As readers of Fox & Hounds know, I’m not a fan of the fashionable new clause of this year’s class of California ballot initiatives: the clauses attempting to give legal standing to initiative proponents to defend their initiatives, if successful on the ballot.
The arguments against such clauses are strong. Proponents already have legal standing in the California courts, so the question of standing relates to federal courts. And there, as the U.S. Supreme Court has noted, proponents don’t have standing.
And if the clauses were to succeed in giving standing to proponents, the clauses would turn proponents into elected officials, without the kind of scrutiny and disclosure we require of elected officials; initiative proponents, unlike elected officials, also can’t be voted out of office. They allow proponents to represent the state with such broad discretion that they could commit huge state resources, and bind the state in a host of other legal and constitutional matters. They also eliminate an essential check on the initiative process by governors and attorneys general, who, in a handful of cases, have refused to defend laws that violate human rights or their constitutional oaths (most notably in the case of bans on same-sex marriage). California’s initiative process, the world’s most inflexible (you can’t change an initiative once it’s passed, unless the original initiative permits changes), needs all the checks it can get.
But now comes another argument against these clauses: they themselves violate the state constitution.
Laura W. Brill, a Los Angeles attorney deeply familiar with the process, wrote recently in the LA Times that “Article II of the state Constitution provides that an initiative may not name any individual to hold any office or name any private corporation to perform any governmental function.”
She added that “the purpose of that restriction is to prevent abuses of the initiative process that would unduly encroach on the normal functioning of our representative institutions and the work of our elected officials.” Brill writes that it’s an open question whether the clauses giving legal standing to proponents violates the restriction. But resolving that question could take years to figure out in the courts, she writes.
Could that fight delay enforcement of any successful initiative that included it? I believe the answer to that question is yes. So are proponents hurting their own initiatives by including the clauses? Quite possibly.
Here’s another delicious possibility. One of the initiatives with these standing clauses wins – and is challenged in court. Would the attorney general refuse to defend it – or, more likely, the clause granting standing to proponents? I suspect an a.g. – at least an a.g. who didn’t want to limit her office’s power – would refuse to defend such clauses.
And if she prevailed, what next? Would the next class of initiatives would include provisions forcing the attorney general to defend such clauses?
This is quite a rabbit hole that some initiative proponents have decided to lead our state into.