Wednesday, September 1, 2010

Petition to Mandate California Governor File an Appeal in Perry v. Schwarzenegger (Proposition 8) Decision


The possibility that the "proponents" of Proposition 8 who participated in the trial but may nevertheless lack standing to appeal has provoked a petition in state court to require the  Governor or the Attorney General to appeal.

490px-Arnold_Schwarzenegger The petition and supporting memorandum in Beckley v. Schwarzenegger, filed in a California state appellate court, seeks an alternative writ of mandamus to compel Governor Schwarzenegger (pictured right) and State Attorney General Jerry Brown to file a notice of appeal by the deadline of September 11, 2010.  

The petition argues that under state law and the state constitution, the defendants have a duty to defend Proposition 8.  The petition argues that defending a law challenged on the basis of its constitutionality is required, unlike the decision whether or not to enforce a law.  The petition also contends that filing a notice of appeal is a "ministerial" duty that cannot be evaded and is subject to a writ of mandamus.

The memorandum argues that the failure to perform the "minimal acts necessary" to ensure jurisdiction in the Ninth Circuit Court of Appeals is tantamount to a "constructive pocket veto" of a constitutional amendment, which "does violence to the State's constitutional form of government."   This, the petition alleges, is "taking on a power which violates the social contract between the people and the governed, memorialized in the Constitution."  (Petition and Memo, at 27). 


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What was the outcome of the petition for writ of mandate? It seems there should be some merit to the petition. Otherwise, an attorney general effectively can veto voter-approved initiatives/constitutional amendments by simply refusing to defend legal challenges to such voter-enacted laws. Is there any precedent in California for an attorney general refusing to advocate on behalf of a statewide voter-approved law?

Posted by: Observer | Dec 6, 2010 6:52:46 PM

The UPDATE at the beginning of the post provides the brief Order denying the writ.

Posted by: RR | Dec 8, 2010 3:42:39 PM

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