California Supreme Court
BILL LOCKYER, as Attorney General, etc., Petitioner, v. CITY AND COUNTY OF SAN FRANCISCO et al., Respondents. BARBARA LEWIS et al., Petitioners, v. NANCY ALFARO, as County Clerk , etc., Respondent.
MAJORITY OPINION, CHIEF JUSTICE GEORGE:
VIII
As anyone familiar with the docket of the United States Supreme Court, of this court, or of virtually any appellate court in this nation is aware, many statutes currently in force may give rise to constitutional challenges, and not infrequently the constitutional questions presented involve issues upon which reasonable persons, including reasonable jurists, may disagree. If every public official who is under a statutory duty to perform a ministerial act were free to refuse to perform that act based solely on the official's view that the underlying statute is unconstitutional, any semblance of a uniform rule of law quickly would disappear, and constant and widespread judicial intervention would be required to permit the
ordinary mechanisms of government to function. This, of course, is not the system of law with which we are familiar. Under long established principles, a statute, once enacted, is presumed to be constitutional until it has been judicially determined to be unconstitutional.
An executive official, of course, is free to criticize existing statutes, to advocate their amendment or repeal, and to voice an opinion as to their constitutionality or unconstitutionality. As we have explained, however, an executive official who is charged with the ministerial duty of enforcing a statute generally has an obligation to execute that duty in the absence of a judicial determination that the statute is unconstitutional, regardless of the official's personal view of the constitutionality of the statute.
In this case, the city has suggested that a contrary rule? one under which a public official charged with a ministerial duty would be free to make up his or her own mind whether a statute is constitutional and whether it must be obeyed? is necessary to protect the rights of minorities. But history demonstrates that members of minority groups, as well as individuals who are unpopular or powerless, have the most to lose when the rule of law is abandoned -- even for what appears, to the person departing from the law, to be
a just end. As observed at the outset of this opinion, granting every public official the authority to disregard a ministerial statutory duty on the basis of the official's opinion that the statute is unconstitutional would be fundamentally inconsistent with our political system's commitment to John Adams' vision of a government where official action is determined not by the opinion of an individual officeholder — but by the rule of law.
IX
For the reasons discussed above, a writ of mandate shall issue compelling respondents to comply with the requirements and limitations of the current marriage statutes in performing their ministerial duties under such statutes, and directing the county clerk and the county recorder of the City and County of San Francisco to take the following corrective actions under the supervision of the California Director of Health Services: (1) identify all same-sex couples to whom the officials issued marriage licenses, solemnized marriage ceremonies, or registered marriage cert if icates, (2) not if y these couples that this court has determined that same-sex marriages that have been performed in California are void from their inception and a legal nullity, and that these officials have been directed to correct their records to reflect the invalidity of these marriage licenses and marriages, (3) provide these couples an opportunity to demonstrate that their marriages are not same-sex marriages and thus that the official records of their marriage licenses and marriages should not be revised, (4) offer to refund, upon request, all marriage related fees paid by or on behalf of same-sex couples, and (5) make appropriate corrections to all relevant records.
As the prevailing parties, petitioners shall recover their costs.
CONCURRING OPINION BY MORENO , J.
I concur. The majority opinion addresses primarily the limitations on the power of local officials to disobey statutes that may be, but have not yet been judicially established to be, unconstitutional. I write separately to focus on the related but distinct question of what courts should do when confronted with such disobedience on the part of local officials. As the majority opinion suggests, a court should not invariably refuse to decide constitutional questions arising from local governments' or local officials' refusal to obey purportedly unconstitutional statutes. Indeed, California courts under these circumstances have, on a number of occasions, decided the underlying constitutional questions. In the present case, the majority declines to decide the constitutional validity of Family Code section 300, prohibiting same-sex marriage, but instead concludes that a writ of mandate against San Francisco 's (the city's) local officials is just if ied because they exceeded their ministerial authority. As elaborated below, I agree that under these somewhat unusual circumstances, local officials' disobedience of the statute just if ies this court's issuance of a writ of mandate against those officials before the underlying constitutional question has been adjudicated.
At the outset, I review the requirements for obtaining a writ of mandate. To obtain writ relief a petitioner must show: “ ‘(1) A clear, present and usually ministerial duty on the part of the respondent . . . ; and (2) a clear, present and beneficial right in the petitioner to the performance of that duty . . . .' ” (Santa Clara County Counsel Attys. Assn. v. Woodside (1994) 7 Cal.4th 525, 539-540.) Also required is “the lack of any plain, speedy and adequate remedy in the usual course of law . . . .” (Flora Crane Service, Inc. v. Ross (1964) 61 Cal.2d 199, 203.) Although the writ of mandate generally must issue if the above requirements are clearly met (see May v. Board of Directors (1949) 34 Cal.2d 125, 133-134), the writ of mandate is an equitable remedy that will not issue if it is contrary to “promoting the ends of justice.” (McDaniel v. City etc. of San Francisco (1968) 259 Cal.App.2d 356, 361; see also Bartholomae Oil Corp. v. Superior Court (1941) 18 Cal.2d 726, 730.) The local officials in the present case have a clear ministerial duty to issue marriage licenses in conformance with state statute and have violated that duty. The Attorney General, and for that matter the plaintiffs in Lewis v. Alfaro, have a substantial right to ensure that marriage licenses conform to the statute. (See Bd. Of Soc. Welfare v. County of L.A. (1945) 27 Cal.2d 98, 100-101.) But when a court is asked to grant a writ of mandate to enforce a statute over which hangs a substantial cloud of unconstitutionality, the above-stated principles dictate that a court at least has the discretion to refuse to issue the writ until the underlying constitutional question has been decided.
How should courts exercise that discretion? In Cal if ornia, generally speaking, courts faced with local governments' or local officials' refusal to obey assertedly unconstitutional statutes have decided the constitutional question before determining whether a writ or other requested relief should issue. (See, e.g., County of Riverside v. Superior Court (2003) 30 Cal.4th 278 [county refused to obey as unconstitutional a state statute mandating binding arbitration for local agencies that reach negotiating impasse with police and firefighters]; Star-Kist Foods, Inc. v. County of Los Angeles (1986) 42 Cal.3d 1 [county refused to act in accordance with a state revenue statute it had judged, correctly, to violate the U.S. Const.]; Zee Toys, Inc. v. County of Los Angeles (1978) 85 Cal.App.3d 763, 777- 781 [same]; Paso Robles etc. Hospital Dist. v. Negley (1946) 29 Cal.2d 203 [local financial officer refused to issue bonds and defended a lawsuit in order to expeditiously settle the constitutional validity of the bond issue]; Denman v. Broderick (1896) 111 Cal. 96, 105 [local official refused to spend public funds required by a statute believed to be unconstitutional “special legislation”]; City of Oakland v. Digre (1988) 205 Cal.App.3d 99 [local official refused to enforce a parcel tax believed to be unconstitutional and required the city to demonstrate its constitutionality in court]; Bayside Timber Co. v. Board of Supervisors (1971) 20 Cal.App.3d 1, 14-15 [county board of supervisors refused to issue permission for timber operations, although such refusal was not authorized under rules promulgated pursuant to state statute].) Indeed, any time a city determines that a state law is contrary to its own constitutional prerogative of self-governance and therefore refuses to obey the law, it is making a constitutional determination. (See, e.g., Bishop v. City of San Jose (1969) 1 Cal.3d 56, 63-64 [determining that state prevailing wage law for public works projects was not binding on cities].) As the majority states, “the classic understanding of the separation of powers doctrine [is] that the legislative power is the power to enact statutes, the executive power is the power to execute or enforce statutes, and the judicial power is the power to interpret statutes and to determine their constitutionality.” (Maj. opn., ante , at p. 4.) But “the separation of powers doctrine does not create an absolute or rigid division of functions.” (Ibid. ) As the above cases suggest, local officials sometimes exercise their authority to preliminarily determine that a statute that directly affects the local government's functioning is unconstitutional and, in some circumstances, refuse to obey that statute as a means of bringing the constitutional challenge. This preliminary determination is the exercise of an executive function. Local officials and agencies do not “arrogate[] to [the local executive] core functions of the . . . judicial branch” in violation of the separation of powers (Carmel Valley Fire Protection Dist. v. State of California (2001) 25 Cal.4th 287, 297-298), but rather raise constitutional issues for the courts to ultimately decide.
In my view, there are at least three types of situations in which a local government's disobedience of a statute would be reasonable. In these situations, courts asked to grant a writ of mandate to compel the local agency to obey the statute should therefore address the underlying constitutional issue rather than simply conclude the local governmental entity exceeded its ministerial authority. First, there are some cases in which the statute in question violates a “clearly established . . . constitutional right” (Harlow v. Fitzgerald (1982) 457 U.S. 800, 818). An executive decision not to spend resources to comply with a clearly unconstitutional statute is a reasonable exercise of the local executive power and does not usurp a core judicial function. Indeed, refusing to enforce clearly unconstitutional statutes saves the resources of both the executive and the judiciary.
A second category of “disobedience” cases involves a local official or governmental entity disobeying a statute when there is a substantial question as to its constitutionality and the statute governs matters integral to a locality's limited power of self-governance. In these cases, a local entity or official is directly affected by the statute and in a unique position to challenge it. As the above cases illustrate, local entities and officials have challenged statutes to determine the validity of a bond, or the payment of a government salary for a position unconstitutionally created, or an exemption to a local tax that assertedly violates the commerce clause, or a statute that intrudes on local matters of city or county employee compensation. It is noteworthy that in virtually all the above cases, the local agency's or official's refusal to obey an assertedly unconstitutional statute had the effect of preserving the status quo, pending judicial resolution of the matter, thereby minimizing interference with the judicial function.
Perhaps in some of these cases localities could have proceeded by obtaining declaratory relief as to a statute's unconstitutionality, rather than by disobeying the statute. In other cases, an actual controversy necessary for declaratory relief may have been lacking. In any case, the fact that the local government agency did not proceed by means of declaratory relief provided no insurmountable obstacle to a court deciding the underlying constitutional issue raised by the agency's disobedience. (See, e.g., County of Riverside v. Superior Court, supra, 30 Cal.4 th 278, 283.) Of course, if a court determines that interim relief to compel a government agency to obey a statute is appropriate, it may grant such relief before
the constitutional question is ultimately adjudicated.
A third possible category of cases in which city officials might legitimately disobey statutes of doubtful constitutionality are those in which the question of a statute's constitutionality is substantial, and irreparable harm may result to individuals to which the local government agency has some protective obligation be they employees, or students of a public college, or patrons of a public library, or patients in a public hospital, or in some cases simply residents of the city. Again, a court asked to grant a writ of mandate could conclude that a delay in granting the writ pending resolution of the underlying constitutional question is just if ied. To issue a writ enforcing a statute that may be unconstitutional, and that will work irreparable harm, would not “promote[] the ends of justice” ( McDaniel v. City etc. of San Francisco, supra, 259 Cal.App.2d at pp. 360-361), and a court has the discretion to delay such issuance until the underlying constitutional question is resolved.
The present case is quite d if ferent from the above situations. First, as the majority demonstrates, the unconstitutionality of Family Code section 300 is not clearly established by either state or federal constitutional precedent, and certainly not from the language of the constitutional provisions themselves. Nor does this case pertain to a statute that interferes with a city's or county's limited power of self-governance that these entities are in a unique position to challenge. Rather, local officials in this case perform a ministerial function pursuant to the state marriage law. Unlike the cases cited above, in which the constitutionality of a statute is likely to go unchallenged if a local governmental entity does not do so,
Family Code section 300 limits individual rights, and those individuals subject to that limitation are in the best position to challenge it.
Nor does the present case fit the third category of cases in which a city refuses to enforce a law so as to protect its citizens from irreparable harm. The only harm caused here is a delay in the ability of same-sex couples to get married while the constitutional issue is being adjudicated. But that delay will occur whether or not we grant a writ of mandate against the city in this case. Put another way, local officials have no real power to marry same-sex couples, given the statutory prohibition against doing so. What was within their power, prior to our issuance of a stay, was to issue licenses of indeterminate legal status. The exercise of the court's mandate power to preclude local officials from continuing this course of action, and voiding the licenses already issued, brings no irreparable harm to the individuals who have received or might receive such licenses. In sum, the city advances no plausible reason why it had to disobey the statute in question. Even so, it might have been appropriate to have delayed the issuance of a writ of mandate against it until the underlying constitutional question had been adjudicated if , for example, the city had issued a single “test case” same-sex marriage license. But it went far beyond a test case. It issued thousands of these marriage licenses. As such, the city went well beyond making a preliminary determination of the statute's unconstitutionality or performing an act that would bring the constitutional issue to the courts. Rather, city officials drastically and repeatedly altered the status quo based on their constitutional determination, issuing a multitude of licenses that purported to have an independent legal effect, contrary to their ministerial duty and statutory obligation and prior to any judicial determination of the statute's unconstitutionality. By such dramatic overreaching, these officials trespassed on a core judicial function of deciding the constitutionality of statutes and endowed the issue of their authority to disobey the statute with a life of its own, independent of the underlying constitutional issue. I therefore agree with the majority that a writ of mandate is rightly issued against the city and its officials in this case.
I reiterate what is clear in the majority opinion. Our holding in this case in no way expresses or implies a view on the underlying issue of the constitutionality of a statute prohibiting same-sex marriage. That issue will be addressed in the context of litigation in which the issue is properly raised. (See Goodridge v. Department of Pub. Health ( Mass. 2003) 798 N.E.2d 941.)
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