Prop 8 Question

Howard Schweber schweber at polisci.wisc.edu
Mon Mar 15 12:42:15 PDT 2010


The problem, of course, is that when a statute is enacted by initiative, 
the chances that the state will choose not to defend it go up because 
the law has no natural constituency in the government.  Think of it this 
way:  the reason voters do not have standing to appear in court in 
response to a challenge to a law is that they are subject to virtual 
estoppel (a real albeit obscure bit of civil procedure doctrine):  their 
position is already represented another party, in this case by their 
elected government, and they are therefore bound by the outcome.  Okay, 
a better analogy is to the rules for intervening -- the idea is the 
same.  There is no separate and independent interest, hence there is no 
justification for the presence of additional parties  The Lockean 
fiction is that we have all agreed to the state's interpretation of the 
statute and its arguments in its defense.

In the initiative case, uniquely, there is no basis for the operation of 
that Lockean fiction.  Constitutionally, the absence of a reason to rely 
on the operation of ordinary political processes has been recognized in 
the past as the basis for exceptional doctrinal principles (Carolene, 
Baker).  Put those pieces together, and you have an argument.

Howard Schweber
UW-Madison





Eric Segall wrote:
> It was dicta, but in the case cited by Professor Karlan, the Court said the following:
>
> "AOE and its members, however, are not elected representatives, and we are aware of no Arizona law appointing initiative sponsors as agents of the people of Arizona to defend, in lieu of public officials, the constitutionality of initiatives made law of the State. Nor has this Court ever identified initiative proponents as Article III qualified defenders of the measures they advocated."
>
> Doesn't this make significant sense? Why would citizens proposing or supporting a state constitutional amendment be allowed to defend that amendment in federal court once it is ratified. If they could, so could anyone in favor of the amendment and that doesn't sound right. Do these initiative proposers/supporters have the right to appeal if California does not? I think the question answers itself.
>
> Eric 
>
>   
>>>> <karlan at stanford.edu> 3/15/2010 2:11 PM >>>
>>>>         
> I'm working on a short paper that discusses this issue, in connection with rationality review and its use of hypothesized justifications more generally.  There's actually some interesting law on the question, with the Ninth Circuit in Yniguez v. State of Arizona, 939 F.2d 727(9th Cir. 1991), offering its view, and the Supreme Court in Arizonans for Official English v. Arizona, 520 U.S. 43 (1997) -- the appeal from Yniguez -- expressing "grave doubts" that the Ninth Circuit is right.
>
> Pam Karlan
>
>
> ----- Original Message -----
> From: "Steve Sanders" <stevesan at umich.edu>
> To: "Howard Schweber" <schweber at polisci.wisc.edu>
> Cc: conlawprof at lists.ucla.edu, conlawprof-bounces at lists.ucla.edu 
> Sent: Monday, March 15, 2010 10:14:36 AM GMT -08:00 US/Canada Pacific
> Subject: Re: Prop 8 Question
>
>
> Doesn't this, though, confuse "the people" with the proponents of the
> initiative?  Proponents, it seems to me, are no more than proponents
> regardless of whether a law is enacted by legislators or directly by
> citizens.  
>
> Legislators have standing in similar circumstances, because they're the
> ones who actually enact laws by voting for them, thus giving them in
> interest in assuring that the laws are given effect.  But mere proponents
> of a law (i.e., a group that campaigned for the law's passage) likely would
> not have the same standing.  Working actively for the passage of an
> ordinary law -- setting up a web site, going door to door, maybe even
> drafting the legislative language that ultimately becomes law, as many
> lobbyists do -- ordinarily does not confer an interest sufficient to
> support standing. 
>
> Here, rather than legislators, it was the citizens collectively who enacted
> Prop 8.  But how/why does that endow the proponents with a greater interest
> than where a law is passed by the legislature?  In both cases, even if they
> wrote the language and campaigned for its support, proponents are merely
> advocates, no more and no less.  
>
> If we analogize referendum voters to legislators, perhaps there's some
> argument that any citizen who voted for the referendum should have standing
> to defend it.  But that's obviously messy and unworkable.  That's something
> we assume citizens have delegated to the government.  
>
> But I don't understand the argument, which seems implicit in Howard's
> explanation, that in voting for Prop 8, the citizens of California somehow
> delegated responsibility for defending it -- including identifying and
> articulated the relevant state/public interests -- to the private group of
> advocates.  A lobbyist/advocate who wrote a bill later introduced by a
> legislator would not have standing to defend the measure once it is
> enacted, so I don't see how the lobbyist/advocates who wrote Prop 8 have
> some special claim that it's "their" law.  It's not.  It's the people's
> law.  And so far as I know, at no point did the people collectively decide
> to hire the Alliance Defense Fund as their attorneys.
>
> Steve Sanders
>
>
>
> On Mon, 15 Mar 2010 11:35:21 -0500, Howard Schweber
> <schweber at polisci.wisc.edu> wrote:
>   
>> Philosophically, of course, "the sovereign" remains the people.  I don't 
>> mean this to be cute -- a referendum system is set up with precisely the 
>> thought that at times the elected representatives who compose the 
>> government may not enact laws that the people want, and that there 
>> should therefore be a way to bypass the institutional framework of 
>> government.  Whatever one may think of initiatives as a mode of 
>> governance, from a standing perspective this creates a very coherent and 
>> sensible argument *not* to accept the argument that once a referendum is 
>> adopted proponents' standing is exhausted. (The religious agenda does 
>> not seem relevant to me, here.)
>>
>> Howard Schweber
>> Dept. of Poli Sci
>> UW Madison
>>
>>
>>
>>
>>
>>
>> stevesan at umich.edu wrote:
>>     
>>> I guess a formal answer to Eric's question would be that another
>>> defendant successfully intervened; there wouldn't be a default judgment
>>> because there is a party willing to defend.
>>>
>>> But this raises what I think is the related but more fundamental
>>> question: why should a private group (whose members and counsel, for
>>>       
> what
>   
>>> it's worth, profess an overtly religious agenda) be allowed to decide
>>>       
> and
>   
>>> articulate what California's legitimate interests are in denying
>>>       
> equality
>   
>>> to same-sex couples?
>>>
>>> It's not unheard of for private parties to intervene as defendants in
>>> constitutional lawsuits -- a group of affirmative action supporters did
>>> so in Grutter.  But has a private group ever been allowed to step into
>>> the state's shoes and defend at the trial court level when the state
>>> declines to do so?
>>>
>>> That this is a ballot initiative, not an ordinary law, has some
>>> relevance.  It's 9th Cir law that the proponents of an initiative have a
>>> presumptive interest in defending their handiwork against challenge. 
>>>       
> But
>   
>>> this strikes me as unsound.  Once something becomes law, it's no longer
>>> some private group's property or idea; it is now the sovereign's law,
>>>       
> and
>   
>>> if the sovereign defaults in its defense, that should be the end of the
>>> matter.
>>>
>>> Steve Sanders
>>>
>>>
>>>
>>> Sent via BlackBerry by AT&T
>>>
>>> -----Original Message-----
>>> From: "Eric Segall" <esegall at gsu.edu>
>>> Date: Mon, 15 Mar 2010 10:37:51 
>>> To: <VOLOKH at law.ucla.edu>; <conlawprof at lists.ucla.edu>
>>> Subject: Prop 8 Question
>>>
>>> A while back we discussed whether there was jurisdiction over this case
>>> in light of the absence of an official state defendant. I have a more
>>> basic but related question. Why wouldn't a default judgment be entered
>>>       
> in
>   
>>> light of the absence of a state defendant? This probably raises the more
>>> important question of what happems to a state constitutional amendment
>>> that the state does not want to enforce. I think the answer is, go to
>>> state court which is not bound by Article III, but I am not sure. Also,
>>> how is the State of California bound by a case they are not defending in
>>> the absence of a default judgment?
>>>
>>> Any thoughts would be appreciated and I am definitely not suggesting I
>>> have good or any answers to these questions.
>>>
>>> Thanks,
>>>
>>> Eric
>>>
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