Lockyer v. City and County of San Francisco

17 Cal.Rptr.3d 225

95 P.3d 459

33 Cal.4th 1055

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.

Nos. S122923, S122865.

Supreme Court of California.

August 12, 2004.

Bill Lockyer, Attorney General, Andrea Lynn Hoch, Chief Assistant Attorney General, Louis R. Mauro, Assistant Attorney General, Kathleen A. Lynch, Zackery Morazzini, Hiren Patel, Timothy M. Muscat, Douglas J. Woods and Christopher E. Krueger, Deputy Attorneys General, for Petitioner Bill Lockyer, as Attorney General of the State of California.

Alliance Defense Fund, Benjamin W. Bull, Scottsdale, AZ, Jordan W. Lorence, Fairfax, VA, Gary S. McCaleb, Glen Lavy, Robert H. Tyler; Center for Marriage Law, Vincent P. McCarthy; Law Offices of Terry L. Thompson and Terry L. Thompson for Petitioners Barbara Lewis, Charles McIlhenny and Edward Mei.

Liberty Counsel, Mathew D. Staver, Rena M. Lindevaldsen, New York, NY; and Ross S. Heckmann, Glendale, CA, for Randy Thomasson and Campaign for California Families as Amici Curiae on behalf of Petitioner Bill Lockyer, as Attorney General of the State of California.

Divine Queen Mariette Do-Nguyen as Amicus Curiae on behalf of Petitioner Bill Lockyer, as Attorney General of the State of California.

Law Offices of Peter D. Lepiscopo and Peter D. Lepiscopo, San Diego, CA, for California Senators William J. ("Pete") Knight, Dennis Hollingsworth, Rico Oller, Bill Morrow, Thomas McClintock, Dick Ackerman, Samuel Aanestad, Bob Margett, Ross Johnson, Jim F. Battin, Jr., California Assembly Members Ray Haynes, George A. Plescia, Tony Strickland, Bill Maze, Robert Pacheco, Doug La Malfa, Guy S. Houston, Steven N. Samuleian, Dave Codgill, Tom Harman, Dave Cox, Patricia C. Bates, Russ Bogh, Kevin McCarthy, Todd Spitzer, Alan Nakanishi, Keith S. Richman, Shirley Horton, Sharon Runner, Jay La Suer and Pacific Justice Institute as Amici Curiae on behalf of Petitioners Barbara Lewis, Charles McIlhenny and Edward Mei.

Dennis J. Herrera, City Attorney, Therese M. Stewart, Chief Deputy City Attorney, Ellen Forman, Wayne K. Snodgrass, Thomas S. Lakritz, K. Scott Dickey, Kathleen S. Morris and Sherri Sokeland Kaiser, Deputy City Attorneys; Howard Rice Nemerovski Canady Falk & Rabkin, Bobbie J. Wilson, Pamela K. Fulmer, Amy E. Margolin, Sarah M. King, Kevin H. Lewis, Ceide Zapparoni, Glenn M. Levy and Chandra Miller Fienen, San Francisco, CA, for Respondents.

Alma Marie Triche-Winston and Charel Winston as Amici Curiae on behalf of Respondents.

Law Offices of Waukeen Q. McCoy and Waukeen Q. McCoy, San Francisco, CA, for Dr. Anthony Bernan, Andrew Neugebauer, Stephanie O'Brien, Janet Levy, Dr. Gregory Clinton, Gregory Morris, Joseph Falkner, Arthur Healey, Kristin Anderson, Michele Betegga, Derrick Anderson and Wayne Edfors II as Amici Curiae on behalf of Respondents.

Morrison & Foerster, Ruth N. Borenstein, Stuart C. Plunkett and Johnathan E. Mansfield, San Francisco, CA, for Marriage Equality California, Inc., and Twelve Married Same-Sex Couples as Amici Curiae on behalf of Respondents.

Ann Miller Ravel, County Counsel (Santa Clara) and Martin H. Dodd, Assistant County Counsel, as Amici Curiae on behalf of Respondents.

Dana McRae, County Counsel (Santa Cruz), Shannon M. Sullivan and Jason M. Heath, Assistant County Counsel, as Amici Curiae on behalf of Respondents.

Bingham McCutchen, John R. Reese, San Francisco, CA, Matthew S. Gray, Walnut Creek, CA, Susan Baker Manning, Huong T. Nguyen and Danielle Merida, San Francisco, CA, for Bay Area Lawyers for Individual Freedom as Amicus Curiae on behalf of Respondents. National Center for Lesbian Rights, Shannon Minter, Courtney Joslin; Heller Ehrman White & McAuliffe, Stephen V. Bomse, Richard DeNatale, Hilary E. Ware, San Francisco, CA; ACLU of Southern California, Martha A. Matthews, Los Angeles, CA; Lambda Legal Defense and Education Fund, Jon W. Davidson, Jennifer C. Pizer, New York, NY; Steefel, Levitt & Weiss, Dena L. Narbaitz, Clyde J. Wadsworth; ACLU Foundation of Northern California, Tamara Lange, San Francisco, CA, Alan I. Schlosser; Law Office of David C. Codell, David C. Codell and Aimee Dudovitz, Los Angeles, CA, for Del Martin and Phyllis Lyon, Sarah Conner and Gillian Smith, Margot McShane and Alexandra D'Amario, Dave Scott Chandler and Jeffrey Wayne Chandler, Theresa Michelle Petry and Cristal Rivera-Mitchel, Lancy Woo and Cristy Chung, Joshua Rymer and Tim Frazer, Jewell Gomez and Diane Sabin, Myra Beals and Ida Matson, Arthur Frederick Adams and Devin Wayne Baker, Jeanne Rizzo and Pali Cooper, Our Family Coalition and Equality California as Amici Curiae on behalf of Respondents.

Roger Jon Diamond, Santa Monica, CA, as Amicus Curiae on behalf of Respondents.

GEORGE, C.J.

We assumed jurisdiction in these original writ proceedings to address an important but relatively narrow legal issue — whether a local executive official who is charged with the ministerial duty of enforcing a state statute exceeds his or her authority when, without any court having determined that the statute is unconstitutional, the official deliberately declines to enforce the statute because he or she determines or is of the opinion that the statute is unconstitutional.

In the present case, this legal issue arises out of the refusal of local officials in the City and County of San Francisco to enforce the provisions of California's marriage statutes that limit the granting of a marriage license and marriage certificate only to a couple comprised of a man and a woman.

The same legal issue and the same applicable legal principles could come into play, however, in a multitude of situations. For example, we would face the same legal issue if the statute in question were among those that restrict the possession or require the registration of assault weapons, and a local official, charged with the ministerial duty of enforcing those statutes, refused to apply their provisions because of the official's view that they violate the Second Amendment of the federal Constitution. In like manner, the same legal issue would be presented if the statute were one of the environmental measures that impose restrictions upon a property owner's ability to obtain a building permit for a development that interferes with the public's access to the California coastline, and a local official, charged with the ministerial duty of issuing building permits, refused to apply the statutory limitations because of his or her belief that they effect an uncompensated "taking" of property in violation of the just compensation clause of the state or federal Constitution.

Indeed, another example might illustrate the point even more clearly: the same legal issue would arise if the statute at the center of the controversy were the recently enacted provision (operative January 1, 2005) that imposes a ministerial duty upon local officials to accord the same rights and benefits to registered domestic partners as are granted to spouses (see Fam.Code, § 297.5, added by Stats.2003, ch. 421, § 4), and a local official — perhaps an officeholder in a locale where domestic partnership rights are unpopular — adopted a policy of refusing to recognize or accord to registered domestic partners the equal treatment mandated by statute, based solely upon the official's view (unsupported by any judicial determination) that the statutory provisions granting such rights to registered domestic partners are unconstitutional because they improperly amend or repeal the provisions of the voter-enacted initiative measure commonly known as Proposition 22, the California Defense of Marriage Act (Fam.Code, § 308.5) without a confirming vote of the electorate, in violation of article II, section 10, subdivision (c) of the California Constitution.

As these various examples demonstrate, although the present proceeding may be viewed by some as presenting primarily a question of the substantive legal rights of same-sex couples, in actuality the legal issue before us implicates the interest of all individuals in ensuring that public officials execute their official duties in a manner that respects the limits of the authority granted to them as officeholders. In short, the legal question at issue — the scope of the authority entrusted to our public officials — involves the determination of a fundamental question that lies at the heart of our political system: the role of the rule of law in a society that justly prides itself on being "a government of laws, and not of men" (or women).¹

As indicated above, that issue — phrased in the narrow terms presented by this case — is whether a local executive official, charged with the ministerial duty of enforcing a statute, has the authority to disregard the terms of the statute in the absence of a judicial determination that it is unconstitutional, based solely upon the official's opinion that the governing statute is unconstitutional. As we shall see, it is well established, both in California and elsewhere, that — subject to a few narrow exceptions that clearly are inapplicable here — a local executive official does not possess such authority.

This conclusion is consistent with the classic understanding of the separation of powers doctrine — 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. It is true, of course, that the separation of powers doctrine does not create an absolute or rigid division of functions. (Superior Court v. County of Mendocino (1996) 13 Cal.4th 45, 52, 51 Cal.Rptr.2d 837, 913 P.2d 1046.) Furthermore, legislators and executive officials may take into account constitutional considerations in making discretionary decisions within their authorized sphere of action — such...