The U.S. Supreme Court, in its recent Proposition 8 ruling, found that California’s initiative laws are insufficient to grant initiative proponents federal standing to sue or defend a proposition. This ruling complicates the lives of California initiative proponents who might have assumed they could circulate, qualify and defend their measure if challenged. In its 5-4 decision last month, the nation’s highest court held that the official proponents of Prop. 8 – California’s law limiting marriage to opposite sex couples – lacked standing to defend their initiative in federal court.

California voters passed Prop. 8 in 2008, but the measure was challenged on federal grounds by same sex couples wishing to marry. California’s governor and attorney general opted not to defend the measure. In Hollingsworth v. Perry, the federal district court and Ninth Circuit Court of Appeals both concluded, based principally on the California Supreme Court’s opinion, that Prop. 8’s proponents had federal standing to defend it. In other words, the lower courts thought the proponents had “suffered a concrete and particularized” injury qualifying them to defend Prop. 8 in federal court. The U.S. Supreme Court disagreed. 

Rather than relying on the California Supreme Court’s and the lower courts’ resolution of this issue, the U.S. Supreme Court held that authority from “the people of California” to circulate and qualify an initiative did not create standing in federal court. Instead, that authority must come from the state itself through a state officer or through a state appointment creating an agency relationship with the state. (Hollingsworth, at 15.) The Court found the Prop. 8 proponents satisfied neither test. As a result, the federal courts lacked standing to hear the case.

This case creates some new considerations for would-be grassroots legislation: 

• Many California Constitutional provisions provide more ample protection than similar provisions of the U.S. Constitution, but the state court’s decision regarding standing was much more generous than the Hollingsworth court. 
• As invested as proponents are, Hollingsworth suggests that a state officer with specific authority, appointment or agency to enforce the law – if not the governor or attorney general – would stand a better chance as a party. 
• Although no case or statute explicitly holds that the state or its subdivisions have a duty to defend challenged initiatives, this duty is implied by two California cases relating to city initiatives. (See Bldg. Indus. Assn. v. City of Camarillo (1986) 41 Cal. 3d 810, 822; Arnel Dev. Co. v. City of Costa Mesa (1980) 28 Cal. 3d 511, 514.)