Walter Dellinger’s amicus brief in support of the plaintiffs challenging Proposition 8 contends that Prop 8 proponents don’t have standing to defend the constitutionality of Prop 8 and that the Supreme Court therefore doesn’t have jurisdiction to decide the merits of the Prop 8 challenge. I will explain in this post that Dellinger is mistaken (and why I instead agree with the position set forth in Prop 8 proponents’ briefs and in the amicus brief (pp. 12-20, in particular) filed by former Attorney General Edwin Meese and John Eastman).
First, some brief background: When the question of Prop 8 proponents’ standing to defend Prop 8 was raised on appeal, the Ninth Circuit panel presented (“certified”) to the California supreme court the question whether under California law
the official proponents of an initiative measure possess 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 refuse to do so.
Answering the second part of the question in the affirmative (and taking a pass on the first part), the unanimous California supreme court explained that “it is essential to the integrity of the initiative process” that “the official proponents of an initiative (in light of their unique relationship to the initiative measure under [California law])” be able to “assert the state’s interest in an initiative’s validity on behalf of the people when the public officials who normally assert that interest decline to do so.”
On the basis of this authoritative reading of state law by the California supreme court, the Ninth Circuit determined that Prop 8 proponents did have standing to defend Prop 8.
The heart of Dellinger’s argument—the part that directly contests the Ninth Circuit’s reliance on the California supreme court’s opinion on the certified question of state law—is set forth in Part III of his brief (pp. 19-30). Dellinger’s argument has two steps. In the first step, which he makes only in passing, Dellinger posits that “established common-law agency principles” limit whom a state may designate to assert and defend the state’s interest. In the second step, he contends that Prop 8 proponents are not agents of the state under those common-law principles. Both steps, I believe, are flawed.
On the first step: Just as federal separation-of-power principles do not bind the states (a point Dellinger expressly acknowledges (p. 20)), neither do I see how the federal Constitution limits the ability of a state to designate who has the authority to assert and defend the state’s interest in a law.
In Arizonans for Official English v. Arizona (1997), in expressing in dicta its “grave doubts” about whether the proponents of the initiative in that case had standing, the Court noted that it was “aware of no Arizona law appointing initiative sponsors as agents of the people of Arizona to defend, in lieu of public officials, the constitutionality of initiatives made law of the State.” Dellinger would read into that single reference to “agents” the technical limitations of “established common-law principles.” But the term agent has a much more expansive ordinary meaning—a person who acts on behalf of another. It is clearly that more expansive meaning that the phrase “agents of the people” captures. When we refer to elected officials as “agents of the people,” we are not applying technical common-law principles of agency: we obviously don’t mean, for example, that the usual legal remedies available against common-law agents for violation of their agency agreement are available against elected officials.
Further, even the federal government, which is subject to federal constitutional principles in designating who may act on its behalf, is clearly not constrained by common-law principles of agency. Dellinger invokes Vermont Agency of Natural Resources v. United States ex rel. Stevens (2000), but the case cuts decisively against him. The issue in that case was whether a private individual, or “relator,” could bring suit in federal court on behalf of the United States against a state agency under the False Claims Act. Under the False Claims Act, a relator sues for himself and for the United States, and if he wins an award of damages for the United States, he is entitled to receive a share of the proceeds. In his majority opinion, Justice Scalia carefully distinguishes between the relator’s right to obtain recovery for the United States and his right to retain a portion of the recovery for himself. With respect to the relator’s right to obtain recovery both for himself and for the United States, Scalia states that “[i]t would perhaps suffice to say that the relator here is simply the statutorily designated agent of the United States” (emphasis added)—with no limitation at all to common-law principles of agency. It’s only because the False Claims Act also “gives the relator himself an interest in the lawsuit” (emphasis in original) that Scalia concludes that “[f]or the portion of the recovery retained by the relator, some explanation of standing other than agency for the Government must be identified.” In other words, the relator’s status as a “statutorily designated agent of the United States”—again, completely apart from common-law agency principles—clearly suffices to give him standing to pursue that portion of the overall recovery that the United States retains.
As for the second step: Prop 8 proponents are as much agents of the state under the common-law agency principles that Dellinger identifies as state officials are. Dellinger contends that Prop 8 proponents “do not have a fiduciary duty to the people” of California. But, as the California supreme court explained, it is precisely the “unique relationship” that the official proponents of an initiative have to that initiative that explains why state law trusts them—and gives them the fiduciary responsibility—to assert and defend the state’s interest in the initiative.
Dellinger contends that the California supreme court “held that the proponents are subject only to the ethical constraints that apply to all other civil litigants.” (Emphasis added.) The passage of the court’s opinion that Dellinger cites is explaining that the authority that Prop 8 proponents have is “extremely narrow and limited” and “does not imply any authority to act on behalf of the state in other respects.” The court is not providing a general description of proponents’ obligations in this passage. Further, it states that proponents “are properly subject to the same ethical constraints that apply to all other parties in a legal proceeding,” not (as Dellinger misleadingly asserts) that they are subject only to those constraints.
In a gross misrepresentation, Dellinger also alleges that Prop 8 proponents acted contrary to what a fiduciary duty would require when they supposedly “urged the district court to retroactively deny recognition to [same-sex] couples married under prior law and to set aside any other state polices [sic], presumably including laws providing gay men and lesbians equal rights to rear children, if that were necessary to vindicate the initiative.” But in the pleading that Dellinger cites, Prop 8 proponents are responding to the argument by plaintiffs that Prop 8 was unconstitutional because it purportedly couldn’t be reconciled with other aspects of California law. It was the anti-Prop 8 plaintiffs, in other words, who were arguing to the district court that Prop 8 was irrational and unconstitutional because it left in place the same-sex marriages that occurred in California before Prop 8’s adoption while forbidding any further same-sex marriages and because it left in place the provision of equal rights to gays and lesbians while denying them the word marriage. What Prop 8 proponents said in response (p. 50 here (emphasis added)) was:
If, as Plaintiffs maintain, Proposition 8 cannot be reconciled with its own nonretrospective application, as interpreted by the California Supreme Court, or with any other feature of California law, the remedy that would “yield to the constitutional expression of the people of California’s will” is sustaining Proposition 8 by giving it retrospective effect or invalidating the conflicting feature of California law.
In sum, as the broader context shows, Prop 8 proponents were faithfully striving to defend Prop 8 and other state laws against plaintiffs’ claim that they were in conflict—and merely pointing out the rule, as old as Marbury v. Madison, that if there was a conflict, it is the constitutional provision, not the conflicting statutory law (or judicial interpretation), that must prevail.
Dellinger’s baseless claim that Prop 8 proponents acted contrary to what a fiduciary duty would require is all the more galling when we recall how the state officials charged with defending Prop 8 in the first instance failed to carry out their fiduciary duty to do so.
In support of his claim that Prop 8 proponents don’t have a fiduciary duty to the people of California and therefore aren’t agents of the state, Dellinger contends that it is “especially telling” that Prop 8 proponents, unlike the state attorney general, don’t take an oath and aren’t required to devote their entire time to the service of the state. But there is nothing in the “established common-law agency principles” that Dellinger invokes, or in fiduciary principles more specifically, that remotely suggests that the existence of a fiduciary duty depends on the taking of an oath and the devotion of one’s entire time to the duty.
Dellinger also contends that Prop 8 proponents aren’t agents of the state because they are “not subject to control by the people or the state.” By contrast, he contends, the state attorney general “must stand for elections at regular intervals” and “is subject to a recall election at any time.” But the contrast that Dellinger draws is an illusory one, as the people of California, through the initiative process, have the ultimate authority, exercisable at regular intervals, to amend the state constitution to bar initiative proponents generally, or Prop 8 proponents specifically, from asserting and defending the state’s interest. So Prop 8 proponents are subject to control by the people—an imperfect control, to be sure, but no less imperfect than that exercisable over state officials.
Dellinger also claims that the California supreme court never “suggested that the proponents were agents of the state or the people” and that it “did not even use the word ‘agent’ in its decision,” other than in “one quotation” of a Supreme Court ruling. But the California supreme court in fact quoted the Ninth Circuit’s use of the phrase “agents of the People” in setting forth the very question that the California supreme court was answering.
Prop 8 proponents have standing to defend Prop 8, and the Court has jurisdiction to decide the merits of the case.