Case Details

Issues

Proponents Of Ballot Initiative May Prosecute Appeal If Attorney General Declines To Do So.

Filing State

CA

Court

California Supreme Court

Year

2011

Citation

Perry v. San Francisco, No. S189476 (Cal. Nov. 17, 2011)

Resolution

Proponents of an initiative are allowed to appeal a decision, even if the attorney general and other state officials decline to do so, but this right is extremely limited, giving the proponents only the ability “to participate as a party in a court action and to assert legal arguments in defense of the state’s interest in the validity of the initiative measure when the public officials who ordinarily would assert the state’s interest in the validity of the measure have not done so.”

Case Description

California voters passed Proposition 8, a state initiative to ban gay marriage. Several parties filed suit in federal court, seeking to enjoin state and local officials (including the Attorney General) from enforcing the initiative on civil rights grounds. Proponents of the initiative were granted leave to intervene as defendants. The Attorney General and other state officials, including the Governor, declined to defend the initiative on the grounds that it violated the 14th Amendment. The district court held that the initiative was unconstitutional and the proponents filed and appeal and a mandamus action seeking to force the Attorney General to appeal. The mandamus action was dismissed and the Ninth Circuit certified a question to the state supreme court, asking whether proponents had standing to appeal the case. The attorney general filed an amicus brief arguing that they did not have standing. The California supreme court held “We are aware of no case that has held or suggested that the Attorney General may preclude others from defending a challenged state law or from appealing a judgment invalidating the law when the Attorney General has declined to provide such a defense or take an appeal.” The court held that its ruling did not make the initiative proponents into public officials, but was extremely limited, giving the proponents only the ability “to participate as a party in a court action and to assert legal arguments in defense of the state’s interest in the validity of the initiative measure when the public officials who ordinarily would assert the state’s interest in the validity of the measure have not done so.”