Prop 8 Update: Appealing the Lack of Appeal

The Pacific Justice Institute (PJI), a conservative legal organization, has taken to the California courts to try to force either Attorney General Jerry Brown or Governor Arnold Schwarzenegger to appeal the federal circuit court ruling that struck down Prop 8. California’s 3rd District Court of Appeal rejected their request without comment, and they plan to appeal to the Supreme Court of California.

I expect they will lose, but first let’s see their argument. The reason they are trying to force one of the state’s top officials to appeal the Prop 8 ruling is because of doubts that the private group allowed to defend it at trial will have legal standing to appeal it. If no one has standing to appeal, the District Court ruling will stand. Their legal argument is that the AG has no discretion in defending state laws, that he must appeal. (Brown’s argument is that he cannot be required to defend a law he believes is unconstitutional). And they claim that because the state constitution gives the Governor final say when he disagrees with the AG on a legal issue, the Governor must file an appeal if the AG doesn’t.

This case is a legal mess, top to bottom. Let’s start with the claim that the AG has no discretion on defending state laws. I can’t claim to know California statutes well, but I doubt this is the case. There is no plausible reason to deny an AG such discretion. Assume, for example, that a state passed a law mandating that the property of all non-orthodox churches would be confiscated without process or compensation. Such a law would explicitly violate at least three constitutional provisions, and no reasonably intelligent state AG would waste state resources defending it.

Second, even if the AG is required by state law to defend each state law, it’s dubious that it requires him to defend it to the final appeal. Perhaps, at best, Jerry Brown should have defended it before the Federal Circuit Court, but to have no discretion about spending state resources appealing it each time he loses? If there is a law requiring that, the PJI should be able to clearly point to it, which they seem not to have done.

Even if there is such a state law, it arguably conflicts with Article VI of the Constitution, which requires that all state executive officials be bound by oath to to support the U.S. Constitution. This is Jerry Brown’s position, that he has taken an oath to uphold the U.S. Constitution, therefore cannot defend a law that he believes it. PJI could reasonably argue that his interpretation of the Constitution is wrong, but they can’t reasonably argue that his oath requires him to defend their interpretation of the Constitution.

Now let’s look at the claim that Schwarzenegger must appeal if Brown doesn’t, because the state constitution gives the Governor final say on legal issues when he disagrees with the AG. The problem with that claim is that the Governor does not disagree with the AG. They both refused to defend the case, which means that legally they are in agreement. And even if the Governor did disagree with the AG, PJI are mistaking the Governor's authority to overrule the AG for a requirement that he must overrule the AG. Little wonder that a Loyola law professor called their legal arguments, "thin."

Another problem with their argument, according to a member of the anti-Prop 8 legal team, is that their request that the state court compel state executive officials to defend a law appears to conflict with the state's separation of powers. It's not that courts never compel executive officials to take particular actions, but generally speaking, the more political–i.e., less clearly bound by law–the executive's action is, the less likely the courts are to intervene.

The great irony, though, is that even if the courts can compel the state's executive officials, PJI's plaintiff–a minister from San Bernardino–probably doesn't have standing to bring such a case. I can't find a copy of their brief, so I don't know what their argument for standing is, nor can I quite imagine what it would be. It's well-established law that just being a tax-paying citizen doesn't provide standing to bring suit against the government. A particular harm has to be shown, and since this minister won't suffer any legal harm if Prop 8 is overturned, there's no conceivable (to me) grounds for claiming standing.

The Prop 8 case gets curiouser and curiouser.


About J@m3z Aitch

J@m3z Aitch is a two-bit college professor who'd rather be canoeing.
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7 Responses to Prop 8 Update: Appealing the Lack of Appeal

  1. Michael Enquist says:

    “no legal harm” is the crux of the entire issue.

    Sure, homophobes may feel bad if same gender marriage is no longer prohibited by law but this is not a legal harm that requires redress.

    Occassionally, whining “I don’t like it!” is enough to get the government to intervene on the whiners behalf, but in this instance, a rational (right wing!?!) judge prevailed.

  2. Pingback: No harm, no appeal? § Unqualified Offerings

  3. Matty says:

    Would it not be in the interest of supporters of marriage to see the overturning supported at the highest level? If there is no appeal it seems to me the bigots will always say they were beaten by the technicality of not being able to appeal rather than loosing the argument (as appears to me to be the case).

  4. James Hanley says:


    Ideally, yes. But of course sometimes people just want to win, no matter how it happens.

    Personally, while I can imagine the 9th Circuit ruling there’s no standing to appeal, I can’t imagine the Supreme Court doing so in this particular case (although they have often done so, as a general rule), because they will be unwilling to have the Constitution mean one thing in one state, while not meaning that in 49 other states. At least not on such a substantively important issue.

    So if the 9th Circuit rules against standing to appeal, there is no doubt the Prop 8 backers will appeal that ruling to the Sup. Ct., which will comb their standing cases for some kind of precedent they can torture into an acceptable shape to allow standing in this case, and then remand it back to the 9th.

    Of course the 9th can foresee that as well as I can, so maybe they’ll just come up with their best guess at what kind of standing decision the Sup. Ct. would make, so they don’t have to go through the whole rigmarole of denial, appeal, and remand. Then again, maybe they’ll feel like making the Supremes earn their paycheck.

  5. Scott says:

    There is something special about Perry that means it only applies in California (so far), and so the SCOTUS could easily let the ruling stand with no overt discrepancy.

    In California before Prop 8 passed, a legal process for same-sex couples getting married was established. The ruling says that, given same-sex couples were allowed to get married legally in California, there was no rational reason that right could be taken away from them. This is a long way from ruling no legal regime in the US can be constitutional that forbids same-sex marriage.

    In totally neutral terms, this should look to an appellate court like a state constitutional amendment that was judged unconstitutional after hearing all applicable evidence, and that the state authorities agree is unconstitutional. SCOTUS does not need to do anything, because it is only something California has agreed about. If the people of California don’t like it, they can elect different executive branch leadership, pass the referendum again, and get a new hearing. On the geological timescales the SCOTUS should worry about, this case doesn’t matter a lick.

    Maybe you’re right four or more justices will want to intervene, but the reason of this ruling creating confusing precedent about what is or isn’t constitutional really isn’t there.

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