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)
DECLARATION OF PETER A. PATTERSON

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
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
[phone]; [phone] Fax

Attorneys for Defendant-Intervenors-Appellants Hollingsworth, Knight, Gutierrez,
Jansson, and ProtectMarriage.com

I, Peter A. Patterson, declare as follows:
1. I am an attorney at the law firm of Cooper & Kirk, PLLC, and I am one
of the attorneys for Appellants Dennis Hollingsworth, Gail J. Knight, Martin F.
Gutierrez, Mark A. Jansson, and ProtectMarriage.com (collectively, “Proponents”).
I make this declaration in support of Appellants’ Unopposed Motion for Leave to
Exceed Type-Volume Limitations. I have personal knowledge of the facts set forth
herein.
2. 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
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
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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.
3. 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.
4. 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.
5. The panel’s ultimate ruling that Proposition 8 is unconstitutional embraces
rulings on several subsidiary issues that Proponents believe are erroneous and that

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misapply or conflict with the decisions of the Supreme Court, this Court, and other
courts. Proponents’ petition for rehearing thus encompasses multiple issues.
6. 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.
7. 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.
8. Counsel for the other parties to this appeal have stated that they will not
oppose Proponents’ motion to exceed the type-volume limitations.

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I declare, under penalty of perjury under the laws of the United States, that
these facts are true and correct and that this Declaration is executed this

2lst day of

February 2012in Cincinnati, Ohio.

Peter A. Patterson

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