Well, my heart went "boom"
The California Supreme Court issued the latest entry in the legal paper trail of the saga of Proposition 8 today. Prop 8, recall, is California’s initiative constitutional amendment that stripped same-sex couples of their previously fundamental right to marry under the California Constitution. Answering a question that had been certified by the U.S. Court of Appeals for the Ninth Circuit, the court ruled “that when the public officials who ordinarily defend a challenged state law or appeal a judgment invalidating the law decline to do so, under ... the California Constitution and the relevant provisions of the Elections Code, the official proponents of a voter-approved initiative measure are authorized to assert the state’s interest in the initiative’s validity, enabling the proponents to defend the constitutionality of the initiative and to appeal a judgment invalidating the initiative.” With this ruling, the dispute over Prop 8's constitutionality returns to the U.S. Court of Appeals for the Ninth Circuit, where that federal court now seems more likely to rule that Prop 8's official sponsors ("the Proponents") have the legal authority or standing to appeal Judge Walker's August 2010 decision holding Prop 8 unconstitutional.
I discussed the procedural posture of the challenge to Prop 8 and issues of the Proponents standing to appeal Walker's decision more fully here and here (among others). For now, let me repeat that to be able to take an appeal in federal court, the Proponents must have a sufficient stake in the dispute that they have "standing." Either they must have what the Supreme Court of the United States (SCOTUS) has called a "concrete and particularized interest" in the dispute, or they must somehow be able to step into the shoes of the state of California since pretty much everyone agrees that a state would have standing in federal court to defend its laws. Prior SCOTUS case law makes it exceeding unlikely that the Proponents would have a particularized interest in Prop 8's validity, and indeed CASC does not even address that part of the Ninth Circuit's question. Rather, it essentially holds that California law authorizes initiative proponents to step into the state's shoes when the elected state officers who ordinarily defend such measures choose not to.
But from where does this authority stem? CASC repeatedly says that Proponents enjoy this authority "under state law." And, as quoted in the opening paragraph here, the court says that it is the provisions of the state constitution providing for the initiative power and the provisions of the state's election statutes specifying the role that initiative sponsors such as the Proponents play in getting an initiative adopted that confer this authority on ballot sponsors. The court does not actually say that it is interpreting any of these provisions as the source of the authority to defend and to appeal adverse judgments -- and with good reason. As Ted Olson emphasized in oral argument to the court, the California constitution expressly says that "The initiative is the power of the electors to propose statutes and amendments to the Constitution and to adopt or reject them." It says nothing about anyone defending enacted initiatives (or any other post-enactment function). Likewise, the state's Election Code details the role that initiative sponsors have prior to enactment of their measures, and says nothing whatsoever about any post-enactment role for initiative sponsors such as the Proponents of Prop 8. Ordinary principles of statutory and constitutional interpretation thus would seem to weigh heavily against CASC's conclusion today as a matter of interpretation, and the court does not even pretend to try to parse the meaning of the provisions of law on which it claims it is basing its decision. The court's ruling thus is better understood not as an interpretation of state law but as a common-law holding, an interpolation, or a judicial construction, a rule the court chose to adopt to give effect to the values reflected in the California constitution and the state Election Code -- "to guard the people's right to exercise the initiative power."
There is evidence in the CASC's opinion to support this characterization. The court quoted prior opinions where it had said of the initiative power that it is "the duty of the courts to jealously guard this right of the people." To that end, the court reaffirmed, "if doubts can reasonably be resolved in favor of the use of [the initiative] power, courts will preserve it." The trouble, of course, is that, as described above, the reserved initiative power is the power of the people to propose California statutory or constitutional measures and to vote them up or down. To propose and to vote, as Ted Olson rightly emphasized at oral argument last December.
How then does the court justify creating its own gap-filling rule allowing initiative sponsors the authority to assert the state's interest in an enacted initiative to defend a measure or to appeal a decision invalidating it? The court quotes the same decisions, specifically their language saying that courts should "apply a liberal construction to [the initiative] power wherever it is challenged in order that the right be not improperly annulled."
Set aside the problem that the court is not interpreting but clearly adding to the words of the state constitution and the Election Code. Where is the risk that an enacted initiative would be "nullified," whether "directly or indirectly" (as the court says elsewhere in the opinion) by acts of elected state officers? Even if "the [California] 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" (in the Ninth Circuit's words, quoted by the court), how could elected officers do that nullifying? No one was claiming that governors and attorney generals could simply disregard an enacted initiative and treat it as a nullity. As the same-sex couple plaintiffs pointed out and the court conceded, "invalidation of Proposition 8 in the underlying federal litigation did not result from any action or inaction by the Governor or
Attorney General but from a decision by the federal district court after a contested
trial." Thus, it is far from necessary to vest initiative proponents with authority to represent the states interest to keep elected officers from nullifying measures the people adopt.
Faced with that inescapable reality, the court retreated from its ostensible concern with preventing initiatives from being nullified, to a concern with keeping them from being "undermined." At one point, the court suggests that "the California initiative process may be undermined if a California initiative goes undefended in a federal proceeding." Explaining at greater length, the court argued:
“If public officials refuse to provide [a competent and spirited] defense [of an initiative], 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 that constitutional power, it also would allow state executive branch officials to effectively annul voter-approved initiatives simply by declining to defend them, thereby permitting those officials to exceed their proper role in our state government‘s constitutional structure.”
But this is simply wrong. The court emphasizes that it is affirming only a limited authority of initiative sponsors to defend initiatives, not to take any affirmative enforcement measures. So assume that someone has brought suit to challenge the validity of an enacted initiative. If the plaintiffs litigate in state court, the state courts are free to allow the initiative's sponsors to intervene as defendants, and once they do so, they may present any non-frivolous legal arguments in defense of the initiative they had proposed. (Alternatively, the state court could let the sponsors participate as amicus curiae or "friends of the court," submit briefs, and engage in oral arguments.) So, there is no risk of "effective nullification."
On the other hand, if the plaintiffs litigate in federal court, they have to satisfy federal standing requirements. If they do not have a sufficiently concrete and particularized injury as a result of the initiative, then the federal court will dismiss their suit, and the initiative will not be nullified. But if the plaintiffs do have an adequate injury to proceed, then the initiative sponsors would not have to satisfy federal standing requirements to intervene as defendants -- there is already an adequate "case or controversy" (in the terminology of federal standing rules) between the plaintiffs and the state officer defendants who are by assumption refusing to defend the measure. This is what happened in the Prop 8 litigation. So, the initiative gets a "competent and spirited defense," and it therefore cannot be pejoratively labeled a state officer "nullification" if a federal judge concludes after an adversarial trial that the measure violates the federal constitution. Only were state officers to refuse to defend and the federal court also to refuse to allow the sponsors to intervene as defendants would there remotely be a risk of nullification. But then, either the federal appeals court might well deem it to be an abuse of the trial court's discretion to refuse such intervention -- nullifying the nullification worry -- or state law could much more narrowly vest proponents with authority to step into the state's shoes under those narrow circumstances for purposes of defending the initiative at trial.
So, perhaps the California Supreme Court’s opinion offers some justification for it concluding that it is necessary to use its power to create a rule (of state law) authorizing initiative sponsors to represent the state’s interests under certain rare conditions. But once anyone has made “a full and robust defense” of an initiative at trial, and thus we can be confident that the trial court will be “aware of and address[] the full range of legal arguments that reasonably may be proffered in the measure’s defense,” a decision holding the measure unconstitutional is no improper nullification, whether or not that judgment gets appealed. The California Supreme Court’s opinion thus has not justified extending the authority it by near-fiat gave initiative sponsors in today’s decision beyond defending the initiative the sponsors helped enact to appealing from trial court rulings invalidating the initiative. It is unjustified to suggest that a law that is invalidated after a full adversarial trial has been somehow improperly “nullified” by a state officer’s decision not to appeal the trial court’s judgment. Indeed, it is an insult to the integrity of federal trial court judges (who along with non-defending governors and attorneys general are the persons about whom the court is worrying). True, a federal trial court might make a mistake. But so might a federal appellate court. And so might the California Supreme Court. But the prospect of mistake, or even an actual mistake, cannot transform judgment into usurpation. To the extent the California Supreme Court is worried about “the appearance of the fairness of the” federal judicial process, it is taking on the responsibility of a different level and branch of government: the federal judiciary.
The California Supreme Court’s only halfway real effort to justify its repeated afterthought of “or appeal” whenever it talks about proponents “defending” a measure is relegated to a footnote. There, the court claims that “Ordinarily, … public officials who are defending a state law against a constitutional challenge can be expected to appeal an adverse trial court judgment to an appellate court.… The inability of the official proponents of an initiative measure to appeal a trial court judgment invalidating the measure, when the public officials who ordinarily would file such an appeal decline to do so, would significantly undermine the initiative power.” This passage is awfully weak. It shifts away from the court’s main trope about elected officers “nullifying” initiative measures to a much more nebulous claim about “undermin[ing] the initiative power,” and offers no empirical support for its claim about what is ordinarily done nor any normative argument about why the people of the state need someone besides elected officials to have the ability to take appeals from valid federal judgments holding initiatives unconstitutional for that legislative initiative power to be robust.
The court’s reasoning addressing the plaintiffs’ objection to creating new state law giving initiative sponsors the kind of authority at issue here is not much better. The court argues that “because there is no reason to doubt that the California Legislature … would have authority to step in to assert the state’s interest in the validity of a statute enacted by the Legislature if the state’s executive officials have declined to defend the statute‘s validity in a court proceeding, we conclude that the people are no less entitled to have the state’s interest in the validity of a voter-approved initiative asserted on their behalf when public officials decline to defend the measure.” But if the legislature were to intervene to defend a law, it would be pursuant to a vote of the legislature or perhaps one of its chambers, either directly authorizing intervention in a particular case, or an earlier vote vesting authority to intervene in legislative leadership, a house, a committee, or some other subset. Here, even assuming the people (acting in parallel fashion to the legislature, by enacting law via the initiative process) are “entitled to have the state’s interest in the validity of a voter-approved initiative asserted on their behalf,” there is no evidence that the people have chosen to have the state’s interest on their behalf. As Ted Olson emphasized at oral argument before the California Supreme court, although perhaps not as strongly as he might have, Prop 8 contained no clause granting standing to defend it to its sponsors. Had there been such language, as there was in Prop 22 (the statutory ban on same-sex couples marrying adopted by the initiative process in 2000), then the same vote that adopted Prop 8 as an amendment to the state constitution also would have expressed the voters’ will to be represented by this particular self-appointed group of California voters. But there was not. So it is really the will of the California Supreme Court Justices, and not the will of the people, that appointed Prop 8 sponsors as champions of the people’s interests.
And the identity of these champions matters. The court recognized that “Plaintiffs also contend that because the official proponents of an initiative measure are private individuals who have not been elected to public office, take no oath to uphold the California Constitution or laws, cannot be recalled or impeached, and are not subject to the conflict of interest rules or other ethical standards that apply to public officials, they cannot properly assert the state‘s interest in the validity of a challenged initiative measure.” But the court’s rejection of this argument completely misses the mark.
The court somewhat defensively replies that its ruling “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.” But that’s exactly the plaintiffs’ point! Unlike the attorney general and the governor, the sponsors of a measure are just one or more California voters. They have not been elected, and therefore cannot be turned out of office by the voters, so this unaccountable collection of California voters cannot claim that basis of democratic legitimacy to represent the interests of the people of the state as a whole, which is what “the State’s interests” are.
The fact that initiative sponsors “are properly subject to the same ethical constraints that apply to all other parties in a legal proceeding,” as the court feebly notes, does not go far enough. One does not, merely by suing or defending, become obligated to uphold the California and U.S. Constitutions. Unlike a governor or attorney general, therefore, initiative sponsors therefore can make arguments that are patently antithetical to the foundational law governing in California. There was a reason that the Governor and the Attorney General of California chose not to appeal Judge Walker’s ruling: They believed Walker was correct to rule Prop 8 unconstitutional. When same-sex couples are being denied their basic constitutional rights every day that Prop 8 (or any other initiative that has been held unconstitutional by a trial court) is in effect, fidelity to the Constitution is absolutely a trait that we should want in those empowered to represent the state’s interest. (The court’s arguments about “public interest” mandate actions and “private attorney general” cases are somewhat more helpful to it, but the fact that they were “initially recognized by judicial decision notwithstanding the absence of any specific constitutional or statutory provision expressly granting such authority” does not enhance their legitimacy.)
Regrettably, all of the shortcoming’s in the court’s analyses are probably somewhat beside the point. The California Supreme Court as a general matter is the ultimate judicial authority on the content or meaning of California law. Thus, the innovative and problematic principle it articulated is an authoritative articulation of state law. The Ninth Circuit and even the U.S. Supreme Court are generally not able to hold that state law means anything different.
That does not mean that the Ninth Circuit would be completely compelled to grant standing just because of what the California Supreme Court said today. Footnote 7 of the court’s opinion notes that the authority to appeal in California state court litigation follows merely from being a party at trial, but also that the rule is different in federal court, where even a party must satisfy federal standing requirements to be able to take an appeal. Footnote 27 says that SCOTUS’s “decision in Arizonans for Official English imposes no impediment to a state court‘s determination that, under state law, an initiative proponent has the authority to intervene as of right in an action in state court challenging the validity of an initiative measure.” Taken together, this provides support for an argument and leaves room for the Ninth Circuit to conclude that, in federal court under federal law, today’s decision by the California Supreme Court does not dictate the conclusion that the Prop 8 Proponents do indeed have standing to appeal Judge Walker’s decision.
However, based on the argument before the Ninth Circuit last December, most observers do not think that Judge Reinhardt wants to hold that the proponents lack standing. He was clearly frustrated with the possibility that he might not be able to reach the merits of the constitutional challenge to Prop 8 and instead might have to dismiss the appeal on the grounds that the Proponents lack standing to appeal. If this reading is right, he may be looking for a reason to grant them such standing, and today’s California Supreme court decision may provide him just what he’s looking for.
If that is the case, the panel can be expected to rule on the constitutional questions fairly quickly (likely after allowing the parties to submit briefs on the significance of today’s opinion and perhaps after allowing argument). Then, each side can be expected to ask SCOTUS to agree to review the case. (It’s a matter of discretion whether SCOTUS accepts most appeals.) Since neither the plaintiffs nor the Prop 8 Proponents wanted to have a factual trial in the first case, it is possibly but not highly likely that either side would ask for en banc review by a larger panel of eleven Ninth Circuit judges before asking SCOTUS to get in on the act. If the Ninth Circuit does rule on the merits, then a narrower, California-specific equal protection holding that Prop 8 was unconstitutional would be less likely to be reversed by SCOTUS than a broader right-to-marry ruling that would invalidate marriage restrictions in 44 states. Judge Walker’s opinion contained both kinds of rulings. Only time, though not that much of it, will tell what kind of ruling the Ninth Circuit will make.
