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

Filing 387

Submitted (ECF) Supplemental brief for review. Submitted by Appellants Martin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight and ProtectMarriage.com - Yes on 8, A Project of California Renewal. Date of service: 12/02/2011. [7986765] (CJC)

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)
SUPPLEMENTAL BRIEF OF DEFENDANT-INTERVENORSAPPELLANTS
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

TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .................................................................................... ii
STATEMENT ............................................................................................................1
ARGUMENT .............................................................................................................2
CONCLUSION..........................................................................................................8

i

TABLE OF AUTHORITIES
Page

Cases

Arizonans for Official English v. Arizona, 520 U.S. 43 (1997).........................3, 5, 6
Building Indus. Ass’n v. City of Camarillo, 41 Cal. 3d 810 (1986) ..........................4
Diamond v. Charles, 476 U.S. 54 (1986) ..................................................................3
Don’t Bankrupt Washington Comm. v. Continental Illinois Nat’l Bank
& Trust Co., 460 U.S. 1077 (1983) ......................................................................7
In re Forsythe, 450 A.2d 499 (1982) .....................................................................4, 5
Karcher v. May, 484 U.S. 72 (1987) .....................................................................3, 4
Maine v. Taylor, 477 U.S. 131 (1986) .......................................................................2
Strauss v. Horton, 207 P.3d 48 (Cal. 2009)...............................................................4

ii

STATEMENT
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 3.1
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, based “upon the history
and purpose of the initiative provisions of the California Constitution and upon the
numerous California decisions that have uniformly permitted the official
proponents of initiative measures to appear as parties and defend the validity of
measures they have sponsored,” id. at 57, the Supreme Court of California 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
1

Citations to “Dkt. Entry ___” refer to the corresponding entries in this
Court’s docket in Case No. 10-16696. When specified, page numbers in such
citations refer to this Court’s ECF pagination, not the internal pagination of the
cited documents.
1

article II, section 8 of the California Constitution and the relevant
provisions of the Elections Code, the official proponents of a voterapproved 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; see also id. at 7-8 (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.
On November 18, 2011, this Court directed the parties to submit
supplemental briefs “discussing the effect on this case of the California Supreme
Court’s decision.” Dkt. Entry 377 at 2. Defendant-Intervenors-Appellants
Hollingsworth, Knight, Gutierrez, Jansson, and ProtectMarriage.com (collectively
“Proponents”) respectfully submit this supplemental brief in response to this
Court’s order.
ARGUMENT
Binding Supreme Court precedent holds that “a State clearly has a legitimate
interest in the continued enforceability” of its laws, Maine v. Taylor, 477 U.S. 131,
136-37 (1986), and thus “has standing to defend the constitutionality” of those
laws, both in the trial court and on appeal from a decision invalidating those laws,
2

Diamond v. Charles, 476 U.S. 54, 62 (1986); see also Dkt. Entry 292 at 9 (“The
State of California itself has an undisputed interest in the validity of its laws”).
The Supreme Court’s precedents also establish the unremarkable proposition that
state law determines who is authorized to assert this interest on behalf of the State.
See, e.g., Arizonans for Official English v. Arizona, 520 U.S. 43, 65 (1997);
Karcher v. May, 484 U.S. 72, 82 (1987); see also Dkt. Entry 292 at 10 (noting that
the “parties agree that Proponents’ standing . . . rises or falls” on Proponents’
“interest or authority” under California law) (internal quotations omitted). The
decision of the Supreme Court of California in this case confirms that Proponents
have “authority under state law,” Karcher, 484 U.S. at 82, to defend Proposition 8
“as agents of the people” of California “in lieu of public officials” who refuse to do
so, Arizonans, 520 U.S. at 65. Because Proponents are authorized by California
law to assert the State’s interest in defending the constitutionality of its laws—an
interest that is indisputably sufficient to confer appellate jurisdiction—they plainly
have standing to appeal the district court’s judgment invalidating Proposition 8.
In Karcher, the Supreme Court considered whether the President of the New
Jersey Senate and the Speaker of the New Jersey General Assembly “had authority
under state law to represent the State’s interest” by defending, in federal litigation,
a state statute when “neither the Attorney General nor the named defendants would
defend the statute.” 484 U.S. at 75, 82. The Court concluded that, “as a matter of

3

New Jersey law,” these individuals had authority to defend the statute, both in the
trial court and on appeal, because, in at least one other case, the “New Jersey
Supreme Court ha[d] granted applications of the Speaker of the General Assembly
and the President of the Senate to intervene as parties-respondent on behalf of the
legislature in defense of a legislative enactment.” Id. at 82 (citing In re Forsythe,
91 N.J. 141, 144, 450 A.2d 499, 500 (1982)); see also id. at 84 (White, J.,
concurring) (“we have now acknowledged that the New Jersey Legislature and its
authorized representative have the authority to defend the constitutionality of a
statute attacked in federal court”); Ex. A 15-18 (discussing Karcher).
Here also,
California courts have routinely permitted the official proponents of
an initiative to intervene or appear as real parties in interest to defend
a challenged voter-approved initiative measure in order “to guard the
people’s right to exercise initiative power” or, in other words, to
enable such proponents to assert the people’s, and hence the state’s,
interest in defending the validity of the initiative measure.
Ex. A at 3 (quoting Building Industry Ass’n v. City of Camarillo, 41 Cal. 3d 810,
822 (1986) (emphasis in original). Indeed, the California Supreme Court
previously allowed these Proponents—Appellants here—to intervene to defend
Proposition 8, the initiative at issue in this case, against an earlier state
constitutional challenge. See Strauss v. Horton, 207 P.3d 48, 69 (Cal. 2009); Order
of Nov. 19, 2008, Strauss, Nos. S168047, S168066, S168078 (Cal.) (ER 1617).
More important still, in response to this Court’s certified question, the Supreme
4

Court of California unambiguously confirmed that the official proponents of an
initiative measure “are authorized under California law to appear and assert the
state’s interest in the initiative’s validity and to appeal a judgment invalidating the
measure when the public officials who ordinarily defend the measure or appeal
such a judgment decline to do so.” Ex. A at 5.
Significantly, the New Jersey case on which the Supreme Court relied in
Karcher in finding that legislative officials had authority under New Jersey law to
represent the State’s interest in defending a challenged statute simply allowed the
legislative officials to intervene without any discussion of the basis for intervention
or the officials’ authority under New Jersey law. See In re Forsythe, 450 A.2d
499, 500 (N.J. 1982). Given the Supreme Court of California’s clear recognition
of Proponents’ authority to assert the State’s interest in the validity of its laws,
standing in this case follows a fortiori from Karcher.
Nothing in Arizonans for Official English v. Arizona, undermines either the
holding in Karcher or its clear application here. In dicta in Arizonans, the
Supreme Court discussed, but ultimately did “not definitively resolve[,] the issue”
of the standing of the principal sponsor of an Arizona ballot initiative to appeal a
decision striking down that measure. 520 U.S. at 66. Citing Karcher, the Court
explained that it had previously “recognized that state legislators have standing to
contest a decision holding a state statute unconstitutional if state law authorizes

5

legislators to represent the State’s interests.” Id. at 65. Unlike in Karcher,
however, the Court stated that it was “aware of no Arizona law appointing
initiative sponsors as agents of the people of Arizona to defend, in lieu of public
officials, the constitutionality of initiatives made law of the State.” Id. For this
reason, the Court expressed “grave doubts” about the standing of the Arizona
initiative sponsors to appeal. Id. at 66; see also Ex. A at 18-20 (discussing
Arizonans). Significantly, although the Supreme Court specifically directed the
Arizona initiative sponsors to brief the issue of their standing, see Arizonans, 520
U.S. at 64, their brief did not cite a single Arizona case on the question of state-law
authorization, Brief For Petitioners, Arizonans, No. 95-974, 1996 U.S. S. Ct. Briefs
LEXIS 333, at *67-77 (May 22, 1996).
Here, by contrast, the California courts have “routinely permitted the official
proponents of an initiative . . . to assert the people’s, and hence the state’s, interest
in defending the validity of the initiative measure.” Ex. A at 3 (emphasis in
original). And in response to this Court’s certified question, the Supreme Court of
California squarely held that official proponents of an initiative measure “are
authorized under California law to appear and assert the state’s interest in the
initiative’s validity and to appeal a judgment invalidating the measure when the
public officials who ordinarily defend the measure or appeal such a judgment

6

decline to do so.” Id. at 5. Thus, there can be no question that this case is
governed by the holding in Karcher, not by the dicta in Arizonans.
For similar reasons, Don’t Bankrupt Washington Committee v. Continental
Illinois National Bank & Trust Co., 460 U.S. 1077 (1983), does not control the
outcome here, as that case did not address whether California law authorizes
initiative proponents to defend the measures they sponsor. Indeed, neither the
Supreme Court’s summary ruling nor the papers submitted by the initiative
sponsors in that case suggested that Washington law permits sponsors to intervene
to defend initiatives they have sponsored as California law does, let alone that the
Supreme Court of Washington had authoritatively determined, as the Supreme
Court of California has here, that initiative sponsors have authority under state law
to represent the State’s interest in the validity of an voter-approved initiative when
the public officials charged with defending that initiative refuse to do so. To the
contrary, in its Jurisdictional Statement, the Don’t Bankrupt Washington
Committee described itself as merely “a citizens’ group that drafted and
campaigned for Initiative 394,” with no suggestion that it had any official status or
authority under Washington law. See Jurisdictional Statement in Don’t Bankrupt
Wash. Committee, No. 82-1445 (filed Feb. 25, 1983) at 3; see also Ex. A at 20 n.11
(discussing Don’t Bankrupt Wash. Committee).
*

*

7

*

In short, as this Court recognized 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 voterapproved 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. 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.
CONCLUSION
For the foregoing reasons, as well as those stated in our previous briefing in
this case, see Dkt. Entry 21 at 37-42; Dkt. Entry 243-1 at 14-17, this Court should
hold that Proponents have standing to appeal the judgment invalidating Proposition
8.
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
8

9th Circuit Case Number(s) 10-16696
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When Not All Case Participants are Registered for the Appellate CM/ECF System
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SERVICE LIST

Arthur N. Bailey, Jr., Esq.
HAUSFELD LLP
44 Montgomery Street, Suite 3400
San Francisco, California 94104

Anita L. Staver
LIBERTY COUNSEL
P.O. Box 540774
Orlando, FL 32854

Thomas Brejcha
THOMAS MORE SOCIETY
29 S. La Salle Street, Suite 440
Chicago, IL 60603

Mathew D. Staver
LIBERTY COUNSEL
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2nd Floor
Maitland, FL 32751

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

Michael F. Moses
UNITED STATES CATHOLIC
CONFERENCE
3211 Fourth Street, N.E.
Washington, D.C. 20017