BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
SB 617
Senator Harman
As Amended April 16, 2009
Hearing Date: May 5, 2009
Code of Civil Procedure
ADM:jd
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 define "official 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.
(This analysis reflects author's amendments to be offered in
committee.)
BACKGROUND
Under Code of Civil Procedure Section 387, "an intervention
takes place when a third person is permitted to become a party
to an action or proceeding between other persons, either by
joining the plaintiff in claiming what is sought by the
complaint, or by uniting with the defendant in resisting the
claims of the plaintiff, or by demanding anything adversely to
both the plaintiff and the defendant." The intervention is made
by complaint, setting forth the grounds upon which the
intervention is made, filed by leave of the court, and served
(more)
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upon the parties.
The main purposes for allowing intervention are to avoid delay,
avoid a multiplicity of actions, and "promote fairness by
involving all parties potentially affected by a judgment."
(Simpson Redwood Co. v. State of California (1987) 242 Cal.Rptr.
447, 450; see also City and County of San Francisco v. State of
California (2005) 27 Cal.Rptr.3d 722, 727 [section 387 "balances
the interests of others who will be affected by the judgment
against the interests of the original parties in pursuing their
litigation unburdened by others"]; Belt Casualty Co. v. Furman
(1933) 218 Cal. 359, 362 [main purpose is to avoid delay and
multiplicity of actions].) The courts have held that Section
387 allowing intervention should be liberally construed. (See,
e.g., Lindelli, 43 Cal.Rptr.3d at 712.)
An intervention may be permissive (within the court's
discretion) or mandatory. "To support permissive intervention,
the proposed intervener's interest must be direct [and
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) 43 Cal.Rptr.3d 707, 712.) 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.
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 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.
(4) All creditors may intervene in a creditor's action on a
shareholder's liability to a corporation.
Federal Rule of Civil Procedure, Rule 24, also allows permissive
intervention when there is merely a common question of law or
fact. The rule also classifies (1) those situations calling for
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intervention as a matter of right (mandatory intervention) and
(2) those in which it is permissive and allowed in the court's
discretion.
This bill would provide for the right for an official proponent,
as defined, to intervene in actions challenging the
constitutionality of an initiative statute or constitutional
amendment, i.e., mandatory intervention.
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).)
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 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.
COMMENT
1. Stated need for the bill
The author writes:
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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 617 would ensure that voters have the ability to be
zealously represented.
2. Is this bill necessary; official initiative proponents
allowed to intervene; recent example
In response to committee staff's inquiries, the author's office
states that it is not aware of any particular cases in which a
proponent interested in intervening in an action relating to a
challenge to an initiative or constitutional amendment was
prevented from doing so by the court.
The most recent example of a highly controversial initiative,
where intervention was an issue, is Proposition 8. Proposition
8 added a new section to the state Constitution, which provides
that "[o]nly marriage between a man and a woman is valid or
recognized in California." Three lawsuits were immediately
filed directly in the California Supreme Court challenging
Proposition 8. On November 19, 2008, the Court agreed to hear
the three cases. Oral argument on the cases was held on March
5, 2009.
ProtectMarriage.com, the official proponent of Proposition 8,
sought to intervene in the three cases. On November 19, 2008,
the motions to intervene by the "Proposition 8 Official
Proponents et al." was granted. The Campaign for California
Families, not an official proponent of Proposition 8, also
sought to intervene in the three cases. Without comment, the
Court denied the request to intervene by the Campaign for
California Families.
There does not appear to be evidence that the courts have denied
intervention by an official proponent or proponents in a
challenge to an initiative statute or constitutional amendment,
and, in fact, there is recent evidence that the California
Supreme Court allowed official proponents to intervene in a
constitutional amendment challenge.
Given that there is no evidence courts are denying intervention
to official proponents in a challenge to an initiative statute
or constitutional amendment, is this bill necessary?
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3. Is this bill necessary; courts have the power to grant
intervention and have done so
Under existing law, 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. (Code Civ. Proc. Sec.
387.) While the court must allow intervention in some
circumstances, the court always has the discretion to allow an
interested party to intervene. And, as noted above in Comment
2, there is no evidence that courts are denying intervention and
there is the recent example of 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.
Given that the courts have the power to grant intervention to
interested parties, is this bill necessary?
4. Author's amendments
On page 2, line 3, insert "official" between "The" and
"proponent."
On page 2, line 8, insert "official" before "proponent."
Support : None Known
Opposition : None Known
HISTORY
Source : Author
Related Pending Legislation : None Known
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Prior Legislation : None Known
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