Kristin Perry, et al v. Campaign For California Famili, et al

Filing 39

Submitted (ECF) Answering brief for review. Submitted by Appellees Paul T. Katami, Kristin M. Perry, Sandra B. Stier and Jeffrey J. Zarrillo. Date of service: 10/09/2009. [7091339] (TEK)

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Kristin Perry, et al v. Campaign For California Famili, et al Doc. 39 No. 09-16959 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CmCUIT KRSTIN M. PERRY, et aI., Plaintif-Appellees, v. CAMAIGN FOR CALIFORNA FAMILIES, Proposed Defendant-IntervenorAppellant On Appeal from the United States District Court for the Northern District of California No. CV-09-02292 VRW Honorable Vaughn R. Walker PLAINTIFFS'-APPELLEES' RESPONSE BRIEF THEODORE J. BOUTROUS, JR. THEODORE B. OLSON CHRSTOPHERD. DUSSEAULT THANE EVANGELIS KApUR REBECCA JUSTICE LAZARUS ENRIQUE A. MONAGAS (7ounsel of Record MATTHEW D. MCGILL GIBSON, DUN & CRUTCHER LLP 1050 Connecticut Avenue, N.W. Washington, D.C. 20036 (202) 955-8668 GIBSON, DUN & CRUTCHER LLP 333 South Grand Avenue Los Angeles, CA 90071 (213) 229-7804 Attorneys for Plaintif-Appellees Kristin M Perry, Sandra B. Stier, Paul T. Katami, and Jeffrey J Zarrillo Dockets.Justia.com CORPORATE DISCLOSURE STATEMENT Pursuant to Federal Rule of Appellate Procedure 26.1, Plaintiffs-Appellees Kristin M. Perr, Sandra B. Stier, Paul T. Katami, and Jeffrey J. Zarrilo state that they are individuals and not publicly traded corporations. TABLE OF CONTENTS Page INTRODUCTION.....................................................................................................1 JURSDICTIONAL STATEMENT ......................................................................... 3 STATEMENT OF THE ISSUES.............................................................................. 4 STATEMENT OF FACTS .......................................................................................4 SUMY OF ARGUMNT ................................................................................ 9 STANDAR OF REVIEW .................................................................................... 10 ARGUMNT.......................................................................................................... 11 i. The District Court Correctly Denied The Campaign's Motion To Intervene As Of Right. .................................................................. 11 A. The Campaign Lacks A Legally Protectable Interest That May Be Practically Impaired By The Disposition Of This Case. .........................................................................................11 B. The Current Parties Adequately Represent The Campaign's Interests. ............................................................... 17 II. The District Court Did Not Abuse Its Discretion In Denying The Campaign's Motion For Permissive Intervention....................... 19 CONCLUSION .......................................................................................................26 STATEMENT OF RELATED CASES ..................................................................27 CERTIFICATE OF COMPLIANCE...................................................................... 28 i TABLE OF AUTHORITIES Page(s) . Cases Allen (7alculators, Inc. v. Natl (7ash Register (70., 322 U.S. 137 (1944).............................................................................................25 Arakaki v. (7ayetano, 324 F.3d 1078 (9th Cir. 2003) ............................................................................. 18 Arizonans for Offcial English v. Arizona, 520 U.S. 43 (1997)............................................................................................... 17 Beckman Indus., Inc. v. Int'l Ins. (70., 966 F.2d 470 (9th Cir. 1992) ............................................................................... 11 Butler, Fitzgerald & Potter v. Sequa (7orp., 250 F.3d 171 (2d Cir. 2001) ................................................................................19 (7al. Dep't of Toxic Substances (7ontrol v. (7ommercial Realty Projects, Inc., 309 F.3d 1113 (9th Cir. 2002) ............................................................................. 10 (7alifornia ex rei. Van de Kamp v. Tahoe Reg 'I Planning Agency, 792 F .2d 779 (9th Cir. 1986)........ ........................... .............. ................ .............. 13 (7alifornia v. Tahoe Reg 'I Planning Agency, 792 F.2d 775 (9th Cir. 1986)............................................................................... 22 (7ooter & Gell v. Hartmarx (7orp., 496 U.S. 384 (1990)............................................................................................. 11 Diamond v. (7harles, 476 U.S. 54 (1986)............................................................................................... 21 Donaldson v. United States, U.S. 517 (1971).......................................................................................12, 14 400 Donnelly v. Glickman, 159 F.3d 405 (9th Cir. 1998) .......................................................................1,9, 11 EEO(7v. Pan Airways, 897 F.2d 1499 (9th Cir. 1990) .............................................................................21 Am. World Idaho v. Freeman, 625 F.2d 886 (9th Cir. 1980).........................................................................14,15 11 TABLE OF AUTHORITIES (cont) Page(s) Jones v. Prince George's (7ounty, 348 F.3d 1014 (D.C. Cir. 2003)........................................................................... 19 Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094 (9th Cir. 2002).....:.......................................................................11 League of United Latin Am. (7itizens v. Wilson, 131 F.3d 1297 (9th Cir. 1997) ...............................................................................3 Nw. Forest Res. (7ouncil v. Glickman, 82 F.3d 825 (9th Cir. 1996) ...............................................................12, 17,20,21 Portland Audubon Soc. v. Hodel, 866 F.2d 302 (9th Cir. 1989) ............................................................................... 14 Prete v. Bradbury, 438 F.3d 949 (9th Cir. 2006) ................................................................... 10, 14, 17 Public Servo (70. of New Hampshire V. Patch, 136 F.3d 197 (lst Cir. 1998)..........................................................................13, 15 S. (7al. Edison (70. v. Lynch, 307 F.3d 794 (9th Cir. 2002) ................................................................. 2,9, 12, 15 Sagebrush Rebellion, Inc. v. Watt, 713 F.2d 525 (9th Cir. 1983) .........................................................................14, 15 Schlesinger v. Reservists (7omm. to Stop the War, 418 U.S. 208 (1974)............................................................................................. 17 Sierra (71ub v. Us. E.P.A., 995 F.2d 1478 (9th Cir. 1993) ............................................................................. 15 Sokaogon (7hippewa (7mty. V. Babbitt, 214 F.3d 941 (7th Cir. 2000) ............................................................................... 12 Spangler V. Pasadena (7ity Bd. of Educ., 552 F.2d 1326 (9th Cir. 1977) ......................................................................passim Stadin v. Union Electric (70., 309 F.2d 912 (8th Cir. 1962)............................................................................... 25 Strauss v. Horton, 207 P.3d 48 (CaL. 2009)................................................................................... 4, 13 ii TABLE OF AUTHORITIES (cont) Page(s) Summers v. Earth Island Inst., 129 S. Ct. 1142 (2009)......................................................................................... 17 United States ex rei. Richards v. De Leon Guerrero, 4 F.3d 749 (9th Cir. 1993) ................................................................................... 22 United States v. Alisal Water (7orp., 370 F.3d 915 (9th Cir. 2004) ................................................................... 12, 14, 16 United States v. (7ity of Los Angeles, 288 F.3d 391 (9th Cir. 2002)........ .......... .......... ........................ .................... passim United States v. (7ity of Philadelphia, 798 F.2d 81 (3d Cir. 1986) ............................................................................ 19,23 United States v. Oregon, 745 F.2d 550 (9th Cir. 1984) ............................................................................... 16 Valley Forge (7hristian (7ollege v. Ams. Unitedfor Separation of(7hurch & State, 454 U.S. 464 (1982)............................................................................................. 17 Venegas v. Skaggs, 867 F.2d 527 (9th Cir. 1989) ............................................................................... 23 Washington State Bldg. & (7onstruction Trades (7ouncil, AFL-(7IO v. Spellman, 684 F .2d 627 (9th Cir. 1982) ............................................................................... 13 Westlands Water Dist. v. United States, 700 F.2d 561 (9th Cir. 1983) ............................................................................... 13 Statutes 28 U.S.C. 1291 ....................................................................................................... 3 28 U.S.C. 1331 ....................................................................................................... 3 42 U.S.C. 1983 .......................................................................................................3 Rules Fed. R. Civ. P. 24(a)................................................................................................ 12 Fed. R. Civ. P. 24(b)(3)..................................................................................... 21,24 Fed. R. Civ. P. 24(b)(1)(B) ..................................................................................... 20 iv INTRODUCTION Plaintiffs are gay and lesbian individuals who brought suit in the district court to vindicate their federal constitutional right to marr the person of their choice-a right that has been denied by a California ballot initiative, Proposition 8 ("Prop. 8"). The Campaign for California Families (the "Campaign"), one of many groups made up of persons who claim an interest in restricting civil marriage to "between a man and a woman" (ER 17), sought to intervene as a defendant in Plaintiffs' lawsuit. Chief Judge Vaughn R. Walker denied the motion to intervene because the Campaign did not satisfy the requirements for intervention as of right or permissive intervention. This Court should affirm the district court's wellreasoned decision. The Campaign failed to establish its entitlement to intervention as a matter of right because (1) it could not identify any "significant protectable interest" that may be impaired by the disposition of Plaintiff s lawsuit, Donnelly v. Glickman, 159 F.3d 405, 409 (9th Cir. 1998), and (2) its interests are adequately represented by the official proponents of Prop. 8, who previously had been permitted to intervene as a party in the litigation, United States v. (7ity of Los Angeles, 288 F.3d 391, 398 (9th Cir. 2002). Indeed, the interest in the "defense of traditional marriage" asserted by the Campaign is indistinguishable from that shared by most (if not all) supporters of Prop. 8. But this Court has made clear that "an undifferentiated, generalized interest in the outcome of an ongoing action is too porous a foundation on which to premise intervention as of right." S. (7al. Edison (70. v. Lynch, 307 F.3d 794, 803 (9th Cir. 2002) (quotation marks and citation omitted). Moreover, though the Campaign accuses the official proponents of conceding away "many of the facts necessary to defend the constitutionality of the challenged provisions" (Op. Br. 2), a review of the record demonstrates that the official proponents in fact have conceded much less than the Campaign surmises, and the few concessions the official proponents have made-such as admitting that "homosexuals have been subjected to discrimination" (id. at 29)-cannot seriously be disputed. The Campaign's apparent wilingness to challenge commonly accepted truths, and the official proponents' judgment that such efforts either could not be made in good faith or would be unfritful amounts ( at most) to a difference in litigation tactics. Tactical differences are "not enough to justify intervention as a matter of right." (7ity of Los Angeles, 288 F .3d at 402-03. Similarly, the district court correctly denied the Campaign's motion for permissive intervention because the discretionary Spangler factors-many of which track the requirements for intervention as of right-weigh decisively against the Campaign's intervention. See Spangler v. Pasadena (7ity Bd. of Educ., 552 F.2d 1326, 1329 (9th Cir. 1977). Here, the district court found that the existing 2 parties are more than capable of developing a factual record encompassing. the Campaign's interests and that the Campaign's intervention would delay the proceedings. Those findings are not clearly erroneous-indeed, the Campaign itself acknowledges that its intervention will delay the proceedings-and the district court's conclusion grounded upon those findings accordingly cannot be viewed as an abuse of discretion. JUSDICTIONAL STATEMENT The district court, which had jurisdiction over this action arising under the U.S. Constitution and 42U.S.C. 1983 pursuant to 28 U.S.C. 1331, denied the Campaign's motion to intervene as of right and motion for permissive intervention on August 19,2009. ER 72. The district court's decision denying intervention as of right under Federal Rule of Civil Procedure 24(a)(2) "is an appealable 'final United Latin Am. decision' within the meaning of28 U.S.C. 1291." League of (7itizens v. Wilson, 131 F.3d 1297,1302 (9th Cir. 1997). This Court lacks jurisdiction over the district court's order denying permissive intervention unless the district court abused its discretion. Id. at 1307. Thus, if the Court "finds an abuse of discretion, it retains jurisdiction and must reverse; if it determines, on the other hand, that no abuse of discretion has occurred, it must dismiss the appeal for want of jurisdiction." Id. at 1308. 3 STATEMENT OF THE ISSUES 1. Whether the district court correctly denied the Campaign's motion to intervene as of right, where the Campaign failed to demonstrate either that it has a significantly protectable interest in the litigation that may be practically impaired by a disposition of this case, or that its interests are inadequately represented by the official proponents of Prop. 8. 2. Whether the district cour abused its discretion by denying the Campaign's motion for permissive intervention. STATEMENT OF FACTS On November 4, 2008, California voters narrowly approved Prop. 8, a California ballot initiative that amended the California Constitution to provide that "only a civil marriage between a man and a woman is valid or recognized in California." ER 204 (internal quotations omitted). According to the official General Election Voter Information Guide, Prop. 8 "( c )hange( d) the California Constitution to eliminate the right of same-sex couples to marr in California." Strauss v. Horton, 207 P.3d 48, 77 (CaL. 2009) (internal quotations omitted). Prop. 8 went into effect on November 5,2008, the day after the election. ER 209. Plaintiffs are gay and lesbian residents of California who are involved in long-term, serious relationships with individuals of the same sex and who desire to marr those individuals to demonstrate publicly their commitment and to obtain all 4 the benefits that come with the official recognition of their family relationship. ER 205, ER 210. Plaintiffs applied for marriage licenses but were denied solely because they are gay and lesbian couples. ER 210. On May 22, 2009, Plaintiffs filed this lawsuit seeking a declaration that Prop. 8 is unconstitutional under the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the U.S. Constitution, and an injunction preventing the State from enforcing that provision against Plaintiffs. ER 204-205. Plaintiffs also sought a preliminary injunction because Plaintiffs are irreparably harmed each day that Prop. 8 remains in force and continues to deprive them of their due process and equal protection rights. Id. On May 28, 2009, a group representing the official proponents of Prop. 8, Dennis Hollngsworth, Gail J. Knight, Martin F. Gutierrez, Hak-Shing, Wiliam Tam, Mark A. Jansson, and ProtectMarriage.com - Yes on 8 ("Proponents"), filed a motion to intervene as defendants. ER 235. No part opposed. On June 30, 2009, the district court granted Proponents' motion to intervene as defendants. ER 241. Later, three other groups also sought to intervene in this litigation: (1) Our Family Coalition, Lavender Seniors of the East Bay, and Parents, Families, and Friends of Lesbians and Gays (collectively "Our Family Coalition") (as plaintiffs); (2) the City and County of San Francisco (the "City") (as a plaintiff); and (3) 5 Appellant, the Campaign for California Families (as a defendant). ER 240, 242, 244. Our Family Coalition and the Campaign sought to intervene as a matter of right under Federal Rule of Civil Procedure 24(a) and, alternatively, sought permissive intervention under Rule 24(b). ER 45-46. The City sought only permissive intervention. ER 46. Plaintiffs opposed all three motions to intervene. . ER 33-34. The district court heard argument on August 19, 2009 and denied the Campaign's motion to intervene. ER 72-73.1 The district court denied the Campaign's motion to intervene as of right based on its findings that the Campaign failed to show that (1) it had a significant protectable interest relating to the transaction that is the subject matter of the action; (2) it was so situated that the disposition of the action may practically impair or impede its ability to protect its interest; and (3) its interest was not adequately represented by the existing parties to the action. ER 46. The district court explained that, to establish a "significant protectable interest," the Campaign was required to show both that it has an interest protected under some law and that there is a relationship between that legally protected interest and the claims at issue in this case. ER 47. The district court found that the Campaign failed to make that showing. ER 47-48. 1 The district court also denied Our Family Coalition's motion to intervene, but that ruling has not been appealed. 6 Although the Campaign asserted that its interests were "broader than merely i upholding Proposition 8 because it wishes to assure marriage is defined only as an opposite-sex union," the district court observed that "the Campaign fail ( ed) to explain the practical effect of (its) broader interest, or to explain how the Court could protect this interest, how Proposition 8, if upheld as constitutional, would fail to assure this claimed broader interest in defining marriage as only an opposite-sex union." ER 47-48. The district court further noted that "the Campaign is not the official sponsor of Proposition 8, (therefore) its interest in Proposition 8 is essentially no different from the interest of a voter who supported Proposition 8." ER47. Addressing the Campaign's argument that its interests were inadequately represented by the existing parties, the district court stated that the Campaign "failed to explain that its interest is not adequately represented by the Intervenor Defendants who are, after all, the official proponents of Proposition 8." ER 48. The district cour accordingly denied the Campaign's motion to intervene as of right. ER 49. The district court also denied the Campaign's motion for permissive intervention. ER 53. Applying the legal standard set forth in Spangler, 552 F.2d at 1326, the district court considered several factors, including "the nature and extent of the applicants' interest, their standing to raise relevant legal issues, the legal 7 position they seek to advance and its probable relation to the merits of the case." ER 52. In addition, the district court considered "whether the applicants' interests are adequately represented by the other paries, whether intervention wil prolong or unduly delay the litigation, and whether the parties seeking intervention wil significantly contribute to the full development of the underlying factual issues in the suit and to the just and equitable adjudication of the legal questions presented." Id. The district court found that "the Spangler factors weigh against permitting Our Family Coalition and the Campaign to intervene. Their interests are represented by the current parties to the action." ER 52. In reaching this conclusion, the district court noted that "nothing in the record before the Court suggests that the current parties are not independently capable of developing a complete factual record encompassing all of the applicants' interests. Furthermore, permitting the Our Family Coalition and the Campaign to intervene might very well delay the proceedings, as each group would need to conduct discovery on substantially similar issues." ER 53. Indeed, the district court found that the interests of the Campaign were "indistinguishable from those advanced by Plaintiffs." Id. Based on these findings, the district court denied the Campaign's motion for permissive intervention, noting that it could seek to file amicus briefs 8 on "specific legal issues that they believe require elaboration or explication that the parties fail to provide." Id.2 SUMMARY OF ARGUMENT This Court should affirm the district court's denial of the Campaign's motion to intervene. The Campaign failed to establish its entitlement to intervention as of right. It cannot identify any "significant protectable interest" that may be impaired by the disposition of Plaintiffs lawsuit. Donnelly, 159 F.3d at 409. Rather, it states only a generalized interest in "defending the institution of marriage as the union of a man and woman." Op. Br. 21. But this is precisely the same interest shared by virtually every person who counts himself as a supporter of Prop. 8, and such "an undifferentiated, generalized interest in the outcome of an ongoing action is too porous a foundation on which to premise intervention as of right." Lynch, 307 F.3d at 803 (quotation marks and citation omitted). In addition, the Campaign has not met its burden of establishing that its stated interest-preventing gay and 2 The district court granted the City's motion to intervene in part, concluding that "to the extent that San Francisco claims a governent interest in the that, unlike the other two proposed intervenors, the City identified an independent protectable interest in the action because it claimed a financial interest that it alleges is adversely affected by Prop. 8. ER 54. controversy about the constitutionality of Proposition 8, it may represent that interest and present such evidence as necessary for the Court to decide that issue." ER 56. The district court reached this conclusion based on its finding 9 lesbian individuals from marring-is inadequately represented by the official proponents of Prop. 8, who are already a part to the litigation. (7ity of Los Angeles, 288 F.3d at 398. Nor did the district court abuse its discretion in denying the Campaign's motion for permissive intervention. The discretionary Spangler factors-many of which track the requirements for intervention as of right-weigh decisively against granting permissive intervention. See Spangler, 552 F.2d at 1329. As the district court explained, "nothing in the record before the Court suggests that the current parties are not independently capable of developing a complete factual record encompassing all of the (Campaign's) interests," and, on the other hand, allowing the Campaign to intervene would unduly delay the resolution of Plaintiffs' lawsuit. ER 52-53 (citing Spangler). These findings are indisputably correct and foreclose any argument that the district court abused its discretion. STANDARD OF REVIEW The Ninth Circuit reviews de novo district court decisions concerning intervention as of right pursuant to Rule 24(a). Prete v. Bradbury, 438 F.3d 949, 953 (9th Cir. 2006); (7al. Dep't of Toxic Substances (7ontrol v. (7ommercial Realty Projects, Inc., 309 F3d 1113, 1119 (9th Cir. 2002). A district court has "broad" discretion to determine whether to grant permissive intervention under Rule 24(b)(2), Spangler, 552 F.2d at 1329, and its decision granting or denying 10 permissive intervention pursuant to Rule 24(b )(2) will be reversed only for abuse of discretion, Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094, 1110 (9th Cir. 2002); Beckman Indus., Inc. v. Intl Ins. (70.,966 F.2d 470,472 (9th Cir. 1992). A district court abuses its discretion only when it premises its decision on a legal error or a clearly erroneous view of the relevant facts. (7ooter & Gell v. Hartmarx (7orp., 496 U.S. 384,405 (1990). ARGUMENT I. The District Court Correctly Denied The Campaign's Motion To Intervene As Of Right. Intervention as of right under Rule 24(a)(2) is permissible only where "(1) (the applicant) has a significant protectable interest relating to the propert or transaction that is the subject of the action; (2) the disposition of the action may, as , a practical matter, impair or impede the applicant's abilty to protect its interest; (3) the application is timely; and (4) the existing parties may not adequately represent the applicant's interest." Donnelly, 159 F.3d at 409 (internal quotation marks omitted). Failure to satisfy anyone of these criteria is fataL. See id. A. The Campaign Lacks A Legally Protectable Interest That May Be Practically Impaired By The Disposition Of This Case. The district court correctly denied the Campaign's motion to intervene as of right under Rule 24(a)(2) because, among other things, the Campaign failed to articulate a "significantly protectable interest" in the subject matter of the litigation 11 that may be practically impaired by the disposition of this case. Donaldson v. United States, 400 U.S. 517, 531 (1971); Fed. R. Civ. P. 24(a); ER 47. "An applicant for intervention has a significantly protectable interest if ((1)) the interest is protected by law and ((2)) there is a relationship between the legally protected interest and the plaintiffs claims." United States v. Alisal Water (7orp., 370 F.3d 915, 919 (9th Cir. 2004); Nw. Forest Res. (7ouncil v. Glickman, 82 F.3d 825, 837 (9th Cir. 1996). "(A)n undifferentiated, generalized interest in the outcome of an ongoing action" is insufficient. Lynch, 307 F.3d at 803 (internal quotation marks omitted). Rather, "at some fundamental level the proposed intervenor must have a stake in the litigation." Sokaogon (7hippewa (7mty. v. Babbitt, 214 F.3d 941, 946 (7th Cir. 2000) (internal quotation marks and brackets omitted). The Campaign has no such stake in the litigation. It contends only that it has a generalized interest in "defending the institution of marriage as the union of a man and a woman against diminution and disintegration" by preventing gay and lesbian couples from marring. Op. Br. 21. But as the district court recognized, ER 47, this is precisely the same interest shared by any of the numerous Californians who voted in favor of Prop. 8, and such "an undifferentiated, generalized interest in the outcome of an ongoing action is too porous a foundation on which to premise intervention as of right." Lynch, 307 F.3d at 803 (quotation 12 marks and citation omitted); see also (7alifornia ex rei. Van de Kamp v. Tahoe Reg'l Planning Agency, 792 F.2d 779, 781-82 (9th Cir. 1986) (holding that "a general interest in (the subject matter of the suit) shared by a substantial portion of the population" is an insufficient ground for intervention as of right); Westlands Water Dist. v. United States, 700 F.2d 561, 563 (9th Cir. 1983) (no significant protectable interest where the asserted interest was shared by "a substantial portion of the population of northern California"); Public Servo (70. of New Hampshire v. Patch, 136 F.3d 197, 205 (1st Cir. 1998) ("(i)t is settled beyond peradventure. . . that an undifferentiated, generalized interest in the outcome of an ongoing action" is insufficient for intervention as of right). As the district court noted, the Campaign was merely one of many supporters of Prop. 8-and not even one of the official sponsors, who are already parties to the case. ER 47. In fact, the California Supreme Court denied the Campaign's motion to intervene in the state court challenge to Prop. 8 in Strauss V. Horton, 207 P.3d 48 (CaL. 2009), after other groups opposed its intervention on the ground that it lacked a sufficient interest in the litigation. Strauss, Nos. S168047, S168066, S168078 (CaL. Nov. 19,2008) (order denying motion to intervene); Pet'r Opp. to Mot. of Campaign for California Families to Intervene as Resp't, Strauss, 207 P.3d 48 (No. S168047). Thus, the Campaign's reliance on Washington State Bldg. & (7onstruction Trades (7ouncil, AFL-(7IO v. Spellman, 684 F.2d 627 (9th 13 Cir. 1982), and Prete v. Bradbury, 438 F.3d at 956, is misplaced. Both cases involved intervention by the offcial sponsor of the challenge ballot initiative. The Campaign also relies on two cases decided over two decades ago, Idaho v. Freeman, 625 F .2d 886, 887 (9th Cir. 1980), and Sagebrush Rebellion, Inc. v. Watt, 713 F.2d 525 (9th Cir. 1983), for the proposition that any supporter or opponent of a rule of law-be it a statute, a regulation, or a ballot initiative-has an interest sufficient to intervene whenever its "broader interests . . . would be affected by the narrower interests at issue in the respective cases." Op. Br. 21. But Freeman and Sagebrush are readily distinguishable. First, both Freeman and Sagebrush were decided before this Court fully embraced the fact that the Supreme Court's 1971 decision in Donaldson, 400 U.S. at 517, held that intervention as of right "does require a 'significantly protectable interest.'" Portland Audubon Soc. v. Hodel, 866 F.2d 302, 309 (9th Cir. 1989) (quoting Donaldson, 400 U.S. at 531). Rather than asking whether the particular interests asserted by the applicants for intervention were "protected by law," Alisal Water (7orp., 370 F.3d at 919, the Freeman and Sagebrush Courts inquired only whether the proposed intervenors "had an interest in the subject of the suit." Sagebrush, 713 F.2d at 527 (citing Freeman, 625 F.2d 886). But this Court has now made clear that such an "undifferentiated, generalized interest in the outcome 14 of an ongoing action" is an insufficient basis for intervention as of right. Lynch, 307 F.3d at 803; see also Patch, 136 F.3d at 205. Second, even if the National Organization for Women's "interest in the continued vitality of the (Equal Rights Amendment)," Freeman, 625 F.2d at 887, and the Audubon Society's "interest in the preservation of birds and their habitats," Sagebrush, 713 F.2d at 528, could qualify as "significantly protectable interests" under Donaldson, the interests asserted by the proposed intervenors in Freeman and Sagebrush are of an entirely different magnitude from those pressed here by the Campaign. The proposed intervenors in those cases were more akin to the official proponents of Prop. 8 than the Campaign: The National Organization for Women "had championed" the Equal Rights Amendment, Sagebrush, 713 F.2d at 527, and the Audubon Society had "participated actively in the administrative process" advocating in favor of the administrative actions challenged in Sagebrush, id. at 526. By contrast, before Prop. 8 qualified for the ballot, the Campaign was a vocal critic of the measure-a poor analogy to the role played by NOW and the Audubon Society in connection with the provisions there under review. ER 173180. The Campaign's other cited cases (Op. Br. 19-21) are also inapposite. Sierra (71ub v. Us. E.P.A., 995 F.2d 1478 (9th Cir. 1993), involved an intervenor who owned propert directly affected by the lawsuit. Likewise, in United States v. 15 Oregon, 745 F.2d 550, 553 (9th Cir. 1984), Idaho intervened in a lawsuit between Oregon and Washington regarding regulation of fishing in the Columbia River, which had a direct impact on tributaries to that river located in Idaho. The district court rightly held that the Campaign's "interest in Proposition 8 is essentially no different from the interest of a voter who supported Proposition 8, and is insufficient to allow the Campaign to intervene as of right." ER 47. To accept the Campaign's argument-that it may intervene whenever a litigation implicates its "broader interests"-would be to allow any voter or group that professes a generalized interest in the subject matter of a particular litigation to intervene as a part. Litigation would look like agency rulemaking, and the "significant protectable interest" requirement imposed by the Supreme Court in Donaldson would be no more. See Alisal Water (7orp., 370 F.3d at 920 n.3 ("A mere interest in propert that may be impacted by litigation is not a passport to participate in the litigation itself. To hold otherwise would create a slippery slope where anyone with an interest in the propert of a part to a lawsuit could bootstrap that stake into an interest in the litigation itself."). Because "(a)n intervenor canot step into the shoes of the original part unless the intervenor independently fulfills the requirements of Aricle III," it makes little sense to allow intervention on terms insufficient to invoke the jurisdiction of the federal courts. 16 Arizonans for Offcial English v. Arizona, 520 U.S. 43, 64-65 (1997) (internal quotation marks omitted).3 B. The Current Parties Adequately Represent The Campaign's Interests. The district court correctly held that the Campaign's interest in the litigation-even if it qualified as a "significantly protectable interest" under Donaldson (which it does not)-is adequately represented by Proponents. ER 48. The inadequacy of representation requirement "is not without teeth." Prete, 438 F.3d at 956. In evaluating this requirement, the Court considers: '''(1) whether the interest of a present part is such that it wil undoubtedly make all the intervenor's arguments; (2) whether the present part is capable and wiling to make such arguments; and (3) whether the would-be intervenor would offer any necessary elements to the proceedings that other parties would neglect. '" (7ity of Los Angeles, 288 F.3d at 398 (quoting Nw. Forest Res. (7ouncil, 82 F.3d at 838). 3 Indeed, the requirement that a proposed intervenor demonstrate more than a generalized grievance is fully consistent with fundamental principles of Aricle III standing. See, e.g., Summers v. Earth Island Inst., 129 S. Ct. 1142, 1149 (2009) ("federal courts (must) satisfy themselves that the plaintiff has alleged such a personal stake in the outcome of the controversy as to warrant his invocation of federal-court jurisdiction" (internal quotation marks omitted; emphasis in original)); Schlesinger v. Reservists (7omm. to Stop the War, 418 U.S. 208, 220 (1974) ("standing to sue may not be predicated upon an interest of the kind alleged here which is held in common by all members of the public, because of the necessarily abstract nature of the injury all citizens share"); cf Valley Forge (7hristian (7ollege v. Ams. United for Separation of (7hurch & State, 454 U.S. 464, 486 n.21 (1982) (standing is not measured by the "sincerity their commitment to them"). of (plaintiffs') stated objectives and the depth of 17 Where, as here, "an applicant for intervention and an existing party have the same ultimate objective"-to wit, the continuing enforcement of Prop. 8-"a presumption of adequacy of representation arises." Arakaki v. (7ayetano, 324 F .3d 1078, 1086 (9th Cir. 2003) (emphasis added). And where "the applicant's interest is identical to that of one of the present parties, a compelling showing should be required to demonstrate inadequate representation." Id. (emphasis added). The Campaign has identified no way in which its interest in this litigation differs from that of Proponents, and it has failed to make the compellng showing of inadequacy of representation required under those circumstances. As the district court explained, the Campaign argues that "the proponents of Proposition 8 wil not make all of the arguments the Campaign wishes to present, because the Campaign has ( a) broader interest. . . in not only upholding Proposition 8 but also in securing a definition of marriage as an opposite-sex union." ER 49. But the Campaign does not explain "how its interest is meaningfully distinct from (Proponents') interest, or how the Court could fashion a remedy for this claimed broader interest." Id. In addition, the Campaign has not shown that Proponents are unwiling or unable "to present all of the arguments the Campaign wishes to introduce that are consistent with the law and the facts." Id.4 4 The Campaign has suggested that it has an additional interest, perhaps not embraced by the official proponents, in stripping gay and lesbian individuals of 18 Moreover, the Campaign's brief plainly demonstrates that its adequacy of representation argument is premised on nothing more than a difference in trial strategy. See Op. Br. 29-38. But mere "differences in strategy. . . are not enough to justify intervention as a matter of right." (7ity of Los Angeles, 288 F.3d at 40203. Indeed, courts deny intervention even where intervenors have a "different view of the applicable law" and would be "less prone to agree to the facts." United States v. (7ity of Philadelphia, 798 F .2d 81, 90 (3d Cir. 1986). This is because, if "quibbles over litigation tactics" or "'disagreement with an existing part over trial strategy qualified as inadequate representation, the requirement of Rule 24 would have no meaning.'" Jones v. Prince George's (7ounty, 348 F.3d 1014, 1020 (D.C. Cir. 2003) (quoting Butler, Fitzgerald & Potter v. Sequa (7orp., 250 F.3d 171,181 (2d Cir. 2001)). Because the Campaign has failed to meet its burden of demonstrating both a significant protectable interest and inadequacy of representation, this Court should affirm the district court's decision denying the motion to intervene as of right. II. The District Court Did Not Abuse Its Discretion In Denying The Campaign's Motion For Permissive Intervention Rule 24(b)(1)(B) provides that "(o)n timely motion, the cour may permit anyone to intervene who: . . . has a claim or defense that shares with the main domestic partnership rights in addition to their state constitutional right to marr. Whether or not the official proponents share this objective, it is not at issue in this case. 19 action a common question of law or fact." Fed. R. Civ. P. 24(b )(l)(B). This Court has held that a district court, in its discretion, may grant permissive intervention where the applicant for intervention shows "( 1 ) independent grounds for jurisdiction; (2) the motion is timely; and (3) the applicant's claim or defense, and the main action, have a question of law or a question of fact in common." Nw. Forest Res. (7ouncil, 82 F.3d at 839. If the district court finds that all these conditions are met, "it is then entitled to consider other factors in making its discretionary decision on the issue of permissive intervention." Spangler, 552 F.2d at 1329. "These relevant factors include the nature and extent of the intervenors' interest, their standing to raise relevant legal issues, the legal position they seek to advance, and its probable relation to the merits of the case." Id. The district court may also consider "whether the intervenors' interests are adequately represented by other parties, whether intervention will prolong or unduly delay the litigation, and whether parties seeking intervention wil significantly contribute to full development of the underlying factual issues in the suit and to the just and equitable adjudication of the legal questions presented." Id. Rule 24(b )(3) expressly provides, however, that "(i)n exercising its discretion, the court must consider whether intervention wil unduly delay or prejudice the adjudication of the original paries' rights." Fed. R. Civ. P. 24(b)(3) (emphasis added). Collectively, these factors inform the district 20 court's exercise of its broad discretion as to whether to permit intervention under Rule 24(b)( 1 ). Here, the district cour found the Campaign's motion to intervene deficient on several of these grounds, at least two of which are independently sufficient to support its denial of the motion.5 First, the district cour concluded that the Campaign has not asserted a legal interest that is independent of those asserted by the existing parties, nor does it seek to raise any legal argument that the original parties are unwilling to advance. ER 20-21. This conclusion is well-supported by the relevant case law concerning permissive intervention. See, e.g., United States ex rei. Richards v. De Leon Guerrero, 4 F.3d 749, 756 (9th Cir. 1993) (denying permissive intervention 5 Although the district court did not address the question of whether the Campaign's motion met the threshold eligibilty requirements for permissive intervention, the Campaign's failure to establish "independent grounds for jurisdiction" provides another basis for the denial of the motion for permissive intervention. F or the same reasons that the Campaign's undifferentiated, generalized interest in this litigation cannot serve as the basis for intervention as of right, see supra Section I.A, the Campaign also fails to establish such independent grounds for jurisdiction or a "common question of law or fact" with Plaintiffs' claim necessary to establish its eligibility for permissive intervention. See, e.g., Nw. Forest Res. (7ouncil, 82 F.3d at 839; EEO(7 v. Pan Am. World Airways, 897 F.2d 1499, 1509-10 (9th Cir. 1990) (part seeking permissive intervention must demonstrate a basis for federal jurisdiction independent of the court's jurisdiction over the underlying action). See also Diamond v. (7harles, 476 U.S. 54, 76-77 (1986) (O'Connor, J., concurring) ("The words 'claim or defense' (in Rule 24(b)(2)) manifestly refer to the kinds of claims or defenses that can be raised in courts of law as part of an actual or impending law suit"). , 21 because applicant's argument was "essentially the same" as an existing part's and interest asserted by applicant was already adequately represented); California v. Tahoe Reg'l Planning Agency, 792 F.2d 775, 779 (9th Cir. 1986) (affirming district court's denial of permissive intervention because applicant's interests were addressed by at least one of the existing paries and intervention "would impair the efficiency of the litigation"). The Campaign asserts that the district court abused its discretion because "Defendant-Intervenors (Proponents) said they would essentially concede" some of the factors that the Campaign argues "must be subjected to the adversarial fact- finding process," including whether sexual orientation is related to an individual's abilty to contribute to society and whether sexual orientation is a readily identifiable characteristic that defines gay and lesbian individuals as a discrete class. Gp. Br. 48-49. But the district court directly addressed these concerns at the August 19 hearing on the motion to intervene by closely questioning counsel for Proponents as to whether they intended to raise these and other issues. ER 41. Counsel confirmed that Proponents would "vigorously pursue" these issues (id.), and the district cour thus concluded that "the Campaign fail (ed) to counter proponents' assertions that they are wiling and able to present all of the arguments the Campaign wishes to introduce that are consistent with the law and the facts" (ER49). 22 While the Campaign may disagree with certin of Proponents' tactical decisions in defending Prop. 8, the Campaign has failed to identify any actual "divergence of interests" between them. ER 42. Rather, as the district court correctly concluded, the interests of the Campaign and Proponents are "indistinguishable" because both Proponents and the Campaign wish to defend Prop. 8 (as well as other California laws that may prohibit gay and lesbian individuals from marring). Id. And, as noted above, the Campaign has not explained how the allegedly "broader interest" it asserts would not be served if Proponents are successful and Prop. 8 is upheld. ER 48. Disagreements over litigation strategy do not establish a difference in interest. See, e.g., (7ity of Philadelphia, 798 F.2d at 90 ("(T)he fact that the intervenors would have been less prone to agree to the facts and would have taken a different view of the applicable law does not mean that the (existing parties) did not adequately represent their interests in the litigation" (internal quotation marks omitted)). This case stands in stark contrast to those in which this Court has found divergent interests sufficient to justify permissive intervention. See, e.g., Venegas v. Skaggs, 867 F.2d 527, 530 (9th Cir. 1989) aff'd sub nom. Venagas v. Mitchell, 495 U.S. 82 (1990) (granting permissive intervention where "neither of the existing parties (was) concerned with protecting the (intervenor's distinct) interest" and "(n)either of the original parties. 23 . . alleged that. . . intervention would cause delay or prejudice to the adjudication of their rights"). Second, the district court reasoned that "permitting () the Campaign to intervene might very well delay the proceedings, as each group would need to conduct discovery on substantially similar issues." ER 53. The Campaign concedes that its involvement would hamper the district court's ability to move forward efficiently to a resolution of this dispute, noting that "(t)he problem is not that the Campaign has nothing to contribute, it is that the Campaign has so much to contribute that it would slow down the proceedings." Gp. Br. 50. Nevertheless, the Campaign contends that "the district court's statements reflect a wilingness to sacrifice development of a complete factual record in favor of expediency." Id. Not so. Rule 24(b )(3) expressly requires the district court to consider the delays attendant to the Campaign's proposed intervention in this suit. Fed. R. Civ. P. 24(b)(3) ("In exercising its discretion, the court must consider whether intervention wil unduly delay or prejudice the adjudication of the original parties' rights") (emphasis added). As Plaintiffs pointed out in their preliminary injunction motion and at the August 19 hearing, they suffer irreparable injur every day Prop. 8 remains the law in California. ER 34-35. In recognition of the serious and far- reaching consequences of the issues presented in this case, the district court has repeatedly emphasized its focus on an orderly process that wil enable this 24 litigation to be resolved on the merits in an expeditious manner. ER 35; ER 45. This focus is consistent with-and required by-Rule 24(b )(3). Indeed, the Supreme Court has explained, "(i)t is common knowledge that, where a suit is of large public interest, the members of the public often desire to present their views to the court in support of the claim or the defense," but such interventions are inappropriate where they will "result in accumulating proofs and arguments without assisting the court." Allen (7alculators, Inc. v. Nat'l (7ash Register (70., 322 U.S. 137, 141-42 (1944). Thus, in Stadin v. Union Electric (70., 309 F.2d 912, 920 (8th Cir. 1962), the court affirmed denial of a motion to intervene because intervention "(would have brought) into (the) lawsuits added complexity; the inevitable problems attendant upon additional witnesses, interrogatories and depositions; expanded pretrial activity; greater length of trial; and elements of confusion," which "in themselves suggest delay and the clouding of the issues involved in the original causes of action." See also id. ("More than one trial court has observed that (a)dditional parties always take additional time and that they are the source of additional questions, objections, briefs, arguments, motions and the like which tend to make the proceeding a Donnybrook Fair." (internal citation and quotation marks omitted)). The only thing the Campaign's intervention would bring to this litigation is delay, which would unduly impair and prejudice the adjudication of Plaintiffs' 25 rights. In this light, the Campaign's intimation that allowing the case to go forward with the current parties somehow impermissibly sacrifices justice for efficiency rings decidedly hollow. CONCLUSION This Court should affirm the district court's well-reasoned decision denying the Campaign's motion for intervention as of right and dismiss the Campaign's appeal of the court's denial of permissive intervention for want of jurisdiction. DATED: October 9,2009 Respectfully submitted, GIBSON, DUN & CRUTCHER LLP THEODORE B. OLSON (7ounsel of Record THEODORE J. BOUTROUS, JR. CHRSTOPHER D. DUSSEAULT MATTHEW D. MCGILL THEANE EVANGELIS KApUR ENRIQUE A. MONA REBECCA JUSTICE LAZARUS . ./ By~~6~ Theodore B. Olson 7\1 GAS Attorneys for Plaintiffs-Appellees Kristin M. Perr, Sandra B. Stier, Paul T. Katami, and Jeffrey J. Zarrilo 26 STATEMENT OF RELATED CASES Pursuant to Ninth Circuit Rule 28-2.6, Plaintiffs are not aware of any related cases. 27 CERTIFICATE OF COMPLIANCE Pursuant to Fed. R. App. P. 32(a)(7)(C) and Ninth Circuit Rule 32-1, I, the under-signed counsel, certify that this Appellees' Response Brief is proportionately spaced, has a typeface of 14 points or more, and contains 6,195 words and 540 lines of text (not counting the cover, the Corporate Disclosure Statement, Tables of Contents and Authorities, this Certificate of Compliance, the Statement of Related Cases, or the Proof of Service) according to the word count feature of Microsoft Word used to generate this Brief. DATED: October 9,2009 Respectfully submitted, GIBSON, DUN & CRUTCHER LLP THEODORE B. OLSON (7ounsel of Record THEODORE J. BOUTROUS, JR. CHRSTOPHERD. DUSSEAULT MATTHEW D. MCGILL THEANE EVANGELIS KApUR REBECCA JUSTICE LAZARUS ENRQUE A. MONAGAS / BY:~~~ ~ Thea1p r Attorneys for Plaintiffs-Appellees 28 9t Circut Case Number s) 109- i 6959 filled-in fon::n to PDF (File ;;, Print ;~ PDF Printer/Creator). NOTE: To secure your input you should print the ********************************************************************************* CERTIFICATE OF SERVICE When All Case Participants are Registered for the Appellate CMCF System I hereby certify that I electronically filed the foregoing with the Clerk of the Cour for the United States Court of Appeals for the Ninth Circuit by using the appellate CMlCF system on (date) I I. i certify that all participants in the case are registered CMlCF users and that service wil be accomplished by the appellate CMlECF system. Signatue (use "s/" format) ********************************************************************************* CERTIFICATE OF SERVICE When Not All Case Participants are Registered for the Appellate CMlECF System I hereby certify that I electronically filed the foregoing with the Clerk of the Cour for the United States Cour of Appeals for the Ninth Circuit by using the appellate CMlCF system on (date) I I . Oct 9,2009 Participants in the case who are registered CMlCF users wil be served by the appellate CMlCF system. I further certify that some of the participants in the case are not registered CMlCF users. I have mailed the foregoing document by First-Class Mail, postage prepaid, or have dispatched it to a third party commercial carrier for delivery within 3 calendar days to the following non-CMlCF participants: See attached Service List. Signatue (use "s/" format) Iisl Theane Evangelis Kapur SERVICE LIST Case Name: Perry, et al. v. Campaignfor California Familes, et al. Case No: U.S. Court of Appeals, Ninth Circuit, Case No. 09-16959 Matthew A. Coles ACLU - AMERICAN CIVIL LIBERTIES UNION FOUNDATION 2 Charleston St. New York, NY 10014 Thoedore H. Uno BOIES, SCHILLER & FLEXNER 333 Main S1. Aronk, NY 10504 Christopher Francis Stoll Alan L. Schlosser ACLU FOUNDATION OF NORTHERN CALIFORNIA INC. 39 Drumm S1. San Francisco, CA 94111 NATIONAL CENTER FOR LESBIAN RIGHTS 870 Market Street Suite 370 San Francisco, CA 94102 Jon W. Davidson LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. Ste. 1300 3325 Wilshire Blvd. Los Angeles, CA 900 1 0-1729 Ilona Margaret Turner NATIONAL CENTER FOR LESBIAN RIGHTS 870 Market Street Suite 370 San Francisco, CA 94102 Rena M. Lindevaldsen LIBERTY COUNSEL Suite 2775 P.O. Box 11108 Lynchburg, VA 24502-2272 Mathew D. Staver LIBERTY COUNSEL 2nd Floor 1055 Maitland Center Commons Maitland, FL 32751

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