California initiative proponents wise up, in the wake of Prop. 8 case

March 12

When the California voters passed Proposition 8 to ban gay marriage and the California government refused to defend it on appeal, the job of defending it fell to the official proponents of the initiative. But in Hollingsworth v. Perry (2013), the Supreme Court held that these proponents lacked standing.

Standing requires that one have a “personal stake” in the litigation that’s different than everyone else’s stake. And while official proponents have some specialized functions in the initiative process — signature collection, ballot filing, and control over ballot pamphlet arguments — once those functions are completed, the proponents just become regular people like everyone else: they have “no ‘personal stake’ in defending [the initiative's] enforcement that is distinguishable from the general interest of every citizen of California.”

And this is true even though the California Supreme Court held that the official proponents are “authorized under California law to appear and assert the state’s interest” in the validity of Prop. 8. It’s true that the state (as an abstract entity) can designate agents to represent it in court. But these guys weren’t really agents, said the Court (citations omitted):

As an initial matter, petitioners’ newfound claim of agency is inconsistent with their representations to the District Court. When the proponents sought to intervene in this case, they did not purport to be agents of California. They argued instead that “no other party in this case w[ould] adequately represent their interests as official proponents.” It was their “unique legal status” as official proponents—not an agency relationship with the people of California—that petitioners claimed “endow[ed] them with a significantly protectable interest” in ensuring that the District Court not “undo[ ] all that they ha[d] done in obtaining . . . enactment” of Proposition 8.

More to the point, the most basic features of an agency relationship are missing here. Agency requires more than mere authorization to assert a particular interest. “An essential element of agency is the principal’s right to control the agent’s actions.” Yet petitioners answer to no one; they decide for themselves, with no review, what arguments to make and how to make them. Unlike California’s attorney general, they are not elected at regular intervals—or elected at all. No provision provides for their removal. As one amicus explains, “the proponents apparently have an unelected appointment for an unspecified period of time as defenders of the initiative, however and to whatever extent they choose to defend it.”

“If the relationship between two persons is one of agency . . . , the agent owes a fiduciary obligation to the principal.” But petitioners owe nothing of the sort to the people of California. Unlike California’s elected officials, they have taken no oath of office. As the California Supreme Court explained, petitioners are bound simply by “the same ethical constraints that apply to all other parties in a legal proceeding.” They are free to pursue a purely ideological commit- ment to the law’s constitutionality without the need to take cognizance of resource constraints, changes in public opinion, or potential ramifications for other state priorities.

Finally, the California Supreme Court stated that “[t]he question of who should bear responsibility for any attorney fee award . . . is entirely distinct from the question” before it. But it is hornbook law that “a principal has a duty to indemnify the agent against expenses and other losses incurred by the agent in defending against actions brought by third parties if the agent acted with actual authority in taking the action challenged by the third party’s suit.” If the issue of fees is entirely distinct from the authority question, then authority cannot be based on agency.

Neither the California Supreme Court nor the Ninth Circuit ever described the proponents as agents of the State, and they plainly do not qualify as such.

I myself don’t find this convincing: I agree with the dissent’s view that it’s not important whether the proponents represent the government of California, because the whole point of initiatives is that it’s a way of going behind the government’s back if you don’t trust the government to do the right thing. Rather, both the initiative proponents and the government are (independently, and in their own spheres) agents of the people of California. And how do you know that the initiative proponents occupy this special position? Because the California Supreme Court has said so as a matter of state law.

Nonetheless, Hollingsworth v. Perry is now the law, and some while ago, while blogging about the proposed Pension Reform Act of 2014, I noted that the initiative had post-Hollingsworth saving language:

(b) In the event that the proponents are defending this Act in a legal proceeding because the State has declined to defend it or to appeal an adverse judgment against it, the proponents shall:

(1) act as agents of the people and the State;

(2) be subject to all ethical, legal, and fiduciary duties applicable to such parties in such legal proceeding; and

(3) take and be subject to the Oath of Office prescribed by Article XX, section 3 of the California Constitution for the limited purpose of acting on behalf of the people and the State in such legal proceeding.

And now, Maura Dolan writes in the L.A. Times that similar language shows up in “[n]early 1 in 4 proposed initiatives”. Erwin Chemerinsky is quoted there as saying that “[t]here is no clear answer” on whether these methods will work; but certainly we can see that new initiative proponents are trying to make sure that what happened to Prop. 8 doesn’t happen to them.

(via How Appealing)

Sasha Volokh lives in Atlanta with his wife and three kids, and is an associate professor at Emory Law School. He has written numerous articles and commentaries on law and economics, privatization, antitrust, prisons, constitutional law, regulation, torts, and legal history.
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