International Municipal Lawyers Association - Local Government Blog

Removal of Appointed Members of Planning and Zoning Boards

August 12, 2009
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Posted By: Professor Patricia E. Salkin

I often field phone calls asking whether planning and zoning members can be removed from office by the local legislative body.  Usually, the context involves board members who are allegedly “out of touch” with community desires and goals, or who “blatantly ignore” the urging of the appointing official or board.  Most of the time, however, state statutes and local laws provide that board members can only be removed “for cause,” yet the laws rarely define this phrase.  I typically try to engage in a conversation over what might be examples of “for cause.”  For instance, whether the board member missed a lot of meetings; whether the board member attended a number of meeting visibly (and perhaps verbally) unprepared; whether the board member failed to follow the by-laws or rules of procedure; and whether the board member consistently demonstrates a refusal to follow the applicable law.  Oftentimes, the answer to these questions is no, but the desire for removal seems more closely aligned with political motivations.  In these cases, I typically advise that the public relations nightmare and accompanying lawsuit that will follow, may not be worth the removal action. 

A recent federal district court case from Connecticut is instructive as to the legal analysis regarding the question of whether a federally protected property interest attaches to the position of planning and zoning board member.

Closson was appointed to the planning and zoning commission in 1997 and in 2005 he was elected by members of the commission to serve as chairman.  He was reelected as chairman in 2006 and 2007, and in 2007 he was reappointed by the Board of Selectmen to the commission. In 2008, the Board sent Closson a letter informing him that the Board intended to remove Closson for cause citing various alleged failures to amend the plan of conservation and development. About 10 days later, the Board held a hearing on the removal, and Closson presented evidence in his defense and argued that his performance was satisfactory. Two weeks later, the Board voted to remove Closson, and a week later Closson filed a lawsuit in state court alleging a violation of his due process.  The suit was removed to federal court.

On a motion to dismiss, the Town argued that Closson has no property interest in an voluntary, unpaid position as a commission member, and that he did receive due process regarding his removal. The District Court concluded that Closson did have a property interest in the appointed position, citing Connecticut state case law holding that an appointed fire marshall who received $70 per month and could only be removed for cause, had a continuing property interest in the appointment, the Court noted that under the Town Charter, Closson could only be removed for cause. The Court said, “it seems unlikely that Closson’s position as an unpaid, rather than minimally paid, appointee would change the Connecticut Supreme Court’s determination that such positions are property under Connecticut law.”  The Court then considered whether Closson’s property interest rises to the level of a federally protected interest.  While the Second Circuit has held that municipal board members do not enjoy federal constitutional protections of their positions, Closson argued that his position was appointed and not elected and therefore should be held to a different standard.  The District Court held, however, concluded that there is no federal due process protection for an unpaid, volunteer position on a municipal board, whether elected or appointed.

Closson v. Board of Selectmen, Town of Winchester, 2009 WL 1538138 (D. Conn. 6/1/2009).


Sorting Out Sonia Sotomayor

June 29, 2009
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Posted By: Dwight Merriam, Partner, Robinson & Cole, LLP

According to the Washington Post this morning, 62% of Americans think Sonia Sotomayor should be confirmed for the U.S Supreme Court because she is “about right” ideologically. The question is, how good will she be for municipal attorneys?

 

Pablo Martinez Monsivais/Associated Press

Pablo Martinez Monsivais/Associated Press

I was privileged to attend Yale Law School when she did. I’m almost eight years older and she graduated a class behind me, but I had been off in Vietnam and elsewhere with the Navy for 7 years. Yale Law School is a small place with only 170 or so in class. Regrettably, however, I didn’t get to know her well. When she was nominated, I began to read everything I could about her and to consider the decisions she wrote or joined in to try to get a bead on her.
 
The short answer is that she can’t be pigeon-holed.
 
Judge Sotomayor has participated in 3,600 (not a typo) decisions, I assume most of which are routine motions and the like. In the 10 years on the Second Circuit, she has authored over 150 decisions.
 
The case most talked about among property rights and government types alike is Didden v. Port Chester in which she voted with the majority 5-4 in 2006, after Kelo, in a short unsigned opinion to uphold Port Chester, New York’s taking of private property to enable a 27-acre urban renewal project.
 
The pro-property rights advocates were quick to look for a wooden stake to drive through her heart because of this decision. “This is the worst federal court takings decision since Kelo,” said Ilya Somin, who teaches property law at George Mason University and was quoted in a New York Times article. “It’s very extreme, and it is significant as a window into Judge Sotomayor’s attitudes toward private property.”

On the other side of the ledger is Brody v. Village of Port Chester. There, she wrote an opinion a year earlier finding that publication in the newspaper of a proposed eminent domain taking failed to meet the requirements of due process.

In Riverkeeper Inc. v. USEPA, she authored an opinion in 2009 that held costs to industry need not be considered in determining how to protect fish from power plant discharges. The decision was described as “anti-business.”

The U.S. Supreme Court granted certiorari and reversed in April holding that cost-benefit analysis is not categorically forbidden by the Clean Water Act. Entergy Corp. v. Riverkeeper Inc.

On the other hand, or was that the same hand? – I’m running out of hands here – in Natural Resources Defense Council v. Abraham (2003), her panel ended up on the side of a coalition of states and environmental groups that had sued the federal government for weakening the energy conservation standards for appliances.

In New York v. National Service Industries (2006), Judge Sotomayor wrote a decision for the court in a Superfund case in which the State of New York sued a company to recover the state’s costs of cleaning up a hazardous waste site. The court held that the company was not liable for what a remotely-connected firm had done.

Not a property rights, environmental or land use case, but certainly one of municipal law that is getting much press is Ricci v. DeStefano. The case is about white firefighters in New Haven who were not promoted when no black firefighters qualified for advancement. Her three-judge panel of the Second Circuit in an unsigned opinion rejected the race discrimination claim of the white firefighters, including a Hispanic. The court in a per curium opinion declined to rehear the case. The Supreme Court took the case, arguments were held in April, and the decision is pending was released this morning. [UPDATE 06/29/2009: From the New York Times — Justices Rule for White Firefighters in Bias Case — The Supreme Court ruled on Monday that white firefighters in New Haven, Conn., were unfairly denied promotions because of their race, reversing a decision that Sonia Sotomayor, a Supreme Court nominee, endorsed as an appeals court judge. Read More: http://www.nytimes.com/?emc=na]
Here are a couple [1 and 2] of gossipy personal items which might help you fill out your own picture of Judge Sotomayor. She has been married and divorced, never had any children, is generous to her clerks and staff, has little accumulated wealth, and won $8,283 at a casino last year while visiting a casino with her mother.

To sum up Sonia Sotomayor…

I believe it is fair to say, based on the totality of her record, that she is a liberal of the non-dogmatic variety, makes narrow decisions sharply focused on the cases before her, is not a judicial activist, will be an active questioner in oral arguments unlike Justice Thomas, respects private property rights, understands the needs of government especially to carry out the common good, and will prove to be more of a centrist.


Of Race and Men*

March 26, 2009
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Posted By: H. Lawrence Hoyt, Boulder County Attorney

[*with apologies to Mr. Steinbeck, and to the distaff majority of the human race, who are subsumed within the references “man, men, mankind” far too readily.]

Race has always been a lightning rod in American culture, even before the forced transport of African men and women into slavery.  The literature is replete with references in the early 1600’s regarding the “savages” that occupied North America before Europeans took that land away.

In light of the events of last year, culminating in the election of the first American president of African descent, it is worthwhile to examine whether we have “arrived” at that long-awaited, “post-racial” America.  There are certainly those who assert that this is the case, at least as an adjunct to a long-held political position, such as the lack of continuing need for the Voting Rights Act’s Section 5 pre-clearance process.

The same argument will be present in future consideration by state voters on initiatives to stop affirmative action in their states.  See, e.g., Richard Sammon’s column at Kiplinger.com “Affirmative Action – A Minefield in the Making?”

These initiatives got their start, as is so often the case, in the Golden State of California, where a multi-millionaire, Wade Connerly, pushed for the adoption of Proposition 209 in 1996, as a reaction to the success of programs to ensure the inclusion of women- and minority-owned construction firms in government-contracted projects. 

As for President Obama, Mr. Connerly has already opined that he is no “post-racial” American icon.  See Connerly, “Obama Is No ‘Post-Racial’ Candidate, guest editorial in the Wall St. Journal, June 13, 2008.  He has failed Mr. Connerly’s litmus test, in that he supports continued enforcement of the 1964 Civil Rights Act, including, where necessary, affirmative action programs designed to create opportunity for diverse populations historically on the receiving end of discrimination and exclusion.

[Aside: As a modern European-American, I would consider the irony that Mr. Connerly is pushing this doctrine though he is an African-American.  However, having read many of the opinions of Justice Clarence Thomas with dismay over his 17 years on the US Supreme Court, the sense of irony has been substantially dampened.]

As noted in his Wall St. Journal guest column, Mr. Connerly (a former Regent of the University of California) is the author of initiatives that in 2008 he sought to place on the ballot in 5 states, Missouri, Oklahoma, Arizona, Colorado, and Nebraska.[1]  He succeeded in getting the initiative on the ballot in the latter 2 states. 

As noted above, he was the force behind Prop. 209 in California[2], as well as the successful State of Washington initiative (1998), and the “Michigan Civil Rights Initiative” (okay, I admit my sense of irony is still alive and well; calling this a “civil rights initiative” is deceptively charming) in 2006[3].   Opponents of the putative Michigan ballot issue sought to prevent it from being place on the ballot there; the district court judge, while ruling that the ballot issue could be put on the ballot, also found:

The Court finds that the MCRI engaged in systematic voter fraud by telling voters that they were signing a petition supporting affirmative action. However, the MCRI appears to have targeted all Michigan voters for deception without regard to race. Because the Voting Rights Act is not a general anti-voter fraud statute, but rather prohibits practices which result in unequal access to the political process because of race, the Court must conclude that the defendants’ conduct, though unprincipled, did not violate the Act.

Operation King’s Dream v. Connerly , (unreported) 2006 WL 2514115 (E.D.Mich.,2006), appeal dismissed, Operation King’s Dream v. Connerly  501 F.3d 584, 586 (C.A.6 (Mich.),2007)(“notwithstanding the disturbing allegations underlying the Plaintiffs’ complaint, which the district court substantiated, because the opportunity to keep Proposal 2 off the ballot has long since passed, the Plaintiffs’ appeal is dismissed as moot.”)

[Aside: Now there’s a proposition that we can all get behind: so long as all voters are deceived equally, a ballot issue is legally permissible.  Federal law would only intervene where the supporters of a ballot issue sought to deceive targeted racial or gender “minorities.”]

Apparently taking to heart the rulings in Michigan, Connerly’s latest round of state initiatives have been further refined to obfuscate their true meaning and impact.  The initiative filed in Colorado in early 2007 was entitled “Prohibition on Discrimination and Preferential Treatment by Colorado Government” and the ballot issue language that appeared on the statewide ballot in Colorado in November, 2008 as Amendment 46, read as follows:

Shall there be an amendment to the Colorado constitution concerning a prohibition against discrimination by the state, and, in connection therewith, prohibiting the state from discriminating against or granting preferential treatment to any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting; allowing exceptions to the prohibition when bona fide qualifications based on sex are reasonably necessary or when action is necessary to establish or maintain eligibility for federal funds; preserving the validity of court orders or consent decrees in effect at the time the measure becomes effective; defining “state” to include the state of Colorado, agencies or departments of the state, public institutions of higher education, political subdivisions, or governmental instrumentalities of or within the state; and making portions of the measure found invalid severable from the remainder of the measure?

This language was set by the state Title Board, and was affirmed by the state Supreme Court by order September 10, 2007[4].

The proposed constitutional amendment was described to voters statewide in Colorado, as is required, in the publication created by the state’s Legislative Council (staff to the state legislature) known as the “Blue Book”.  The description for Amendment 46 was entitled: 

Discrimination and Preferential Treatment by Governments

Amendment 46 proposes amending the Colorado Constitution to:

● prohibit Colorado governments from discriminating against or granting preferential treatment to

any individual or group on the basis of race, sex, color, ethnicity, or national origin in public

employment, public education, or public contracting;

● make exceptions for federal programs, existing court orders or other legally binding agreements, and bona

fide qualifications based on sex; and

● provide the same remedies that are available for violations of existing Colorado anti-discrimination law.

Amazingly, despite the reaction one would expect from such a description (“well, duh, of course we don’t want our state or local governments to be discriminating”), Colorado voters turned down Amendment 46, although by a fairly narrow margin (49.2% for, 50.8% against.)  However, in Nebraska, a very similarly worded initiative was approved by 58% of state voters.

Next time: we consider the actual legal effect of these initiatives when adopted amending state constitutions: is there any real impact, or has federal law limited the use of affirmative action so significantly that these initiatives are simply a political statement akin to the “English-only” initiatives?


[2] For the full text of the amendment to the California state constitution, see:   http://vote96.sos.ca.gov/Vote96/html/BP/209text.htm

[3] The actual ballot language used in Michigan in 2006 was:  A PROPOSAL TO AMEND THE STATE CONSTITUTION TO BAN AFFIRMATIVE ACTION PROGRAMS THAT GIVE PREFERENTIAL TREATMENT TO GROUPS OR INDIVIDUALS BASED ON THEIR RACE, GENDER, COLOR, ETHNICITY OR NATIONAL ORIGIN FOR PUBLIC EMPLOYMENT, EDUCATION OR CONTRACTING PURPOSES.  See http://www.michigancivilrights.org/media/Actual%20Ballot%20Language.pdf

 

[4] The standards by which ballot titles are adjudged, as stated on the Colorado Supreme Court website, are whether the initiative concerns a single subject, and if so, is the title fair and not a misleading statement of the meaning of the actual proposed constitutional or statutory amendment text.


Wyeth v. Levine: Good News on Preemption from the Supreme Court

March 18, 2009
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Posted By: Matt Schettenhelm and Joseph Van Eaton, Miller & Van Eaton P.L.L.C.

Does the fact that the FDA has approved a drug’s label preempt a state law claim that an addition to the label was necessary to make the drug reasonably safe for use?  On March 4, 2009, in Wyeth v. Levine, the Supreme Court considered that question, and held that such a claim is not preempted by federal law – in what may prove to be an important decision reflecting the Court’s view of preemption generally.  While some commentators had previously suggested that the Roberts Court was likely to be sympathetic to business claims that a federal regulation preempts state and local laws, Wyeth – like December’s decision in Altria v. Good – may suggest that the Court’s approach to the Supremacy Clause is more sophisticated, and more sympathetic to state and local interests. It may also suggest that, where Congress acts in a field where states and localities have traditionally had strong, independent regulatory roles, the Court will be reluctant to preempt state and local requirements except where the law expressly provides for preemption. In today’s environment, when federal regulatory agencies are asserting broad rights to preempt state and local laws with very little express statutory authority, the case could prove quite significant…particularly if the reasoning in Justice Thomas’ concurrence is adopted in future cases.

Like many tort cases, the facts of Wyeth are difficult.  On April 7, 2000, Diana Levine visited a local clinic for treatment of a migraine headache.  When the physician assistant administered Phenergan an anti-nausea medication, using the IV-push method, the drug entered Levine’s artery and came in contact with arterial blood.  As a result, Levine developed gangrene, and doctors were ultimately forced to amputate her forearm.  In addition to her pain and suffering, Levine incurred substantial medical expenses and the loss of her livelihood as a professional musician.  

Levine filed suit against Wyeth, the manufacturer of the drug.  A jury found that Wyeth was negligent and that Phenergan was a defective product as a result of inadequate warnings and instructions regarding IV-push administration of the drug.  Wyeth claimed that the suit was preempted by federal law – based on the fact that the FDA had approved Phenergan’s label.  The trial court and Vermont Supreme Court disagreed, upholding a jury award of damages to Levine.

In a 6-3 decision, the Supreme Court affirmed. The Court began its analysis by recognizing that “the historic police powers of the States [are] not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.”  Slip op. 8 (citing Medtronic v. Lohr, 518 U.S. 470, 485 (1996)).   First, the Court rejected the claim that it was “impossible” for Wyeth to comply with the state-law duty to modify Phenergan’s labeling without violating federal law.  Id. at 12.  The Court ruled that federal rules allowed Wyeth to add “newly acquired information” to a label.  Id.  In addition, the Court rejected the claim that requiring Wyeth to provide a stronger warning about IV-push administration of the drug would “obstruct the purposes and objectives of federal drug labeling regulation.”  Id. at 17.  The Court found no evidence that Congress had intended to establish “a ceiling” on drug regulation.  Indeed, while Congress had enacted an express pre-emption provision for medical devices, 21 U.S.C. § 360k(a), it did not do so with respect to prescription drugs, despite its “certain awareness” of state tort litigation.  As the Court put it, “The case for federal pre-emption is particularly weak where Congress has indicated its awareness of the operation of state law in a field of federal interest, and has nonetheless decided to stand by both concepts and to tolerate whatever tension there [is] between them.”  Id. at 18.

Finally, the Court recognized an important principle of administrative law with respect to preemption.  Wyeth had contended that a preamble to an FDA regulation indicated that federal law establishes both a “floor and a ceiling” to drug labeling regulation.  Id. at 19.  The Court recognized that while an agency regulation with the “force of law” can preempt state requirements, the Court “has performed its own conflict determination, relying on the substance of state and federal law and not on agency proclamations of pre-emption.”  Id. (emphasis added).  In this case, because Congress did not empower the FDA to preempt state law directly in this context, the Court examined what level of deference it owed the FDA.  The Court concluded it did not owe the FDA any such deference because the preamble was not the product of public comment, and because it is at odds with other evidence regarding Congress’s purposes.  Id. at 21.  In his concurrence, Justice Breyer indicated that “it is possible that [lawful specific regulations] would have pre-emptive effect.”  Opinion of J. Breyer at 2.

Justice Thomas’s concurrence is especially notable.  He stresses that because our federalist system is one of dual sovereignty, the Court’s preemption analysis should focus more closely on the statutory text.  As he puts it, “This Court’s entire body of ‘purposes and objectives’ preemption jurisprudence is inherently flawed.”  Opinion of J. Thomas at 13.  As he explains, “[T]he majority has concluded from silence that Congress believed state lawsuits pose no obstacle to federal drug-approval objectives.  That is the required conclusion, but only because it is compelled by the text of the relevant statutory provisions, not judicial suppositions about Congress’ unstated goals.”  Id. at 22.  Any other approach, in his view, leads to “the illegitimate – and thus, unconstitutional – invalidation of state laws.”  Id. At 24.


The Curious Case of California Same-Sex Marriage

March 12, 2009
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Posted By: Larry Hoyt, County Attorney, Boulder, Colorado

Curious – Part Three, where we consider the arguments from the Proposition 8 challenges in determining, inter alia, whether a state constitutional equal protection clause resembles most a Thanksgiving turkey, ready to be carved up, leaving only the carcass. If you missed out on Parts One and Two, make sure you check them out.

Equal protection in California:  Interestingly, the California constitution originally did not have an express equal protection clause.  This is of course due to the fact that the original state constitution was approved in 1849, some 19 years prior to the addition of Amendment XIV to the U.S. Constitution that contained the federal equal protection clause.
Prior to the addition of an equal protection clause in the California constitution, an equal protection guarantee was held by the California courts to exist, based upon the state constitutional guarantees of liberty, due process, privileges and immunities, and uniformity of application of laws.  Not until 1974 did the state constitution obtain an express equal protection clause, one which tracks the language of the federal 14th Amendment.
As we learned in Part 2 of this blogpost, the state supreme court was called upon to rule on the applicability of the state’s equal protection guarantee, as well as its due process guarantee, to same-gender couples seeking to marry on the same terms and conditions as was statutorily provided to opposite-gender couples, in In re Marriage Cases (183 P.3d 384 Cal. 2008; opinion issued May 15, 2008.)  In that case, the court held that gay men and lesbians who seek to marry a person of the same gender were entitled to do so by virtue of the state due process and equal protection clauses, based upon a finding that marriage is a fundamental right, that sexual orientation is a suspect classification, and that none of the rationales given by the state for limiting marriage to opposite-gender couples could survive rational basis scrutiny, let alone strict scrutiny.

Proposition 8:  Persons seeking to limit marriage in California solely to opposite-gender couples began their quest to insert that provision into the state’s constitution in October, 2007.  The petitions for an initiative to accomplish this were submitted in April, 2008, and on June 2, 2008, the measure was certified to the statewide November 2008 general election ballot.
Of course, intervening between the time the petitions were submitted and the measure was certified, the In re Marriage Cases decision was announced.  Because the language of the measure had been set before the case opinion was issued, it did not expressly seek to counter the ultimate decision by the court.  The language of the proposition was quite simple:
Only marriage between a man and a woman is valid or recognized in California.
Cal. Const., Art. I, Sec. 7.5
Due to the intervening California Supreme Court decision in In re Marriage Cases, the state Attorney General, Jerry Brown, in June 2008 decided on language to be included in the state’s Voter Information Guide:
ELIMINATES RIGHT OF SAME-SEX COUPLES TO MARRY.  INITIATIVE – CONSTITUTIONAL AMENDMENT.
●  Changes the California Constitution to eliminate the right of same-sex couples to marry in California;
●  Provides that only marriage between an man and a woman is valid or recognized in California.
The Office of the Legislative Analyst went on to include the following analysis:  “…As a result, notwithstanding the California Supreme Court ruling of May 2008, marriage would be limited to individuals of the opposite sex, and individuals of the same sex would not have the right to marry in California.”
The Proponents’ statement in the Voter Information Guide stated further: “Your YES vote on Proposition 8 means that only marriage between a man and a woman will be valid or recognized in California, regardless of when or where performed.  But Prop. * will NOT take away any other rights or benefits of gay couples.”
[Emphasis in original; emphasis supplied.]
Proposition 8 was approved by voters by a margin of 52% to 48% on Nov. 4, 2008.  By its own terms, it was to take effect immediately upon the determination of the vote.

The Challenges to Proposition 8:  On November 5, 2008, before the final vote had been tabulated, 3 petitions to stay its effect and 1 petition for mandate were filed with the state Supreme Court.  Ultimately, 6 challenges were filed in that court, 2 by various individuals, 1 by the City and County of San Francisco, 1 by the Asian Pacific American Legal Center, 1 by Equal Rights Advocates and the California Women’s Law Center, and 1 by the California Council of Churches.
In response, 2 groups of individuals and entities sought intervention in support of the validity of Prop. 8: the “Official Proponents of Proposition 8” and the Campaign for California Families.  Over 45 groups have been granted status amici curiae in opposition to Prop. 8, and about 15 groups supporting Prop. 8 have been granted such status.  The City and County of San Francisco was joined by amici cities of Berkeley, Cloverdale, Davis, Long Beach, Palm Springs, and West Hollywood, by the Town of Fairfax, and by the counties of Humboldt and Sonoma.

The court has denied the petitions to stay the effect of Prop. 8, but granted review of the validity of Prop. 8 via the following certified questions:
(1) Is Proposition 8 invalid because it constitutes a revision of, rather than
an amendment to, the California Constitution?
(2) Does Proposition 8 violate the separation-of-powers doctrine under
the California Constitution?
(3) If Proposition 8 is not unconstitutional, what is its effect, if any, on
the marriages of same-sex couples performed before the adoption of
Proposition 8?
The court has set oral argument in the consolidated cases for the morning of March 5, 2009.  For more information, use the following link: http://www.courtinfo.ca.gov/courts/supreme/highprofile/prop8.htm

Arguments for and against the validity of Prop. 8:
Proposition 8 is valid because:
●  The rational basis for voters to approve Prop. 8’s limitations is that the limitation of marriage to opposite-gender couples is a deeply-rooted, multi-generational judgment.  The people of the state have created it via its constitution, having reserved to themselves the right to initiate amendments to the constitution, and have the inherent right to amend the constitution to affirm the widely-held beliefs about the structure of institutions in society.
●  Equal protection is not beyond the purview of the people of the state; the right to amend the constitution exists in priority to the power reposed in the judiciary to interpret the state constitution.  Equal protection is fundamental to the constitutional scheme, but the people of the state can decide how to apply equal protection to specific situations.
●  This is a simple amendment to the state constitution, which does not alter the basic structure of government, and therefore is not a constitutional revision requiring additional and extraordinary legislative process.
●  The ultimate value that is guaranteed by equal protection is human dignity, and in a state that permits abortion and capital punishment, both approved by the courts in due process challenges, the people can decide to treat persons differently consistent with the notion of human dignity.
●  Prop. 8 is not retroactive; it prevents the validity and legal recognition of same-gender marriages as of its effective date.  Same-gender couples married in California, or married elsewhere but residing in California prior to the effective date of Prop. 8 are no longer married, nor will their marriages be recognized for any legal purpose by governmental institutions, but this is prospective, not retroactive.
●  Same-gender couples in California can in the future obtain the benefits of the state’s domestic partnership law, and will have virtually all the same benefits that they would have had had they been able to marry or their marriages recognized as valid.  Thus, no equal protection violation exists.  (This argument is exactly the one that was decided to the contrary in In re Marriage Cases.)

Prop. 8 is invalid because:
●  Although popular sovereignty via the initiative process is a foundational premise of the state constitution, there are other foundational principles that inhere in that document, including due process and equal protection.  If these principles are to mean anything, they must be upheld against an assertion of unfettered authority of a majority of voters to eliminate a fundamental right from a disfavored suspect minority class of citizens.
●  The right to equal protection was deemed so fundamental that, after 125 years of statehood, the legislature referred to the voters a revision to the state constitution to make the guarantee of equal protection express, rather than an inherent element of due process and liberty.
●  Prop. 8 is a revision of the constitution, requiring approval by a 2/3rd vote of each house of the state legislature and referral and approval by the voters, not simply an amendment capable of being initiated by petition and vote, because it directly contradicts a fundamental principle of the whole constitutional document, i.e. equal application of the laws to every person subject to such laws.
●  Prop. 8 alters the fundamental structure of government, in that it removes from the judicial branch its authority to enforce equality of the laws of the state.  In this manner, Prop. 8 also violates the separation of powers doctrine of the state constitution.
●  Prop. 8, even if valid, should not be held to affect marriages previously performed, validated, or recognized in California.  Nothing in the language of the ballot issue nor in the Voters Guide informed voters clearly that existing same-sex marriages would be invalidated by Prop. 8 if it were approved.
●  Prop. 8 should not be retroactively applied to preexisting same-sex marriages because it conflicts directly with other constitutional measures, i.e. equal protection and the fundamental right of marriage found to inhere in the privacy and due process clauses of the state constitution.
●  Retroactive application of Prop. 8 would violate the vested property and liberty interests of married same-gender couples.  Much of this argument results from the fact that California is a “community-property” state, so invalidating a marriage results in dis-appropriating from each spouse the property that, but for the marriage, would be the community property of the married couple.
●  Marriage is in part a contract, and retroactive nullification of marriages would violate the contracts clause of the state constitution.  (You will note that the same violation would occur relative to the federal contracts clause, but petitioners have been very careful to argue only state constitutional limits and provisions, in order to avoid the potential appeal of a decision to the U.S. Supreme Court.)

So can voters carve away parts of state equal protection via the initiative?  Only the California Supreme Court (and maybe not even it) knows for sure.  State law requires that a decision be rendered within 90 days, so on or before June 3, 2009, a decision will be announced.

Thus, watch this space for the “epi-blog.”

In the meantime, we will take up consideration of the multi-state campaign to render affirmative action programs unconstitutional through initiated amendments to various state constitutions.


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