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Prop 8 and Standing


This is an interesting and perhaps unintended consequence of the legal challenge against California’s Proposition 8.  The 9th Circuit panel considering the appeal to Prop 8’s (un)constitutionality sent (part of) the case back to the California Supreme Court to determine who has standing under California law to defend a state law.  As neither the (then) governor nor the (then) attorney general of California appealed the federal district court ruling striking down Proposition 8, it’s an open question.  If the state refuses to defend its own law, and private citizens lack standing, then the law is struck down by default.

Although I fake it at times in class, I’m not a constitutional (or legal) scholar, so I’ll direct interested parties here for a detailed discussion on the standing issue.  Approaching this question from an institutional and electoral (direct democracy) perspective, I see some troubling precedents in this case.  While I can speak for my fellow LGM authors in suggesting that the blog (and the vast majority of our readers) is opposed to Proposition 8 as policy, this is a procedural / institutional question, not an outcomes question.  If the state can effectively veto “any voter initiative by not defending the state’s voter initiated law in court”, to quote my colleague Todd Donovan, what prevents a Republican-run state (i.e. the governor, attorney general, etc.) from effectively vetoing a progressive initiative voted into law by the electorate?

Jessica Levinson in the above-cited HuffPost article suggests that this might not be a problem:

Is that a problem? Maybe not. The judiciary stands as an important check against the majority. The judicial branch is designed as a break against decisions by the majority that can harm minorities. The judiciary is in many ways the last stop on the train to tyranny of the majority.

I’m partially sympathetic to the reasoning, but not to the ultimate implication.  Yes, the judiciary is central in defending the rights of the minority against the tyranny of the majority, and in applying constitutional oversight (of course now that we have the Republicans running the House, we can do away with the judiciary altogether).  However, I’m of a mind that for these cases to be effectively decided, the majority ought to be represented.  As a citizen initiative approved by the electorate becomes state law, it is incumbent upon the state to defend said law in court.

The alternative is to allow private groups, with interests more narrowly defined than the state interest, standing in such cases, and I’m not entirely comfortable with that.  Yet our system has more than enough veto points designed into it that I suspect we really don’t need another.


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  • richard

    I agree that the Levinson article is misguided. The majority needs representation too and while the courts are a bulwark of sort sort against majoritarian rule, sometimes the majority deserves to win and the minority deserves to lose.A rule that says that an AG doesn’t have to defend propositions that are enacted by a majority of the electorate would give the executive, whether liberal or conservative, way too much power to undermine popular votes.

    But here the AG had a duty to defend the proposition at the trial court level and it did so, although leaving the trial litigation to private interests who supported the proposition. But I’m uncomfortable with the propositioin that there is a duty of the AG to appeal every case it loses. If the AG had not defended the prop at the trial court level, standing should have been granted to private interests to defend the propition but once a judgment is reached, the AG didn’t have to appeal and I would not grant standing to a private group to pursue a discretionary appeal process.

  • richard

    Looking at some of the articles Dave linked to, I may have been wrong about my assumption that the AG answered the complaint to set aside Prop 8 but then allowed private interests to litigate. If California never answered and never attempted to defend, then I think it makes sense to allow a private interest to intervene and grant standing to it. If, however, California did answer so as to prohibit a default from being entered and then allowed private interests to proceed after that, I don’t think the Ninth Circuit needs to grant standing for the purpose of pursuing a discretionary appeal.

  • firefall

    If the state can effectively veto “any voter initiative by not defending the state’s voter initiated law in court”, to quote my colleague Todd Donovan, what prevents a Republican-run state (i.e. the governor, attorney general, etc.) from effectively vetoing a progressive initiative voted into law by the electorate?

    This is only of concern if you regard the Initiative system as a popular and democratic voice, rather than a misguided, illdesigned system easily exploited by sectarian interests to impose ridiculous constraints on the state. I think the evidence suggests the latter is more a match to reality.

    • mpowell

      This was basically going to be my response as well. There is nothing sacred about the initiative system. In it’s various different forms it ranges from terrible to only slightly harmful. This is a somewhat awkward way of allowing one branch of government to exercise power over some nominally independent political process, but in actuality that happens all the time. There’s nothing fundamentally wrong with it and in this case it would improve democratic outcomes.

      And it’s just idiotic to worry about a Republican governor vetoing a progressive initiative. Really, I’m not kidding- I can’t take anyone seriously who clings to those kinds of arguments. In order to argue against a particular arrangement of political powers you need to demonstrate why it is harmful or undemocratic in the general case. It’s bad enough when people make these kinds of arguments with just a single specific real world case in mind. When all you can come up with is some hypothetical case, you clearly do not understand how to think about these things.

      • Dave Brockington

        Cheers, mate. That was really constructive. I’m impressed.

        What I was doing in presenting the hypothetical was separating the merits of the policy from the merits of the process. That much should have been clear. The process introduces another veto point; while you might not like direct democracy, replace “initiative” with “act of legislature” and the result is ultimately the same: political actors in the executive branch of state government fail to defend a state law against a constitutional challenge, thus effectively vetoing that law.

        • mpowell

          The executive generally already has veto power over acts by the legislature that are more powerful than what we are talking about here, so that’s not a very compelling angle to take on this. And while I would agree, in principle, that are political system needs fewer points, the initiative system is so harmful that I would strongly prefer changes that undermine it’s efficacy unless I could be persuaded that those changes would be systematically harmful for some other reason.

          Also, the argument you were responding to specifically addressed discussed the merits of this political process on process grounds – the judiciary standing as a check on the majority and all that. In context, your hypothetical sounds like either a red-herring in the sense I indicated earlier or a suggestion that the people arguing in favor of this on process grounds are arguing in bad faith. I’m sorry if I came off as excessively harsh, but this seems to me to be a mistake people make frequently (particularly related to the filibuster) and I am kind of tired of it.

          • Dave Brockington

            Honestly, the reason for the hypothetical was to address (part) of the audience of LGM — the vast majority of whom (correctly, IMO) believe Prop 8 to be bad policy. I sought to distinguish the merits of the policy from the merits of the process. There’s loads of “analysis” out there that ignore this aspect of the issue, and focus entirely on “Prop 8 bad! Any means necessary to overturn it!”. It was neither a red herring nor a means to limit the scope of the argument to purely process grounds, but rather the point of the post was “hey, look over here, this may be good in the short term, but it may ultimately be problematic”.

            Yes, the executive already has veto power over the legislature, but the legislature can override that veto, which in turn can be overridden by the executive via not mounting a vigorous defence of the law in court. This is what I’m concerned about, in a Burkean “unintended consequences” spirit.

            Ergo, leaving your particular viewpoints on the initiative process aside, I am inclined to believe (though am not entirely convinced hence the open nature of this post to begin with) that this veto procedure, either as a means to overturn Prop 8 or as a check on the initiative process, is potentially a greater threat to democratic principles.

      • McKingford

        Well, an initiative like Prop 8, which denies rights will always bestow standing on an aggrieved party.

        I guess the flip side example that I can think of is the animal welfare initiative recently passed in CA. If it were overturned by a judge, and the state refused to appeal, who would speak for the animals!!

  • Just John

    If Walker had not found Prop 8 unconstitutional it would still be the law — though since LGBT couples would still be being harmed by it there might still be an appeal process going on without such a question of standing as we have now. Unless we accept that the courts would always side with the unenthused state executives, how is this an effective veto power?

  • Joe

    I think the CA system misguided but think if it’s in place there is an obligation to defend the law in court.

    The gov. did this early on — it went through state court and was tested in federal district court. Even if a federal judge says “boo,” it should go all the way. If Arnold wanted it tested in the courts (I realize he is gone now, he had his chance), that means more than one level.

    Bad policy doesn’t necessarily mean there is actual standing here. That’s a separate matter. And, there are some political checks here [e.g., now Gov. Brown made his stance known & was elected anyway] but the result does give me pause.

    • Joe

      The alternative argument is that the law violates the federal constitution. But, honestly, that is currently an open question of law. And, again, though Brown said from the beginning he thought just that, Arnold started off letting the courts decide. The fact the process is supposed to serve as an alternative to the usual political process also makes it somewhat different from the normal executive who in rare cases refuses to defend an unconstitutional law. And, even there, some party often can be found to defend it.

  • jsmdlawyer

    Interesting questions.

    I have two comments. First, as to the legal question of standing, I have successfully litigated against a petition effort in Maryland. The applicable rules regarding standing are that private parties don’t have standing and aren’t entitled to intervene in the case where the government is defending the petition and its interests are in line with the private parties advancing the petition.

    Now, petitions are distinct from initiatives and the current CA posture is different than my case was, but I suspect that under Maryland’s rules, the private parties would be allowed to appeal if the government chose not to do so. So the question is what provision California law makes in this regard. It seems clear that the Ninth Circuit panel considers this question to be solely one of state law, or else it wouldn’t have certified the question to the California Supreme Court.

    Federal rules regarding standing are vastly more narrow than those I am familiar with in Maryland, but I have no idea what the California rules are.

    Second, as to Dave’s question about what stops a governor or attorney general from simply not defending an initiative or other referendum, the answer is that the voters of that state do. Let’s say that a Republican governor of a blue (or even purple) state refuses to defend an initiative passed by the voters. If the voters truly care about the outcome of that initiative, they will have the opportunity to take it out on those elected officials come election time. If, however, the voters simply passed an initiative without great thought or one that they only care about marginally, then they will not act in such fashion. But in that case, then maybe the elected official(s) were right to judge the political winds as they did in deciding not to defend what they believed to be an ill-considered or even unconstitutional initiative.

    So there is a check on the actions of elected officials regarding initiatives, the same check as to any other action of said officials: voting.

    • richard

      But lets say that the initiative is to enact a Massachusetts style health care plan that requires purchase of insurance and the challenge is that requiring purchase is unconstitutional. The state AG refuses to defend and by default the law is declared unconstitutional. You can vote the AG or governor out in four years but in the meantime the law is void and because the decision was made on constitutional grounds, you cant change the law without amending the constitution (easy in some states, very difficult in others). In general, I think the better rule is to have all issues decided on the merits after proper briefing and full trial.

      • Ian

        The state AG refuses to defend and by default the law is declared unconstitutional.

        But that’s not what happened here. The state did defend when the lawsuit was brought, but it declined to appeal the ruling. There was a “proper briefing and full trial.”

      • jsmdlawyer

        Not to get all lawyer wonky here, but even if the state doesn’t defend the lawsuit at all, it does not follow that “by default the law is declared unconstitutional.” Even in a default situation, a court is required to review the sufficiency of the legal claims made by the plaintiff, and if the claims are not sufficient, the court may not grant relief simply because there was a default. I have never seen or heard of a situation where a law was declared unconstitutional by default, even where such a claim is made against a private party and the private party does not respond or otherwise defaults.

        So your premise is flawed. Even in the face of complete inaction, a court would still be required to address the merits of the claim, and it could, if it so chose, direct the state or other governmental body to respond even in the face of a default.

        • richard

          I’m no so sure that is the case. If no answer is filed and a default taken, the court only has to read the default judgment papers and assume that the allegations made by plaintiff, if legally admissible, are true. The court can only consider a severely truncated record and while it reaches a decision on the merits, it is on the basis of a deficient record. I don’t know whether or not a court can direct to state to respond. I’ve never heard of that happening (and I’ve been practicing law for 34 years)

    • L2P

      That’s not really addressing the problem. The initiative process exists because of (supposed) breakdowns in the normal democratic process. The theory was that elected officials too easily could be captured by money, so the people directly could enact law. It doesn’t work out that way for various reasons, but that’s the theory. I think you’re blinded by the current initiative process.

      So let’s say that theory actually holds true. California’s elected officials are taken over completely by, let’s get crazy and say Chinese corporations taking advantage of our lax campaign finance laws (thanks, Scalia!) The people wake up and overwhelmingly pass initiatives doing something obviously good. Tons of good things. Alas, the bought-for attorney general doesn’t support the new laws. Ever. And the people lack standing to support them. All are overturned by default judgment.

      Is that acceptable? Doesn’t seem like it to me.

      • mpowell

        But your theory doesn’t hold. Why should we strengthen an unhelpful initiative process because in the political world you hypothesize could exist it would be helpful? That doesn’t make any sense to me.

        • L2P

          Well, you:

          1. Assume the initiative process is unhelpful, and

          2. Ignore what it actually does.

          Initiatives are just laws (or constitutional amendments, which aren’t relevant here.) There’s nothing special about them. You simply don’t like them, because you think they’re “unhelpful.” I’d say that they are neutral, and I’m simply pointing out why the can serve a good purpose.

          More importantly, if an attorney general can refuse to defend a law enacted by initiative, he can refuse to defend law enacted by the legislature. Again, there’s nothing special about initiatives.

          I get that you don’t like initiatives. Let it go. The real issue is the discretion of the attorney general – that’s a bad thing.

        • dave3544

          Concur with L2P. I have no idea what your politics are, but Oregon has legalized assisted suicide and banned using dogs in the hunting of cougars through the initiative process. Oh, we also passed a tax increase on corporations and the wealthiest 2% that our spineless (Dem-controlled) Legislature would not.

          Of course, we have also banned gay marriage, fucked schools by limiting our property tax receipts, and spent a lot of time fighting of wingnut initiatives.

          In other words, some good, some bad, but not inherently “unhelpful.” And maybe better than a money-controlled legislature.

          • mpowell

            Well, I don’t live in Oregon, so I don’t know the history of the initiative process there. In CA it has been an unmitigated disaster. A lot of people interested in good government don’t like them and I think the case is pretty strong. I’m just going to summarize my take on it here. The public is far too ignorant of policy to actually decide on laws wisely. The most you can hope for in a Democracy is that people can judge whether they think things are going well and vote out the people in power or not accordingly. I prefer parliamentary systems accordingly. Now, there is also the special interests story. Well funded interest groups can frequently swing the results of an initiative process. And unlike in the case of a politician who knows he may be held accountable by the public if he does something really foolish, nobody has to answer for bad initiatives.

            Anyways, that’s a different debate. I didn’t realize L2P supported the initiative process. While I think that view is very badly wrong, I certainly would expect someone who supports the initiative process to be nervous about the Prop 8 standing issue.

      • jsmdlawyer

        Your premise is rather far-fetched. The Chinese-owned elected officials are “bought and paid for,” but the same voters dumb enough to vote for them still have enough independence of mind to pass good, true-blue state initiative legislation? This kind of schizophrenic situation is doubtful in the extreme.

        Moreover, there is simply no historical evidence to suggest that even a less cartoonish version of this situation has ever occurred or is likely to in any world resembling the one we live in.

        Take the filibuster — yeah, occasionally the (modern) left has used it or the threat of it to block an extreme judge or what have you, but the far more effective use of the process has been by reactionary forces against good policy — civil rights, health care, or in the current situation, um, everything.

        Similarly, the initiative process, born as a progressive reaction against government truly bought and paid for by 19th century plutocrats, has morphed into a tool used to bludgeon minorities of all kinds — in modern times, racial minorities and homosexuals (the case I referred to above where I stopped a referendum petition was an effort to have a referendum on a county law providing non-discrimination protections based on gender identity).

        The fact is that the initiative/referendum process is used almost exclusively these days against gays and lesbians. Theoretical exercises about what might or might not happen in a parallel quantum universe, while interesting, are just so much bullshit in the real world, where we have real and serious problems to deal with. Let’s stick with that for right now, OK?

        • Joe

          “almost exclusively”

          Is there a list of them to show this? I’m well aware of many which have, but I’m also aware of other measures not used for that purpose.

          • jsmdlawyer

            OK, “almost exclusively” was too strong. Yes, there are local and state matters that go to initiative/referendum that aren’t civil rights related.

            But way too often, the referendum process is a standard weapon in the armory of the right wing on civil rights issues, these days against gays and lesbians.

            As to the academic side of this, my argument is not novel. Here’s a paragraph from a motion I filed in the trial court proceedings in 2008:

            While initially designed as a check on the political influence of robber barons, “[t]oday, direct democracy is used comparatively infrequently to curb abuses in government or otherwise to control elected officials.” Derek A. Bell, Jr., The Referendum: Democracy’s Barrier to Racial Equality, 54 Wash. L. Rev. 2, 18 (1978). Instead, in more recent decades referenda increasingly have been used by conservative minorities as a tool to try to undermine legislative civil rights advances of historically persecuted groups. Civil rights laws enacted to rectify discrimination against African-Americans, gay people, and — most currently — transgender people, have been targeted in referenda efforts sponsored by civil rights opponents. See id. at 14-15; William E. Adams, Jr., Pre-Election Anti-Gay Ballot Initiative Challenges: Issues of Electoral Fairness, Majoritarian Tyranny, and Direct Democracy, 55 Ohio St. L.J. 583 (1994). In deciding whether to enact anti-discrimination laws, legislators have the benefit of testimony and scientific data and are charged with representing the needs of all their constituents and not just the majority, while referenda call on voters to make often ill-informed decisions on emotionally charged issues. In this arena, “referenda are often used to appeal to the worst types of irrational fears.” Id. at 595.

            Dave3544, this response is for you, too. The initiative process is inherently problematic, IMHO. The fact that occasionally a good piece of law comes out of it does not lead to the conclusion that the process is a good one. As I see it, it’s not, and I’d do away with it if I could.

        • dave3544

          While I agree with Joe and question that the initiative process is used “almost exclusively” against gays and lesbians “these days,” I wonder why you seem to think that this means that there is something inherently wrong with the initiative system and it could never be any different. You, yourself, point to a time when the initiative system was used as a challenge to entrenched power.*

          It seems to me that it will always be this way. When a large body of the electorate feels that they have no chance of effecting outcomes through “regular” political channels, they will take their case to “the people” through the initiative process.

          I personally grew up with the initiative process here in Oregon and I see nothing wrong with it, despite the fact that some really crappy things have been passed through initiative. Yeah, my fellow Oregonians are way too susceptible to the repeated airing of 30 second commercials telling them what to think. They are way too prone to think that there is a ton of waste in Salem that could be trimmed. They don’t like gays.

          On the other hand, my Legislature is, if not controlled, then very swayed by the restaurant lobby and there was no way we were getting a minimum wage increase unless it was passed by the people. Taxes were raised on corporations, something the Legislature had not managed to do since 1931. And on rare occasions, my fellow citizens take stand for the rights of the people when no one really has a money stake and do things like pass an assisted suicide law.

          So, yeah, the initiative process can do bad things and assholes can use it to mess with basic rights, but that doesn’t mean that imagining a time when people could use it for good or to advance rights is ridiculous or far-fetched. Hell, it could be tomorrow.

          *Not sure if I agree with this take on the initiative process and who it was that the progressives were seeking to take power away from.

  • rea

    It’s an elementary problem of federalism,as much as standing. California gets to say who is authorized to represent California. If Californians don’t like what their authorized representatives do, their remedies are against their representatives under state law (mandamus, impeachment, recall). Individual Californians don’t get to go to federal authorities and asked to be recognized as representing California contrary to the positions taken by their elected officials.

    • L2P

      Would your answer change if the Supreme Court could give the Presidency to a Republican candidate if they went with the individual Californians instead of the elected officials?

      • SCOTUS selecting Republican presidents with a paper-thin legal rationale? Dude, we don’t need to go into hypotheticals to imagine that.

  • MAJeff

    On the outcome side of things, I couldn’t help but read the opinions as saying, “We really want this to be decided on merits instead of standing” and “we’re incredibly grumpy with Schwarzenegger/Brown.”

    The upshot of those is that I think that same-sex marriage advocates lost yesterday. No way that SCOTUS upholds marriage equality. This feels sort of like the 11th Circuit tossing the different-sex married couple from Bowers v Hardwick. Let’s just hope that Alito or Scalia doesn’t produce a White-like decision.

    • Joe

      I think it’s a bit too soon to risk asking the Supreme Court to decide the question and given the pro SSM side won below and the gov. (and others) are on their side, I’m not really seeing a net loss here.

      If the matter is punted on standing grounds, I doubt four justices will want to take it. It won’t be the law for the 9th Cir. that SSM is protected. The SC doesn’t like expansive standing as it is. And, the justices rather avoid this hot potato. Roberts, e.g., is not dying to decide it or anything.

  • What I’m not understanding, Dave, is the supposed alternative. What could compell state AGs to fight for initiatives they oppose if that principle can’t be found in Federal law? If it’s just a Gentleman’s Agreement then that always disadvantages Democrats. Once it’s the Republican’s turn they’ll always have some asinine ad-hoc for why it don’t apply in this case.

    • dave brockington

      Yes, the Democrats will always roll over, it’s what we do, and the Republicans will always be hypocrites. But the broader, more abstract issue is who defends the state’s interest in its own laws (which is what a passed initiative is) if the state actors charged with the job don’t?

  • Brett Turner

    I just see all kinds of problem with forcing the state government to defend a law it doesn’t like. Even if it responds, it may well take a dive to a greater or lesser extent, refusing to make the best arguments to support a law it really doesn’t like.

    What’s the problem with giving standing to the group which put the initiative on the ballot in the first place? That way, the court gets a brief written by someone who truly believes in the measure it is defending. Better process, better decision.

    Plus I kind of like the notion that the group which created the initiative has to stand up before a judge and defend it as constitutional, with rule 11 lurking in the background if they can’t produce a somewhat plausible argument. Probably naive, but still.

    • chris

      I just see all kinds of problem with forcing the state government to defend a law it doesn’t like.

      I thought that under the separation of powers, the executive branch was not supposed to pick and choose which laws it likes or doesn’t like, but enforce (and obey) them all regardless? (Wouldn’t that make it a superlegislature, and to the extent that it bases its decisions on which laws to support on opinions about constitutionality, a superjudiciary as well?)

      Even if it responds, it may well take a dive to a greater or lesser extent, refusing to make the best arguments to support a law it really doesn’t like.

      Sure, if you ignore that pesky oath to uphold the law. (And not appearing in the suit at all is taking an even bigger dive, isn’t it?)

      What’s the problem with giving standing to the group which put the initiative on the ballot in the first place?

      They might not have the resources — or the brains — to mount an effective defense, either of which could happen even if the law itself is constitutional.

      Heck, they might not even exist — there’s no reason such a group couldn’t disband shortly after their measure succeeded (indeed, why wouldn’t they?), while the legal challenge might not be raised for years afterward, depending on what kind of fact pattern it takes for the challengers to have standing.

      Plus I kind of like the notion that the group which created the initiative has to stand up before a judge and defend it as constitutional

      By the time the initiative has *passed*, it’s a majority of the electorate, not the original proponents, who have “created” it (as a law). That’s why a fiduciary for the people is given the job of defending it. The people or their representatives passed a law, and if they had changed their minds about wanting that law, they could have repealed it (possibly rendering the pending challenge moot). They, not the proponents, are the actual source of the injury (if any). But the people are too diffuse to appear directly, so a representative has to appear on their behalf.

      The problem, IMO, lies in the political perception that that defense is optional, which can lead to the executive being politically criticized (sometimes from his own side of the political spectrum) for carrying out the duties of his office.

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