LISTEN AND READ FOR YOURSELF: Audio and Transcript of Prop. 8 Hearing

The complete audio and transcript of today's hearing has been released.

BY Lucas Grindley

March 26 2013 1:22 PM ET


CHIEF JUSTICE ROBERTS (pictured left): Okay. That -- that may be true in terms of who they want to represent, but -- but a State can't authorize anyone to proceed in Federal court, because that would leave the definition under Article III of the Federal Constitution as to who can bring -- who has standing to bring claims up to each State. And I don't think we've ever allowed anything
like that.

MR. COOPER: But, Your Honor, I guess the point I want to make is that there is no question the State has standing, the State itself has standing to represent its own interests in the validity of its own enactments. And if the State's public officials decline to do that, it is within the State's authority surely, I would submit, to identify, if not all -- any citizen or at least supporter of the measure, certainly those, that that very clear and identifiable group of citizens -­

JUSTICE KENNEDY: Well, the Chief -- the Chief Justice and Justice Kagan have given a proper hypothetical to test your theory. But in this case the
proponents, number one, must give their official address, they must pay money, and they must all act in unison under California law. So these five proponents were required at all times to act in unison, so that distinguishes -- and to register and to pay money for the -- so in that sense it's different from simply saying any citizen.

MR. COOPER: But of course it is, and I think the key -­

JUSTICE SOTOMAYOR: But can you tell me -­ that's a factual background with respect to their right to put the ballot initiative on the ballot, but how does it create an injury to them separate from that of every other taxpayer to have laws enforced?

MR. COOPER: Your Honor, the -- the question before the Court, I would submit, is not the injury to the individual proponents; it's the injury to the State. The -- the legislators in the Karcher case had no individual particularized injury, and yet this Court recognized they were proper representatives of the State's interests, the State's injury -­

JUSTICE SOTOMAYOR: At least one of the amici have suggested that it seems counterintuitive to think that the State is going to delegate to people who don't have a fiduciary duty to them, that it's going to delegate the responsibility of representing the State to individuals who have their own views. They proposed the ballot initiative because it was their individual views, not necessarily that of the State. So -­

MR. COOPER: Well -­

JUSTICE SOTOMAYOR: -- Justice Scalia proffered the question of the Attorney General. The Attorney General has no personal interest.

MR. COOPER: True.

JUSTICE SOTOMAYOR: He has a fiduciary obligation.

MR. COOPER: The Attorney General, whether it's a fiduciary obligation or not, is in normal circumstances the representative of the State to defend
the validity of the State's enactments when they are challenged in Federal court. But when that officer doesn't do so, the State surely has every authority and I would submit the responsibility to identify particularly in an initiative -- an initiative context.

JUSTICE SOTOMAYOR: Why isn't the fiduciary duty requirement before the State can designate a representative important?

MR. COOPER: Your Honor, I would submit to you that I don't think there's anything in Article III or in any of this Court's decisions that suggest that a representative of a State must be -- have a fiduciary duty, but I would also suggest -­

JUSTICE SOTOMAYOR: Well, generally you don't need to specify it because generally the people who get to enforce the legislation of the government are people who are in government positions elected by the people.

MR. COOPER: And Your Honor -­

JUSTICE SOTOMAYOR: Here these individuals are not elected by the people or appointed by the people.

MR. COOPER: And the California Supreme Court specifically addressed and rejected that specific argument. They said it is in the context when the
public officials, the elected officials, the appointed officials, have declined, have declined to defend a statute. A statute that, by the way, excuse me, in this case a constitutional amendment, was brought forward by the initiative process.

The Court said it is essential to the integrity, integrity of the initiative process in that State, which is a precious right of every citizen, the initiative process in that State, to ensure that when public officials -- and after all, the initiative process is designed to control those very public officials, to take issues out of their hands.

And if public officials could effectively veto an initiative by refusing to appeal it, then the initiative process would be invalidated.

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