California Supreme Court refuses to force Gov. Schwarzenegger to appeal Prop 8 decision

Posted on 09 Sep 2010 at 7:24pm

Ruling means case may hinge on whether Yes on 8 has standing

Lisa Keen  | Keen News Service

The California Supreme Court on Wednesday night, Sept. 8 denied a petition from a conservative group seeking to force California Gov. Arnold Schwarzenegger to participate in an appeal of the Proposition 8 case.

The full court issued its decision with a simple two-sentence declaration, denying a petition from the Pacific Justice Institute. The denial came just hours after Schwarzenegger and state Attorney General Jerry Brown submitted letters to the court, explaining that they were not participating in the appeal of Perry v. Schwarzenegger.

In a letter from his attorney, Gov. Schwarzenegger indicated what had been uncertain before — that he had decided not to appeal the Proposition 8 court decision to the 9th Circuit.

The definitive statement from Schwarzenegger — coupled with the state supreme court’s refusal to require state participation in the appeal — means the ability of Proposition 8 proponents to appeal may depend entirely on the legal standing of the Yes on 8 coalition. (There is one remaining possibility: the County Board of Supervisors of Imperial County, California, has asked to serve as an intervenor in the appeal. Because the county issues marriage licenses, it may be able to demonstrate a necessary element of standing — that it is impacted by the district court decision.)

Gov. Schwarzenegger had until Sept. 11 to make a decision and, though his position on marriage equality for gay couples has been changing, his most recent statements seemed to indicate he would not direct the state’s attorney general to appeal the decision from the U.S. District Court in San Francisco.

That decision, issued Aug. 4 by Judge Vaughn Walker, found Proposition 8 violates the federal constitutional guarantee to equal protection. The Yes on 8 coalition filed its appeal, and a three-judge panel of the 9th Circuit has said it will hear the appeal during the first week of December, along with arguments concerning whether the Yes on 8 coalition has standing to appeal.

Hoping to shore up the legitimacy of that appeal, the Pacific Justice Institute, a conservative legal group, filed an appeal — Beckley v. Schwarzenegger — to the California Supreme Court this week, asking justices to force the governor to instruct the attorney general to join the appeal in the 9th Circuit.

The state supreme court ordered the governor and attorney general to weigh in on this matter Wednesday. And, in a five-page letter Sept. 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.”

A letter from Attorney General Jerry Brown’s deputy, Tamar Pachter, reiterated that Brown has long opposed Proposition 8 as unconstitutional and that Brown’s decision not to appeal the federal court decision in Perry v. Schwarzenegger “is an ordinary and sound exercise of the discretion secured by law to his office.”

Pachter says the Pacific Justice Institute’s petition is based on its “fears that the the federal courts will rule that [Yes on 8 proponents] lack standing to pursue their appeal …”

“But the Attorney General has no duty to appeal at all, let alone to file an appeal he has determined is legally unjustified, soley to manufacture federal appellate standing in private parties,” wrote Pachter.

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