Jerry Brown Seeks to Overturn Proposition H8

BREAKING NEWS - State Attorney General Jerry Brown has asked the California Supreme Court today to invalidate Proposition H8. According to Brown, the November ballot measure banning gay marriage “deprives people of the right to marry, an aspect of liberty that the Supreme Court has concluded is guaranteed by the California Constitution.”

Brown, who’s duty is to defend the state’s laws, originally said he planned to defend the controversial proposition. After gay rights activists filed legal challenges to Proposition 8,  Brown says he studied the matter and concluded that “Proposition 8 must be invalidated because the amendment process cannot be used to extinguish fundamental constitutional rights without compelling justification.”

“It’s outrageous,” said Frank Schubert, campaign manager for Proposition 8, in response to Brown’s reversal. Legal briefs filed Friday were in response to several legal challenges filed by gay rights advocates, and the cities of San Francisco and Los Angeles.

The California Supreme Court announced that it would hear arguments in the case shortly after the election, perhaps as soon as March. The legal challenges to Proposition H8 point out that revisions of the state Constitution can be placed on the ballot only after a two-thirds vote of the Legislature or a constitutional convention. In contrast, Proposition H8 was put on the ballot after a signature drive.

Brown’s brief filed today added that he believes that the estimated 18,000 same-sex marriages performed from June to November should remain valid.

The group Protect Marriage (PM) intervened in the case and filed its own brief because it didn’t believe Brown would defend Proposition H8. PM argued that Proposition 8 should remain legal and seeks to nullify all same-sex marriages performed from June to November.

  36 comments for “Jerry Brown Seeks to Overturn Proposition H8

  1. December 19, 2008 at 6:26 pm

    OMG, this is amazing news! Major props to Jerry Brown for doing the right thing today! There’s no way in hell this unconstitutional attempt to revise H8 should stand, and I’m glad that our state’s top lawyer is admitting this.

  2. December 19, 2008 at 7:00 pm

    Well, well, well.

    It’s so comforting to know Attorney General Brown refuses to let his gubernatorial ambitions and desire to obtain the support of an influential Democratic constituency interfere with his sworn duties as the state’s chief law enforcement officer.

    Pa-thetic.

  3. December 19, 2008 at 7:06 pm

    Matt/Jubal-

    Well, well, well.

    Should we be surprised that the state’s chief law enforcement officer actually wants to enforce our chief law (the constitution)? There’s a process that must be utilized for a consitutional revision to pass. Unfortunately for your side, the Yes on H8 campaign didn’t do that. It never should have been on the ballot without legislative approval in the first place, so it’s good that our chief law enforcement officer wants to… you know, enforce the law!

  4. December 19, 2008 at 7:27 pm

    Andrew, I hate to break it to you, I think that is what the California Supreme Court is being asked to weigh in on.

    If you prefer a banana republic approach of having a ppolitican like Borwn decide that matter, simply because his view aligns with yours…you’re welcome to your opinion.

    Keep that in mind if, in the future, you and your friends on the Left pass a controversial initiative, and a Republican AG decides your initiative should be invalidated and refuses to do his duty to defend it in court. I would be very interested to see if your current opinion held in that instance.

  5. duplojohn
    December 19, 2008 at 7:34 pm

    The proposition IS in conflict with both the US and Sate constitutions.

    He is right to do this.

  6. December 19, 2008 at 7:50 pm

    And who died and made you the Supreme Court, duplojohn? Brown is Attorney general for the state of California, not the LGBT caucus.

    It’s all ends-justifies-the-means with you lefties.

  7. Steve Perez
    December 19, 2008 at 7:57 pm

    Misha, So it’s OK to criticize the President Elect now right? Because when I accused him of turning his back on gay rights, you kinda rationalized it out and made it “alright”, and then you told me that while we attack each other the right is in lock step. I foresaw that the Pres. Elect did not give a shit for gay rights. He’s taking a full decentralist stance on it. Let the states decide. The battle cry of cowards.

  8. December 19, 2008 at 9:45 pm

    duplojohn-

    Agreed. I guess Matt/Jubal is starting to get scared that time is running out on the one “wedge issue” the GOP has left. Whatever. This is about misusing the initiative process to strip people of their constitutional rights, and I look forward to AG Brown & our legal allies making the case for equality in court.

    Steve-

    Hold on. This thread is about the case before the supreme court to overturn H8. Let’s not go too OT in bringing “Warrengate” into this.

    And btw, I’m also quite disappointed in the President-Elect that he’d want such a homophobic bigot to bless his inauguration. Still, this should be a wake-up call to us that can’t take Obama for granted. We need to raise holy hell & put pressure on him and on the new Congress to take action on ENDA, repealing DOMA, and repealing DADT. We don’t give up, but instead fight harder to make it happen.

  9. Bladerunner
    December 20, 2008 at 1:25 am

    I am troubled by Brown’s stance. Regardless of the merits of what he thinks of the state’s case, California law is very clear that he has a duty to defend the state. The language is mandatory–he “shall…defend all cases to which the state or any state offer is a party in his or her official capacity.” The state is being sued here to invalidate Prop 8. His mandatory duty is to defend the the measure, not to decide whether he agrees with it. Failure to do so would be abandoning his client, violating the law and frankly be malpractice.

    The only real exception for an AG to fail to defend the state inlitigation like this is if the AG made a determination that no reasonable lawyer could consider the law constitutional. People may believe that Prop. 8 is unconstitutional but no fair minded legal scholar could say that no reasonable lawyer could consider the law constitutional.

    This is a real slippery slope and not one just played out by Democrats . Republican George Deukmejian played this same “I’ll determine what laws I will enforce or defend” role following the 1996 election. Two ballot measures of significance passed that year; Prop 209 restricting affirmative action and Prop..215 legalizing medicinal marijuana use. Deukmejian aggressively defended and enforced Prop 209 which he had supported but refused to enforce Prop 215 which he had opposed. So the shoe can be and has been on the other foot.

    The Attorney General is the lawyer for the state. He or she gets to defend or prosecute cases against or for the state. Its not a pick and choose position. You can’t have your lawyer deciding in the middle of a case that he doesn’t weant to defend you any more. If the Brown can’t defend the law he should resign and do what he spends a good deal of his time doing anyway–run for Governor. He doesn’t have to agree with the law—he has said he opposes capital punishment but would enforce the death penalty notwithstanding his views–and can assign a Deputy AG the task of the defense.

  10. Republican Dementia
    December 20, 2008 at 4:44 am

    Like all constitutional officers, the Attorney General took an oath to defend the Consititution of the United States and the Constitution of the State of California against all enemies ….

  11. December 20, 2008 at 8:26 am

    Bladerunner-

    Read Republican Dementia’s comment below. Jerry Brown IS defending state law! The state constitution is the supreme law of the land, and Brown ultimately determined that defending the constitution is more important than defending a legally questionable initiative.

    And btw, Pete Wilson was Governor in 1996. I don’t remember who was AG then, but I’m sure he also had to examine Props 209 & 215 to determine the constitutionality of both initiatives before determining whether to defend them in court. I mean, isn’t this the AG’s job? To protect & defend our constitution?

    Republican Dementia-

    Good point. ;-)

  12. duplojohn
    December 20, 2008 at 12:13 pm

    Matt,

    Nobody,

    I am simply noting that the proposition is in conflict with the equal rights clause of the constitution.

    But, while on the subject of the supreme court of California, I seem to recall you describing them as “activist judges from San Francisco”, In fact only one of the judges is from SF, the others are from Los Angeles and the Central Valley. In addition ALL except one were appointed by Republican Governors and lastly, when Brown request is denied on a precedent basis will you still consider them “liberal”?

    I can argue this on a legal basis or a personal one. It’s up to you. But in the end Prop 8 is as unfair as denying someone in a wheelchair the right to get married.

  13. duplojohn
    December 20, 2008 at 12:16 pm

    I believe it was James Madison who said:

    “In no instance have… the churches been guardians of the liberties of the people.”

  14. Steve Kim
    December 20, 2008 at 2:51 pm

    duplojohn…
    Whether or not if James Madison said it, its the absolute truth!

  15. Dan Chmielewski
    December 20, 2008 at 4:21 pm

    Matt — I thnk you’re reading too much into this; Brown is suggesting to the Supreme Court that Prop 8 ought to be thrown out; he has not stated he would not enforce the law.

    IN limbo are 18,000 gay/lesbian couples who got married this summer and fall; are their marriages null and void?

    Franklu, I can’t wait for a challenge on this to go all the way to the Supreme Court where I hope the court does the right thing and makes marriage equality the law of the land like that did with Loving vs Virginia in 1967.

    I say we draft a constitutional amendment outlawing divorce but using the same language as the Pro-Prop 8 argument.

  16. RHackett
    December 20, 2008 at 5:00 pm

    Duplo,

    I prefer this one.

    “Man will never be free until the last king is strangled with the entrails of the last priest.”
    – Denis Diderot

  17. Sweetelle
    December 20, 2008 at 5:27 pm

    Dan,

    Your entire comment is outstanding, but I particularly appreciate: “I say we draft a constitutional amendment outlawing divorce but using the same language as the Pro-Prop 8 argument.” Wouldn’t THAT be interesting!

  18. demmother
    December 20, 2008 at 6:22 pm

    Elected officials take an oath to support & defend the Constitution of the US & CA. How can anyone write discrimination into the law?

    To Bladerunner – I understand your concern. I find it refreshing that a politician (Jerry Brown in this case) would take a stand on this issue. Like it or not., it is certainly more courageous than Governor Girlie Man’s ‘support’.

    What I find interesting is that the CT court overturned the ‘Defense of marriage’ act and the FL court overturned the ban on same sex couples adopting. This whole Prop 8 thing may blow up in the Relegious peoples faces.

    As a civics reminder… if judges were to merely uphold the will of the people, the justice department is superfluous. Lets just take a vote on everything; guilty or not guilty? Imagine no jails, we can just lynch everyone we don’t like.
    The third branch is there to make sure that there is no tyranny of the majority.

  19. demmother
    December 20, 2008 at 6:23 pm

    I also heard that Kenneth Starr will represent the pro H8 side.

  20. Bladerunner
    December 21, 2008 at 2:19 am

    Every California elected official takes an oath to defend the constitution. But the Attorney General’s specific statutory marching orders are to defend all cases in which the State is a defendant. State law does not give the AG the authority to pick and choose which laws he or she is to enforce using constitutionality as a basis for his or her decision. The example I used earlier in this thread about Prop 215 was actually Dan Lungren, not George Deukmejian, and I thought he was wrong not to enforce the medical marijuana law.

    Brown knew his responsibility when he took the job and when he made clear after Prop. 8 passed that he would defend the State and defend the Prop. 8. Just as AG Bill Lockyer defended the State during the litigation on this issue last year. As I mentioned earlier, his only justified refusal to represent the state in a case is if he feels that no reasonable attorney could believe the state law was constitutional, and that is not the case here. Even if it was, his proper course of action would be to decline to represent the state in the case, not to actively undermine its position in the litigation. While Brown may be right about the constitutionality of Prop. 8, he’s flat out wrong in they way he has handled himself.

    And let’s be clear about something—Brown was aware of the constitutional arguments about Prop., 8 long before he made his last minute flip flop on the case. The only thing that changed was the huge and sustained outcry in the gay-lesbian community and from many others since the November vote on Prop. 8. Brown, fearing he would soon be hearing Gavin Newsome’s footsteps, was defending something all right–his front runner status in the Democratic gubernatorial primary.

    If the voters would have passed a measure that legalized same sex marriages and the AG–lets say AG Todd Spitzer—after initially promising to represent the state and defend the statute suddenly flip flopped and refused to defend the state in the litigation and actively urged the California Supreme Court to throw out the initiative because he felt it was unconstitutional, most of you would be squeeling and be outraged that he did not do his job in defending the law.

  21. Misha Houser
    December 21, 2008 at 5:15 pm

    Bladerunner,
    What you and Jubal are missing here is that the constitution always has more weight that a newly passed law. Your argument is that the AG must defend all laws equally, which is ludicrous. I would expect the AG, regardless of the issue to give proper priority to legal arguments.

    Just as a murder charge has more weight than a parking ticket, a voter-passed law is lesser than the constitution. Come on you guys, you can’t seriously think that folks don’t understand the difference. The Prop H8 supporters already knew if they won there would be a constitutional challenge and planned for it. Why don’t you guys get it?

  22. Bladerunner
    December 21, 2008 at 6:17 pm

    Excuse me Ms. Houser but what you seem to be missing is that Prop 8 IS now part of the Constitution. By the people. Whether it is an unconstitutional amendment(or revision) to the Constitution is up to the California Supreme Court. Not the Attorney General.

    You also seem to be missing is that, as I pointed out twice before, the Attorney General has an obligation–both in the Constitution and by statute–to defend the State and its constitutional officers when it and they have been sued. It’s not, repeat not, optional depending on the AG’s political (excuse me, constitutional)whims. I also pointed out the procedure for the AG to utilize if he truly believed Prop 8 was unconstitutional and if no reasonabl;e attorney felt the constitutional amendment or law was constitutional–withdraw from the litigation and do no more.

    It’s clear that you like Browns new position after his flip. Its also clear that you are very upset with Prop. 8. I understand that.l But it seems to be getting in the way of your understanding of basic constitutional and statutory requirements for the AG. If youand Jerry Brown don’t like them, then get the Legislature to carve out the politically convienient(excuse me, constitutional)exception to the AG’s job requirements.

    I am sure that both sides of this issue contemplated a constitutional challenge by the loser. Both planned for it, in fact, the Yes side knew that at best Brown might be half-hearted in his defense of 8 because he opposed it during the election. But they had every right to expect Brown to defend 8 and if not, certainly not urge the justices to throw it out. Your position is called situational constitutionality.

    You’d be better off admitting that Brown is wrong in his conduct and if the shoe was on the other foot you’d be raising hell(excuse me, you’d raise a ruckus).\ but that the stakes are so high for you and others it warrants Brown ignoring the law. A very slippery slope that could be used against progressives by a conservative AG but at least an honest position. Just like the example I used earlier—if Prop 8 had been to legalize same sex marriage and the AG had flipped flopped like Brown did by starting to defend the measure and then at the last minute file a brief urging that the Justices throw out the same-sex measure, you would be outraged that the AG was not complying with the law and defending the constitutional amendment/revision. Your silence on this point is telling.

  23. Misha Houser
    December 21, 2008 at 6:56 pm

    Mr. Bladerunner,
    Your use of Ms. in front of my name is also telling…so, I suppose I should address you in the same manner? The condescending…& perhaps sexist tone is unnecessary.

    As for “schooling me” on this issue, perhaps you have a short memory and don’t remember that many CA propositions go through litigation before they are codified as law, this case is no different. If the procedure to get it on the ballot was indeed anti-constitutional, then it should be opposed. By your logic, if the people had passed a law saying that inter-racial marriage was not to be recognized, the AG should defend it?

    For you to assume that I would be reacting they way you are is, well, you telling me what I think. I would appreciate it if you would refrain from projecting what you think I would do (based on your own reactions, perhaps?).

    Let me be clear, I would be disappointed if we had won but had done so with a faulty amendment process. However, I would still want it to go through the legal process.

    Brown has made it clear that he believes that the process was improper. He’s not making a statement about the substance of Prop. H8 itself. I would be upset if an AG declared a law invalid based on his personal beliefs. Brown has declared that the PROCESS was invalid because a constitutional amendment is supposed to go through the legislature before being voted on by the people. It seems to me that regardless of the issue we should all want our AG to safeguard the process, regardless of the politics of the issue.

    It sounds like you are conveniently trying to play the same old game of “us vs. them” to demonize anyone who opposes this proposal and make it easier to whip up the base the next time. If you really want to see our constitution amended without the proper process, are you willing to be silent the next time a liberal amendment is proposed and passed in the same manner?

    Or perhaps Dan should get busy collecting signatures on an anti-divorce amendment. THAT would be a hoot. What would the social conservatives do with that one? LOL.

  24. Bladerunner
    December 21, 2008 at 8:59 pm

    Ms. Houser—You’re a woman right? Would you prefer Miss or Mrs? Mr. is fine for me. What would you prefer? And don’t start with the tone given your own tone.Your playing the sexist card is not only laughable but shows how much you are deflecting the real issue. You ignore the constitutional and statutory requirement for Brown to do his job because you like the substance of what he has to say. Shall means shall, not maybe depending upon the political-constitutional mind set of the AG. And again, I assert you would be screaming if the shoe was on the other foot.

    The argument that Prop 8 is a revision and not an amendment has been around for some time. Brown was aware of it when he signaled his intent to defend the Proposition. Reasonable minds can differ on whether the revision versus amendment position is the proprer legal position. Because reasonable attorneys may differ he has an obligation to defend the proposition in an action where the state and its officers are defendants. If there was an interracial ballot measure it would have been kept off the ballot because the US Supreme Court has nulliified state laws prohibiting inter racial marriages. No such prohibition for laws prohibiting same sex marriages.

    Your myopia on this subject causes you to project positions to me that I have not taken. I’m not trying to demonize anyone. I have only been critical in this thread of the AG for failing to fufill his duties of office. For whatever reason you can not seem to comprehend this. I am not commenting on the substance of Brown’s claims. I am simply that he is not the person to be making them, he has violated his constitutional and statutory obligations for political gain. And that you and some others are so upset about Prop 8 that you want to ignore these clear requirements solely because you agree with his conclusion. Frankly, I think his revision versus amendment argument is weak but its a reasonable argument and we’ll see what the Supremes say. The stronger argument is an equal protection argument. But of course that would lead to the U.S. Supreme Court and the No on 8 people don’t want to go there….at least not until Obama has made a few appointments.

    And to answer your question, whatever amendment that comes forth, whether it be conservative or liberal, I expect the A.G to do his or her job and defend the measure if it passes. I’m tired of politicians like Dan Lungren and Jerry Brown using the office for political purposes instead of doing what the law requires.

  25. Steve Kim
    December 21, 2008 at 9:23 pm

    “Misha” is general a male name.

  26. December 21, 2008 at 9:47 pm

    Bladerunner and Steve, Misha is a woman. And Misha, I did not see Bladerunner’s tone as being sexist.

    That said, I was surprised that Jerry Brown decided to argue against Prop 8. Bladerunner makes a valid point that Brown is required to defend the state or withdraw and let someone else do so.

    A defense attorney is required to represent his or here client regardless of guilt. The Attorney General is required to represent the state regardless as to whether he believes a statute or Constitutional amendment is valid. The Attorney General is the attorney for the State, the people are the client.

    If the people pass a law, through their legislators or ballot initiative, the Attorney General must defend that law. My guess is, that even with Brown not defending, the Attorney General’s office isn’t off the hook for the legal bills in defense of Prop 8.

    Bladerunner is also right that we would be raising holy hell if the shoe were on the other foot.

  27. December 22, 2008 at 8:27 am

    Chris-

    Last I checked, AG Brown has already assigned the same lawyer who defended Prop 22 in court to defend Prop H8. Don’t worry, the AG’s office is doing its job. However, this doesn’t require Brown himself to defend H8 if he finds it unconstitutional. As demmother said upthread, the AG’s primary responsibility to defend the constitution, not whatever legally questionable initiative du jour that passes with 52% of the vote.

    So what’s the problem here? Prop H8 actually now has two defense teams in court, the lawyer assigned by the AG’s office & the Yes on H8 campaign legal team. There’s no requirement whatsoever for the Attorney General himself to defend an initiative in court that he’s found to be unconstitutional.

  28. December 22, 2008 at 8:34 am

    Andrew,

    He needed to not be one of the people filing a brief in opposition, especially because of his position.

  29. Rob
    December 22, 2008 at 9:08 am

    No one’s civil rights are denied by Prop 8. Every man or woman continues to have the right to marry a woman or man respectively.

    Pope Benedict said on Monday that saving humanity from homosexual or transsexual behavior was just as important as saving the rainforest from destruction.

    “(The Church) should also protect man from the destruction of himself. A sort of ecology of man is needed,” the pontiff said in a holiday address to the Curia, the Vatican’s central administration.

    “The tropical forests do deserve our protection. But man, as a creature, does not deserve any less.”

    The Catholic Church teaches that while homosexuality is not sinful, homosexual acts are. It opposes gay marriage and, in October, a leading Vatican official called homosexuality “a deviation, an irregularity, a wound.”

    The pope said humanity needed to “listen to the language of creation” to understand the intended roles of man and woman. He compared behavior beyond traditional heterosexual relations as “a destruction of God’s work.”

  30. December 22, 2008 at 9:29 am

    Rob-

    What does the Pope have to do with this? Last I checked, the Pope does not make public policy. The Pope can’t overrule genetics. The Pope can’t take people’s civil rights away. If the Pope doesn’t like same-sex marriage, then he doesn’t have to come to California to marry a man.

    Chris-

    Why not? If the Attorney General reviews the state constitution & concludes that Prop H8 can’t revise the constitution’s equal protection clause by a mere majority popular vote, shouldn’t he go to the court & submit his opinion? Last I checked, the court asked AG Brown for his conclusion on the legality of Prop H8. All Jerry Brown did was abide by the court’s request by submitting his briefing concluding that Prop H8 is unconstitutional.

    Again, as both Misha & demmother commented upthread, the Attorney General’s chief responsibility is to protect & defend the constitution. So when the California Supreme Court asks the Attorney General to submit a briefing offering his honest view on the legality of an initiative, the Attorney General should give the court his honest legal assessment. That’s all Jerry Brown did.

  31. December 22, 2008 at 9:50 am

    Bladerunner-

    Question: Did AG Dan Lungren make sure an attorney from his office was assigned to defend Prop 215 in 1996? If not, then I agree with you that he improperly handled the case. But if he did ensure a state attorney would defend 215 in court even if he himself found it unconstitutional, then he didn’t act improperly… Even though I disagree with him on medical marijuana.

    All state law requires is that the Attorney General’s office provide representation to support an initiative if challenged in court. But if the AG finds him/herself that the initiative is unconstitutional, then one must inform the court of one’s legal findings if the court asks the AG for his/her legal briefing on the initiative.

  32. duplojohn
    December 22, 2008 at 11:23 am

    The scariest thing I read here was:

    “Let’s say Todd Spitzer was the AG”.

  33. Bladerunner
    December 22, 2008 at 10:08 pm

    Mr. Davey… First, I’m glad you recognize the AG has a legal responsibility to defend the measure in court. However if you are correct and a Deputy AG is defending the initiative at the same time Brown is filing a 111 page brief to oppose it, you’ve just presented the worst conflict of interest I’ve seen in a long time. Think of yourself as the defendant with big bad Todd Spitzer as the prosecutor. You’ve got a defense lawyer, an associate with the law firm you’ve hired. All olf a sudden, the senior partner of the firm files a brief saying you are guilty and deserve to fry. Wouldn’t you be pissed off? And you would probably file a complaint with the State Bar against the lawyer who filed the brief.
    That’s the situation we’re in. Parties before the Supreme Court always file briefs. I’ve never known a lawyer for one of the parties before the Court to , at the last minute, file a brief directly in opposition to the interests of the client.. The Attorney General’s office speaks with one voice, not two or more. I doubt Lungren would try to pull a stunt like this one. And in his case, it was more a failure to enforce the measure than a failure to defend.

    I understand that Brown does not think the measure constitutional. But as I vave said ad nauseum, unless no reasonable attorney could conclude the measure was constitutional, Brown has an obligation to defend it. If he does not think the measure constitutional but reasonable attorneys could differ on the position(as here) he should defend it. But failing that, he should recuse himself and his office. Mr. prevatt was correct, he should not have filed the brief. It’s his position to offer legal advice to his client but the client decided to pass this measure and ignore his advice. It’s up to the Court to decide the constitutionality. Had not the Prop 8 people smelled a rat early on and applied for and were granted an opportunity to argue on behalf of the measure, there would be no representation. You may like that result but if the shoe was on the other foot you certainly would not.

  34. December 23, 2008 at 7:30 am

    Bladerunner-

    First off, I’d like to thank you for the mostly civil discussion we’ve all had in this thread. It’s not that often that I have to disagree with you & Chris, so I’m glad we’ve been able to keep this thread on the topic at hand. Now back to that topic…

    This isn’t a standard criminal defense case. This is a civil rights case before the highest court in the state determining whether all people will actually be treated equally in California. Ultimately, the court will decide the legality of this initiative. In that respect, you’re right.

    However, the court has always asked the Attorney General to weigh in on a case like this before the court, on the legality of an initiative being challenged. Should Brown have lied & said he thought Prop H8 is constitutional if his own legal analysis led him to conclude otherwise? How would that be proper, considering his primary duty is to protect & defend the state constitution, not whatever 52% of the voters agree to on any given election day?

    There’s currently a case before the US Supreme Court regarding the status of the detainees at Guantanamo Bay. It’s quite possible that the case won’t be heard until after Obama’s inauguration. So once it’s heard, should US AG Eric Holder defend keeping these detainees in legal limbo without a real court trial, let alone any conviction? I mean, when Bush instituted this, over 70% of Americans thought it was the right thing to do to keep the nation safe? Even if Holder doesn’t think it’s legal to keep these people imprisoned indefinitely without a proper trial, should he urge the court to rule in the government’s favor anyway because he’s now part of the government?

    Am I making sense now? Just because something is temporarily popular doesn’t make it right. And just because something may be government policy doesn’t mean it’s constitutional. After CA AG Brown examined Prop H8, he found that it isn’t constitutional. So when the court asked him to weigh in, he gave his honest legal analysis.

  35. December 23, 2008 at 7:36 am

    And btw, yes, I’d be disappointed if this were to happen the other way around if an AG Todd Spitzer were to refuse to defend an initiative overturning H8. But if he had a solid explanation why he couldn’t based on constitutional law (like Brown has with H8 today) while still directing his office to assign a state attorney to defend the initiative as his office is supposed to (just like Brown has done with H8 today), I really couldn’t say he was in the (legal) wrong. The primary role of the AG is to defend the state constitution. And since Brown can’t see how H8 is constitutional, he had to give the honest answer to the court when they asked.

  36. Bladerunner
    December 23, 2008 at 9:00 am

    Mr. Davey–Yes, civil discourse is always preferable tflamethrowing and I appreciate your spirited but civil defense of the AG. Most of the posters (but certainly not all the commenters)at the LOC are civil which is why I enjoy visiting the site.

    Now to the matter at hand–Its not a standard criminal case, you’re correct. But the same attorney client and conflict requirements exist for the AG in all cases. Mr. D–the Supreme Court invites all parties to submit briefs. Lockyer’s office submitted briefs last year. Brown said he would submit briefs this year in defense of the measure. Nothing changed except the politics.

    Your analogy with Gitmo is off point. Tnere was no vote of the people to imprison people in Gitmo without due process. Purely executive action. The executive could unilaterally say, ” We changed our mind. Get out of jail free. Close down Gitmo.” Can’t do that with Prop 8. Brown has an obligation to defend the measure. If he thinkls its unconstitutional he can recuse himself and say he cant represent the State because he thinks the measure is unconstitutional and the State would hire other counsel as in any conflict case. Normally the State would pay for the conflict counsel. It would be ironic if liberals cheering on Jerry Brown’s actions get stuck paying part of Kenneth Star’s legal bills.

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