California Attorney General Jerry Brown has effectively told his clients, California’s voters, to drop dead: He will not defend or enforce Proposition 8, a law they duly adopted in November by a margin of 52 percent to 48 percent. In fact, he’s decided to oppose it. For this, he should be disbarred.
Under Article 5, Section 13 of the California Constitution, the attorney general is required to “see that the laws of the State are uniformly and adequately enforced.” When the voters enacted Proposition 8, it became a law that Brown must enforce. He has violated professional ethical standards by failing to provide zealous legal representation in defense of that law and by subordinating the interests of voters to his selfish political designs.
California enacted Proposition 8 to amend the California Constitution to define marriage as the legal union of one man and one woman. Advocates of same-sex marriage promptly challenged the initiative. Their arguments will be heard before the California Supreme Court as early as March of 2009.
On Dec. 19, Brown violated his ethical duty to uphold the state’s laws when he filed a last-minute, 111-page brief in the case asking that the Supreme Court invalidate the newly-adopted initiative.
Brown’s act of “switching teams in the middle of the game” has astonished the legal community. As Goodwin Liu, associate dean and professor of law at UC Berkeley’s Boalt Hall School of Law, told the Los Angeles Times, it is “extraordinary for the chief law enforcement officer of the state to decline to enforce a law—even on the grounds that it is unconstitutional.”
At least one other commentator has pointed out that Brown’s failure to defend a state ballot measure adopted by the voters may be extraordinary but not unprecedented. In 1964, then-California Attorney General Thomas C. Lynch declined to defend a ballot measure, Proposition 14, enacted by 65 percent of the electorate. Lynch refused to defend the ballot measure from its inception, based on his conclusion and later vindicated by the U.S. Supreme Court in Reitman v. Mulkey, 387 U.S. 369 (1967), that it violated the U.S. Constitution.
For Brown, the matter is entirely different. Unlike Lynch, Brown not only refused to defend a duly-adopted state ballot measure, but he is now actively opposing it. Until the eleventh hour, Brown acknowledged that he had a duty to “defend the proposition as enacted by the people of California.” Then he abandoned his client at the last possible, and worst, moment, citing a half-baked theory that Proposition 8 violates, not the U.S. Constitution, but the fundamental liberty interests of the California Constitution.
The untoward result has been that the majority who favored Proposition 8 is now without state representation. The ballot measure’s advocate, Protect Marriage, had to retain, at its own expense, former U.S. Solicitor General Kenneth W. Starr to defend the proposition. Even more outrageous, tax dollars will be redirected to support the position favored by only a minority of the state’s voters.
We believe that the attorney general must be held to the same standards of conduct that govern all others licensed to practice law in California. Under the American Bar Association’s Model Rules of Professional Conduct, Rule 1.3, a lawyer’s most fundamental professional obligation is to represent his client zealously.
Subject to specific limitations, “zealous representation” requires a lawyer to use all available means to represent his client. He cannot continue to represent his client while simultaneously attacking the client’s interests. If he cannot conscientiously represent his client, he must recuse himself, allowing someone else to competently perform that essential function. Brown had the option of removing himself from the case and arranging for substitution of competent, outside counsel. This he refused to do.
What caused him to abruptly switch sides and betray his client? He told the media that he developed the “theory” of his opposition to Proposition 8 after consulting with his staff for several weeks. But since Brown’s days as “Governor Moonbeam” in the 1970s, his machinations have often been impenetrable. The former monk opposed California’s landmark Proposition 13; then, after, appraising its enormous grass-roots support, he famously “pirouetted” and endorsed the ballot measure.
It seems that Brown has again “pirouetted,” in this instance because he knows he will soon be vying for his party’s gubernatorial nomination against San Francisco Mayor Gavin Newsom, competing for support from the same base of gay and gay-friendly voters. To put it bluntly, Brown ceased being an attorney and became a politician.
Some have suggested that Brown should be recalled. This would be a valid choice for the state’s voters. However, the process is costly, divisive and time-consuming.
A far better means of dealing with Brown’s official misfeasance would be to seek to remove administratively his license to practice law in California. It is a consequence that awaits any other California attorney who ignores his fundamental professional obligation.
Why should Brown be treated any differently?