The reason has to do with the nature of the court's action. The Supreme Court did not rule on the constitutionality of Proposition 8 itself. Rather, it decided an issue of standing, concluding that the initiative's backers had not been directly harmed by a lower-court ruling that the law was unconstitutional and that they therefore lacked standing to appeal that ruling. Since the elected officials who did have standing chose not to appeal, the earlier decision stood.
In the wake of the court's ruling, initiative proponents have begun writing instructions into proposed laws that would allow them to assume the power to act on behalf of the state if elected officials declined to do so.
An initiative having to do with online privacy, for example, authorizes the initiative's proponents to "act as agents of the people of the state" in the event the state declined to defend it.
A measure calling for California to be divided into six states includes a provision that the measure's author himself would "supervise the legal defense provided by the attorney general." Moreover, if he deems that defense inadequate, he is authorized to hire outside counsel that would be paid for by the state.
And an initiative seeking to enhance redevelopment activity in the state provides that the proponents could hire "legal counsel of their choosing," also at state expense, in the event the relevant state officials declined to defend the initiative in court.
All three initiatives are still in the signature-gathering phase, but Californians should be alarmed.
However voters may feel about the substance of the initiatives themselves, these kinds of clauses pose numerous problems. First, court proceedings and the positions taken by the state in court can end up binding the state in ways that have legal and financial consequences. Initiative proponents have no special training to enable them to adequately represent the state's interests, or to select counsel to do so. No institutional resources or structures exist to ensure that positions taken by initiative proponents in court are in the best interests of the state.
Another problem is that, unlike elected officials who run for office and are subject to recall and term limits, proponents of these initiatives would be granted power to act on behalf of their measures indefinitely, with no political accountability. They could take extreme positions in court or ignore changes in circumstances, priorities or the will of the voters that develop over time. And there is no political process, short of a costly new initiative, that would enable Californians to limit or control their authority in the future.
Moreover, because initiative proponents are not subject to the same ethical obligations and disclosure requirements as candidates, voters have no reliable way to gather information about the integrity or qualifications of an initiative proponent.
There is also a very real question whether a provision that establishes proponent standing even complies with California law. 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.
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. Whether authorizing proponents to make critical litigation decisions on behalf of the state violates this restriction could take years to resolve.
In the meantime, as Californians wait for meaningful initiative reform, we should think twice before voting for any ballot measure that would allow unaccountable initiative proponents to supersede the judgment of elected officials about how to represent the state in court.