Tuesday, June 14, 2011


Attorney General Kamala D. Harris submits this brief as amicus curiae pursuant to California Rules of Court, rule 8.520(f)(8). Although the Attorney General, in her official capacity, was a defendant in the underlying case in the United States District Court, she did not appeal the judgment, so she is not a party to the underlying appeal or to these proceedings. But the question certified to this Court by the Ninth Circuit, if answered affirmatively, threatens to intrude on the exercise of discretionary powers that the California Constitution and the Government Code entrust to state officials exercising executive power. Therefore, the Attorney General, whom the Constitution appoints the chief law officer of the state (Cal. Const. art. V, § 13), submits that the correct answer to the certified question is “no.” Standing alone, the role of official proponents in the exercise of the initiative power does not confer on the proponents of a successful initiative a substantive right either to defend that measure or to appeal a judgment invalidating it.
The question certified reveals two basic misunderstandings about the initiative power. First, it confuses the authority and role of “proponents” under California law with the authority and role of “the electors.” The initiative is the power of the electors, as a whole, to propose and adopt or reject laws. (Cal. Const., art. II, § 8.) The initiative power does not belong
to the individual, or individuals, who propose a particular initiative. Second, the initiative power is a legislative power of government. As a legislative power, the power of initiative is fully executed on adoption of the measure. And, as a legislative power, the adoption of an initiative measure does not authorize its proponents to exercise any part of the executive power of government, either to enforce the measure, to defend the measure’s validity, or to appeal a decision enjoining its enforcement. The constitutional and statutory authority to act on behalf of the state remains vested in public officials acting in an executive capacity.
Proponents of an initiative measure surely remain interested in its validity once it becomes law. And state courts recognize that interest by liberally granting proponents permissive leave to intervene (and to participate as amicus curiae) in cases challenging the validity of a successful initiative measure. In other cases, the validity of a measure may affect the lives of initiative proponents (or other members of the public) in a personal way that would permit them to sue or to defend their own legal interests in court. But once an initiative measure has become the law of the state – just as with laws passed by the Legislature – only public officials exercising the executive power of government have the legal authority to represent the state’s interest and to decide whether to defend or to appeal an adverse judgment in the name of the state. California law affords an initiative’s proponents no right to defend the validity of a successful initiative measure based only on their role in launching an initiative process.

If you would like to read Kamala Harris' Amicus Brief in full download the pdf file here.

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