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.