Kristin Perry, et al v. Arnold Schwarzenegger, et al
Filing
401
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 in 10-16696 Unopposed Motion to file oversized petition for rehearing and/or petition for rehearing en banc of 52 pages. Date of service: 02/07/2012. [8075722] [10-16696, 11-16577] (CJC)
NOS. 10-16696 & 11-16577
DECIDED FEBRUARY 7, 2012
(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)
APPELLANTS’ UNOPPOSED MOTION FOR LEAVE TO EXCEED TYPEVOLUME LIMITATIONS
Andrew P. Pugno
LAW OFFICES OF ANDREW P. PUGNO
101 Parkshore Drive, Suite 100
Folsom, California 95630
(916) 608-3065; (916) 608-3066 Fax
Brian W. Raum
James A. Campbell
ALLIANCE DEFENSE FUND
15100 North 90th Street
Scottsdale, Arizona 85260
(480) 444-0020; (480) 444-0028 Fax
Charles J. Cooper
Counsel of Record
David H. Thompson
Howard C. Nielson, Jr.
Peter A. Patterson
COOPER AND KIRK, PLLC
1523 New Hampshire Ave., N.W.
Washington, D.C. 20036
(202) 220-9600; (202) 220-9601 Fax
Attorneys for Defendant-Intervenors-Appellants Hollingsworth, Knight, Gutierrez,
Jansson, and ProtectMarriage.com
Pursuant to Fed. R. App. P. 2 & 35(b)(2) and Circuit Rule 32-2, see United
States v. Molina-Tarazon, 285 F.3d 807 (9th Cir. 2002), Appellants (“Proponents”)
respectfully seek the Court’s leave to file a petition for rehearing en banc in excess
of the applicable type-volume limitation of 4,200 words, see Circuit Rule 40-1(a).
Specifically, Proponents request leave to file a petition for rehearing en banc
containing no more than 12,000 words. For the following reasons, Proponents
submit that they have substantial need for this relief.1
1. The panel majority decision holds that Proposition 8, a voter-initiated
amendment to the California Constitution that defines marriage as the union of a
man and a woman, CAL. CONST. art. 1, § 7.5, violates the Equal Protection Clause
of the Fourteenth Amendment to the United States Constitution. It is difficult to
overstate the importance of the outcome of this case to the people of California.
As this Court has recognized, “in our social and legal traditions the institution of
marriage has been considered to be an integral part of the foundation of a wellordered and viable society,” and it is thus “difficult to imagine an area more
fraught with sensitive social policy considerations in which federal courts should
not involve themselves if there is an alternative.” Smelt v. County of Orange, 447
1
If an extension of time to file a petition for rehearing en banc is necessary
to permit the Court's consideration of this motion, we respectfully request that the
Court treat this as a motion for such an extension as well.
1
F.3d 673, 679, 681 (9th Cir. 2006). The gravity of the panel majority’s decision is
only heightened by the fact that it invalidates a provision of the California
Constitution adopted through an exercise of the “fundamental right” of “the
sovereign people’s initiative power.” Perry v. Schwarzenegger, 628 F.3d 1191,
1196 (9th Cir. 2011) (quotation marks omitted); see also Coalition for Economic
Equity v. Wilson, 122 F.3d 718, 719 (9th Cir. 1997). For these reasons, it is
imperative that the members of this Court have the information necessary for
careful consideration of whether this case should be reheard en banc.
2. The importance and complexity of the issues presented by this case are
reflected by the briefing to date. In the merits appeal, for example, the combined
length of Proponents’ opening and reply briefs and Plaintiffs’ response brief
exceeds 300 pages containing more than 80,000 words. Plaintiff-Intervenor City
and County of San Francisco and nearly 50 amici submitted briefs spanning
hundreds of additional pages.
3. In deciding the exceedingly important questions presented by this case,
the panel majority affirmed the decision below, but for different reasons than those
relied on by the district court. Accordingly, the panel majority’s reasoning rests on
grounds only partially addressed in the briefing to date.
2
4. The panel’s ultimate ruling that Proposition 8 is unconstitutional embraces
rulings on several subsidiary issues that Proponents believe are erroneous and that
misapply or conflict with the decisions of the Supreme Court, this Court, and other
courts. Proponents’ petition for rehearing thus encompasses multiple issues.
5. In addition to addressing Proponents’ appeal on the merits, the panel’s
decision also disposes of Proponents’ separate appeal of the district court’s denial
of their motion to vacate the judgment on account of former Chief Judge Walker
presiding over this case in violation of 28 U.S.C. § 455. Proponents are seeking
rehearing en banc of this issue as well as of the merits.
6. The importance, complexity, and number of the issues presented by this
case are amply demonstrated by the length of the panel’s opinions: the panel
majority’s opinion is about 75 pages and 19,700 words; the dissent is about an
additional 38 pages and 9,000 words.
7. Counsel for the other parties to this appeal have stated that they will not
oppose this motion to exceed the type-volume limitations.
For these reasons, Proponents respectfully request leave to file a petition for
rehearing en banc of no more than 12,000 words.
3
Dated: February 21, 2012
Respectfully submitted,
s/ Charles J. Cooper
Charles J. Cooper
Counsel of Record
David H. Thompson
Howard C. Nielson, Jr.
Peter A. Patterson
COOPER AND KIRK, PLLC
1523 New Hampshire Ave., N.W.
Washington, D.C. 20036
(202) 220-9600; (202) 220-9601 Fax
Andrew P. Pugno
LAW OFFICES OF ANDREW P. PUGNO
101 Parkshore Drive, Suite 100
Folsom, California 95630
(916) 608-3065; (916) 608-3066 Fax
Brian W. Raum
James A. Campbell
ALLIANCE DEFENSE FUND
15100 North 90th Street
Scottsdale, Arizona 85260
(480) 444-0020; (480) 444-0028 Fax
Attorneys for Defendant-Intervenors-Appellants Hollingsworth, Knight, Gutierrez,
Jansson, and ProtectMarriage.com
4
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)
.
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.
Signature (use "s/" format)
*********************************************************************************
CERTIFICATE OF SERVICE
When Not 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)
.
February 21, 2012
Participants in the case who are registered CM/ECF users will be served by the appellate
CM/ECF system.
I further certify that some of the participants in the case are not registered CM/ECF users. I
have mailed the foregoing document by First-Class Mail, postage prepaid, or have dispatched it
to a third party commercial carrier for delivery within 3 calendar days to the following
non-CM/ECF participants:
See attached service list.
Signature (use "s/" format)
s/ Charles J. Cooper
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
1055 Maitland Center Commons
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
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