PLF's Official Statement on Hollingsworth v. Perry, the Supreme Court's Prop. 8 case


Although Pacific Legal Foundation takes no position on the constitutionality of Proposition 8, PLF submitted an amicus brief to the U.S. Supreme Court solely on the issue of standing.  PLF argues that sponsors of any successful California initiative have standing to defend the measure in court if elected officials decline to do so.  Today, the U.S. Supreme Court denied federal standing to sponsors of state initiatives.

PLF attorney Harold Johnson, the author of PLF’s amicus brief in Hollingsworth v. Perry, had this to say:

“That whirring sound is Gov. Hiram Johnson, the sponsor of California’s initiative process, spinning in his grave, because the rights that he championed for California voters were dealt a major blow today.  Whether one opposes or supports Proposition 8, it’s disturbing that the U.S. Supreme Court has seriously undercut California’s venerable institutions of direct democracy.  By declaring that the sponsors of successful California initiatives won’t be allowed to defend their ballot measures in federal court, the U.S. Supreme Court empowered the political class and diluted the people’s right to participate in government in a direct, hands-on way.  In essence, this ruling lets elected officials pull the plug on duly enacted initiatives simply by refusing to defend them against federal lawsuits.  California’s Constitution denies any politician the power to directly veto a ballot measure, but today’s U.S. Supreme Court ruling gives politicians a veto through the back door. 

“In a solidly reasoned opinion, the California Supreme Court unanimously held that an initiative’s sponsors have authority to defend the measure if elected officials sit on their hands.  But the U.S. Supreme Court’s majority chose not to defer to the California justices’ reading of the state’s constitutional and legal framework.  The U.S. Supreme Court majority objected that an initiative’s sponsors don’t have any so-called ‘agency,’ or employer-employee, relationship with the state.   But this requirement would turn the initiative process upside down, because it would force the sponsors to take orders, as ‘agents,’ from the very politicians who refuse to defend the measure and want it killed.

“Future initiatives may have to clearly designate their sponsors as agents of the state with authority to provide a legal defense.  However, there’s no guarantee that even an explicit provision of this kind will be honored, given the U.S. Supreme Court’s failure to recognize that California’s Constitution and statutes already deputize sponsors for this purpose.

“The California initiative is meant to allow voters to engage in self-government without being checkmated by officeholders.  Today’s ruling inverts that power relationship between politicians and the people.  If initiatives can be denied a defense at the whim of the governor or the attorney general, this puts the politicians back in the driver’s seat, and voters can’t take the wheel unless elected officials give their permission.”