Over the weekend, California Republican gubernatorial nominee and billionaire former eBay CEO Meg Whitman announced that if elected governor she would vigorously defend Proposition 8 against its current legal challenge in the Ninth U.S. Circuit Court of Appeals. Republican Gov. Arnold Schwarzenegger and Democratic Attorney General Jerry Brown have refused to defend the ballot initiative in court.
“At the time of the oral argument that has been scheduled for the week of December 6th, even were Whitman or Cooley to have won the election, they will not have taken office – the new officeholders don’t take office until Jan. 3. 2011. In addition, at that point, the time to file an appeal from Judge Walker’s ruling will have long passed. So, even were they to win, they would not be able to appeal Judge Walker’s ruling if Schwarzenegger and Brown do not – and they have indicated they will not. In addition, Whitman and Cooley would not be able to participate in the oral arguments as parties.
They might seek to file amicus briefs. The deadline for filing such briefs is 7 days after the brief is due from the party you are supporting. Amicus briefs in support of the proponents of Prop. 8 are due September 24th. It would be unusual for a candidate for political office to file an amicus brief on a measure that they might be in more of a position to weigh in on were they elected, though I guess it could happen. ... If they get elected, Whitman and/or Cooley might also seek to file an amicus brief after their election or after they are sworn in, which would be after the oral argument. They would need to seek permission to file late. There is no way of knowing whether the Ninth Circuit judges hearing the case would grant such a request to file late.
Chief U.S. District Judge Vaughn Walker, who declared the initiative unconstitutional August 4 in a landmark ruling, has suggested that only the state has "standing" to defend the law. The appeal will be heard in San Francisco on December 6th.