DEVELOPING: Schwarzenegger and Brown file papers with California Supreme Court responding to PJI’s appeal
September 8, 2010
(Cross-posted at LGBTPOV)
By Karen Ocamb
Last week the 3rd District Court of Appeal rejected a lawsuit filed by the Pacific Justice Institute trying to force Attorney General Jerry Brown (who is running for governor in the 2010 elections) and the Governor Arnold Schwarzenegger to file an appeal in the federal challenge to Proposition 8. According to an email from the right wing Capitol Resources Institute, the California Supreme Court wants to know why the state isn’t appealing, too. Here’s the emai:
“Late yesterday the California Supreme Court responded to a request by the Pacific Justice Institute to compel the Attorney General and the Governor to file the appeal in the federal challenge to Proposition 8.
In August, a federal court in San Francisco overturned the voter approved measure that stated that marriage is between one man and one woman. While the Ninth Circuit Court of Appeals has agreed to hear the appeal of the lower court’s decision, they have made clear that there is a question whether the parties before them have standing to pursue the appeal. The Attorney General as well as the Governor have failed to file the appeal in this matter based on their personal opposition to Proposition 8. The proponents of the ballot measure took on the State’s job of defending the measure in court.
The California Supreme Court has ordered the Attorney General and the Governor to respond by 9 am this morning explaining why they have not filed this appeal. Then the Pacific Justice Institute has just three hours to respond by noon today.
“We are pleased that the judicial branch is at least considering forcing the executive branch to do its job,” said Karen England, Executive Director of Capitol Resource Institute. “Millions of Californians voted for Proposition 8. The issue should be heard all the way up to the US Supreme Court. No elected official ought to be able to substitute his judgment for the decision of our courts.”
Several sources are checking this out and I will update this as the information comes in. Theoretically, the California Supreme Court can order Attorney General Jerry Brown and Gov. Arnold Schwarzenegger to appeal Judge Walker’s ruling.
UPDATE from AP’s Lisa Leff:
The letters Schwarzenegger and Brown filed this morning are brief and reiterate their positions that they have discretion to choose which rulings to appeal. They also say that PJI miscalculated the deadline for filing an appeal with 9th Circuit–that it was Sept. 13, not Sept. 11.
UPDATE (2:20 Pacific) In AP’s report, Leff wrote:
“Proposition 8’s sponsors have appealed. But doubts have been raised about whether its members have the authority to do so because as ordinary citizens they are not responsible for enforcing marriage laws.”
UPDATE (12:45 Pacific):
Chris Geidner at MetroWeekly writes that Deputy Attorney General Tamar Pachter, responding for AG Brown, said in her letter that the Pacific Justice Institute’s effort on behalf of Pastor Joshua Beckley “is too little, too late.”
It is within the Attorney General’s discretion to determine that it is or that it is not appropriate to pursue an appeal. In Perry, given the Attorney General’s position at trial, there are no grounds for an appeal, and the filing of an appeal under such circumstance would be frivolous. The petitioner’s contention to the contrary is manifestly without merit.”
Geidner also notes that Wednesday’s filing was already set by a court order detailing a briefing schedule of the expedited appeal. He says the Capitol Resources Institute’s email is “misleading.”
Brown’s response can be found here: Letter Brief.pdf
“The definitive statement means the ability of Proposition 8 proponents to appeal will depend entirely on the legal standing of the Yes on 8 coalition……In a five-page letter September 8, Counsel for the Governor Andrew Stroud told the court, “Although Beckley may disagree with the Governor’s decision not to file a notice of appeal [in the Proposition 8 case in federal court], it was the Governor’s decision to make.”
UPDATE BY EDEN: Jeff in the comments just posted Gov. Schwarzenegger’s response from Metro Weekly: