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October 21, 2013

Can Executive Officials 'Veto' Initiatives Passed by the Voters?

By Professor Karl Manheim and Adjunct Professors John S. Caragozian and Donald Warner

This op-ed originally appeared in the Oct. 21 edition of the Los Angeles Daily Journal.

A case has reached the 9th U.S. Circuit Court of Appeals that may further determine the fate of the initiative process in California. In Vivid Entertainment v. Fielding, No. 13-56445 (9th Cir. filed Aug. 20, 2013), the court is being asked whether an initiative will be invalidated, even after its constitutionality has been upheld at trial, because executive officials have abandoned its defense.

Vivid follows on the heels of Hollingsworth v. Perry, decided by the Supreme Court in June. In Hollingsworth, same-sex California couples challenged voter-approved Proposition 8, which had banned same-sex marriage. The U. S. district court ruled that Prop. 8 was unconstitutional, and state officials refused to appeal. Accordingly, Prop. 8's official proponents -- who had successfully intervened as defendants at trial -- appealed. The 9th Circuit affirmed the district court's ruling of unconstitutionality, and the proponents petitioned for certiorari.

The Supreme Court held that Prop. 8 proponents lacked Article III standing and dismissed the appeal. Chief Justice John Roberts' majority opinion stated that only state "officials" may represent the state's interests in defending a voter-enacted initiative. Although the California Supreme Court earlier had held that Prop. 8's official proponents were authorized by state law to represent the state's interests, Roberts characterized the proponents as mere "bystanders" for Article III purposes.

Vivid challenges another voter-passed initiative, and elected officials are again refusing to defend it. Measure B, which was passed by Los Angeles County voters, requires, inter alia, condom use by actors in adult films made in the county. Vivid's plaintiffs -- movie producers and actors -- sued the county in U. S. district court, claiming that Measure B was an unconstitutional restriction on expression.

The district court upheld Measure B's condom-use requirement, and the plaintiffs appealed to the 9th Circuit. However, the county -- for unexplained reasons -- chose not to file a responsive brief. Accordingly, Measure B's official proponents -- who had successfully intervened at trial -- asserted their own right to defend Measure B on appeal. Vivid's plaintiffs have now moved to dismiss proponents from the case for lack of standing, citing Hollingsworth.

On the surface, the motion would seem to be well founded. After all, Hollingsworth held that Prop. 8's proponents lacked standing in federal court. However, two legal details might distinguish Vivid from Hollingsworth.

First, Measure B's proponents have attempted to avoid Hollingsworth by arguing that only appellants need to have standing. In Hollingsworth, it was proponents who appealed the judgment after the initiative was invalidated by the district court. But, according to the Supreme Court, their lack of official status meant they had no standing to prosecute an appeal. In contrast, Measure B's proponents prevailed in district court. They argue that once an appeal has been commenced by a party with standing, like the Vivid plaintiffs, initiative proponents need not independently have standing as appellees. Hollingsworth raised no such distinction; indeed, it was not an issue there. It remains to be seen whether the 9th Circuit will give the argument any credence.

Second, in Hollingsworth, the state officials' decision not to appeal meant that neither the 9th Circuit nor the Supreme Court had jurisdiction to review the district court's judgment invalidating Prop. 8. However, in Vivid, the county's choice not to file a responsive brief does not mean that the 9th Circuit loses jurisdiction. Nor does it mean that the measure's opponents -- namely, the movie producers and actors -- will automatically win their appeal. Under Federal Rule of Appellate Procedure 31(c), an appellee's failure to file a brief means only that the appellee "will not be heard at oral argument unless the court grants permission." The court could still decide the case on the merits, either affirming or reversing the district court's judgment, despite the lack of defense by an appearing party with standing.

Measure B's proponents believe that the Article III standing question may have literal life-or-death consequences for actors who may be endangered by AIDS and other sexually transmitted diseases without a condom requirement. But there may be no one left to make that argument in the 9th Circuit.

More broadly, Hollingsworth and Vivid pose a serious threat to the initiative process in California. If a statewide or local initiative succeeds at the ballot box, it may well be challenged (as many are). The right of the initiative's proponents to defend the initiative against the challenge is especially important. State or local officials are often indifferent to or even have opposed the initiative and choose not to defend it. If elected officials have the exclusive right to defend initiatives, then they would effectively have a "veto" over them. This would undermine the very purpose of the initiative process: to bypass the established government structure and allow voters to exercise their ultimate political power, as guaranteed to them by the state constitution.

California law precludes this type of executive control over initiatives. If an initiative is challenged in state court, the initiative's official proponents' standing to defend "their" initiative is not questioned.

However, federal jurisdiction now differs from state practice. If the initiative is challenged in federal court, Hollingsworth denies the proponents the right to defend it, thus giving elected officials a powerful tool -- effectively, an "executive veto" -- in fighting popular initiatives.

Vivid appears to be the first post-Hollingsworth case to test the underlying question of elected officials' control of the initiative process in California. Regardless of how the 9th Circuit rules, proponents will need to be creative when their initiatives are challenged in federal court. For example, would an adult movie actor have Article III standing to defend measure B if the actor alleged that, without it, he or she would lose employment by insisting on condom use?

We think that the initiative process has its defects, especially when it comes to enshrining base prejudice into the state constitution or serving moneyed interests. However, if direct democracy is to survive in California, there will have to be a way around Hollingsworth. We will know more when the 9th Circuit decides Vivid.

Karl Manheim is professor of law at Loyola Law School, Los Angeles. John Caragozian and Donald Warner are adjunct professors at Loyola. They are writing on article on the Proposition 8 case, Hollingsworth v. Perry.