Capitol Alert: Bid denied to force Brown, Schwarzenegger to appeal Prop. 8

A state appeals court has denied a conservative law group's request that it force Attorney General Jerry Brown and Gov. Arnold Schwarzenegger to defend Proposition 8 in federal court.

The denial was issued Wednesday and entered Thursday on the website of the 3rd District Court of Appeals in Sacramento.

"I guess we'll have to file another emergency petition with the California Supreme Court," said Kevin Snider, chief counsel for the Sacramento-based Pacific Justice Institute.

The group filed a petition Monday in the appeals court arguing that Brown and the governor were bound by duty to appeal a federal judge's ruling against Proposition 8. U.S. District Judge Vaughn Walker found in August, after a trial, that California's voter-approved same-sex marriage ban violates federal equal protection rights.

Neither Brown nor Schwarzenegger defended Proposition 8 during that trial. Brown said he thought the measure was unconstitutional. He and Schwarzenegger, whose own view of gay marriage has fluctuated, applauded Walker's decision an filed motions saying they thought same-sex marriages should be allowed to begin.

Proposition 8 supporters have appealed Walker's ruling with the 9th U.S. Circuit Court of Appeals. Oral arguments are expected in December.

Legal experts who read the Pacific Justice Institute's petition said they were skeptical of the argument that the attorney general and governor were required to appeal a ruling against a state law.

The experts said that elected officials, with rare exceptions, have discretion to make decisions about what appeals to pursue.

PHOTO CAPTION: Proposition 8 supporter Galina Andreyev of Sacramento, argues with George Cole of San Francisco outside the California Supreme Court in San Francisco as the justices heard arguments to overturn Proposition 8. Photo taken Thursday March 5, 2009. Brian Baer/ Sacramento Bee file photo