Still no decision in AG race in California

by on November 10, 2010  •  In Marriage

Whether the next Attorney General of California will try to change the state's litigation position in Perry v.Schwarzenegger in order to defend Prop 8, or will accede to the ruling that Prop 8 is unconstitutional, is a pretty big question, but no one knows the answer to it yet because the race is still too close to call. There are thousands of absentee and other ballots remaining to be counted, and the outcome may not be known until after Thanksgiving.

From an op-ed in the Sacramento Bee by Williams Institute fellow Craig Konnoth:

According to the [standing] doctrine, only those individuals who have concrete interests in a case are able to litigate, or appeal, a matter. When it comes to defending laws on behalf of a state, however, the Supreme Court has only found state executive or legislative officials to have the required standing. After all, it would create great confusion if any citizen could designate themselves a representative of state interests and defend these interests in court.

Though Proposition 8 is slightly different, as it was directly adopted by the people instead of state legislative or executive officials, the principle remains the same. [Justice] Kennedy, in particular, has often been quicker than many of his colleagues in finding that standing does not exist. This has primarily hurt causes dear to the left, especially in the area of environmental litigation, where private citizens have attempted to enforce state and federal regulation.

Thus, when Attorney General Jerry Brown chose not to appeal Walker's ruling to the 9th Circuit, it created a standing issue, as Walker observed in a later decision. The only individuals left defending Proposition 8 were its private proponents. It is therefore possible that on appeal, the Proposition 8 proponents could be treated as private citizens without standing.

This is where the differences between [Kamala] Harris, a Democrat, and [Steve] Cooley, a Republican, become decisive.

Cooley has promised to appeal the case as attorney general. Given the deadlines involved, it is unclear whether Cooley will have a chance to intervene at either the appellate or Supreme Court levels. However, if the courts allow him to intervene in the case, it would solve the standing problem, and the Supreme Court could face the issue head-on. Many expect that this would result in a decision that is unfavorable to same-sex marriage efforts.

Harris, on the other hand, will not appeal the Proposition 8 ruling. This would allow either the 9th Circuit or the Supreme Court to dismiss the case on the grounds of standing without ever commenting on whether same-sex couples enjoy marriage rights under the Constitution. Walker's decision would remain intact and activists around the country would be able to lobby for marriage rights without an unfavorable Supreme Court decision hindering their efforts.


2 Responses to Still no decision in AG race in California

  1. TomTallis November 10, 2010 at 11:54 AM

    The governor is the chief-executive officer of the state. In many states that means that the governor may order the AG to do or not do something the governor wishes to be done or not done. That means that in many states the governor can override the AG in decisions such as whether or not to appeal Prop H8. I wonder if that’s true in California.

  2. Nan Hunter November 11, 2010 at 9:46 AM

    My understanding is that that AG in California has independent authority to pursue, or not, an appeal. The distinction is usually based on whether the AG is elected and thus has separate powers, or as in the federal gov’t, the AG is appointed by the President as part of the Cabinet, in which case he/she serves at the pleasure of the POTUS.

Leave a Reply

Your email address will not be published. Required fields are marked *