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

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.

Copyright ©2010 Keen News Service. ALL RIGHTS RESERVED.

—  John Wright

Appeals court grants stay of Prop 8 ruling

LISA KEEN  |  Keen News Service

A three-judge panel of the 9th Circuit U.S. Court of Appeals issued an order Monday granting Yes on 8’s request for a stay of Judge Vaughn Walker’s ruling that Proposition 8 is unconstitutional. The appeals court panel also ordered, without being asked, that Yes on 8’s appeal of Walker’s ruling in Perry v. Schwarzenegger be addressed by the court on an expedited basis.

The panel said it would hear arguments on appeal during the week of Dec. 6, as well as arguments concerning whether Yes on 8 has legal standing to press the appeal.

The two-page order is a disappointment to many same-sex couples in California who were hoping that they would be able to obtain marriage licenses as soon as Judge Walker’s stay expired — at 5 p.m. Pacific time on Wednesday.

“We are very gratified that the Ninth Circuit has recognized the importance and pressing nature of this case and the need to resolve it as quickly as possible by issuing this extremely expedited briefing schedule,” said Ted Olson, one of the lead attorneys for plaintiffs challenging Proposition 8.

Olson, one of the most prominent conservative attorneys in the country, launched the high-profile challenge of California’s voter-approved constitutional ban on same-sex marriage with liberal attorney icon David Boies. Walker, chief judge of the U.S. District Court for Northern California (San Francisco), heard three weeks of testimony by the plaintiffs and Proposition 8 supporters in January.

In a dramatic 136-page ruling on Aug. 4, Walker declared the same-sex marriage ban in the state constitution violates the U.S. Constitution’s guarantees of equal protection and due process. Walker agreed to stay — or delay enforcement — of his decision until Aug. 18, giving the 9th Circuit time to decide whether to grant a more extended appeal.

Evan Wolfson, who was a lead attorney on the first same-sex marriage case — in Hawaii in 1996 — called the 9th Circuit panel’s decision to continue Walker’s stay “disappointing.”

“But there are many twists in the road to justice,” said Wolfson, “and we are encouraged by the court’s setting a fast pace for the appeal, revealing that the judges understand how important a quick end to the exclusion from marriage is to gay couples, their loved ones, and all Americans who believe in equality under the law.”

The 9th Circuit panel includes two Clinton appointees — Judges Sidney Thomas and Michael Hawkins — and one Reagan appointee, Edward Leavey.

The panel set Sept. 17 as the date Yes on 8’s initial argument brief is due.

The response brief from the Ted Olson-David Boies legal team challenging Proposition 8 is due Oct. 18. And Yes on 8 may reply to plaintiffs’ brief by Nov. 1.

Monday’s order means the same-sex marriage ban will stay intact at least until December, when the 9th Circuit will hear arguments on both the issue of Yes on 8’s standing to appeal and, perhaps, on the merits of Walker’s decision.

Meanwhile, on the East Coast, where U.S. District Court Judge Joseph Tauro ruled — in two separate cases — July 9 that the ban on federal benefits to same-sex couples is unconstitutional, the clock is still ticking down the 60 days the U.S. Department of Justice has to appeal the decisions to the 1st Circuit U.S. Court of Appeals.

© 2010 by Keen News Service. All rights reserved.

—  John Wright

Abbott declines to issue opinion on marriage controversy in El Paso

Attorney General Greg Abbott

El Paso County attorney Jo Anne Bernal’s office sent Dallas Voice a copy of a letter from Attorney General Greg Abbott. His office has formally declined to issue a legal opinion regarding the granting of marriage licenses to individuals who have undergone sex change operations.

She wrote, “On April 19, 2010 El Paso County Attorney’s Office requested a legal opinion as to whether the County Clerk could legally issue a marriage license under a new Texas law when one of the parties is a female and the other was born a man but subsequently underwent sexual reassignment surgery and is now living as a woman.”

Her office asked the attorney general for guidance after two women requested a marriage license earlier this year in El Paso. One of the applicants presented a birth certificate identifying her as a male, a court order approving his name change from a male to female, and an Arizona driver’s license with her new identity as a female.

El Paso denied the application for the marriage license because of the conflicting documents.

Abbot wrote, “It is the policy of this office to refrain from issuing an attorney general opinion on a question that we know to be the subject of pending litigation. … This policy, which has been in effect for more than sixty years, is based on the fact that attorney general opinions, unlike those issued by courts of law, are advisory in nature. By contrast, court decisions are binding …”

Funny, although courts ruled in same-sex divorce cases, Abbott intervened to stop those despite the “binding” decisions of the courts. In this case, however, the marriage license was already denied, giving him the victory he wanted without intervening.

—  David Taffet