Constitution has never vested initiative proponents with legal authority to defend initiatives to after their enactment, brief argues
SAN FRANCISCO (May 9, 2011)— City Attorney Dennis Herrera today submitted a brief to the California Supreme Court in the case challenging Proposition 8 under the Federal Constitution’s Equal Protection and Due Process Clauses. The United States Court of Appeals for the Ninth Circuit referred to the California Supreme Court the question of whether state law gives initiative proponents the right to defend initiative measures that have been adopted by the voters, and file an appeal where the Attorney General and other state officials have declined to do so. The City’s brief argues that nothing in the Constitution or state law gives initiative proponents that right.
“Prop 8’s proponents may have persuaded the voters to narrowly pass their discriminatory measure in 2008, but they were not elected to be little attorneys general whenever they choose,” said Herrera. “California’s Constitution gives one Attorney General responsibility to represent the state in legal proceedings, and when the people elect an Attorney General, they know they are entrusting that person with the authority to make decisions about legal cases. The state is not obligated to appeal every case it loses, even in constitutional cases, and it certainly should not discriminate.”
The City brief responds to amicus briefs filed last week. The City argues that Prop 8 proponents and their supporters have not identified any authority suggesting that they are authorized to defend measures on behalf of the State or that they have a special right to defend Prop 8. Initiative proponents have no state constitutional right to interfere with state officials’ exercise of discretion not to file an appeal because the California Constitution designates the Attorney General as the State’s “chief law officer” and entrusts her with responsibility of making legal decisions on behalf of the State, including whether to appeal a losing case. Nor do initiative proponents have a right to defend the measure on their own behalf, because theCalifornia Constitution does not give proponents any special rights regarding their measure after it has been adopted by the voters.
The City brief cites cases and ballot materials explaining that the purpose of the initiative power was to supplement the work of the legislature, not to give proponents the executive power to make legal decisions on behalf of the State. It also cites California’s broad standing rules, which give all Californians opportunities to have their day in state court on matters of public importance. After an initiative measure has become state law, initiative proponents can participate on the same terms as everyone else, but they do not have a special right to defend the measure on their own behalf or on behalf of the State.
City Attorney Dennis Herrera has been at the forefront of the legal battle for marriage equality in California for the last seven years. His office was the first government entity in American history ever to sue to invalidate discriminatory marriage laws, and it is the only law office to be involved as a party in every aspect of the legal fight since 2004 — from defending then Mayor Gavin Newsom’s issuance of same-sex marriage licenses; to successfully suing to strike down the anti-gay marriage exclusion in the state courts; to challenging the discriminatory Proposition 8 in the California Supreme Court, and now as co-plaintiff in the federal courts with American Foundation for Equal Rights.
The case is expected to be argued before the California Supreme Court in September.
The case, Perry v. Brown, was formerly known as Perry v. Schwarzenegger.
PDF of city’s reply brief to Perry v. Brown (May 9, 2011)