Perry v. Brown
| Decision Date | 17 November 2011 |
| Docket Number | No. S189476.,S189476. |
| Citation | 134 Cal.Rptr.3d 499,52 Cal.4th 1116,2011 Daily Journal D.A.R. 16637,11 Cal. Daily Op. Serv. 13950,265 P.3d 1002 |
| Court | California Supreme Court |
| Parties | Kristin M. PERRY et al., Plaintiffs and Respondents,v.Edmund G. BROWN, Jr., as Governor, etc., et al., Defendants;City and County of San Francisco, Intervener and Respondent;Dennis Hollingsworth et al., Interveners and Appellants. |
OPINION TEXT STARTS HERE
Law Offices of Andrew P. Pugno, Andrew P. Pugno; Alliance Defense Fund, Brian W. Raum, James A. Campbell; Cooper and Kirk, Charles J. Cooper, David H. Thompson, Howard C. Neilson, Jr., Nicole J. Moss and Peter A. Patterson for Interveners and Appellants.Edwin Meese III; John C. Eastman and Karen J. Lugo for Center of Constitutional Jurisprudence as Amicus Curiae on behalf of Interveners and Appellants.Sharon L. Browne, Harold E. Johnson and Damien M. Schiff, Sacramento, for Pacific Legal Foundation, Ward Connerly, Glynn Custred, Ron Unz and The Howard Jarvis Taxpayers Association as Amici Curiae on behalf of Interveners and Appellants.Pacific Justice Institute, Sacramento, Kevin T. Snider, Matthew B. McReynolds and Kelly A. Way for Dr. Joshua Beckley as Amicus Curiae on behalf of Interveners and Appellants.James Joseph Lynch, Jr., Sacramento, for Margie Reilly as Amicus Curiae on behalf of Interveners and Appellants.Julie B. Axelrod for Judicial Watch, Inc., as Amicus Curiae on behalf of Interveners and Appellants.Boies, Schiller & Flexner, Oakland, David Boies, Jeremy M. Goldman, Theodore H. Uno; Gibson, Dunn & Crutcher, San Francisco, Theodore B. Olson, Matthew D. McGill, Amir C. Tayrani, Theodore J. Boutrous, Jr., Christopher D. Dussealt and Enrique A. Monagas for Plaintiffs and Respondents.Kendall Brill & Klieger, Los Angeles, Laura W. Brill, Nicholas F. Daum, Clifford S. Davidson and Ashlee R. Lynn for Jon B. Eisenberg and Professor Laurie L. Levenson as Amici Curiae on behalf of Plaintiffs and Respondents.Miguel Márquez, County Counsel (Santa Clara), Lori E. Pegg, Assistant County Counsel, Juniper L. Downs, Acting Lead Deputy County Counsel, Jenny S. Yelin, Impact Litigation Fellow; Atchison, Barisone, Condotti & Kovacevich, John G. Barisone, City Attorney (Santa Cruz); John A. Russo, City Attorney (Oakland), Barbara J. Parker, Chief Assistant City Attorney; John C. Beiers, County Counsel (Orange), Glenn M. Levy, Deputy County Counsel; Eric Danly; Dana McRae, County Counsel (Santa Cruz); and Bruce D. Goldstein County Counsel (Sonoma), for County of Santa Clara, County of Santa Cruz, City of Oakland, City of Cloverdale, County of San Mateo, City of Santa Cruz and County of Sonoma as Amici Curiae on behalf of Plaintiffs and Respondents.Dennis J. Herrera, City Attorney, Therese M. Stewart, Chief Deputy City Attorney, Danny Chou, Chief of Complex and Special Litigation, Vince Chhabria, Mollie M. Lee and Christine Van Aken, Deputy City Attorneys, for Intervener and Respondent.Caldwell, Leslie & Proctor, Los Angeles, David C. Codell, Albert Giang, Alastair Agcaoili; Sharon P. Minter; and Jon W. Davidson for Equality California, National Center for Lesbian Rights and Lambda Legal Defense and Education Fund, Inc., as Amici Curiae on behalf of Intervener and Respondent.Greines, Martin, Stein & Richland, Los Angeles, Robin Meadow and Cynthia E. Tobisman for League of California Women Voters of California as Amicus Curiae on behalf of Intervener and Respondent.Eric Alan Isaacson, San Diego; Susan Kay Weaver; Stacey M. Kaplan; and Rev. Silvo Nardoni for California Faith for Equality, California Council of Churches, General Synod of the United Church of Christ, Universal Fellowship of Metropolitan Community Churches, The Episcopal Bishops of California and Los Angeles, Progressive Jewish Alliance, Pacific Association of Reform Rabbis, Unitarian Universalist Association and Unitarian Universalist Legislative Ministry California as Amici Curiae on behalf of Intervener and Respondent.Kamala D. Harris, Attorney General, Manuel M. Medeiros, State Solicitor General, David Chaney, Chief Assistant Attorney General, Douglas J. Woods, Acting Assistant Attorney General, Michael Troncoso, Senior Counsel, Constance L. LeLouis and Tamar Pachter, Deputy Attorneys General, as Amici Curiae.CANTIL–SAKAUYE, C.J.
At the request of the United States Court of Appeals for the Ninth Circuit, we agreed to decide a question of California law that is relevant to the underlying lawsuit in this matter now pending in that federal appellate court. ( Perry v. Brown (9th Cir. No. 10–16696); see Cal. Rules of Court, rule 8.548.) As posed by the Ninth Circuit, the question to be decided is “[w]hether under article II, section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure possess either a particularized interest in the initiative's validity or the authority to assert the State's interest in the initiative's validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so.”
In addressing this issue, we emphasize at the outset that although in this case the question posed by the Ninth Circuit happens to arise in litigation challenging the validity, under the United States Constitution, of the initiative measure (Proposition 8) that added a section to the California Constitution providing that “[o]nly marriage between a man and a woman is valid or recognized in California” (Cal. Const., art. I, § 7.5), the state law issue that has been submitted to this court is totally unrelated to the substantive question of the constitutional validity of Proposition 8. Instead, the question before us involves a fundamental procedural issue that may arise with respect to any initiative measure, without regard to its subject matter. The same procedural issue regarding an official initiative proponent's standing to appear as a party in a judicial proceeding to defend the validity of a voter-approved initiative or to appeal a judgment invalidating it when the public officials who ordinarily provide such a defense or file such an appeal decline to do so, could arise with regard to an initiative measure that, for example, (1) limited campaign contributions that may be collected by elected legislative or executive officials, or (2) imposed term limits for legislative and executive offices, or (3) prohibited government officials from accepting employment after leaving office with companies or individuals that have benefited from the officials' discretionary governmental decisions while in office. The resolution of this procedural question does not turn on the substance of the particular initiative measure at issue, but rather on the purpose and integrity of the initiative process itself.
As we discuss more fully below, in the past official proponents of initiative measures in California have uniformly been permitted to participate as parties—either as interveners or as real parties in interest—in numerous lawsuits in California courts challenging the validity of the initiative measure the proponents sponsored. Such participation has routinely been permitted (1) without any inquiry into or showing that the proponents' own property, liberty, or other personal legally protected interests would be specially affected by invalidation of the measure, and (2) whether or not the government officials who ordinarily defend a challenged enactment were also defending the measure in the proceeding. This court, however, has not previously had occasion fully to explain the basis upon which an official initiative proponent's ability to participate as a party in such litigation rests.
As we shall explain, because the initiative process is specifically intended to enable the people to amend the state Constitution or to enact statutes when current government officials have declined to adopt (and often have publicly opposed) the measure in question, the voters who have successfully adopted an initiative measure may reasonably harbor a legitimate concern that the public officials who ordinarily defend a challenged state law in court may not, in the case of an initiative measure, always undertake such a defense with vigor or with the objectives and interests of those voters paramount in mind. As a consequence, California courts have routinely permitted the official proponents of an initiative to intervene or appear as real parties in interest to defend a challenged voter-approved initiative measure in order “to guard the people's right to exercise initiative power” ( Building Industry Assn. v. City of Camarillo (1986) 41 Cal.3d 810, 822, 226 Cal.Rptr. 81, 718 P.2d 68 ( Building Industry Assn.)) or, in other words, to enable such proponents to assert the people's, and hence the state's, interest in defending the validity of the initiative measure. Allowing official proponents to assert the state's interest in the validity of the initiative measure in such litigation (along with any public officials who may also be defending the measure) (1) assures voters who supported the measure and enacted it into law that any residual hostility or indifference of current public officials to the substance of the initiative measure will not prevent a full and robust defense of the measure to be mounted in court on the people's...
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