BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
SB 5 (Harman)
As Amended April 12, 2011
Hearing Date: May 3, 2011
Fiscal: No
Urgency: No
EDO
SUBJECT
Intervention: Initiatives
DESCRIPTION
This bill would provide that the official proponent of a state
initiative statute or constitutional amendment that has been
approved by the voters would have the right to intervene and
participate in any court action challenging the
constitutionality of the initiative statute or constitutional
amendment.
This bill would also define a "proponent" to mean the person or
persons who submit a draft of a petition proposing the measure
to the Attorney General with a request that he or she prepare a
title and summary of the chief purpose and points of the
proposed measure.
BACKGROUND
On November 4, 2008, Proposition 8 (Prop. 8), the initiative
constitutional amendment which provides that California only
recognizes marriage between a man and a woman, was passed by the
voters by a narrow 52 percent margin. Civil rights
organizations filed suits shortly thereafter challenging the
constitutionality of the initiative.
On November 17, 2008, the official proponent of Prop. 8,
ProtectMarriage.org, filed a motion to intervene in the cases.
On November 19, 2008, the California Supreme Court granted the
official proponents' motion to intervene. (Strauss v. Horton
(2009) 46 Cal.4th 364, 399.) The Campaign for California
Families, not an official proponent of Prop. 8, also sought to
(more)
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intervene. Without comment, the Court denied that request.
Following the conclusion of that case, opponents of Prop. 8
again filed suit in federal court in the Northern District of
California. The opponents alleged that Prop. 8 violated both
the due process clause and equal protection clause of the 14th
Amendment to the federal Constitution. The opponents sought
injunctive relief enjoining application of the proposition.
(Perry v. Schwarzenegger (2011) 628 F.3d 1191.) Last year,
former Attorney General Brown and Governor Schwarzenegger
decided not to defend the constitutionality of Prop. 8.
Attorney General Harris has also indicated that her office will
not defend Prop. 8's constitutionality.
U.S. District Court Judge Vaughn Walker allowed the proponents
of Prop. 8 to defend the proposition at trial; however he
questioned their standing to appeal. In August 2010, at the
conclusion of the trial, Judge Walker found Prop. 8
unconstitutional.
Subsequently, the proponents of Prop. 8 appealed Judge Walker's
holding in the Ninth Circuit Court of Appeals. Instead of
deciding the merits of the case, the Ninth Circuit asked the
California Supreme Court to answer the certified question of
whether the proponents of a proposition have standing to defend
an amendment or statute approved by the voters. The Supreme
Court has announced it will answer the certified question and
may hear oral arguments on the question as soon as September
2011.
In 2009, Senator Harman introduced SB 617 which would have
granted official proponents of a voter-approved state initiative
statute or constitutional amendment the right to intervene and
participate in any court action challenging the
constitutionality of that amendment or statute. The bill failed
passage in this Committee due to concerns that it was premature
and duplicative since courts already have the power to grant
intervention to interested parties. Also, as discussed above,
the court did allow the proponents to intervene in Strauss
(Id.).
This bill, which is substantially similar to SB 617, would
provide an official proponent, as defined, the right to
intervene in actions challenging the constitutionality of an
initiative statute or constitutional amendment (i.e., mandatory
intervention).
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CHANGES TO EXISTING LAW
Existing law provides that, upon timely application, any person
who has an interest in the matter in litigation, or in the
success of either of the parties, or an interest against both,
may intervene in the action or proceeding ("permissive
intervention"). (Code Civ. Proc. Sec. 387(a).)
Existing law provides that the court must allow intervention,
upon timely application, under either of the following
circumstances: (a) a provision of law confers an unconditional
right to intervene; or (b) the person seeking intervention (1)
claims an interest relating to the property or transaction that
is the subject of the action, (2) is so situated that the
action's disposition may impair the person's ability to protect
that interest, and (3) is not adequately represented with regard
to that interest by existing parties ("mandatory intervention").
(Code Civ. Proc. Sec. 387(b).)
Existing federal law provides for intervention as a right as
well as permissive intervention. The rule classifies (1) those
situations calling for intervention as a matter of right
(intervention of right) and (2) those in which it is permissive
and allowed in the court's discretion (permissive intervention).
(Fed. Rule of Civ. Proc. 24.)
This bill would provide that the proponent of a state initiative
statute or constitutional amendment that has been approved by
the voters would have the right to intervene and participate in
any court action challenging the constitutionality of the
initiative statute or constitutional amendment.
This bill would also state it is the intent of the Legislature
"to ensure that the parties responsible for placing the
initiative statute or constitutional amendment on the ballot
have the ability to participate in any court action challenging
the constitutionality of the measure, thereby ensuring the right
of the voters to zealous representation."
This bill would define "proponent" to mean the person or persons
who submit a draft of a petition proposing the measure to the
Attorney General with a request that he or she prepare a title
and summary of the chief purpose and points of the proposed
measure.
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COMMENT
1. Stated need for the bill
The author writes:
Currently a court has sole discretion as to which interested
parties can intervene in a case challenging the
constitutionality of an initiative passed by the people.
ŬThis bill] would make that intervention a right, not a
courtesy, under the law. It will ensure that the party
responsible for placing the initiative statute or
constitutional amendment on the ballot has the ability to
participate in any court action challenging the
constitutionality of the measure.
The California Attorney General has the constitutional right
and requirement to represent the will of the people in court
proceedings, but there is no legal protection for the people's
voice in cases where the Attorney General's personal or
political beliefs diverge from those of the people. Senate
Bill 5 would ensure that voters have the ability to be
zealously represented.
2. Courts already have the power to grant intervention; bill
would effectively eliminate a court's discretion in deciding
who can intervene in a case
Under existing law, upon timely application, any person who has
an interest in the matter in litigation may intervene in the
action or proceeding. (Code Civ. Proc. Sec. 387.) While the
court must allow intervention in some circumstances, the court
maintains the discretion to allow an interested party to
intervene. The court considers several factors, as discussed in
more depth below, when determining whether a party may
intervene. This bill would remove a court's discretion and
require a court to allow official proponents of initiative
statutes or constitutional amendments to intervene in a case
challenging the voter-approved statute or amendment.
Existing law provides that an intervention may be permissive
(within the court's discretion) or mandatory. "To support
permissive intervention, the proposed intervener's interest must
be direct Ŭand immediate] rather than consequential, and it must
be an interest that is capable of determination in the action."
(Lindelli v. Town of San Anselmo (2006) 139 Cal.App.4th 1499,
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1505.) The court must allow intervention when either: 1) a
provision of law confers an unconditional right to intervene; or
2) the person seeking intervention has an interest in the
subject of the action, is so situated that the action's
disposition may impair the person's ability to protect that
interest, and the person's interest is not adequately
represented by existing parties. (Code Civ. Proc. Sec. 387.)
Although the language of the statute states that the court must
allow intervention in these situations, it is still within the
courts discretion to decide whether the party meets these
criteria. This bill would remove a court's discretion and would
instead require a court to allow an official initiative
proponent to intervene.
Further, a number of statutes provide for the right of
particular persons to intervene in certain actions. The
following are a few examples: (1) the Attorney General may
intervene in an action or special proceeding involving property
that has escheated or is about to escheat to the state; (2) a
shareholder or creditor may intervene in a proceeding to
dissolve a corporation; (3) the Attorney General, district
attorney, or city attorney may intervene in an action seeking
relief from denial of equal protection under the Fourteenth
Amendment; and (4) all creditors may intervene in a creditor's
action on a shareholder's liability to a corporation. It is
worth noting, that all of these examples deal with a specific
party showing a direct interest in the outcome of the case or a
duty to be involved in the case. The same cannot be said of
official proponents to a ballot initiative. This is especially
true for the official proponents of Prop. 8 who neither have a
direct interest in the outcome nor a duty to be involved in the
case since, as would be defined by this bill, all an official
proponent must do is "submit a draft of a petition proposing the
measure to the Attorney General with a request that he or she
prepare a title and summary of the chief purpose and points of
the proposed measure." This language states no duty of the
proponents and no particular interest in the ballot initiative.
Currently, there is no evidence that courts are refusing to
allow interested persons to intervene, and, as discussed above
in the background, there is the recent example in the
Proposition 8 cases, in which the Supreme Court granted
intervention to official proponents. Taken together, the
question arises as to whether this bill is needed to remedy a
problem or deficiency in current law. When a specific protection
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is already provided for in the law, as is the case with
intervention, and there is no evidence that the provision is
being ignored or abused in the courts, it is arguably
unnecessary and potentially duplicative to amend the law to
allow for an additional course of action.
IS THIS BILL NECESSARY GIVEN THAT COURTS ALREADY HAVE THE POWER
TO GRANT INTERVENTION?
IS IT APPROPRIATE TO ELIMINATE A COURT'S DISCRETION TO DECIDE
WHETHER AN INTERESTED PERSON MAY INTERVENE IN A CASE?
3. Unclear whether this bill would achieve its intended effects
Further, it is unclear whether this bill would ultimately
achieve its intended purpose. Even if the initiative proponents
were granted the right to intervene at the state level,
effectively giving proponents standing in California, it would
be unlikely that an amendment or initiative statute proponent
would be able to meet the federal requirement for standing when
the case is appealed to federal court, since this bill does not
indicate whether a state officer or entity would be required to
be a party to the case in order for an official proponent to
intervene.
Federal standing requires that the party show "a direct stake in
the outcome" by showing a "legally protected interest" that is
both "concrete and particularized."(Lujan v. Defenders of
Wildlife (1992) 504 U.S. 555). In Arizonans for Official
English v. Arizona (1997) 520 U.S. 43, the United States Supreme
Court questioned seriously whether initiative proponents had
standing to appeal, stating that the initiative proponents "are
not elected representatives, and we are not aware of Ŭan]
Arizona law appointing initiative sponsors as agents of the
people of Arizona to defend, in lieu of public officials, the
constitutionality of initiatives made law of the State. Nor has
this Court ever identified initiative proponents as
Article-III-qualified defenders of the measures they advocated."
(Id. at 65.)
Finally, it is important to note that the issue of proponent
standing is currently before the California Supreme Court and
will be considered by that court later this year.
WOULD PRIVATE UNELECTED CITIZENS MEET THE FEDERAL REQUIREMENT
FOR STANDING ON APPEAL? AND, IS IT APPROPRIATE FOR THE
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LEGISLATURE TO INTERFERE WITH THE QUESTION OF PROPONENT STANDING
CURRENTLY BEFORE THE CALIFORNIA SUPREME COURT?
4.Would this bill allow unelected private citizens to represent
the state without a state officer or entity as a party to the
court action?
This bill would allow initiative proponents to intervene in any
case challenging the constitutionality of the initiative statute
or constitutional amendment. The bill is silent as to whether a
state party or entity would need to be a party to the case prior
to the proponents being allowed to intervene. Under existing
law, proponents to ballot initiatives do not have the authority
to represent the State of California's interest in defending an
amendment or initiative against a constitutional challenge. The
policy reasons for this are clear. An unelected private citizen
has no accountability to the state whatsoever.
Opponents, the National Center for Lesbian Rights (NCLR), note
that a private citizen would be free to use the resources of the
state for litigation if given the authority to defend an
amendment or initiative statute in court even though he or she
has no responsibility for state funds, including the expenses
incurred by the state through litigation, such as attorney's
fees and damage awards payable to the opposing party. All of
which would likely be binding on the state as a judgment of the
court. In addition, private citizens would not be obligated to
consider how the particular law they would be defending on
behalf of the state may impact other state laws or if it may be
in conflict with the state or federal Constitutions.
Equality California, Lambda Legal and the NCLR write in
opposition to the measure, and state that it is also important
to consider that there are no elections for initiative
proponents so that the public may evaluate their performance.
As a consequence, initiative proponents do not swear an oath of
office. In fact, and as would be defined in law by this bill,
the only requirement to become an initiative proponent is to
submit the text of a proposed initiative and obtain sufficient
signatures to qualify the measure for the ballot.
Although there are no constitutional or statutory provisions
granting a proponent the right to defend an amendment or
initiative after it has been adopted, the courts have allowed
initiative proponents to intervene. However, current case law
has only permitted proponents to intervene in a case to defend
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their own interests, and so long as the state is already a party
to a case, and they are limited to defending their own interests
and not those of the state. (Strauss, Id.) The effect of this
bill would be to give initiative proponents standing to defend
an initiative, as a matter of right. For these reasons and the
reasons discussed above, proponents should not automatically be
granted intervention as a right.
WOULD THIS BILL INAPPROPRIATELY ALLOW UNELECTED PRIVATE CITIZENS
TO REPRESENT THE STATE WITHOUT A STATE OFFICER OR ENTITY AS A
PARTY TO THE COURT ACTION?
WOULD THE EFFECT OF THIS BILL BE TO GIVE INITIATIVE PROPONENTS
STANDING TO DEFEND AN INITIATVE, AS A MATTER OF RIGHT?
Support : Civil Justice Association of California; Howard Jarvis
Taxpayers Association
Opposition : Equality California; Lambda Legal; National Center
for Lesbian Rights
HISTORY
Source : Author
Related Pending Legislation : None Known
Prior Legislation : SB 617 (Harman, 2009) See Background.
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