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

Filing 405

Filed (ECF) Intervenor - Pending Chuck Storey in 11-16577 petition for rehearing en banc (from 02/07/2012 opinion). Date of service: 02/21/2012. [8076413] [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)
______________________________________________________
PETITION FOR REHEARING EN BANC

___________________________________________________________
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 ........................................................................................2
ARGUMENT .............................................................................................................3
I.

Clerk Storey Joins the Official Proponents’ Petition for
Rehearing En Banc in Case Nos. 10-16696 and 11-16577 .............................3

II.

This Court Should Grant Clerk Storey’s Petition for Rehearing
En Banc Because En Banc Determination Is Warranted Under
the Circumstances............................................................................................4
a.

The Panel’s Decision Conflicts with Supreme Court
Precedent ...............................................................................................4

b.

The Panel’s Decision Conflicts with the Precedent of
This Circuit in Permitting Parties to Intervene
Postjudgment to Ensure the Right to Appeal Is Preserved ...................8

c.

The Constitutionality of Proposition 8 Is an Issue of
Exceptional Importance That Warrants There Absolutely
Be a Party with Standing to Defend Its Constitutionality...................11

CONCLUSION........................................................................................................13

i

TABLE OF AUTHORITIES
CASES
Alameda Newspapers, Inc. v. City of Oakland,
95 F.3d 1406 (9th Cir. 1996) ..............................................................................1, 9
Arizonans for Official English v. Arizona,
520 U.S. 43 (1997)................................................................................................12
Associated Builders and Contractors, Saginaw Valley Area Chapter v. Perry,
115 F.3d 386 (6th Cir. 1997) ................................................................................10
Conaway v. Deane,
932 A.2d 571 (Md. 2007) .......................................................................................7
Hernandez v. Robles,
855 N.E.2d 1 (N.Y. 2006).......................................................................................7
Hunt v. Cromartie,
525 U.S. 946 (1998)................................................................................................4
Legal Aid Soc’y of Alameda Cnty. v. Brennan,
608 F.2d 1319 (9th Cir.1979) .................................................................................9
Lockyer v. City & Cnty. of San Francisco,
95 P.3d 459 (Cal. 2004) ..........................................................................................7
Nw. Forest Res. Council v. Glickman,
82 F.3d 825 (9th Cir. 1996) ....................................................................................9
ii 

Pellegrino v. Nesbit,
203 F.2d 463 (9th Cir. 1953) ..............................................................................1, 9
Perry v. Brown,
134 Cal. Rptr. 499 (2011) .....................................................................................12
Perry v. Schwarzenegger,
628 F.3d 1191 (9th Cir. 2011) ..............................................................................11
Smelt v. Cnty. of Orange,
447 F.3d 673 (9th Cir. 2006) ..................................................................................7
Sw. Ctr. for Biological Diversity v. Berg,
268 F.3d 810 (9th Cir. 2001) ..................................................................................6
Trbovich v. United Mine Workers,
404 U.S. 528 (1972)................................................................................................6
United Airlines, Inc. v. McDonald,
432 U.S. 385 (1977)................................................................................... 1, 4, 5, 8
Yniguez v. Arizona,
939 F.2d 727 (9th Cir.1991) ...................................................................................9
STATUTES
Cal. Family Code § 350 .............................................................................................7
Cal. Family Code § 354 .............................................................................................7
Cal. Family Code § 511(a).........................................................................................7
iii 

Cal. Health & Safety Code § 102285 ........................................................................7
Cal. Health & Safety Code § 102295 ........................................................................7

iv 

PETITION FOR REHEARING
Exceptional cases merit the complete review of the federal legal system.
Proposed-Defendant/Appellant therefore petitions this Court to rehear the case en
banc under Fed. R. App. P. 35 and Ninth Circuit R. 35. More specifically, this
Petition requests that this Court rehear its decision on the merits of Case No. 1016696 relating to the constitutionality of Proposition 8 and also rehear its decision
denying intervention to Imperial County Clerk Chuck Storey (“Clerk Storey”) in
Case No. 10-16751.
The panel opinion in this case held that Clerk Storey’s motion to intervene
was “untimely,” and therefore denied him relief. (Ninth Cir. Case No. 10-16751,
Docket No. 85.) However, the Supreme Court of the United States has held that
motions to intervene are timely if filed promptly after entry of judgment. United
Airlines, Inc. v. McDonald, 432 U.S. 385 (1977). Here, Clerk Storey sought to
intervene even prior to the Ninth Circuit’s final ruling on the merits of
Proposition 8.
The panel opinion also conflicts with other decisions of this Court. The
Ninth Circuit has regularly granted intervention postjudgment when necessary to
preserve a right that otherwise could not be protected, such as the right to appeal.
Pellegrino v. Nesbit, 203 F.2d 463, 465-66 (9th Cir. 1953); see also Alameda
Newspapers, Inc. v. City of Oakland, 95 F.3d 1406, 1412 n.8 (9th Cir. 1996).

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Finally, this proceeding involves a question of exceptional importance: the
constitutionality of Proposition 8. If this Court does not grant Clerk Storey’s
Petition for Rehearing and ultimately permit him to intervene, the panel’s opinion
declaring Proposition 8 unconstitutional (Ninth Circuit, Docket No. 398-1) is
potentially unappealable for want of jurisdiction. If the Ninth Circuit en banc
panel or the United States Supreme Court reverses the panel’s opinion by declaring
that the Official Proponents do not have standing, there will be no party to defend
and/or appeal the adverse ruling. Thus, this Court should grant Clerk Storey’s
Petition for Rehearing en banc to ensure that the Ninth Circuit panel’s opinion can
be appealed and the constitutionality of Proposition 8 can be decided. Each factor
merits independent review.
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
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the status of this present litigation, engaged legal counsel 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 his request for extension of time to file a petition for rehearing en banc was
rejected by the Ninth Circuit clerk’s office. The clerk’s office informed Clerk
Storey that in order to seek rehearing en banc, he would be required to file a new
Motion to Intervene in case Nos. 10-16696 and 11-16577, which Clerk Storey did.
Clerk Storey now files this Petition for Rehearing en banc.
ARGUMENT
I.

Should This Court Grant Intervention, Clerk Storey Respectfully
Requests That This Court Permit Him to Join the Official Proponents’
Petition for Rehearing En Banc in Case Nos. 10-16696 and 11-16577
The Official Proponents, the only party currently defending this case, filed a

Petition for Rehearing en banc on February 21, 2012. (Ninth Cir. Docket No. 4021.) The Official Proponents’ petition asks this Court to reconsider the merits of the
case and overturn the panel’s holding that Proposition 8 is unconstitutional. Should
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this Court grant Clerk Storey’s Petition for Rehearing and ultimately his Motion to
Intervene, Clerk Storey respectfully requests that this Court allow Clerk Storey to
join the Official Proponents’ petition for rehearing en banc.
II.

This Court Should Grant Clerk Storey’s Petition for Rehearing En
Banc Because En Banc Determination Is Warranted Under the
Circumstances
En banc review is appropriate when a panel decision conflicts with a decision

of the Supreme Court, a decision of the Court to which the Petition is addressed, or
if the case involves a matter of exceptional importance. Fed. R. App. P. 35. All
three of these situations are present here.
a.

The Panel’s Decision Conflicts with Supreme Court Precedent

The Supreme Court of the United States has held that motions to intervene
are timely if filed immediately after it becomes apparent that the party’s interests
will not be adequately represented. United Airlines, Inc. v. McDonald, 432 U.S.
385 (1977); see also Hunt v. Cromartie, 525 U.S. 946 (1998). In United Airlines,
Inc., the district court denied class action certification to a group of stewardesses
who challenged an airline policy that required female stewardesses to remain
unmarried as a condition of employment. Id. at 387. Once it became clear that the
original plaintiffs were not going to appeal the district court’s adverse class
determination order, a putative class member filed a motion to intervene in order to
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appeal the adverse class determination order. Id. at 390. After working its way
through the appeals process, the Supreme Court granted certiorari solely to
consider the timeliness of the motion to intervene. Id. at 391. In holding that the
motion to intervene was timely, the Supreme Court held that the
critical fact here [wa]s that once the entry of final judgment made the
adverse class determination appealable, the respondent quickly sought
to enter the litigation. In short, as soon as it became clear to the
respondent that the interests of the unnamed class members would no
longer be protected by the named class representatives, she promptly
moved to intervene to protect those interests.
United Airlines, 432 U.S. at 394.
First, just as the putative class member in United Airlines immediately
sought to intervene after entry of final judgment, Clerk Storey also acted promptly
after entry of final judgment. On January 4, 2011, just one day after Clerk Storey
was sworn into office (Declaration of Chuck Storey ¶ 1.), the Ninth Circuit
affirmed the district court’s denial of Deputy Clerk Vargas’s motion to intervene.
(Ninth Cir. Docket No. 65.) The panel noted that “[w]ere Imperial County’s
elected county clerk the applicant for intervention, this argument might have
merit.” (Ninth Cir. Docket No. 65, p. 7.) Relying on this language and realizing
the effect the ruling would have on his office of County Clerk, Clerk Storey
promptly engaged legal counsel and sought to intervene in the Ninth Circuit
appeal. (Declaration of Chuck Storey ¶ 4.) He therefore acted promptly after entry
of final judgment.
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Second, without the presence of Deputy Clerk Vargas or any other County
Clerk in the lawsuit, Clerk Storey’s interests could not be adequately represented.
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.” Sw. Ctr. for Biological Diversity v. Berg,
268 F.3d 810, 823 (9th Cir. 2001) (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
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

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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. County clerks have the practical, day-to6 

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. § 350), perform civil marriages (id. § 400Error! Reference source 
not  found.),

and maintain vital marriage records (id. § 511(a); see also California

Health & Safety Code §§ 102285, 102295); 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 & Cnty. of San
Francisco, 95 P.3d 459, 469 (Cal. 2004) (citing Cal. Family Code § 354). Further,
County clerks are frequently defendants in same-sex marriage litigation. See, e.g.,
Smelt v. Cnty. 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). Thus,
as a governmental officer responsible for ensuring that California’s marriage laws
are followed within Imperial County, Clerk Storey has a unique governmental
interest in this case that cannot be adequately represented by a non-governmental
defendant like the Official Proponents.

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Most importantly, however, the Official Proponents’ standing has been a
substantial question of law in these proceedings. (See 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.
Thus, because Clerk Storey acted promptly after the Ninth Circuit entered
judgment affirming denial of Deputy Vargas’s motion to intervene, his motion was
timely under United Airlines, Inc. v. McDonald.
b.

The Panel’s Decision Conflicts with the Precedent of This Circuit
in Permitting Parties to Intervene Postjudgment to Ensure the
Right to Appeal Is Preserved

The panel denied Clerk Storey’s motion to intervene as “untimely.” (Ninth Cir.
Case No. 10-16751, Docket No. 85.) And although the panel stated that it would
explain why the motion was untimely, no such analysis was readily apparent.
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,
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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 following 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 then filed a motion to intervene.
Under Ninth Circuit precedent, Clerk Storey’s motion to intervene was
timely. The Ninth Circuit permits intervention even after trial for the purpose of
appealing an adverse ruling. Yniguez v. Arizona, 939 F.2d 727 (9th Cir.1991);
Legal Aid Soc’y of Alameda Cnty. v. Brennan, 608 F.2d 1319, 1328 (9th Cir.1979).
Indeed, the Ninth Circuit has explicitly held that “[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) (emphasis added); 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”). 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
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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.
Thus, there was no delay in Clerk Storey’s decision to intervene, and, as shown,
the Ninth Circuit regularly permits parties to intervene on appeal to help facilitate
appellate review, which is especially necessary here considering the uncertainty
surrounding the Official Proponents’ Article III standing to defend this case.
Finally, allowing intervention will not cause delay or prejudice the parties.
The Official Proponents have already petitioned this Court for en banc review.
(Ninth Cir. Docket No. 402-1.) The underlying record is complete and no motions
are anticipated that would delay or prejudice the parties.

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c.

The Constitutionality of Proposition 8 Is an Issue of Exceptional
Importance That Warrants There Absolutely Be a Party with
Standing to Defend Its Constitutionality

Obtaining a final determination—with complete appellate review—on the
constitutionality of Proposition 8 is an issue of exceptional importance. The mere
possibility that there will be no party with Article III standing to appeal the panel’s
opinion mandates that this Court grant Clerk Storey’s Petition for Rehearing en
banc and ultimately his Motion to Intervene. Currently, the only party defending
this lawsuit is the Official Proponents of the Proposition 8 campaign. Whether the
Official Proponents have Article III standing has been the subject of much debate.
After the district court declared Proposition 8 unconstitutional, the Official
Proponents appealed Judge Walker’s ruling to the Ninth Circuit. The Ninth Circuit
then certified to the California Supreme Court the question of whether 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 . . . appeal a judgment invalidating the initiative, when
the public officials charged with that duty refuse to do so.
Perry v. Schwarzenegger, 628 F.3d 1191, 1193 (9th Cir. 2011). The California
Supreme Court held that when the State refuses to defend a state law or appeal a
judgment invalidating a law, California law confers authority on the official
11 

proponents of a voter-approved initiative measure to defend the constitutionality of
the initiative and appeal a judgment invalidating it. Perry v. Brown, 134 Cal. Rptr.
499, 536-37 (2011). Relying on this language, the panel held that the Official
Proponents did have Article III standing. (Ninth Circuit Docket No. 398-1, pp. 3031.)
Nonetheless, it remains possible that the Ninth Circuit en banc or the
Supreme Court of the United States will reverse this holding. This is especially
possible considering the Supreme Court’s decision in Arizonans for Official
English v. Arizona, 520 U.S. 43 (1997). Although the panel distinguished
Arizonans for Official English, (Ninth Circuit Docket No. 398-1, pp. 24-25), the
Ninth Circuit en banc or the Supreme Court could decide differently. If one of
these Courts does in fact make such a holding, there will be no party to appeal
and/or defend the constitutionality of Proposition 8. The exceptional importance of
determining the constitutionality of Proposition 8 warrants that this Court grant
Clerk Storey’s Petition for Rehearing en banc and ultimately his motion to
intervene, thereby ensuring that there is absolutely a party with Article III standing
to ensure that this exceptional issue can be heard en banc and/or by the United
States Supreme Court.

12 

CONCLUSION
Clerk Storey respectfully requests that this Court allow Clerk Storey to join
the Official Proponents’ petition for rehearing en banc if this Court grants Clerk
Storey’s Petition for Rehearing en banc and ultimately his Motion to Intervene.
Clerk Storey’s Petition for Rehearing en banc should be granted because the
panel’s opinion conflicts with Supreme Court and Ninth Circuit precedent. More
importantly, Clerk Storey’s Petition for Rehearing en banc should be granted due
to the possibility that the Official Proponents lack Article III standing. If this Court
does not grant Clerk Storey’s Petition, a substantial question of constitutional
law—the constitutionality of Proposition 8—could remain unsettled. Clerk Storey
therefore respectfully requests that this Court grant his Petition for Rehearing en
banc.
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

13 

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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