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CA Supremes get it wrong on representing the state

Timothy Kincaid

November 17th, 2011

The California Supreme Court has weighed in with their opinion as to who can appeal a federal decision in which the State itself is the defendant. Should elected officials which represent the state decide to accept the decision of the federal court rather than appeal, individuals or groups who disagree with the decision of the elected representatives can themselves assume the mantle of “the state” and act as though the electorate had chosen them instead.

In response to the question submitted by the Ninth Circuit, we conclude, for the reasons discussed above, that when the public officials who ordinarily defend a challenged state law or appeal a judgment invalidating the law decline to do so, under article II, section 8 of the California Constitution and the relevant provisions of the Elections Code, the official proponents of a voter-approved initiative measure are authorized to assert the state’s interest in the initiative’s validity, enabling the proponents to defend the constitutionality of the initiative and to appeal a judgment invalidating the initiative.

This is, I believe, an ill conceived decision, and not only because of its impact on Perry v. Schwarzenegger.

In California, initiatives serve a peculiar function. Decades of legislator-crafted districting and closed-structure power building have left the legislature in the control of a small handful of people. It is not infrequent that a large majority of the people of the state have a strong position that is in opposition to that which the oligarchy takes. So, from time to time the electorate will pass some initiative that is intended to serve as a “wake-up” to Sacramento. (1978’s Proposition 13, which limited the extent to which the state could increase spiraling property taxes, is an example.)

But Californians also have an erratic or whimsical approach to initiatives at times. And then we end up with the people placing a ban on eating horse meat.

But whether serious or wacky, initiatives are at times hastily or ignorantly drafted and – if applied literally – could be disastrous to the functioning of the state. So courts step in and toss out extreme provisions and, assuming that the end result addresses the concerns of the voters, the matter is concluded.

But that assumes that responsible parties can weigh the value of appeal, the importance of language, the constitutionality of various proposals and the way in which an initiative impacts other areas of law. And it also assumes that the State, in its official capacity, will conduct itself with honor and present its case based on the constitutions of the nation and the state, legal precedent, honest testimony, and cogent argument. For these purposes, the State of California elects an Attorney General.

But this decision opens the door for extremist wackos – of all political bents – to throw the state into chaos. If a Governor and Attorney General are not entitled to determine which provisions are worth fighting for and which can be conceded, and if we turn that decision over to idealists who believe that every word in their manifesto is of extreme importance, then my state is slated for some very confusing times.

The California Supreme Court, I believe, got caught up in the emotion of Proposition 8 and “the will of the people” and did not carefully consider the bigger question of representation.



Mark F.
November 17th, 2011 | LINK

Yes, we have a silly ban on horse meat, but how many dozens of idiotic laws have been passed in the legislature and signed by the governor?

Giving the executive branch a carte blanche de facto veto over initiatives is bad policy and the court was completely right in its decision.

Of course, there is no perfect system, but I don’t think the state is going to be plunged into chaos. This sounds like the rhetoric of NOM.

Even 2 brilliant lawyers could not persuade one justice to vote against standing.

Timothy Kincaid
November 17th, 2011 | LINK


The issue is whether the decision for appeal should be made by the Governor and Attorney General (elected representatives) or by an advocacy organization who answers to no one but their particular deity.

(Let me also note that “Executive Branch” in CA consists of Gov and Atty Gen., which may be of different political factions or ever different party – as was the case with Perry).

Jerry Brown refused to appeal and the people of the State had an opportunity to react and respond. They immediately promoted him from Attorney General to Governor.

On the other hand, if you are a long-time Californian, let me just say one word about who the Supremes have turned over our political appeal process: LaRouche

Ben In Oakland
November 17th, 2011 | LINK

Mark I agree with you AND Timothy.

The original mariage decision was courageous. The state trial decision on overturning prop. 8, with its language about it being perfectly ok to “carve out” of equality a narrow slice of inequality was cowardly in the extreme, in my eye pretty much invalidating their reasoning and their credentials and credibility in their original decision FOR marriage equality.

I suspect– but cannot prove– that the recent Judicial elections in Iowa also played a part in this decision.

November 17th, 2011 | LINK

dont laugh to much about the horse meat law… here in florida there were arrest last year down around miami because people were killing folks horses and butchering and selling the meat… then again it is florida!

Steven in Oakley
November 17th, 2011 | LINK

When the question of standing came up in this case my first reaction was to agree with you that it’s the state’s exclusive purview to defend or not defend court actions on its laws.

However, I think that does not serve the People of California well. We have an initiative process because the People don’t believe their government will always enact the will of the People. That is the crux of the entire question of standing. We already take things out of the government’s purview because we don’t trust it. How is this really any different?

In the end I think it’s better for our community if the case goes forward and is answered by the courts. That is what the court is there for: to determine constitutionality of laws.

November 17th, 2011 | LINK

These quislings need to go.

Mark F.
November 17th, 2011 | LINK

“On the other hand, if you are a long-time Californian, let me just say one word about who the Supremes have turned over our political appeal process: LaRouche.”

You can do better than that. LaRouche was rebuffed at the polls and would have no standing since his initiatives never passed. FAIL.

In any case, the courts still retain the power to declare things unconstitutional.

The court was correct in its decision.

Mark F.
November 17th, 2011 | LINK

It also seems odd that people wouldn’t want to push this case up to SCOTUS before we might get some GOP court appointments, assuming Obama is not reelected. A 2020 “Gingrich Court” with 1 or 2 liberals/moderates might not be who we want to present this case to.

Timothy Kincaid
November 17th, 2011 | LINK

Mark F,

If you’re a Californian, you know what kind of nuts we have here drafting initiatives. LaRouche is but an example.

Sure his initiatives didn’t win at the polls. But he could have. And a court decision that would turn the defense of our state’s interest over to Lyndon LaRouche – under any scenario – is one that is pretty scary.

Or ignore LaRouche. Would you prefer that the proponents of 1986’s Prop 63 (followed by 1988’s Prop 227) or 1994’s Prop 187 be the official caretakers of the interests of the state? While the people who voted for those initiatives did not do so out of malice, I think that some of the proponents of those initiatives were unrepentantly racist.

For me the issue is pretty straight forward. Initiative drafters answer to no one – statewide elected officials answer to the electorate.

And while gerrymandering may have made it impossible to recall a legislator, we still can remove a governor. And if we are willing to recall Davis over DMV rates, it’s hard to see how Brown’s refusal to appeal the court decision was thwarting the people’s will when we went on to friggin vote him in as Governor.

Mark F.
November 17th, 2011 | LINK

“And if we are willing to recall Davis over DMV rates, it’s hard to see how Brown’s refusal to appeal the court decision was thwarting the people’s will when we went on to friggin vote him in as Governor.”

Oh come now, a lot of people are not willing to vote someone out of office over just one issue.

I just fail to see the parade of horrors if every once in a while someone besides the state gets to defend an initiative in court. The courts have to rule on the arguments presented, not whether or not they like the attorneys who show up in court.

November 18th, 2011 | LINK

I think the problem with calling it a de facto veto by the executive branch is that this ignores the role of the judicial branch. The executive branch doesn’t have the opportunity to decide whether or not to defend the law if the trial court hasn’t ruled against it to begin with. If we conceptualize the voting public as a “fourth branch” of government, wouldn’t it be more accurate to say that not allowing proponents to appeal is a check on that branch coming from the combined decisions of two branches (judicial and executive), rather than a veto power from one? Arguably, it might even be a check from all three other branches if you assume the ballot initiative was taken up in the first place because the legislature refused to pass the law. You can decide for yourself whether you think the actions of those two (or three) branches combined should have that checking power over the voters, but at least I think that’s a more accurate way to frame the issue than only looking at the role of the executive.

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