Cross posted in Orange.
On June 20, Equality California, NCLR, and a whole host of groups filed suit in the Supreme Court of California against our Secretary of State, Debra Bowen. (Note that Debra Bowen is an amazing SoS; she’s getting sued in her SoS capacity.) To grossly oversimplify, EQCA alleges that the signature gathering process was flawed for a few reasons:
“The proposed initiative is invalid because it is a proposed constitutional revision, not a proposed constitutional amendment and, as such, the California Constitution provides that it may not be enacted by initiative”
“The description of the proposed initiative in the petitions that were circulated for signature was materially misleading and materially misstated the effect of the proposed initiative to the electors signing the petitions to qualify the measure for the ballot.
Ultimately, this is a long shot. For a number of reasons, the Supreme Court is unlikely to pull the measure off the ballot in November. Let’s go over those over the flip.
First the general process questions:
Why go to the Supreme Court directly?
On a few issues, the California Supreme Court has so-called “original jurisdiction.” Basically, this just means that they can take the case without the case working its way through the court system. This requires that there are no issues of fact, only of law and that there is a pressing time concern. There is a lot of discretion involved on this issue of law, so this is one way the Court can punt the case until November.
When does the Court prefer to act on challenges to initiatives?
Generally, post election. This was restated in Independent Energy Producers Assn. v McPherson all the way back in 2006. Some energy producers tried to kick Prop 80, a energy reregulation bill, off the ballot. Ultimately the initiative lost badly, so the court ended up looking good on punting the issue, but they did issue something of an advisory opinion stating that preelection review is generally frowned upon. Or to pull directly from case law:
[I]t is usually more appropriate to review constitutional and other challenges to ballot propositions or initiative measures after an election rather than to disrupt the electoral process by preventing the exercise of the people’s franchise, in the absence of some clear showing of invalidity.” (Brosnahan v. Eu (1982) 31 Cal.3d 1, 4 [181 Cal. Rptr. 100, 641 P.2d 200] (Brosnahan I).
The Court in the Costa v Sup. Ct (37 Cal. 4th 986), goes on to say that pre-election review is acceptable when the initiative is not “properly submitted”, such as a violation of the single subject rule, or, say it amounts to a revision rather than an amendment:
More recently, however, in Senate of the State of Cal. v. Jones (1999) 21 Cal.4th 1142 [90 Cal. Rptr. 2d 810, 988 P.2d 1089] (Senate v. Jones), we noted that decisions after Brosnahan I “have explained that this general rule applies primarily when a challenge rests upon the alleged unconstitutionality of the substance of the proposed initiative, and that the rule does not preclude preelection review when the challenge is based upon a claim, for example, that the proposed measure may not properly be submitted to the voters because the measure is not legislative in character or because it amounts to a constitutional revision rather than an amendment. [Citations.]” (21 Cal.4th at p. 1153.)
So, Bingo Bango Bongo. This doesn’t seal the matter, but it does make a strong argument that the Court has the authority to review the case. Again, this is a gross oversimplification, but hey, this is a blog, not a law review. By the by, you can look up CA Sup. Ct. caselaw free here.
Why are we suing Bowen?
Well, quite simply, the SoS puts stuff on the ballot. The proponents of the initiative are named as the “real parties in interest,” and the Liberty Counsel, the out-of-state anti-marriage legal team has also filed to intervene in the lawsuit.
Now to the substantive issues: What’s the deal with this revision argument?
Alrighty, this really goes to the heart of the matter. So, what is a “revision”? Basically a revision is a change to the “underlying principles” of the Constitution. If the Court determines that the question at issue affects the underlying principles of the California Constitution, the initiative must go through a different process. A revision requires a 2/3 vote of both houses of the Legislature or the convening of a Constitutional Convention (a process that I won’t go into here). The revision then must be ratified by the people. Obviously this initiative hasn’t gone through either process.
But what is an “underlying principle”, you ask? Well, good freaking question! There have been only a few cases which have actually dealt with this. A few months back Killer of Sacred Cows wrote a recommended diary at dKos and crossposted here about an article by Kevin Norte (and a follow-up), a research attorney in the LA Superior Court and a huge John McCain fan. Well, I’m only inferring that last part from the fact that he’s the official blogger of the California Log Cabin Republicans. So, apparently Kevin is comfortable with rosy predictions from Republicans. They’ve been great to the LGBT Community in California and across the nation, right?
Kevin really wants this off the ballot, that much is clear. And that’s a laudable goal, but let’s go over the law honestly: Norte’s concept of classifying Prop 8 as a revision would be establishing new law. Despite the fact that he cites lots of cases, the Supreme Court would still need to take one additional step.
In other breaking news, there is no such thing as a free lunch. This will be a tough case for Chief Justice George and the California Supreme Court. While he did give a hint in the questioning all the way back in March, it’s not clear by any stretch that there are 4 votes for this, either before or after the election.
Norte, and the EQCA brief cite several cases where amendments have been tossed. The most notable amongst the amendments that were tossed was at issue in Raven v Deukmijian (52 Cal 3d 336). In that case, Stephen Bomse (the same attorney at Heller Ehrman that field the case on behalf of the voters and orgs in the marriage case) argued that a proposed initiative that would have limited California criminal rights to the extent of the US Constitution. The CA Sup Ct ruled that such an amendment would so change the structure of the California system of government as to amount to a revision of the Constitution.
The Court stated a rather nebulous standard in Raven:
As explained in Amador, and confirmed in Brosnahan, our revision/amendment analysis has a dual aspect, requiring us to examine both the quantitative and qualitative effects of the measure on our constitutional scheme. Substantial changes in either respect could amount to a revision. Before examining the applicable authorities in greater depth, we first set forth the nature of petitioners’ revision challenge.
So, the Court goes through a two-pronged analysis when dealing with revisions. Quantitative goes to scope of changes in the Constitution, quite literally. That looks to the actual number of additions, deletions, and amendments to the California Constituion (Raven , III, B, 2). As to the qualitative aspect, the Court states that “even a relatively simple enactment may accomplish such far reaching changes in the nature of our basic governmental plan as to amount to a revision.”
Clearly, the marriage issue is looking towards qualitative aspects. And again, Raven is the case to look at:
Even under respondent Attorney General’s “limited” construction of new article I, section 24, fundamental constitutional rights are implicated, including the rights to due process of law, equal protection of the law, assistance of counsel, and avoidance of cruel and unusual punishment. As to these rights, as well as the other important rights listed in new section 24, California courts in criminal cases would no longer have authority to interpret the state Constitution in a manner more protective of defendants’ rights than extended by the federal Constitution, as construed by the United States Supreme Court.
This is where the case is headed, where the controversy lies. The EQCA attorneys argue that marriage is now a fundamental right. It is implicated under equal protection of the law, as orientation is now a suspect class under In re Marriage Cases. From the brief:
Equal protection is not merely a discrete constitutional guarantee; it is a trascendent principle that is deeply woven into the fabric of our entire Constitution. (Brief at 17)
There is a substantive argument to be made here. But, there is no case law on the definition of fundamental rights. This would be the Court going out on a limb and expanding the scope of the revision doctrine. Now, this is the same court that decided In re Marriage Cases, so it’s not entirely unthinkable. However, we shouldn’t be banking on this.
The Material Misstatements on the Circulating Initiative
This seems to be an even longer shot, as the misleading statements weren’t actually misleading at the time of signature gathering. Clearly, the only remedy available for this would be to remove the amendment. However, I think if the Court wants to remove the amendment from the ballot, this would be only a secondary cause, as it was in the brief.
Specifically, the brief argues that the description’s statement that the amendment would make “no change” to marriage law and that there would be no “fiscal effect” on the state budget. It’s clear that there would be a few million bucks of tax revenue on the line from gay weddings, but that amount of money would never be used to boot an initiative from the ballot.
Does the fact that the summary got the outcome of In re Marriage Cases wrong matter? Again, this is a case of first impression for the CA Supreme Court. There is just not a lot of case law to go on. You can analogize to cases in the past, but there is nothing dispositive. The closest case is Senate of the State of California v Jones, 21 Cal. 4th 1142, which states, in dicta, a non-precedent setting tossaway phrase, that initiatives could be booted for a misstatement of current law.
Again, it’s a stretch, considering it wasn’t entirely a misstatement.
In the end, I, and many others, are expecting to have to fight this battle at the ballot box. It’s possible that Chief Justice George and the Court could come riding to our rescue, but how much sweeter would our victory be if we didn’t need the Court? How much more important to the future of our nation would it be if we were able to shut down the forces of bigotry and hate at the ballot box?
