September 20th, 2010
When Governor Schwarzenegger and Attorney General Brown opted not to appeal Judge Walker’s decision in Perry v. Schwarzenegger, it was unclear whether the Proponents of Proposition 8, who had been allowed intervenor status to argue on its behalf in trial, had standing to appeal the decision. Case law seemed fairly clear that they did not.
When the Ninth Circuit Court of Appeals laid out the timeline for filing, they instructed the appellants to clarify under what legal theory they had standing in their opening brief, due last Friday. The Proponents have now filed their brief.
Oddly, it appears that they are now conceding that the Proponents do not have standing to appeal. They do lay out extensive arguments as to why they should have standing, but they advise the court that it need not agree with them and seems to direct the court to not even consider their arguments.
Because the Imperial Intervenors should have been permitted to intervene, and because as intervening defendants bound by the district court’s judgment they would have standing to appeal, this Court need not reach the question of Proponents’ standing at this time.
Their entire appeal hinges on the legal argument that Deputy County Clerk Isabel Vargas of Imperial County has standing to appeal and it is her appeal that should be heard.
On December 15, 2009, the Imperial County Board of Supervisors sought intervenor status in the case. They argued that because Deputy Clerk Vargas issues marriage licenses, she (and they) ought to be able to intervene in the case. However, their real intent was stated from the onset:
Proposed Intervenors respectfully request an order allowing them to intervene in this case to guard a significant protectable interest in the subject matter of this lawsuit and to ensure the possibility of appellate review of this Court’s ultimate decision.
Imperial County and Deputy Clerk Vargas made no pretense that they were there to conduct discover or introduce evidence. Rather, their sole purpose was to provide standing should the governmental interests choose not to appeal.
This request was problematic; the deadline for intervention was July 24, 2009, and the court was already well into discovery. Their motion was not even submitted until January 6, 2010, just a few days before opening statements.
Judge Walker did not release his decision on their intervenor status until the Perry decision was released. He denied their intervenor request, but not due to the date or to their lack of interest in arguing the case. Rather, he denied their interest as a party to the case.
Vargas’s duties as a county clerk are purely ministerial and do not create a significant protectible interest that bears a relationship to the plaintiffs’ claims in this litigation.
…
Imperial County has no legally-recognized government role in the interpreting the marital statutory scheme, much less one capable of establishing the significant protectible interest required for intervention as of right.
And it is this decision that the Proponents are challenging with the Ninth Circuit. This is a rather risky legal strategy in that it requires that the Ninth Circuit make two distinct decisions, first that Vargas has an interest in the case and was falsely denied her standing as an intervenor in the trial of fact, and secondly that she is harmed by the decision and has standing as an appellate.
Naturally, the Proponents also argue against the merits of the decision. It’s all old hat and not particularly impressive. They go on a bit about the rather elderly and pre-Lawrence Baker v. Nelson and all of the rest that they presented in court.
But there was another item that caught my attention, a legal argument that is so contrary to my layman’s understanding of constitutional challenge that I laughed out loud. They argue that the unconstitutionality of Proposition 8 should be viewed as only relating to the four plaintiffs.
If this Court concludes that Proponents and the Imperial Intervenors lack standing to appeal, the judgment below must nevertheless be vacated. At a bare minimum, the district court exceeded its jurisdiction to the extent its judgment extends beyond the four Plaintiffs who were before the court. Because no class has been certified in this case, this Court “must vacate and remand,” for “the injunction must be limited to apply only to the individual plaintiffs unless the district judge certifies a class of plaintiffs.”
I think it rather likely that the Ninth Circuit will not be overly receptive to the idea that the US Constitution protects the fundamental right to marry of the four plaintiffs, but no one else.
There are times when I wonder whether they are trying to lose.
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odinnite
September 20th, 2010
Could someone give me a brief explanation as to why San Francisco is permitted to be a party in the case but not Imperial County? They do not seem to be claiming that the fact that SF has standing means that IC does, so I assume there is some simple reason…
Timothy Kincaid
September 20th, 2010
odinnite,
San Francisco was arguing that they were a party harmed by Proposition 8. They provided evidence of the cost of the proposition on their local economy. Their standing had nothing to do with administering licenses.
odinnite
September 20th, 2010
got it thanks so much for your quick reply!
Rick in Kansas
September 20th, 2010
The city of San Francisco was granted only a limited right to intervene as a plaintiff, solely to present the issue of an alleged effect on governmental interests, in being required to enforce the amendment and nothing more. If the plaintiffs had lost, they’d be facing the same problem that Imperial County is now facing, not having standing.
In Walker’s ruling rejecting Imperial County’s motion to intervene, he said basically, that the role of local governments in enforcing marriage law in California is to essentially shut up and do what the state tells you. The basis for this finding, quite ironically, was the Lockyer case against the Newsom marriages. San Francisco offered to cite harm in having to live with this, but Imperial County had nothing to offer.
Kelly
September 20th, 2010
When you have absolutely no legitimate arguments whatsoever, all you’re left with is saying really deeply stupid stuff.
ebohlman
September 20th, 2010
I don’t think they’re trying to lose so much as that they’re less interested in winning than in dragging the case out as long as possible so they can keep fundraising.
gar
September 20th, 2010
Perhaps they feel that the battle is lost in CA and they want to limit the damage to CA rather than risk losing at the Sup. Ct.
Michael Ejercito
September 21st, 2010
If Walker’s reasoning on Imperial County’s standing is correct, then county clerks have no standing to be defendants in petitions for an injunction to issue a marriage license.
Contrast this with the 10th Circuit decision in Bishop v. Oklahoma . In Bishop , plaintiffs filed a constitutional challenge against DOMA and Oklahoma’s Question 711. In an appeal on a motion to dismiss, the Tenth Circuit dismissed the governor and attorney general as defendants because “these claims are simply not connected to the duties of the Attorney General or the Governor. Marriage licenses are issued, fees collected, and the licenses recorded by the district court clerks.†Indeed, after the state defendants were dismissed, the plaintiffs amended their claim to include Tulsa County Clerk Sally Howe-Smith as a defendant. Ruling on another motion to dismiss, Judge Terence Kern dismissed the state of Oklahoma itself as a defendant, leaving only Sally Howe-Smith as a defendant in the Question 711 claim. (The United States, the President of the United States, and the Attorney General of the United States are defendants in the DOMA claims.)
And in Richardson v. Ramirez , Viola Richardson, clerk of Mendocino County, appealed a California Supreme Court decision to the U.S. Supreme Court, without either the Secretary of State, the Attorney General, or the original trial defendants appealing. (Richardson had been added as a defendant by the California Supreme Court.) The U.S. Supreme Court did not dismiss for lack of standing on the basis that county clerks have no standing independent of the state, but instead proceeded to decide on the merits.
beachewtoy75
September 21st, 2010
So, in other words, they’re just flinging everything they can think of and hope something sticks…
Weren’t these also the same people that wanted to strike down Dr. Tam’s testimony because English was his second language, despite the fact that everyone could understand him perfectly well?
T.J.
September 21st, 2010
GAR – my thoughts exactly. I’ve wondered myself if they are trying to deliberately self-destruct to keep this from the Appellate Court and ultimately the Supreme Court for fear that they’ll lose the whole thing in one fell swoop. Don’t doubt for a moment the craftiness of these people. They’d rather cut their losses by giving up California and keeping this from becoming a national decisions. It gives them more of a chance at winning over all.
customartist
September 21st, 2010
As far as the “US Constitution protect(ing) the fundamental right to marry of the four plaintiffs, but no one else.”
It does apply directly to 4 Plaintifs, and subsequently the precedent is set for the rest of California (and hopefully for all other states).
I wonder how this will be interpreted as it applies to all States, if won, or thrown out at he appeals level? I’m guessing that the other States will balk at accepting this ruling. It will eventually HAVE to be challenged in the Supreme Court.
Jon
September 21st, 2010
I haven’t read the original complaint, but I’m confident in predicting that the plaintiffs sought not only an injunction against the enforcement of Prop 8 as to themselves, but also a declaratory judgment that it is unconstitutional. And once a law is declared unconstitutional, the state is no longer permitted to rely on it or enforce it. (Sometimes a declaratory judgment is issued “as applied to” — meaning that the law is unconstitutional in this particular instance, but may be permissible in other instances. But that’s not what Judge Walker’s opinion says.)
Rob San Diego
September 21st, 2010
So we are no longer a class of people anymore according to them, just one more right that has been afforded to us that they think they can take away.
Michael Ejercito
January 8th, 2011
The problem is then how do the platiniffs have standing to assert the rights of persons other than themselves.
Surely they have no particularized, protectable legal interest in other people’s rights.
Timothy Kincaid
January 9th, 2011
Michael Ejercito,
They are not asserting rights to persons other then themselves.
However, in civil rights cases, if it is unconstitutional to deprive the plaintiffs of their specific rights based on an attribute (race, gender, orientation, etc.) then it is equally unconstitutional to deprive those who share that attribute their rights.
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