California attorney general candidate a S.D. assistant attorney general

Seems a California man’s appointment as a special assistant attorney general by South Dakota AG Marty Jackley is causing a bit of stir in California politics.

California’s FlashReport blog reports that when Republican John Eastman formally filed as a candidate for California Attorney General yesterday, the former law school dean listed his occupation, which will appear on the ballot, as “assistant attorney general.” Eastman, though, is not employed by the California Attorney General’s Office. When asked about the designation, his campaign issued a “ballot designation worksheet” that said, “On February 23, 2010, I was appointed Special Assistant Attorney General by South Dakota Attorney General Marty J. Jackley to represent the state before the Supreme Court of the United States in Reisch v. Sisney, No. 09-953.” The campaign said that means “the ballot designation of Assistant Attorney General is literally accurate and is the most accurate description” of Eastman’s current principal profession and occupation.

Sisney, a South Dakota penitentiary inmate, sued the State seeking damages under the federal Religious Land Use and Institutionalized Persons Act (RLUIPA) for alleged interference with his ability to practice his Jewish faith. Both Sisney and the State have asked the Supreme Court to review the 8th Circuit Court of Appeals ruling in the case. The appeals involve issues regarding whether RLUIPA waives the state’s immunity from suit under the 11th Amendment to the U.S. Constitution and whether the RLUIPA violates that part of the federal constitution that limits Congressional spending to pay debts and “to provide for the common Defense and general Welfare of the United States.”

Eastman is listed as “counsel of record” on the cross-petition for review the State filed with the Supreme Court, even though it was filed February 9, two weeks before Eastman’s appointment. In the release from his campaign office, Eastman said he will be paid $20,000 for researching and writing that petition and a reply to any opposing brief. If the Supreme Court hears the case, Eastman said he will “expend significant effort” preparing and presenting the written and oral arguments and anticipates billing the state “at least an additional $100,000.”.

Why is the ballot designation such a big deal? According to FlashReport, if it is “upheld by a judge on the invariable court challenge, it will REALLY help Eastman.” None of the other GOP candidates apparently have the funds necessary to run statewide television ads, meaning having “assistant attorney general” printed on the ballot may be a powerful ad in and of itself.

The attorney general is also authorized to appoint assistant attorneys general as he may deem necessary on a part-time basis for special assignments. The attorney general shall fix their compensation and … [s]uch assistant attorneys general shall have the power and authority specifically delegated to them by the attorney general in writing.

SDCL § 1-11-5

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