Kristin Perry, et al v. Arnold Schwarzenegger, et al
Filing
357
Filed (ECF) Appellees Paul T. Katami, Kristin M. Perry, Sandra B. Stier and Jeffrey J. Zarrillo Correspondence: Courtesy copy of Plaintiffs-Respondents’ Reply to Amicus Curiae Briefs. Date of service: 05/09/2011 [7745748] (EAM)
May 9, 2011
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
Enrique A. Monagas
Direct: 415.393.8353
Fax: 415.374.8403
EMonagas@gibsondunn.com
Client: T 36330-00001
Re: Perry v. Brown, No. 10-16696
Dear Ms. Dwyer:
Enclosed please find a courtesy copy of Plaintiffs-Respondents’ Reply to Amicus Curiae
Briefs, filed today in the Supreme Court of California, Case No. S189476.
Very truly yours,
/s/ Enrique A. Monagas
Enrique A. Monagas
Enclosure
cc: All counsel via ECF
No. S189476
IN THE SUPREME COURT OF CALIFORNIA
KRISTIN M. PERRY et al., Plaintiffs and Respondents,
CITY AND COUNTY OF SAN FRANCISCO, Plaintiff, Intervenor and Respondent,
v.
EDMUND G. BROWN, JR., as Governor, etc. et al., Defendants,
DENNIS HOLLINGSWORTH et al., Defendants, Intervenors and Appellants.
Question Certified from the U.S. Court of Appeals for the Ninth Circuit
The Honorable Stephen R. Reinhardt, Michael Daly Hawkins,
and N. Randy Smith, Circuit Judges, Presiding
Ninth Circuit Case No. 10-16696
PLAINTIFFS-RESPONDENTS’ REPLY TO
AMICUS CURIAE BRIEFS
DAVID BOIES*
BOIES, SCHILLER & FLEXNER LLP
333 Main Street
Armonk, NY 10504
(914) 749-8200
JEREMY M. GOLDMAN, SBN 218888
THEODORE H. UNO, SBN 248603
BOIES, SCHILLER & FLEXNER LLP
1999 Harrison Street, Suite 900
Oakland, CA 94612
(510) 874-1000
* Pro hac vice
THEODORE B. OLSON, SBN 38137
Counsel of Record
MATTHEW D. MCGILL*
AMIR C. TAYRANI, SBN 229609
GIBSON, DUNN & CRUTCHER LLP
1050 Connecticut Avenue, N.W.
Washington, D.C. 20036
(202) 955-8500
THEODORE J. BOUTROUS, JR., SBN 132099
CHRISTOPHER D. DUSSEAULT, SBN 177557
ENRIQUE A. MONAGAS, SBN 239087
GIBSON, DUNN & CRUTCHER LLP
333 South Grand Avenue
Los Angeles, CA 90071
(213) 229-7000
Attorneys for Plaintiffs and Respondents
Kristin M. Perry, Sandra B. Stier, Paul T. Katami, and Jeffrey J. Zarrillo
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES.........................................................................ii
REPLY TO AMICUS CURIAE BRIEFS.......................................................1
CONCLUSION .............................................................................................6
i
TABLE OF AUTHORITIES
CASES
Citizens for Jobs & the Economy v. County of Orange
(2002) 94 Cal.App.4th 1311 ....................................................................4
Reycraft v. Lee
(2009) 177 Cal.App.4th 1211 ..................................................................5
W. Watersheds Project v. Kraayenbrink
(9th Cir. 2011) 632 F.3d 472 ...................................................................4
STATUTES
Code Civ. Proc., § 902.1 ...............................................................................5
CONSTITUTIONAL PROVISIONS
Cal. Const. art. V, § 13 ..................................................................................3
U.S. Const. art. III .................................................................................3, 4, 5
ii
REPLY TO AMICUS CURIAE BRIEFS
Nothing in the amicus curiae briefs filed in support of proponents
alleviates the fundamental flaw in proponents’ effort to defend Proposition
8 on appeal: The California Constitution grants the Attorney General the
exclusive authority to ascertain and articulate the position of the State of
California in the Judiciary and to represent the State’s interest in judicial
proceedings. From a jurisprudential standpoint, the interest of initiative
proponents in the constitutionality of an already-enacted ballot initiative is
indistinguishable from that of any other Californian who supported, and
voted in favor of, the measure. Indeed, the amicus curiae briefs supporting
proponents are most remarkable for what they do not say. None of them
identifies a case in which initiative proponents have been permitted to
represent the interest of the State—as opposed to their own interest—in the
constitutionality of an initiative. Similarly, none of the briefs identifies any
provision of California law that affords initiative proponents a
particularized interest in the constitutionality of a ballot initiative that
distinguishes the proponents from the millions of other Californians who
supported the measure.
Proponents’ amici instead fall back on the same undisguised and
unpersuasive policy arguments—and the same inapposite case citations—as
proponents themselves. They argue, for example, that failing to grant
proponents the right to represent the interest of the State in the
1
constitutionality of Proposition 8 “would undermine the initiative process”
and grant elected officials an “effective veto over initiatives.” Judicial
Watch Br. at p. 2 (capitalization altered); Center for Constitutional
Jurisprudence Br. at p. 12. But, despite the decision of the Attorney
General and Governor that it was not in the interest of the State of
California to defend Proposition 8, the measure was afforded a full-throated
(albeit substantively anemic) defense by proponents themselves during a
twelve-day bench trial. The Attorney General and Governor did not—and
could not—exercise a unilateral veto over Proposition 8, but they have
determined that the interest of California and its citizens is best served by
accepting the thorough, well-grounded, and overwhelmingly persuasive
decision of the trial court striking down Proposition 8 as an unconstitutional
denial to Californians of due process and equal protection. They have
nevertheless enforced and continue to enforce Proposition 8 statewide
without regard to their own views on its wisdom or constitutionality. When
the enforcement of this discriminatory constitutional amendment comes to
an end, it will be because the federal courts have deemed it constitutionally
infirm after a full and fair trial on the merits, not because the Attorney
General or Governor “vetoed” it.
The fact that proponents lack the authority to continue their defense
of Proposition 8 on appeal is a direct result of the decision of the People of
California to afford the Attorney General the authority to represent the
2
State’s interest in litigation (Cal. Const. art. V, § 13), as well as the decision
of the Framers of the United States Constitution to impose certain
limitations on the jurisdiction of federal courts. U.S. Const. art. III. While
the initiative power is undeniably an important constitutional right, it does
not displace the other provisions of the California Constitution—including
those that prescribe the procedures for the representation of the State’s
interest in litigation. See Att’y Gen. Br. at p. 10 (“The Constitution,
statutes, and decisions of this Court lead to the conclusion that proponents
have no right to assert the state’s interest in defending the validity of an
adopted initiative measure . . . .”). The initiative power enables citizens to
initiate legislation and to bring such proposals to fruition, but it does not
displace the vital fundamental authority of the State’s constitutional
officials. And, it certainly cannot in any way modify, diminish, or override
the jurisdictional requirements of Article III.
Like proponents themselves, proponents’ amici attempt to
manufacture Article III standing by emphasizing decisions in which ballot
initiative proponents have been permitted to intervene to defend the
constitutionality of already-enacted initiatives (as proponents were
permitted to do here). See, e.g., Center for Constitutional Jurisprudence Br.
at pp. 15-16. As discussed in plaintiffs’ answering brief, however, none of
those decisions permitted proponents to represent the interest of the State—
as opposed to their own interest in the initiative’s constitutionality.
3
Plaintiffs-Respondents’ Answering Br. at p. 14; see also W. Watersheds
Project v. Kraayenbrink (9th Cir. 2011) 632 F.3d 472, 482 (“An interest
strong enough to permit intervention is not necessarily a sufficient basis to
pursue an appeal abandoned by the other parties.”).
Moreover, none of those decisions affords initiative proponents a
privileged status under state law that distinguishes them from other
supporters of a ballot initiative in a manner sufficient to create a
“particularized” interest for Article III purposes. Like other persons who
have an interest in the validity of a ballot initiative, proponents have been
permitted to intervene in state court litigation when, in the exercise of its
discretion, the court deems intervention appropriate. See, e.g., Citizens for
Jobs & the Economy v. County of Orange (2002) 94 Cal.App.4th 1311,
1316 & fn.2 (trial court granted intervention by both proponents of a ballot
initiative and other groups that supported the measure). Ballot initiative
proponents are thus no different from other supporters of a ballot initiative
in possessing the ability to intervene in initiative-related litigation where
the trial court deems intervention to be appropriate.
Coincidentally, the California Senate recently rejected a bill that
would have authorized ballot initiative proponents to intervene as of right
in all state court litigation challenging the constitutionality of a ballot
initiative. See Senate Bill 5 (proposing to add § 387.5 to the Civil
Procedure Code, which would have provided that “[t]he proponent of a
4
state initiative statute or constitutional amendment that has been approved
by the voters shall have the right to intervene and participate in any court
action challenging the constitutionality of that initiative statute or
constitutional amendment”), available at http://leginfo.ca.gov/pub/1112/bill/sen/sb_0001-0050/sb_5_bill_20110412_amended_sen_v98.html.
Accordingly, even if a state legislature could modify state law to grant a
litigant an interest that is sufficiently “particularized” to create Article III
standing—which it plainly cannot (see Plaintiffs-Respondents’ Answering
Br. at p. 19)—the California Legislature has squarely rejected any effort to
afford procedural rights to initiative proponents that are different from
those possessed by every other Californian who supported, donated money
to, and voted for the measure. In contrast, the California Legislature has
granted the Attorney General the “right to intervene and participate in any
appeal taken” from a decision invalidating a state law. Code Civ. Proc.,
§ 902.1 (emphasis added).*
*
The Center for Constitutional Jurisprudence also relies on cases in
which initiative proponents appealed decisions regarding the validity of a
ballot initiative, and asserts that these cases are instructive because “the
relevant California standing rules parallel those applied by the federal
courts under Article III.” Center for Constitutional Jurisprudence Br. at p.
17. In fact, California law is clear that, “[i]n assessing standing, California
courts are not bound by the ‘case or controversy’ requirement of article III
of the United States Constitution.” Reycraft v. Lee (2009) 177 Cal.App.4th
1211, 1217 (emphasis added; internal quotation marks omitted). In any
event, in none of the cited cases did the court address the initiative
[Footnote continued on next page]
5
*
*
*
Proposition 8 was robustly defended in a twelve-day trial. After a
full and fair trial on the merits, a federal court concluded that the measure is
irrational, discriminatory, and unconstitutional. Under the California
Constitution, the Governor and Attorney General-not private
individuals-possess the authority to decide whether Californians should
continue to suffer irreparable constitutional injury during a prolonged
appeal. Proponents lack the authority under state law to displace and
override the considered judgment of these elected officials that Proposition
8 does not warrant further defense.
CONCLUSION
The Court should answer the Certified Question in the negative.
DATED: May 9, 2011
GIBSON, DUNN & CRUTCHER LLP
By:
I~ (3. ~ /~
THEODOREB. OLSON
Attorneys for Plaintiffs and Respondents
KRISTIN M. PERRY, SANDRA B.
STIER, PAUL T. KATAMI,
AND JEFFREY J. ZARRILLO
[F ootnote continued from previous page]
proponents' standing to appeal. See Plaintiffs-Respondents' Answering Br.
at p. 19.
6
CERTIFICATION OF WORD COUNT
Pursuant to Rule 8.204(c)(1), California Rules of Court, the
undersigned hereby certifies that Plaintiffs-Respondents' Reply to Amicus
Curiae Briefs contains 1,340 words, excluding tables and this certificate,
according to the word count generated by the computer program to produce
this brief.
By:
-[~a3.
c'JkM.. /
l&-
THEODORE B. OLSON
Attorneys for Plaintiffs and Respondents
KRISTIN M. PERRY, SANDRA B.
STIER, PAUL T. KATAMI,
AND JEFFREY J. ZARRILLO
7
CERTIFICATE OF SERVICE
I declare that I am, and was at the time of service hereinafter mentioned, at
least 18 years of age and not a party to the above-entitled action. I am employed
in the City and County of San Francisco. My business address is 555 Mission
Street, Suite 3000, San Francisco, California 94105. On May 9, 2011, I caused to
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PLAINTIFFS-RESPONDENTS’ REPLY TO AMICUS CURIAE BRIEFS
by placing a true copy thereof in an envelope addressed to each of the persons
named below at the address shown, in the following manner:
SEE SERVICE LIST BELOW
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Counsel
Charles J. Cooper
David H. Thompson
Howard C. Nielson, Jr.
Peter A. Patterson
Cooper & Kirk, PLLC
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Washington, DC 20036
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Attorneys For
Attorneys for DefendantsIntervenors-Appellants
Andrew P. Pugno
Law Offices of Andrew P. Pugno
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Folsom, CA 95630
andrew@pugnolaw.com
Attorneys for DefendantsIntervenors-Appellants
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James A. Campbell
Alliance Defense Fund
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Attorneys for DefendantsIntervenors-Appellants
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Law Office of Terry L. Thompson
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Attorneys for Defendant-Intervenor
Hak-Shing William Tam
Dennis J. Herrera
Therese Stewart
Christine Van Aken
San Francisco City Attorney’s Office
City Hall 234
One Dr. Carlton B. Goodlett Place
San Francisco, CA 94102-4682
therese.stewart@sfgov.org
christine.van.aken@sfgov.org
Attorneys for Plaintiff-IntervenorAppellee City and County of San
Francisco
Tamar Pachter
Daniel Powell
Deputy Attorney General
California Department of Justice
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102
tamar.pachter@doj.ca.gov
Attorneys for Defendant Edmund G.
Brown, Jr., in his official capacity as
Attorney General of California
Kenneth C. Mennemeier, Jr
Andrew W. Stroud
Mennemeier, Glassman & Stroud LLP
980 9th Street, Suite 1700
Sacramento, CA 95814
kcm@mgslaw.com
stroud@mgslaw.com
Attorneys for Defendants Arnold
Schwarzenegger, in his official
capacity as Governor of California;
Mark B. Horton, in his official
capacity as Director of the California
Department of Public Health & State
Registrar of Vital Statistics; and
Linette Scott, in her official capacity
as Deputy Director of Health
Information & Strategic Planning for
the California Department of Public
Health (the “Administration
Defendants”)
Claude Franklin Kolm
Office of County Counsel
1221 Oak Street, Suite 450
Oakland, CA 94612-4296
claude.kolm@acgov.org
Attorneys for Defendant Patrick
O’Connell, in his official capacity as
Clerk-Recorder for the County of
Alameda
Judy W. Whitehurst
Principal Deputy County Counsel
Los Angeles County Counsel
648 Kenneth Hahn Hall of
Administration
500 West Temple Street, 6th Floor
Los Angeles, CA 90012-2713
jwhitehurst@counsel.lacounty.gov
Attorneys for Defendant Dean C.
Logan, in his official capacity as
Registrar-Recorder/County Clerk for
the County of Los Angeles
Office of the Governor
Attn: Legal Department
State Capitol Building
Sacramento, CA 95814
(VIA U.S. MAIL ONLY)
Attorneys for the Governor
Edmund G. Brown, Jr.
Office of the Attorney General
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San Francisco, CA 94102-7004
(VIA U.S. MAIL ONLY)
Attorneys for the Attorney General
Kamala D. Harris
Ms. Molly C. Dwyer
Clerk of the Court
United States Court of Appeals
for the Ninth Circuit
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(VIA ECF ONLY)
United States Court of Appeals for
the Ninth Circuit
Harold Johnson
Damien M. Schiff
Pacific Legal Foundation
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Attorneys for Amicus Curiae
Pacific Legal Foundation, et al.
Cynthia Tobisman
Greines Martin Stein & Richland, LLP
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Los Angeles, CA 90036
(VIA U.S. MAIL ONLY)
Attorneys for Amicus Curiae League
of Women Voters of California
Eric A. Isaacson
Coughlin Stoia et al. LLP
655 W. Broadway, Suite 1900
San Diego, CA 92101
(VIA U.S. MAIL ONLY)
Attorneys for Amicus Curiae
California Faith for Equality, et al.
Miguel A. Marquez
Office of the County Counsel
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San Jose, CA 95110
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Attorneys for Amicus Curiae
County of Santa Clara, et al.
James J. Lynch
Attorney at Law
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Attorneys for Amicus Curiae
Margie Reilly
Laura W. Brill
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1725
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Attorneys for Amicus Curiae
Jon Eisenberg and Laurie Levenson
David C. Codell
Caldwell Leslie & Proctor, PC
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Los Angeles, CA 90017
(VIA U.S. MAIL ONLY)
Attorneys for Amicus Curiae
Equality California, National Center
for Lesbian Rights and Lambda Legal
Defense and Education Fund, Inc.
Jon W. Davidson
Lambda Legal Defense & Education
Fund, Inc.
3325 Wilshire Boulevard, Suite 1300
Los Angeles, CA 90010
(VIA U.S. MAIL ONLY)
Attorneys for Amicus Curiae
Equality California, National Center
for Lesbian Rights and Lambda Legal
Defense and Education Fund, Inc.
Shannon P. Minter
National Center for Lesbian Rights
870 Market Street, Suite 370
San Francisco, CA 94102
(VIA U.S. MAIL ONLY)
Attorneys for Amicus Curiae
Equality California, National Center
for Lesbian Rights and Lambda Legal
Defense and Education Fund, Inc.
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Judicial Watch, Inc.
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Washington, DC 20024
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Judicial Watch, Inc.
Kevin T. Snider
Pacific Justice Institute
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Joshua Beckley
John C. Eastman
Center for Constitutional Jurisprudence
c/o Chapman University School of Law
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Orange, CA 92866
(VIA U.S. MAIL ONLY)
Attorneys for Amicus Curiae Center
for Constitutional Jurisprudence
I certify under penalty of perjury that the foregoing is true and correct,
that the foregoing document(s) were printed on recycled paper, and that this
Certificate of Service was executed by me on May 9, 2011, at San Francisco,
California.
mg ChIOU
9th Circuit Case Number(s) 10-16696
NOTE: To secure your input, you should print the filled-in form to PDF (File > Print > PDF Printer/Creator).
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CERTIFICATE OF SERVICE
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When Not All Case Participants are Registered for the Appellate CM/ECF System
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May 9, 2011
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/s/ Enrique A. Monagas
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