November 17, 2011

Justices say happy birthday to the California initiative process

By Joshua P. Thompson Senior Attorney

The California initiative process is a century old this year, and the state Supreme Court delivered a fitting birthday gift today.

The justices rescued the initiative process from being fundamentally crippled, by holding that sponsors of a voter-approved measure may defend it in court when elected officials refuse to do so – or can’t be trusted to do so credibly.

The unanimous ruling came in response to a request by the Ninth Circuit, which asked whether California law gives sponsors standing in such instances.   Although the question was triggered by the federal litigation over Proposition 8 – the marriage initiative, which both the governor and the attorney general declined to defend on appeal — today’s ruling isn’t about the rights or wrongs of that particular measure; it’s about the whether the initiative process, in general, will be allowed to continue as a sturdy vehicle for voters’ rights.

PLF submitted a friend-of-the-court brief that urged the right of sponsors to defend their handiwork, and we were joined by individuals and an organization well-known for employing the initiative process to advance liberty: Ward Connerly (chief supporter of Proposition 209); Glynn Custred (Prop. 209’s co-author); Ron Unz (sponsor of Proposition 227); and the Howard Jarvis Taxpayers Association.

Granted, the mere enactment of an initiative doesn’t make it constitutional; a voter-approved measure might not necessarily be upheld on its merits.  But it can’t be allowed to die by default, by lack of any defense being offered.    Any other holding would be an attack on the central purpose of the initiative process, which is to give voters a direct role in making the laws that govern them, without any roadblocks thrown up by politicians.   We pointed out that the sponsors are uniquely positioned, because of the duties that devolve on them as “initiators” of their measure, to defend it if elected decline to.

The court’s ruling aligned with our arguments.  “It is essential to the integrity of the initiative process … that there be someone to assert the state’s interest in an initiative’s validity on behalf of the people when the public officials who normally assert that interest decline to do so,” Chief Justice Tani Cantil-Sakauye wrote.   She pointed out that California courts have a “uniform practice of permitting the official proponents … to intervene or to appear as real parties in interest in cases challenging the validity of a voter-approved initiative measure.”

PLF had cautioned against allowing “the back-door introduction of a veto power by elected officials” who might try to repeal a measure through inaction.  The chief justice shared this concern: “Neither the governor, the attorney general, nor any other executive or legislative official has the authority to veto or invalidate an initiative measure that has been approved by the voters,” she wrote.

Bottom line: Wherever you stand on Prop. 8 – and PLF takes no position – the integrity of the 100-year-old initiative process has been affirmed, so we can happily say that Hiram Johnson isn’t turning over in his grave.

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