Prop 8 sparks slew of 2014 initiatives requiring a defense in court

Call it for what it is: Prop 8's legacy when it comes to the California initiative process.

2013's end to the long legal fight over the state's ban on gay marriages left everyone wondering whether laws written by voters will simply wither and die if elected officials refuse to mount a legal defense.

Now, proponents of controversial measures are scrambling to find some way – any way – to legally defend an initiative should it win over voters… but not the state's top elected officials.

"The initiative process is something we hold pretty sacred in California," says Tom Hiltachk, a Sacramento-based election law attorney who has written scores of initiatives through the years. "The voting public, and the people who are responsible for placing initiatives on the ballot, have a right to have those laws defended."

A review of all the California initiatives submitted for review and analysis since the U.S. Supreme Court denied legal standing for Prop 8's political backers last summer finds that 16 proposals – almost one in four of all those submitted – include one a provisions that lays out what should happen in the event the measure passes, is challenged in federal court, and then has no elected official to mount a defense.

"It's a vexing problem for people who really believe in the initiative," says Vikram Amar, associate dean of the UC Davis School of Law.

The problem, say experts, lies in the wording of last June's majority opinion in Hollingsworth v. Perry – an opinion that suggests there's no way for the official proponents of an initiative to take the place of officials like the governor or attorney general in federal court, even if they do have that power in state court.

"The fact that a state thinks a private party should have standing," wrote Chief Justice John Roberts in the 5-4 ruling, "cannot override this Court's settled law to the contrary."

Since that decision came down, both grassroots and veteran initiative drafters have sought to find a way to explicitly craft a role for the official proponents.

The level of that role varies. An initiative to require parental notification before a teenager has an abortion simply states that the proponent or "his designee" has the power to defend the measure "in any court of law."

From there, the Prop 8 'fixes' become a lot more complex. Backers of one of the initiatives submitted to legalize marijuana decided to include language to force state officials to defend their measure in court should it ever become law.

An initiative filed in late December, to essentially create a new system for local redevelopment efforts in the wake of 2011's abolishing of redevelopment agencies, both proclaims its proponents would have legal standing and says the state would be required to pay their legal fees.

Even more unique is the initiative filed in mid-December to loosen the rules that guide tenure for public school teachers. That proposal requires the appointment of an independent counsel if the attorney general refuses to defend the initiative in any federal lawsuit, assuming it's ratified by voters this fall.

In all, the Prop 8 effect is seen in 16 initiatives -- almost one in four of the proposed laws introduced since the U.S. Supreme Court ruling last summer. Some of those are revisions of the same initiative, but the Prop 8 inspired language in each version remained the same.

"It's in the more controversial topics," says election attorney Tom Hiltachk of the trend, "where you think you're sort of up against the establishment."

Legal observers say the need for some kind of system where initiative proponents can stand up if elected officials remain seated was clear in the Hollingsworth dissent written by Justice Anthony Kennedy. And that's no surprise, given the Sacramento native's long resume in California politics before being tapped for the federal bench.

"The Court's opinion disrespects and disparages both the political process in California and the well-stated opinion of the California Supreme Court in this case," wrote Kennedy in his testy 14 page dissent. California's own courts allow proponents to have standing, and the state's highest court ruled in 2011 that Prop 8's proponents had a role in the federal case -- a decision with which the U.S. Supreme Court ultimately disagreed.

UC Davis' Vikram Amar says the majority in the Hollingsworth case went too far in its refusal to allow Prop 8 proponents to defend the ban on same sex marriages. He says the Court should have denied Prop 8's proponents their standing on the narrow grounds that voters never agreed to them having such power… not that such power can't exist at all.

"That would have left the door more explicitly open for initiatives to overcome this dilemma," he says.

Amar says as it stands, all of the 2014 initiatives that include some kind of 'legal standing' provision may fail to ensure a plan B in the event elected leaders take a pass. The key issue, he says, is whether the voters must have some sort of "control" over those who represent them in court -- as in the ability to vote an elected official out of office -- or whether they simply have given their approval for someone to represent them in court.

"If control is the question," says Amar, "then it's going to be hard for anyone other than elected officials to have standing."

Others also agree the various attempts are, at best, a long shot.

"Will any of this language help?" says attorney Hiltachk. "You know, it's not really clear."

Hiltachk believes there's actually a better way to resolve the Prop 8 dilemma than stuffing legal defense language inside initiatives: change state law.

He says legislators could easily write a state law that says an attorney general who objects to defending an initiative in court must allow a private party to "stand in their shoes" and defend the voter-enacted law. And such a law could benefit liberal and conservative causes alike from elected officials who otherwise could subjectively choose when to go to court… and when to stay home.


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