May 16, 2011

Amicus brief in the Prop. 8 case takes the initiative

The California Supreme Court knew it was buying a high-profile case when it agreed to answer a state law standing question posed by the Ninth Circuit as the federal appeals court reviews a district court ruling that found unconstitutional Proposition 8, the initiative passed by the electorate in 2008 to prohibit same-sex marriage. Unsurprisingly, 11 amicus curiae briefs have been filed in the case, now called Perry v. Brown. All address significant legal issues, but one in particular has the potential to shake the foundations of California lawmaking.

The Ninth Circuit wants to know whether proponents of an initiative have standing to defend the initiative in California courts. The amicus brief, however, calls into question the entire California initiative process.

Filed on behalf of appellate attorney Jon Eisenberg and law professor Laurie Levenson, and authored by Kendall Brill & Klieger attorneys Laura Brill, Nicholas F. Daum, Clifford S. Davidson, and Ashlee R. Lynn, the amicus brief argues that the 100-year-old amendment to the California Constitution that established the initiative as a way for citizens to exercise direct democracy might itself be unconstitutional: “California’s initiative process was originally put in place by a simple amendment to the California Constitution; it passed both houses of the Legislature and was submitted to a direct vote of the people in 1911. It was not the result of the more deliberative process used for constitutional ‘revisions,’ which required not just supermajority approval of both houses of the Legislature, but also a full constitutional convention.”

This amendment-versus-revision issue is familiar to the Supreme Court. Just two years ago, in Strauss v. Horton, the court concluded that Prop. 8 was properly adopted as a constitutional amendment and did not need to go through the process for constitutional revisions.

The brief makes clear that it’s not asking the Supreme Court to strike down the initiative process — at least not in this case — but only to take into account the asserted shaky constitutional foundation of that process so as to “proceed with caution when asked to expand the powers of initiative proponents.” But even a suggestion in the court’s opinion that California’s initiative process was not properly enacted could eclipse in importance the already landmark significance of the Prop. 8 legal fight.

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