Prop 8: Did officials violate rules of professional conduct?

It is gratifying that in Perry v. Brown (S189476, Nov. 17, 2011), the California Supreme Court unanimously confirmed that, because the state's governors and attorneys general failed to do so, the proponents of Proposition 8 have the right to defend the constitutional amendment in court. The Court did not actually take the governors and attorneys general to task for not doing their ethical and sworn duties to execute, enforce and defend California's Constitution and laws. Its restraint, however, is understandable since the Court might ultimately be asked to review whether, as lawyers, Jerry Brown and Kamala Harris violated the Rules of Professional Conduct by not only failing to defend Proposition 8, but actively opposing it, as well as its proponents' efforts to defend it on appeal after it was deemed unconstitutional.

It is ironic that the question of whether the Rules of Professional Conduct prevent the attorney general from "acting adversely to the position of his [or her] statutory clients" was settled the first time Brown was governor, in a dust up he had with Attorney General (and thereafter governor) George Deukmejian. In People ex rel. Deukmejian v. Brown (1981) 29 Cal. 3d 150, 156, an opinion written by Justice Stanley Mosk, himself a former state attorney general, Brown prevailed in his effort to trump Deukmejian's effort to initiate mandate proceedings against the governor and state agencies. After noting the attorney general's authority to retain private counsel to represent state clients in the case of a conflict of interest, that opinion states: "In short, the Attorney General cannot be compelled to represent state officers or agencies if he believes them to be acting contrary to law, and he may withdraw from his statutorily imposed duty to act as their counsel, but he may not take a position adverse to those same clients."

Here, both Brown and Harris have refused to defend the duly enacted constitutional amendment, which resulted from Proposition 8, or to obtain private counsel to defend it. Indeed, by arguing against it and its proponents' right to defend it in federal appellate proceedings, they have taken a position that is clearly adverse to California's citizens.

Brown and Harris claim, however, that they have the right to independently determine whether Proposition 8 is constitutional, and have decided that it is not. In light of the state Supreme Court's holding that Proposition 8 does not violate the California Constitution (Strauss v. Horton (2009) 46 Cal. 4th 364), and since it is the attorney general's responsibility to defend state laws against claims that they violate the federal Constitution, their unilateral pronouncements of unconstitutionality have a distinctly counterfeit ring.

As the Supreme Court in Perry found: "Neither the Governor, the Attorney General, nor any other executive or legislative official has the authority to veto or invalidate an initiative measure that has been approved by the voters. It would exalt form over substance to interpret California law in a manner that would permit these public officials to indirectly achieve such a result by denying the official initiative proponents the authority to step in to assert the state's interest in the validity of the measure or to appeal a lower court judgment invalidating the measure when those public officials decline to assert that interest or to appeal an adverse judgment."

But their claim that Proposition 8 is unconstitutional, even if legitimate, does not address whether their actions violate the Rules of Professional Conduct. As established by People ex rel. Deukmejian, a lawyer is supposed to do his or her best to represent the client's interests, and if this cannot be done in good conscience, then the lawyer must find someone who will. The rule against acting adversely to the position of a client is designed to keep even an honest lawyer from having to choose between the kind of conflicting duties that Brown and Harris claim to have.

This is because our system of justice depends upon vigorous representation of both sides in an adversary proceeding, out of which the truth will emerge. Especially when it comes to determining the constitutionality of a state statute or constitutional provision dealing with the sensitive matter of same-sex marriage, the viability and credibility of our legal system demands no less. As Justice Joyce Kennard's concurrence in Perry explains: "[T]he validity of a duly enacted state initiative measure (particularly one that amends the state Constitution, as Proposition 8 does) is a matter of great public importance that can be determined only through judicial proceedings. Such proceedings are most likely to produce a result that will be reliable, and that the public will find acceptable, if the issue is thoroughly and vigorously litigated.... The judicial system is designed to operate through public proceedings in which adversaries litigate factual and legal issues thoroughly and vigorously. When an initiative measure is challenged in court, the integrity and effectiveness of the judicial process require that a competent and spirited defense be presented."

Brown and Harris' attempts to thwart the parties' ability to have a full and fair hearing on the merits of Proposition 8 have thus far caused a protracted, and unnecessary, detour. Bravo to the 9th U.S. Circuit Court of Appeals for sending the question of standing to the state Supreme Court, and bravo to our Supreme Court for answering it with a resounding yes!

Kris Whitten is a lawyer who practices in San Francisco.