Note – Risky Propositions: A New Standard for the Award of Attorney’s Fees Against Defendant-Intervenors in Ballot-Initiative Litigation

In the current federal litigation regarding the constitutionality of Proposition 8, a ballot initiative that amended the California state constitution to ban same-sex marriage, the issue of which party should pay the prevailing plaintiffs’ attorney’s fees was raised at the district court in 2009. The official proponents of the same-sex marriage ban, who intervened to defend the law at trial and lost, argued that they should not be held liable for the fees. But if they are correct, then the State of California, which did not defend the law and called it unconstitutional, could be made to pay if a final judgment is reached in the plaintiffs’ favor. The issue has been postponed as the case moves through the appellate process. Using the Proposition 8 case as a prominent example, this Note explores the issue of who should pay a plaintiff’s attorney’s fees when the proponent of a successful ballot initiative intervenes to defend its law against a civil rights challenge and loses. It is a significant question not only in the context of the Proposition 8 case, but also in the larger context of the citizen-created ballot initiatives permitted in twenty-five jurisdictions. The Note proposes the adoption of a new standard in both federal and state courts for ballot-initiative litigation, under which the defendant-intervenor will be held liable for the plaintiff’s attorney’s fees unless it can show that its position was substantially justified