Prop 8: 9th Circuit Appears Ready to Grant Proponents Standing to Appeal

The 9th Circuit Court of Appeals today issued a “ruling” of sorts on the appeal of Judge Vaughn Walker’s ruling that found Prop 8 to be unconstitutional*. The “ruling” was actually a certification of a question to the California Supreme Court about the all-important matter of whether Prop 8 proponents have standing to appeal Judge Walker’s decision:

Whether 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.

We understand that the Court may reformulate our question, and we agree to accept and follow the Court’s decision.

A further reading of the document issued minutes ago by the 9th Circuit indicates that the court is ready to rule that Prop 8 proponents DO have standing to appeal. In turn, that would enable the 9th Circuit to decide whether Prop 8 is a violation of the 14th Amendment (and obviously it is), a decision that would have major ramifications across California and the country. Here’s what the 9th Circuit said:

If California does grant the official proponents of an initiative the authority to represent the State’s interest in defending a voter-approved initiative when public officials have declined to do so or to appeal a judgment invalidating the initiative, then Proponents would also have standing to appeal on behalf of the State….

We are aware that in California, “All political power is inherent in the people,” Cal. Const. art. II, § 1, and that to that end, Article II, section 8(a) of the California Constitution provides, “The initiative is the power of the electors to propose statutes and amendments to the Constitution and to adopt or reject them.” We are also aware that the Supreme Court of California has described the initiative power as “one of the most precious rights of our democratic process,” and indeed, that “the sovereign people’s initiative power” is considered to be a “fundamental right.”…

The power of the citizen initiative has, since its inception, enjoyed a highly protected status in California. For example, the Legislature may not amend or repeal an initiative statute unless the People have approved of its doing 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 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.

So what does that all mean? Let me boil it down. Basically, California’s constitution and various CA Supreme Court decisions in the last few decades have indicated that the initiative power is a right inherent to the people of the state, and does not stem from the Legislature. It sets up the people as a kind of fourth branch of government. And therefore, if the Governor and the Attorney General refuse to defend a proposition in court, that could essentially nullify the fundamental rights of the voters. Since ballot initiatives stem from the people, presumably the people – in the form of the initiative proponents – DO have standing to defend Prop 8 in court and to appeal it to the 9th Circuit in order to preserve the people’s initiative power.

But because such a ruling would have a significant impact on future legal battles over California ballot initiatives, the 9th Circuit is deferring to the CA Supremes. The CA Supremes could say “yes, the proponents do have standing” or “no, they proponents do not have standing,” or they could simply not respond at all. The first and third options are more likely, and based on the CA Supremes’ longstanding (and I believe flawed) unwillingness to interfere with ballot initiatives, the CA Supremes will probably conclude that the Prop 8 proponents do indeed have standing to appeal.

In which case, the 9th Circuit would then rule on the issue of Prop 8’s constitutionality. I am guessing that their ruling will be to uphold Judge Walker, otherwise they would just say Prop 8 is constitutional and moot the question of standing.

The 9th Circuit also concurrently ruled that Imperial County does not have standing to appeal Judge Walker’s decision, a ruling that was widely expected in the wake of the farcicial appearance before the 9th Circuit court of Imperial County officials.

The CA Supremes can take as long as they want in answering the 9th Circuit. It could be days, weeks, or months. Whatever the outcome, it shows again the need to reform our initiative process. One reason our state government fails is that we’ve essentially set up a fourth branch of government – the people – that can negate anything done by the other three branches, but without any real checks or balances on the powers of that fourth branch.

In American constitutions, at least until the present day, the power of the people has been limited and bounded to ensure that all rights are protected. The right clearly wants to undo that convention, and give the people the power to trump the Constitution by mob rule. Whatever the outcome of the Prop 8 case, it’s time to bring some sense and sanity to ballot initiatives here in California.

*Somehow I doubt that the 14th Amendment will be read out on the House floor this week by Republicans, who hate the 14th Amendment and want to pretend it doesn’t exist.

6 thoughts on “Prop 8: 9th Circuit Appears Ready to Grant Proponents Standing to Appeal”

  1. Thank you for this excellent analysis.  I look forward to the day when gays and lesbians can marry, but I suppose I have been looking for style points.  My first choice is for an initiative to pass overwhelmingly that would recognize gays and lesbians as having the same rights as anyone else where society embraces them.  My next choice would be for the courts to declare that civil rights extend to all of us and that gays and lesbians may marry.  My third choice is that we win on a “standing” issue.

    This reveals my bias.  Since I am straight and married, I want to win in the most elegant way possible.  Perhaps if I was gay, my first choice would be to win on Monday, my second choice would be to win on Tuesday and my third choice would be Wednesday.


  2. Our freakin’ initiative process has sooooooo screwed Californians in so many ways it’s ridiculous – and I mean screwed EVERYONE who lives here, gay, straight, brown, black, white, male, female, young, old, renters, owners, disabled, etc…seriously time for a major overhaul.

    As to the time limit…that’s the interesting part.  This case was initially intended to go on the fast track, wonder how quickly the CA Supremes will answer the 9th.  And now we have a new Chief Justice…wonder how that will influence the game!

  3. The point raised about the “fourth branch of government” is exactly why the California initiative process needs to be challenged as a violation of Article IV, Section 4 of the U. S. Constitution:

    “The United States shall guarantee to every State in this Union a Republican [meaning representative] Form of Government, and shall; protect each of them against Invasion;” …

    Enacting law by the initiative process is not a represenative form of government.  It is direct democracy.  

  4. I think the court is absolutely correct in upholding the standing of the proponents of prop 8.  Proponents of initiatives should definitely have standing in courts.  The “idealistic” idea of ballot initiatives are that the people propose legislation that the legislature/executive branch would not propose.  It is logical that the executive branch will not always be interested in upholding initiatives in court since they weren’t supportive of them in the first place.  Since we have created the 4th branch with the initiative process there has to be someone to represent that 4th branch in court.  And there is a check of their power, the constitution as upheld by the courts.

    Think if it were the other way around.  There was a ballot initiative to allow gay marriage that passed, a defend marriage group sues saying it’s unconstitutional, and say the states attorney general doesn’t want to defend it, wouldn’t you think the proponents should have standing then?  

    I want prop 8 repealed, and I think it will be on clear constitutional logic as so beautifully done by Boies and Olson.  Let them have standing, they will still lose in the end.

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