required. To give those same state officials sole authority to decide whether or not a duly enacted initiative will be defended in court would be inconsistent with the purpose and rationale of the initiative power, because it would allow public officials, through inaction, effectively to annul initiatives that they dislike.
The word “authority” implies that initiative proponents have a right to defend an initiative in court. Although California’s state courts generally have discretion to grant or deny intervention, it would be an abuse of discretion for a court to deny an initiative proponent’s motion to intervene when the validity of the initiative measure is being challenged and California state officials are not actively defending it. (See maj. opn., ante, at p. 1150.) In that situation at least, it is accurate to state that initiative proponents have authority to intervene so that the integrity of the initiative process may be preserved and the validity of the initiative measure may be reliably determined through vigorous litigation at both the trial and appellate levels of California’s judicial system.
in
The authority possessed by the official proponents of an initiative measure to assert the state’s interest in that initiative’s validity complements the judiciary’s authority to make the final decision on whether the initiative is valid. As I have stressed in my separate opinions in the earlier same-sex marriages cases, interpreting state statutes and state constitutional provisions, and determining their validity, are the responsibility of the government’s judicial branch. (Strauss, supra,
The judicial system is designed to operate through public proceedings in which adversaries litigate factual and legal issues thoroughly and vigorously. When an initiative measure is challenged in court, the integrity and effectiveness of the judicial process require that a competent and spirited defense be presented. If public officials refuse to provide that defense, the ability of the initiative proponents to intervene in the pending litigation, and to appeal an adverse judgment, is inherent in, and essential to the effective exercise of, the constitutional initiative power. To hold otherwise not only would undermine
For these reasons, I agree that, when state officials refuse to defend a voter-approved initiative measure in court, or to appeal a judgment invalidating that initiative, its official proponents have authority, as a matter of state law, to assert the state’s interest in the initiative’s validity.
At this point a note of caution is in order. When the named defendant in a lawsuit brought in a California state court declines to present a defense, and no party intervenes to assert a defense to the plaintiff’s claim, two different and opposite results are possible, depending on the particular circumstances. The plaintiff may win by default, resulting in entry of a default judgment or stipulated judgment granting the requested relief. (See, e.g., Code Civ. Proc., §§ 585 et seq., 664.6.) But the trial court may decide instead that without a genuine dispute between the parties, judicial action is unnecessary and inappropriate, resulting in a dismissal of the action without entry of any judgment. (See id., § 1061; Common Cause v. Board of Supervisors (1989)