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Law School Case Brief

Perry v. . Schwarzenegger - 628 F.3d 1191 (9th Cir. 2011)


In California, all political power is inherent in the people, Cal. Const. art. II, § 1, and that to that end, Cal. Const. art. II, § 8(a) provides, The initiative is the power of the electors to propose statutes and amendments to the Constitution and to adopt or reject them


In May 2008, the Supreme Court of California declared that California statutes limiting marriage to opposite-sex couples were unconstitutional under the equal protection clause of the California Constitution. Nevertheless, in November 2008, the People of the State of California voted to adopt Proposition 8, an initiative constitutional amendment that added a new section (i.e., section 7.5) to Article I of the California Constitution. The aforementioned section provided that only marriage between a man and a woman is valid or recognized in California. Proposition 8 had been placed on the ballot by five Californians, Defendants-Intervenors-Appellants Dennis Hollingsworth, Gail J. Knight, Martin F. Gutierrez, Hak-Shing William Tam, and Mark A. Jansson, whom California law recognized as the official proponents of the measure.  After Proposition 8 was enacted, opponents of the measure brought an original action for a writ of mandate in the Supreme Court of California, seeking invalidation of Proposition 8 as an improper attempt by the People to revise, rather than amend, the California Constitution through exercise of the initiative power. The United States District Court for the Northern District of California, San Francisco found the initiative unconstitutional under Equal Protection and Due Process grounds. Only the proponents-intervenors--and not the original defendants of the case--appealed. 


In a case involving California's Proposition 8, did the proponents-intervenors have the standing to appeal the judgment of the District Court, notwithstanding the fact that the original defendants had opted not to do so?




The panel of the United States Court of Appeals considered the appeal concerning the constitutionality under the United States Constitution of Article I, § 7.5 of the California Constitution ("Proposition 8"). The Court held that under the law of California, "all political power is inherent in the people." Since its inception, the power of the citizen initiative has enjoyed a highly protected status in California. The Court ruled that under California law, the proponents of an initiative may possess a particularized interest in defending the constitutionality of their initiative upon its enactment. The Court averred that 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. The Court questioned whether the proponents had standing to appeal when the original defendants had opted not to do so. The question certified to the state supreme court was whether under Article II, Section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure possessed 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 refused to do so.

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