Sacramento Region
Written by David Greenwald
Friday, 03 September 2010 04:58
On Thursday a state appellate court refused to order the state of California, represented by Governor Arnold Schwarzenegger and Attorney General Jerry Brown, to appeal a federal judge's ruling that overturned the controversial Proposition 8.
The Third District Court of Appeals in Sacramento dismissed the suit that sought to compel the state to defend the initiative. They did not issue a comment on the suit filed by conservative Pacific Justice Institute.
The backers of the effort have vowed to file an appeal to the State Supreme Court, as they hope to get a reversal by September 11, which would be the deadline for the state to get involved in the appeal of Judge Vaughn Walker's ruling.
"When the people peacefully enact a constitutional provision and the attorney general refuses to give them meaningful review in the federal judiciary, then you have a veto by the executive branch," said the institute's lawyer, Kevin Snider, in a statement on Thursday. "That is a constitutional crisis, usurping the power of the people."
"To allow an elected official to trump the will of the people by mere inaction and the lack of fulfillment of their duty to do their job would be an egregious violation of public trust," said Pacific Legal Institute Brad Dacus to the Associated Press.
The institute is arguing that as the state's chief law enforcement officer, Attorney General Brown lacks the discretion to defend only those laws with which he personally agrees with. Moreover, since the California Constitution grants the governor final authority when there is a disagreement between the Governor and Attorney General on legal matters, the Governor must be compelled to file an appeal to preserve Proposition 8.
Theodore Boutrous Jr., a member of the legal team that represented the two couples, told the Associated Press "it is unlikely the state court would order the governor and attorney general to take action because California, like the federal government, requires its executive and judicial branches to operate independently."
"It's certainly a novel idea," Mr. Boutrous said of the Pacific Justice Institute petition. "It seems like it would raise serious separation of powers issues, among other things. We will be interested to see how it plays out."
Legal experts cited by various sources seem to believe that the Governor and the AG have complete discretion on which cases to appeal, that they are not compelled by law to pursue every single appeal of every case.
For example, Loyola Law Professor Rick Hasen told the Associated Press that the arguments of the institute were "very thin" and the petition is a long shot at best.
"We expect the attorney general to exercise discretion and not to defend a law that the attorney believes is unconstitutional," Professor Hasen said. "What this is really about, and becomes clear from the petition, is the desire to get the AG to file a notice of appeal, which will solve any potential standing problem in the Ninth Circuit case."
The issue is the fear of the defenders of Proposition 8, that they may lack standing to appeal the case. The state of California has standing and that puts Gov. Schwarzenegger and AG Jerry Brown in focus. Both have opposed Proposition 8 and AG Brown took the controversial step of refusing to defend it in court.
Defenders of Proposition 8 have argued that as Attorney General, Jerry Brown is compelled to defend the law whether he agrees with it or not. Legal scholars, however, disagree on that point, and many argue that the Federal Constitution trumps the California Constitution. Therefore, if Mr. Brown believes that he would be in violation of the federal equal protection clause, then he would be compelled to not defend it.
As we reported a few weeks ago, UC Irvine Law School Dean Erwin Chemerinsky, in an op-ed on August 15 in the LA Times, wrote, "conservative justices on the Supreme Court have ruled to limit who has standing to bring a claim in federal court. In cases involving civil rights, environmental protection and the separation of church and state, the court has ordered that cases be dismissed because the party pursuing the case had no legal standing to do so."
Professor Chemerinsky argues that opponents of same-sex marriage now face the problem that, because they are in no way enjoined or covered by the injunction, they cannot be the proper party of it. He writes, "The Supreme Court has explicitly held that standing to appeal is required and that being an intervenor is insufficient to meet this requirement. In one case, the state of Illinois refused to appeal a federal judge's ruling striking down a law regulating abortion, and a doctor who had intervened tried to appeal to defend the law. The Supreme Court held that the doctor lacked standing and ordered the appeal dismissed."
He continues, "In another case, voters who supported an Arizona initiative declaring English to be the official language of the state tried to appeal to defend the law. The Supreme Court unanimously ordered the appeal dismissed and expressed "grave doubt" as to whether supporters of an initiative have standing to appeal to defend it."
Dean Chemerinsky argues that if the 9th Circuit and the Supreme Court simply follow the "well-established law, they will need to dismiss the appeal on grounds that those who filed it have no standing. The outcome, then, will be that marriage-equality will exist in California, at least unless and until in some other case, some day, the Supreme Court comes to a different conclusion."
Increasingly, some conservatives seem to favor losing California in order to prevent the potential for the case to reach the US Supreme Court and for a 5-4 court to rule that banning same-sex marriage is a violation under the Equal Protection Clause of the US. They fear that Justice Anthony Kennedy, who would be the swing vote, would be inclined to support such a ruling.
I still believe that establishing same-sex marriage is simply a matter of time and of generational demographics. Younger people have grown up with openly gay family members, friends, classmates, and colleagues and simply do not have the level of fear that older generations have for gay people. The question in my mind really is: How soon will it occur?
---David M. Greenwald reporting
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Written by David Greenwald
Monday, 23 August 2010 03:50
The long and arduous debate over strict-constructionism and original intent has always seemed to me to be displaced. The idea that we can somehow infer the intent of the drafters of the constitution runs into problems when the question turns to which framer do we follow. For it seems there were quite a few, and many had contradictory ideas. Indeed, how can we follow the framers when the framers themselves were quickly polarized on the issue of the intended role of the federal government?
Likewise the issue of strict-constructionism runs into logical problems, in that any reading of the constitution necessarily involves interpretation. There is no plain meaning and application of a document that was intentionally written to be vague and flexible.
Likewise the issue of strict-constructionism runs into logical problems, in that any reading of the constitution necessarily involves interpretation. There is no plain meaning and application of a document that was intentionally written to be vague and flexible.
Written by David Greenwald
Thursday, 19 August 2010 04:45
I have defended Jerry Brown's decision not to defend Proposition 8 despite his role as Attorney General. Basically, the Attorney General has the duty to defend California's laws from legal challenge unless they are specifically unconstitutional under federal law. We can quibble whether the case of Prop. 8 is sufficient, but he did what he did.
However, there is now the increasing belief that Jerry Brown's actions may have unintended consequences that could put the entire legal challenge to Proposition 8 at risk.
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