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Prop. 8 backers seem likely to win right to appeal its rejection

September 6, 2011 | 12:42 pm

    California Supreme Court Prop. 8
The California Supreme Court appeared ready Tuesday to rule the backers of Proposition 8 and other ballot measures have the right to defend them in court.

During an hour of arguments, several justices on state's highest court appeared skeptical of the contention by lawyers for advocates of same-sex marriage that only elected state officials may defend ballot measures.

Attorneys for challengers of Proposition 8 have argued that no one but state officials may appeal last year's ruling striking down the measure, and state officials have refused to appeal it.

Accepting the Proposition 8 opponents' position would be “nullifying the great power that the people have reserved for themselves” to propose and pass initiatives, Justice Joyce L Kennard said.

“Who is there to defend the initiative measure?” she asked.

Chief Justice Tani Cantil-Sakauye also suggested the initiative process would become "illusory" if no one could step in to argue for measures that state officials refused to defend, as they have in the case of Proposition 8.

The governor and state attorney general, calling Proposition 8 unconstitutional, have declined to argue for it in court.

But Justice Carol A. Corrigan said it was up to the courts, not the executive branch, to rule on the constitutionality of a law.

The governor and the attorney general "don't get a pocket veto," she said.


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Credit: Charles J. Cooper, standing, lead attorney for proponents of Proposition 8, addresses the California Supreme Court in San Francisco on Tuesday. Credit: Paul Sakuma / Associated Press