KRISTIN M. PERRY et al., Plaintiffs and Respondents, v. EDMUND G. BROWN, JR., as Governor, etc., et al., Defendants; CITY AND COUNTY OF SAN FRANCISCO, Intervener and Respondent; DENNIS HOLLINGSWORTH et al., Interveners and Appellants.
No. S189476
Supreme Court of California
Nov. 17, 2011.
1116
Law Offices of Andrew P. Pugno, Andrew P. Pugno; Alliance Defense Fund, Brian W. Raum, James A. Campbell; Cooper & Kirk, Charles J. Cooper, David H. Thompson, Howard C. Neilson, Jr., Nicole Jo Moss and Peter A. Patterson for Interveners and Appellants.
Edwin Meese III; John C. Eastman and Karen J. Lugo for Center for Constitutional Jurisprudence as Amicus Curiae on behalf of Interveners and Appellants.
Sharon L. Browne, Harold E. Johnson and Damien M. Schiff for Pacific Legal Foundation, Ward Connerly, Glynn Custred, Ron Unz and Howard Jarvis Taxpayers Association as Amici Curiae on behalf of Interveners and Appellants.
Pacific Justice Institute, Kevin T. Snider, Matthew B. McReynolds and Kelley A. Way for Dr. Joshua Beckley as Amicus Curiae on behalf of Interveners and Appellants.
Julie B. Axelrod for Judicial Watch, Inc., as Amicus Curiae on behalf of Interveners and Appellants.
Boies, Schiller & Flexner, David Boies, Jeremy M. Goldman, Theodore H. Uno; Gibson, Dunn & Crutcher, Theodore B. Olson, Matthew D. McGill, Amir C. Tayrani, Theodore J. Boutrous, Jr., Christopher D. Dusseault and Enrique A. Monagas for Plaintiffs and Respondents.
Kendall Brill & Klieger, Laura W. Brill, Nicholas F. Daum, Clifford S. Davidson and Ashlee R. Lynn for Jon B. Eisenberg and Professor Laurie L. Levenson as Amici Curiae on behalf of Plaintiffs and Respondents.
Miguel Márquez, County Counsel (Santa Clara), Lori E. Pegg, Assistant County Counsel, Juniper L. Downs, Acting Lead Deputy County Counsel, Jenny S. Yelin, Impact Litigation Fellow; Atchison, Barisone, Condotti & Kovacevich, John G. Barisone, City Attorney (Santa Cruz); John A. Russo, City Attorney (Oakland), Barbara J. Parker, Chief Assistant City Attorney; John C. Beiers, County Counsel (Orange), Glenn M. Levy, Deputy County Counsel; Eric Danly; Dana McRae, County Counsel (Santa Cruz); and Bruce D. Goldstein, County Counsel (Sonoma), for County of Santa Clara, County of Santa Cruz, City of Oakland, City of Cloverdale, County of San Mateo, City of Santa Cruz and County of Sonoma as Amici Curiae on behalf of Plaintiffs and Respondents.
Dennis J. Herrera, City Attorney, Therese M. Stewart, Chief Deputy City Attorney, Danny Chou, Chief of Complex and Special Litigation, Vince Chhabria, Mollie M. Lee and Christine Van Aken, Deputy City Attorneys, for Intervener and Respondent.
Caldwell Leslie & Proctor, David C. Codell, Albert Giang, Alastair Agcaoili; Shannon P. Minter; and Jon W. Davidson for Equality California, National Center for Lesbian Rights and Lambda Legal Defense and Education Fund, Inc., as Amici Curiae on behalf of Intervener and Respondent.
Greines, Martin, Stein & Richland, Robin Meadow and Cynthia E. Tobisman for League of Women Voters of California as Amicus Curiae on behalf of Intervener and Respondent.
Eric Alan Isaacson; Susan Kay Weaver; Stacey M. Kaplan; and Silvio Nardoni for California Faith for Equality, California Council of Churches, General Synod of the United Church of Christ, Universal Fellowship of Metropolitan
Kamala D. Harris, Attorney General, Manuel M. Medeiros, State Solicitor General, David Chaney, Chief Assistant Attorney General, Douglas J. Woods, Acting Assistant Attorney General, Michael Troncoso, Senior Counsel, Constance L. LeLouis and Tamar Pachter, Deputy Attorneys General, as Amici Curiae.
OPINION
CANTIL-SAKAUYE, C. J.-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
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
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) 41 Cal.3d 810, 822 (Building Industry Assn.)) or, in other words, to enable such proponents to assert the people‘s, and hence the state‘s, interest in defending the validity of the initiative measure. Allowing official proponents to assert the state‘s interest in the validity of the initiative measure in such litigation (along with any public officials who may also be defending the measure) (1) assures
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, 41 Cal.3d at p. 822.) Thus, in an instance—like that identified in the question submitted by the Ninth Circuit—in which the public officials have totally declined to defend the initiative‘s validity at all, we conclude that, in light of the nature and purpose of the initiative process embodied in
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.) Thereafter, in the general election held in California in November 2008, a majority of voters approved Proposition 8, an initiative measure that amended the California Constitution by adding a new section—section 7.5—to article I of the California Constitution.
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. (
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.1
After briefing and oral argument, this court, on May 26, 2009, handed down its decision in Strauss, supra, 46 Cal.4th 364, concluding (1) that, under the California Constitution, Proposition 8 was a constitutional amendment, rather than a constitutional revision, and thus could be adopted through the initiative process, and (2) that the measure did not violate the separation of powers doctrine embodied in the California Constitution.
On May 22, 2009, just a few days before the decision in Strauss, supra, 46 Cal.4th 364, was filed, plaintiffs Kristin M. Perry, Sandra B. Stier, Paul T. Katami, and Jeffrey J. Zarrillo—two same-sex couples who, after the adoption of Proposition 8, had sought but had been denied marriage licenses in Alameda County and Los Angeles County respectively—filed the underlying action in the current matter in federal district court in San Francisco. (Perry v. Schwarzenegger (N.D.Cal., No. 3:09-cv-02292-VRW).)2 Plaintiffs’ complaint in Perry named as defendants in their official capacities the Governor of
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.4
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, 704 F.Supp.2d 921.) The district court issued an order enjoining defendants in their official capacities, and all persons under their supervision or control, from applying or enforcing Proposition 8. (704 F.Supp.2d at p. 1003.) The Ninth Circuit subsequently issued an order staying the district court‘s judgment pending appeal, and as a result Proposition 8 remains in effect at the present time.
Proponents, as interveners in the district court, filed in the Ninth Circuit a timely appeal of the district court judgment invalidating Proposition 8.6 None of the named defendants at whom the district court‘s injunction was directed appealed from the district court judgment, however, and, in an early order
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, 46 Cal.4th 364, and by the district court in Perry, and asserting that they possessed the requisite standing under both California and federal law.8
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, 628 F.3d at p. 1193.) In its order, the Ninth Circuit indicated that the answer to this
further references to “Proponents” refer collectively to the four individual proponents and ProtectMarriage.com who filed the appeal in the Ninth Circuit and have participated in the present proceeding in this court.
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.
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
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,9 or (2) the official proponents may have their own personal “particularized” interest in the initiative‘s validity. We briefly discuss the federal decisions that analyze the effect of state law on each of these potential bases for standing in federal court.
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) 484 U.S. 72 (Karcher) strongly indicates that a federal court will look to state law to determine whom the state has authorized to assert the state‘s interest in the validity of the challenged measure.
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, 484 U.S. at p. 77.)
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, 484 U.S. 72, did not involve a challenge to an initiative measure and did not address the question whether the official proponents of an initiative could properly assert the state‘s interest in defending the validity of such an initiative. Plaintiffs also note that in its subsequent decision in Arizonans for Official English v. Arizona (1997) 520 U.S. 43 (Arizonans for Official English), which did involve the question of official initiative proponents’ standing under federal law to appeal a judgment invalidating an initiative measure, the United States Supreme Court expressed “grave doubts” (id. at
p>p. 66) whether the initiative proponents in that case possessed the requisite standing and distinguished its earlier decision in Karcher. A close review of the relevant portion of the opinion in Arizonans for Official English, however, indicates that the doubts expressed by the high court in that case apparently arose out of the court‘s uncertainty concerning the authority of official initiative proponents to defend the validity of a challenged initiative underIn addressing the standing issue in Arizonans for Official English, supra, 520 U.S. 43, the high court stated in relevant part: “Petitioners argue primarily that, as initiative proponents, they have a quasi-legislative interest in defending the constitutionality of the measure they successfully sponsored. [The initiative proponents] stress the funds and effort they expended to achieve adoption of [the initiative]. We have recognized that state legislators have standing to contest a decision holding a state statute unconstitutional if state law authorizes legislators to represent the State‘s interests. See Karcher v. May, 484 U.S. 72, 82 . . . . [The initiative proponents], however, are not elected representatives, and we are aware of no Arizona law appointing initiative sponsors as agents of the people of Arizona to defend, in lieu of public officials, the constitutionality of initiatives made law of the State. Nor has this Court ever identified initiative proponents as Article-III-qualified defenders of the measures they advocated. Cf. Don‘t Bankrupt Washington Committee v. Continental Ill. Nat. Bank & Trust Co. of Chicago, 460 U.S. 1077 [76 L.Ed.2d 338, 103 S.Ct. 1762] (1983) (summarily dismissing, for lack of standing, appeal by an initiative proponent from a decision holding the initiative unconstitutional).” (520 U.S. at p. 65, italics added, fn. omitted.)
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, 520 U.S. at p. 66), the court went on conclude that “we need not definitively resolve the issue” of the initiative proponents’ standing (ibid.) because it concluded that, in any event, a change in the status of the plaintiff in that case rendered the litigation moot and justified vacating the lower federal court rulings that had invalidated the initiative measure (see id. at pp. 67–80).
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
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) 504 U.S. 555, 560 [119 L.Ed.2d 351, 112 S.Ct. 2130], citations omitted.) In Lujan, the high court further explained that “[b]y particularized, we mean that the injury must affect the plaintiff in a personal and individual way.” (Id. at fn. 1.) Although the United States Supreme Court has recognized that a state “has the power to create new interests, the invasion of which may confer standing” under federal law (Diamond v. Charles, supra, 476 U.S. 54, 65, fn. 17), not every interest that state law recognizes as conferring standing on an individual or entity to institute or to defend a particular kind of lawsuit in state court will be sufficient to establish that the individual or entity has a particularized interest to bring or defend an analogous lawsuit in federal court. (Compare
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
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
III. Analysis of Initiative Proponents’ Standing Under California Law
A. Basis of Initiative Proponents’ Standing
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
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) 38 Cal.4th 1020, 1041–1043 [44 Cal.Rptr.3d 644, 136 P.3d 178]; Strauss, supra, 46 Cal.4th 364, 420-421.) In this setting, “[t]he initiative was viewed as one means of restoring the people‘s rightful control over their government, by providing a method that would permit the people to propose and adopt statutory provisions and constitutional amendments.” (Strauss, supra, at p. 421.) The primary purpose of the initiative was to afford the people the ability to propose and to adopt constitutional amendments or statutory provisions that their elected public officials had refused or declined to adopt. The 1911 ballot pamphlet argument in favor of the measure
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,12 but the Legislature, in adopting statutes to formalize and facilitate the initiative process, has enacted a number of provisions that explicitly identify who the official proponents of an initiative measure are and describe their authority and duties.
Once an initiative measure has qualified for the ballot, several provisions of the
Under these and related statutory provisions (see, e.g.,
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, 46 Cal.4th 364, 399 [postelection challenge]; Independent Energy Producers Assn. v. McPherson, supra, 38 Cal.4th 1020 (Independent Energy Producers) [preelection challenge]; Costa v. Superior Court, supra, 37 Cal.4th 986, 1001 (Costa) [preelection challenge]; Senate of the State of Cal. v. Jones (1999) 21 Cal.4th 1142, 1146 [90 Cal.Rptr.2d 810, 988 P.2d 1089] [preelection challenge]; Hotel Employees & Restaurant Employees Internat. Union v. Davis (1999) 21 Cal.4th 585, 590 [88 Cal.Rptr.2d 56, 981 P.2d 990] (Hotel Employees Union) [postelection challenge]; Amwest Surety Ins. Co. v. Wilson (1995) 11 Cal.4th 1243, 1250 [48 Cal.Rptr.2d 12, 906 P.2d 1112] (Amwest) [postelection challenge]; 20th Century Ins. Co. v. Garamendi (1994) 8 Cal.4th 216, 241 [32 Cal.Rptr.2d 807, 878 P.2d 566] (20th Century Ins. Co.) [postelection challenge]; Legislature v. Eu, supra, 54 Cal.3d 492, 500 [postelection challenge]; Calfarm Ins. Co. v. Deukmejian (1989) 48 Cal.3d 805, 812 [258 Cal.Rptr. 161, 771 P.2d 1247] [postelection challenge]; People ex rel. Deukmejian v. County of Mendocino (1984) 36 Cal.3d 476, 480 & fn. 1 [204 Cal.Rptr. 897, 683 P.2d 1150] [postelection challenge]; Legislature v. Deukmejian (1983) 34 Cal.3d 658, 663 [194 Cal.Rptr. 781, 669 P.2d 17] [preelection challenge]; Brosnahan v. Eu (1982) 31 Cal.3d 1, 3 [181 Cal.Rptr. 100, 641 P.2d 200] [preelection challenge]; City of Santa Monica v. Stewart, supra, 126 Cal.App.4th 43, 53 [postelection challenge]; Citizens for Jobs & the Economy v. County of Orange (2002) 94 Cal.App.4th 1311, 1316 & fn. 2 [115 Cal.Rptr.2d 90] [postelection challenge]; City of Westminster v. County of Orange (1988) 204 Cal.App.3d 623, 626 [251 Cal.Rptr. 511] [postelection challenge]; Community Health Assn. v. Board of Supervisors (1983) 146 Cal.App.3d 990, 992 [194 Cal.Rptr. 557] [postelection challenge]; Simac Design, Inc. v. Alciati (1979) 92 Cal.App.3d 146, 153 [154 Cal.Rptr. 676] [postelection challenge]; see also Assembly v. Deukmejian (1982) 30 Cal.3d 638, 644-645 [180 Cal.Rptr. 297, 639 P.2d 939] [referendum proponent
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).15 The present proceeding affords us the opportunity to address this point.16
In analyzing the legal basis upon which an official initiative proponent‘s authority to participate in such litigation rests, we believe it is useful to draw a distinction between legal challenges to an initiative measure that precede the voters’ approval of an initiative measure and legal challenges to an initiative measure that are brought after the initiative has been approved by the voters and adopted into law. (For convenience, we refer to the former category as “preelection” cases and the latter category as “postelection” cases.)
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, 38 Cal.4th 1020) or because it embodies more than one subject (see Senate of the State of Cal. v. Jones, supra, 21 Cal.4th 1142), (2) whether there have been prejudicial procedural irregularities in the process of submitting the matter to the Attorney General or gathering signatures on the initiative petition (see Costa, supra, 37 Cal.4th 986), or (3) whether a sufficient number of valid signatures has been obtained to qualify the matter for the ballot (see Brosnahan v. Eu, supra, 31 Cal.3d 1). In the preelection setting, when a proposed initiative measure has not yet been adopted as state law, the official proponents of an initiative measure who intervene or appear as real parties in interest are properly viewed as asserting their own personal rights and interests—under
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, 31 Cal.3d 1 [initiative measure imposing legislative term limits and limiting legislative budget]; City of Santa Monica v. Stewart, supra, 126 Cal.App.4th 43 [initiative measure limiting employment by public officials after leaving public service].) Plaintiffs have not cited, and our research has not disclosed, any decision in which the official proponents of an initiative measure were precluded from intervening or appearing as real parties in interest in a postelection case challenging the measure‘s validity, even when they did not have the type of distinct personal, legally protected interest in the subject matter of the initiative measure that would ordinarily support intervention or real party in interest status on a particularized interest
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, 41 Cal.3d 810—does illuminate this court‘s uniform practice of permitting official initiative proponents to participate as parties in such postelection cases.
In Building Industry Assn., supra, 41 Cal.3d 810, the issue before the court concerned the validity and proper interpretation of a then recently enacted statutory provision—
In the course of its opinion, the court in Building Industry Assn., supra, 41 Cal.3d 810, addressed a legal argument advanced by an amicus curiae to support the position that the statute could not properly be interpreted to apply to an ordinance adopted through the initiative process. The court stated: “Amicus [curiae] . . . argues that section 669.5 substantially impairs the ability of the people to exercise initiative power because the proponents of the initiative would not have an effective way to defend it. Despite the fact that the city or county would have a duty to defend the ordinance, a city or county might not do so with vigor if it has underlying opposition to the ordinance. Furthermore, the proponents of the initiative have no guarantee of being permitted to intervene in the action, a matter which is discretionary with the trial court. (See
Although this passage in Building Industry Assn., supra, 41 Cal.3d 810, was directed at the specific context at issue in that case—involving the burden-shifting provision of
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, 41 Cal.3d at p. 822.) This enhanced risk is attributable to the unique nature and purpose of the initiative power, which gives the people the right to adopt into law measures that their elected officials have not adopted and may often oppose.
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, 41 Cal.3d at p. 822.) Because official initiative proponents are permitted to intervene in order to supplement the efforts of public officials who may not defend the measure with vigor, it is appropriate to view the proponents as acting in an analogous and complementary capacity to those public officials, namely as asserting the people‘s interest (or, in other words, the state‘s interest) in the validity of a duly enacted law. And because the passage clearly states that “[p]ermitting intervention by the initiative proponents . . . would serve to guard the people‘s right to exercise initiative power . . .” (ibid., italics added), it is apparent that the official proponents of the initiative are participating on behalf of the people‘s interest, and not solely on behalf of the proponents’ own personal interests.
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, 41 Cal.3d 810, states that even when public officials are defending a challenged initiative in pending litigation, “the trial court in most instances should allow intervention by proponents of the initiative” (id. at p. 822), and that “[t]o fail to do so may
Plaintiffs argue that the passage in Building Industry Assn., supra, 41 Cal.3d 810, we have been analyzing should properly be considered dictum and should not be followed. Plaintiffs apparently rely on the fact there is no indication in the Building Industry Assn. decision that the official proponents who had sponsored the initiative ordinance at issue in that case had sought and been denied the right to intervene in the underlying action challenging the ordinance. Proponents take issue with plaintiffs’ characterization of this passage as dictum, pointing out that the passage explicitly states that the argument advanced by the amicus curiae—that is, that
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, 46 Cal.4th 364, 465-469; Hotel Employees Union, supra, 21 Cal.4th 585, 605-612; Amwest, supra, 11 Cal.4th 1243, 1256-1265; Calfarm Ins. Co. v. Deukmejian, supra, 48 Cal.3d 805, 819-821; see also Citizens for Jobs & the Economy v. County of Orange, supra, 94 Cal.App.4th 1311, 1316-1323; Community Health Assn. v. Board of Supervisors, supra, 146 Cal.App.3d 990, 991–993.) These decisions highlight the different perspectives regarding the validity or proper interpretation of a voter-approved initiative measure often held by the official proponents of the initiative measure and by the voters who enacted the measure into law, as contrasted with those held by the elected officials who ordinarily defend challenged state laws, and demonstrate that the role played by the proponents in such litigation is comparable to the role ordinarily played by the Attorney General or other public officials in vigorously defending a duly enacted state law and raising all arguable legal theories upon which a challenged provision may be sustained.
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
Accordingly, we conclude that when the public officials who ordinarily defend a challenged measure decline to do so,
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
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, 11 Cal.4th 1243, provides an apt illustration. In Amwest, shortly after the voters approved Proposition 103—a broad insurance reform initiative measure that, among other things, required a rollback of insurance rates—the plaintiff insurer filed a petition for writ of mandate in superior court, alleging that application of the rate rollback provisions of Proposition 103 to surety insurers would violate the constitutional rights of such insurers. The petition named the Governor, the Attorney General, the State Board of Equalization, and the Insurance Commissioner as defendants. While the proceeding was pending in superior court, the Legislature enacted a statute—Insurance Code former section 1861.135—that purported to exempt surety insurers from the rate rollback provisions of Proposition 103. The validity of the new statute was called into question in the Amwest proceeding, because there was a dispute whether the statute was a constitutionally impermissible attempt to revise Proposition 103 without submitting the revision to a vote of the people (see
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, 11 Cal.4th at p. 1251, fn. 8.) Although some of the government defendants in Amwest (the
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, 43 Cal.4th 757 [Prop. 22]; Legislature v. Eu, supra, 54 Cal.3d 492, 500 [Prop. 140]; Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208 [149 Cal.Rptr. 239, 583 P.2d 1281] [Prop. 13].)
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, 37 Cal.4th 1169, 1174.) Permitting other officials to present legal arguments in defense of a challenged state law when the Attorney General has declined to do so does not mean that the Attorney General has violated his or her duty or acted improperly in declining to defend the law. Even when the Attorney General has discretion to decline to defend a challenged law or to appeal a lower court ruling invalidating the law, the Attorney General‘s decision to exercise discretion in that fashion does not preclude other officials or entities from defending the challenged law or appealing an adverse judgment. Although the Attorney General‘s legal judgment may appropriately guide that official‘s own discretionary actions, the validity or proper interpretation of a challenged state constitutional provision or statute is, of course, ultimately a matter to be determined by the courts, not the Attorney General. (Cf., e.g., Lockyer v. City and County of San Francisco (2004) 33 Cal.4th 1055 [17 Cal.Rptr.3d 225, 95 P.3d 459].) We are aware of no case that has held or suggested that the Attorney General may preclude others from defending a challenged state law
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
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) 462 U.S. 919 [77 L.Ed.2d 317, 103 S.Ct. 2764] (Chadha), for example, the United States Supreme Court stated emphatically: “We have long held that Congress is the proper party to defend the validity of a statute when an agency of government, as a defendant charged with enforcing the statute, agrees with plaintiffs that the statute is inapplicable or unconstitutional.”23 (Chadha, at p. 940.) And, as discussed earlier in this opinion, the United States Supreme Court
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
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) 184 Cal.App.3d 394 [229 Cal.Rptr. 74].) As already discussed, even when the Attorney General has discretion to decline to defend a state constitutional provision or statute in a court proceeding challenging the measure, the Attorney General does not have authority to prevent others from mounting a defense on behalf of the state‘s interest in the validity of the measure. For
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
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, 41 Cal.3d at page 822, that because of the fundamental purpose and unique nature of the initiative process—a process designed to give the people of California the authority to directly adopt constitutional amendments or statutes that their elected officials have refused or declined to adopt and may often oppose—there is an increased risk, even when public officials are
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) 29 Cal.3d 126, 144–145 [172 Cal.Rptr. 206, 624 P.2d 256]; Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432, 439 [261 Cal.Rptr. 574, 777 P.2d 610]; see generally 8 Witkin, Cal. Procedure (5th ed. 2008) Extraordinary Writs, § 84, pp. 970-973.) Similarly, under the well-established private attorney general doctrine, private individuals are permitted to act in support of the public interest by bringing lawsuits to enforce state constitutional or statutory provisions in circumstances in which enforcement by public officials may not be sufficient. (See, e.g., Serrano v. Priest (1977) 20 Cal.3d 25, 42-47 [141 Cal.Rptr. 315, 569 P.2d 1303]; Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 933, 941–942 [154 Cal.Rptr. 503, 593 P.2d 200].)25 Indeed, the authority of the official proponents of an initiative to assert the state‘s interest in the present context is a
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-attorney-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
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) 3 P.3d 906 (Alaskans for a Common Language), the issue of standing arose in an action challenging the validity of a voter-approved initiative measure that—like the Arizona initiative involved in Arizonans for Official English, supra, 520 U.S. 43 (see ante, at pp. 1135-1136)—provided that English shall be used by all public agencies in all government functions and actions and in the preparation of all official public documents and records. Two organizations—the first, the official proponents of the initiative measure in Alaska, and the second, a national organization (U.S. English) that supported the Alaska measure—sought to intervene as formal parties in the trial court proceedings, but the trial court denied both requests on the ground that the interests of the
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.” (3 P.3d at p. 914.)
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, 3 P.3d at p. 916), the court found that “U.S. English has not established that its interest is any greater than a generalized interest of a political nature” (ibid.). It held that the organization did not qualify for intervention as a matter of right and that the trial court did not abuse its discretion in denying permissive intervention. (Ibid.)
2.
In Sportsmen for I-143 v. Fifteenth Judicial Court (2002) 308 Mont. 189 [40 P.3d 400] (Sportsmen for I-143), the Montana Supreme Court similarly addressed the general issue “whether the primary proponent of a ballot initiative has a legally protectable interest sufficient to allow it to intervene in a case challenging the resulting statute.” (Id., 40 P.3d at p. 402.) As in Alaskans for a Common Language, supra, 3 P.3d 906, in Sportsmen for I-143 the trial court had denied a motion to intervene by the sponsors of the challenged initiative measure on the ground that the government defendant named in the proceeding—there, the Montana Department of Fish, Wildlife, and Parks—could adequately defend the measure. Although in that instance there was little reason to suspect that the named government defendant would not vigorously defend the initiative measure and the resulting legislation the initiative had engendered, the Montana Supreme Court nonetheless observed that the initiative proponents “who actively drafted and supported I-143 may be in the best position to defend their interpretation of the resulting legislation” (40 P.3d at p. 403) and held that, as a general matter, initiative
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
Kennard, J., Baxter, J., Werdegar, J., Chin, J., Corrigan, J., and Liu, J., concurred.
KENNARD, J., Concurring.—While joining fully in the court‘s unanimous opinion authored by the Chief Justice, 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) 33 Cal.4th 1055 [17 Cal.Rptr.3d 225, 95 P.3d 459] (Lockyer).) Agreeing with the majority that, within our state government, determining the constitutional validity of state statutes is a task reserved to the judicial branch, I joined in that decision, except insofar as it declared void some 4,000 same-sex marriages performed in reliance on licenses issued in
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
Six months later, in November 2008, California‘s voters approved Proposition 8, an initiative that amended California‘s
In May 2009, shortly before this court issued its opinion rejecting the state law challenges to Proposition 8 (Strauss, supra, 46 Cal.4th 364), four individuals brought an action in federal district court challenging Proposition 8 on federal constitutional grounds. Named as defendants were the Governor, California‘s Attorney General, and California‘s Director of Public Health. None of those state public officials, however, litigated in defense of
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
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
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
Second, the initiative power was added to the state
Is this explanation sufficient to answer the question that the Ninth Circuit posed to this court, which is 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? More specifically, does it show, as this court‘s opinion holds, that initiative proponents have authority to “assert the state‘s interest” in the initiative‘s validity? The answer is “Yes.”
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.
III
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, 46 Cal.4th 364, 476 (conc. opn. of Kennard, J.); Marriage Cases, supra, 43 Cal.4th 757, 860 (conc. opn. of Kennard, J.); Lockyer, supra, 33 Cal.4th 1055, 1125 (conc. & dis. opn. of Kennard, J.).)
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.
Notes
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.
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.
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,
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.