Prop 8 Hangs in the Balance in Undecided CA AG Race

photo: Fritz Liess via Flickr

Among the still-undecided 2010 races around the nation, California’s Attorney General battle holds the future of Prop 8. San Francisco District Attorney Kamala Harris (D) pledges to follow current AG and Governor-Elect Jerry Brown’s lead and not defend Proposition 8 in federal court. Los Angeles District Attorney Steve Cooley (R) has pledged to join the Defendant-Intervenors in their appeal of District Judge Vaughn Walker’s ruling that Prop 8 is unconstitutional.

San Francisco District Attorney Kamala Harris, who now trails Republican Steve Cooley in their lead-changing race as thousands of late ballots are being counted, opposed Prop. 8 and backed outgoing AG Jerry Brown’s decision not to defend it in court.

Cooley, the Los Angeles County district attorney, said during the campaign that, if elected, he was prepared to give the ballot measure the defense it never got from the state.

The timing of the federal appeal probably preempts any change of direction Cooley might want to make in the AG’s office:

But Cooley probably wouldn’t have a chance to do that right away even if he won the election. The Ninth U.S. Circuit Court of Appeals in San Francisco is scheduled to hear arguments Dec. 6 in an appeal by Prop. 8’s sponsors from a federal judge’s ruling that declared the measure unconstitutional. The state’s deadline for appealing that ruling has expired, and if Cooley takes office in January, the court’s not likely to let him enter the case as a party.

It might also present a constitutional conflict if the new Attorney General and the new Governor disagree about whether to back Prop 8; Arnold has agreed with Brown regarding defending the anti-gay proposition. If Cooley wins, his decision to join a possible appeal to SCOTUS would be in defiance of Governor Brown. Whether he would be provided the resources to defend the law remains in doubt.

However, if the Appeals Court and SCOTUS deny the Defendant-Intervenors standing and dismiss the appeal on that basis, a new Attorney General backing their play could re-open the case.  . . .

According to UC Irvine law Dean Erwin Chemerinsky, a liberal scholar who opposes Prop. 8, Cooley — if elected — could then go back to the trial court and move to reopen the case.

The procedure is called Rule 60(b) and it’s designed for cases in which a ruling was the product of clerical errors, other mistakes or fraud, or when newly discovered evidence casts doubt on the verdict. But Chemerinsky said a new attorney general could argue that he has evidence for the validity of Prop. 8 that wasn’t presented at trial.

The motion wouldn’t go to Walker, who’s retiring from the bench in February, but to another Bay Area federal judge selected by random draw. And if that judge decided to reopen the case, we could be back at square one.

Because of the terrible case put on by the Defendant-Intervenors, one can see where a new state actor — the newly-elected Attorney General — could make the case for re-opening the case at the District Court level: based upon raw incompetence and poorly argued law. This gnarly outcome is the worst of all possible worlds for those who thought we’d at least resolved Prop 8 at the District Court level; if California has a new Attorney General invested in Prop 8, the game could change significantly, and for the worse. Especially given Walker’s retirement.

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