Calif. Court to hear the SSM case

[Jason]

Yet, despite all that, you think the new AG should appeal the ruling, because ..... why?

Because it isn't the AG's place to decide which laws are constitutional. If there are grounds for appeal (which I'm sure there are) then you should appeal it. The people voted for it = you defend it to the best of your abilities.

Saying "a poll shows the people don't want it any more" doesn't wash. Polls are not as accurate as a real vote.

And polls should never, ever be cited in a Judge's ruling.

[Jaybear]

Because it isn't the AG's place to decide which laws are constitutional. If there are grounds for appeal (which I'm sure there are) then you should appeal it. The people voted for it = you defend it to the best of your abilities.

Saying "a poll shows the people don't want it any more" doesn't wash. Polls are not as accurate as a real vote.

And polls should never, ever be cited in a Judge's ruling.

So you think she should reneg on an express promise she made to the voters, even though the only people that will complain if she does not appeal are those that voted against her. Got it.

Now where is it written that the AG has an obligation to commit state resources to appeal a ruling issued after a trial on the merits that went very badly for the Prop advocates.

[Mordecai]

BTW, terms like "your homodogma" are pejorative and have no place in a civil discussion.

It's supposed to be pejorative, mocking the idea that the gov't should adopt the Righteous Truth that a gay union=marriage. It's such a stupid idea, that it should be mocked. I think people have superficially accepted "gay marriage," but when we have debates, we always win. That's because "gay marriage" is ridiculous in the most literal sense of the word.

[Jason]

So you think she should reneg on an express promise she made to the voters, even though the only people that will complain if she does not appeal are those that voted against her. Got it.

Ideally she shouldn't make promises to do something that isn't in her perview in the first place. But if she does make a bad campaign promise then yes, she should break it.

Now where is it written that the AG has an obligation to commit state resources to appeal a ruling issued after a trial on the merits that went very badly for the Prop advocates.

As I said, if there are reasonable grounds for appeal, she should appeal. It shouldn't matter whether she personally is in favor of the law.

[Jaybear]

Ideally she shouldn't make promises to do something that isn't in her perview in the first place. But if she does make a bad campaign promise then yes, she should break it.

If you could cite authority that requires that AG appeal an adverse ruling following a trial on the merits, then you have a valid point. Otherwise, she has the discretion to decide whether to join the appeal.

I would point out if the CA constitution required that the AG appeal an adverse trial ruling, then I would think that the smart lawyers hired by the Prop 8 advocates would have filed a complaint in state court to compel Brown to participate in the appeal.

So, unless the prop 8 advocates hired incompetent counsel, your premise is wrong.

[Jason]

If you could cite authority that requires that AG appeal an adverse ruling following a trial on the merits, then you have a valid point. Otherwise, she has the discretion to decide whether to join the appeal.

What is legally required and what is honestly doing your best to fulfill the office entrusted to you by the people can be two different things.

Can you cite some authority that states that it is the Attorney General's duty to decide which laws are constitutional and therefore worth defending?

[Jaybear]

Can you cite some authority that states that it is the Attorney General's duty to decide which laws are constitutional and therefore worth defending?

I am not the one complaining that she is breaching her duty by failing to act.

[Jason]

I am not the one complaining that she is breaching her duty by failing to act.

I'll take that as a "no".

[Daniel2]

Another update:

Prop 8 Lawsuit Lawyers Ask Ninth Circuit to Lift Stay and Allow California Same-Sex Marriages

Posted by Chris Geidner on February 23, 2011 6:01 PM

Moments after the U.S. Department of Justice announced that it would no longer be defending challenges to Section 3 of the Defense of Marriage Act, Ted Olson announced that the legal team in the Perry v. Schwarzenegger challenge to Proposition 8 was asking the U.S. Court of Appeals for the Ninth Circuit to lift the stay of the trial court ruling striking down Proposition 8 -- a move that would allow same-sex marriages to begin in California immediately. Olson is the lead attorney for the Perry plaintiffs, who argue that California's 2008 marriage amendment is unconstitional.

The reason for the request given by the Perry legal team is that three "materially changed circumstances" justify the court reversing, or vacating, its earlier stay of U.S. District Court Judge Vaugn Walker's order prohibiting enforcement of Proposition 8.

Two of the three changes -- the Ninth Circuit's certification request and the California Supreme Court's decision to accept that order -- are a part of the case itself. The Ninth Circuit, in resolving whether the proponents of Proposition 8 have standing to appeal the loss at trial, has asked the California Supreme Court to assess whether, under state law, the proponents of an initiative have legal rights to defend initiatives -- a request the California Supreme Court accepting and will be considering in coming months (although the Olson team, in a separate filing, asked that court to expedite that consideration).

Although these two actions, arguably, present changed circumstances, they are changes of which the court could have conceived, at least, when they sent the certified question to the California Supreme Court on January 4.

The request to lift the stay of the trial court order that was put to the Ninth Circuit today by the Perry legal team notes, however, "This Court's January 4 order and the California Supreme Court's response make clear that the stay can no longer be justified and the 'additional delay' it imposes will not be fleeting. Given these changed circumstances, the stay pending appeal should be vacated."

In other words, while marriage equality is not reality in California as the Perry case makes its way through the appellate courts, Olson and the Perry legal team argue -- as they did previously -- that it should be.

The third changed circumstance is outside of the case and, technically, irrelevant to it, yet Olson argues should have a major impact on it. As Olson and the lawyers wrote, the third changed circumstance is that "the Attorney General of the United States announced the view of the United States that 'classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law, Section 3 of [DOMA]

[Zeta-Flux]

If you could cite authority that requires that AG appeal an adverse ruling following a trial on the merits, then you have a valid point. Otherwise, she has the discretion to decide whether to join the appeal.

I would point out if the CA constitution required that the AG appeal an adverse trial ruling, then I would think that the smart lawyers hired by the Prop 8 advocates would have filed a complaint in state court to compel Brown to participate in the appeal.

So, unless the prop 8 advocates hired incompetent counsel, your premise is wrong.

It is interesting that you mention the CA constitution. This is what it says in Article III:

"SEC. 3.5. An administrative agency, including an administrative

agency created by the Constitution or an initiative statute, has no

power:

(a) To declare a statute unenforceable, or refuse to enforce a

statute, on the basis of it being unconstitutional unless an

appellate court has made a determination that such statute is

unconstitutional;

(b) To declare a statute unconstitutional;

© To declare a statute unenforceable, or to refuse to enforce a

statute on the basis that federal law or federal regulations prohibit

the enforcement of such statute unless an appellate court has made a

determination that the enforcement of such statute is prohibited by

federal law or federal regulations."

One could interpret this to say that no state officer (including the AG or Governor) is authorized to declare any part of the constitution unconstitutional without a ruling from an appellate court.

[Jaybear]

One could interpret this to say that no state officer (including the AG or Governor) is authorized to declare any part of the constitution unconstitutional without a ruling from an appellate court.

Sure, but the AG has not "declared" prop 8 unconstitutional. The ban on gay marriage is still being enforced in the State.

[Zeta-Flux]

Sure, but the AG has not "declared" prop 8 unconstitutional. The ban on gay marriage is still being enforced in the State.

But will it be enforced if the proponents are not allowed to appeal, even though no appellate court will have ruled? That's the jist of that portion of the California Constitution.

[Jaybear]

But will it be enforced if the proponents are not allowed to appeal, even though no appellate court will have ruled? That's the jist of that portion of the California Constitution.

Not if enforcement is enjoined by a lawfully issued court order.