Duty to Defend?

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The Third District Court of Appeal denied a conservative legal group's request to force Governor Schwarzenegger and Attorney General Jerry Brown to defend the same-sex marriage ban.


A conservative legal group in Sacramento is trying to force Governor Schwarzenegger and Attorney General Jerry Brown to drop their support of Judge Walker's decision striking down Proposition 8.

The non-profit Pacific Justice Institute (PJI) is petitioning the 3rd District Court of Appeal in Sacramento in hopes of forcing the Governor and AG to defend the measure in court, something they both refuse to do. Their refusal is a potential problem for Prop. 8 supporters hoping to appeal Judge Walker's decision. The 9th Circuit Court of Appeals asked the defendants to explain why they even have standing to appeal the ruling. Ordinarily appellants would be the government, which is responsible for implementing and enforcing state law. If the 9th Circuit decides the Protect Marriage folks are not harmed by the decision and have no standing to appeal, the court could reject their appeal altogether.

The legal playing field could then shift to the U.S. Supreme Court much sooner than anyone anticipated. The PJI lawsuit includes a sworn Declaration from former U.S. Attorney General and legal advisor to Governor  Reagan, Edwin Meese III.

But does it have merit? Probably not, says UC Davis Law Professor Vikram Amar.

"There simply isn’t much authority or precedent behind the notion that the AG has a duty to defend in all cases (just as he doesn’t have a duty to prosecute in all cases)," Amar told me. "And the case against the Governor is even weaker, I think, based on the statutes and other materials cited in the petition itself . In the end, I think courts will say the remedy against an elected official who won’t defend a popular law is political, not judicial."

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