The entire membership of the Assembly Republican Caucus in the California State Assembly yesterday signed a letter to Governor Arnold Schwarzenegger urging him and state Attorney General Jerry Brown to file a federal appeal of the Proposition 8 case, Perry v. Schwarzenegger, according to John C. Eastman, Director of the Claremont Institute’s Center for Constitutional Jurisprudence and former Dean of Chapman University School of Law, who helped draft up a very articulate letter.

“This is a significant statement of principle coming from the entirety of the Assembly Republican Caucus,” Eastman said. “It reflects respect for the established rule of law that no matter one’s personal opinion, a validly enacted state initiative must be defended in the courts by the elected officials charged with this responsibility. The Governor and Attorney General have a constitutional duty to appeal the Prop 8 ruling, and it is high time for them to fulfill their oath of office in this regard.”

Proposition 8 was passed by over seven million voters in 2008, gaining 52% of the vote. Its constitutionality was upheld the California Supreme Court in 2009. Earlier this month, a single federal judge in San Francisco ruled that Proposition 8 violates the US constitution. Neither Schwarzenegger nor Brown mounted a defense of Prop 8 in federal court, and Brown has said that he will not appeal the trial court ruling. Though the proponents of Proposition 8 have filed an appeal, the trial court ruling questions their legal standing to do so, suggesting that only the state itself may appeal.

“As a constitutional scholar, I believe that the proponents of Proposition 8 do have legal standing to appeal the trial court’s ruling,” said Eastman. “Nonetheless, this issue is too important to turn on such a narrow procedural issue. It would be truly outrageous for a state constitutional amendment that was passed by over seven million Californians and already determined by the California Supreme Court to have been validly enacted to be overturned by one federal judge, and the People of California have no access to our appellate courts. The Governor can make sure that both sides have access to the courts by filing an appeal. He should do so immediately.”

Here is the letter…

Dear Governor:

We write to urge you to use your constitutional authority as Governor, and more specifically the authority provided to you under Government Code Section 12013, to direct the Attorney General to file a notice of appeal on behalf of the people of the State of California in the case of Perry v. Schwarzenegger. 

As you know, this is the recently concluded District Court decision on the legality of Proposition 8, and the institution of traditional marriage.  We further ask that, failing immediate action by the Attorney General, you act to file the notice of appeal yourself.
 
It does not matter whether we, the Attorney General, or you supported or opposed Proposition 8, or whether we believe it should or should not be the law of California. The people of the state of California themselves decided this issue on November 4, 2008. 

More than seven million Californians voted to approve that measure, and to reaffirm centuries of case and common law that marriage is a union between one man and one woman.  The initiative was upheld by the California Supreme Court as a valid exercise of the people’s initiative authority under our state Constitution.  One unelected federal court judge cannot be allowed to void such a decision, let alone do so without recourse to appeal. 

More importantly, however, our own duly elected Attorney General cannot be allowed to decide which laws he will and will not enforce and defend.  To allow such would be to substitute the rule of law for the law of rulers, and to render our democratic processes entirely meaningless. 
 
The importance of this court case to millions of Californians and indeed to countless other Americans cannot be overstated.  What we do wish to impress upon you, however, is the importance to our entire system of governance — legislative, judicial and the reserve right of the people to amend the Constitution of California via the initiative process — that the rule of law prevail.  Both plaintiffs and defendants in this case must be afforded full and unfettered access to the courts, up to and including the Supreme Court of the United States. 

No one’s individual opinion or belief, no matter how sincere or heartfelt, should be allowed to substitute for the rule of law or the processes by which we govern our state and nation.
 
Article V, Section 13 of the California Constitution clearly states that "It shall be the duty of the Attorney General to see that the laws of the state are uniformly and adequately enforced."  In the current federal court case respecting Proposition 8, the Attorney General has conspicuously and intentionally failed to defend — let alone enforce — the supreme law of our state as provided for in Art. I, Sec. 7.5 of the Constitution.  He has instead substituted his own personal beliefs and political preferences for the rule of law, and as such failed to uphold his oath of office.
 
Upon review of relevant case and statutory law, it is our belief that the proponents of the initiative, who long ago were granted intervenor status in the current federal litigation — possess the proper standing to appeal Judge Walker’s decision to the Court of Appeals for the Ninth Circuit, but Judge Walker has strongly suggested otherwise, and we simply cannot risk allowing that erroneous view to thwart full appellate review of this important case

Failure to allow for such standing would have the ruinous effect of allowing any Attorney General to refuse to defend any voter-approved initiative statute or constitutional amendment, and allow any judge to deny standing to any proponent of such a measure.  However, California Government Code Section 12013 renders any such speculation meaningless, and provides a clear and certain alternative.  G.C. 12013 expressly provides:
 
12013.  The Governor may direct the Attorney General to appear on behalf of the State and may employ such additional counsel as he deems expedient whenever any suit or legal proceeding is pending:
   (a) Against the State.
   (b) Which may affect the title of the State to any property.
   (c) Which may result in a claim against the State.
 
If the Attorney General once again fails to respect and obey the laws which he has taken an oath to uphold as "the chief law officer of the state", we respectfully ask that you exercise the similar grant of authority you possess pursuant to Government Code Section 12013 — whereby "The Governor…may employ such additional counsel as he deems expedient whenever any suit or legal proceeding is pending against the State" to file a notice of appeal.
 
In making this request, we are well aware that you already have taken an outspoken position on the final disposition of this matter.  Although we may profoundly disagree with your personal views on this matter, that is your right as a private citizen and a public figure.  Like you — and like the Attorney General — we all took an oath of office that began with the following words:
 
"I…do solemnly swear that I will support and defend the Constitution of the United States and the Constitution of the State of California…."
 
If both you and the Attorney General fail to file a notice of appeal respecting Judge Walker’s decision in the case of Perry v. Schwarzenegger, and the three-judge panel of the U.S. Court of Appeals for the Ninth Circuit fails to grant standing to the proponents of Proposition 8, California’s constitutional and reserve right of initiative will be permanently and irreparably harmed.  More than seven million California voters will be denied the opportunity to appeal the decision to void a duly qualified and approved amendment to the Constitution of California.  Furthermore, the precedent shall exist in the case of all future initiatives, all future Attorneys General, and all Governors that our elected officials may pick and choose the laws which they will and will not enforce and defend.  In no way should such be part of your legacy as Governor.
 
Even setting aside the fact that this initiative deals with the fundamental institution of civil society — marriage and family — the failure of the state’s Chief Executive and chief law officer to file an appeal, and thereby denying the proponents of Proposition 8 to pursue this litigation to its full and complete conclusion, will have a devastating effect upon public confidence in our institutions of representative government.  Politics and personal belief will have been substituted for the sworn duty of our state’s highest ranking elected officials.
 
We do not ask you to change your views respecting this highly contentious social issue, but instead ask you to compel the Attorney General to act in accordance with his express duties as provided for in the state Constitution, and to uphold the oath of office and the Constitution he swore to support and defend.  Failing such action by the Attorney General, we ask that you exercise your authority pursuant to Government Code Section 12013 to file the notice of appeal yourself, by means of alternative counsel authorized to you under law.  The People of the State of California deserve to have all their laws fully, adequately and vigorously defended in court.

We therefore call upon you to afford the more than seven million Californians who cast votes in support of Proposition 8 "their day in court," to allow our legal system to properly decide this monumental decision in a manner that honors and upholds our state’s constitutional processes, and to direct the Attorney General to immediately file a formal notice of appeal in the Court of Appeals for the Ninth Circuit.

We urge your immediate action in this case, and thank you for your consideration of our views.

/s/  EVERY REPUBLICAN MEMBER OF THE STATE ASSEMBLY

Click the link below to pull up a printable .pdf of the above letter, complete with the names and signatures of all of the Assembly Republicans.

This entry was posted on Wednesday, September 1st, 2010 at 12:00 am and is filed under Blog Posts.