In an interesting turn of events, the 9th Circuit Court of Appeals which is currently deciding the Federal Constitutionality of Proposition 8, which in fact is now a Constitutional Amendment to the California Consitution, has asked the Califonria Supreme Court to weigh in on the standing issue.  Proposition 8, currently embodied in the Califonria Consitution in Article I, section 7.5 of the declaration of rights, reads:

SEC. 7.5. Only marriage between a man and a woman is valid or recognized in California.

The 9th Circuit Court of Appeals issued an 18 page ruling essentially requesting that the Califonria Supreme Court answer this question:

Whether 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.

Based on the language in the opinion, it appears the 9th Circuit Panel believes the proponents do have standing, but have deferred to the Califonria Supreme Court in this matter because that court has the ultimate authority and say in what California law does say and mean.  The language I believe supports the standing issue both in the 9th Ciircuit’s thinking and my own is:

We are aware that in California, “All political power is inherent in the people,” Cal. Const. art. II, § 1, and that to that end, Article II, section 8(a) of the California Constitution provides, “The initiative is the power of the electors to propose statutes and amendments to the Constitution and to adopt or reject them.”

We are also aware that the Supreme Court of California has described the initiative power as “one of the most precious rights of our democratic process,” and indeed, that “the sovereign people’s initiative power” is considered to be a “fundamental right.”  Assoc. Home Builders v. City of Livermore, 557 P. 2d 473, 477 (Cal. 1976); Brosnahan v. Brown, 651 P.2d 274, 277 (Cal. 1982); Costa v. Super. Ct., 128 P.3d 675, 686 (Cal. 2006).  Finally, we are aware of California law that the courts have a “solemn duty to jealously guard” that right, Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization, 583 P.2d 1281, 1302 (Cal. 1978) (internal quotation marks omitted), “and to prevent any action which would improperly annul that right,” Martin v. Smith, 176 Cal. App. 2d 115, 117 (1959).

The power of the citizen initiative has, since its inception, enjoyed a highly protected status in California.  For example, the Legislature may not amend or repeal an initiative statute unless the People have approved of its doing so.  Cal Const. art. II, § 10(c).  Most relevant here, “the Governor has no veto power over initiatives,” Kennedy Wholesale, Inc. v. State Bd. of Equalization, 806 P.2d 1360, 1364 n.5 (Cal. 1991), and the Attorney General possesses no veto power at all.

Although the Governor has chosen not to defend Proposition 8 in these proceedings, it is not clear whether he may, consistent with the California Constitution, achieve through a refusal to litigate what he may not do directly: effectively veto the initiative by refusing to defend it or appeal a judgment invalidating it, if no one else – including the initiative’s proponents – is qualified to do so.

Proponents argue that such a harsh result is avoided if the balance of power provided in the California Constitution establishes that proponents of an initiative are authorized to defend that initiative, as agents of the People, in lieu of public officials who refuse to do so.  Similarly, under California law, the proponents of an initiative may possess a particularized interest in defending the constitutionality of their initiative upon its enactment; the Constitution’s purpose in reserving the initiative power to the People would appear to be ill-served by allowing elected officials to nullify either proponents’ efforts to “propose statutes and amendments to the Constitution” or the People’s right “to adopt or reject” such propositions.  Cal. Const. art. II, § 8(a).

Rather than rely on our own understanding of this balance of power under the California Constitution, however, we certify the question so that the Court may provide an authoritative answer as to the rights, interests, and authority under California law of the official proponents of an initiative measure to defend its validity upon its enactment in the case of a challenge to its constitutionality, where the state officials charged with that duty refuse to execute it

The 9th Circuit’s opinion in its entiriety is here:

http://www.ca9.uscourts.gov/datastore/general/2011/01/04/1016696o.pdf

The federal case is now withdrawn from submission and further proceedings in the 9th Circuit are currently stayed pending final action by the California Supreme Court.  As always, the Proposition 8 issue has generated some fascinating legal issues and opinions.  This one is no different.