Kristin Perry, et al v. Arnold Schwarzenegger, et al
Filing
359
Filed (ECF) Appellee City and County of San Francisco Correspondence: Letter to court attaching courtesy amici briefs. Date of service: 05/13/2011 [7752316] --[COURT UPDATE: Replaced PDF of letter at the request of counsel (to correct signature). Resent NDA. 05/13/2011 by DB] (MML)
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
AMICUS BRIEF OF LEAGUE OF WOMEN VOTERS OF
CALIFORNIA FILED IN SUPPORT OF PLAINTIFFSRESPONDENTS AND CITY AND COUNTY OF SAN FRANCISCO
GREINES, MARTIN, STEIN & RICHLAND LLP
Robin Meadow (SBN 51126)
Cynthia E. Tobisman (SBN 197983)
5900 Wilshire Boulevard, 12th Floor
Los Angeles, California 90036
Telephone: (310) 859-7811 /Facsirnile: (310) 276-5261
Attorneys for Amicus Curiae
LEAGUE OF WOMEN VOTERS OF CALIFORNIA
APPLICATION BY LEAGUE OF WOMEN VOTERS OF
CALIFORNIA TO FILE AMICUS CURIAE BRIEF IN SUPPORT
OF PLAINTIFFS-RESPONDENTS AND CITY AND COUNTY OF
SAN FRANCISCO
The League of Women Voters of California applies for leave to file
the attached amicus curiae brief.
Interests of the League:
Formed in 1920, the League is a nonpartisan political organization
that encourages informed and active participation in government, works to
increase understanding of major public policy issues, and influences public
policy through education and advocacy. It does not support or oppose any
political party or any candidate.
The League has a dual mission: educating voters and the community
at large, and advocating for changes in public policy. In its education role,
the League strives to present information in a completely neutral manner.
The goal is to provide voters with the information they need to make their
own decisions and to create a well-informed community in general. In its
advocacy role, the League bases all its work on positions that are arrived at
through member education, discussion and consensus.
In both its voter education and advocacy roles, the League has been
deeply involved in the initiative process. In educating the public, the
League provides nonpartisan information about all propositions on the
California ballot. In its advocacy role, the League has actively supported
particular initiatives and opposed others. In addition, the League has
conducted two statewide member studies of the initiative and referendum
process in California and, based on these studies, supports citizens’ right
of direct legislation through the initiative and referendum process. The
League has advocated in the legislature for measures that would improve
the initiative process and against measures that would undermine its rational
and appropriate operation.
Accordingly, the League respectfully requests permission to file the
attached arnicus curiae brief, which discusses matters critical to the
operation of California government and the initiative process.
Rule 8.520(1) Requirements
Counsel has read the parties’ briefs on the merits and believes that
the proposed amicus brief will assist the Court in deciding the issue
presented. The proposed brief from an organization concerned with
vindicating the broader interests in functional government summarizes the
history of the initiative power and discusses the wide-ranging practical
problems with permitting private individuals to represent the interests of
the State, rather than speaking on behalf of their own private interests
(assuming they can establish such particularized interests).
11
No party, counsel for a party, or anybody other than counsel for
amici has authored the proposed brief in whole or in part or funded the
preparation of the brief.
Dated: April 29, 2011
Respectfully submitted,
GREINES, MARTIN, STEIN & RICHLAND LLP
Robin Meadow
Cynthia E. Tobisman
By________
Cynthia E. Tobisman
Attorneys for Amicus Curiae
LEAGUE OF WOMEN VOTERS OF CALIFORNIA
111
TABLE OF CONTENTS
Page
APPLICATION BY LEAGUE OF WOMEN VOTERS OF
CALIFORNIA TO FILE AMICUS CURIAE BRIEF IN
SUPPORT OF PLAINTIFFS-RESPONDENTS AND CITY
AND COUI’4TY OF SAN FRANCISCO
i
INTRODUCTION
1
ARGUMENT
2
A.
B.
C.
As Conceived By The Progressives, The Initiative
Power Is The Electorate’s Check On The Legislature,
While The Recall Power Is Electorate’s Check On The
Executive Branch.
2
The Initiative Power Has Resulted In Rampant
Micromanagement Of The Legislative Process.
4
Permitting Initiative Proponents To Speak On Behalf
Of The State Would Render Litigation Over Initiative
Measures Unworkable.
7
1.
2.
Initiative measures regularly result in litigation,
requiring the courts and the executive branch to
harmonize conflicting laws and resolve questions
of constitutionality.
7
In order for litigation over initiative measures to
remain workable, the State must speak with
one voice.
10
Permitting initiative proponents—or any
elector who disagrees with the Attorney
General’s litigation decisions—to speak
on behalf of the State is a recipe for
confusion.
10
a.
iv
TABLE OF CONTENTS
(Continued)
b.
There are avenues for initiative proponents
to speak when they believe the Attorney
General is failing to defend a law, but
those avenues require the proponents to
speak in their own voices.
Page
12
CONCLUSION
14
CERTIFICATION
15
V
TABLE OF AUTHORITIES
Page
STATE CASES
Environmental Protection Information Center Inc. v. Maxxam Corp.
(1992) 4 Cal.App.4th 1373
13
Raven v. Deukmejian
(1990) 52 Cal.3d 336
8
State of Calfornia v. Superior Court
(1986) 184 Cal.App.3d 394
12
Strauss v. Horton
(2009) 46 Cal.4th 364
3, 4, 9
Styring v. City ofSanta Ana
(1944)64 Cal.App.2d 12
13
STATE STATUTES
California Constitution
Article II,
§
2, 11
8(a)
Code of Civil Procedure
Section 1085(a)
13
LAW REVIEW ARTICLES AND OTHER AUTHORITIES
Allswang, The Initiative and Referendum in Ca1U’ornia 1898-1998
(2000) p. 13
4
Butler & Ranney, Theory, Referendums: A Comparative Study of
Practice and Theory (1978)
7
Eule, Judicial Review ofDirect Democracy (1989) 99 Yale L.J. 1503
vi
4, 10
TABLE OF AUTHORITIES
(Continued)
Page
LAW REVIEW ARTICLES AND OTHER AUTHORITIES
George, Golden Gate University School ofLaw ChiefJustice
Ronald M George Distinguished Lecture Access to Justice
in Times ofFiscal Crisis (2009) 40 Golden Gate U.L.Rev. 1
6
George, The Perils ofDirect Democracy: The Calfornia Experience
(Oct. 1, 2009)
6
Grodin, In Pursuit ofJustice (1989)
6
Johnson, Gov. of California, Inaugural Address (Jan. 3, 1911)
3
Klatchko, The Progressive Origins of the 2003 Calfornia
Gubernatorial Recall (2004) 35 McGeorge L.Rev. 701
3, 13
Lee, Calfornia, Referendums: A Comparative Study ofPractice
and Theory (Butler & Ranney edits) (1978) pp. 88-89
6
Levinson & Stern, Ballot Box Budgeting in Calfornia: The Bane of
the Golden State or an Overstated Problem? (2010)
37 Hastings Const.L.Q. 689
5
Manheim & Howard, Symposium on the Calfornia Initiative Process:
A Structural Theory of the Initiative Power in Calfornia
3,5,6
(1998)31 LoyolaL.A.L.Rev. 1165
Office of the Secretary of State, A History of Calfornia Initiatives
(Dec. 2002), pp. 11-13
5
Ooley, State Governance: An Overview of the History of Constitutional
Provisions Dealing with State Governance (1996), p. 6, fn. 16
5
Stein, The Calf’ornia Constitution and the Counter-Initiative
Quagmire (1993) 21 Hastings Const.L.Q. 143
The Limits ofPopular Sovereignty: Using the Initiative Power
to Control Legislature Procedure (1986) 74 Cal.L.Rev. 491
vii
4, 9, 10
2
TABLE OF AUTHORITIES
(Continued)
Page
LAW REVIEW ARTICLES AND OTHER AUTHORITIES
The “Overlooked Hermaphrodite” of Campaign Finance.
Candidate-Controlled Ballot Measure Committees in
Calfornia Politics (2007) 95 Cal.L.Rev. 123
Van Cleave, A Constitution in Conflict: The Doctrine of
Independent State Grounds and the Voter (1993)
21 Hastings Const.L.Q. 95
De Witt, The Progressive Movement: A Non-Partisan,
Comprehensive Discussion of Current Tendencies in
American Politics (1915) pp. 213-215
viii
4
5 7, 8, 9
3
INTRODUCTION
The path that Intervenors present is an invitation to chaos.
The Court should decline to take it.
Because there is no explicit right in the California Constitution for
initiative proponents to act on behalf of the State (see Plaintiffs’ Ans. Br. 919; City of S.F. Ans. Br. 7-32), the question before this Court is whether,
as Intervenors argue, “constitutional necessity” requires that they be able to
do so (see Intervenors’ Opening Br. 24). The answer must be no.
Especially in light of the initiative system’s legislative excesses,
the executive and judicial branches of government play essential roles in
ensuring that California’s laws remain workable and constitutional. Those
roles will become impossible to discharge if, as Intervenors advocate,
initiative proponents can stand in the shoes of the State if they disagree with
the State’s litigation decisions.
The Constitution gives no special status to the official proponents of
an initiative. Accordingly, if Intervenors may speak on behalf of the State,
there is no principled reason why any elector who supported the initiative
cannot do the same.
In order for California’s government to function in an orderly
manner, the State must speak with one voice in cases involving initiative
measures. This means that initiative proponents cannot be permitted to
speak on behalf of anyone other than themselves.
1
ARGUMENT
A.
As Conceived By The Progressives, The Initiative Power
Is The Electorate’s Check On The Legislature, While
The Recall Power Is Electorate’s Check On The Executive
Branch.
By its terms, the initiative power 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(a).) As the City of San Francisco has
already demonstrated, ample case law makes clear that this is a legislative
power. (City of S.F. Ans. Br. 16-17.)
The history of the initiative process supports this conclusion.
In 1911, Governor Hiram Johnson called a special election and the
Legislature placed the initiative, referendum, and recall proposals on
the ballot. (See comment, The Limits ofPopular Sovereignty: Using the
Initiative Power to Control Legislature Procedure (1986) 74 Cal. L.Rev.
491, 502-508.) This effort was the culmination of the Progressive Party’s
reform movement to wrest control of the political process from private
interests, primarily the railroads. (Ibid.) To achieve this goal, Governor
Johnson’s proposals gave the electorate tools to check abuses by the
legislative and executive branches of government.
The Initiative Power. The ballot materials in the campaign to ratify
the initiative proposal make clear that the initiative power was designed to
act as the check on the Legislature. They described the initiative power:
“It is not intended and will not be a substitute for legislation, but will
constitute that safeguard which the people should retain for themselves
2
to supplement the work ofthe legislature by initiating those measures which
the legislature either viciously or negligently fails or refuses to enact; and
to hold the legislature in check, and to veto or negative such measures as it
may viciously or negligently enact.” (Manheim & Howard, Symposium on
the California Initiative Process: A Structural Theory of the Initiative
Power in California (1998) 31 Loyola L.A. L.Rev. 1165, 1189 [Structural
Theory ofInitiative Power], citing Const. Amend. No. 22, in California
Ballot Pamphlet, Special Election (Oct. 11, 1911) (Comments of Lee C.
Gates, Senator, 34th District, and William C. Clark, Assemblyman, 59th
District), emphasis added.) Thus, “Hiram Johnson and his allies in
the Progressive movement sought to restore the connection between
government and the majority will by allowing the people to bypass an
unresponsive Legislature and enact their own legislation.” (Strauss v.
Horton (2009) 46 Cal.4th 364, 489 (cone. & dis. opn. of Moreno, J.).)
The Recall Power. With respect to the executive branch, the recall
power was the proposed vehicle to check abuses. (See Klatchko, The
Progressive Origins of the 2003 Calfornia Gubernatorial Recall (2004)
35 McGeorge L.Rev. 701, 703, citing Parke De Wift, The Progressive
Movement: A Non-Partisan, Comprehensive Discussion of Current
Tendencies in American Politics (1915) pp. 213-215.) As Governor
Johnson described the recall power, it was “the precautionary measure by
which a recalcitrant official can be removed.” (Id., citing Hiram Johnson,
Gov. of California, Inaugural Address (Jan. 3, 1911)
(as of
Apr.28, 2011).)
3
Thus, the Progressives proposed a regime in which the initiative
power permitted the electorate to enact laws, while the recall power
permitted the electorate to remove public officials who failed to enforce
laws.
There is no indication that the Progressives intended to subvert
the judiciary’s role in reviewing the constitutionality of initiative measures.
(See Strauss, supra, 46 Cal.4th at p. 489 (conc. & dis. opn. of Moreno, J.).)
Nor is there any indication that they intended to subvert the executive
branch’s institutional roles, including its right to make decisions regarding
whether or how to defend a law against constitutional challenge. (See City
of S.F. Ans. Br. 19-21.)
B.
The Initiative Power Has Resulted In Rampant
Micromanagement Of The Legislative Process.
California voters have been busy at the ballot box ever since they
approved the slate of Progressive reforms in 1911. “A comparison of the
phone book sized ballot pamphlets of recent years with the more moderate
epistles often or twenty years ago indicates how rapidly the amount of
initiatives has increased.” (Stein, The California Constitution and the
Counter-Initiative Quagmire (1993) 21 Hastings Const. LQ. 143, 150
[Cal. Const. and Counter-Initiative Quagmire], citing Eule, Judicial Review
ofDirect Democracy (1989) 99 Yale L.J. 1503, 1506-1508, fn. 18.)1
Between 1912 and 2002, 1,187 initiatives were drafted and
circulated. (Comment, The “Overlooked Hermaphrodite” of Campaign
Finance: Candidate-Controlled Ballot Measure Committees in Calfornia
Politics (2007) 95 Cal. L.Rev. 123, 129 citing Allswang, The Initiative and
Referendum in Calfornia 1898-1998 (2000) p. 13.) Between 1912 and
2008, 325 initiatives qualified for the ballot, and ill were approved by the
4
By 1948 the Constitution had grown from 7300 words to 95,000
2
words. (Structural Theory ofInitiative Power, supra, 31 Loyola L.A.
L.Rev. at p. 1189 citing Ooley, State Governance: An Overview of the
History of Constitutional Provisions Dealing with State Governance (1996),
p. 6, fn. 16
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