Prop 8: New briefs in support of plaintiffs’ arguments on standing issue

May 2, 2011 at 5:39 pm 39 comments

H/t to Kathleen

By Adam Bink

Several briefs were filed today in support of the arguments made by the Perry plaintiffs on the standing issue. The first is from California Attorney General Kamala Harris. Notable excerpts (bolding mine):

An initiative’s official proponents have a great interest in the validity of a successful measure, but a limited role in California’s initiative process.Our law does not protect their post-adoption interest by giving proponents the authority to represent the state’s interest against a challenge to the validity of a measure that has become state law. And our law does not afford official proponents any legal right, arising solely from their role as proponents, that is injured by a judgment invalidating a law adopted by initiative. Instead, once an initiative measure is approved by the voters, a court considering a challenge to the measure’s validity may grant the measure’s proponents leave to intervene and participate in its defense, or as amicus curiae, but only to represent their own interests as individuals, not those of the state.


The limited role of initiative proponents in stimulating an initiative process is defined by statute. The voters, by adopting an initiative, do not elect initiative proponents to represent the state. In addition, the initiative power is a reservation of the legislative power of government. It does not encompass the executive authority to enforce the law once passed, or to defend the state’s interest in the validity of state law. Finally, to the extent that California courts have granted official proponents permissive leave to intervene in cases challenging the validity of a law adopted by initiative, they have done so to allow proponents to represent their own interests, not those of the state. The interests of the state are necessarily represented by the public officials exercising executive powers and against whom relief is sought.

The Attorney General “has charge, as attorney, of all legal matters in which the State is interested . . . ,” and “shall attend the Supreme Court and prosecute or defend all causes to which the State or any state officer is a party in his or her official capacity.” (Gov. Code, §§ 12511, 12512.) Accordingly, the Attorney General must give consent to a private person to sue in the name of the people. (People ex rel. Ferguson v. Bd. of Sup’rs,etc. (1869) 36 Cal. 595, 605.) She is the only person to whom authority is given by law to appear for the people in this Court. (People ex rel. Livingston v. Pacheco (1865) 29 Cal. 210, 213 [“A private person has not the right or power to use at his election, the name of the people for the purpose of obtaining redress for private wrongs”].) It is also clear that the Governor and Attorney General exercise discretion in performing these executive functions, particularly those involved in conducting litigation on behalf of the state. The Attorney General “is invested with a discretion which a private citizen may not coerce or court control.” (City of Campbell v. Mosk (1961) 197 Cal.App.2d640, 647-648.) Nor may a court annul the Attorney General’s decision,except in the event of extreme abuse of discretion. (Id. at p. 651.) Part of this discretion is to decide, with respect to asserting the interest of the state 18 in litigation, what is and what is not in the public interest. (Id. at p. 648.)The courts of appeal have consistently held that: The decision of the Attorney General whether to participate in a lawsuit, where the State has no financial interest at stake nor possible liability, is a decision purely discretionary and . . .exclusively within the province of the Attorney General’s office and not subject to judicial coercion. People v. Karriker (2007) 149 Cal.App.4th 763, 786 [quoting State of California v. Superior Court (1986) 184 Cal.App.3d 394, 398].)


State law protects no interest of initiative proponents as initiative proponents in the validity of a law they proposed for the same reasons that state law does not authorize initiative proponents to assert the state’s interest in the validity of state law. The exercise of the reserved legislative power by the electors ends with the adoption or rejection of the initiative measure, and any rights of initiative proponents necessarily end there, or earlier, with submission of a ballot argument. (See, ante, at pp. 11-12, 15.) Any continuing interest that proponents may have in defending an initiative enactment is recognized, at the discretion of the court considering an enforcement challenge, by granting permissive leave to intervene or to address the court as amicus curiae, but it is not protected as a matter of right. (See, ante, at pp. 21-25.) To the extent that the people, state officials, or the state itself have an interest in the validity of an adopted initiative, the authority to represent that interest lies with the public officials responsible for enforcing the law, and ultimately with the Governor and Attorney General. 13 (See, ante, at pp. 16-21.)

On pages 18-19, Harris also cites several cases in which the California Attorney General declined to appeal cases, or in others, did not defend statutes (citing AG Thomas Lynch’s decision to not defend Proposition 14 and also file an amicus brief arguing it was unconstitutional under the Equal Protection Clause. The whole thing, an extremely well-written brief, is worth reading. For even the layperson, there are simple and clear arguments citing numerous examples in case law.

The second is from a coalition of progressive faith groups, including a Metropolitan Community Church alliance, Progressive Jewish Alliance, Pacific Association of Reform Rabbis, Unitarian Universalist Association, and several other denominations. I am running out the door so I can’t read thru this one, but wanted to get the brief up. Both briefs can be found in their entirety below.

View this document on Scribd
View this document on Scribd

Entry filed under: Briefs, Prop 8 trial.

With Liberty and Justice For All Cleve Jones and LGBT New Mexicans deliver DOMA repeal signatures to Sens. Bingaman and Udall

39 Comments Add your own

  • 1. Rhie  |  May 2, 2011 at 5:46 pm


    • 2. LCH  |  May 2, 2011 at 7:19 pm


      • 3. Straight for Equality  |  May 2, 2011 at 7:23 pm

        • 4. Ronnie  |  May 3, 2011 at 6:03 am


  • 5. be4marriage  |  May 2, 2011 at 5:49 pm

    Kamala Rocks!

    • 6. Sagesse  |  May 2, 2011 at 6:05 pm

      It almost sounds like Harris knows what California law has to say about proponents rights.

      • 7. be4marriage  |  May 2, 2011 at 6:16 pm

        It’s a shame that the 9th Circuit Justices couldn’t just ask her. I bet she doesn’t have a 3 month summer break.

      • 8. Ed Cortes  |  May 3, 2011 at 6:27 am

        I knew I would like her as AG when I voted for her!!

  • 9. Kathleen  |  May 2, 2011 at 5:50 pm

    • 10. Ann S.  |  May 2, 2011 at 5:55 pm


      Thank you, Kathleen!

  • 11. Alan E.  |  May 2, 2011 at 6:18 pm

    Thanks Kathleen! I get some free time, and what do I do? Read legal documents.

    • 12. Kathleen  |  May 2, 2011 at 6:25 pm

      You’re welcome. Wouldn’t want you to have idle time on your hands.

  • 13. Dan R  |  May 2, 2011 at 7:37 pm

    File this in the “it makes a difference to elect Democrats” column. I need to keep looking because I often need reassurance.

  • 14. Franck  |  May 2, 2011 at 9:11 pm

    Urgh, bad news from Canada. The conservative party, which supports putting back the question of same-sex marriage on the table (and wants to abolish Canada’s famous healthcare system in favor of an American-style one), has won a majority of seats during the latest elections.

    Let’s hope they’re not that stupid, but with the way the world has been going on lately, I’m expecting anything.

    – Franck P. Rabeson
    Days spent apart from my fiancé because of DOMA: 1411 days, as of today.

    • 15. Straight Ally #3008  |  May 2, 2011 at 9:54 pm

      I’m truly embarrassed to admit I didn’t know that elections were being held in Canada, even though some Canadian friends had made some political postings on Facebook. Would the Canadian people really roll back a nationally granted right like that? I’d hope that it’s been a non-issue for so long that such a thing wouldn’t happen – how awful to contemplate.

      • 16. Bob  |  May 3, 2011 at 3:17 pm

        thanks for noticing Canada’s election,,,,, yes unfortunatley Conservatives won a majority,,,, they’ve had minority rule for a while,,, our Conservatives equal your Republicans,,,,, imagine that situation for yourselves not pretty,,,,

        so now we get to see what Mr Harpers real agenda is,,, Conservatives tend to favour as Frank put’s it American Style

        that’s why your fight is so important to us,,,, and why we have such high praise for President Obama,, and his style of leadership, hopefully you;re exposing the Republican lies about these issues will work in our favour here at home….

  • 17. Kathleen  |  May 2, 2011 at 9:21 pm

    UPDATE: Perry
    Amicus Brief of Center For Constitutional Jurisprudence in support of Proponents

    • 18. Alan E.  |  May 3, 2011 at 8:45 am

      They still had to get a dig in about the ruling that don’t have any merit when it comes to the issue at hand.

      On August 4, 2010, the District Court issued a 136-page opinion thatpurported to contain numerous findings of fact ostensibly discrediting all of the oral testimony while simply ignoring the extensive documentary andhistorical evidence supporting the rationality of Proposition 8, and articulat-ing conclusions of law that likewise simply ignored binding precedent of the Supreme Court and the Ninth Circuit, as well as persuasive authorityfrom every other state and federal appellate court to have considered theissues presented by the case.

      • 19. Carpool Cookie  |  May 3, 2011 at 11:08 am

        Run-On Sentence, much?

        (Is that some kind of razzle-dazzle strategy?)

  • 20. matthew  |  May 3, 2011 at 4:58 am

    Sorry for posting something so off-topic but I couldn’t help myself.

    I spend way too much time over on the NOMblog. Usually my stuff gets moderated away, but the moderator must be on vacation or something, as my posts have been showing up for the last couple days. This isn’t really a surprise, since even the NOM supporters mention getting censored from time to time. So use the chance to post your messages while you still can, lol. But please keep it civil. Even if Mike Brooks tells you that bio babies are more valuable to society than a baby who’s parents died in a car accident(which he basically did today)

    But lately I’ve noticed something that is actually kinda neat. Their regular commenters are well known to many here, along with their various favorite schticks. But lately they have started using the word ‘gay’. Also I’ve seen the term ‘same sex marriage’ several times lately, except without their usual ‘scare quotes’. They still use all sorts of unsavory terms, but this change stands out to me. Words are powerful.

    Their language seems to subtly be changing. FWIW

  • 21. Franck  |  May 3, 2011 at 6:29 am

    Well that’s a question not often asked.

    – Franck P. Rabeson
    Days spent apart from my fiancé because of DOMA: 1411 days, as of today.

    • 22. Ed  |  May 3, 2011 at 7:36 am

      YES YES!!!! Now that was AWESOME!!

    • 23. Sarah  |  May 3, 2011 at 4:29 pm

      Makes ya think… Love it, love it, love it! I like how he was gentle enough to urge future thought and future outcomes. Thanks for sharing this, Franck!

      This is something I would love to put on my Facebook page, but am hesitant to do for a few reasons… :(

  • 24. rocketeer500  |  May 3, 2011 at 8:31 am

    Does anyone know of a pdf link to this Brief? Scribd is blocked from my computer at work–yeah, yeah, I know…. but would like to read it, nonetheless. :)

    • 25. Kathleen  |  May 3, 2011 at 8:55 am

      Send me an email: “Prop8tt at gmail dot com” and I can send the briefs as pdf files.

  • 26. Mark  |  May 3, 2011 at 9:45 am

    A small majority of voters MAY have passed Proposition 8, but a majority of voters ALSO elected not only Arnold Schwarzanegger as Governor and Jerry Brown as Attorney General, and subsequently elected Jerry Brown as Governor and Kamala Harris as Attorney General. When they were running for election, they both stated that they would NOT defend Proposition 8. If the proponents wanted elected officials to defend Proposition 8, they should have worked hard to put a Governor and an Attorney General into Sacramento that would defend this [unconstitutional] proposition. Until it is overturned (and it will be) not one marriage license has been issued in the state of California to a same sex couple. We elect officials to uphold laws, as they are doing. But when they do not agree with the law, they need not defend it.

  • 27. Reformed Conservative  |  May 3, 2011 at 10:25 am

    Ahhhhh. My daily dose of intelligence. Thanks, Ms Harris.

  • 28. Kathleen  |  May 3, 2011 at 10:28 am

    UPDATE: Perry

    Amicus Brief of League of Women Voters of California in support of plaintiffs – filed yesterday with the California Supreme Court.:

    • 29. Kathleen  |  May 3, 2011 at 10:56 am

      And another amicus brief

      Equality California, National Center for Lesbian Rights and Lambda Legal Defense and Education Fund in support of Plaintiffs

    • 30. Kathleen  |  May 3, 2011 at 2:41 pm

      And another:

      Amicus Brief of Pacific Legal Foundation, et al, in support of Proponents:

      • 31. Mark  |  May 3, 2011 at 3:15 pm

        Correct me if I am wrong, but this last filing deals with standing. Even if the proponents are granted standing, if the proposition is still ruled unconstitutional, it makes no difference. If that is the case, let them have their day in court. The burden for them is still to show how this proposition could possibly be deemed constitutional. When it is found ultimately to be unconstitutional, the point is moot.

      • 32. Kathleen  |  May 3, 2011 at 3:22 pm

        The entire case in the California Supreme Court deals with standing. Specifically, the 9th Circuit panel asked the California Supreme Court to determine whether there is anything in California law that might grant the Proponents a particular right to defend the law in federal court. That is what this whole side-trip through the California court is about.

    • 33. Kathleen  |  May 3, 2011 at 3:50 pm

      And another:

      County of Santa Clara, et al, in support of Plaintiffs

      • 34. Mark  |  May 3, 2011 at 9:36 pm

        This brief was excellent!

    • 35. Kathleen  |  May 4, 2011 at 11:32 am

      And another:

      Amicus brief of Jon B. Eisenberg and Professor Laurie L. Levenson in support of Plaintiffs

    • 36. Kathleen  |  May 5, 2011 at 12:32 pm

      And another..

      This one by Judicial Watch in support of Proponents:

  • 37. SoCal Dave  |  May 3, 2011 at 12:51 pm

    I’m sure every brief matters, but I especially appreciate seeing these two. Kamala Harris (rock star!) lays it out plain and simple. And the faith-based coalition shows that they are the ones whose religious freedoms were taken away by Prop.8, not the other way around.
    Thanks for posting!

  • 38. takemusu  |  May 3, 2011 at 8:14 pm

    Makes me proud to be a Californian. Thank you Kamala and Prop8TT family.

  • 39. Ann S.  |  May 3, 2011 at 10:29 pm

    Did anyone post this NYT editorial yet?

    Fit to Rule on Same-Sex Marriage

    Proposition 8’s lawyers argued that the ruling should be tossed out because he had had a duty to recuse himself, or at least disclose the relationship at the start of the case.

    The claim is bogus. It is well established that personal characteristics, like race, sex, ethnicity, religion or sexual orientation, do not by themselves invoke the rule that judges must step aside if their “impartiality might reasonably be questioned.”

    Our justice system relies on trusting members of the nation’s diverse bench to put aside their personal characteristics and abide by their duty of even-handedness. Any other approach would invite foolish and unacceptable results — female judges being kept from hearing rape or sexual discrimination cases, or black judges from hearing cases involving racial bias or civil rights.


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