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Friday, November 18, 2011

Standing to appeal and Prop 8

The Supreme Court of California yesterday held unanimously that the proponents of Prop 8 have standing as a matter of state law to defend the constitutional validity of the provision and to appeal the adverse judgment, at least where state executive and legislative officials decline to defend the law. The court adopted a theory under which the proponents of the initiative represent the interests of the people and the state, declining to consider whether the proponents enjoy a unique personal interest in the validity of the law. It grounded this theory of standing in the initiative process itself, seeing proponent standing as necessary to the process of direct democracy itself.

The case now returns to the Ninth Circuit, which at least formally must consider whether that theory of state-law standing satisfies Article III, particularly the dicta in Arizonans for Official English. But the answer to this seems clear, since the Ninth Circuit in its opinion certifying the issue to the SCoC and the Perry plaintiffs in their briefing all seem to concede that Article III standing will follow from state-law standing. And this conclusion probably makes sense, if we think of the initiative sponsors as akin to legislators (or legislative sponsors) introducing an ordinary law (and who would have standing were the executive to decline to defend). So it appears the Ninth Circuit will have to reach the merits (which already have been briefed and extensively argued), although not likely in time for the case to get to SCOTUS this term.

On a related point, if official initiative proponents are going to have this power to intervene and defend (and the Perry opinion discussed other states recognizing a similar right for initiative sponsors), perhaps we also should think about what obligations come with this power, in particular what sponsors' positions tell us about the initiative's meaning and interpretation. Glenn raised this in an earlier post on the Mississippi personhood amendment (which failed overwhelmingly in the end). In comments to that post, I mentioned Glen Staszewski's The Bait-and-Switch in Direct Democracy, which considers the question of how sponsor arguments in the electoral process affect interpretation in postelection challenges. Perhaps another way of thinking of this is in terms of something like judicial estoppel--the arguments and positions proferred in the electoral process estop certain arguments in postelection litigation.

Posted by Howard Wasserman on November 18, 2011 at 11:52 AM in Civil Procedure, Constitutional thoughts, Current Affairs, Howard Wasserman, Law and Politics | Permalink

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Comments

I question how this would work. While I can see Staszewski's "bait and switch" point, it seems to me that the hypocrisy is always two-sided. The proponents always say that the initiative will have few collateral effects pre-vote and then say that the initiative has precisely those collateral effects post-vote; while the opponents always say that the initiative will lots of collateral effects pre-vote and turn around denying it has any such collateral effects post-vote. So why impose "estoppel" only on the proponents and not vice versa? If we are asking what "the people" really intended, it seems impossible to really say anything definitive given the people are a "they" and not an "it".

Posted by: TJ | Nov 18, 2011 8:12:06 PM

If I were going to draw an analogy to the legislative process, I would equate it with legislative rather than executive statements. But in suggesting a limitation on initiative proponents, I am starting from the view that there is something different (and heightened) about direct democracy that would impose different effects on proponents' statements as opposed to legislators' or governors'. Maybe it is the absence of other checks. Maybe it is the very directness of the process. (I think I need to re-read Glen's article).

Posted by: Howard Wasserman | Nov 18, 2011 12:25:53 PM

Suppose that initiative proponents are sometimes delegated the traditionally executive authority to litigate in defense of the initiative. Would it make sense to give their statements during the campaign the same kind of interpretive authority one would give to an executive signing statement for legislation? It seems to me that would be more than zero, but far less than "estoppel."

Posted by: William Baude | Nov 18, 2011 12:10:22 PM

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