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

Filing 378

Filed (ECF) Appellants Martin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight and ProtectMarriage.com - Yes on 8, A Project of California Renewal Motion to consolidate cases 10-16696 11-16577. Date of service: 11/18/2011. [7971200] (CJC)

NO. 10-16696, NO. 11-16577
NO. 10-16696 ARGUED DECEMBER 6, 2010
(CIRCUIT JUDGES STEPHEN REINHARDT, MICHAEL HAWKINS, & N.R. SMITH)
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KRISTIN PERRY, et al.,
Plaintiffs-Appellees,
v.
EDMUND G. BROWN, Jr., et al.,
Defendants,
and
DENNIS HOLLINGSWORTH, et al.,
Defendant-Intervenors-Appellants.
On Appeal from United States District Court for the Northern District of California
Civil Case No. 09-CV-2292 JW (Honorable James Ware)
DEFENDANT-INTERVENORS-APPELLANTS’ MOTION TO
CONSOLIDATE
Andrew P. Pugno
LAW OFFICES OF ANDREW P. PUGNO
101 Parkshore Drive, Suite 100
Folsom, California 95630
[phone]; [phone] Fax
Brian W. Raum
James A. Campbell
ALLIANCE DEFENSE FUND
15100 North 90th Street
Scottsdale, Arizona 85260
[phone]; [phone] Fax

Charles J. Cooper
David H. Thompson
Howard C. Nielson, Jr.
Peter A. Patterson
COOPER AND KIRK, PLLC
1523 New Hampshire Ave., N.W.
Washington, D.C. 20036
[phone]; [phone] Fax

Attorneys for Defendant-Intervenors-Appellants Hollingsworth, Knight, Gutierrez,
Jansson, and ProtectMarriage.com

Defendant-Intervenors-Appellants Hollingsworth, Knight, Gutierrez,
Jansson, and ProtectMarriage.com (collectively, “Proponents”) respectively move
this Court to consolidate Case No. 10-16696 and Case No. 11-16577, so that the
latter appeal may be decided prior to, or simultaneous with, the former.
BACKGROUND
On August 12, 2010, the district court below entered judgment permanently
enjoining defendants from enforcing Proposition 8, an initiative constitutional
amendment providing that “[o]nly marriage between a man and a woman is valid
or recognized in California.” CAL. CONST. art. I, § 7.5. See Doc. No. 728.1
Proponents’ appeal of that judgment, Case No. 10-16696, is currently
pending before this court. Oral argument was held on December 6, 2010.
Following argument, this Court certified a question to the California Supreme
Court related to Proponents’ standing to maintain their appeal of the district court’s
judgment and stayed further proceedings in this Court “pending final action by the
Supreme Court of California.” Case No. 10-16696, Docket Entry 292 at 19. The

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References to “Doc. No.” are to district court’s docket entries, while
references to “Docket Entry” are to this Court’s docket entries in Case No. 1016696 or Case No. 11-16577, as specified in the text. Page numbers in such
citations refer to the courts’ ECF pagination.
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California Supreme Court accepted the certification request and issued an opinion
answering the certified question just yesterday.
Former Chief Judge Vaughn Walker, the district court judge who presided
over the trial and entered judgment in this matter, retired in February, 2011. On
April 6, 2011, Judge Walker disclosed to the press that he has been in a same-sex
relationship for more than 10 years. See Dan Levine, Gay judge never thought to
drop marriage case, Reuters, Apr. 6, 2011, available at
http://www.reuters.com/article/2011/04/06/us-gaymarriage-judgeidUSTRE7356TA20110406 (last visited Nov. 17, 2011). On April 25, shortly after
learning of this revelation, Proponents filed a motion in the district court pursuant
to FED. R. CIV. P. 60(b) and 62.1, arguing that the judgment below should be
vacated because former Chief Judge Walker was disqualified from sitting on this
matter under 28 U.S.C. §§ 455(a) & (b)(4). See Doc. No. 768. On June 14, the
district court, Chief Judge Ware presiding, denied Proponents’ motion. See Doc.
No. 797. Briefing on Proponents’ appeal from that ruling, Case No. 11-16577, is
now complete, with the filing of today’s reply brief.
Counsel for Proponents contacted counsel for the other parties to these
appeals by email on November 16, 2011, regarding those parties’ positions on this

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motion. Neither counsel for Plaintiffs nor counsel for Plaintiff-Intervenor City and
County of San Francisco has responded.
ARGUMENT
As the facts recounted above demonstrate, Case No. 10-16696 and Case No.
11-16577 both seek to overturn the same district court judgment, the former on the
merits, the latter on the ground that the presiding judge was disqualified from
sitting on the case. Accordingly, in their filings submitted in Case No. 11-16577,
Proponents have repeatedly identified Case No. 10-16696 as a related case, see
Case No. 11-16577, Docket Entry 2 at 2, Docket Entry 9 at 65; this Court’s docket
sheet for Case No. 11-16577 lists Case No. 10-16696 both as a “companion” case
and as a “related” case; and this Court’s docket sheet for Case No. 10-16696 lists
Case No. 11-16577 as a “companion” case.
In their recently filed response brief in Case No. 11-16577, PlaintiffsAppellees Perry et al. and Appellee-Intervenor City and County of San Francisco
stated that because “Proponents’ ‘original appeal [of that same judgment] is still
pending,’ see No. 10-16696, this Court should ‘consolidate the proceedings.’ ”
Docket Entry 14 at 11 (quoting Stone v. INS, 514 U.S. 386, 401 (1995) (alterations
in Plaintiffs-Appellees’ Brief). For the reasons stated below, Proponents agree.

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1.

Ample authority makes clear that consolidation is procedurally proper

in circumstances such as those presented here. As the Supreme Court explained in
Stone:
A litigant faced with an unfavorable district court judgment must
appeal that judgment within the time allotted by Federal Rule of
Appellate Procedure 4, whether or not the litigant first files a Rule
60(b) motion . . . . Either before or after filing his appeal, the litigant
may also file a Rule 60(b) motion for relief with the district court.
The denial of the motion is appealable as a separate final order, and if
the original appeal is still pending it would seem that the court of
appeals can consolidate the proceedings.
514 U.S. 386, 401 (1995); see also Wright & Miller, 11 Fed. Prac. & Proc. Civ. §
2873 (“[d]uring the pendency of an appeal . . . the district court may deny the [Rule
60(b)] motion . . . . This allows a new appeal from the denial of the motion and
often the appellate court can consider that appeal together with the appeal from the
original judgment.”); Ray v. Pinnacle Health Hospitals, Inc., Nos. 09-4508, 103571, 2010 WL 4704455, at *3 (3d Cir. Nov. 22, 2010) (“The appeal from
summary judgment and the appeal from the denial of the Rule 62.1 motion to alter
judgment are now joined before this Court.”).
2.

Proponents respectfully submit that consolidating Proponents’ appeal

from the denial of the motion to vacate with their appeal from the district court’s
judgment on the merits will serve judicial economy and the interests of justice. As
an initial matter, the panel assigned to the merits appeal is by now familiar with the
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proceedings leading up to the district court’s judgment on the merits, aspects of
which are relevant to Proponents’ motion to vacate the judgment. See Case No.
11-16577, Docket Entry 9 at 40-43, 59-61. It is accordingly appropriate that the
issues presented by the two appeals be considered and decided by the same panel.
Furthermore, a favorable ruling on Proponents’ motion to vacate the judgment
would obviate the need for this Court to decide the constitutional questions
presented by the district court’s decision invalidating Proposition 8. See
Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347 (1936) (Brandeis, J.,
concurring) (“Court will not pass upon a constitutional question although properly
presented by the record, if there is also present some other ground upon which the
case may be disposed of”). Indeed, if this Court determines that Judge Walker’s
ruling on the constitutionality of Proposition 8 must be vacated, there will be no
final judgment to review in Case No. 10-16696. Finally, because briefing is
complete in Case No. 11-16577 and the California Supreme Court has just
yesterday issued an opinion on the certified question in Case No. 10-16696,
consolidation need not result in any undue delay in the resolution of either appeal.

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CONCLUSION
For the foregoing reasons, Proponents respectfully request that this Court
consolidate Case No. 10-16696 and Case No. 11-16577, so that the latter appeal
may be decided prior to, or simultaneous with, the former.

Dated: November 18, 2011

Respectfully submitted,

s/ Charles J. Cooper
Charles J. Cooper
David H. Thompson
Howard C. Nielson, Jr.
Peter A. Patterson
COOPER AND KIRK, PLLC
1523 New Hampshire Ave., N.W.
Washington, D.C. 20036
[phone]; [phone] Fax

Andrew P. Pugno
LAW OFFICES OF ANDREW P. PUGNO
101 Parkshore Drive, Suite 100
Folsom, California 95630
[phone]; [phone] Fax
Brian W. Raum
James A. Campbell
ALLIANCE DEFENSE FUND
15100 North 90th Street
Scottsdale, Arizona 85260
[phone]; [phone] Fax

Attorneys for Defendant-Intervenors-Appellants Hollingsworth, Knight, Gutierrez,
Jansson, and ProtectMarriage.com

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9th Circuit Case Number(s) 10-16696, 11-16577
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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)
.
Nov 18, 2011
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.
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s/ Charles J. Cooper

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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
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.
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