Has Prop 8 litigation permanently undermined California initiatives and the rule of law?

When the voters of California enacted Proposition 8 in 2008, which amended the state Constitution to read, "Only marriage between a man and a woman is valid or recognized in California," litigation ensued. But the executive officials in California tasked with defending the law in court declined. Instead, proponents of the measure intervened to defend the law.

To avoid a lengthy discussion of events that have already occurred, intervenors did defend the law but were found to lack the authority to appeal an adverse judgment. The Supreme Court this year in Hollingsworth v. Perry affirmed that holding.

So, too, did the voters of Los Aneles County enact Measure B in 2012, which required performers in pornographic films to wear condoms. In Vivid Entertainment v. Fielding , a pornographic film studio sought to enjoin enforcement of the measure. In its answer, the County included the following as its first affirmative defense:

Defendants reserve the right to have proponents of Measure B intervene and defend the constitutionality of Measure B in light  of Perry v. Brown.

(Perry v. Brown being the Proposition 8 case in the California Supreme Court that held that initiative proponents have authority to defend the initiative's validity when elected officials so decline.)

Moreover, when Measure B's proponents did move to intervene, the County filed a notice of "non-opposition" and went further, explaining, "Defendants have indicated in their Answer that Measure B's proponents were necessary parties in litigating the constitutionality of Measure B."

Ultimately, the district court  allowed intervention.

I do not live in Los Angeles County, and I make no claim as to the wisdom of such a regulation, but I offer these thoughts. 

An affirmative defense is usually the kind of thing that would exculpate the defendant in the litigation. But I've never run across the possibility of Rule 24 intervention as an affirmative defense, as opposed to, what I suspect may be the case, merely an indirect way for the defendant to signal to the court, to the parties, and to the public how it intends to behave.

Furthermore, initiative proponents are almost assuredly not "necessary" parties in federal court. Among other things, Rule 24 requires that a party have a "substantial legal interest" in the litigation. Borrowing substantial precedent from other cases, merely advocating for a ballot question, absent regulation of the organization itself or its members, and absent members who would personally have a substantial legal interest, is insufficient for Rule 24 intervention. See, e.g., Northland Family Planning Clinic, Inc. v. Cox, 487 F.3d 323 (2007) (rejecting intervention for initiative proponents); Coalition to Defend Affirmative Action v. Granholm, 501 F.3d 775 (6th Cir. 2007) (same).

And although Judge Reinhardt on behalf of a panel in the Ninth Circuit once concluded in 1991, "There appears to be a virtual per se rule that the sponsors of a ballot initiative have a sufficient interest in the subject matter of the litigation to intervene," six years later the Court expressed "grave doubts" in Arizonans for Official English v. Arizona, reiterated by the Court in Hollingsworth, about the analysis .

Admittedly, in many of these cases, the existing parties may well represent the interests of the absent organizations, particularly as they were not abstaining from defending the law.  But that is another prong of the analysis, not one that can overcome the requirement that a party seeking to intervene assert a substantial legal interest.

But, worse than this pair of misguided statements of procedure, California has now incentivized public officials to disclaim defense of initiatives and turn over their public duties to private citizens. 

It is understandable, of course, that public officials would regularly not be enthused with the results of a popularly-enacted initiative. Such direct democracy often occurs because the ordinary legislative channels have failed to enact the very law that the people have just enacted. 

But now public officials have begun to evade their duties, and their oath, to uphold the law, outsourcing the task to roving citizens' groups to take on their job. 

Perhaps the refusal of a public official to defend a popular initiative should trigger an immediate recall election--although, admittedly, the enforceability of defining "refusal" may be problematic. But if the public officials of a state intend to stop enforcing laws enacted by initiative, then the initiative process itself may well be permanently undermined in California.