CA Supremes Give Standing to Prop Proponents to Defend Laws

You may recall that the California officials charged with defending their laws declined to do so in the case of Prop 8, leading to intense speculation that the law might die on that ground alone.

To pick one comnmentary from discussion here on that subject:

However, alphaboi867’s confidence was misplaced.

And their answer:

As a matter of principle, I agree with the SCOCA that someone should be able to defend the enactment.


It would be a blatant end-run around initiative, making it a nullity, if the people can’t.

Thirded. The whole purpose of having an initiative process is to give power to the electorate to pass laws or amendments that their elected representatives don’t have the political will to pursue. If you allowed those same representatives to simply decline to enforce those initiatives in court, then the whole process is thwarted.

Well, not really. The CA constitution should require the state attorney general to defend voter initiatives in court. Nothing stopping the voters from approving an initiative on that.

In this case, they weren’t declining to enforce the initiative, though, were they? My understanding is that they were declining to defend a challenge to the law on appeal. I certainly agree the executive shouldn’t be able to ignore an initiative. I don’t think it follows that they need to pursue every legal avenue to defend a law they disagree from a court challenge.

Well, that depends on how California views the role of the executive. Generally, state executives don’t necessarily have to defend every (or even any) legislative enactments, but there’s no reason they couldn’t be required to.

While ordinarily I’d agree with you, I think the public initiative process modifies that substantially.

Arguably, since the general public voted to approve the law/initiative, they should collectively have standing as an interested party to defend it in court if the state AG declines to do so.

And I’m a staunch Prop 8 opponent…but letting the state government effectively nullify ballot initiatives in the face of challenges by the losing side defeats the purpose of ballot initiatives.

There may be a general feeling that there has to be somebody to enforce the laws that the government won’t, but I’m not so sure that the 9th and SCOTUS will see it that way - that argument hasn’t always flown in the past.

When the U.S. Congress tried to give standing over to private individuals and organizations to enforce the Endangered Species Act of 1973, SCOTUS knocked that provision down in Lujan v. Defenders of Wildlife, 504 U.S. 505 (1992), saying that legislatively created standing wasn’t enough; the plaintiffs must show an injury in fact that is actual and imminent towards themselves, concrete and particularized towards themselves, not merely something affecting the voting citizenry at large. This built on the case of Allen. v. Wright, 468 U.S. 737 (1984), in which the majority held that individuals don’t have standing to sue on the basis that govermental agencies charged to do so have not adequately enforced the law and protected their interests. I think the 9th was issuing CA an invitation to reexamine current precedent on standing and that CA has taken up the gauntlet on the issue, but don’t see anything in the CA opinion that would establish a constitutional injury in fact under current precedent. They’ll get back in the federal courthouse door, but they’ll have the uphill battle of convincing the 9th and possibly SCOTUS to make a major reexamination of current precedent regarding constitutional standing.

And what happens when the AG doesn’t do that? Impeachment is a paper tiger.

IMO that is a distinction without a difference. It’s the job of the executive to see that the laws of the state are faithfully executed. If that means appealing an adverse court decision, that’s what it means. Just because he disagrees with the law makes no matter. It would be absurd to say that an executive should only defend laws he agrees with.

The same thing that happens when an AG doesn’t carry out any of his constitutionally mandated duties. Should Californians have standing to defend every state law?

Every one passed by voter referendum, yes, certainly.

Why should they have to pay private counsel when they already employ an attorney and solicitor general?

What’s the debate? What is done is done.

This almost certainly will send the issue of SSM to the SCOTUS for final resolution. This could get messy.

Can’t we just ask Anthony Kennedy right now and save hundreds of thousands of dollars in legal fees?

Think of it as stimulus.

Back in the 90s, Prop 187 was killed in this way – after a federal district court ruled it unconstitutional, the state declined to appeal that decision. The initiative’s proponents didn’t attempt to step in and file their own appeal; it wasn’t viewed as an option. I’m comfortable with this sort of outcome – I don’t believe we need to automatically expect that every single case challenging the constitutionality of a state law shall be appealed, and I can see it as a sort of minor check on the people’s legislative power, which is not absolute.

However, that case is distinguished from this one in that the state did defend it in court, and simply declined to file an appeal. In this case, the state declined to defend it at all, and the initiative’s sponsors were allowed to defend it in court. It’s hard for me to say that they shouldn’t have standing to appeal, when they were already given standing to act in the case.

I can’t tell if the CA Supreme Court has made that distinction, or if, according to this ruling, the proponents of Prop 187 could have filed an appeal on behalf of the state.

On the one hand, I’m a bit leery of an AG not defending a law in court, because it seems like it’s too easy an opportunity for the executive branch to sidestep the legislature on any issue where the two branches are in opposition regarding the matter at hand.

On the other, what we’re discussing in this specific case is an appeal. It is my understanding (admittedly limited) that one can’t appeal a decision simply because one doesn’t like the ruling; there has to be some sort of grounds on which to say, essentially, that the lower court made a procedural error. What if the AG looks at the decision and the proceedings which led to that decision and concludes that it all worked out fairly, and that there are simply no grounds for an appeal? Should they spend the (surely limited) public funds in a losing fight?

I don’t know how one effectively polices such decisions to insure that an AG’s office is being as non-political as possible, but I can’t just jump on board the notion that the AG must defend every law, everywhere, under every circumstance.

But then we’d have attorney generals who disagree with the initiative just going through the motions of pretending to defend it while their actual defense suffers.

They’d defend by conceding every point of the other side and then raising something frivolous as the defense.

Let the laws true defenders defend it.

Questions of constitutional law are reviewed de novo, meaning that the appellate court takes a fresh look at it. You don’t need to show that the lower court made a procedural error. You just show that their interpretation of the constitution is incorrect. Mostly you repeat the arguments made below.

As an attorney, with the people of the state as your client, it is your duty to provide them with zealous advocacy.

If the AG did something like that, he should be brought before the State Bar on ethical charges. He has the duty to zealously represent his clients. It would be no different than a public defender tanking a murder case because he’s sure his client is guilty. He has a duty to his office, his constituents, and the oath he took as a member of the Bar to do everything he can to see that the laws of the state are upheld.