# CA Supremes Give Standing to Prop Proponents to Defend Laws **URL:** \ **Category:** Great Debates\ **Created:** [November 22, 2011, 4:30pm UTC](https://boards.straightdope.com/t/ca-supremes-give-standing-to-prop-proponents-to-defend-laws/603765 "2011-11-22T16:30:12Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 22, 2011, 4:30pm UTC](https://boards.straightdope.com/t/ca-supremes-give-standing-to-prop-proponents-to-defend-laws/603765/1 "2011-11-22T16:30:12Z")
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: > [@Prop 8 trial update: Walker's ruling upheld](https://boards.straightdope.com/t/prop-8-trial-update-walkers-ruling-upheld/585500/47): > > Now if they rule the Prop 8 sponsers don’t have standing then they never even address any of their arguments. It’s like the case was never appealed at all. And I feel confident in saying there’s zero-chance SCOTUS would overule the 9th Circuit _on the issue of standing_, they’re very much loath to expand the rules of standing for federal court cases. I also feel confident is saying that the Supreme Court of California isn’t going to answer the legal question certified to them in favour of Prop 8’s backers. There’s no statute in CA granting private citizens the right to defend laws in court, no legal precedent for it, and the state constitution expressly gives that duty to the Governor and the Attorney General. That same state constitution also provides 2 different mechanisms for the voters and/or the state legislature to deal with officers who do not perform their duties; neither of which has been or will be pursued in this case. However, **alphaboi867** ’s confidence was misplaced. > [@CA Supreme Court](#): > > At the request of the United States Court of Appeals for the Ninth Circuit, we agreed to decide a question of California law that is relevant to the underlying lawsuit in this matter now pending in that federal appellate court. . . . As posed by the Ninth Circuit, the question to be decided is ―[w]hether 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. And their answer: > [@](#): > > Thus, in an instance — like that identified in the question submitted by the Ninth Circuit — in which the public officials have totally declined to defend the initiative‘s validity at all, we conclude that, in light of the nature and purpose of the initiative process embodied in article II, section 8 of the California Constitution (hereafter article II, section 8) and the unique role of initiative proponents in the constitutional initiative process as recognized by numerous provisions of the Elections Code, it would clearly constitute an abuse of discretion for a court to deny the official proponents of an initiative the opportunity to participate as formal parties in the proceeding, either as interveners or as real parties in interest, in order to assert the people‘s and hence the state‘s interest in the validity of the measure and to appeal a judgment invalidating the measure. In other words, because it is essential to the integrity of the initiative process embodied in article II, section 8 that there be someone to assert the state‘s interest in an initiative‘s validity on behalf of the people when the public officials who normally assert that interest decline to do so, and because the official proponents of an initiative (in light of their unique relationship to the initiative measure under art. II, § 8 and the relevant provisions of the Elec. Code) are the most obvious and logical persons to assert the state‘s interest in the initiative‘s validity on behalf of the voters who enacted the measure, we conclude that California law authorizes the official proponents, under such circumstances, to appear in the proceeding to assert the state‘s interest in the initiative‘s validity and to appeal a judgment invalidating the measure. Neither the Governor, the Attorney General, nor any other executive or legislative official has the authority to veto or invalidate an initiative measure that has been approved by the voters. It would exalt form over substance to interpret California law in a manner that would permit these public officials to indirectly achieve such a result by denying the official initiative proponents the authority to step in to assert the state‘s interest in the validity of the measure or to appeal a lower court judgment invalidating the measure when those public officials decline to assert that interest or to appeal an adverse judgment. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [November 22, 2011, 4:39pm UTC](https://boards.straightdope.com/t/ca-supremes-give-standing-to-prop-proponents-to-defend-laws/603765/2 "2011-11-22T16:39:10Z")
As a matter of principle, I agree with the SCOCA that _someone_ should be able to defend the enactment. ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [November 22, 2011, 5:14pm UTC](https://boards.straightdope.com/t/ca-supremes-give-standing-to-prop-proponents-to-defend-laws/603765/3 "2011-11-22T17:14:16Z")
> [@Really\_Not\_All\_That\_Bright](#): > > As a matter of principle, I agree with the SCOCA that _someone_ should be able to defend the enactment. seconded. It would be a blatant end-run around initiative, making it a nullity, if the people can’t. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [November 22, 2011, 5:28pm UTC](https://boards.straightdope.com/t/ca-supremes-give-standing-to-prop-proponents-to-defend-laws/603765/4 "2011-11-22T17:28:22Z")
> [@Really\_Not\_All\_That\_Bright](#): > > As a matter of principle, I agree with the SCOCA that _someone_ should be able to defend the enactment. 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. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [November 22, 2011, 5:31pm UTC](https://boards.straightdope.com/t/ca-supremes-give-standing-to-prop-proponents-to-defend-laws/603765/5 "2011-11-22T17:31:02Z")
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. ---
**Author:** ![Simplicio](https://avatars.discourse-cdn.com/v4/letter/s/c37758/32.png) [@Simplicio](https://boards.straightdope.com/u/Simplicio)\ **Post date:** [November 22, 2011, 5:32pm UTC](https://boards.straightdope.com/t/ca-supremes-give-standing-to-prop-proponents-to-defend-laws/603765/6 "2011-11-22T17:32:25Z")
> [@jtgain](#): > > 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. 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. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [November 22, 2011, 5:36pm UTC](https://boards.straightdope.com/t/ca-supremes-give-standing-to-prop-proponents-to-defend-laws/603765/7 "2011-11-22T17:36:07Z")
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. ---
**Author:** ![Zeriel](https://avatars.discourse-cdn.com/v4/letter/z/58956e/32.png) [@Zeriel](https://boards.straightdope.com/u/Zeriel)\ **Post date:** [November 22, 2011, 5:38pm UTC](https://boards.straightdope.com/t/ca-supremes-give-standing-to-prop-proponents-to-defend-laws/603765/8 "2011-11-22T17:38:56Z")
> [@Simplicio](#): > > 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. 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. ---
**Author:** ![pravnik](https://avatars.discourse-cdn.com/v4/letter/p/8edcca/32.png) [@pravnik](https://boards.straightdope.com/u/pravnik)\ **Post date:** [November 22, 2011, 5:52pm UTC](https://boards.straightdope.com/t/ca-supremes-give-standing-to-prop-proponents-to-defend-laws/603765/9 "2011-11-22T17:52:31Z")
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. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [November 22, 2011, 5:53pm UTC](https://boards.straightdope.com/t/ca-supremes-give-standing-to-prop-proponents-to-defend-laws/603765/10 "2011-11-22T17:53:53Z")
> [@Really\_Not\_All\_That\_Bright](#): > > 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. And what happens when the AG doesn’t do that? Impeachment is a paper tiger. > [@Simplicio](#): > > 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. 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. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [November 22, 2011, 6:04pm UTC](https://boards.straightdope.com/t/ca-supremes-give-standing-to-prop-proponents-to-defend-laws/603765/11 "2011-11-22T18:04:53Z")
> [@jtgain](#): > > And what happens when the AG doesn’t do that? Impeachment is a paper tiger. 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? ---
**Author:** ![Evil\_Captor](https://avatars.discourse-cdn.com/v4/letter/e/f17d59/32.png) [@Evil\_Captor](https://boards.straightdope.com/u/Evil_Captor)\ **Post date:** [November 22, 2011, 6:10pm UTC](https://boards.straightdope.com/t/ca-supremes-give-standing-to-prop-proponents-to-defend-laws/603765/12 "2011-11-22T18:10:42Z")
> [@Really\_Not\_All\_That\_Bright](#): > > 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. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [November 22, 2011, 6:24pm UTC](https://boards.straightdope.com/t/ca-supremes-give-standing-to-prop-proponents-to-defend-laws/603765/13 "2011-11-22T18:24:24Z")
Why should they have to pay private counsel when they already employ an attorney and solicitor general? ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [November 22, 2011, 8:13pm UTC](https://boards.straightdope.com/t/ca-supremes-give-standing-to-prop-proponents-to-defend-laws/603765/14 "2011-11-22T20:13:58Z")
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. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [November 22, 2011, 8:27pm UTC](https://boards.straightdope.com/t/ca-supremes-give-standing-to-prop-proponents-to-defend-laws/603765/15 "2011-11-22T20:27:02Z")
> [@John\_Mace](#): > > 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? ---
**Author:** ![Jas09](https://avatars.discourse-cdn.com/v4/letter/j/d07c76/32.png) [@Jas09](https://boards.straightdope.com/u/Jas09)\ **Post date:** [November 22, 2011, 8:28pm UTC](https://boards.straightdope.com/t/ca-supremes-give-standing-to-prop-proponents-to-defend-laws/603765/16 "2011-11-22T20:28:50Z")
> [@jtgain](#): > > Can’t we just ask Anthony Kennedy right now and save hundreds of thousands of dollars in legal fees? Think of it as stimulus. ---
**Author:** ![gatorslap](https://avatars.discourse-cdn.com/v4/letter/g/bb73d2/32.png) [@gatorslap](https://boards.straightdope.com/u/gatorslap)\ **Post date:** [November 23, 2011, 9:47am UTC](https://boards.straightdope.com/t/ca-supremes-give-standing-to-prop-proponents-to-defend-laws/603765/17 "2011-11-23T09:47:12Z")
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. ---
**Author:** ![carlb](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/carlb/32/5930_2.png) [@carlb](https://boards.straightdope.com/u/carlb)\ **Post date:** [November 23, 2011, 2:06pm UTC](https://boards.straightdope.com/t/ca-supremes-give-standing-to-prop-proponents-to-defend-laws/603765/18 "2011-11-23T14:06:36Z")
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. ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [November 23, 2011, 2:19pm UTC](https://boards.straightdope.com/t/ca-supremes-give-standing-to-prop-proponents-to-defend-laws/603765/19 "2011-11-23T14:19:22Z")
> [@Really\_Not\_All\_That\_Bright](#): > > 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. 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. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [November 28, 2011, 1:15am UTC](https://boards.straightdope.com/t/ca-supremes-give-standing-to-prop-proponents-to-defend-laws/603765/20 "2011-11-28T01:15:46Z")
> [@carlb](#): > > 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. 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. > [@David42](#): > > 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. 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. [Next page](https://boards.straightdope.com/t/ca-supremes-give-standing-to-prop-proponents-to-defend-laws/603765.md?page=2)