On September 1, the California Third District Court of Appeals refused an attempt by lawyers with the Pacific Justice Institute on behalf of Pastor Joshua Beckley to require California Gov. Arnold Schwarzenegger (R) and Attorney General Jerry Brown (D) to appeal the ruling of the federal disctrict court in Perry v. Schwarzenegger, the challenge to Proposition 8.
Today, Schwarzenegger and Brown filed papers in the California Supreme Court responding to an appeal of that ruling that was filed on September 7, with Deputy Attorney General Tamar Pachter writing for Brown that Beckley's attempt "is too little, too late."
It is within the Attorney General's discretion to determine that it is or that it is not appropriate to pursue an appeal. In Perry, given the Attorney General's position at trial, there are no grounds for an appeal, and the filing of an appeal under such circumstance would be frivolous. The petitioner's contention to the contrary is manifestly without merit.
[8:56 P.M. UPDATE: The California Supreme Court denied the appeal, with a docket entry: "Petition for review denied." The court issued no opinion explaining its decision.]
Today's filing was set by a court order detailing a briefing schedule of the expedited appeal, which lawyers for Beckley argue is limited due to the timeline set by the Ninth Circuit for the appeal of the Perry decision. From the Supreme Court's docket:
"Respondents [Schwarzenegger and Brown] are directed to serve and file, by letter brief, any answer to the petition for review in the above-captioned matter on or before 9:00 a.m. on Wednesday, September 8, 2010. Any reply to the answer is to be served and filed, by letter brief, on or before 12:00 noon on Wednesday, September 8, 2010. No request for extension of time will be granted."
However, as reported by Karen Ocamb at LGBT POV, the Capitol Resources Institute misleadingly characterized the simple docket scheduling order in an email to supporters. They wrote:
The California Supreme Court has ordered the Attorney General and the Governor to respond by 9 am this morning explaining why they have not filed this appeal. Then the Pacific Justice Institute has just three hours to respond by noon today.
“We are pleased that the judicial branch is at least considering forcing the executive branch to do its job,” said Karen England, Executive Director of Capitol Resource Institute. “Millions of Californians voted for Proposition 8. The issue should be heard all the way up to the US Supreme Court. No elected official ought to be able to substitute his judgment for the decision of our courts.”
Brown's response can be found here: Letter Brief.pdf
[UPDATE: Lisa Keen reports that Schwarzenegger's filing before the court included a "definitive statement" that "he has decided not to appeal the Proposition 8 court decision to the 9th Circuit."]
[FURTHER UPDATE: The Governor presents a strong front opposing Beckley in his filing as well, with his lawyer writing:
Like any litigant, State constitutional officers have the discretion to make such strategic litigation decisions. Nothing in the California Constitution, or any other authority cited by Beckley, imposes a mandatory duty on State constitutional officers to appeal decisions of any court, let alone a federal court.
Schwarzenegger's response can be found here: Gov Letter Brief.pdf]