Kristin Perry, et al v. Arnold Schwarzenegger, et al

Filing 352

Filed (ECF) - Kamala D. Harris Correspondence: Courtesy Copy of Attorney General's Amicus Brief to California Supreme Court. Date of service: 05/03/2011 [7738243] (TP)

In the Supreme Court of the State of California
KRISTIN M. PERRY, et al.,
Plaintiffs and Respondents,

Case No. S189476

CITY AND COUNTY OF SAN
FRANCISCO,
Plaintiff-Intervenor and Respondent,
v.
EDMUND G. BROWN JR., et al.,
Defendants,
DENNIS HOLLINGSWORTH, et al.,
Defendants-Intervenors and Petitioners.
Question Certified by Request of the United States Court of Appeals for
the Ninth Circuit, Case No. 10-16696
BRIEF OF ATTORNEY GENERAL KAMALA D. HARRIS
AS AMICUS CURIAE

KAMALA D. HARRIS
Attorney General of California
MANUEL M. MEDEIROS
State Solicitor General
DAVID CHANEY
Chief Assistant Attorney General
DOUGLAS J. WOODS
Acting Senior Assistant Attorney General
CONSTANCE L. LELOUIS
Supervising Deputy Attorney General
MICHAEL TRONCOSO
Senior Counsel to the Attorney General

TAMAR PACHTER
Deputy Attorney General
State Bar No. 146083
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
Telephone: [phone]
Fax: [phone]
Email: [e-mail]
Attorneys for Amicus Curiae
Attorney General Kamala D. Harris

TABLE OF CONTENTS
Page
Question Certified ........................................................................................ 1
Introduction .................................................................................................. 1
Statement of the Case ................................................................................... 3
Argument ...................................................................................................... 8
I.

Proponents have no authority to represent the state’s
interest .................................................................................. 10
A.

The initiative power belongs to the electors as a
whole; the role of initiative proponents in the
process leading up to the ballot, ends at the
ballot .......................................................................... 11

B.

The initiative is a reservation of the legislative
power of government to enact laws; it does not
encompass a reservation of the executive power
of government to represent the state’s interest
by defending the validity of state law ....................... 13
1.

2.

C.

II.

The exercise of the initiative power for a
particular measure is complete when that
measure is adopted or rejected ....................... 15
The initiative cannot be used to exercise
executive powers, including the authority
to assert the state’s interest in defense of
a particular law ............................................... 16

The practice of California courts to liberally
grant initiative proponents leave to intervene
gives appropriate recognition to their postadoption interest, but does not establish that
proponents have a substantive right to assert the
interest of the state .................................................... 21

Proponents of a successful initiative have an interest in
its validity, but their role in the initiative process
confers no legally protected right to defend a measure
that has become law ............................................................. 25

Conclusion .................................................................................................. 27

i

TABLE OF AUTHORITIES
Page
CASES
Amador Valley Joint Union High Sch. Dist. v. State Bd. of
Equalization
(1978) 22 Cal.3d 208 .........................................................................13
American Federation of Labor v. Eu
(1984) 36 Cal.3d 687 ...................................................................14, 16
Arizonans for Official English v. Arizona
(1997) 520 U.S. 43 .............................................................................19
Baptist Church v. Hillandale Committee, Ltd.
(6th Cir. 2005) 425 F.3d 309 .............................................................19
Building Industry Assn. v. City of Camarillo
(1986) 41 Cal.3d 810 ...................................................................16, 23
California Democratic Party v. Lungren
(N.D. Cal. 1996) 919 F.Supp. 1397 ...................................................18
Chevron U.S.A., Inc. v. Workers' Comp. Appeals Bd.
(1999) 19 Cal.4th 1182 ......................................................................21
Citizens for Jobs and the Economy v. County of Orange
(2002) 94 Cal.App.4th 1311 ..................................................15, 21, 22
City and County of San Francisco v. State
(2005) 128 Cal.App.4th 1030 ................................................20, 22, 23
City of Campbell v. Mosk
(1961) 197 Cal.App.2d 640 .........................................................17, 18
Community Health Assn. v. Board of Supervisors
(1983) 146 Cal.App.3d 990 ...................................................21, 22, 23
Connerly v. State Personnel Bd.
(2006) 37 Cal.4th 1169 ............................................................8, 18, 21

ii

TABLE OF AUTHORITIES
(continued)
Page
DeVita v. County of Napa
(1995) 9 Cal.4th 763 ..........................................................................14
Diamond v. Charles
(1986) 476 U.S. 54 .........................................................................8, 19
Durning v. Citibank, N.A.
(9th Cir. 1991) 950 F.2d 1419 .............................................................9
Ex parte Young
(1908) 209 U.S. 123 .............................................................................9
Federal Martime Com’n v. South Carolina State Ports Authority
(2002) 535 U.S. 743 .............................................................................9
Fouke Co. v. Brown
(E.D. Cal. 1979) 463 F.Supp. 1142 ...................................................18
Gray v. Kenny
(1944) 67 Cal.App.2d 281 .................................................................14
Hardie v. Eu
(1976) 18 Cal.3d 371 .........................................................................12
Howard Jarvis Taxpayers Ass’n v. Bowen
(2011) 192 Cal.App.4th 110 ..............................................................13
In re Marriage Cases
(2008) 43 Cal.4th 757 ..............................................................3, 24, 25
Kaiser v. Montgomery
(N.D. Cal. 1969) 319 F.Supp. 329 .....................................................18
Kendall-Jackson Winery, Ltd. v. Branson
(7th Cir. 2000) 212 F.3d 995 .............................................................19
Lockyer v. City and County of San Francisco
(2004) 33 Cal.4th 1055 ......................................................................24
Parker v. Riley
(1941) 18 Cal.2d 83 ...........................................................................19

iii

TABLE OF AUTHORITIES
(continued)
Page
Paulson v. Abdelnour
(2006) 145 Cal.App.4th 400 ..................................................21, 22, 23
People ex rel. Ferguson v. Bd. of Sup’rs, etc.
(1869) 36 Cal. 595 .............................................................................17
People ex rel. Livingston v. Pacheco
(1865) 29 Cal. 210 .............................................................................17
People v. Karriker
(2007) 149 Cal.App.4th 763 ..............................................................18
Perry v. Schwarzenegger
(9th Cir. 2011) 628 F.3d 1191 ................................................... passim
Perry v. Schwarzenegger
(9th Cir. 2011) 630 F.3d 898 ...........................................................5, 7
Perry v. Schwarzenegger
(9th Cir. August 6, 2010, No. 10-16696) 2010 WL 3212786 .............6
Perry v. Schwarzenegger
(N.D. Cal. 2010) 702 F.Supp.2d 1132 .............................................5, 6
Perry v. Schwarzenegger
(N.D. Cal. 2010) 704 F.Supp.2d 921 ......................................... passim
Planned Parenthood of Central New Jersey v. Farmer
(3d Cir. 2000) 220 F.3d 197 ..............................................................19
Planned Parenthood of Mid-Missouri etc. v. Ehlmann
(1998) 137 F.3d 573 ...........................................................................19
Professional Engineers in California Government v. Kempton
(2007) 40 Cal.4th 1016 ......................................................................14
Reitman v. Mulkey
(1966) 387 U.S. 369 ...........................................................................19
Schmitz v. Younger
(1978) 21 Cal.3d 90 ...........................................................................14

iv

TABLE OF AUTHORITIES
(continued)
Page
Senate of State of California v. Jones
(1999) 21 Cal.4th 1142 ......................................................................13
Spreckels v. Graham
(1924) 194 Cal. 516 ...........................................................................19
State Bd. of Ed. v. Levit
(1959) 52 Cal.2d 441 .........................................................................16
Strauss v. Horton
(2009) 46 Cal.4th 364 ........................................................3, 18, 21, 22
Terry v. Bender
(1956) 143 Cal.App.2d 198 ...............................................................19
Widders v. Furchtenicht
(2008) 167 Cal.App.4th 769 ........................................................13, 14
STATUTES
Code of Civil Procedure
§ 387...................................................................................................24
§ 663...................................................................................................22
Elections Code
§ 342...................................................................................................12
§ 9000.................................................................................................11
§ 9001, subd. (a)...........................................................................11, 12
§ 9009.................................................................................................11
§§ 9020-9035 .....................................................................................12
§ 9030.................................................................................................12
§ 9032.................................................................................................12
§ 9035.................................................................................................11
§ 9601...........................................................................................12, 13
§ 9604, subd. (a) & (b) .......................................................................12
§ 18600...............................................................................................11
Evidence Code
§ 669.5................................................................................................23

v

TABLE OF AUTHORITIES
(continued)
Page
Family Code
§ 308.5................................................................................................25
Government Code
§ 1090.................................................................................................20
§ 8806.................................................................................................13
§ 12013...............................................................................................17
§ 10243...............................................................................................11
§ 12172...............................................................................................11
§ 12511...............................................................................................17
§ 12512...............................................................................................17
§ 81000.........................................................................................11, 14
§ 87100...............................................................................................20
§ 88001...............................................................................................11
United States Code, Title 42
§ 1983...................................................................................................4
CONSTITUTIONAL PROVISIONS
California Constitution Article I
§ 7.5......................................................................................................3
California Constitution, Article II
§ 6(b) ..................................................................................................18
§ 8.........................................................................................................2
§ 8, subd. (a).................................................................................11, 15
§ 8, subd. (d) ......................................................................................13
§ 13.....................................................................................................20
California Constitution, Article III
§ 3.......................................................................................................16
§ 3.5......................................................................................................5
California Constitution, Article IV
§ 1.......................................................................................................14

vi

TABLE OF AUTHORITIES
(continued)
Page
California Constitution, Article V
§ 1...................................................................................................1, 16
§ 2.......................................................................................................20
§ 11.....................................................................................................20
§ 13.................................................................................................1, 16
California Constitution, Article XX
§ 3.......................................................................................................19
United States Constitution
Article III .........................................................................................6, 7
Eleventh Amendment...........................................................................9
Fourteenth Amendment ...................................................................4, 5
COURT RULES
California Rules of Court
rule 8.548 .............................................................................................7
rule 8.548(f)(5) .....................................................................................9

vii

QUESTION CERTIFIED
Whether 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.
INTRODUCTION
Attorney General Kamala D. Harris submits this brief as amicus
curiae pursuant to California Rules of Court, rule 8.520(f)(8). Although the
Attorney General, in her official capacity, was a defendant in the
underlying case in the United States District Court, she did not appeal the
judgment, so she is not a party to the underlying appeal or to these
proceedings. But the question certified to this Court by the Ninth Circuit, if
answered affirmatively, threatens to intrude on the exercise of discretionary
powers that the California Constitution and the Government Code entrust to
state officials exercising executive power. Therefore, the Attorney General,
whom the Constitution appoints the chief law officer of the state (Cal.
Const. art. V, § 13), submits that the correct answer to the certified question
is “no.” Standing alone, the role of official proponents in the exercise of
the initiative power does not confer on the proponents of a successful
initiative a substantive right either to defend that measure or to appeal a
judgment invalidating it.
The question certified reveals two basic misunderstandings about the
initiative power. First, it confuses the authority and role of “proponents”
under California law with the authority and role of “the electors.” The
initiative is the power of the electors, as a whole, to propose and adopt or
reject laws. (Cal. Const., art. II, § 8.) The initiative power does not belong

1

to the individual, or individuals, who propose a particular initiative.
Second, the initiative power is a legislative power of government. As a
legislative power, the power of initiative is fully executed on adoption of
the measure. And, as a legislative power, the adoption of an initiative
measure does not authorize its proponents to exercise any part of the
executive power of government, either to enforce the measure, to defend
the measure’s validity, or to appeal a decision enjoining its enforcement.
The constitutional and statutory authority to act on behalf of the state
remains vested in public officials acting in an executive capacity.
Proponents of an initiative measure surely remain interested in its
validity once it becomes law. And state courts recognize that interest by
liberally granting proponents permissive leave to intervene (and to
participate as amicus curiae) in cases challenging the validity of a
successful initiative measure. In other cases, the validity of a measure may
affect the lives of initiative proponents (or other members of the public) in
a personal way that would permit them to sue or to defend their own legal
interests in court. But once an initiative measure has become the law of the
state – just as with laws passed by the Legislature – only public officials
exercising the executive power of government have the legal authority to
represent the state’s interest and to decide whether to defend or to appeal an
adverse judgment in the name of the state. California law affords an
initiative’s proponents no right to defend the validity of a successful
initiative measure based only on their role in launching an initiative
process.
Initiative proponents are private citizens. They are free to pursue their
own interests because they represent no one and – perhaps more
importantly – unlike legislators or other public officials, they are
accountable to no one. Consequently, blurring the line between
“proponents” and “the electors” and between the legislative power of

2

initiative and the executive powers of state officials would not preserve
either the electors’ power or the democratic process. Instead, it would rob
the electors of power by taking the executive power from elected officials
and placing it instead in the hands of a few highly motivated but politically
unaccountable individuals. It is thus important to affirm that the state
officials charged with enforcement of an initiative measure (and ultimately,
the Governor and Attorney General) have discretion to decide whether or
not the state will appeal from an adverse judgment striking down a measure
that has become state law. It is also important for this Court to recognize
that proponents’ role in the initiative process gives them no greater stake in
the validity of a law adopted by initiative than any of the other electors.
STATEMENT OF THE CASE
In 2008, this Court decided In re Marriage Cases (2008) 43 Cal.4th
757, holding that the California Constitution secures to gay men and
lesbians an equal protection right to marry. (Strauss v. Horton (2009) 46
Cal.4th 364, 384-385.) But later that year, California voters adopted
Proposition 8, which created a constitutional ban on same-sex marriage.
(See id. at pp. 385, 388; see Cal. Const, art. I, § 7.5 [“Only marriage
between a man and a woman is valid or recognized in California”], added
by initiative, Gen. Elec. [Nov. 4, 2008].)
The four plaintiffs (Plaintiffs) in the underlying case are a lesbian
couple (Kristen Perry and Sandra Stier, who live in Alameda County) and a
gay couple (Paul Katami and Jeffrey Zarrillo, who live in Los Angeles
County) both of whom wish to marry in California but cannot do so as long
as Proposition 8 is the law. (Perry v. Schwarzenegger (N.D. Cal. 2010) 704
F.Supp.2d 921, 927 [hereafter, Perry 1].) Shortly before this Court upheld
Proposition 8 on state law grounds in Strauss v. Horton, supra, 46 Cal.4th
364, the Plaintiffs filed the underlying civil rights action pursuant to 42

3

U.S.C. § 1983, to enjoin state and local officials from enforcing Proposition
8 on federal constitutional grounds. (Perry 1, supra, 704 F.Supp.2d at
p. 927.) The district court permitted the City and County of San Francisco
(the City) to intervene as a plaintiff. (Id. at pp. 928-929.) The Attorney
General, the Governor, the State Registrar of Vital Statistics (State
Registrar, who is also the Director of the State Department of Public
Health) and the clerk/recorders of Alameda and Los Angeles Counties were
named as defendants in their official capacities.1 (Id. at p. 928.)
Before any defendant responded to the complaint, the five official
proponents of Proposition 8 (Proponents), as well as the official ballot
committee, ProtectMarriage.com, moved to intervene as defendants. (Perry
1, supra, 704 F.Supp.2d 921, 928.) Proponents had dedicated substantial
time and resources to campaigning for the initiative. (Id. at p. 954.)
ProtectMarriage.com was responsible for all aspects of the campaign to
qualify the measure for the ballot and enact it into law. (Id. at pp. 954955.) Without opposition, their motion to intervene was granted. (See id.
at p. 928.) Subsequently, then-Attorney General Edmund G. Brown Jr.
answered by admitting that Proposition 8 violates the Equal Protection and
Due Process Clauses of the Fourteenth Amendment and declined to defend
the initiative. (See ibid.) The other defendants, including then-Governor
Arnold Schwarzenegger (who was represented by private counsel), did not
admit the allegations of the complaint but also did not defend the initiative.
(See ibid.) Proponents and ProtectMarriage.com controlled the defense of
Proposition 8 in its entirety. (Id. at p. 930.)

1

The Deputy Director of Health Information and Strategic Planning
for the Department of Public Health was also a named defendant. (Perry 1,
supra, 704 F.Supp.2d 921, 928.)

4

Though none of the government defendants was willing to defend the
measure, they each conceded their obligation to enforce Proposition 8.
(See City and County of San Francisco’s Appendix to Answer Brief, Exh. 2
at ¶ 36, Exh. 3 at ¶ 36; Perry 1, supra, 704 F.Supp.2d 921, 928; see also
Cal. Const., art. III, § 3.5.) No same-sex couples have married or obtained
a license to marry in California since passage of Proposition 8. The district
court denied a motion to realign the Attorney General as a plaintiff (filed by
Proponents and ProtectMarriage.com) because, among other reasons, the
Attorney General was enforcing the law. (See City and County of San
Francisco’s Appendix to Answer Brief, Exh. 6 at pp. 82, 83-84.)
In August 2010, after unsuccessful cross-motions for summary
judgment, a three-week trial, and a full day of closing arguments, the
district court issued findings of fact and conclusions of law. (Perry 1,
supra, 704 F.Supp.2d 921, 921, 928-929.) The court concluded that
Proposition 8 violates both the Equal Protection and Due Process
guarantees of the Fourteenth Amendment. (Id. at p. 991.) The court also
denied the motion to intervene as a defendant filed by the deputy clerk and
Board of Supervisors of Imperial County (Imperial County) that had been
interposed solely to ensure federal appellate jurisdiction. (Perry v.
Schwarzenegger (9th Cir. 2011) 630 F.3d 898, 902 [hereafter, Perry 5].)
Four of the five Proponents2 and ProtectMarriage.com immediately
filed a notice of appeal and a motion to stay the judgment pending appeal,
as did Imperial County. (Perry v. Schwarzenegger (N.D. Cal. 2010) 702
F.Supp.2d 1132, 1134 [hereafter, Perry 2].) The District Court denied the
stay and ordered that judgment be entered against the defendants, as well as
2

Defendant-Intervenor and Proposition 8 Proponent Hak-Shing
William Tam did not join in the Notice of Appeal filed by the remaining
four Proponents and ProtectMarriage.com. (See Perry 2, supra, 702
F.Supp.2d 1132, 1134.)

5

against defendant-intervenors Proponents and ProtectMarriage.com. (See
Perry 1, supra, 704 F.Supp.2d 921, 1004; Perry 2, supra, at pp. 11381139.) A permanent injunction issued separately, as follows:
Defendants in their official capacities, and all persons under the
control or supervision of defendants, are permanently enjoined
from applying or enforcing Article I, § 7.5 of the California
Constitution.
(Perry v. Schwarzenegger (9th Cir. 2011) 628 F.3d 1191, 1194 [hereafter,
Perry 4].) No relief was entered against the Proponents or
ProtectMarriage.com. (Perry 2, supra, 702 F.Supp.2d at p. 1136.)
Before the injunction became effective, a motions panel of the Ninth
Circuit granted the Proponents’ and ProtectMarriage.com’s motion (joined
by Imperial County) for a stay pending appeal and expedited both appeals,
setting them for hearing in December 2010. (Perry v. Schwarzenegger (9th
Cir. August 6, 2010, No. 10-16696) 2010 WL 3212786, *1 [hereafter,
Perry 3].) The order also directed Proponents to address in their opening
brief why the appeal should not be dismissed for lack of Article III
standing. (Ibid.)
None of the government defendants filed a notice of appeal. (Perry 4,
supra, 628 F.3d 1191, 1195.) (A related state mandamus proceeding,
Beckley v. Schwarzenegger, was initiated on August 30, 2010 to compel the
Governor and the Attorney General to file notices of appeal from the Perry
injunction. The Third District Court of Appeal summarily denied the
petition, and this Court denied a petition for review after requesting letter
briefs in opposition. (Beckley v. Schwarzenegger, et al., Nos. C065920,
S186072.)) Consequently, no government defendant is a party to either of
the Perry appeals, and none filed a brief or participated at hearing on
appeal. (See Perry 4, supra, at p. 1195.)
In January 2011, a three-judge panel of the Ninth Circuit United
States Court of Appeals issued an Order Certifying a Question to the

6

Supreme Court of California, pursuant to California Rules of Court, rule
8.548 (Perry 4, supra, 628 F.3d 1191[certification order]), and a published
opinion (see Perry 5, supra, 630 F.3d 898). The certification order,
attributed to all of the three panel judges, certified to this Court a question
of state law that the panel found necessary to the threshold determination of
whether Proponents have standing to appeal under Article III of the United
States Constitution, and whether the court itself has jurisdiction to address
the merits of the appeal. (Perry 4, supra, at p. 1193; id. at p. 1200
[concurring opinion of Reinhardt, P.J.].) If the Proponents lack standing to
appeal, then the Ninth Circuit lacks jurisdiction to resolve the merits and,
barring a writ of certiorari from the United States Supreme Court, the
judgment of the District Court would become final. (Id. at p. 1195 [“[t]he
certified question therefore is dispositive of our very ability to hear this
case”].) The panel said that it would not address the merits of the appeal
until the jurisdictional issue is resolved. (Id. at p. 1200.)
The panel’s separate published opinion affirmed the district court’s
order denying intervention to Imperial County’s deputy clerk and dismissed
that appeal. (Perry 5, supra, 630 F.3d 898, 901.) Subsequently, the newlyelected clerk of Imperial County filed a motion to intervene in the Ninth
Circuit as a defendant-appellant. That motion has been fully briefed since
March 14, 2011, but remains unresolved. (See Perry v. Schwarzenegger,
Case No. 16751, docket entries 67-1 [filed February 25, 2011], 70, 71, and
72-1 [filed March 7, 2011], and 73, 74 [filed March 14, 2011], available at
http://www.ca9.uscourts.gov/content/view.php?pk_id=0000000513.)
The parties and amici submitted letters to this Court discussing
whether and how the Court should grant review of the certified question,
but the Attorney General did not. On February 16, 2011, this Court granted
review and set a briefing schedule.

7

ARGUMENT
It is important at the outset to emphasize the context in which this
proceeding arises. First, the Proponents and Protect Marriage.com
intervened without objection and controlled the defense of Proposition 8 in
federal district court. Accordingly, a proponent’s ability to participate in
defending the validity of a successful initiative is not at issue here. What is
at issue is a proponent’s authority to take a federal appeal from an adverse
judgment when the public officials enjoined from enforcing the law choose
not to appeal.
Second, it is federal law that creates what Judge Reinhardt called “the
standing problem.” (Perry 4, supra, 628 F.3d 1191, 1200 [concurring
opinion].) Federal law creates the circumstance in which, in the absence of
a government appellant, an intervenor that defended a state law at trial has
no right to appeal an adverse judgment unless he or she can independently
demonstrate appellate standing. (See Diamond v. Charles (1986) 476 U.S.
54, 68 [holding that intervenor status in the trial court is alone insufficient
to confer standing to appeal].) This result is not a consequence of state law3
or of the discretionary decision of a state official to forgo an appeal, and it
cannot be remedied by resort to state law. Yet, the implication of the
certified question is that resolution of the federal “standing problem” will
turn on whether or not this Court finds a substantive right not previously
3

There is no state law counterpart to the federal limitation on
standing to appeal. Under California law, an intervener is considered a full
party to an action for all procedural purposes, including for purposes of
appeal. (See Connerly v. State Personnel Bd. (2006) 37 Cal.4th 1169,
1183, fn. 6.) If the Perry case had been filed in state court, all parties given
leave to intervene would also have had a right to appeal. But as explained,
post, in footnote 9, this is not a substantive right that California law confers
on initiative proponents, it is a procedural right conferred on all successful
interveners.

8

recognized by state law. Fairly stated, the question asks whether,
notwithstanding the absence of clear constitutional, statutory, or case
authority, this Court will find that California law gives official proponents
of a successful initiative measure an enforceable interest in its validity. 4
(See Perry 4, supra, 628 F.3d 1191, 1195.)
An initiative’s official proponents have a great interest in the validity
of a successful measure, but a limited role in California’s initiative process.
Our law does not protect their post-adoption interest by giving proponents
the authority to represent the state’s interest against a challenge to the
validity of a measure that has become state law. And our law does not
afford official proponents any legal right, arising solely from their role as
4

The certified question refers to the “State’s” interest (Perry 4,
supra, 628 F.3d 1191, 1193), but the state, as such, was never a party to the
underlying case, nor would it have been a defendant in a case brought in
federal court. Absent consent, Eleventh Amendment immunity bars suits
which seek either damages, injunctive, or declaratory relief against a state,
an arm of the state, or the state’s instrumentalities or its agencies by a
citizen of that state. (Federal Martime Com’n v. South Carolina State
Ports Authority (2002) 535 U.S. 743, 765-66; Durning v. Citibank, N.A.
(9th Cir. 1991) 950 F.2d 1419, 1422-23.) The Plaintiffs instead sued public
officials to prospectively enjoin their enforcement of Proposition 8 pursuant
to Ex parte Young (1908) 209 U.S. 123, 159-160. For this reason, as well
as the reasons stated in the text and footnote 3, ante, the Attorney General
suggests that the Court restate the question as follows:
Whether under Article II, Section 8 of the California
Constitution, or otherwise under California law, the official
proponents of an initiative measure possess either: (1) a
particularized interest in the initiative’s validity; or (2) the
authority to assert the interest of state officials in the initiative’s
validity, which authority would enable proponents to appeal a
federal judgment invalidating the initiative when the officials
enjoined from enforcing it do not appeal that judgment.
(California Rules of Court, rule 8.548(f)(5).)

9

official proponents, that is injured by a judgment invalidating a law adopted
by initiative. Instead, once an initiative measure is approved by the voters,
a court considering a challenge to the measure’s validity may grant the
measure’s proponents leave to intervene and participate in its defense, or as
amicus curiae, but only to represent their own interests as individuals, not
those of the state.
I.

PROPONENTS HAVE NO AUTHORITY TO REPRESENT THE
STATE’S INTEREST
Although this Court has not previously ruled on the precise question

certified, it will not be writing on a blank slate. The Constitution, statutes,
and decisions of this Court lead to the conclusion that proponents have no
right to assert the state’s interest in defending the validity of an adopted
initiative measure or in appealing from a judgment invalidating the law.
As set forth below, the initiative power itself belongs to the electors as
a whole, not to the individual proponents of a particular initiative measure.
The limited role of initiative proponents in stimulating an initiative process
is defined by statute. The voters, by adopting an initiative, do not elect
initiative proponents to represent the state. In addition, the initiative power
is a reservation of the legislative power of government. It does not
encompass the executive authority to enforce the law once passed, or to
defend the state’s interest in the validity of state law. Finally, to the extent
that California courts have granted official proponents permissive leave to
intervene in cases challenging the validity of a law adopted by initiative,
they have done so to allow proponents to represent their own interests, not
those of the state. The interests of the state are necessarily represented by
the public officials exercising executive powers and against whom relief is
sought.

10

A.

The Initiative Power Belongs to the Electors as a Whole;
the Role of Initiative Proponents in the Process Leading
Up to the Ballot, Ends at the Ballot

Proponents of successful initiative measures cannot credibly rest a
claim to represent the state’s interest on their statutory role in the initiative
process. “The initiative is the power of the electors to propose statutes and
amendments to the Constitution and to adopt or reject them.” (Cal. Const.,
art. II, § 8, subd. (a).) The Constitution and statutes governing the initiative
process strongly suggest that both the power to propose and the power to
adopt belong to the electors (plural), as a whole, rather than to an individual
elector or group of electors who advance a particular measure. (See id., art.
II, § 8.) For example, an initiative measure is “proposed” (in the sense that
word is used in the Constitution), not by its proponents, but by the electors
themselves, when a sufficient number of them sign their names to
circulating petitions. (Id., art. II, § 8, subd. (b); Elec. Code, §§ 9009, 9020,
9035.) Until the necessary number of valid signatures is obtained and
certified, the measure is not even an “initiative;” it is merely a “proposed
measure” or “proposed initiative measure.” (See Elec. Code, §§ 9001,
subd. (a); 9002, subd. (a); 9004, subd. (a); 9005, subd. (a); 9008, 9012,
9014.)
The role of initiative “proponents” is not found in the Constitution,
but in statute. (See Elec. Code, §§ 9000, et seq., 18600, et seq.; Gov. Code,
§§ 10243, 12172, 81000, et seq., 88001, et seq.) The statutory prerogatives
of proponents can fairly be summarized as the right, subject to certain
limitations and requirements, to suggest to the voters that they propose a
particular measure for adoption; to begin the initiative process by obtaining
a circulating title and summary; to file signature petitions with appropriate
authorities; and to argue in favor of the measure’s adoption in the ballot
pamphlet. (See ibid.) For example, “proponents” are identified as the

11

electors who present the text of a particular proposed measure to the
Attorney General and ask her to prepare a title and summary, which is a
prerequisite to circulating petitions for signature. (See Elec. Code, §§ 342,
9001, subd. (a) [“The electors presenting the request shall be known as the
‘proponents’”]; see also Hardie v. Eu (1976) 18 Cal.3d 371, 374.) These
petitions are used to collect a sufficient number of voters’ signatures to
qualify a measure for the ballot. (Elec. Code, §§ 9020-9035.) The official
proponents are not necessarily responsible for qualifying the measure for
the ballot. (Id., § 9021.) For example, in this case, it was
ProtectMarriage.com, not the Proponents, that was responsible for all
aspects of qualifying the measure for the ballot and running the campaign
for its adoption. (Perry 1, supra, 704 F.Supp.2d 921, 954-955.)
No statute confers on the proponents of a successful initiative measure
any authority to represent the state or its interests. Moreover, the statutory
scheme itself strongly suggests that any powers that proponents exercise are
their own as proponents, not those of the electors or of the state. For
example, the statutory role of proponents diminishes when they file signed
petitions with local election officials. (See Elec. Code, §§ 9001, subd. (a),
9604, subds. (a) & (b) [proponents may withdraw the measure at any time
before filing the petition].) At any time before the petitions are filed, the
proponents can withdraw the measure and elect not to file the petitions, no
matter how many voters have signed. (Elec. Code, §§ 9032; 9604, subds.
(a) & (b).) But after the proponents have filed signed petitions, they cannot
withdraw the petitions – or amend or withdraw the measure itself. (Id.,
§§ 9030, 9604, subd. (a).) At that juncture, the success or failure of the
measure rests with the electorate as a whole. Moreover, the role of official
proponents ends entirely with submission of a ballot argument. (See id.,
§ 9601.) Thus, any elector, not just an official proponent, may seek a writ

12

of mandate to challenge the ballot pamphlet title and summary prepared by
the Attorney General. (Id., § 9092; Gov. Code, § 8806.)
B.

The Initiative Is a Reservation of the Legislative Power
of Government to Enact Laws; It Does Not Encompass
a Reservation of the Executive Power of Government to
Represent the State’s Interest by Defending the
Validity of State Law

Even if proponents of an initiative measure could claim a role in
exercising some part of the initiative power, they cannot claim that their
role in the initiative process vests them with any executive power of
government to represent the state’s interest in the validity of state law.
The Attorney General does not dispute that the courts have a duty to
guard the initiative as one of the most precious rights of our democratic
process. (Amador Valley Joint Union High Sch. Dist. v. State Bd. of
Equalization (1978) 22 Cal.3d 208, 248.) But the integrity of the initiative
process is protected by enforcing its limits as well as by liberally construing
its exercise. The courts must guard the initiative power:
with both sword and shield. We must not only protect against
interference with its proper exercise, but must also strike down
efforts to exploit the power for an improper purpose.
(Widders v. Furchtenicht (2008) 167 Cal.App.4th 769, 785 [holding that
use of an initiative measure to declare policy, rather than to enact specific
legislation, was beyond the proper scope of the initiative power].)
For example, this Court has ruled that the single-subject rule is “an
integral safeguard against improper manipulation or abuse” of the initiative
process. (Senate of State of California v. Jones (1999) 21 Cal.4th 1142,
1158; see Cal. Const., art. 2, § 8, subd. (d).) Other courts have also
enforced reasonable statutory limits on the exercise of the initiative power.
(See, e.g., Howard Jarvis Taxpayers Ass’n v. Bowen (2011) 192
Cal.App.4th 110, 114 & fn. 1 [noting that one purpose of the Political

13

Reform Act of 1974 (Gov. Code, § 81000, et seq.), which was adopted as
Proposition 9, was to limit potential abuse of the initiative process, and
listing sources of potential abuse]; Gray v. Kenny (1944) 67 Cal.App.2d
281, 287-288 [holding that statute imposing a refundable fee for obtaining a
circulating title and summary does not burden the right of initiative, instead
it is a safeguard “to the end that it may not be misused for purely personal
purposes by proponents of measures that have no reasonable chance of
approval by the requisite number of voters”].) This Court has also said that
the Attorney General may seek a judicial declaration relieving her of the
duty to prepare a title and summary by challenging the validity of a
proposed measure. (See Schmitz v. Younger (1978) 21 Cal.3d 90, 93.) And
the initiative cannot be used to compel the Legislature to act. (American
Federation of Labor v. Eu (1984) 36 Cal.3d 687, 708. 714.)
As a reservation of the legislative power of government that is
otherwise vested in the Legislature (Cal. Const., art. IV, § 1), the initiative
power is “generally coextensive with the power of the Legislature to enact
statutes.” (Professional Engineers in California Government v. Kempton
(2007) 40 Cal.4th 1016, 1042 [quoting Santa Clara County Local Transp.
Authority v. Guardino (1995) 11 Cal.4th 220, 253].) This Court has
recognized limitations on the scope of the initiative power by distinguishing
legislative acts, which are within the scope of the initiative power, from
executive and administrative acts, which are not. (DeVita v. County of
Napa (1995) 9 Cal.4th 763, 776 [considering scope of local initiative
power]; see also Widders v. Furchtenicht, supra, 167 Cal.App.4th 769, 782
[“an initiative which seeks to do something other than enact a statute –
which seeks to render an administrative decision, adjudicate a dispute, or
declare by resolution the views of the resolving body – is not within the
initiative power reserved by the people,” quoting American Federation of
Labor v. Eu, supra, 36 Cal.3d 687, 714].) An act that prescribes a new

14

policy or plan is legislative; one that pursues a plan already adopted by a
legislative body is administrative. (Citizens for Jobs and the Economy v.
County of Orange (2002) 94 Cal.App.4th 1311, 1332.) Administrative acts
are “properly assigned” to the executive branch. (Id. at pp. 1332-1333.)
The recognized constitutional and statutory limits on the scope of the
initiative power foreclose the possibility that initiative proponents have
authority to undertake litigation in the name of the state, especially when
the officials responsible for enforcing the law, including the Governor and
Attorney General, have decided that an appeal is not in the public interest.
As set forth below, the first limit is temporal: the initiative power is fully
exercised when the measure is adopted or rejected. The second limit is
substantive: the initiative power does not include the right to exercise
executive power. The authority to assert the state’s interest in the validity
of state law is an executive function, not a legislative function. Initiative
proponents, therefore, can claim no authority to exercise any part of the
executive power of the state by virtue of their role in the initiative process.
1.

The exercise of the initiative power for a
particular measure is complete when that measure
is adopted or rejected

“The initiative is the power of the electors to propose statutes and
amendments to the Constitution and to adopt or reject them.” (Cal. Const.,
art. II, § 8, subd. (a).) Consistent with an exercise of legislative power, this
language suggests that the initiative power is fully executed (and thus
“vindicated”) when an initiative that has qualified for the ballot is adopted
or rejected by the voters. Accordingly, the role that the proponents of
initiative measures play in the initiative process ceases, at the latest, when
that process is concluded by the ballot.

15

2.

The initiative cannot be used to exercise executive
powers, including the authority to assert the
state’s interest in defense of a particular law

In any event, proponents’ participation in the initiative process cannot
vest them with executive powers, including the authority to assert the state’s
interest in defending state law. The power of government in California is
divided in three parts: legislative, executive, and judicial. (Cal. Const., art.
III, § 3.) Because it is a reserved part of the legislative power of
government, the initiative power is subject to the same limitations as
legislative action.5 (See Building Industry Assn. v. City of Camarillo
(1986) 41 Cal.3d 810, 821 [quoting Legislature v. Deukmejian (1983) 34
Cal.3d 658, 674-675].) The legislative powers that the electors may
exercise by initiative are limited to the proposal, adoption, and rejection of
statutes and amendments to the Constitution. (American Federation of
Labor v. Eu, supra, 36 Cal.3d 687, 714.)
The authority to assert the state’s interest in defending state law is not
part of the reserved legislative power of initiative. It is part and parcel of
the executive power, some of which the Constitution expressly assigns to
the Attorney General as “chief law officer of the State,” subject to the
powers and duties of the Governor, who exercises the “supreme executive
power of the State.” (Cal. Const., art. V, §§ 1, 13.) “Such powers as are
specifically conferred by the constitution upon the governor, or upon any
other specified officer, the legislature cannot require or authorize to be
performed by any other officer or authority.” (State Bd. of Ed. v. Levit
5

By analogy, it might be argued that the sponsors of a chaptered bill
in the Legislature have inherent authority to defend the law on behalf of the
state when the Attorney General and Governor have decided not to do so or
have decided not to appeal from a judgment invalidating the law. The
Attorney General has found no case supporting such a proposition. (See
Cal. Const., art. III, § 3.)

16

(1959) 52 Cal.2d 441, 461-462 [quoting Cooley, Constitutional Limitations
at p. 215 (8th ed. 1927)].) Thus, representing the state’s interest in
litigation challenging the validity of state law is an executive function.
The Legislature has fleshed out these executive functions in the
Government Code. “The Governor may direct the Attorney General to
appear on behalf of the State and may employ such additional counsel as he
[sic] deems expedient whenever any suit or legal proceeding is pending: ¶
(a) Against the State … [or] ¶ (c) Which may result in a claim against the
State.” (Gov. Code, § 12013.)
The Attorney General “has charge, as attorney, of all legal matters in
which the State is interested . . . ,” and “shall attend the Supreme Court and
prosecute or defend all causes to which the State or any state officer is a
party in his or her official capacity.” (Gov. Code, §§ 12511, 12512.)
Accordingly, the Attorney General must give consent to a private person to
sue in the name of the people. (People ex rel. Ferguson v. Bd. of Sup’rs,
etc. (1869) 36 Cal. 595, 605.) She is the only person to whom authority is
given by law to appear for the people in this Court. (People ex rel.
Livingston v. Pacheco (1865) 29 Cal. 210, 213 [“A private person has not
the right or power to use at his election, the name of the people for the
purpose of obtaining redress for private wrongs”].)
It is also clear that the Governor and Attorney General exercise
discretion in performing these executive functions, particularly those
involved in conducting litigation on behalf of the state. The Attorney
General “is invested with a discretion which a private citizen may not
coerce or court control.” (City of Campbell v. Mosk (1961) 197 Cal.App.2d
640, 647-648.) Nor may a court annul the Attorney General’s decision,
except in the event of extreme abuse of discretion. (Id. at p. 651.) Part of
this discretion is to decide, with respect to asserting the interest of the state

17

in litigation, what is and what is not in the public interest. (Id. at p. 648.)
The courts of appeal have consistently held that:
The decision of the Attorney General whether to participate in a
lawsuit, where the State has no financial interest at stake nor
possible liability, is a decision purely discretionary and . . .
exclusively within the province of the Attorney General’s office
and not subject to judicial coercion.
People v. Karriker (2007) 149 Cal.App.4th 763, 786 [quoting State of
California v. Superior Court (1986) 184 Cal.App.3d 394, 398].)
Accordingly, this Court has suggested a distinction between the duty
of state officials to enforce a law until its invalidity is judicially declared,
and any obligation to defend the law’s validity in court. (Connerly v. State
Personnel Board, supra, 37 Cal.4th 1169, 1183.) 6 And California officials
have previously decided not to appeal federal court decisions invalidating
state laws. (See, e.g., Fouke Co. v. Brown (E.D. Cal. 1979) 463 F.Supp.
1142, 1143 [Governor and Attorney General did not oppose and took no
appeal from order striking down California endangered species statute];
Kaiser v. Montgomery (N.D. Cal. 1969) 319 F.Supp. 329 [Attorney General
took no appeal from order striking down state welfare statute]; California
Democratic Party v. Lungren (N.D. Cal. 1996) 919 F.Supp. 1397 [Attorney
General took no appeal from judgment striking down Cal. Const., art. II,
§ 6(b)].) California Attorney General Thomas Lynch did not defend
Proposition 14 in this Court and also filed an amicus brief in the United
6

There is no dispute that the Governor and Attorney General have
enforced Proposition 8. No license to marry has been issued to same-sex
couples since this Court’s decision in Strauss v. Horton, supra, 46 Cal.4th
364. Thus, it is incorrect to suggest that the Governor and Attorney
General have exercised an ultra vires ‘veto’ or ‘nullified’ the exercise of the
initiative by deciding not appeal an adverse judgment. (See Perry 4, supra,
628 F.3d 1191, 1197.) The Governor and Attorney General in no way
interfered with or burdened the initiative process. Plaintiffs had to sue in
order to invalidate the law.

18

States Supreme Court arguing that it was invalid under the Equal Protection
Clause. (See Reitman v. Mulkey (1966) 387 U.S. 369, Brief of the State of
California as Amicus Curiae, 1967 WL 113956.)7
It is not surprising that the Constitution entrusts the exercise of these
discretionary powers to public officials. Public officials are individuals
vested with a portion of the sovereign power of the state that must be
exercised in the public interest. (Parker v. Riley (1941) 18 Cal.2d 83, 87;
Spreckels v. Graham (1924) 194 Cal. 516, 528.) All public officials take an
oath of office to protect and defend the state and federal constitutions (Cal.
Const., art. XX, § 3), and they are required to put the public interest before
their own. A public office is a public trust for the benefit of the people and
those who hold such office may not use it for their own advantage. (Terry
v. Bender (1956) 143 Cal.App.2d 198, 206.)
In addition to the duty to exercise the power of the state in the public
interest, elected officials (like the Governor and Attorney General) are
subject to limitations on the exercise of that power, as well as open
government regulations that require them to publicly disclose sources of
7

California executive branch officials are not alone in exercising
discretion not to defend laws or not appeal decisions invalidating laws.
(See, e.g., Diamond v. Charles (1986) 476 U.S. 54, 61 [Illinois did not
appeal order invalidating statute regulating abortion]; Arizonans for Official
English v. Arizona (1997) 520 U.S. 43, 55 [Arizona Governor did not
appeal order invalidating English-only initiative]; Planned Parenthood of
Central New Jersey v. Farmer (3d Cir. 2000) 220 F.3d 127, 131 [New
Jersey Attorney General declined to defend partial-birth abortion ban];
Providence Baptist Church v. Hillandale Committee, Ltd. (6th Cir. 2005)
425 F.3d 309, 312 [city entered consent judgment admitting that zoning
ordinance was unconstitutional as applied]; Kendall-Jackson Winery, Ltd.
v. Branson (7th Cir. 2000) 212 F.3d 995, 996 [Illinois did not appeal order
invalidating state legislation regulating liquor distribution]; Planned
Parenthood of Mid-Missouri, etc. v. Ehlmann, supra, 137 F.3d 573, 574
[Missouri Attorney General did not appeal order invalidating statute
banning Planned Parenthood from receiving state funds].)

19

income and financial interests. For example, the Governor and Attorney
General must be elected to state-wide office by a majority of voters, may
serve no more than two four-year terms, and are subject to recall. (Cal.
Const, art. V, §§ 2, 11; id., art. II, § 13.) Their conduct in seeking election
and holding office is governed by an assortment of laws requiring periodic
public disclosures of financial information and prohibiting them from
taking action in matters in which they have personal or financial conflicts
of interest, including Government Code section 1090, the Political Reform
Act (Gov. Code, § 87100, et seq.), and the Public Records Act (id., § 6250
et seq.), and in performing some of their public duties as members of state
bodies they may be subject to the Bagley-Keene Open Meeting Act (id.,
11120, et seq.). The regulation of public officials insures that they are
accountable to the voters.
In stark contrast, no election or law vests the proponents of a
successful measure with authority to represent the people, the public
interest, or the state. Proponents are private citizens who appoint
themselves and can claim to represent only themselves and their personal
interests. They remain proponents of that measure (perhaps for all time),8
but after adoption they are legally and politically accountable to no one.
Correspondingly, they lack the authority of public officials exercising
executive power to assert the state’s interest in post-adoption litigation
challenging the validity of the measure.

8

See City and County of San Francisco v. State (2005) 128
Cal.App.4th 1030, 1038, fn. 7, in which the court considered the possibility
that a personal representative might have succeeded Proposition 22
initiative proponent Pete Knight in defending the initiative after his death
and four years after adoption.

20

C.

The Practice of California Courts to Liberally Grant
Initiative Proponents Leave to Intervene Gives
Appropriate Recognition to Their Post-Adoption
Interest, But Does Not Establish that Proponents Have
a Substantive Right to Assert the Interest of the State

When we examine the cases in which California courts have
considered official proponents’ interest in defending the validity of a
successful initiative, three conclusions are evident.9
9

Many of the cases cited in the certification order, as well in the
brief of Proponents and ProtectMarriage.com, did not resolve a dispute
relevant to the issues under consideration here. “It is axiomatic that
language in a judicial opinion is to be understood in accordance with the
facts and issues before the court. An opinion is not authority for
propositions not considered.” (Chevron U.S.A., Inc. v. Workers' Comp.
Appeals Bd. (1999) 19 Cal.4th 1182, 1195.)
In Strauss v. Horton, supra, 46 Cal.4th 364, 399, the Court said that
the official proponents of Proposition 8 were “granted leave” to intervene,
but so was ProtectMarriage.com (not an official proponent, see
http://appellatecases.courtinfo.ca.gov/search/case/partiesAndAttorneys.cfm
?dist=O&doc_no=S168047 [listing ProtectMarriage.com as a co-intervener
of official proponents of Proposition 8]) and intervention was not in
dispute. In Community Health Assn. v. Board of Supervisors (1983) 146
Cal.App.3d 990, the court stated that both the official proponent and a
supporting committee were “permitted” to intervene, but intervention was
not in dispute. (Id. at p. 992.) And in Citizens for Jobs and the Economy v.
County of Orange (2002) 94 Cal.App.4th 1311, the court stated that both
the official proponent and a supporting committee were “granted leave” to
intervene, but intervention was not in issue. (Id. at pp. 1321-1322.) None
of these cases engaged in analysis that helps to answer the certified
question.
Similarly, the bare fact that in Community Health, Citizens for Jobs,
Simac Design, Inc. v. Alciati (1979) 92 Cal.App.3d 146, and Paulson v.
Abdelnour (2006) 145 Cal.App.4th 400, the intervening proponents also
appealed an adverse judgment does not help to answer the certified
question. It bears repeating that, unlike federal jurisprudence, in California
there is no requirement that an intervener in the trial court separately
establish standing to appeal. Once intervention is granted, an intervener is
a party for all purposes, including purposes of appeal and even an award of
attorneys’ fees. (See Connerly v. State Personnel Bd., supra, 37 Cal.4th
(continued…)

21

1. In post-adoption challenges to the validity of initiatives, official
proponents have been treated no differently than organizations of
supporters of an initiative; they are grouped together as “proponents.” This
was the case in Strauss v. Horton, supra, 46 Cal.4th 364, 398-399,
Community Health Assn. v. Board of Supervisors (1983) 146 Cal.App.3d
990, 992, and Citizens for Jobs and the Economy v. County of Orange
(2002) 94 Cal.App.4th 1311, 1321-1322. There, both the official
proponents of the initiative measure and a supporting committee (not an
official proponent) were permitted to intervene.10 (See also Simac Design,
Inc. v. Alciati (1979) 92 Cal.App.3d 146, 152-153 [holding that association
formed to draft and support measure could intervene after judgment by
moving to vacate the judgment under Code of Civil Procedure section 663];
(…continued)
1169, 1183 fn. 6; cf. Simac Design, supra, at p. 152 [noting that a person
not a party to the action may intervene after judgment by moving to vacate
pursuant to Code of Civil Procedure section 663 and thereby gain the right
to appeal an order denying the motion to vacate], and Paulson, supra, at
pp. 417-418 & fn. 7 [same].) California cases in which initiative
proponents who were permitted to intervene then appealed the judgment
without benefit of being joined by a government appellant are not authority
for the proposition that California law gives initiative proponents, as such,
a right of appeal. To the extent they are authority of any kind, it is for the
proposition that California law gives interveners a right of appeal. In any
event, that right is wholly procedural; it cannot be bootstrapped into a
substantive right the violation of which would cause actionable injury.
10
City and County of San Francisco v. State, supra, 128 Cal.App.4th
1030, does not demonstrate that courts treat supporting organizations less
favorably than official proponents. In that case, the supporting organization
(the Fund) that was denied permissive intervention to defend the validity of
Proposition 22 “was not even created until one year after voters passed the
initiative.” (Id. at p. 1038 [italics in original].) Thus the Fund was not truly
a supporter of the initiative; instead, it was a supporter of the law once it
was adopted. In any event, the case did not present the question whether it
would be an abuse of discretion to deny permissive intervention to an
official proponent. (Ibid.)

22

and Paulson v. Abdelnour (2006) 145 Cal.App.4th 400, 417-418 & fn. 7
[same].) Although the courts did not discuss the reasons for permitting
intervention, it is likely because both official proponents and supporting
organizations such as ballot committees are motivated to defend, informed
on the relevant issues and, in the particular circumstances presented, would
be of service to the court in resolving the issues in dispute.
2. Case law demonstrates that the legitimate post-adoption interests
of both official proponents and organizations of initiative supporters are
acknowledged and accommodated by granting permissive leave to
intervene or to file amicus briefs to represent their own interests. (See, e.g.,
Community Health Assn. v. Bd. of Supervisors (1983) 146 Cal.App.3d 990,
992 [noting that both the official proponent and “an unincorporated
association of resident taxpayers” were “permitted to intervene as the true
proponents and supporters of the Howell Initiative”]; cf. Building Industry
Assn. v. City of Camarillo, supra, 41 Cal.3d 810, 822 [noting in dicta, in
response to an argument from amicus curiae that Evidence Code section
669.5 substantially impairs the right of initiative, that where local
government had burden of proof but questioned the validity or wisdom of
adopting the initiative, a court’s failure to permit intervention might be an
abuse of discretion]; City and County of San Francisco v. State, supra, 128
Cal.App.4th 1030, 1037-1038; 1044 [affirming denial of permissive
intervention to organization formed after adoption of Proposition 22 under
abuse of discretion standard but noting the possibility of participation as
amicus curiae to assert organization’s interests including investment of
personal reputation and time and efforts of its members, harm to the
reputation of its members, and damage to its own reputation that might
harm its ability to attract support and contributions]; id. at p. 1038, fn. 7
[noting that initiative proponent Pete “Knight’s purported interest in

23

protecting the validity of the measure enacted as the fruit of his labors
[Prop 22] appears to have been an entirely personal one”]; see also In re
Marriage Cases, supra, 43 Cal.4th 757, 792, fn. 10 [noting importance of
allowing supporters to participate to present their views as amici even when
intervention is denied].)
The Code of Civil Procedure allows for both permissive intervention
and intervention as of right. (Code Civ. Proc., § 387, subds. (a) & (b).)
The availability of permissive leave to intervene should not be transmuted
into an unconditional right that would require courts to allow proponents to
intervene as parties in every post-adoption challenge to enforcement of an
initiative enactment, even when the responsible public officials are
defending the law. In the vast majority of cases, the public officials
charged with enforcing a law (whether enacted by initiative or by the
Legislature) defend against suits to block its enforcement. If proponents of
an initiative have an unconditional right to defend against enforcement
challenges, then these public officials will be left unable to control the
defense. The courts should be able to retain discretion to hear evidence and
argument and to decide, on a case by case basis, when intervention by
proponents and other informed supporters is necessary or helpful to the
resolution of disputes, and when it is not.
3. The post-adoption interest of initiative supporters in the validity of
an initiative enactment has not been treated as a legally protected right.
Indeed, this was one of this Court’s holdings in In re Marriage Cases,
supra, 43 Cal.4th 757. There, the Proposition 22 Fund challenged the
appellate court’s determination that its action against San Francisco had
been rendered moot by this Court’s decision in Lockyer v. City and County
of San Francisco (2004) 33 Cal.4th 1055. The Fund argued that there
remained a live dispute between itself and San Francisco about the scope

24

and constitutionality of Family Code section 308.5, enacted by adoption of
Proposition 22 in 2000. (Id. at pp. 789-790.) 11 Citing cases establishing
that an advocacy group’s support of a statute “does not in itself afford the
group the right to intervene formally in an action challenging the validity of
the measure” (id. at p. 790 [italics added]), this Court said:
[W]e agree with the Court of Appeal that, absent a showing by
the Fund that it possesses a direct legal interest that will be
injured or adversely affected (which the Fund acknowledges has
not been established here), . . . the Fund’s strong ideological
disagreement with the City’s views regarding the scope or
constitutionality of Proposition 22 is not sufficient to afford
standing to the Fund to maintain a lawsuit . . . regarding these
legal issues.
(Id. at pp. 790-791, footnote omitted.)12
II.

PROPONENTS OF A SUCCESSFUL INITIATIVE HAVE AN
INTEREST IN ITS VALIDITY, BUT THEIR ROLE IN THE
INITIATIVE PROCESS CONFERS NO LEGALLY PROTECTED
RIGHT TO DEFEND IT
In many ways there is no meaningful difference between the two

types of interests posited by the certified question. They are two sides of
the same coin.

11

As noted in footnote 10, ante, the Fund was not created until after
adoption of Proposition 22, so it may be viewed as having a more remote
interest than an organization formed to advance an initiative. This Court,
however, did not draw that distinction. (In re Marriage Cases, supra, 43
Cal.4th at pp. 790-791.)
12
Similarly, Proponents and ProtectMarriage.com have
acknowledged that if California law does not protect the interest generally
of initiative proponents in defending the validity of a successful measure,
then they do not suffer a direct and personal injury resulting from the
judgment of the district court. (See Perry 4, supra, 628 F.3d 1191, 1196
[noting that “[t]he parties agree” that Proponent’s standing rises or falls on
the answer to the certified question].)

25

State law protects no interest of initiative proponents as initiative
proponents in the validity of a law they proposed for the same reasons that
state law does not authorize initiative proponents to assert the state’s
interest in the validity of state law. The exercise of the reserved legislative
power by the electors ends with the adoption or rejection of the initiative
measure, and any rights of initiative proponents necessarily end there, or
earlier, with submission of a ballot argument. (See, ante, at pp. 11-12, 15.)
Any continuing interest that proponents may have in defending an initiative
enactment is recognized, at the discretion of the court considering an
enforcement challenge, by granting permissive leave to intervene or to
address the court as amicus curiae, but it is not protected as a matter of
right. (See, ante, at pp. 21-25.) To the extent that the people, state
officials, or the state itself have an interest in the validity of an adopted
initiative, the authority to represent that interest lies with the public officials
responsible for enforcing the law, and ultimately with the Governor and
Attorney General.13 (See, ante, at pp. 16-21.)
Proponents nevertheless argue that: 1) official proponents have a
variety of pre-adoption statutory rights; 2) proponents are sometimes
identified as “real party in interest” in post-adoption challenges, and
3) proponents have defended initiatives in cases when public officials
decide that it is not in the public interest to do so. (Appellants’ Opening
Brief at pp. 31-36.) All of these things are true, but none of them
demonstrates that California law elevates proponents’ interest in the
validity of an initiative enactment to a substantive right superior to that of
13

The authority to represent the public interest may also lie with
local public officials. For example, in this case, the clerk/recorders of Los
Angeles or Alameda Counties might have appealed from the judgment. In
so doing, however, they would have been representing the interest of the
counties from which they were elected, not the state’s interest as a whole.

26

any other informed supporter. California law does not give proponents an
unconditional right to defend a successful measure just because they were
its official proponents.
CONCLUSION
For all of the foregoing reasons, the Attorney General submits that the
answer to the certified question should be “no.”
Dated: May 2, 2011

Respectfully submitted,
KAMALA D. HARRIS
Attorney General of California
MANUEL M. MEDEIROS
State Solicitor General
DAVID CHANEY
Chief Assistant Attorney General
DOUGLAS J. WOODS
Acting Senior Assistant Attorney General
CONSTANCE L. LELOUIS
Supervising Deputy Attorney General
MICHAEL TRONCOSO
Senior Counsel to the Attorney General

TAMAR PACHTER
Deputy Attorney General
Attorneys for Amicus Curiae
Attorney General Kamala D. Harris
SA2011100028
20436939.doc

27

CERTIFICATE OF COMPLIANCE
I certify that the attached amicus brief of Attorney General Kamala D.
Harris uses a 13 point Times New Roman font and contains 10,145 words.
Dated: May 2, 2011

KAMALA D. HARRIS
Attorney General of California

TAMAR PACHTER
Deputy Attorney General
Attorneys for Amicus Curiae
Attorney General Kamala D. Harris