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Kristin M. Perry et al v. Edmund G. Brown

November 17, 2011

KRISTIN M. PERRY ET AL., PLAINTIFFS AND RESPONDENTS,
v.
EDMUND G. BROWN, JR., AS GOVERNOR, ETC., ET AL.,
DEFENDANTS; CITY AND COUNTY OF SAN FRANCISCO,
INTERVENOR AND RESPONDENT; DENNIS HOLLINGSWORTH ET AL., INTERVENERS AND APPELLANTS.



9th Cir. No. 10-16696 N.D. Cal. No. 3:09-cv-02292-VRW

The opinion of the court was delivered by: Cantil-sakauye, C. J.

At the request of the United States Court of Appeals for the Ninth Circuit, we agreed to decide a question of California law that is relevant to the underlying lawsuit in this matter now pending in that federal appellate court. (Perry v. Brown (9th Cir. No. 10-16696); see Cal. Rules of Court, rule 8.548.) As posed by the Ninth Circuit, the question to be decided is "[w]hether under article II, section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure possess either a particularized interest in the initiative's validity or the authority to assert the State's interest in the initiative's validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so."

In addressing this issue, we emphasize at the outset that although in this case the question posed by the Ninth Circuit happens to arise in litigation challenging the validity, under the United States Constitution, of the initiative measure (Proposition 8) that added a section to the California Constitution providing that "[o]nly marriage between a man and a woman is valid or recognized in California" (Cal. Const., art. I, § 7.5), the state law issue that has been submitted to this court is totally unrelated to the substantive question of the constitutional validity of Proposition 8. Instead, the question before us involves a fundamental procedural issue that may arise with respect to any initiative measure, without regard to its subject matter. The same procedural issue regarding an official initiative proponent's standing to appear as a party in a judicial proceeding to defend the validity of a voter-approved initiative or to appeal a judgment invalidating it when the public officials who ordinarily provide such a defense or file such an appeal decline to do so, could arise with regard to an initiative measure that, for example, (1) limited campaign contributions that may be collected by elected legislative or executive officials, or (2) imposed term limits for legislative and executive offices, or (3) prohibited government officials from accepting employment after leaving office with companies or individuals that have benefited from the officials' discretionary governmental decisions while in office. (Cf., e.g., Prop. 73 (Primary Elec. (June 7, 1988)), invalidated in part in Kopp v. Fair Pol. Practices Com. (1995) 11 Cal.4th 607 [campaign contribution limits]; Prop. 140 (Gen. Elec. (Nov. 6, 1990)), upheld in Legislature v. Eu (1991) 54 Cal.3d 492 [term limits]; City of Santa Monica's ballot measure Prop. LL (Consolidated Gen. Mun. Elec. (Nov. 7, 2000)), upheld in City of Santa Monica v. Stewart (2005) 126 Cal.App.4th 43 [postgovernment employment limits].) The resolution of this procedural question does not turn on the substance of the particular initiative measure at issue, but rather on the purpose and integrity of the initiative process itself.

As we discuss more fully below, in the past official proponents of initiative measures in California have uniformly been permitted to participate as parties -- either as interveners or as real parties in interest -- in numerous lawsuits in California courts challenging the validity of the initiative measure the proponents sponsored. Such participation has routinely been permitted (1) without any inquiry into or showing that the proponents' own property, liberty, or other personal legally protected interests would be specially affected by invalidation of the measure, and (2) whether or not the government officials who ordinarily defend a challenged enactment were also defending the measure in the proceeding. This court, however, has not previously had occasion fully to explain the basis upon which an official initiative proponent's ability to participate as a party in such litigation rests.

As we shall explain, because the initiative process is specifically intended to enable the people to amend the state Constitution or to enact statutes when current government officials have declined to adopt (and often have publicly opposed) the measure in question, the voters who have successfully adopted an initiative measure may reasonably harbor a legitimate concern that the public officials who ordinarily defend a challenged state law in court may not, in the case of an initiative measure, always undertake such a defense with vigor or with the objectives and interests of those voters paramount in mind. As a consequence, California courts have routinely permitted the official proponents of an initiative to intervene or appear as real parties in interest to defend a challenged voter-approved initiative measure in order "to guard the people's right to exercise initiative power" (Building Industry Assn. v. City of Camarillo (1986) 41 Cal.3d 810, 822 (Building Industry Assn.)) or, in other words, to enable such proponents to assert the people's, and hence the state's, interest in defending the validity of the initiative measure. Allowing official proponents to assert the state's interest in the validity of the initiative measure in such litigation (along with any public officials who may also be defending the measure) (1) assures voters who supported the measure and enacted it into law that any residual hostility or indifference of current public officials to the substance of the initiative measure will not prevent a full and robust defense of the measure to be mounted in court on the people's behalf, and (2) ensures a court faced with the responsibility of reviewing and resolving a legal challenge to an initiative measure that it is aware of and addresses the full range of legal arguments that reasonably may be proffered in the measure's defense. In this manner, the official proponents' general ability to appear and defend the state's interest in the validity of the initiative measure and to appeal a lower court judgment invalidating the measure serves to enhance both the fairness of the judicial process and the appearance of fairness of that process.

We have cautioned that in most instances it may well be an abuse of discretion for a court to fail to permit the official proponents of an initiative to intervene in a judicial proceeding to protect the people's right to exercise their initiative power even when one or more government defendants are defending the initiative's validity in the proceeding. (See Building Industry Assn., supra, 41 Cal.3d at p. 822.) Thus, in an instance -- like that identified in the question submitted by the Ninth Circuit -- in which the public officials have totally declined to defend the initiative's validity at all, we conclude that, in light of the nature and purpose of the initiative process embodied in article II, section 8 of the California Constitution (hereafter article II, section 8) and the unique role of initiative proponents in the constitutional initiative process as recognized by numerous provisions of the Elections Code, it would clearly constitute an abuse of discretion for a court to deny the official proponents of an initiative the opportunity to participate as formal parties in the proceeding, either as interveners or as real parties in interest, in order to assert the people's and hence the state's interest in the validity of the measure and to appeal a judgment invalidating the measure. In other words, because it is essential to the integrity of the initiative process embodied in article II, section 8 that there be someone to assert the state's interest in an initiative's validity on behalf of the people when the public officials who normally assert that interest decline to do so, and because the official proponents of an initiative (in light of their unique relationship to the initiative measure under art. II, § 8 and the relevant provisions of the Elec. Code) are the most obvious and logical persons to assert the state's interest in the initiative's validity on behalf of the voters who enacted the measure, we conclude that California law authorizes the official proponents, under such circumstances, to appear in the proceeding to assert the state's interest in the initiative's validity and to appeal a judgment invalidating the measure. Neither the Governor, the Attorney General, nor any other executive or legislative official has the authority to veto or invalidate an initiative measure that has been approved by the voters. It would exalt form over substance to interpret California law in a manner that would permit these public officials to indirectly achieve such a result by denying the official initiative proponents the authority to step in to assert the state's interest in the validity of the measure or to appeal a lower court judgment invalidating the measure when those public officials decline to assert that interest or to appeal an adverse judgment.

Accordingly, we respond to the question posed by the Ninth Circuit in the affirmative. In a postelection challenge to a voter-approved initiative measure, the official proponents of the initiative are authorized under California law to appear and assert the state's interest in the initiative's validity and to appeal a judgment invalidating the measure when the public officials who ordinarily defend the measure or appeal such a judgment decline to do so.

I. Factual and Procedural Background

We begin with a brief summary of the factual and procedural background of the current proceeding.

In May 2008, a majority of this court concluded that the California statutes limiting the designation of marriage to opposite-sex couples violated the right of same-sex couples to the equal protection of the laws as guaranteed by the then-governing provisions of the California Constitution. (In re Marriage Cases (2008) 43 Cal.4th 757.) Thereafter, in the general election held in California in November 2008, a majority of voters approved Proposition 8, an initiative measure that amended the California Constitution by adding a new section -- section 7.5 -- to article I of the California Constitution. Section 7.5 of article I of the California Constitution provides in full: "Only marriage between a man and a woman is valid or recognized in California."

Proposition 8 was submitted to the Attorney General, circulated for signature, and formally filed with the Secretary of State for submission to the voters by five California electors -- Dennis Hollingsworth, Gail J. Knight, Martin F. Gutierrez, Hak-Shing William Tam, and Mark A. Jansson -- who are the official proponents of the initiative measure under California law. (Elec. Code, §§ 342, 9001.) Shortly after commencing the initiative petition process, the proponents established ProtectMarriage.com -- Yes on 8, a Project of California Renewal (hereafter ProtectMarriage.com) as a "ballot measure committee" (see Gov. Code, § 84107) to supervise all aspects of the campaign to qualify the measure for the ballot and to seek to obtain its adoption at the ensuing election.

One day after the November 2008 election at which Proposition 8 was approved by a majority of voters, opponents of the measure filed three petitions for an original writ of mandate in this court, challenging the validity of Proposition 8 under the California Constitution. (The three petitions were ultimately consolidated and decided together in Strauss v. Horton (2009) 46 Cal.4th 364 (Strauss).) The petitions contended primarily that Proposition 8 constituted a constitutional revision, which under the California Constitution could not properly be adopted through the initiative process, rather than a constitutional amendment, which could be adopted by initiative; one petition also contended that Proposition 8 violated the separation of powers doctrine embodied in the California Constitution.

While those petitions were pending, and before this court decided whether to accept the matters for decision, the official proponents of Proposition 8 filed motions to intervene in each of the proceedings, to defend the validity of Proposition 8. Shortly thereafter, this court agreed to hear and decide the petitions and, in the same order, granted the official proponents' motions to intervene in the proceedings.*fn1

After briefing and oral argument, this court, on May 26, 2009, handed down its decision in Strauss, supra, 46 Cal.4th 364, concluding (1) that, under the California Constitution, Proposition 8 was a constitutional amendment, rather than a constitutional revision, and thus could be adopted through the initiative process, and (2) that the measure did not violate the separation of powers doctrine embodied in the California Constitution.

On May 22, 2009, just a few days before the decision in Strauss, supra, 46 Cal.4th 364, was filed, plaintiffs Kristin M. Perry, Sandra B. Stier, Paul T. Katami, and Jeffrey J. Zarrillo -- two same-sex couples who, after the adoption of Proposition 8, had sought but had been denied marriage licenses in Alameda County and Los Angeles County respectively -- filed the underlying action in the current matter in federal district court in San Francisco. (Perry v. Schwarzenegger (N.D.Cal. No. 3:09-cv-02292-VRW.)*fn2 Plaintiffs' complaint in Perry named as defendants in their official capacities the Governor of California, the Attorney General of California, the Director and the Deputy Director of the State Department of Public Health, the Alameda County Clerk-Recorder, and the Los Angeles County Registrar-Recorder/County Clerk. The complaint alleged that Proposition 8 violates the due process and equal protection clauses of the federal Constitution and sought injunctive and declaratory relief.*fn3

On May 28, 2009, the proponents of Proposition 8 and ProtectMarriage.com (hereafter Proponents) filed a motion to intervene in the Perry proceeding, maintaining that the existing parties in the action would not adequately represent the interests of those who wished to defend the measure.

On June 12, 2009, all named defendants filed answers to the complaint. In their answers, the named defendants other than the Attorney General refused to take a position on the merits of plaintiffs' constitutional challenge and declined to defend the validity of Proposition 8. The answer filed by the Attorney General also declined to defend the initiative, but went further and affirmatively took the position that Proposition 8 is unconstitutional.

On July 2, 2009, the district court held a hearing on a number of matters, including the motion to intervene filed by Proponents. At that hearing, the district court observed that "under California law, as I understand it, proponents of initiative measures have standing to represent proponents and to defend an enactment that is brought into law by the initiative process" and suggested that such intervention by the official initiative proponents was particularly appropriate "where the authorities, the defendants who ordinarily would defend the proposition or the enactment that is being challenged here, are taking the position that, in fact, it is constitutionally infirm[]." Neither plaintiffs nor any of the named defendants objected to Proponents' motion to intervene and the district court granted the motion.*fn4

Thereafter, Proponents participated as interveners in the district court trial in Perry. Indeed, Proponents were the only party in the district court to present witnesses and legal argument in defense of the challenged initiative measure.*fn5

At the conclusion of the trial, the district court issued a lengthy opinion, setting forth numerous findings of fact and conclusions of law and determining that Proposition 8 violates both the due process and equal protection clauses of the federal Constitution. (Perry I, supra, 704 F.Supp.2d 921.) The district court issued an order enjoining defendants in their official capacities, and all persons under their supervision or control, from applying or enforcing Proposition 8. (704 F.Supp.2d at p. 1003.) The Ninth Circuit subsequently issued an order staying the district court's judgment pending appeal, and as a result Proposition 8 remains in effect at the present time.

Proponents, as interveners in the district court, filed in the Ninth Circuit a timely appeal of the district court judgment invalidating Proposition 8.*fn6 None of the named defendants at whom the district court's injunction was directed appealed from the district court judgment, however, and, in an early order establishing a schedule for considering the appeal, the Ninth Circuit specifically requested the parties to brief the question whether Proponents have standing to appeal the district court's ruling.*fn7

In the briefs filed in the Ninth Circuit on that issue, plaintiffs argued that Proponents lacked standing to appeal and that, as a consequence, the appeal in Perry should be dismissed. Proponents vigorously contested plaintiffs' contention, pointing out that they had been permitted to intervene and participate as parties in defense of Proposition 8 both by this court in Strauss, supra, 46 Cal.4th 364, and by the district court in Perry, and asserting that they possessed the requisite standing under both California and federal law.*fn8

After conducting oral argument, the three-judge panel of the Ninth Circuit assigned to this case issued an order on January 4, 2011, requesting this court to answer the question of California law set forth above; namely, whether, under California law, the official proponents of an initiative measure that has been approved by the voters possess either "a particularized interest in the initiative's validity" or "the authority to assert the State's interest in the initiative's validity" so as to afford the proponents standing to defend the constitutionality of the initiative or to appeal a judgment invalidating the initiative when the public officials who ordinarily would provide such a defense or file such an appeal decline to do so. (Perry II, supra, 628 F.3d at p. 1193.) In its order, the Ninth Circuit indicated that the answer to this question of California law may well be determinative of the issue of standing for federal law purposes. (Id. at p. 1196.)

In explaining its reason for submitting this question to this court, the Ninth Circuit stated in part: "Although the Governor has chosen not to defend Proposition 8 in these proceedings, it is not clear whether he may, consistent with the California Constitution, achieve through a refusal to litigate what he may not do directly: effectively veto the initiative by refusing to defend it or appeal a judgment invalidating it, if no one else -- including the initiative's proponents -- is qualified to do so. Proponents argue that such a harsh result is avoided if the balance of power provided in the California Constitution establishes that proponents of an initiative are authorized to defend that initiative, as agents of the People, in lieu of public officials who refuse to do so. Similarly, under California law, the proponents of an initiative may possess a particularized interest in defending the constitutionality of their initiative upon its enactment; the Constitution's purpose in reserving the initiative power to the People would appear to be ill-served by allowing elected officials to nullify either proponents' efforts to 'propose statutes and amendments to the Constitution' or the People's right 'to adopt or reject' such propositions. Cal. Const., art. II, § 8(a). Rather than rely on our own understanding of this balance of power under the California Constitution, however, we certify the question so that the [California Supreme] Court may provide an authoritative answer as to the rights, interests, and authority under California law of the official proponents of an initiative measure to defend its validity upon its enactment in the case of a challenge to its constitutionality, where the state officials charged with that duty refuse to execute it." (Perry II, supra, 628 F.3d at p. 1197.)

On February 16, 2011, we agreed to decide the question of California law as requested by the Ninth Circuit and established an expedited briefing schedule that would permit this court to conduct oral argument in this matter as early as September 2011. All parties and numerous amici curiae timely filed briefs in this matter, and oral argument was held on September 6, 2011.

II. Relevance of State Law to Standing Under Federal Law

Decisions of the United States Supreme Court establish that the determination whether an individual or entity seeking to participate as a party in a federal court proceeding or to appeal from an adverse judgment entered in such a proceeding possesses the requisite standing to satisfy the "case or controversy" provisions of article III of the United States Constitution is ultimately a question of federal law upon which the federal courts have the final say. (See, e.g., Phillips Petroleum Co. v. Shutts (1985) 472 U.S. 797, 804.) As a consequence, many readers of this opinion may reasonably be uncertain why the Ninth Circuit has asked this court to advise it whether initiative proponents possess authority under California law to defend the validity of an initiative measure in a court proceeding in which the measure is challenged and, if so, the basis of such authority. In light of this potential confusion, we believe that it is useful and appropriate briefly to set forth, at the outset, our understanding of the federal decisions that discuss the role that state law plays in determining whether, under federal law, an individual or entity possesses standing to participate as a party in a federal proceeding. We emphasize that our discussion of federal decisions is not intended to, and does not purport to, decide any issue of federal law, and we fully recognize that the effect that this opinion's clarification of the authority official proponents possess under California law may have on the question of standing under federal law is a matter that ultimately will be decided by the federal courts.

As the question posed by the Ninth Circuit indicates, in the present case two potential bases for standing are implicated: (1) The official proponents of a successful initiative measure may have authority to appear in court to assert the state's interest in defending the validity of a duly enacted state law,*fn9 or (2) the official proponents may have their own personal "particularized" interest in the initiative's validity. We briefly discuss the federal decisions that analyze the effect of state law on each of these potential bases for standing in federal court.

A. Standing to Assert the State's Interest in an Initiative's Validity

With respect to the question of who possesses standing to assert the state's interest in defending the validity of a state constitutional provision or statute when the state measure is challenged in a federal proceeding, we believe the United States Supreme Court's decision in Karcher v. May (1987) 484 U.S. 72 (Karcher) strongly indicates that a federal court will look to state law to determine whom the state has authorized to assert the state's interest in the validity of the challenged measure.

In Karcher, a lawsuit was filed in federal district court contending that a recently enacted New Jersey statute that required primary and secondary public schools in that state to observe a minute of silence at the start of each school day was unconstitutional as a violation of the establishment clause of the First Amendment of the federal Constitution. When it became apparent at the outset of the litigation that neither the current New Jersey Attorney General nor any of the named government defendants -- the New Jersey Department of Education, the department's commissioner, and two local boards of education -- would defend the validity of the challenged statute, the then Speaker of the New Jersey General Assembly (Karcher) and the then President of the New Jersey Senate (Orechio) sought and were granted the right to intervene as defendants to defend the challenged statute on behalf of the state legislature. In the proceedings in district court, the legislature, through its presiding officers, carried the entire burden of defending the statute. The district court ultimately concluded that the statute was unconstitutional and entered judgment invalidating the statute.

Karcher and Orechio, acting in their official capacities as Speaker of the New Jersey General Assembly and President of the New Jersey Senate, appealed the district court judgment to the Court of Appeals for the Third Circuit. The Third Circuit heard the appeal on the merits and ultimately affirmed the district court decision invalidating the statute.

After the Third Circuit handed down its decision, Karcher and Orechio lost their posts as presiding legislative officers and were replaced by other legislators in those legislative posts. Despite this change in status, Karcher and Orechio filed an appeal of the Third Circuit decision in the United States Supreme Court. The new state legislative presiding officers who had replaced Karcher and Orechio notified the United States Supreme Court that they were withdrawing the legislature's appeal, but at the same time informed the court that Karcher wanted to continue his appeal of the Third Circuit decision in the Supreme Court. Karcher confirmed that position.

The United States Supreme Court postponed consideration of the jurisdictional issue pending its hearing of the case, and, after oral argument, the high court issued its decision, concluding that because Karcher and Orechio were no longer the legislative leaders of the respective houses of the New Jersey Legislature, they lacked standing to appeal. The court explained: "Karcher and Orechio intervened in this lawsuit in their official capacities as presiding officers on behalf of the New Jersey Legislature. They do not appeal the judgment in those capacities. Indeed, they could not, for they no longer hold those offices. The authority to pursue the lawsuit on behalf of the legislature belongs to those who succeeded Karcher and Orechio in office." (Karcher, supra, 484 U.S. at p. 77.)

Karcher and Orechio further argued that if, as the high court concluded, their appeal was to be dismissed for want of jurisdiction, the court should also vacate the judgments of the district court and the Third Circuit that had invalidated the statute at issue. In rejecting this claim, the Supreme Court relied explicitly on the fact that New Jersey law permitted the current presiding legislative officers, acting on behalf of the state legislature, to represent the state's interest in defending a challenged state law. The court observed: "The New Jersey Supreme Court has granted applications of the Speaker of the General Assembly and the President of the Senate to intervene as parties-respondent on behalf of the legislature in defense of a legislative enactment. In re Forsythe, 91 N.J. 141, 144, 450 A.2d 499, 500 (1982). Since the New Jersey Legislature had authority under state law to represent the State's interests in both the District Court and the Court of Appeals, we need not vacate the judgments below for lack of a proper defendant-appellant." (Karcher, supra, 484 U.S. at p. 82, italics added.)*fn10

As the foregoing emphasized passage demonstrates, in Karcher the Supreme Court looked to state law to determine whether a prospective litigant had authority to assert the state's interest in defending a challenged state measure in federal court. Upon reflection this result is not surprising, inasmuch as logic suggests that a state should have the power to determine who is authorized to assert the state's own interest in defending a challenged state law.

As plaintiffs accurately point out, Karcher, supra, 484 U.S. 72, did not involve a challenge to an initiative measure and did not address the question whether the official proponents of an initiative could properly assert the state's interest in defending the validity of such an initiative. Plaintiffs also note that in its subsequent decision in Arizonans for Off. Eng. v. Arizona (1997) 520 U.S. 43 (Arizonans for Official English), which did involve the question of official initiative proponents' standing under federal law to appeal a judgment invalidating an initiative measure, the United States Supreme Court expressed "grave doubts" (id. at p. 66) whether the initiative proponents in that case possessed the requisite standing and distinguished its earlier decision in Karcher. A close review of the relevant portion of the opinion in Arizonans for Official English, however, indicates that the doubts expressed by the high court in that case apparently arose out of the court's uncertainty concerning the authority of official initiative proponents to defend the validity of a challenged initiative under Arizona law. The relevant passage does not suggest that if a state's law does authorize the official proponents of an initiative to assert the state's interest in the initiative measure's validity when public officials have declined to defend the measure, the proponents would lack standing to assert that interest in a federal proceeding.

In addressing the standing issue in Arizonans for Official English, supra, 520 U.S. 43, the high court stated in relevant part: "Petitioners argue primarily that, as initiative proponents, they have a quasi-legislative interest in defending the constitutionality of the measure they successfully sponsored. [The initiative proponents] stress the funds and effort they expended to achieve adoption of [the initiative]. We have recognized that state legislators have standing to contest a decision holding a state statute unconstitutional if state law authorizes legislators to represent the State's interests. See Karcher v. May, 484 U.S. 72, 82 (1987). [The initiative proponents], however, are not elected representatives, and we are aware of no 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. Cf. Don't Bankrupt Washington Committee v. Continental Ill. Nat. Bank & Trust Co. of Chicago, 460 U.S. 1077 (1983) (summarily dismissing for lack of standing appeal by an initiative proponent from a decision holding the initiative unconstitutional)." (520 U.S. at p. 65, italics added, fn. omitted.)

Although for the foregoing reasons the court expressed "grave doubts" whether the initiative proponents in question had standing under article III to pursue appellate review (Arizonans for Official English, supra, 520 U.S. at p. 66), the court went on conclude that "we need not definitely resolve the issue" of the initiative proponents' standing (ibid.) because it concluded that, in any event, a change in the status of the plaintiff in that case rendered the litigation moot and justified vacating the lower federal court rulings that had invalidated the initiative measure. (See id. at pp. 67-80.)

As the emphasized portion of the passage from Arizonans for Official English quoted above indicates, the high court's doubts as to the official initiative proponents' standing in that case were based, at least in substantial part, on the fact that the court was not aware of any "Arizona law appointing initiative sponsors as agents of the people of Arizona to defend . . . the constitutionality of initiatives made law of the State." (Arizonans for Official English, supra, 520 U.S. at p. 65.) In our view, nothing in that decision indicates that if a state's law does authorize the official proponents of an initiative to assert the state's interest in the validity of a challenged state initiative when the public officials who ordinarily assert that interest have declined to do so, the proponents would not have standing to assert the state's interest in the initiative's validity in a federal lawsuit in which state officials have declined to provide such a defense.*fn11

We note in this regard that in its order submitting the present question to this court, the Ninth Circuit stated explicitly that, in its view, if the official proponents of an initiative have authority under California law to assert the state's interest in the initiative measure's validity in such a case, then, under federal law, the proponents would have standing in a federal proceeding to assert the state's interest in defending the challenged initiative and to appeal a judgment invalidating the initiative. (Perry II, supra, 628 F.3d at p. 1196.) Furthermore, although the parties before us emphatically disagree as to whether California law authorizes the official proponents of an initiative to assert the state's interest in the validity of a voter-approved initiative measure, in the briefs filed both in the Ninth Circuit and in this court all parties agree with the Ninth Circuit's statement that if the official proponents do have authority under California law to assert the state's interest in such a case, then under federal law the proponents would have standing in a federal proceeding to defend the initiative and to appeal a judgment invalidating it.

B. Standing Based on "Particularized Interest"

Under the controlling federal authorities, the role that state law plays in determining whether an official proponent of a successful initiative measure has a sufficient personal "particularized interest" in the validity of the measure to support the proponent's standing under federal law appears to be more complex than the role played by state law when the official proponent is authorized by state law to assert the state's interest in the validity of the initiative.

Under the particularized interest standard, federal decisions establish that a federal court considers whether a prospective party is able to demonstrate "an invasion of a legally protected interest which is (a) concrete and particularized, . . . and (b) 'actual or imminent, not "conjectural" or "hypothetical." ' " (Lujan v. Defenders of Wildlife (1992) 504 U.S. 555, 560.) In Lujan, the high court further explained that "[b]y particularized, we mean that the injury must affect the plaintiff in a personal and individual way." (Id. at p. 560, fn. 1.) Although the United States Supreme Court has recognized that a state "has the power to create new interests, the invasion of which may confer standing" under federal law (Diamond v. Charles, supra, 476 U.S. 54, 65, fn. 17), not every interest that state law recognizes as conferring standing on an individual or entity to institute or to defend a particular kind of lawsuit in state court will be sufficient to establish that the individual or entity has a particularized interest to bring or defend an analogous lawsuit in federal court. (Compare Code Civ. Proc., § 526a [state law recognizing standing of taxpayer to challenge illegal expenditure of public funds in state court] with DaimlerChrysler Corp. v. Cuno (2006) 547 U.S. 332, 342-346 [state taxpayer lacks standing to challenge the constitutionality of state tax credit in federal court].) Under the governing federal cases, whether a right created by state law is sufficient to support federal standing under the particularized interest test necessarily depends upon the nature of the right conferred by the state and the nature of the injury that may be suffered by the would-be litigant. (Cf. Warth v. Seldin (1975) 422 U.S. 490, 500.)

In the present case, the parties disagree as to whether an official initiative proponent possesses a special or distinct interest in the validity of an initiative measure the proponent has sponsored once the initiative has been approved by the voters and adopted as state law, and, even if so, whether the nature of that interest and of the injury the proponent would suffer if the initiative measure is invalidated are sufficient to accord the proponent standing for federal law purposes under the particularized interest standard.

Proponents maintain that because they possess a fundamental right under the California Constitution to propose statutory or constitutional changes through the initiative process (see, e.g., Costa v. Superior Court (2006) 37 Cal.4th 986, 1007), they possess a personal, particularized interest in the validity of an initiative measure that they have proposed and that has been approved by the voters, an interest that would go undefended if they are not permitted to provide such a defense when the public officials who ordinarily defend a challenged state law decline to do so. Proponents argue that their personal, fundamental right guaranteed by the initiative provision would be nullified if a voter-approved measure they have sponsored is ...


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