Kristin Perry, et al v. Arnold Schwarzenegger, et al

Filing 262

Filed (ECF) Appellees Paul T. Katami, Kristin M. Perry, Sandra B. Stier and Jeffrey J. Zarrillo Correspondence: Plaintiffs-Appellees' objection to the allocation of time. Date of service: 11/17/2010 [7549484] (TO)

Kristin Perry, et al v. Arnold Schwarzenegger, et al

Doc. 262

November 17, 2010 Ms. Molly C. Dwyer Clerk of the Court United States Court of Appeals for the Ninth Circuit James R. Browning U.S. Courthouse San Francisco, CA 94119-3939 Re: Perry v. Schwarzenegger, Nos. 10-16696, 10-16751 Dear Ms. Dwyer:

Theodore B. Olson Direct: 202.955.8668 Fax: [phone] [e-mail] Client: T 36330-00001

Plaintiffs-Appellees ("Plaintiffs") have received the Court's November 15, 2010 Order regarding oral argument in the above-referenced matter. Pursuant to that Order, Plaintiffs respectfully advise the Court of their objection to the allocation of time set forth in that Order and propose re-allocation of argument time as set forth herein. The allocation of time set forth in the Court's November 15, 2010 Order combines the separate appeals brought by Proponents and Imperial County (which has to date never been a party to the underlying case), while dividing the argument into two hour-long sessions addressing standing and procedural issues first and the unconstitutionality of Proposition 8 second. This allocation leaves Plaintiffs, who brought this important constitutional challenge and whose counsel acted as lead counsel at all stages of the case, with only 15 minutes of a two-hour argument to address the merits of their claims and defend the judgment entered in their favor below. It gives Plaintiffs half the time to argue the merits that their opponents, the Proponents of Proposition 8, will enjoy. It also gives the City and County of San Francisco (the "City"), which was permitted to intervene in this case only for the expressly limited purpose of addressing its governmental interests implicated by Proposition 8, the same amount of time to argue the merits as Plaintiffs themselves. Lastly, it allocates roughly a quarter of the total argument time to Imperial County's appeal, which presents issues that are much more discrete and limited than the issues presented by the rest of the case. Rather than treat the two pending appeals together and divide the argument into equal sessions on standing and the merits, Plaintiffs respectfully submit that the importance of the merits issues in this case warrants treating the two appeals separately. Moreover, the Court can establish the amount of time to be spent on standing issues in connection with Proponents' appeal through its questions at oral argument. Plaintiffs therefore request that the Court begin the argument with Proponents' appeal (No. 10-16696), followed by Imperial County's appeal (No. 10-16751), and allot 50 minutes to each side on Proponents' appeal and 10 minutes to each side on Imperial County's appeal. Plaintiffs are prepared to cede five of the 50 minutes allocated to Proponents' appeal to the City, consistent with the limited

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Ms. Molly C. Dwyer November 17, 2010 Page 2 purpose of the City's intervention and the City's letter to this Court dated October 28, 2010, requesting at most five minutes of argument. Alternatively, should the Court not wish to depart from its plan to devote the first hour of argument to standing and procedural issues and the second hour of argument to the unconstitutionality of Proposition 8, Plaintiffs suggest that the Court adopt the proposal made by the City in its October 28, 2010 letter to Ms. Dwyer. In that letter, counsel for the City, Ms. Therese Stewart, stated that the City did not wish to take any time away from Plaintiffs' argument, but instead asked that it be permitted five additional minutes to address the limited issue on which it was permitted to intervene. Under this proposal, the merits portion of the oral argument would be divided as follows: 30 minutes for Proponents, 30 minutes for Plaintiffs, and five minutes for the City. Plaintiffs also would have no objection to the Court's affording Proponents an additional five minutes of argument time on the merits as requested in Mr. Cooper's letter to Ms. Dwyer dated November 9, 2010. Plaintiffs appreciate the Court's attention to this matter. Very truly yours, /s/ Theodore B. Olson Theodore B. Olson cc: All counsel via ECF

9th Circuit Case Number(s) 10-16696
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CERTIFICATE OF SERVICE When All Case Participants are Registered for the Appellate CM/ECF System
I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on (date) . I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system. Signature (use "s/" format) *********************************************************************************

CERTIFICATE OF SERVICE When Not All Case Participants are Registered for the Appellate CM/ECF System
I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on (date) . 11/17/2010 Participants in the case who are registered CM/ECF users will be served by the appellate CM/ECF system. I further certify that some of the participants in the case are not registered CM/ECF 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-CM/ECF participants: Please see attached service list.

Signature (use "s/" format)

/s/ Theodore B. Olson

SERVICE LIST

Thomas Brejcha THOMAS MORE SOCIETY 29 S. La Salle Street, Suite 440 Chicago, IL 60603 Von G. Keetch KIRTON & McCONKIE, PC Eagle Gate Tower 60 E. South Temple Salt Lake City, UT 84111 Jeffrey Mateer LIBERTY INSTITUTE 2001 W Plano Parkway, Suite 1600 Plano, TX 75075 Jeffrey Hunter Moon Anthony R. Picarello, Jr. Michael F. Moses UNITED STATES CATHOLIC CONFERENCE 3211 Fourth Street, N.E. Washington, DC 20017 Lincoln C. Oliphant COLUMBUS SCHOOL OF LAW The Catholic University of America 3600 John McCormack Road, NE Washington, DC 20064 Arthur Bailey, Jr. HAUSFELD LLP 44 Montgomery Street Suite 3400 San Francisco, CA 94104

Stuart J. Roth AMERICAN CENTER FOR LAW AND JUSTICE 201 Maryland Avenue, N.E. Washington, DC 20002 Anita L. Staver LIBERTY COUNSEL P.O. Box 540774 Orlando, FL 32854 Mathew D. Staver LIBERTY COUNSEL 1055 Maitland Center Commons 2nd Floor Maitland, FL 32751 James F. Sweeney SWEENEY & GREENE LLP 8001 Folsom Boulevard, Suite 101 Sacramento, CA 95826 M. Edward Whelan, III ETHICS AND PUBLIC POLICY CENTER 1730 M Street N.W., Suite 910 Washington, DC 20036 Suzanne B. Goldberg COLUMBIA UNIVERSITY LAW SCHOOL Sexuality and Gender Law Clinic 435 West 116th Street New York, NY 10027