Prop 8 and the Initiative Process in California

The Supreme Court's decision regarding California's Prop 8 was less about the right of homosexuals to marry and more about legal procedure.  While the 5-4 vote did result in the final (assuming no rehearing) defeat of Prop 8, the court did not explicitly or implicitly endorse the right to "gay marriage".  One would have to look to the court's opinion in the DOMA case for such an inference.

The Prop 8 decision raised a very important issue for Californians and residents of all other states which allow for direct democracy through the initiative process:  What is the obligation of the executive (governor and attorney general) to defend a lawfully enacted statute or Constitutional amendment created through the initiative process?  At the moment, the answer appears to be “none.”

Article 18 of the California Constitution provides two means by which the Constitution can be amended:

1.  by a 2/3rds vote of the assembly and senate followed by a simple majority vote of the electorate in a general election; or

2.  by obtaining the signatures of 8% of the number of votes cast in the previous gubernatorial election and a simple majority vote of the electorate in a general election.

The California Constitution was amended in 1911, at the urging of Governor Hiram Johnson, to add the initiative process contained in the section two above.  Those who amended the Constitution obviously equated a 2/3rd vote by both houses of the legislature with the signatures of 8% of the voters of the previous gubernatorial election, since a simple majority vote by the electorate in a general election is common to both methods of amending the Constitution.

I wonder what politics were like in 1911 that the governor, the legislature, and the people of California felt that the signatures of 8% of those who had voted for governor was politically equal to a 2/3rds vote of both houses of the legislature.  A 2/3rds vote in both houses of the legislature is sufficient to override a governor’s veto of proposed legislation (which happens very infrequently).  The veto represents the executive's ability to check the power of the legislature.  Surely the difficulty with communications, transportation, literacy and voter eligibility in 1911 made the prospect of obtaining so many signatures more arduous than in 2013.  Still, it seems a very low bar.

If the legislature passes a bill and override's the governor's veto with a 2/3rds vote in both houses, can the governor effectively execute a second veto by refusing to enforce the law, or by refusing to defend it in the courts?  Given the fundamental concept of checks and balances of power in our democratic system, it seems unfair to allocate what is essentially a “second” veto to the executive.

On the other hand, Article 20, Section 3 of the California Constitutional requires the governor and the attorney general to swear to uphold the Constitution of the United States.  It would be a violation of such oath for the executive to enforce or defend a law which they believed was in violation of the U.S. or California Constitutions.

And this fact may be what determines the answer to our question.  A law or Constitutional amendment which is enacted, at least initially, by the legislature, has the imprimatur of Constitutionality.  The legislators swear the same oath as the executive to uphold the Constitutions.  A legislatively proposed law or amendment inherently contains the belief by a majority or supermajority of the legislature that the matter is Constitutional.

No such requirement lies with the general electorate.  Those proposing a Constitutional amendment need not swear to uphold the Constitutions.  The voter registration form used by the State of California does NOT require a prospective voter to swear an oath to uphold the Constitutions.  None of the people involved in the initiative process – the organizing, petitioning, or voting – are required to swear to uphold the Constitutions.

So where the executive believes that an amendment to the California Constitution violates rights preserved and guaranteed by the United States Constitution, it may be the executive’s duty to ignore the wishes of the electorate.  Supporters of Prop 8 decry the dilution of the electorate’s vote when the executive refuses to enforce/defend, but few recognize that the executive’s primary duty is to the Constitutions, not the people.  We are, after all, a Constitutional democracy, and popular desire is limited by Constitutional law.

When it comes to enforcement of laws and amendments passed by initiative, it seems that there is little that can be done to substitute for the unwilling executive.  There are statutes which allow for
actions by a “private attorney general”, but the electorate would be poorly served by deputizing every citizen to prosecute every case which the Governor and Attorney General decline.  For every meritorious claim there would be a thousand frivolous cases clogging our already overstrained judicial system.

When it comes to defending a law or amendment passed by initiative before the court, we should be more concerned.  At the initial trial phase, an aggrieved party can sue the State to obtain relief from the objectionable statute or amendment, thereby prompting some judicial action.   It is theoretically possible that the State could decline to file a responsive pleading, thereby allowing the court to enter a default judgment in favor of the plaintiffs.  It is doubtful, however, that a default judgment would have the declaratory effect of determining a law or amendment to be unconstitutional.  The default judgment would be a victory for the individual plaintiffs, but not all similarly situated plaintiffs.

Article III of the United States Constitution extends judicial power – jurisdiction – over actual cases and controversies.  If there is no controversy between the plaintiff and the defendant, the court lacks power to hear the matter.  The court cannot entertain hypothetical cases, or cases brought solely to obtain an advisory opinion on Constitutionality.  Absent actual disagreement by the State with the plaintiff’s demands, there would be no “adverseness” and the court would lack jurisdiction to hear the matter.

I believe that there are several possible solutions to this problem:

1.    Do away with the initiative process.  Direct democracy has been largely hijacked by special interest groups due to the relatively low bar.  While legislation must be debated and evaluated, no such examination is involved in the initiative process.   All the public receives is propaganda and misleading television advertisements from all sides of the issue.  There is no opportunity to change, alter or improve the proposed amendment prior to conducting the vote.  Initiatives are “take it or leave it.”

2.    Amend the Constitution to require the governor and/or the attorney general to defend any law or amendment enacted by the initiative process.

3.    Enact a law which permits the court to appoint an alternative representative of the electorate in the event that the governor and attorney general believe that the law/amendment is unconstitutional.  Funding of the alternative representative should be principally public to avoid undue influence by special interests.

Some legal academicians and experts have suggested that the Supreme Court’s ruling that the appellants lacked legal standing at the appellate level means that the trial judge’s ruling must be vacated as well.  If there was no legal standing for the party that defended Prop 8 at the trial level, there was no legal appearance by the defendant.  As discussed above, the proper legal procedure would be for the plaintiffs to obtain a default judgment, which would allow only those plaintiffs who prosecuted the right to marry.  The judgment would have no bearing on the rights of all other homosexuals seeking marriage licenses.  The result would be thousands of new lawsuits, each raising the same issue, with default judgments issuing in every case.