Vikram David Amar

Do the Ballot Sponsors of California's Same-Sex Marriage Ban, Proposition 8, Have Standing to Defend It In Federal Court? Part Two in a Series

By VIKRAM DAVID AMAR and ALAN BROWNSTEIN

Friday, September 24, 2010

In Part One of this series, we started analyzing whether the official drafters and ballot sponsors of California's initiative banning same-sex marriage -- Proposition 8 ("Prop. 8") -- have standing to defend the measure in federal court, and to appeal last month's federal district court ruling striking down the ban as unconstitutional. (For non-lawyers, "standing" is a term used to describe the capacity of a person or entity to be a primary litigant in court.) We continue that analysis here.

A Brief Recap of the Standing Question that the Prop. 8 Case Raises

We began our discussion last time by quoting key wording from a 1997 U.S. Supreme Court case from Arizona in which the Justices (albeit in non-binding language) seemed skeptical of the initiative sponsors' standing in that case. Here, again, is some of what the Court said:

"We have recognized [in a case from New Jersey, Karcher v. May] that state legislators have standing to contest a decision holding a state statute unconstitutional if state law authorizes legislators to represent the State's interests. [The Arizona initiative sponsors], however, are not elected representatives, and we are aware of no Arizona law appointing initiative sponsors as agents of the people of Arizona to defend, in lieu of public officials, the constitutionality of initiatives made law of the State. Nor has this Court ever identified initiative proponents as [constitutionally-] qualified defenders of the measures they advocated."

The sponsors of Proposition 8 have pointed out in recently filed papers that California cases recognize the right of initiative sponsors to intervene (that is, force themselves into lawsuits) in state court to defend initiatives, whether or not public executive officials also choose to defend these laws. The Prop. 8 sponsors urge the federal courts to accept these California cases as state-law authorization that is sufficient to confer standing upon them in federal court too.

One of the litigants challenging Prop. 8, the City of San Francisco, has argued in response that the sponsors exaggerate the relevance of these California cases. But as we explained in Part One, San Francisco's arguments were themselves flawed in important respects. Indeed, the single New Jersey state decision on which the U.S. Supreme Court relied in the Arizona case -- to illustrate adequate state-law authorization of legislator standing to defend a state measure -- involved nothing more than a legislative leader (acting on behalf of the legislature) being permitted to intervene in state court (in that case, alongside the Attorney General) in order to defend state legislation from attack.

So, at least as to legislator standing, cases allowing intervention in state court to defend appear to be adequate to confer federal constitutional standing. If the same rules apply for initiative-sponsor standing, then the California cases do indeed help Prop. 8's sponsors quite a bit.

Should Initiative-Sponsor Standing Be Likened to Legislative Standing?

The key issue, therefore, becomes whether initiative-sponsor standing in federal court should be permitted on the same terms on which legislator standing is permitted. From one angle, analogizing initiative-sponsor standing to legislative standing makes sense: Both notions permit the originators of legislation to defend their own work-product when the executive branch declines to do so.

Indeed, an argument could be made that initiative-sponsor standing is even more sensible and necessary than is legislator standing. The initiative device (in those states that have it) is derived from a concern that elected public officials sometimes do not act in ways that are faithful to the people's interests and desires, such that direct democracy is needed. And while most initiatives are a response to inaction (or unpopular action) by the legislative branch, there is no reason to think that the distrust of elected officials that is represented by the initiative mechanism does not also carry over to elected executive officials like Governors and Attorneys General. (Consider, for example, an initiative limiting the terms of all elected officials, including executive officials. An Attorney General's decision not to defend such a measure would rightly be viewed with great public outrage.)

Thus, allowing initiatives to die because elected officials decline to defend them in court would seem to be in significant tension with the basic reasons for having the initiative power in the first place.

One Key Difference Between Initiative-Sponsor Standing and Legislator Standing: Initiative Sponsors Aren't Elected

Yet initiative-sponsor standing poses serious problems that legislator standing does not. Most fundamentally, initiative sponsors are not elected -- most were never chosen by the people to represent the state's electorate. To be sure, the measure they proposed may have been adopted, but that doesn't mean that the electorate decided -- or intended -- that these sponsors speak or act for the voters in any representative capacity.

This distinction is critical, for several reasons. First, there is a difference between the person (or group) who drafts and proposes a law, and the institution or body that is empowered to enact a proposal into law. In the legislator-standing context, the Supreme Court has conferred standing on only those legislators who are elected leaders of the legislative body, and who speak not for themselves as individual lawmakers, but rather on behalf of the entire lawmaking body.

By contrast, the individual members of the legislature who may have been involved in -- or even central to -- the drafting of or lobbying for a bill do not enjoy standing to defend the measure. As important as these members might have been in bringing the law about, they are not (and do not speak for) the entire lawmaking body whose votes made the proposal law. Only the chosen leaders of the entire lawmaking body enjoy standing.

In the context of an initiative, the sponsors are the persons who proposed the measure and offered it to the enacting body for approval. But millions of voters comprise the body whose action made the initiative proposal law. Thus, the issue of who should be recognized as speaking for the voters is much harder than the issue of who may be recognized to speak on behalf of the legislature. A legislature's acknowledged leaders, chosen through established procedures, have an obvious claim to representation that initiative sponsors, who are more akin to individual legislators who draft a measure, do not. In short, initiative sponsors, without more, have no clear basis for asserting they have been authorized or appointed by the voters to litigate on the people's behalf.

Other, Related, Problems with Initiative-Sponsor Standing: No Tie to the Electorate, and Thus No Accountability

Second, and related, initiative sponsors have no ongoing tie to the electorate; there is no way for them to be held accountable to the voters. Unlike legislators, they have no incentive to act in ways that reflect either the wishes of the people at the time a measure was adopted, or the wishes of the people at a later time when litigation ensues.

A law sometimes remains on the books long after the political support that generated it has diminished. Allowing the sponsors of initiatives to defend the constitutionality of a law that the current generation of voters believes should be struck down raises profound questions of democratic legitimacy.

Moreover, initiative sponsors may be driven in their tactical litigation decisions by an ideological purity or zeal that did not exist among the electorate that passed the measure. And, again, there is no way for the people who actually adopted the initiative to force the sponsors to moderate their positions in a lawsuit to better reflect the will of the enacting electorate.

Legislative leaders, by contrast, are held electorally accountable on two levels. They must satisfy the legislative membership that they are satisfactorily representing its interests, or else risk losing their leadership posts. And, if their actions offend the voting public itself too much, legislative leaders may lose their elected positions altogether. (We do note that the possibility of electoral ouster does raise some difficulties and potential conflicts: What if a legislative leader is doing something that the legislature wants, but that a majority of voters in his district oppose?)

A Final Problem with Initiative-Sponsor Standing: No Clear Structure to Identify Leaders

Third, and finally, there may be no clear structure within initiative-sponsor groups or organizations, making the identification of authoritative spokespersons for initiatives easy.

Sometimes an initiative sponsor is a single individual, but quite often the sponsors of an initiative are multiple persons with no acknowledged leader, or an organization whose internal processes for picking a leader may be non-transparent, non-democratic, or even non-existent.

By comparison, each legislature has rules (often prescribed by a constitution) for electing the leaders who will represent the chambers of the body. As noted above, when the Supreme Court has allowed legislators to have federal standing, that standing is conferred only on legislative leaders, who are selected by the membership of the legislature to represent the voting majority of the legislative chamber.

(We do recognize here that legislatures are not ideal litigants, insofar as disputes that might arise between the leaders of the two branches of a bicameral legislature about how to conduct litigation are not easily resolved. That is one reason why our democratic system of government ordinarily relies on the executive branch, which tends to have a more unitary, pyramid-like structure, to conduct litigation on behalf of the state.)

The problems created by the lack of clear hierarchy within sponsor groups take on increased importance when one recognizes that a constitutional challenge to an initiative may be brought several years after the measure's adoption. Constitutional case law and the membership of high courts may have changed in the interim period to create plausible grounds for challenge that might not have existed before. During the interim period, the group or coalition sponsoring the initiative may have splintered, dissolved, or evolved. What once might have been a more coherent voice may now be multiple, inconsistent voices.

For all of these connected reasons, initiative sponsors may lack credibility -- and, indeed, may be rogue actors whose current views, sentiments and desires bear little relation to those of the electorate that adopted the initiative in question, much less the electorate that exists at the time litigation is conducted.

Balancing the Need to Defend Initiatives With the Problems Posed by Sponsor Standing: A Plain-Statement Requirement of the Explicit Appointment of Sponsors

How, then, can we best reconcile, on the one hand, the need for someone to be able to defend initiatives when elected officials (perhaps for improper reasons) decline to defend them, with the concerns, on the other hand, that we have catalogued about initiative-sponsor standing?

In answering this question, we highlight a point that many persons involved in the discussion about sponsor standing may not always fully appreciate: The question of federal- court standing is a federal question, and thus a question over which the federal courts have the ultimate say.

State-law authorization might be relevant to federal standing -- as the Supreme Court, in the Arizona case, intimated -- but deciding what kind of state-law authorization is sufficient is left to the federal courts (and ultimately, to the Supreme Court). California courts can open their doors to initiative sponsors as widely as the state judges choose, but that choice can never force federal judges to accept initiative sponsors as full parties in federal court if federal standing policy and constitutional doctrine dictates otherwise.

In fashioning a workable balance between the competing concerns, we believe that federal courts should recognize the possibility of initiative-sponsor standing, but should also hold that the extent of state-law authorization that suffices to confer federal standing should be higher for initiative sponsors than for state legislators.

State cases that merely allow initiative sponsors to intervene to defend in state court should not be enough for federal sponsor standing, even though similar cases appear to be adequate for legislative standing in federal court. Instead, initiative sponsors should have standing in federal court only if state law explicitly appoints them to act on behalf of the people in litigation challenging the initiative.

That appointment could take the form of a state statute or state supreme court opinion directly saying so for all initiatives. Or the appointment could be effected by a provision in a particular initiative (passed by the voters) that deputizes a particular sponsor of that initiative as the party entrusted to defend the constitutionality of the law. It would also be sensible for such explicit deputization to spell out who within the sponsor organization(s) is entitled to make key litigation decisions and concessions, and also what the relative power of the initiative sponsor and the Attorney General/Governor should be when public officials may decide to defend the measure, but to defend it in ways that are different from the litigation strategy favored by the initiative sponsor.

Our Approach Is Suggested by the Words and Deeds of the Supreme Court

Is our proposal for a "clear statement rule" -- requiring, in state law, a clear and plain statement of initiative sponsor appointment before federal standing will be recognized -- consistent with what the Supreme Court suggested in the Arizona case? We think it is not only consistent with the case, but, indeed, suggested by a close reading of it.

Refer back to the crucial Supreme Court language excerpted above. The Court sharply contrasts initiative sponsors with legislative leaders, highlighting that sponsors (unlike legislators) are not "elected representatives." The Court also seems to distinguish between state law that "authorizes" legislators and state law that "appoint[s]" initiative sponsors to affirmatively make them "agents." "Authorizing" already elected legislative leaders should be less of a big deal than "appointing" persons who have not in any other capacity been chosen -- either directly or indirectly -- as representatives or agents by the electorate.

And, of course, the Court's language reminds everyone that past practice has distinguished legislators from initiative sponsors: The former have been "recognized" by the Court as having standing (in federal cases including the one from New Jersey), whereas the latter never have.

Indeed, a close look at the Court's own past practice demonstrates that the rules for initiative sponsors must be different than those for state legislatures: the Court has permitted initiative sponsors to participate in past federal cases to defend initiatives alongside state attorneys general. (An example of this is Term Limits Inc., USA v. Thornton.) And yet this past practice of permitting intervention in federal court did not lead the Court to think that the Arizona initiative sponsors had standing, even though, as to legislator standing, a past practice of permissible intervention in state court alongside a state attorney general (as in the New Jersey case) sufficed.

Our Approach is Fair to Initiative Proponents

But is the kind of plain-statement approach we advocate here fair to initiative sponsors and the initiative process itself? Again, we think so. It is not by any means impossible for initiative drafters to place into their initiatives language that formally and explicitly appoints a particular sponsor to represent the electorate in the event that the initiative is passed and then challenged. Indeed (as the City of San Francisco has pointed out) one initiative (involving a citizen commission to draw electoral district lines) that California adopted the same day it passed Proposition 8 did just that.

To be sure, the drafters and supporters of Proposition 8 might feel unjustly treated if the Ninth Circuit were to reject initiative-sponsor standing under the rule we propose, since at the time Proposition 8 passed, such a clear-statement requirement might not have been apparent to everyone. But that kind of generic unfairness occurs whenever the law evolves and new judicial tests and doctrines are formulated and applied to the case at hand. This phenomenon is really a byproduct of our system of constitutional adjudication, in which federal courts are limited to resolving actual cases and controversies.

Thus, as long as the new tests and doctrines that are being fashioned make general sense as a matter of vindicating constitutional values and principles going forward, there is no requirement (and, indeed, perhaps no judicial power) to carve out an exception for the litigants in a given case who didn't see (and perhaps couldn't easily have seen) the doctrinal clarification coming.


Vikram David Amar, a FindLaw columnist, is the Associate Dean for Academic Affairs and Professor of Law at the University of California, Davis School of Law. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.

Alan Brownstein is a Professor of Law and the Boochever and Bird Endowed Chair for the Study and Teaching of Freedom and Equality at the University of California, Davis, School of Law.

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