In a ruling that dooms the efforts of the Prop h8 proponents to get California’s Attorney General to defend Proposition 8 in federal court (or get the Governator to make AG Brown defend it in federal court) the California Supreme Court on Wednesday denied — without comment – the appeal of the Pacific Justice Institute from the state appeals court’s decision that state officials cannot be forced to defend laws they choose not to defend.
The state Supreme Court refused to come to the aid of California’s embattled ban on same-sex marriage Wednesday, denying a conservative group’s request to order Gov. Arnold Schwarzenegger and Attorney General Jerry Brown to appeal a federal judge’s ruling striking down the voter-approved measure.
This now puts the issue of standing front and center for the federal appeals court: can Prop 8′s supporters appeal Judge Vaughn Walker’s ruling against the constitutionality of Prop 8 absent a legitimate governmental defender?
The governor, like any other party in a court case, is entitled to decide which rulings to appeal, Schwarzenegger’s lawyers said.
Brown’s office said he agrees with the ruling last month by Chief U.S. District Judge Vaughn Walker in San Francisco throwing out Prop. 8 and has no duty to appeal it.
"Attorneys general are not potted plants in the litigation process," lawyers for Brown told the court. Although the attorney general is required to represent the state, they said, Brown also took an oath to support the U.S. Constitution and is not obliged to defend a law he considers unconstitutional.
It’s entirely possible that the federal appeals court could now throw out the appeal based on not having any legitimate entity willing to defend the proposition in its court. . . . Read the rest of this entry →