Source: The National Law Journal

An appellate attorney in Oakland, Calif., has filed a brief before the 9th U.S. Circuit Court of Appeals, arguing that California’s same-sex marriage ban should be found invalid because the state’s entire ballot initiative process was improperly voted into law 99 years ago.

Jon B. Eisenberg, a partner at Eisenberg & Hancock, filed the amicus brief on Oct. 25 before the 9th Circuit, where supporters of Proposition 8 have moved to overturn a recent decision by U.S. District Judge Vaughn Walker finding that the initiative, which passed in 2008 by 52 percent of California voters, violates the federal constitutional rights of gays and lesbians.

The brief is the first legal challenge to California’s initiative process. Eisenberg said he is asking the 9th Circuit to certify the question for the California Supreme Court to review.

“The question we’re raising in this case is whether or not the creation of the process, the initiative process, adhered to California law,” he said. “That would seem to be an issue for the California Supreme Court to decide.”

California’s initiative process was passed by both houses of the state legislature and was voted into law as “Senate Amendment 22” by the people of California in 1911, according to Eisenberg’s brief, written by Laura Brill, founding partner of Kendall Brill & Klieger in Los Angeles. But the process should have been put into law as a “revision,” rather than an “amendment,” to California’s constitution, the brief says. A revision would have required a supermajority of both houses of the legislature and a constitutional convention.

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