Arizona AG Does Not Appeal SSM Decision For Fear of Rule 11 Sanctions

October 17th, 2014

Today, a Federal District Court, in a 4-page decision (it was not necessary to write a “lengthy and detailed opinion”), invalidated Arizona’s ban on same-sex marriage. The judge denied any request of a stay, citing the Supreme Court’s “deaf ear” to any relief, explaining it would be “futile.”

A stay of this decision to allow defendants to appeal is not warranted. It is clear that an appeal to the Ninth Circuit would not succeed. It is also clear—based on the Supreme Court’s denial of petitions for writs of certiorari filed in connection with several circuit court decisions which held that same-sex marriage must be recognized in Indiana Oklahoma,Utah, Virginia, and Wisconsin—that the High Court will turn a deaf ear on any request for relief from the Ninth Circuit’s decision.

In a remarkable statement, Attorney General Tom Horne–who has to date defended the law–said he would not appeal the judgment. Why? Rule 11.

“A number of Attorneys General have refused to defend laws defining marriage as between a man and a woman. I have not been among that group. I have fought to defend the laws as passed by the voters of Arizona, which I believe is the duty of the Attorney General.

Both the Federal District Court and the 9th Circuit Court of Appeals have ruled against us, and the United States Supreme Court has shown an unwillingness to accept review in the case of three other circuits in essentially identical circumstances.

The decision I make today has to be based on legal considerations rather than policy considerations. I believe the first duty of the Attorney General is to be a good lawyer.

Lawyers live under a rule called Rule 11, which provides that it is unethical for a lawyer to file a pleading for purposes of delay rather than to achieve a result.

The probability of persuading the 9th circuit to reverse today’s decision is zero. The probability of the United States Supreme Court accepting review of the 9th circuit decision is also zero.

Therefore, the only purpose to be served by filing another appeal would be to waste the taxpayer’s money. That is not a good conservative principle.

I have decided not to appeal today’s decision, which would be an exercise in futility, and which would serve only the purpose of wasting taxpayers’ money.

I am issuing a letter today to the 15 county clerks of court with the directive that based on today’s decision by the Federal District Court, they can issue licenses for same sex marriages immediately.”

The effect of the Court’s denial of certiorari is stunning. Now, a conservative state AG would find it sanctionable to appeal a judgment that the Supreme Court would not reverse.

Six days ago I blogged that appealing a same-sex marriage decision to the Supreme Court was not sanctionable. While I think that was correct a week ago, I don’t think it is correct anymore! It is stunning how fast things have changed.

A similar event unfolded in Wyoming. A federal district court invalidated Wyoming’s ban, citing the 10th Circuit’s decision in Herbert v. Kitchen. The court, also citing 10th Circuit precedent (after the Supreme Court’s previous intervention), initially put the judgment on hold until October 23 to give the government time to appeal. But the Governor said he would not appeal.

In related news, Alaska unsuccessfully appealed the 9th Circuit’s judgment to the Supreme Court. The Court denied review in a one sentence order. Unlike with the Idaho appeal, it does not seem that Circuit Justice Kennedy even bothered asking for a response from the challengers. It was referred to the Court for denial in less than a day. Will this be the *last* appeal to the Supreme Court? Could it possibly be that the Court will avoid this entire issue by denying certiorari.