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

Filing 354

Filed (ECF) Amicus Curiae Jon. B. Eisenberg Correspondence: Courtesy Copy of [Proposed] Amici Curiae Brief of Jon B. Eisenberg and Laurie L. Levenson, submitted to the California Supreme Court. Date of service: 05/04/2011 [7739748] (LWB)

No. S189476

IN THE SUPREME COURT OF CALIFORNIA
KRISTIN M. PERRY et al., Plaintiffs and Respondents,
CITY AND COUNTY OF SAN FRANCISCO, Plaintiff, Intervenor and
Respondent,
v.
EDMUND G. BROWN, JR., as Governor, etc. et al., Defendants,
DENNIS HOLLINGSWORTH et al., Defendants, Intervenors and Appellants.

Question Certified from the U.S. Court of Appeals for the Ninth Circuit
The Honorable Stephen R. Reinhardt, Michael Daly Hawkins,
and N. Randy Smith, Circuit Judges, Presiding
Ninth Circuit Case No. 10-16696

APPLICATION TO FILE AMICI CURIAE BRIEF IN SUPPORT OF
RESPONDENTS AND [PROPOSED] AMICI CURIAE BRIEF OF
JON B. EISENBERG AND PROFESSOR LAURIE L. LEVENSON

KENDALL BRILL & KLIEGER LLP
Laura W. Brill (195889)
Nicholas F. Daum (236155)
Clifford S. Davidson (246119)
Ashlee R. Lynn (261002)
10100 Santa Monica Blvd., Suite 1725
Los Angeles, California 90067
Telephone: [phone]
Facsimile: 310.556.2705
Attorneys for Amici Curiae
Jon B. Eisenberg
Professor Laurie L. Levenson

APPLICATION TO FILE BRIEF AS AMICI CURIAE
Pursuant to rule 8.520(f) of the California Rules of Court, Jon
B. Eisenberg and Laurie L. Levenson (together, “amici”) respectfully
request leave to file the attached brief, in support of respondents, to be
considered in the above-captioned case. This application is timely
made pursuant to the briefing schedule set forth by the court.
A.

Jon B. Eisenberg

Amicus curiae Jon B. Eisenberg is an attorney specializing in
appellate law and a founding partner at Eisenberg & Hancock LLP in
Oakland, California. Mr. Eisenberg has three decades of experience
in appellate litigation and has argued dozens of cases in the California
Courts of Appeal and Ninth Circuit and eleven cases in the California
Supreme Court. Mr. Eisenberg is a widely published author on
appellate matters, a frequent commentator on topics of state
constitutional law, and the principal co-author of the leading treatise
on California appellate procedure. Mr. Eisenberg teaches California
Appellate Process at Hastings College of the Law. He received
California Lawyer magazine’s 2010 “Attorney of the Year” award in
constitutional law.

1

Mr. Eisenberg has a unique interest in the subject matter of this
brief—the extent to which Proponents may rely on this court’s
unexamined dicta concerning the initiative process in arguing that
they have standing to appeal.
Mr. Eisenberg has been involved in litigation involving the
lesbian, gay, bisexual and transgender community, including
representing Guadalupe Benitez before the California Supreme Court
in a case about equal access to health care for gays and lesbians,
North Coast Women’s Medical Care Group et al. v. Superior Court of
San Diego (2008) 44 Cal. 4th 1145. Mr. Eisenberg also represented
the California NAACP in the Marriage Cases and a group of faith
leaders in Strauss v. Horton as amici curiae before the California
Supreme Court, and he submitted an amicus curiae brief in the United
States Court of Appeals for the Ninth Circuit in this case.
B.

Laurie L. Levenson

Amicus curiae Laurie L. Levenson is the David W. Burcham
Chair in Ethical Advocacy at Loyola Law School. Professor
Levenson has written extensively on California criminal law and
procedure and legal ethics and is an author of leading treatises such as
California Criminal Law, California Criminal Procedure, and the

2

Federal Criminal Rules of Procedure Handbook. Professor Levenson
has published numerous articles and has commented frequently on the
California court system and criminal justice. In her scholarship
Professor Levenson has frequently addressed the vital importance of a
legal system that respects the constitutional balance of powers.
Professor Levenson has served as an attorney representative to
the United States Court of Appeals for the Ninth Circuit and to the
United States District Court for the Central District of California. She
has been a member of the Los Angeles County Bar Association's
Judiciary and Judicial Appointments Committees, as well as a
Director of Bet Tzedek Legal Services and the Levitt & Quinn Family
Law Center. Professor Levenson also serves as a special master for
the Los Angeles County Superior Court and the United States District
Court.
Prior to joining the faculty of Loyola Law School, Professor
Levenson was a federal prosecutor for many years as an Assistant
United States Attorney, Criminal Section. In the U.S. Attorney’s
Office, Professor Levenson served as a senior trial attorney, assistant
division chief, and chief of the appellate section. Additionally, while
working in the U.S Attorney’s Office, Professor Levenson taught as

3

an adjunct professor at Southwestern University Law School.
Professor Levenson joined the Loyola faculty in 1989 and served as
Loyola’s associate dean for academic affairs from 1996–99. She has
taught as a visiting law professor at the USC Law Center, UCLA
School of Law and Pepperdine School of Law.
C.

Interests of Amici Curiae
This proceeding raises important issues regarding the

constitutional status of California’s initiative system, particularly the
respective powers and responsibilities of initiative proponents and
those of California’s Attorney General. In both their practice and
their scholarship, Mr. Eisenberg and Professor Levenson have been
strong advocates for constitutionalism, the institutional integrity of the
court system, and the principles of fairness and equality protected by
the California and United States Constitutions.
For these reasons, amici have a substantial interest in the
present case.
D.

Need For Further Briefing

Amici are familiar with the issues before the court and the
scope of their presentation. Amici believe that further briefing is
necessary to provide detailed discussion of certain authorities and

4

arguments that the parties did not have the opportunity to address
fully. Specifically, amici will explain how the validity of the initiative
process itself is subject to serious constitutional doubt, and argue that
as a consequence the court should disregard dicta concerning the
popular initiative on which Proponents rely in seeking to justify their
purported authority to upend the constitutional balance and supplant
the judgment of elected officials who are fully accountable to the
people of this state.
Dated: May 2, 2011

KENDALL BRILL & KLIEGER LLP

By:
Laura W. Brill
Attorneys for Amici Curiae

5

TABLE OF CONTENTS
Page
I. 

INTRODUCTION

1 

II. 

ARGUMENT

5 

A. 

There Is A Serious Question Whether The
Amendment Creating The Initiative Process By
Which Proposition 8 Was Enacted Is Valid As A
Matter Of State Law.
1. 

Prior To 1911, All Legislative Power Was
Vested In The Legislature.

7 

Prior To 1911, The State Constitution Was
Meant To Be A “Permanent and Abiding”
Instrument, And All Constitutional Changes
Required Participation By The Legislature.

9 

The Amendment Creating The Initiative
Process Changed The “Character” And
“Underlying Principles” Of The State
Constitution And The Fundamental
Government Plan, Including The Structure
Of Government And Powers Of Its
Branches.

14 

Dicta Concerning The Initiative Process Is Not a
Basis For Conferring Standing On Proponents,
Because This Court Has Never Considered The
Constitutionality Of The Initiative Process Itself.

21 

2. 

3. 

B. 

III. 

5 

CONCLUSION

31 

i

TABLE OF AUTHORITIES
Page

CASES 
Associated Home Builders etc., Inc. v. City of Livermore
(1976) 18 Cal.3d 582 .......................................................... 25, 27
Baker v. State
(Vt. 1999) 744 A.2d 864 ............................................................ 4
Beals v. Amador
(1868) 35 Cal.624 ....................................................................... 8
Chase v. Kalber
(1915) 28 Cal.App. 561 ............................................................ 25
Claxon v. Waters
(2004) 34 Cal.4th 367................................................................. 4
Costa v. Superior Court
(2006) 37 Cal.4th 986.............................................................. 22
Dwyer v. City Council of Berkeley
(1927) 200 Cal. 505 .................................................................. 26
Ex parte Beck
(1912) 162 Cal. 701 .................................................................... 9
Ex parte Wall
(1874) 48 Cal. 279 ...................................................................... 8
Ginns v. Savage
(1964) 61 Cal.2d 520 ................................................................ 23
Goodridge v. Dep’t of Pub. Health
(Mass. 2003) 798 N.E.2d 941 .................................................... 4
Hurst v. City of Burlingame
(1929) 207 Cal. 134 ................................................................. 25
Hyde v. Wilde
(1921) 51 Cal.App. 82 .............................................................. 25
Independent Energy Producers Ass’n v. McPherson
(2006) 38 Cal.4th 1020............................................................. 28
Klein v. U.S.
(2010) 50 Cal.4th 68................................................................. 22

ii

Legislature v. Eu
(1991) 54 Ca1.3d 492 ..................................................... 5, 13, 20
Ley v. Dominguez
(1931) 212 Cal. 587 .................................................................. 26
Livermore v. Waite
(1894) 102 Cal. 113 ........................................................... 10, 12
Martin v. Smith
(1959) 176 Cal.App.2d 115 ..................................................... 27
Martin v. Smith
(1959) 176 Cal.App.4th 232 ............................................... 23, 27
McClure v. Nye
(1913) 22 Cal.App. 248 ........................................................... 23
McFadden v. Jordan
(1948) 32 Cal.2d 330 ...................................................... 6, 13, 27
Mervynne v. Acker
(1961) 189 Cal.App.2d 558 ...................................................... 27
Mitchell v. Winnek
(1897) 117 Cal. 520 ................................................................... 9
Newsom v. Bd. of Sup'rs of Contra Costa County
(1928) 205 Cal. 262 .................................................................. 25
People ex rel. S.F. Bay etc. Com. v. Town of Emeryville
(1968) 69 Cal.2d 533 ................................................................ 19
People v. Kelly
(2010) 47 Cal.4th 1008....................................................... 28, 29
People v. Scheid
(1997) 16 Cal.4th 1................................................................... 22
People v. Soto
(2011) 51 Cal.4th 229............................................................... 22
Perry v. Schwarzenegger
(9th Cir. 2011) 628 F.3d 1191 .................................................... 2
Raven v. Deukmejian
(1990) 52 Cal.3d 336 ................................................ 6, 12, 13, 14
Ross v. Whitman
(1856) 6 Cal. 361 ........................................................................ 8
See In re Klor
(1966) 64 Cal.2d 816 ................................................................ 30
iii

Senate v. Jones
(1999) 21 Cal.4th 1142....................................................... 21, 28
Starbuck v. City of Fullerton
(1917) 34 Cal.App. 683 ............................................................ 25
Strauss v. Horton
(2009) 46 Cal.4th 364........................................................ passim

OTHER AUTHORITIES 
Ballot Pamphlet for Amendment 22 (1911)
Available from the California Ballot Propositions
Database published by the U.C. Hastings College of the
Law Library .............................................................................. 19
Center for Governmental Studies, Democracy By Initiative:
Shaping California’s Fourth Branch of Government (2d
ed. 2006) ................................................................................... 20
Chief Justice Ronald M. George, Remarks at the American
Academy of Arts and Sciences Induction Ceremony (Oct.
10, 2009), The Perils of Direct Democracy: The
California Experience ............................................................... 31
Mathews & Paul, California Crackup: How Reform Broke the
Golden State and How We Can Fix It (2010) .......................... 18

CONSTITUTIONAL PROVISIONS 
Cal. Const. of 1879, art. III ................................................................... 8
Cal. Const. of 1879, art. IV, § 1............................................................ 8
Cal. Const. of 1879, art. X .................................................................. 10
Cal. Const. of 1879, art. XVIII ............................................. 8, 9, 10, 11
Constitutional Amendment 22 ..................................................... passim

iv

I.

INTRODUCTION
Proposition 8 sought to strip gay and lesbian Californians of

their right to act as full participants in the life of their families and
communities by removing their fundamental right to marry.
Following a full trial and judgment on the merits holding that
Proposition 8 violates the United States Constitution, the state
defendants exercised their discretion to accept the judgment and end
the dispute rather than appeal, increase the state’s exposure, and
prolong the damage that Proposition 8 has caused to gay and lesbian
Californians and to the state as a whole.
Plaintiffs-Respondents (“Plaintiffs”), the City and County of
San Francisco (“San Francisco”), and Ninth Circuit amicus curiae
Equality California have persuasively argued that California law
provides no basis for allowing the proponents of Proposition 8 to
supersede the judgment of elected officials who exercise their
constitutional authority not to appeal an adverse judgment against the
state.
This brief addresses an additional reason as to why the court
must answer in the negative that portion of the Certified Question that
asks the court whether “the official proponents of an initiative

1

measure . . . possess the authority to assert the State’s interest in the
initiative’s validity [through] an appeal [of] a judgment invalidating
the initiative.” (Perry v. Schwarzenegger (9th Cir. 2011) 628 F.3d
1191, 1193.) Defendants-Intervenors-Appellants (“Proponents”)
argue at length that giving initiative proponents authority to appeal
where the state declines to do so is necessary to protect and preserve
the initiative process, which they characterize as a “fundamental”
“right” of Californians. (Opening Brief of Proponents (“Proponents’
Br.”), 2–3.) Proponents do not rely on any language within the
California Constitution or other law that would confer upon them such
right. Instead, Proponents argue that a grant of authority to initiative
proponents to appeal on behalf of the state, while not set forth in the
text of either the state Constitution or Proposition 8, can nonetheless
be inferred from the authority of “the people” under California’s
initiative system to control California government. (See id. at p. 3
[“At bottom, the ability of official proponents to defend initiatives
they have sponsored when public officials refuse to do so – whether as
Proponents or as real parties in interest – provides a vitally important
means of vindicating ‘the sovereign people’s initiative power’ and
thus preserving ‘the people’s rightful control over their

2

government’”], citing Strauss v. Horton (2009) 46 Cal.4th 364, 421,
453 [93 Cal.Rptr.3d 591, 207 P.3d 48] (hereafter Strauss).)
Proponents’ argument is flawed. California’s initiative process
gives Proponents no such authority, and the validity of the initiative
process itself is subject to serious constitutional doubt. California’s
initiative process was originally put in place by a simple amendment
to the California Constitution; it passed both houses of the Legislature
and was submitted to a direct vote of the people in 1911. It was not
the result of the more deliberative process used for constitutional
“revisions,” which required not just supermajority approval of both
houses of the Legislature, but also a full constitutional convention.
Because the initiative process changed the fundamental
structure of California government, the power of its branches, and the
overall governmental plan, applying the standards most recently set
forth in Strauss, supra, 46 Cal.4th at page 364, a substantial argument
exists that the initiative process was unconstitutional when originally
added to the California Constitution because such sweeping changes
in state governance could be enacted only as a “revision,” and not as a
mere amendment to the California Constitution. Because of these
doubts as to the validity of the initiative process, Proponents’

3

argument for authority to appeal, based on the purported importance
of the initiative process, cannot be sustained. A ruling conferring
such authority would allow Proponents to usurp the Attorney
General’s exclusive right to exercise discretion on this matter and
would further alter the structure of California government and the
power of the elected branches. Proponents’ reliance on dicta from this
court and the Court of Appeal concerning the initiative process – from
cases that did not raise the potential constitutional infirmity of the
initiative process – should be given no weight now.1

1

Amici wish to be clear about the limited scope of the
argument in this brief. Amici do not ask the court to make any
ultimate determination as to the constitutionality of the
initiative system. That issue, and the related question of how to
tailor an appropriate remedy were a constitutional violation ever
to be found, are beyond the scope of this brief and unnecessary
for the court to address in this case. Were the court ever faced
with such issues, suffice it to say that courts of equity have the
power to narrowly tailor appropriate relief by, for example,
making certain aspects of a remedy prospective only so that
measures previously passed by initiative may remain intact but
be subject to future legislative amendment (E.g., Claxon v.
Waters (2004) 34 Cal.4th 367, 378 [18 Cal.Rptr.3d 246, 96
P.3d 496], and/or staying other aspects of a ruling so that
democratic processes, including the potential enactment of a
reformed initiative process, may run their course (Baker v. State
(Vt. 1999) 744 A.2d 864, 886; Goodridge v. Dep’t of Pub.
Health (Mass. 2003) 798 N.E.2d 941, 969–70). Such concerns,
however, should not make the court wary of the far more
limited argument presented here, i.e., that because unresolved
questions exist as to the validity of the initiative process, this
4

II.

ARGUMENT
A.

There Is A Serious Question Whether The
Amendment Creating The Initiative Process By
Which Proposition 8 Was Enacted Is Valid As A
Matter Of State Law.

In Strauss, this court examined at length the distinction between
“amendments” and “revisions” to the California Constitution,
examining all of the court’s prior decisions analyzing the distinction
between these two methods of altering the California Constitution.
(Strauss, supra, 46 Cal.4th at pp. 412–440.) After analyzing the prior
cases, this court explained that a change to the Constitution must be
enacted by the process for “revision,” and not mere “amendment,” if it
amounts to “‘a change in the basic plan of the California
government,’” that is, “‘a change in [the] fundamental [governmental]
structure or the foundational powers of its branches.’” (Id. at p. 438,
italics omitted, quoting Legislature v. Eu (1991) 54 Ca1. 3d 492, 508–
509 [286 Cal.Rptr. 283, 816 P.2d 1309] (hereafter Eu); see also
Strauss, supra, 46 Cal.4th at pp. 427, 430–445, 452.) If a change to

court should proceed with caution when asked to expand the
powers of initiative proponents, rather than merely accepting
unexamined dicta on which Proponents here rely.
5

the fundamental structure of California government is enacted by
amendment, and not revision, it is invalid. (Raven v. Deukmejian
(1990) 52 Cal.3d 336, 349 [276 Cal.Rptr. 326, 801 P.2d 1077]
(hereafter Raven); McFadden v. Jordan (1948) 32 Cal.2d 330, 334–
346 [196 P.2d 787].)
Based on these standards, reaffirmed by this court fewer than
two years ago, there is a serious question as to whether the initiative
process itself was, at its origin, improperly included within the
California Constitution. Addition of the initiative process to the
Constitution indisputably was a change in the basic plan of California
government and the foundational powers of its branches.
Proposition 8 was enacted as an amendment to the California
Constitution through the initiative process established in California in
1911. Strauss held that Proposition 8 did not so change the
fundamental governmental plan of California as to render Proposition
8 a constitutional “revision,” required to be enacted, if at all, only
though more deliberative processes. The decision in Strauss,
however, left unanswered the more fundamental question whether the
initiative process itself, which was also adopted as an amendment,

6

rather than a revision, did so change the fundamental nature of state
government as to render the entire initiative process invalid.
At the time the amendment creating the initiative process was
adopted, under the California Constitution (1) all legislative power
was vested in the Legislature; (2) the Constitution itself could not be
changed without the participation of the Legislature; and (3) major
changes to the Constitution – i.e., those affecting the essential
character of the Constitution, the fundamental plan of government, or
the powers of the existing branches – could be adopted only by
revision, through a constitutional convention, and not by the less
deliberative processes reserved for more modest changes. The 1911
amendment through which the initiative process was created changed
each of these fundamental aspects of California’s governmental plan
and could only have been enacted, if at all, as a revision to the state
Constitution, and not a mere amendment.
1.

Prior To 1911, All Legislative Power Was
Vested In The Legislature.

Prior to 1911, all legislative power in California was vested in
the Legislature. The California Constitution of 1879 provided: “The
powers of the Government of the State of California shall be divided

7

into three departments – the legislative, executive and judicial, and no
person charged with the exercise of powers properly belonging to one
of these departments shall exercise any functions appertaining to
either of the others, except as in this Constitution expressly directed or
permitted.” (Cal. Const. of 1879, art. III.) The 1879 Constitution
provided further: “The legislative power of this State shall be vested
in a Senate and Assembly, which shall be designated the Legislature
of the State of California.” (Id., art. IV, § 1.) The Legislature had
exclusive power not just to enact laws (id.), but also to propose,
through supermajority vote of both houses, either amendments or
revisions to the Constitution. (Id., art. XVIII.)
As controlling judicial decisions of the time made clear, the
power of the Legislature was exceptionally broad. (Ross v. Whitman
(1856) 6 Cal. 361, 36 [“the power of the Legislature is supreme,
except where it is expressly restricted”]; Beals v. Amador (1868) 35
Cal.624, 630 [the powers of the Legislature “represent[] the
independent sovereignty of the people of the State”]; Ex parte Wall
(1874) 48 Cal. 279, 313 [“The power to make laws conferred by the
Constitution on the Legislature cannot be delegated by the Legislature
to the people of the State, or to any portion of the people”]; id. at

8

p. 314 [California is a “representative republic”; warning of dangers
of direct democracy], overruled in part on other grounds by Ex parte
Beck (1912) 162 Cal. 701, 704–05 [distinguishing Wall and stating:
“It is elementary, of course, as said in [Wall,] that ‘the power to make
laws conferred by the Constitution on the Legislature cannot be
delegated by the Legislature to the people of the state or to any
portion of the people’ ”]; Mitchell v. Winnek (1897) 117 Cal. 520, 525
[equating power of California Legislature to that of the British
Parliament].)
2.

Prior To 1911, The State Constitution Was
Meant To Be A “Permanent and Abiding”
Instrument, And All Constitutional Changes
Required Participation By The Legislature.

The Constitution of 1879 was intended to be a long-lasting
instrument which provided for the structure of state government and
could be changed only with an extensive deliberative process. Article
XVIII of the 1879 California Constitution provided the exclusive
means for amending or revising the Constitution. Both amendments
and revisions could be proposed only upon a vote of two thirds of
both houses of the Legislature. (Ibid.) In the case of an amendment,

9

the proposed change would then be submitted directly to the people.
(Id., art. XVIII, § 1.) More fundamental changes to the Constitution,
those that could be enacted only as revisions, required first, a twothirds majority of both Senate and Assembly; second, popular
approval by the electors of a constitutional convention; third, another
election in which the electors would vote for delegates to represent
them in connection with such a revision; fourth, the drafting of
revisions by the delegates; and fifth, submission of the new
Constitution to the people, for their ratification or rejection at a special
election. (Id., art. XVIII, § 2.)2
In Livermore v. Waite (1894) 102 Cal. 113 (hereafter
Livermore), this court considered the validity of a constitutional
change, adopted by amendment in 1893, to move the State Capital
from Sacramento to San Jose. The taxpayer action contended that the
change was invalid because it required a constitutional revision, rather
2

Article X of the original 1849 California Constitution contained one
section concerning “amendments” to the Constitution and one
addressing the process for “revis[ing] and chang[ing] this entire
constitution.” As in the 1879 Constitution, the latter required a
constitutional convention, while the former could be adopted through
a procedure which was less cumbersome, but which still involved
meaningful deliberation. The modifying language “and changing this
entire constitution” was omitted from the article concerning
amendments and revisions in the 1879 Constitution.
10

than a mere amendment. In concluding that the change, while invalid,
was not significant enough to require the use of the revision process,
this court explained the differences between the two procedures,
making clear that the Constitution was intended to be “abiding and
permanent,” and that the revision process was intended for changes of
significance with respect to the “character,” “underlying principles,”
or “extent” of the Constitution, while the amendment process was
appropriate for changes of a less sweeping or fundamental nature:
Article XVIII of the constitution provides two methods
by which changes may be effected in [the
Constitution. . . .] It can be neither revised nor amended
except in the manner prescribed by itself, and the power
which it has conferred upon the legislature in reference to
proposed amendments, as well as to calling a convention,
must be strictly pursued. Under the first of these
methods [i.e., revision] the entire sovereignty of the
people is represented in the convention. The character
and extent of a constitution that may be framed by that
body is freed from any limitations other than those
contained in the constitution of the United States. . . . . .
The legislature is not authorized to assume the function
of a constitutional convention, and propose for adoption
by the people a revision of the entire constitution under
the form of an amendment . . . . The constitution itself
has been framed by delegates chosen by the people for
that express purpose, and has been afterwards ratified by
a vote of the people, at a special election held for that
purpose, and the provision in article XVIII that it can be
revised only in the same manner, and after the people
have had an opportunity to express their will in reference
thereto, precludes the idea that it was the intention of the
people, by the provision for amendments authorized in
11

the first section of this article, to afford the means of
effecting the same result which in the next section has
been guarded with so much care and precision. The very
term “constitution” implies an instrument of a permanent
and abiding nature, and the provisions contained therein
for its revision indicate the will of the people that the
underlying principles upon which it rests, as well as the
substantial entirety of the instrument, shall be of a like
permanent and abiding nature. On the other hand, the
significance of the term “amendment” implies such an
addition or change within the lines of the original
instrument as will effect an improvement, or better carry
out the purpose for which it was framed.
(Id. at pp. 117–119, italics added.)
The principle established in Livermore that the revision process
is to be used for fundamental changes to the “character” or
“underlying principles” of the Constitution, as well as to changes that
affect a great many provisions simultaneously, survives to this day in
modern cases addressing the validity under the state Constitution of
changes adopted through the amendment process as it is currently
practiced. Constitutional changes that alter the fundamental
governmental plan or structure of government may be enacted only by
revision, not by amendment. (Raven, supra, 52 Cal.3d at p. 349–350
[revision provision is based on principle that “‘comprehensive
changes’ to the Constitution require more formality, discussion and
deliberation than is available through the initiative process”];

12

McFadden v. Jordan (1948) 32 Cal.2d at pp. 334–346 [“far reaching
and multifarious” changes altered the “basic plan of government” and
were required to be adopted pursuant to revision process]; Strauss,
supra, 46 Cal.4th at p. 382 [a proposed change to the California
Constitution is a “revision” and not an “amendment,” when, even if it
does not alter a large number of provisions, it nonetheless “involves a
change in the basic plan of California government, i.e., a change in its
fundamental structure or the foundational power of its branches”]; Eu,
supra, 54 Cal.3d at p. 506 [explaining that comprehensive changes to
the state’s governmental structure “require more formality, discussion
and deliberation than is available through the initiative process”].)
Even changes that do not affect a great number of provisions
must be enacted by the revision process if they are fundamental to the
structure of government. In Raven, for example, this court invalidated
a purported initiative amendment to the California Constitution which
would have required California courts to defer to the U.S. Supreme
Court’s interpretation of the federal Constitution in construing certain
rights of criminal defendants set forth in the California Constitution.
(Raven, supra, 52 Cal.3d at pp. 342–346, 350.) In so ruling, this court
explained that the initiative was properly characterized as a

13

“revision,” not an “amendment,” because it “vest[ed] a critical portion
of state judicial power” in the federal courts and “substantially
alter[ed] the substance and integrity of the state Constitution as a
document of independent force and effect.” (Id.at pp. 352, 355.)
“From a qualitative standpoint,” Raven explained, “the effect of [the
amendment] is devastating” to our preexisting governmental plan.
(Id. at p. 352.)
3.

The Amendment Creating The Initiative
Process Changed The “Character” And
“Underlying Principles” Of The State
Constitution And The Fundamental
Government Plan, Including The Structure Of
Government And Powers Of Its Branches.

In 1911, Senate Constitutional Amendment 22 (“Amendment
22”) was placed on the ballot and approved by the voters of
California. Amendment 22 established for the first time the
“initiative,” then a new concept under the California Constitution.
The initiative power created by Amendment 22 purported to “reserve”
to the people of California the right to propose and adopt new laws,
independently of the Legislature. The initiative power created by

14

Amendment 22 also purported to reserve to the people of California
the right to make amendments to the California Constitution
independently of the Legislature.
Amendment 22, through the creation of the initiative power,
explicitly redefined the scope and nature of the legislative power of
the State of California, significantly constraining the power of the
state Legislature and eliminating the “permanent and abiding”
character of the state Constitution. Specifically, Amendment 22
amended article IV, section 1 of the 1879 Constitution so that it no
longer vested the full legislative power of the state in the Legislature.
Instead, under Amendment 22, article IV provided that “[t]he
legislative power of this state shall be vested in a senate and assembly
which shall be designated ‘The legislature of the State of California,’
but the people reserve to themselves the power to propose laws and
amendments to the constitution, and to adopt or reject the same, at the
polls independent of the legislature, and also reserve the power, at
their own option, to so adopt or reject any act, or section or part of
any act, passed by the legislature.” (Italics added.)
Under Amendment 22, a constitutional amendment or new
statute could be proposed by an “initiative petition,” signed by

15

electors equal to eight percent of the total vote for Governor in the
previous gubernatorial election. The statute or constitutional
amendment proposed by the initiative petition (the “initiative ballot
measure”) would then be submitted for a popular vote in the next
general election (or in a special election called by the Governor).
Following Amendment 22, and until the present day, the
California Constitution has included a provision reserving the
initiative as a power held by the people such that an initiative ballot
measure – whether a statutory or constitutional change – that is
approved by a majority of the voters in a duly-held election becomes
the law of California and cannot be amended or repealed by the
Legislature. Nor can the initiative power be restrained by the
Governor’s veto power.
Since the passage of Amendment 22, the details of the initiative
process have been modified, by statute and constitutional amendment,
but the basic initiative power in California remains the same power
formerly “vested” in the Legislature but then “reserved” to the people
by Amendment 22. The changes brought about by Amendment 22
were sweeping by any measure:

16

1. Amendment 22 made it possible to amend the
Constitution without any role of the Legislature
whatsoever, whereas formerly such amendments required
the approval of two thirds of both the Assembly and
Senate.
2. Amendment 22 also forbade the Legislature from
modifying, altering, or repealing any statute or
amendment established through an initiative ballot
measure, unless the initiative ballot measure itself
expressly allowed for legislative modification. That
prohibition has remained as part of the California
Constitution until this day. Currently, article II, section
10(c) of the California Constitution requires that any
change to a statute originally enacted as an initiative
ballot measure be approved by popular vote at an
election, except in cases where the initiative ballot
measure expressly provides for legislative modification.
Similarly, the Legislature lacks the power to modify a
constitutional amendment enacted as an initiative ballot
measure, and any modification or change to a
17

constitutional amendment requires approval by a popular
vote. Indeed, California is the only state in the United
States in which the Legislature is completely prohibited
from modifying a statute enacted through the initiative
process. (See Mathews & Paul, California Crackup:
How Reform Broke the Golden State and How We Can
Fix It (2010) p. 44.)
3. Amendment 22 forbade the Governor from vetoing or
otherwise modifying any statute established through an
initiative ballot measure. That prohibition has remained
as part of the California Constitution until this day; the
Governor currently has no power to veto or modify a
statute established through an initiative ballot measure.
The proposed Amendment 22 was recognized at the time it was
enacted for exactly what it was: a “radical” alteration of the state
Constitution, which would change the State of California from a
representational form of government to a direct democracy. (See
Ballot Pamp., Special Elec. (Oct. 10, 1911), argument against Senate
Constitutional Amendment 22 [Prop. 7] [describing “this radical
departure from the government established by our fathers”]; id.,
18

argument in favor of Amendment 22 [“The initiative will reserve to
the people the power to propose and to enact laws which the
legislature may have refused or neglected to enact, and to themselves
propose constitutional amendments for adoption”].3 The initiative
process has remained essentially unchanged since its inception in
1911. (Cf. Ballot Pamp., General Elec. (Nov. 8, 1966), argument in
favor of Prop. 1A, p. 2 [technical revision to “put[] the Constitution
into modern, concise and easily understandable language”].)4

3

A copy of the Ballot Pamphlet for Amendment 22, including the
full text of the proposed amendment and the arguments for and
against, may be found on the California Ballot Propositions Database
published online by the U.C. Hastings College of the Law Library
<http://library.uchastings.edu/cgi-bin/starfinder/22763/calprop.txt> &
<http://traynor.uchastings.edu/ballot_pdf/1911g.pdf> at p. 6 [as of
April 27, 2011].
4

The 1966 revisions to the California Constitution, accomplished by a
reenactment which included the provisions pertaining to the initiative
process, cannot be said to have cured the constitutional doubts
regarding the adoption of Amendment 22. The voters were never
informed that the 1966 revisions were designed to have any such
effect. Rather, “The 1966 constitutional revision was intended solely
to shorten and simplify the Constitution, deleting unnecessary
provisions; it did not enact any substantive change in the power of the
Legislature and the people.” (Associated Home Builders etc., Inc. v.
City of Livermore (1976) 18 Cal.3d 582, 595, fn. 12[135 Cal.Rptr. 41,
557 P.2d 473], italics added (hereafter Associated Home Builders);
see also People ex rel. S.F. Bay etc. Com. v. Town of Emeryville
(1968) 69 Cal.2d 533, 538 [72 Cal.Rptr. 790, 446 P.2d 790] [“The
elimination of such surplusage, which was one of the primary tasks of
19

Under the California case law recently reaffirmed in Strauss,
this court could reasonably determine that the changes in the
Constitution made by Amendment 22 in 1911 constituted “‘a change
in the basic plan of the California government,’” and “‘a change in
[the] fundamental [governmental] structure or the foundational
powers of its branches.’” (Strauss, supra, 46 Cal.4th at p. 438
[quoting Eu, supra, 54 Ca1.3d at pp. 508–509 ].) The fundamental
nature of the legislative power was dramatically altered and
diminished, and what commentators have described as California’s
“fourth branch” of government was created. (See Center for
Governmental Studies, Democracy By Initiative: Shaping
California’s Fourth Branch of Government (2d ed. 2006).) It is
difficult to conceive of how eliminating the Legislature’s longstanding
ability to act as California’s sole law-making body and restricting its
power with respect to future constitutional amendments, and instead
“reserving” broad legislative authority for direct vote of the people,
could be anything less than a change in the basic plan of California

the [California Constitution Revision Commission], . . . has no
substantive significance”].)
20

government and to its fundamental structure and the power of its
branches.
B.

Dicta Concerning The Initiative Process Is Not a Basis
For Conferring Standing On Proponents, Because
This Court Has Never Considered The
Constitutionality Of The Initiative Process Itself.

Proponents’ argument that they have authority to appeal on
behalf of the state relies on judicial dicta about the nature and the role
of the initiative in California history. Proponents assert that they must
be granted authority to appeal because case law describes the initiative
process as “important,” “favored,” or “fundamental.” (See, e.g.,
Proponents’ Br., supra, at pp. 20–21 [“In all events, this conclusion –
that the official proponents may represent the People’s interest in
defending the validity of successful initiatives when public officials
refuse to do so – follows ineluctably from the ‘important and favored
status’ that ‘the initiative process occupies . . . in California’s
constitutional scheme’”], citing Senate v. Jones (1999) 21 Cal.4th
1142, 1157 [90 Cal.Rptr.2d 810, 988 P.2d 1089]; id. at p. 2 [“a
citizen’s exercise of the initiative powers enshrined in the California
Constitution is a ‘fundamental right’”], citing Costa v. Superior Court

21

(2006) 37 Cal.4th 986, 1007 [39 Cal.Rptr.3d 470, 128 P.3d 675]; id. at
pp. 20–22 [citing additional dicta].)
However, the dicta cited by Proponents is just that – dicta. This
court has never considered the constitutional validity of the initiative
process itself, and general statements made about the initiative process
that did not seriously consider its constitutional validity or role in the
overall structure of California government should not be the basis for
granting Proponents the power to defend initiatives and effectively
nullify the executive discretion vested in state officials. (See People
v. Soto (2011) 51 Cal.4th 229, 247 & fn. 2 [119 Cal.Rptr.3d 775, 245
P.3d 410] [disapproving numerous decisions that had been based on
this court’s dicta 27 years earlier, and noting that decisions based on
such dicta could not comprise an alleged “virtually unbroken line of
authority”]; Klein v. U.S. (2010) 50 Cal.4th 68, 71 [112 Cal.Rptr.3d
722, 235 P.3d 42] [rejecting court’s earlier dictum because, when
drafted, it was “unnecessary to the decision”]; People v. Scheid (1997)
16 Cal.4th 1, 17 [65 Cal.Rptr.2d 348, 939 P.2d 748] [“Language used
in any opinion is of course to be understood in the light of the facts
and the issue then before the court, and an opinion is not authority for

22

a proposition not therein considered”], quoting Ginns v. Savage
(1964) 61 Cal.2d 520, 524, fn. 2 [39 Cal.Rptr. 377, 393 P.2d 689].)
A close examination of the cases cited by Proponents, and the
history of this court’s jurisprudence on the initiative and referendum,
reveals that the dicta upon which the Proponents rely was not based
upon any reasoned consideration of the validity of the initiative
process itself. Indeed, it is telling that the first case cited by the
Proponents in support of their contentions about the favored status of
the initiative process is a decision from the Court of Appeal dating
from 1959 – or more than 45 years after the initiative was originally
(and questionably) added to the Constitution. (Proponents’ Br., supra,
at p. 21 citing Martin v. Smith (1959) 176 Cal.App.4th 232, 234 [97
Cal.Rptr.3d 555] .)
The first California appellate decision to comment upon the
overall effect of the initiative process was McClure v. Nye (1913) 22
Cal.App. 248, 251. That case dealt with the timing by which certain
legislative enactments went into effect, a subsidiary measure that had
been enacted as part of Amendment 22. (Ibid.) In that case, in which
the underlying validity or importance of the initiative process was not
in any way considered, the Court of Appeal merely noted the

23

common-sense proposition that “[t]his amendment to the constitution
provides a scheme for the exercise of what is known as the initiative
and referendum and, of course, if possible, the language should be
construed so as to make effective this reservation of power on the part
of the people.” (Ibid.) In other words, the Court of Appeal simply
took at face value the language of Amendment 22 itself and expressed
its duty to make effective the language of that Amendment – it did not
assert any broader interpretation of the importance or overall validity
of the initiative process itself.
That same limited, common-sense interpretation of the
initiative process was expressed throughout decisions from this court
and the Court of Appeal in the early years of the initiative process. In
numerous early initiative cases, which dealt primarily with the local
initiative scheme that was part of Amendment 22 and is now found at
article II, section 11 of the Constitution, this court issued decisions
making clear that, while the process of initiative and referendum had
reserved a “part” of the legislative power to the people, the existence
of the initiative and referendum process was not to be broadly
construed as infringing on other areas reserved to the legislative or
executive branches. (See Newsom v. Bd. of Sup’rs of Contra Costa

24

County (1928) 205 Cal. 262, 271 [holding that the local initiative
process could not extend to procedures for granting licenses to erect
and maintain toll bridges, and finding that “A determination that
direct legislation was not intended to apply to all actions of
subordinate governmental bodies involving in part the exercise of the
legislative function is not new in this state”]; Hyde v. Wilde (1921) 51
Cal.App. 82, 86 [limiting use of the local initiative process imposed
by Amendment 22]; Hurst v. City of Burlingame (1929) 207 Cal. 134,
141–142 [local initiative invalidated], overruled by Associated Home
Builders, supra, 18 Cal.3d at p. 588 [overruled on grounds that zoning
act did not conflict with the initiative process]; Chase v. Kalber
(1915) 28 Cal.App. 561, 563 [steps necessary to be taken for the
improvement of streets were not intended to come within either the
power of either the initiative or the referendum]; Starbuck v. City of
Fullerton (1917) 34 Cal.App. 683, 684–85 [same].)
Even in cases in which the power to enact legislation by
initiative was upheld, this court expressed only a limited vision of the
initiative process, one that emphasized that the people, while
reserving to themselves a portion of the legislative power, had
reserved only a “part” of that power. (Dwyer v. City Council of

25

Berkeley (1927) 200 Cal. 505, 513.) In Dwyer, this court held that the
City of Berkeley could enact by referendum a zoning ordinance that
the Berkeley City Council would indisputably have had the power to
enact by ordinary legislation. (Ibid.) This court made no mention of
the broader constitutionality of the initiative process itself. In Ley v.
Dominguez (1931) 212 Cal. 587, 593, this court addressed whether or
not signatures needed to place certain referendums for a ballot
election in the City of Los Angeles had been properly tabulated by the
clerk; the Ley court said simply that election statutes dealing with the
initiative and referendum should be given the same construction given
to election statutes generally, noting that the power of initiative and
referendum was framed by the language of Amendment 22 as being a
power reserved by the people, not a grant of power to them. Nothing
in this court’s early jurisprudence suggests a broader conclusion
regarding the nature or constitutional status of the initiative process –
while the court held that initiative measures should be construed in the
same manner as other electoral statutes, the court said nothing about
the overall validity or importance of the initiative process.
In subsequent decades, certain decisions of this court and the
Court of Appeal amplified the rhetoric concerning the initiative

26

process, but never with a citation to underlying authority, and never in
a case in which this rhetoric was necessary to the court’s holding. For
example, in McFadden v. Jordan (1948) 32 Cal.2d 330, 332, the court
noted in passing that “[t]he right of initiative is precious to the people
and is one which the courts are zealous to preserve to the fullest
tenable measure of spirit as well as letter,” but the actual holding of
that case was that a proposed initiative must be stricken from the
ballot as it was clearly an attempt at an improper revision of the
Constitution. In two Court of Appeal cases that have been cited by
this court, Martin v. Smith (1959) 176 Cal.App.2d 115, 117 (hereafter
Martin), and Mervynne v. Acker (1961) 189 Cal.App.2d 558 (hereafter
Mervynne), this rhetoric was amplified, but again on the basis of bare
assertion—without any analysis whatsoever of the role of the
initiative in California history or the validity of its enactment. (See
Martin, supra, 176 Cal.App.2d at p. 117 [stating, without analysis,
that it is “the duty of the courts to jealously guard the rights of the
people]; Mervynne, supra,189 Cal.App. 2d at p. 563 [initiative is “one
of the most precious rights of our democratic process”].) These
opinions, in turn, were cited in Associated Home Builders, which
described Amendment 22 as “one of the outstanding achievements of

27

the progressive movement of the early 1900’s,” and this same
unexamined rhetoric has been used by this court in subsequent
decisions. (Associated Home Builders, supra,18 Cal.3d at p. 591; see
Independent Energy Producers Ass’n v. McPherson (2006) 38 Cal.4th
1020, 1032 [44 Cal.Rptr.3d 644] [citing Associated Home Builders].)
And it is precisely these cases – and this same unsupported dicta that
does not reflect a considered analysis of the nature of the initiative
process – that Proponents cite in their brief. (See Proponents’ Br. at
pp. 20–22; Senate v. Jones (1999) 21 Cal.4th 1142, 1156 [90
Cal.Rptr.2d 810, 988 P.2d 1089] [describing the “cherished” role of
the initiative in the constitutional system]; Strauss, supra, 46 Cal.4th
at p. 463 [discussing initiative system].) Notably absent from
Proponents’ brief and the cited cases is any discussion of whether the
initiative system itself was validly enacted by amendment to the
California Constitution.
Recently, this court has considered at length the unique
California requirement restricting the Legislature from amending
statutes enacted by initiative. (People v. Kelly (2010) 47 Cal.4th
1008, 1030–1041 [103 Cal.Rptr.3d 733].) Kelly makes clear the
dubious constitutional status of the initiative process created through

28

an amendment, rather than a revision, to the Constitution, by
highlighting the extent to which the initiative process effected a
structural change in California government. (Id. at p. 1036 [noting
that California, “more strictly than any other state (then or now) . . .
withheld all independent authority from the Legislature to take any
action on measures enacted by initiative, unless the initiative measure
itself specifically authorized such action”].) Kelly did not, however,
consider the underlying question of whether California could have
adopted such a far-sweeping change in its governance by use of a
constitutional amendment, as opposed to a revision.
In short, dicta notwithstanding, this court has never considered
whether the initiative process was validly enacted into the California
Constitution.
While this case does not raise a direct challenge to the initiative
process, the constitutionally questionable status of the initiative
process itself suggests at least two reasons why Proponents’ standing
arguments should fail. First, the court need not, and should not, reach
any conclusion whatsoever about Proponents’ entitlement to standing
based on mere dicta concerning the role of the initiative. That dicta

29

was written without full consideration of the constitutional
implications of the initiative process.
Second, giving Proponents standing to represent the state in
constitutional litigation when nothing in the California Constitution
provides for such authority, and when the elected officials who do
have that authority have exercised their discretion not to act, would
make the questions about the validity of the initiative process even
more serious. The conferral of such authority would represent even
more of a change in the fundamental structure of California
government and the power of its branches and would therefore create
additional constitutional implications that the court should strive to
avoid. (See In re Klor (1966) 64 Cal.2d 816, 821 [51 Cal.Rptr. 903,
415 P.2d 791] [“A fundamental canon of statutory interpretation
requires that a statute be construed to avoid unconstitutionality if it
can reasonably be so interpreted”].)
Third, despite Proponents’ arguments, nothing fundamental
within the initiative process itself could confer upon Proponents an
extra-constitutional and extra-statutory right to take the place of the
Attorney General in representing the interests of the State of
California in federal constitutional litigation. And the creation of any

30

such a power in unelected and unaccountable initiative proponents
would render California’s system of governance even more
“dysfunctional” than it is today. (See Chief Justice Ronald M.
George, Remarks at the American Academy of Arts and Sciences
Induction Ceremony (Oct. 10, 2009), The Perils of Direct Democracy:
The California Experience <http://www.courts.ca.gov/7884.htm> [as
of April 27, 2011] [condemning effects of initiative process on state
government and predicting that without reform “we shall continue on
a course of dysfunctional state government, characterized by a lack of
accountability on the part of our officeholders as well as the voting
public”].)5

III.

CONCLUSION
As shown above, the validity of the initiative process itself is

subject to serious constitutional doubts, which no prior decision of
this court has examined. The court should disregard dicta on which
Proponents rely in seeking to justify their authority to upend the
5

Additionally, construing the populist language of Amendment 22 to
transfer executive power and discretion to a small faction, and out of
the hands of elected officials, would have the ironic consequence of
diminishing the sovereignty the people purported to reserve to
themselves through that amendment.
31

constitutional balance and supplant the judgment of elected officials
who are fully accountable to the people of this state. The court should
answer the Certified Question in the negative.
Dated: May 2, 2011

KENDALL BRILL & KLIEGER LLP

By:
Laura W. Brill
Attorneys for Amici Curiae
Jon Eisenberg
Professor Laurie L. Levenson

32

CERTIFICATE OF COMPLIANCE
Pursuant to rule 8.204(c) of the California Rules of Court, I certify that the
foregoing brief is double-spaced and printed in 14-point Times New Roman font.
It is 32 pages long and contains 6,502 words (excluding the cover, the application
to file, the tables, this certificate, and the proof of service). In preparing this
certificate, I relied upon the word count generated by Microsoft Word 2007.

Dated: May 2, 2011

KENDALL BRILL & KLIEGER LLP

By:
Ashlee R. Lynn
Attorneys for Amici Curiae
Jon Eisenberg
Professor Laurie L. Levenson

PROOF OF SERVICE
At the time of service, I was over 18 years of age and not a
party to this action. I am employed in the County of Los Angeles,
State of California. My business address is 10100 Santa Monica
Blvd., Suite 1725, Los Angeles, California 90067.
On May 2, 2011, I served true copies of the following
document(s) described as APPLICATION TO FILE AMICI
CURIAE BRIEF IN SUPPORT OF RESPONDENTS AND
[PROPOSED] AMICIE CURIAE BRIEF OF JON B.
EISENBERG AND PROFESSOR LAURIE L. LEVENSON on the
interested parties in this action as follows:
SEE ATTACHED SERVICE LIST
BY MAIL: I enclosed the document(s) in a sealed envelope
addressed to each interested party at the address indicated above or on
the attached service list. I placed each such envelope for collection
and mailing, following our ordinary business practices. I am readily
familiar with Kendall Brill & Klieger LLP's practice for collecting and
processing correspondence for mailing. On the same day that the
correspondence is placed for collection and mailing, it is deposited in
the ordinary course of business with the United States Postal Service,
in a sealed envelope with postage fully prepaid.
I declare under penalty of perjury under the laws of the State of
California that the foregoing is true and correct.
Executed on May 2, 2011, at Los Angeles, California.

Ashlee R. Lynn

SERVICE LIST
Counsel

Attorneys For

Claude F. Kolm
Office of the Alameda County Counsel
1221 Oak Street, Suite 450
Oakland, CA 94612

Attorneys for Defendant
Patrick O'Connell, in his
official capacity as ClerkRecorder for the County of
Alameda

Judy Welch Whitehurst
Office of the County Counsel
500 West Temple Street, 6th Floor
Los Angeles, CA 90012

Attorneys for Defendant
Dean C. Logan, in his
official capacity as
Registrar-Recorder/County
Clerk for the County of Los
Angeles

Kenneth C. Mennemeier
Andrew W. Stroud
Mennemeier Glassman & Stroud LLP
980 9th Street # 1700
Sacramento, CA 95814

Attorneys for Defendants
Arnold Schwarzenegger,
Mark Horton, and Linette
Scott

Tamar Pachter
Daniel Powell
Office of the Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102

Attorneys for Defendant
Edmund G. Brown, Jr., in
his official capacity as
Attorney General of
California

Terry L Thompson
Attorney at Law
P.O. Box 1346
Alamo, CA 94507

Attorney for DefendantIntervenor William Tam
Hak-Shing

Office of the Attorney General
1300 "I" Street
Sacramento, CA 95814

Office of Attorney General
Kamala D. Harris

Office of the Governor
c/o State Capitol, Suite 1173
Sacramento, CA 95814

Office of Governor
Edmund G. Brown

Dennis J. Herrera
Therese Stewart
Vince Chhabria
Mollie Mindes Lee
Christine Van Aken
Office of the City Attorney
City Hall, Room 234
1 Dr. Carlton B. Goodlett Place
San Francisco, CA 94102

Attorneys for PlaintiffRespondent City and
County of San Francisco

Erin Bernstein
Danny Chou
Ronald P. Flynn
Christine Van Aken
Office of the City Attorney
1390 Market Street, 7th Floor
San Francisco, CA 94102
Theodore Olson
Matthew McGill
Amir C. Tayrani
Gibson, Dunn & Crutcher, LLP
1050 Connecticut Ave., NW
Washington, DC 20036
David Boies
Rosanne C. Baxter
Boies, Schi1ler, & Flexner, LLP
333 Main Street
Armonk, NY 10504
Ethan Douglas Dettmer
Sarah Elizabeth Piepmeier
Enrique Antonio Monagas
Gibson, Dunn & Crutcher, LLP
555 Mission Street, Suite 3000
San Francisco, CA 94105

Attorneys for PlaintiffsRespondents Kristin M
Perry, Sandra B. Stier,
Paul T. Katami, and Jeffrey
J. Zarrillo

Joshua Irwin Schiller
Richard Jason Bettan
Boies, Schiller & Flexner, LLP
575 Lexington Ave., 5th Floor
New York, NY 10022
Jeremy Michael Goldman
Boies, Schiller & Flexner, LLP
1999 Harrison St #900
Oakland, CA 94612
Theodore J. Boutrous
Christopher Dean Dusseault
Theano Evangelis Kapur
Gibson, Dunn & Crutcher, LLP
333 S. Grand Avenue
Los Angeles, CA 90071
Theodore H. Uno
Boies, Schiller & Flexner, LLP
2435 Hollywood Boulevard
Hollywood, FL 33020
Charles J. Cooper
David H. Thompson
Howard C. Nielson, Jr.
Peter A. Patterson
Cooper & Kirk, PLLC
1523 New Hampshire Avenue, N.W.
Washington, DC 20036

Attorneys for DefendantsIntervenors-Appellants

Andrew P. Pugno
Law Offices of Andrew P. Pugno
101 Parkshore Drive, Suite 100
Folsom, CA 95630

Attorneys for DefendantsIntervenors-Appellants

Brian W. Raum
James A. Campbell
Alliance Defense Fund
15100 North 90th Street
Scottsdale, AZ 85260

Attorneys for DefendantsIntervenors-Appellants