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

Filing 400

Filed (ECF) Chuck Storey Motion to intervene. Date of service: 02/21/2012. [8075660] [10-16696, 11-16577] (RHT)

Nos. 10-16696 and 11-16577
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
______________________________________________________
KRISTIN M. PERRY, et al.
Plaintiffs-Appellees,
v.
ARNOLD SCHWARZENEGGER, et al.
Defendants.
______________________________________________________
ON APPEAL FROM UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
CIVIL CASE NO. 09-cv-2292 VRW (Honorable Vaughn R. Walker)
______________________________________________________
MOTION TO INTERVENE AS DEFENDANT-APPELLANT

___________________________________________________________
ADVOCATES FOR FAITH AND FREEDOM
Robert H. Tyler, CA Bar No. 179572
Jennifer L. Monk, CA Bar No. 245512
24910 Las Brisas Road, Suite 110
Murrieta, CA 92562
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
Attorneys for Movant-Appallents and Proposed Defendant-Appellant
PROPOSED DEFENDANT-APPELLANT, CHUCK STOREY

TABLE OF CONTENTS
STATEMENT OF FACTS ........................................................................................1
ARGUMENT .............................................................................................................2
I.

This Court Has Broad Authority To Allow The Intervention of
Imperial County Clerk Chuck Storey ..............................................................3

II.

Intervention is Necessary to Protect The Interests of Justice and
Promote Judicial Efficiency.............................................................................4
A.

Clerk Storey Has Timely Filed This Motion.........................................6

B.

Clerk Storey Has a Significantly Protectable Interest in
the Subject of this Action ......................................................................8

C.

The Court’s Ruling Might Impair Clerk Storey’s
Significantly Protectable Interest ........................................................14

D.

The Existing Parties Will Not Adequately Represent
Clerk Storey’s Interests .......................................................................14

CONCLUSION........................................................................................................16

i

TABLE OF AUTHORITIES
CASES
Alameda Newspapers, Inc. v. City of Oakland,
95 F.3d 1406 (9th Cir. 1996) ..................................................................................7
American Association of People with Disabilities v. Herrera,
257 F.R.D. 236 (D.N.M. 2008)...................................................................... 11, 12
Anonymous,
1 F.Cas. 996, 998 (No. 444) (CC Mass. 1812) .......................................................3
Associated Builders and Contractors, Saginaw Valley Area Chapter v. Perry,
115 F.3d 386 (6th Cir. 1997) ..................................................................................7
Automobile Workers v. Scofield,
382 U.S. 205 (1965)................................................................................................3
Bogaert v. Land,
2008 WL 2952006 (W.D. Mich. July 29, 2009)...................................................12
California Credit Union League v. City of Anaheim,
190 F.3d 997 (9th Cir. 1990) ..................................................................................3
Conaway v. Deane,
932 A.2d 571 (Md. 2007) .......................................................................................9
Forest Conservation Council v. U.S. Forest Serv.,
66 F.3d 1489 (9th Cir.1995) ..................................................................................5
ii 

Greene v. United States,
996 F.2d 973 (9th Cir.1993) ...................................................................................5
Hernandez v. Robles,
855 N.E.2d 1 (N.Y. 2006).......................................................................................9
Hunt v. Cromartie,
525 U.S. 946 (1998)................................................................................................4
In re Marriage Cases,
183 P.3d 384 (Cal. 2008) ........................................................................................9
Legal Aid Soc’y of Alameda County v. Brennan,
608 F.2d 1319 (9th Cir.1979) .................................................................................7
Lockyer v. City & County of San Francisco,
95 P.3d 459 (Cal. 2004) ............................................................................. 9, 10, 11
Newman-Green, Inc. v. Alfonzo-Larrain,
490 U.S. 826, 834 (1989)........................................................................................3
Nw. Forest Res. Council v. Glickman,
82 F.3d 825 (9th Cir. 1996) ....................................................................................6
Park & Tilford v. Schults,
160 F.2d 984 (2d Cir. 1947) ...................................................................................7
Pellegrino v. Nesbit,
203 F.2d 463 (9th Cir. 1953) ..................................................................................7
iii 

People ex rel. Anderson v. Durick,
20 Cal. 94 (Cal. 1862)...........................................................................................10
Portland Audobon Soc’y v. Hodel,
866 F.2d 302 (9th Cir. 1989) ................................................................................14
Richardson v. Ramirez,
418 U.S. 24 (1974)......................................................................................... 12, 13
Smelt v. County of Orange,
447 F.3d 673 (9th Cir. 2006) ..................................................................................9
Sw. Ctr. for Biological Diversity v. Berg,
268 F.3d 810 (9th Cir. 2001) ........................................................... 5, 8, 14, 15, 16
United Airlines, Inc. v. McDonald,
432 U.S. 385 (1977)................................................................................................6
United States v. City of Los Angeles,
288 F.3d 391 (9th Cir. 2002) .................................................................................5
Utah Assoc. of Counties v. Clinton,
255 F.3d 1246 (10th Cir. 2001) ............................................................................12
W. Watersheds Project v. Kraayenbrink,
620 F.3d 1187 (9th Cir. 2010) ..............................................................................13
Yniguez v. Arizona,
939 F.2d 727 (9th Cir.1991) ...................................................................................6
iv 

STATUTES
Cal. Family Code § 350 .........................................................................................4, 9
Cal. Family Code § 350(a).......................................................................................11
Cal. Family Code § 354 .............................................................................................9
Cal. Family Code § 359(a).......................................................................................11
Cal. Family Code § 400 .........................................................................................4, 9
Cal. Family Code § 401(a).............................................................................. 4, 8, 11
Cal. Family Code § 511(a).........................................................................................9
Cal. Gov’t Code § 24000 .........................................................................................10
Cal. Health & Safety Code § 102100 ......................................................................10
Cal. Health & Safety Code § 102200 ......................................................................10
Cal. Health & Safety Code § 102205 ......................................................................10
Cal. Health & Safety Code § 102230 ......................................................................10
Cal. Health & Safety Code § 102285 ................................................................. 9, 10
Cal. Health & Safety Code § 102295 ........................................................................9
Cal. Health & Safety Code § 103175 ......................................................................10
Fed. R. Civ. P. 1 .........................................................................................................3
Fed. R. Civ. P. 21 .......................................................................................................3
Fed. R. Civ. P. 24 ............................................................................................ 3, 4, 14
Fed R. Civ. P. 24(a)..................................................................................................12
v 

Fed. R. Civ. P. 24(a)(2)..........................................................................................3, 4
Fed. R. Civ. P. 24(b)(2)..........................................................................................3, 4
Gov’t Code § 24100...................................................................................................4
Gov’t Code § 24101...................................................................................................4

vi 

County Clerk Chuck Storey (“Clerk Storey”) respectfully moves this Court
to permit Clerk Storey to intervene as Defendant-Appellant. As grounds for this
Motion, Clerk Storey relies upon his declaration and the following facts and legal
authorities.
STATEMENT OF FACTS
The County of Imperial, Board of Supervisors, and Deputy Clerk Vargas
filed a motion to intervene prior to trial in the district court. After trial, the district
court denied intervention and the parties appealed the denial of intervention.
(Ninth Cir. Docket No. 65.)

On December 6, 2010, this Court heard oral

arguments and subsequently issued an Opinion on January 4, 2011, affirming the
district court’s denial as to all proposed intervenors. Id. On January 3, 2011, the
recently elected County Clerk of the County of Imperial, Chuck Storey, was sworn
into office. (Declaration of Chuck Storey ¶ 1.) Shortly thereafter, he learned of
the status of this present litigation, engaged this firm and sought to intervene in the
Ninth Circuit appeal, case number 10-16751. (Declaration of Chuck Storey ¶ 4.)
On February 7, 2012 this Court denied Clerk Storey’s motion as untimely as to
case number 10-16751. (Ninth Cir. Case No. 10-16751, Docket No. 85) The panel
also “consider[ed] [Clerk Storey’s] motion as a motion to intervene in the
companion appeal, No. 10-16696, and den[ied] it” with respect to that case for the
“same reason.” Id. Clerk Storey intended to seek rehearing of the Court’s order but

1

was informed by the Ninth Circuit clerk’s office that, to do so, he would be
required to file this new Motion to Intervene in case Nos. 10-16696 and 11-16577.
Therefore, out of an abundance of caution, Clerk Storey filed this Motion to
intervene in case nos. 10-16696 and 11-16577 in order to file a petition for
rehearing for those same case numbers.
ARGUMENT
Applicable legal precedent is clear that this Court has broad authority to
intervene in this matter as an exercise of its appellate power. Intervention is
necessary here to promote judicial efficiency and assure effective appellate review
of a question of significant constitutional concern. As County Clerk, the proposed
intervenor’s job will be significantly impacted by any decision regarding the
constitutionality of Proposition 8, a voter approved state constitutional amendment.
In January, 2011, Clerk Storey took an oath of office to uphold the California
Constitution, inclusive of Proposition 8. As such, he has a protectable interest and
has timely sought to intervene in this matter. Clerk Storey’s intervention is both
appropriate and necessary to ensure that this Court has jurisdiction to review the
merits of this case and provide much needed judicial guidance to Clerk Storey and
all County Clerk’s across the state regarding their official duties in light of the
panel’s opinion declaring Proposition 8 unconstitutional.

2 

I.

This Court Has Broad Authority To Allow The Intervention of Imperial
County Clerk Chuck Storey
This Court has broad authority to allow intervention in a case before it.

Even though the Federal Rules of Appellate Procedure do not expressly
contemplate motions to intervene on appeal, the Supreme Court has held that
granting motions to add or join a party “represent[s] the exercise of an appellate
power that long predates the enactment of the Federal Rules.” Newman-Green,
Inc. v. Alfonzo-Larrain, 490 U.S. 826, 834 (1989) (holding that the policy relating
to Fed. R. Civ. P. 21 is applicable in the appellate courts). Indeed, this appellate
power has its roots in “the course of common law.” Id. (citing Anonymous, 1
F.Cas. 996, 998 (No. 444) (CC Mass. 1812)).
Although the Federal Rules of Civil Procedure only apply to the district
courts (see Fed. R. Civ. P. 1), Rule 24 may provide guidance to the appellate courts
in deciding whether to allow new parties to enter a case. California Credit Union
League v. City of Anaheim, 190 F.3d 997, 998-99 (9th Cir. 1990); Automobile
Workers v. Scofield, 382 U.S. 205, 217 n.10 (1965) (“[T]he policies underlying
intervention may be applicable in appellate courts. Under Rule 24(a)(2) or Rule
24(b)(2), we think the charged party would be entitled to intervene.”).
Rule 24(a)(2) allows parties to intervene as of right when an applicant has an
interest in the litigation that is not adequately protected by existing parties. Rule
3 

24(b)(2) gives courts discretion to allow intervention when the applicant’s claim
has a common question of law or fact within the main action, so long as there is no
undue prejudice to the parties. In short, Rule 24 reflects a broad and flexible
policy of adding a party or allowing intervention whenever necessitated by the
interest of justice and judicial efficiency.
Accordingly, the Supreme Court has regularly granted motions to intervene.
See, e.g., Hunt v. Cromartie, 525 U.S. 946 (1998). And, as set forth below, the
interests of justice and judicial efficiency strongly favor allowing Clerk Storey to
become a party in this case.
II.

Intervention is Necessary to Protect The Interests of Justice and
Promote Judicial Efficiency
County clerks are designated by state law as “commissioner[s] of civil

marriages.” (Cal. Family Code § 401(a) ; Cal. Gov’t Code §§ 24100, 24101.)
Such clerks issue marriage licenses (Cal. Family Code § 350), and perform civil
marriages (id. § 400). Clerk Storey was recently elected as County Clerk for the
County of Imperial.
Four requirements must be satisfied to intervene as a matter of right under
Fed. R. Civ. P. 24(a)(2) and, as a result, are instructive in the appellate context:
(1) the application for intervention must be timely; (2) the applicant must have a
“significantly protectable” interest relating to the subject of the action; (3) the
4 

disposition of the action might, as a practical matter, impair the applicant’s ability
to protect that interest; and (4) the applicant’s interest might be inadequately
represented by the existing parties. Sw. Ctr. for Biological Diversity v. Berg, 268
F.3d 810, 817-18 (9th Cir. 2001). Quoting Justice Reinhardt, the panel in United
States v. City of Los Angeles, 288 F.3d 391, (9th Cir. 2002) affirmed that each of
these requirements must be evaluated liberally in favor of intervention:
A liberal policy in favor of intervention serves both efficient resolution of
issues and broadened access to the courts. By allowing parties with a practical
interest in the outcome of a particular case to intervene, [the court] often prevent[s]
or simplif[ies] future litigation involving related interests; at the same time, [the
court] allow[s] an additional interested party to express its views . . . .
City of Los Angeles, 288 F.3d at 397 (quoting Greene v. United States, 996 F.2d
973, 980 (9th Cir.1993) (Reinhardt, J., dissenting)); See also, Forest Conservation
Council v. U.S. Forest Serv., 66 F.3d 1489, 1496 n. 8 (9th Cir.1995).
Clerk Storey satisfies all four requirements. Moreover, the injunctive relief
granted by the district court and the Ninth Circuit panel will directly affect Clerk
Storey’s performance of his legal duties. Further, as this Court noted in the
January 4, 2011, Opinion affirming the district court’s denial of Deputy Clerk
Vargas’ Motion to Intervene, “[w]ere Imperial County’s elected county clerk the
applicant for intervention, this argument might have merit. A County Clerk is not
5 

before us, however, so we need not, and do not, decide now whether a County
Clerk would have been permitted to intervene under the circumstances present in
this case.” (Ninth Cir. Case No. 10-16751, Docket No. 65, p. 7.) The elected
County Clerk of Imperial County is seeking to intervene in this matter in order to
assure uniformity within the laws and guidance as to his legal duties in light of the
injunctive ruling issued by the district court and the Ninth Circuit panel.
A.

Clerk Storey Has Timely Filed This Motion

Three criteria determine the timeliness of a motion to intervene: (1) the
stage of the proceedings; (2) the reason for delay, if any, in moving to intervene;
and (3) prejudice to the parties. Nw. Forest Res. Council v. Glickman, 82 F.3d
825, 836-37 (9th Cir. 1996). Clerk Storey was sworn in as the Clerk of Imperial
County on January 3, 2011, and sought to intervene in this matter shortly after this
Court’s prior ruling holding that Deputy Clerk Vargas lacked a sufficient interest
to intervene without the presence of the County Clerk. This Court’s panel ruling
denying intervention to Deputy Clerk Vargas was issued within days of Clerk
Storey taking the oath of office. Clerk Storey promptly engaged this firm to file
the initial Motion to Intervene upon taking office.
Courts frequently permit intervention even after trial for the purpose of
appealing an adverse ruling. See, e.g., United Airlines, Inc. v. McDonald, 432 U.S.
385 (1977); Yniguez v. Arizona, 939 F.2d 727 (9th Cir.1991); Legal Aid Soc’y of
6 

Alameda County v. Brennan, 608 F.2d 1319, 1328 (9th Cir.1979). As the Ninth
Circuit has explained, “[i]ntervention should be allowed even after a final
judgment where it is necessary to preserve some right which cannot otherwise be
protected [such as] the right to appeal from the judgments entered on the merits by
the District Court.” Pellegrino v. Nesbit, 203 F.2d 463, 465-66 (9th Cir. 1953)
(citations omitted); see also Alameda Newspapers, Inc. v. City of Oakland, 95 F.3d
1406, 1412 n.8 (9th Cir. 1996) (“the Guild’s right to intervene [postjudgment] for
the purpose of appealing is well established”); Park & Tilford v. Schults, 160 F.2d
984 (2d Cir. 1947) (post-judgment motion to intervene was timely where purpose
was to appeal adverse ruling). Allowing intervention to facilitate appellate review
is especially appropriate where a substantial question, such as the constitutionality
of Proposition 8, might otherwise be left unsettled. See Associated Builders and
Contractors, Saginaw Valley Area Chapter v. Perry, 115 F.3d 386, 391 (6th Cir.
1997) (“The existence of a substantial unsettled question of law is a proper
circumstance for allowing intervention and appeal. [citation omitted] Where such
uncertainty exists, one whose interests have been adversely affected by a district
court’s decision should be entitled to receive the protection of appellate review.”)
(internal quotation marks omitted). Once Clerk Storey learned of the effect Judge
Walker’s ruling would have on his office, he promptly sought legal advice and
decided to seek intervention in this case in order to appeal Judge Walker’s ruling.
7 

This Motion is simply an extension of Clerk Storey’s desire to intervene to settle
any uncertainty as to the constitutionality of Proposition 8 and any uncertainty as
to the effect of Judge Walker’s ruling on the Imperial County Clerk’s Office.
Finally, allowing intervention will not cause delay or prejudice the parties.
Case Nos. 10-16696 and 11-16577 are currently pending in this Court and the
record is complete. Clerk Storey simply intends to proceed in this case while on
appeal and has no reason to cause delay in the proceedings.
B.

Clerk Storey Has a Significantly Protectable Interest in the
Subject of this Action

Whether Clerk Storey has a significantly protectable interest is a “practical,
threshold inquiry,” and “[n]o specific legal or equitable interest need be
established.” Berg, 268 F.3d at 818 (quotations omitted). “It is generally enough
that the interest asserted is protectable under some law, and that there is a
relationship between the legally protected interest and the claims at issue.” Id.
(quotations and alterations omitted).
Here, the district court’s injunction, affirmed by the Ninth Circuit panel, will
directly impact Clerk Storey’s official duties and create a corresponding
protectable interest. County clerks have the practical, day-to-day responsibilities
relating to new marriages.

They are designated as “commissioner[s] of civil

marriages.” (Cal. Family Code § 401(a).) They issue marriage licenses (id. §
8 

350), perform civil marriages (id. § 400), and maintain vital marriage records (id. §
511(a); see also California Health & Safety Code §§ 102285, 102295). See also
Declaration of Chuck Storey, ¶ 1. County clerks are ultimately responsible “to
ensure that the statutory requirements for obtaining a marriage license are
satisfied.” Lockyer v. City & County of San Francisco, 95 P.3d 459, 469 (Cal.
2004) (citing Cal. Family Code § 354).
Their direct interest in the same-sex marriage debate itself is longstanding,
dating at least to the 1970s when the County Clerks’ Association successfully
petitioned the Legislature to amend the law to clarify that marriage is only between
a man and a woman. See In re Marriage Cases, 183 P.3d 384, 409 (Cal. 2008).
Further, County clerks are frequently defendants in same-sex marriage litigation.
See, e.g., Smelt v. County of Orange, 447 F.3d 673 (9th Cir. 2006) (lawsuit against
Orange County clerk for injunction and declaratory relief that California law
prohibiting same-sex marriage was unconstitutional); Lockyer, 95 P.3d 459 (Cal.
2004) (county clerks sued for issuing same-sex marriage licenses); Conaway v.
Deane, 932 A.2d 571 (Md. 2007) (same-sex couples sue county clerks for refusing
to issue marriage licenses); Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006)
(same).
County clerks are appropriate defendants because they have the
responsibility to ensure that California’s marriage laws are followed within each
9 

county. Lockyer, 95 P.3d at 469. Plaintiffs previously argued that Deputy Clerk
Vargas is bound by the district court’s injunction because the State Registrar is
bound, but she has no independent interest in this case because she is merely a
ministerial subordinate of the State Registrar.

As was true of Deputy Clerk

Vargas, Clerk Storey’s duties are far from ministerial, and the Plaintiffs arguments
flatly contradicts California law—the State Registrar has no supervisory authority
over county clerks or responsibility for issuing marriage licenses.

The State

Registrar of Vital Statistics is a record-keeper. His job is to prepare forms and
keep records of births and marriages. 1 The local registrar’s duties also relate to
record keeping. 2 The State Registrar has supervisory authority over local registrars

1

State law requires that “[e]ach live birth, fetal death, and marriage that occurs in
the state shall be registered as provided in this part on the prescribed certificate
forms.” Cal. Health & Safety Code § 102100. The State Registrar’s job is to
prepare the forms and keep these records. Id. §§ 102200, 102230; see also id. §
102205 (“State Registrar shall prepare and issue detailed instructions as may be
required to procure the uniform observance of [the vital records statutes] and
maintenance of a satisfactory system of registration”). Importantly, detailed
instructions about what the marriage license form should contain are provided by
statute. Id. § 103175. Plaintiffs do not allege that they were denied a license
because of the form.
2

“The county recorder is the local registrar of marriages and shall perform all the
duties of the local registrar of marriages.” Cal. Health & Safety Code § 102285.
The offices of county clerk and county recorder are separate. See Cal. Gov’t Code
§ 24000. In some counties, the County Board of Supervisors can, by ordinance,
consolidate the offices of the county clerk and county recorder. Id. § 24300.
Nevertheless, “[t]he offices of county clerk and of county recorder are distinct
offices, though they may be held by the same person ….”People ex rel. Anderson
v. Durick, 20 Cal. 94, 1862 WL 508 *2 (Cal. 1862). While a county recorder may
10 

to ensure “uniform compliance” with statutory record-keeping duties.

Id. §

102180. But neither the State Registrar nor local registrars have any authority over
the actual issuance of a marriage license.
In contrast, “the county clerk is designated as a commissioner of civil
marriages.”

Cal. Fam. Code § 401(a) (emphasis added).

“Before entering a

marriage, … parties shall first obtain a marriage license from a county clerk.” Cal.
Fam. Code § 350(a) (emphasis added); see also id. § 359(a) (“applicants to be
married shall first appear together in person before the county clerk to obtain a
marriage license”). “[T]he responsibility [is] on the county clerk to ensure that the
statutory requirements for obtaining a marriage license are satisfied.” Lockyer, 95
P.3d at 468-69 (emphasis added).
As a practical matter, the outcome of this action will affect Clerk Storey’s
ability to comply with Proposition 8 and directly impact the performance of the
duties set forth above. As in American Association of People with Disabilities v.
Herrera, 257 F.R.D. 236 (D.N.M. 2008), the Clerks’ interest in the effective
performance of their duties and an injunction impacting those duties— either from
a federal district or appellate court or the California Superior Court seeking to
enforce an order from the Attorney General or other state officials—justify

be responsible to carry out the record keeping functions with the oversight of the
State Registrar, the State Registrar has no supervisory authority over the functions
of the County Clerk.
11 

intervention. In Herrera, which involved a challenge to a New Mexico state voterregistration law, the court permitted a county clerk to intervene:
If the injunction was issued, Coakley [the county clerk] would be
prohibited from performing certain electoral duties that New Mexico
law requires. This direct effect on what Coakley can and cannot do as
a county clerk is the direct and substantial effect that is recognized as
a legally protectable interest under rule 24(a).
Id. at 256 (citing Utah Assoc. of Counties v. Clinton, 255 F.3d 1246 (10th Cir.
2001)); see also Bogaert v. Land, 2008 WL 2952006 (W.D. Mich. July 29, 2009)
(county clerks permitted to intervene where plaintiffs sought injunction that would
change clerks’ obligations in administering a recall election).
Clerk Storey’s proposed intervention is also supported by the holding in
Richardson v. Ramirez, 418 U.S. 24 (1974). There, ex-felons sued three county
election officials, challenging California’s constitutional provision prohibiting exfelons from voting. When all three officials indicated that they would allow the
ex-felons to register and vote, essentially mooting the dispute, and after it appeared
that the Secretary of State would not be contesting the claims, the County Clerk of
Mendocino County filed a complaint in intervention, alleging that the suit was
collusive. The California Supreme Court ordered that the clerk be added as a party
defendant. She then became the defendant that appealed the action to the United
States Supreme Court, which upheld the law. Rejecting Article III concerns, the
Supreme Court opined that, without the opportunity to appeal, the intervening clerk
12 

and all other county clerks in the state would have been “permanently bound” by a
decision of the California Supreme Court on a matter of federal constitutional law.
Id. at 35. Similar reasoning applies here and Clerk Storey has a protectable interest
in this action.
The injunctive relief ordered by the district court, which was affirmed by the
Ninth Circuit panel, would directly affect the Clerk’s performance of his legal
duties and, as a result, he has a protectable interest. See, e.g., Declaration of Chuck
Storey, ¶ 3. The injunction issued by the district court prohibits all relevant state
officials from enforcing Proposition 8 and, ultimately, purports to require them to
issue such orders as may be necessary to ensure that all county clerks across
California issue marriage licenses to same-sex couples. (Dist. Ct. Docket No. 708
p. 138; No. 709, p. 6 and p. 9; No. 728.) Although this Court recently left the
question undecided, it recognized that a clerk may have standing because being
bound by a judgment may be a “concrete and particularized injury” sufficient to
allow a county clerk standing in this case. (Ninth Cir. Docket No. 65, p. 8) (citing
W. Watersheds Project v. Kraayenbrink, 620 F.3d 1187, 1196 (9th Cir. 2010).)
The breadth of injunctive relief granted by the panel alone gives Clerk Storey a
direct interest as it will impact the performance of his official duties sufficient to
warrant intervention. See Portland Audobon Soc’y v. Hodel, 866 F.2d 302, 309

13 

(9th Cir. 1989) (where plaintiff sought injunction, “the governmental bodies
charged with compliance can be the only defendants”).
C.

The Court’s Ruling Might Impair Clerk Storey’s Significantly
Protectable Interest

As Berg held, the Ninth Circuit “follow[s] the guidance of Rule 24 advisory
committee notes that state that ‘[i]f an absentee would be substantially affected in a
practical sense by the determination made in an action, he should, as a general rule,
be entitled to intervene.” Berg, 268 F.3d at 822 (quoting Fed. R. Civ. P. 24
advisory committee’s notes). As demonstrated above, the outcome of this action
will, as a practical matter, affect Clerk Storey’s ability to comply with Proposition
8. This requirement is thus plainly met.
D.

The Existing Parties Will Not Adequately Represent Clerk Storey’s
Interests

The burden of showing inadequacy of representation by existing parties is
“‘minimal’”; “the applicant need only show that the representation of its interests
by existing parties ‘may be’ inadequate.” Berg, 268 F.3d at 823 (quoting Trbovich
v. United Mine Workers, 404 U.S. 528, 538 n.10 (1972)). Courts consider the
following three factors:
(1) Whether the interest of a present party is such that it will
undoubtedly make all the intervenor’s arguments; (2) whether
the present party is capable and willing to make such
arguments; and (3) whether the would-be intervenor would
14 

offer any necessary element to the proceedings that other
parties would neglect.
Id. at 822.
The Attorney General and the Governor have taken positions on the
constitutionality of Proposition 8 that render them inadequate to represent Clerk
Storey’s interests. This is particularly true in light of their failure to file a notice of
appeal

following

the

district

court’s

ruling

declaring

Proposition

8

unconstitutional. And while similarly situated to Clerk Storey, Defendant County
Clerks, from Los Angeles County and Alameda County, likewise failed to mount a
defense or file a notice of appeal.
Further, it is the County Clerk, not the Official Proponents, who is charged
with complying with the marriage laws and thus may be subject to injunctions in
the event it is struck down. Most important, however, the Official Proponents’
standing has been a substantial question of law in these proceedings. (Ninth Circuit
Docket No. 398-1, pp. 19-31) If an en banc panel or the United States Supreme
Court were to disagree with the panel decision, then it is possible that neither Court
would have jurisdiction to hear this case. Therefore, if the Official Proponents lack
standing to appeal from a ruling that Proposition 8 is unconstitutional, their
presence in the lawsuit is insufficient to fully protect Clerk Storey’s interest in this
action.

15 

In short, given that Clerk Storey’s presence is critical to ensure appellate
review of this Court’s decision and to avoid the potential for confusion, there is
plainly “sufficient doubt about the adequacy of representation to warrant
intervention.” Berg, 268 F.3d at 824 (quotation omitted).
CONCLUSION
This Court has broad authority to permit Clerk Storey to intervene in this
matter to ensure the appealability of the panel’s opinion declaring Proposition 8
unconstitutional. The enforcement of the panel’s injunction will directly impact
the legal duties of Clerk Storey and, as a result, he has a protectable interest in the
outcome of this litigation and his interest is not adequately represented by an
existing party.
Respectfully submitted,
ADVOCATES FOR FAITH AND FREEDOM

Date: February 21, 2012

s/ Robert H. Tyler
Robert H. Tyler, Esq.
Attorneys for Movant-Appallents and
Proposed Defendant-Appellant
PROPOSLED DEFENDANTAPPELLANT, CHUCK STOREY
and COUNTY OF IMPERIAL, THE
BOARD OF SUPERVISORS OF THE
COUNTY OF IMPERIAL, ISABEL
VARGAS

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CERTIFICATE OF SERVICE
I am employed in the county of Riverside, State of California. I am over the
age of 18 and not a party to the within action. My business address is 24910 Las
Brisas Road, Suite 110, Murrieta, California 92562.
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 February 21, 2012.
I further certify that some of the participants in the case are not registered
CM/ECF users. I have mailed the above-referenced documents by FirstClass Mail, postage prepaid, or have dispatched it to a third party
commercial carrier for delivery within 3 calendar days to the following nonCM/ECF participants.
See Attached List
Executed on February 21, 2012, at Murrieta, California.
(Federal) I declare that I am a member of the Bar of this Court at whose
direction the service was made.

s/ Robert H. Tyler
Email: [e-mail]

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