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Decision imperils initiative process

(Published July 7, 2013, by the Sacramento Bee.)

The U.S. Supreme Court’s ruling in the Proposition 8 (same-sex marriage) case has broad implications beyond the rights of lesbian, gay, bisexual and transgender people, raising fundamental questions about the voter initiative process in California.

The “win at all cost” push by advocates of same-sex marriage in California has now yielded a Supreme Court decision that has done much more than leave in place a decision by a single federal judge invalidating the votes of more than 7 million Californians.

The decision invites further manipulation of the legal process that will cause serious damage to the cherished voter initiative in California. That is something that should concern all Californians, and indeed all Americans, whatever their individual views about same-sex marriage.

The 5-4 majority decision in Hollingsworth v. Perry, written by Chief Justice John Roberts, held that proponents of an initiative do not have the legal right to defend in federal court the initiative they authored. As a result, the appeal to the Supreme Court was dismissed without consideration of the constitutionality of Proposition 8, and the decision on the subject previously rendered by the 9th U.S. Circuit Court of Appeals was vacated – removed from the books as though it never existed.

That leaves in place the decision by federal trial Judge Vaughn Walker, holding that Proposition 8 was unconstitutional on grounds that quite arguably conflicted with binding precedent of the 9th Circuit and the Supreme Court itself. And it leaves the decision in place despite the fact that, absent jurisdictional participation by the initiative’s proponents, the suit was a collusive one.

The named government defendants – including then-Attorney General Jerry Brown – were not only declining to defend against the suit, but were actively colluding with the plaintiffs in the case. Such dereliction of duty by executive officers of a state is rare, but when it happens, the normal recourse is for the case to be dismissed or, at most, for a default judgment to be entered, which is to say a judgment limited to the specific plaintiffs and one which carries with it no binding precedential effect, certainly not one that could force county clerks across the state who were not even parties to the litigation to fall under the trial judge’s order.

The holding by the U.S. Supreme Court that has spawned this unsettling result rejected the definitive interpretation of California law provided by the California Supreme Court, which had previously held that, under California law, initiative proponents represent the interests of the state in defending an initiative they authored when the attorney general refuses to do so. Because there is no question that the state of California itself has standing to defend its statutes and voter initiatives in federal court, the only question that needed to be resolved is who is authorized under California law to represent the state.

On this, the California Supreme Court’s determination should have been dispositive, and Roberts’ rejection of that court’s interpretation of California law is troubling in and of itself.

But even more troubling is the collateral damage to the initiative process that this ruling invites. The “precious” right of the initiative, as it has been described by California courts, was adopted by the people of California a century ago precisely to give the people a way to exercise their sovereign authority directly when their elected officials were acting contrary to their interests. As the state Supreme Court correctly recognized, giving the attorney general an effective veto over an initiative with which she disagrees, by mere refusal to defend it in court, would undermine the very purpose of the initiative power.

Imagine a hypothetical whose possibility is now very real in light of Roberts’ decision. Gov. Jerry Brown has recently expressed his renewed opposition to Proposition 13, the tax limitation initiative (during his last stint as governor in the 1970s, Brown opposed Proposition 13). Suppose the governor were now to enlist an ally to sue him, challenging the constitutionality of Proposition 13 on federal equal protection grounds. Now suppose that neither he nor the attorney general puts up a defense to the legal challenge, resulting in a federal court order by a friendly judge that Proposition 13 was unconstitutional. And suppose further that, as happened in the Proposition 8 case, the governor and the attorney general, as part of their scheme and in further dereliction of their duty to defend the people’s will, refuse to file an appeal. Poof, Proposition 13 would be no more.

The Supreme Court has repeatedly warned of the lawless manipulation of the judicial process that might result from such collusive suits, yet that is what we are left with in the wake of the ruling in the Proposition 8 case.

Abraham Lincoln, in one of his early speeches on the public stage, warned against another kind of lawlessness that in his day was pervading the country, noting that “if the laws be continually despised and disregarded ... the alienation of (the people’s) affections from the government is the natural consequence.”

Those 7 million Californians who voted in favor of Proposition 8 and the basic policy judgment about marriage that that initiative represented deserved better than what should be a default judgment of limited score from a collusive suit. The rule of law requires more. And our nation ignores this new lawlessness at its peril – a peril that may well prove to be even more profound than the potential harms to society that will result from redefining an institution as core to civil society as marriage.