A state attorney general is expected to defend state laws in court, including initiatives passed by the voters. But in 2011, newly elected Attorney General Kamala Harris refused to defend Proposition 8’s ban on same-sex marriage, saying it was unconstitutional.
Her decision proved crucial when the U.S. Supreme Court ruled in 2013 that Prop. 8’s private sponsors had no standing to represent the voters in court, leaving the measure without a legal defense and erasing it from the books.
However, Harris responded differently in 2014 when a federal judge ruled that California’s death penalty law was unconstitutionally arbitrary because condemned prisoners had to wait 20 years or more to get legal representation and have their appeals decided.
Harris, now a U.S. senator, opposes the death penalty — her refusal to seek it as San Francisco district attorney in a police-killing case nearly cost her the 2010 election for attorney general. But she appealed the judge’s ruling on the death penalty, arguing that the state’s lengthy appeal process protected defendants’ rights.
A federal appeals court overturned the ruling on procedural grounds, leaving the death penalty law in place, though California has not executed anyone since 2006.
Harris’ record as California’s top law enforcement official from 2011 to 2017 is on the table now that Joe Biden has chosen her as his vice presidential running mate. Her choices of which laws to defend could become a campaign issue — particularly the death penalty, where her decision to appeal is cited by some on the left to question her self-description as a “progressive prosecutor.”
The Prop. 8 and death penalty cases have also rekindled debate about how much an attorney general’s personal and political convictions should influence his or her legal decisions.
“There’s a duty of government officials, particularly the attorney general, to defend the laws of the government,” said Rory Little, a law professor at UC Hastings in San Francisco and a former aide to Janet Reno, President Bill Clinton’s attorney general. On the other hand, he said, in some cases “your ethical duty may be to oppose a law that you think is clearly unconstitutional or clearly unjust.”
The dividing line is uncertain, Little said, but the general rule is that an attorney general should defend a law that he or she personally opposes, unless its constitutional defects are nearly indisputable.
And even in such a case, there are reasons for the state’s top lawyer to take the issue to court for resolution, said attorney Peter Scheer, president of the board of the First Amendment Coalition, an open-government organization based in San Rafael. Though he is among Harris’ “enthusiastic supporters” for vice president, Scheer said, he thinks she should have defended Prop. 8.
“At the time, Prop. 8 certainly wasn’t indefensible. ... Courts were divided” on gay and lesbian couples’ right to marry, Scheer said. While Harris explained her decision at the time by citing the Supreme Court’s numerous past references to marriage as a fundamental right, Scheer noted that when the court ultimately upheld same-sex marriage rights in a case from Ohio in 2015, the vote was 5-4.
“Part of the function of the attorney general is to see that these laws may be tested in the courts,” Scheer said.
But another function of an official who takes an oath to uphold the Constitution is to decide whether a challenged law is constitutional and should be defended in court, said Erwin Chemerinsky, the law school dean at UC Berkeley. He said he agreed with Harris’ Prop. 8 decision and wishes she would have sided with the federal judge who declared the state’s death penalty law unconstitutional, a ruling Chemerinsky endorsed.
“Arguments on both sides is not enough to justify defending a law; there are always arguments on both sides,” Chemerinsky said. “If Harris had not appealed, I believe it would have ended the death penalty in California.”
Another Berkeley legal analyst, David Carrillo, executive director of the school’s California Constitution Center, said the attorney general’s duty to protect the public interest gave her some discretion in deciding which laws to defend. “It’s a reasonable exercise of that discretion to decide to defend capital punishment (which is constitutional) and to not defend same-sex marriage bans (which are unconstitutional),” he said.
Harris’ Prop. 8 decision was not unprecedented.
California Attorney General Thomas Lynch filed arguments with the U.S. Supreme Court in 1967 backing civil rights advocates who successfully challenged Prop. 14, a 1964 ballot measure allowing racial discrimination in housing.
In 1979, newly elected Attorney General George Deukmejian tried to join a lawsuit challenging a collective bargaining law for state employees, but the state Supreme Court rejected the filing and said the state’s position was up to Gov. Jerry Brown, who had signed the law. The court upheld the law in a separate ruling.
Brown, who preceded Harris as attorney general — and who had signed the state’s first same-sex marriage ban into law in 1977 — declined to defend Prop. 8 during a 2010 federal court trial in San Francisco, a stance supported by then-Gov. Arnold Schwarzenegger. The state Supreme Court upheld their decision to bow out of the case, rejecting arguments by Prop. 8’s sponsors.
And at the federal level, the Trump administration’s current support of a suit to overturn President Barack Obama’s health care law has at least one recent precedent: Obama’s support of a successful challenge to the Defense of Marriage Act, which denied federal benefits to same-sex married couples.
Similar disputes could arise with the election of Biden, who has promised to reverse most of his predecessor’s actions. Though only the attorney general would appear in court, Harris’ experience in weighing policy against precedent would make her a likely source of consultation in a new administration.
Unlike the attorney general, a county district attorney has broad leeway in deciding which cases to prosecute and what sentences to request. As San Francisco district attorney from 2003 to 2011, Harris, like other district attorneys of recent decades, refrained from prosecuting police officers who shot civilians, a record that has brought some criticism from the left. And like every San Francisco district attorney since 1995, she refused to seek the death penalty.
In an immediate test of her campaign promise, Harris declined to file capital charges in 2004 against the accused killer of Isaac Espinoza, an undercover San Francisco police officer.
While David Hill’s jury ultimately convicted him of second-degree murder, which could not have carried a death sentence, Harris’ decision was condemned by Sen. Dianne Feinstein as well as police groups, and was a leading issue for Los Angeles County District Attorney Steve Cooley, her Republican opponent in the 2010 attorney general’s race. Harris won the election by less than 1%.
Cooley, now a private attorney in Los Angeles, said in an interview that he believes Harris was obliged to defend state laws, including Prop. 8, regardless of what she thought of them.
“The voters do dumb things, wrong things, all the time,” he said. “Then it’s up to the attorney general as their attorney to defend even their mistakes and let the court render a decision.”
Bob Egelko is a San Francisco Chronicle staff writer. Email: begelko@sfchronicle.com Twitter: @BobEgelko
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