Borrowing the language from the petition, the judges seemed profoundly troubled that the Governor and AG can essential “veto” or “annul” a constitutional provision enacted by the People of California. In its order the Court wrote, “Although the Governor has chosen not to defend Proposition 8 in these proceedings, it is not clear whether he may, consistent with the California Constitution, achieve through a refusal to litigate what he may not do directly: effectively veto the initiative by refusing to defend it or appeal a judgment invalidating it….” (PJI represented Dr. Joshua Beckley, senior pastor of Ecclesia Christian Fellowship in the suit in his capacity as a voter and taxpayer.) The Ninth Circuit further went on to state that the “Constitution’s purpose in reserving the initiative power to the People would appear to be ill-served by allowing elected officials to nullify either proponents’ efforts to ‘propose statutes and amendments to the Constitution’ or the People’s right ‘to adopt or reject’ such propositions.” (quoting article II, section 8(a) of the CA Constitution). These sentiments echo the same concerns of former Attorney General Ed Meese who submitted a sworn statement in support of the petition to the California courts.
“It is regrettable that the California Supreme Court denied the petition back in September, but we urge them to take the question certified by the Ninth Circuit,” stated PJI chief counsel Kevin Snider. Snider noted that there is no requirement by the State’s highest court to accept the question.