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

Filing 379

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 Correspondence: Response to Court Request for Information. Date of service: 11/18/2011 [7971219] (CJC)

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Cooper & Kirk
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Charles J. Cooper
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November 18, 2011
ELECTRONICALLY FILED
Ms. Molly C. Dwyer
Clerk of Court
United States Court of Appeals
for the Ninth Circuit
James R. Browning U.S. Courthouse
95 Seventh Street
San Francisco, CA 94119-3939
Re:

Perry v. Brown, 10-16696 (Reinhardt, Hawkins, N.R. Smith)
(argued December 6, 2010)

Dear Ms. Dwyer:
On January 4, 2011, this Court requested that the Supreme Court of California
answer the following certified question:
Whether under Article II, Section 8 of the California Constitution,
or otherwise under California law, the official proponents of an initiative
measure possess either a particularized interest in the initiative’s validity
or the authority to assert the State’s interest in the initiative’s validity,
which would enable them to defend the constitutionality of the initiative
upon its adoption or appeal a judgment invalidating the initiative, when
the public officials charged with that duty refuse to do so.
Dkt. Entry 292 at 3 (ECF pagination). This Court instructed the parties to “notify the
Clerk of this Court within three days after the [Supreme Court of California] renders an
opinion.” Id. at 19.
On November 17, 2011, the Supreme Court of California issued a unanimous
opinion (attached as Exhibit A) answering “the question posed by the Ninth Circuit in the
affirmative.” Ex. A at 5. Specifically, that Court held that
when the public officials who ordinarily defend a challenged state law or
appeal a judgment invalidating the law decline to do so, under article II,

Ms. Molly C. Dwyer
November 18, 2011
Page 2 of 2
section 8 of the California Constitution and the relevant provisions of the
Elections Code, the official proponents of a voter-approved initiative
measure are authorized to assert the state’s interest in the initiative’s
validity, enabling the proponents to defend the constitutionality of the
initiative and to appeal a judgment invalidating the initiative.
Ex. A at 61; accord id. at 5, 23-24, 41, 43, 55; id. at 8 (Kennard, J., concurring). Because
it correctly determined that this “conclusion is sufficient to support an affirmative
response to the question posed by the Ninth Circuit,” the Supreme Court of California
found it unnecessary to “decide whether, under California law, the official proponents
also possess a particularized interest in a voter-approved initiative’s validity.” Id. at 24.
As demonstrated in Proponents’ previous briefing in this case, see Dkt. Entry 21
at 37-42 (ECF pagination); Dkt. Entry 243-1 at 14-17 (ECF pagination), and recognized
by this Court in its Certification Order:
If California does grant the official proponents of an initiative the
authority to represent the State’s interest in defending a voter-approved
initiative when public officials have declined to do so or to appeal a
judgment invalidating the initiative, then Proponents would also have
standing to appeal on behalf of the State.
Dkt. Entry 292 at 10 (ECF pagination). Because the decision of the Supreme Court of
California authoritatively establishes that California does grant official proponents this
authority, Proponents’ standing to maintain this appeal is now clear.
Respectfully submitted,
s/ Charles J. Cooper
Charles J. Cooper
Counsel for Defendant-IntervenorsAppellants Hollingsworth, Knight,
Gutierrez, Jansson, and
ProtectMarriage.com
cc:

All Counsel

Enclosure