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

Filing 389

Submitted (ECF) Supplemental brief for review. Submitted by Appellees Paul T. Katami, Kristin M. Perry, Sandra B. Stier and Jeffrey J. Zarrillo. Date of service: 12/02/2011. [7987189] (TO)

No. 10-16696

IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
_________________________
KRISTIN M. PERRY, et al.,
Plaintiffs-Appellees,
v.
EDMUND G. BROWN, JR., et al.,
Defendants,
and
DENNIS HOLLINGSWORTH, et al.,
Defendants-Intervenors-Appellants.
_________________________
On Appeal From The United States District Court
For The Northern District Of California
No. CV-09-02292 JW (Honorable James Ware)
____________________________________________________
SUPPLEMENTAL BRIEF FOR APPELLEES
____________________________________________________
DAVID BOIES
JEREMY M. GOLDMAN
BOIES, SCHILLER & FLEXNER LLP
333 Main Street
Armonk, New York 10504
[phone]

THEODORE B. OLSON
Counsel of Record
MATTHEW D. MCGILL
AMIR C. TAYRANI
GIBSON, DUNN & CRUTCHER LLP
1050 Connecticut Avenue, N.W.
Washington, D.C. 20036
[phone]
THEODORE J. BOUTROUS, JR.
CHRISTOPHER D. DUSSEAULT
THEANE EVANGELIS KAPUR
ENRIQUE A. MONAGAS
JOSHUA S. LIPSHUTZ
GIBSON, DUNN & CRUTCHER LLP
333 South Grand Avenue
Los Angeles, CA 90071
[phone]

Attorneys for Plaintiffs-Appellees
Kristin M. Perry, Sandra B. Stier, Paul T. Katami, and Jeffrey J. Zarrillo

TABLE OF CONTENTS
Page
ARGUMENT ............................................................................................................. 1
CONCLUSION .......................................................................................................... 9

i

TABLE OF AUTHORITIES
Page(s)
Cases
Arizonans for Official English v. Arizona,
520 U.S. 43 (1997) ........................................................................................ 4, 6, 7
Beckley v. Schwarzenegger,
No. S186072 (Cal. Sept. 8, 2010)...........................................................................8
Don’t Bankrupt Wash. Comm. v. Cont’l Ill. Nat’l Bank & Trust Co. of
Chi., 460 U.S. 1077 (1983).....................................................................................6
Karcher v. May,
484 U.S. 72 (1987) .................................................................................................7
Kowalski v. Tesmer,
543 U.S. 125 (2004) ...................................................................................... 6, 8, 9
Lujan v. Defenders of Wildlife,
504 U.S. 555 (1992) ...............................................................................................2
Perry v. Brown,
No. S189476, 2011 WL 5578873 (Cal. Nov. 17, 2011) ....................... 1, 2, 3, 7, 8
Phillips Petroleum Co. v. Shutts,
472 U.S. 797 (1985) ...............................................................................................4
Powers v. Ohio,
499 U.S. 400 (1991) ...........................................................................................3, 6
Raines v. Byrd,
521 U.S. 811 (1997) ...................................................................................... 1, 2, 4
Singleton v. Wulff,
428 U.S. 106 (1976) ...............................................................................................7
United States v. Payner,
447 U.S. 727 (1980) ...............................................................................................3
United States Dep’t of Labor v. Triplett,
494 U.S. 715 (1990) ...............................................................................................4
Vt. Agency of Natural Res. v. United States ex rel. Stevens,
529 U.S. 765 (2000) ...........................................................................................2, 8
ii

Warth v. Seldin,
422 U.S. 490 (1975) ...........................................................................................2, 4

iii

Plaintiffs-Appellees respectfully submit this brief in response to the Court‟s
Order of November 18, 2011, directing the parties to file briefs discussing the
effect on this case of the California Supreme Court‟s decision in Perry v. Brown,
No. S189476, 2011 WL 5578873 (Cal. Nov. 17, 2011). Nothing in that decision
alters the fact that Proponents lack standing to pursue this appeal. Even though
Proponents possess the right under California law to assert the State’s interest in
the validity of Proposition 8, their standing under Article III depends on their
ability to establish that the invalidation of Proposition 8 would cause them a
“personal, particularized, [and] concrete” injury. Raines v. Byrd, 521 U.S. 811,
820 (1997) (emphasis added). In contrast to Plaintiffs—who are harmed each day
that Proposition 8 remains on the books and continues to deny them the right to
marry—Proponents are unable to meet that fundamental constitutional
requirement.
ARGUMENT
In response to this Court‟s Certified Question, the California Supreme Court
concluded that, “[i]n a postelection challenge to a voter-approved initiative, the
official proponents of the initiative 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

1

measure or appeal such a judgment decline to do so.” Perry, 2011 WL 5578873, at
*3. In so ruling, the court declined to “decide whether the official proponents of an
initiative measure possess a particularized interest in the initiative‟s validity once
the measure has been approved by the voters.” Id. at *12.
The California Supreme Court‟s decision does not—and cannot—alter
Proponents‟ inability to meet the “irreducible constitutional minimum”
requirements of standing established by Article III of the United States
Constitution. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). To satisfy
Article III, a party must establish, among other things, that it has suffered an
“injury” that is “personal, particularized, concrete, and otherwise judicially
cognizable.” Raines, 521 U.S. at 820; see also Lujan, 504 U.S. at 560. In other
words, the “„Art[icle] III judicial power exists only to redress or otherwise to
protect against injury to the complaining party.‟” Vt. Agency of Natural Res. v.
United States ex rel. Stevens, 529 U.S. 765, 771 (2000) (quoting Warth v. Seldin,
422 U.S. 490, 499 (1975)) (emphasis in Stevens).
The California Supreme Court‟s decision did not establish that Proponents
stand in the shoes of the State defendants in this litigation, or otherwise are
themselves arms of the State. Indeed, the California Supreme Court went out of its
way to make clear that its “determination that the official proponents of an

2

initiative are authorized to assert the State‟s interest in the validity of the initiative
measure when public officials have declined to defend the measure . . . does not
mean that the proponents become de facto public officials or possess any official
authority to enact laws or regulations or even to directly enforce the initiative
measure in question.” Perry, 2011 WL 5578873, at *25 (emphasis added). Thus,
if Proponents have standing to pursue this appeal based on the California Supreme
Court‟s decision, their standing can only be based on their right under California
law to vicariously represent the interests of the State.
The U.S. Supreme Court has made clear, however, that the “personal” injury
requirement established by Article III applies even where a litigant is authorized to
assert the rights of a third party. The Court “ha[s] recognized the right of litigants
to bring actions on behalf of third parties” only where “[t]he litigant . . . ha[s]
suffered an „injury in fact,‟ thus giving him or her a „sufficiently concrete interest‟
in the outcome of the issue in dispute.” Powers v. Ohio, 499 U.S. 400, 410-11
(1991); see also United States v. Payner, 447 U.S. 727, 731-32 (1980) (criminal
defendant “lacks standing under the Fourth Amendment to suppress . . . documents
illegally seized from” a third party “unless [the court] finds that an unlawful search
or seizure violated the defendant‟s own constitutional rights”) (emphasis added).

3

Similarly, “[s]tanding to defend on appeal in the place of an original
defendant . . . demands that the litigant possess a direct stake in the outcome”
(Arizonans for Official English v. Arizona, 520 U.S. 43, 64 (1997) (emphasis
added; internal quotation marks omitted)), which cannot be satisfied by the
invocation of another party‟s interests. See, e.g., United States Dep’t of Labor v.
Triplett, 494 U.S. 715, 720 (1990) (“a litigant must assert his own legal rights and
interests, and cannot rest his claim to relief on the legal rights or interests of third
parties”) (emphasis added; internal quotation marks omitted); Warth, 422 U.S. at
499 (same). Accordingly, Proponents cannot rely on the injury that the State
would suffer from the invalidation of Proposition 8—and their right under state
law to vicariously represent the State‟s interest in the constitutionality of that
provision—to demonstrate that they would suffer the requisite “personal,
particularized, [and] concrete” injury from the invalidation of this state enactment.
Raines, 521 U.S. at 820. If they could, then States would be free to open the
federal courthouse doors to any private individual authorized under state law to
represent the interests of the State—in contravention of the settled principle that
“[s]tanding to sue in any Article III court is . . . a federal question which does not
depend on the party‟s prior standing in state court.” Phillips Petroleum Co. v.
Shutts, 472 U.S. 797, 804 (1985).

4

Proponents would not suffer any personalized injury as a result of the
invalidation of Proposition 8, and thus are unable to satisfy the requirements of
Article III, even if their right under state law to represent the interests of the State
is taken into account. Indeed, the district court found that Proponents “have failed
to articulate even one specific harm they may suffer as a consequence of the
injunction” against the enforcement of Proposition 8, ER 7, and Proponents have
conceded in this Court that it is not their position “that any individual‟s existing
marriage will be directly affected” by the “adoption of same-sex marriage.”
Proponents‟ Reply Br., No. 11-16577, at 16 n.4.; see also ER 44 (Proponents‟
counsel responding “I don‟t know” when asked by the district court to identify
what harms would be suffered by opposite-sex married couples if gay and lesbian
couples could marry).
Proponents‟ only purported “personal” injury caused by the district court‟s
invalidation of Proposition 8 is premised on their role as the official sponsors of
the ballot initiative during the election campaign that culminated in the initiative‟s
enactment. But, in this regard, Proponents are no different for Article III purposes
from any of the millions of other Californians who voted in favor of Proposition 8
and who expended time and money campaigning for the initiative. The U.S.
Supreme Court has already determined that status as an initiative proponent—no

5

matter the amount of time and money devoted to securing a measure‟s
enactment—is insufficient to confer Article III standing on the proponents to
defend the measure on appeal where the State itself refuses to do so. See Don’t
Bankrupt Wash. Comm. v. Cont’l Ill. Nat’l Bank & Trust Co. of Chi., 460 U.S.
1077 (1983) (summarily dismissing, for lack of standing, an appeal by an initiative
proponent from a decision invalidating the initiative). Thus, while it is clear that
Proponents feel strongly about the continued enforcement of Proposition 8, that
“interest shared generally with the public at large . . . will not do” to afford
Proponents standing to pursue this appeal; “[t]he decision to seek review is not to
be placed in the hands of concerned bystanders . . . who would seize it as a vehicle
for the vindication of value interests.” Arizonans, 520 U.S. at 64-65 (internal
quotation marks omitted); see also id. at 66 (expressing “grave doubts” whether
initiative proponents have standing to defend an initiative on appeal).
Moreover, even if Proponents could satisfy the Article III injury-in-fact
requirement based on their authority to represent the interests of the State, they
would still be required to make “two additional showings” to demonstrate their
entitlement to “third-party standing”: “a „close‟ relationship with the person who
possesses the right” and a “„hindrance‟ to the possessor‟s ability to protect his own
interests.” Kowalski v. Tesmer, 543 U.S. 125, 130 (2004) (quoting Powers, 499

6

U.S. at 411); see also Singleton v. Wulff, 428 U.S. 106, 113 (1976) (federal courts
“must hesitate before resolving a controversy, even one within their constitutional
power to resolve, on the basis of the rights of third persons”). Proponents cannot
meet either of those requirements (nor have they attempted to do so at any point
during this appeal).
First, Proponents are unable to demonstrate the requisite “„close‟
relationship” with the State because, unlike the state legislators in Karcher v. May,
484 U.S. 72 (1987), who were permitted to represent New Jersey‟s interest in the
validity of a challenged law (id. at 82), the proponents of a ballot initiative “are not
elected representatives” of the State but, instead, are private citizens without any
official position in state government. Arizonans, 520 U.S. at 65; see also Perry,
2011 WL 5578873, at *26 (“official proponents of an initiative measure are not
public officials”). And, while Proponents purport to be representing the State‟s
own interest in the validity of Proposition 8, the State itself has no right to control
Proponents‟ litigation strategy or to compel them to terminate their defense of that
controversial measure. Similarly, the California Supreme Court suggested that
Proponents‟ authority under state law to represent the State‟s interests in this
litigation “does not mean that any monetary liability incurred as a result of the
proponents‟ actions”—such as attorneys‟ fees obligations—“should or must be

7

borne by the state.” Id. Proponents‟ asserted right to litigate this appeal free from
any oversight by the State—and evidently absent any ability to bind the State based
on their litigating positions—is fundamentally at odds with the type of “„close‟
relationship” necessary to support third-party standing. Cf. Stevens, 529 U.S. at
772 (holding that a relator pursuing a False Claims Act suit is not an agent of the
government because, among other things, the Act “prohibits the Government from
settling the suit over the relator‟s objection without a judicial determination of
„fair[ness]‟”) (alteration in original).
Second, there is no “hindrance” to the State of California‟s “ability to protect
[its] own interests” in the validity of Proposition 8. Kowalski, 543 U.S. at 130.
The Governor and Attorney General of the State were both named as defendants in
this suit and were free to defend the validity of Proposition 8 at trial and on appeal.
Both officials ultimately decided that it was not in the best interests of the State to
defend that discriminatory, unconstitutional measure—a decision that was well
within the discretion afforded them under California law. See Beckley v.
Schwarzenegger, No. S186072 (Cal. Sept. 8, 2010) (denying a petition for a writ of
mandamus seeking to compel the Governor and Attorney General to appeal the
district court‟s decision invalidating Proposition 8). In light of the Governor‟s and
Attorney General‟s status as defendants in this litigation—which afforded them a

8

full opportunity to defend Proposition 8—there is no reason to authorize
Proponents to assert for themselves the State‟s interest in the validity of that
enactment. See Kowalski, 543 U.S. at 131 (holding that an indigent criminal
defendant was not hindered in his ability to challenge a state law denying him
appointed counsel on appeal because he “ha[d] open avenues to argue that denial
deprives him of his constitutional rights”).
*

*

*

Permitting Proponents to appeal the district court‟s decision invalidating
Proposition 8 would disregard Supreme Court precedent, dilute Article III‟s injuryin-fact requirement, and empower private litigants to second-guess States‟
litigating decisions. Because the California Supreme Court‟s decision cannot
override controlling U.S. Supreme Court precedent or displace settled
constitutional principles, the Court should dismiss this appeal for lack of
jurisdiction.
CONCLUSION
For the foregoing reasons, as well as those set forth in Plaintiffs‟ Answering
Brief, the Court should dismiss this appeal.

9

Dated: December 2, 2011
/s/ Theodore B. Olson
DAVID BOIES
JEREMY M. GOLDMAN
BOIES, SCHILLER & FLEXNER LLP
333 Main Street
Armonk, NY 10504
[phone]

THEODORE B. OLSON
Counsel of Record
MATTHEW D. MCGILL
AMIR C. TAYRANI
GIBSON, DUNN & CRUTCHER LLP
1050 Connecticut Avenue, N.W.
Washington, D.C. 20036
[phone]
THEODORE J. BOUTROUS, JR.
CHRISTOPHER D. DUSSEAULT
THEANE EVANGELIS KAPUR
ENRIQUE A. MONAGAS
JOSHUA S. LIPSHUTZ
GIBSON, DUNN & CRUTCHER LLP
333 South Grand Avenue
Los Angeles, CA 90071
[phone]

Attorneys for Plaintiffs-Appellees
Kristin M. Perry, Sandra B. Stier, Paul T. Katami, and Jeffrey J. Zarrillo

10

9th Circuit Case Number(s) 10-16696
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