CJLF and Cal. AGs

The Associated Press has this article on Gov. Newsom’s nomination of Rob Bonta to fill the Attorney General vacancy.

Kent Scheidegger, legal director of the Criminal Justice Legal Foundation that has typically opposed previous Democratic attorneys general, said Bonta is “fully on board with the fundamentally wrong direction that California criminal justice has been taking in recent years.”

I appreciate the quote, but the description of CJLF’s relationship with past attorneys general is not correct.

CJLF has maintained a good working relationship with the California Attorney General’s Office throughout its existence, regardless of the party affiliation of the elected head of the office. In the administrations of Democrats John Van de Kamp, Jerry Brown, and Kamala Harris, our amicus curiae briefs in California cases where the goverment was represented by the Attorney General were invariably in support of the office’s position.

All three of these attorneys general regularly defended the laws enacted by the people or the legislature and defended judgments in criminal cases obtained by the district attorneys. They did so even if they personally disagreed with the policies embodied in the laws.

It was only after Xavier Becerra became Attorney General that we began taking positions in opposition out of necessity. That was partly because our legislature had gone berserk and partly because Becerra was more inclined to let policy disagreements warp the office’s legal positions.

In United States v. California, in U.S. District Court in Sacramento, CJLF opposed an unconstitutional law making it a California crime for an employer to cooperate with federal law enforcement in certain immigration matters. The court agreed and enjoined the law. I don’t blame that one on Becerra. It is the AG’s duty to defend the constitutionality of a law so long as a reasonable argument can be made. That one is on the borderline of “reasonable,” but it was a fair judgment call to defend it. The blame is on the legislature for even thinking about placing employers in such a legal squeeze, much less doing it.

Ellis v. Harrison is a different matter. Ellis claimed that his murder conviction had to be overturned because his attorney had made numerous bigoted statements to other people, unrelated to Ellis’s case, unknown to him, with no showing that the lawyer’s attitudes affected his communication with his client or the quality of his representation. The AG’s office correctly defended the judgment before a three-judge panel of the U.S. Court of Appeals but then, under Becerra, went over the hill and supported the murderer when he petitioned for rehearing en banc. The court asked CJLF to brief and argue in support of the judgment, which I did, but then they ducked the question by deciding that the AG’s concession alone was enough to overturn a state court judgment. That is wrong, I firmly believe, but only parties, not amici, can ask the Supreme Court to review a court of appeals decision.

In re Friend is a California Supreme Court case in which the petitioner asks the state high court to make a bizarre misinterpretation of the successive habeas petition reform of Proposition 66. Without getting into details, the effect would be to eviscerate the reform, leaving successive petitions as a vehicle for abusive delay in capital cases, just as they have been for years. CJLF filed a brief in the case asking the court to enforce the provision as the robust reform it was intended to be.

We also filed a brief in opposition to Attorney General’s position in the recent bail case, In re Humphrey, discussed in Kym’s post yesterday.

However, there are also a number of cases, even under Becerra, where we supported the Attorney General’s position. In any event, the opposing positions have involved only one Cal. AG, not all AGs of a particular party.

CJLF has not “typically opposed previous Democratic attorneys general.” That just is not true.