Life After Perry: Who Will Defend Which Laws in Court?
Richard is right on a universe of issues here. It is a target rich environment. Let me add a few points, beyond noting that the problem of collusion between parties in litigation is an equally big problem when it comes to class actions against the government, where plaintiffs sue school districts, claiming insufficient resources, they settle, a court blesses it, all with the aim taking money from the state to fund their institutions without going through the normal budgetary process. Another reason why several states are being run into the fiscal ground.
But I digress. A few additional thoughts.
1. If Judge Walker thinks that the Prop 8 defenders have no standing to appeal, he should not have found that they had a sufficient "interest" to intervene at trial, and certainly not to do anything so important as serve as the main defenders of the law in a federal court. If the pro-Prop 8 parties are the wrong appellants, then they were the wrong defendants. If Walker was wrong on this, he could be reversed and the case sent back to his courtroom, where the state could change its mind -- this would be after the November elections -- and put on a defense. This could be another example where Walker over-extended himself and gives the appeals court the ground to reverse. If Republicans win either the Governor's or Attorney General's elections, and Walker is reversed on this point on appeal, they could then come in and defend.
2. The CA governor's election could interact in significant ways with the Prop 8 case. The reason Walker can make this standing call is because neither Schwarzenegger nor Jerry Brown (as attorney general) will defend the law in court. It is difficult to see how this is consistent with Brown's duty under the California constitution to enforce the law. He could claim, as did San Francisco mayor Gavin Newsom, that he has a higher duty to the U.S. Constitution. U.S. Solicitors General sometimes face this question when they defend a federal law before the Supreme Court, but they will almost always defend the law even if its constitutionality is doubtful (they usually require the law to be obviously unconstitutional if they won't defend). But there is a provision in the California constitution which requires state officials to defend the law unless an appellate court has held it unconstitutional. It was on this ground that the California Supreme Court reversed Newsom's policy to allow gay marriages. So Whitman could argue, regardless of anyone's position on gay marriage, that Jerry Brown isn't even doing the job he has, not to mention the one that he wants next. At the very least, Brown should explain why he thinks gay marriage is so obviously required by the U.S. Constitution.
3. The whole point of the initiative, thanks to its progressive progenitors, is to enact legislation when the government is captured by special interests that are blocking reform. So it is likely that cases would arise where elected officials would refuse to defend initiatives. Suppose, for example, that an initiative called for caps on government salaries and pensions or term limits -- officials out of their self interest might not want to defend the law. California law, I believe, permits the groups that gathered the signatures and campaigned for an initiative to defend it. They might actually be the groups that are "injured in fact" within conventional standing analysis, rather than the state officials. The main concerns of standing are, as Richard says, to make sure that the parties are actually harmed and have an interest in pursuing the case robustly, to make sure that it is a real controversy and not a hypothetical question, and to make sure that the courts do not become roving inspectors general simply called on to nitpick on every government decision. Here, no one doubts that the plaintiffs have standing, so these concerns are not at issue when it is the defendants who are appealing.
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Re: Life After Perry: Who Will Defend Which Laws in Court?
I don't think Brown will have a hard time concocting an excuse for not defending the law. And although Whitman has said she will defend the law if elected, I have a hard time seeing her make it into a campaign issue.
Aug '10
Re: Life After Perry: Who Will Defend Which Laws in Court?
Perhaps even worse: Meg Whitman claims to support the law, so her administration is recognized as its official defender in court, and then proceeds to make an utter hash of it. My sense of her is that she her principles are paper-thin, and that the job could be done much better by people who genuinely care about this issue.
Aug '10
Re: Life After Perry: Who Will Defend Which Laws in Court?
Is it possible to render a particular judge ineligible to hear further arguments in a case like this by filing an ethics complaint against him? It seems that Walker's manipulations of the trial in this case go beyond anything legitimate, and that he's pretty obviously been playing the role of a passionate warrior for the cause, not a neutral arbiter.