Cain’s Paper: Evaluate the Role of the State Judiciary in Regards to Proposition 209

Aspect: The interaction between state and federal courts (While there is considerable repetition and overlap on many issues, this is necessary to demonstrate the complexity of the decision making process) A major aspect of the state judiciary’s role regarding the implementation of Proposition 209 is the plaintiff’s avoidance of filing in state court with a preference for filing in federal court. Proposition 209 is a state constitutional amendment and there would be an assumption that the state courts should have jurisdiction over the matter. Instead of challenging 209’s implementation in state courts, many of the cases filed against Proposition 209 have been filed in federal district courts. Why is there a tendency to file in federal court instead of the state?

Theory 1: State courts have little power over constitutional amendments, as opposed to federal courts

Theory 2: Federal courts are more willing to overrule propositions over constitutional conflicts than state courts because they do not have to show deference to the people.

Theory 3: Unlike state judges, federal judges are more willing to overrule because they are not vulnerable to popular reconfirmations.

Theory 1: State courts have little power over constitutional amendments, as opposed to federal courts One major aspect of the grappling between state and federal courts is the supremacy clause. Under our federalist government, we have a two-tier government system with a unique power structure. Using a strict constitutionalist framework of analysis, the federal government is recognized as the entity to protect all citizens of their rights which are delegated through the Constitution. Meanwhile, the states are recognized as the government entities with jurisdiction over local matters that are not enumerated under the Constititution. Their power are reserved to them under the Ninth and Tenth Amendments of the Constitution (INSERT FOOTNOTES). However, this does not mean that states have ultimate control over areas which fall under their jurisdiction. The federal government enjoys oversight over all state actions through Article VI of the US Constitution, otherwise known as the supremacy clause. Should any state actions violate federal laws, the federal courts have the ability to overrule the state’s action. All of this becomes relevant when analyzing why state courts are ignored for federal litigation. Proposition 209 was an amendment on the California Constitution. As a result, state courts have no legal reason for overruling its implementation because state courts cannot challenge the constitutionality of Article I, section 31 when the proposition IS a part of the state constitution. The only means by which this proposition could be overturned is through either another popular referendum or if it is found to be in violation of federal law. As a result, many of the lawsuits to overrule much of Proposition 209 were filed in federal courts. Federal courts have the supremacy clause to intervene in state constitutions if violations against the Constitution or federal laws are found. This theory does not necessarily reflect upon the disposition of the courts (which we’ll explore later) but more upon the structure of our government system.

Theory 2: Federal courts are more willing to overrule propositions over constitutional conflicts than state courts because they do not have to show deference to the people.

The federalist framework allows for two sets of courts with different sets of priorities and authority. Federal courts derive their authority from the Constitution and federal rules and regulations. Meanwhile, state courts derive their authority from the state constitution and their state rules and regulations. There are many instances where this can lead to conflict between federal laws and the state. The California state constitution explicitly states that all political power is inherent to the people and that they have the right to change it when necessary (footnote, article II). They are empowered to do this through initiative and referendum. Because of this, state courts tend to show deference to referendums because it reflects popular will. Studies have shown that state courts not only attempt to keep intact as much of a passed proposition as possible, they even amend minor constitutional errors (Miller). State courts recognize propositions as being the will of the voter and will do all that is permissible to keep the intent of the proposition intact. Seldom will state judges attempt to go beyond the intent of the writers of the initiative unless it violates federal law. State activism is manifested through fulfilling popular will, rather than opposing it. Meanwhile, the argument is that federal courts do not adhere to these standards, being a federal entity, and they are more willing to take on initiatives if they violate the law. According to Holman and Stern, over 78% of all court challenges of California propositions have been through federal courts (Holman, Stern). Plaintiffs have found federal constitutional challenges to be far more hospitable than state courts. After all, there is no “popular will” clause in the US Constitution. Proposition 209 is no exception to this growing tendency to attack propositions through federal constitutional issues. In Coalition for Economic Equity v Wilson, charges were brought in federal court over Proposition 209. The concern was that Article I, section 31, violated the Equal Protection Clause of the 14th Amendment. This landmark case identified several issues which characterize the distinct differences and concerns between state and federal courts. Judge Henderson argues that “the issue is not whether one judge can thwart the will of the people” but whether the proposition complies with the Constitution and the Bill of Rights. Under a state court, the judge would have to consider giving deference to the voters. However, this isn’t necessarily the case for federal judges. Judge Henderson’s concern was for the insular minorities which may be adversely affected if Article I, section 31, were implemented. Though federal judges have the ability to block the will of California voters with the stroke of the pen, this does not necessarily mean that it stays permanent. The 9th Circuit Court of Appeals overruled Judge Henderson, citing his flawed reasoning for an injunction against implementing Proposition 209. More importantly, the 9th Circuit’s decision highlighted the biggest concerns of activism which face the conflict between state and federal courts. The court wonders about the activism of a federal court for it “to tell the people of California that their one-day-old, never-applied-law violates the Constitution” (6/20). The circuit questions the value of attacking propositions federally when the state hasn’t even challenged it yet. In this sense, the 9th circuit is granting deference to the state system and allowing them to figure things out before they get involved. Furthermore, the 9th Circuit found it disturbing in which “A system which permits one judge to block with the stroke of a pen what 4,736,180 state residents voted to enact as law tests the integrity of our constitutional democracy” (Footnote 6/20). One judge’s activism, which was heavily criticized upon appeal, can thwart the will of a state. However, do federal judges necessarily get involved in proposition such as 209? Much of this depends on the next theory.

Theory 3: Unlike state judges, federal judges are more willing to overrule because they are not vulnerable to popular reconfirmations.

Chief Justice Rose Bird earned a special chapter in the history of the California court system. She used every legal loophole and technicality available to stop capital punishment cases before her. Her personal opposition to the death penalty was not hidden in her decisions, even though the state was in favor of the death penalty. However, her fatal flaw was that she had to be reconfirmed every 12 years. In 1986, Californians targeted her for being too soft on the death penalty. Her re-confirmation was opposed by a 2-1 margin. In the end, her personal politics condemned her political career. While many California judges are easily reconfirmed in elections, the Rose Bird incident is a warning to anyone who fights the political winds of California. Given this, it can be argued that a judge’s personal bias will not blatantly manifest itself if popular will holds a different opinion on the issue. After all, they could be the next Rose Bird. However, this does not apply to federal judges. Since federal judges have lifetime terms and can only be removed through Senate impeachment, they are relatively immune to popular resentment. As a result, federal judges can have biases which can prove favorable or detrimental to a proposition. Lawyers may be more inclined to actively search for federal judges who would ignore popular will and overrule the populace because the consequences of their actions are minimal. Given all these things, it would appear that federal judges tend to overrule state propositions more often because lawyers will actively search for courts who would tend to give rulings in their favor. In the case of Proposition 209, the ACLU filed an injunction in San Francisco County. This was a calculated gamble by the ACLU because there was a good chance in getting a liberal judge to hear their case if they filed there. Hopefully, they would get a sympathizer who would accept the injunction and delay the implementation of Proposition 209. As it turned out, Judge Henderson was as good as it gets for them. Judge Henderson previously worked as a civil rights attorney and was the dean in charge of minority admissions in Stanford University. He was extremely sympathetic to the plaintiff’s case and issued an injunction on Proposition 209. His opinion was a long defense of the plaintiff and he distorted many case opinions to fit his arguments. In the end, the 9th Circuit would overturn his decision and cite that “the district judge relies on an erroneous legal premise, the decision operates to thwart the will of the people in the most literal sense” (6/20). The case of the Coalition (insert footnote) v Californians Against Discrimination And Preferences (CADAP) is the best example of how opponents of Proposition 209 attempt to circumvent the proposition by using federal courts over state courts. The lawyers for the Coalition wanted to maximize their chances of halting the implementation of Proposition 209. State options were not as promising because of the deference state courts give to popular will through initiatives. However, federal courts do not have the same obligations and pressures that California judges face. As a result, lawyers filed an injunction in districts which had the most promise of accepting an injunction. In this case, the Coalition’s gamble paid off when Judge Henderson halted the implementation of 209. Furthermore, his opinion was a long defense of why 209 was not permissible. In the end, this ended up as only being a delay tactic as the 9th Circuit Court of Appeals overruled Judge Henderson. However, damage was done. In the words of the 9th Circuit, “A system which permits one judge to block with the stroke of a pen what 4,736,180 state residents voted to enact as law tests the integrity of our constitutional democracy.” Activism through the federal route might not lead to permanent results, but nonetheless, it can have an effect.