ProtectMarriage.com - Yes on 8, a Project of California Renewal et al v. Bowen et al

Filing 197

STATEMENT of No Position Regarding Plaintiff's Motion for Certification of Class Action by Defendant Jan Scully. (Cassidy, Terence)

ProtectMarriage.com - Yes on 8, a Project of California Renewal et al v. Bowen et al

Doc. 197

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A PROFESSIONAL CORPORATION

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Terence J. Cassidy, SBN 99180 Kristina M. Hall, SBN 196794 350 University Ave., Suite 200 Sacramento, California 95825 TEL: [phone] FAX: [phone]

A tto rn e ys for Defendants JAN SCULLY, in her official capacity U N I T E D STATES DISTRICT COURT

8 E A S T E R N DISTRICT OF CALIFORNIA 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
PORTER * SCOTT
ATTORNEYS 3 5 0 U N I V E R S I T Y A V E ., S U I T E 2 0 0 SAC RAM EN T O , C A 95825 T E L : 9 1 6 . 9 2 9 .1 4 8 1 F A X : 9 1 6 . 9 2 7 .3 7 0 6

PROTECTMARRIAGE.COM - YES ON 8, A PROJECT OF CALIFORNIA RENEWAL; N A T I O N A L ORGANIZATION FOR MARRIAGE CALIFORNIA - YES ON 8, SPONSORED BY NATIONAL ORGANIZATION FOR MARRIAGE, JOHN DOE #1, an individual and as representative of the CLASS OF MAJOR DONORS, Plaintiffs, vs. DEBRA BOWEN, Secretary of State for the State of California, in her official capacity; EDMUND G. BROWN, JR., Attorney General for the State of California, in his official capacity; DEAN C. LOGAN, Registrar-Recorder of Los Angeles County, C al i fo rn ia, in his official capacity; DEPARTMENT OF ELECTIONS - CITY AND COUNTY OF SAN FRANCISCO; JAN SCULLY, District Attorney for Sacramento County, California in her official capacity and as a representative of the Class of District Attorneys in the State of California; DENNIS J. HERRERA, City Attorney for the City and County of San Francisco, California, in his official capacity and as a representative of the Class of Elected City Attorneys in the State of California; ROSS JOHNSON, TIMOTHY HODSON, EUGENE HUGUENIN, JR., ROBERT LEIDIGH and RAY REMY, members of the California Fair Political Practices Commision, in their official capacities, Defendants. / 1

C a s e No. 2:09-CV-00058-MCE-DAD DEFENDANT JAN SCULLY'S C O N D I T I O N A L STATEMENT OF NO P O S I T I O N REGARDING PLAINTIFFS' M O T I O N FOR CERTIFICATION OF C L A S S ACTION

DEFENDANT JAN SCULLY'S CONDITIONAL STATEMENT OF NO POSITION REGARDING PLAINTIFFS' MOTION FOR CERTIFICATION OF CLASS ACTION 00705690.WPD

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Dockets.Justia.com

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D e f e n d a n t JAN SCULLY, hereby provides the following response to Plaintiffs' M o tio n for Certification of Class Action. Plaintiffs have moved for class certification of both Plaintiffs and Defendants p u rs u a n t to Federal Rule of Civil Procedure 23, subparagraphs (b)(1), (b)(2) and (b)(3). In th e ir Third Amended Complaint, Plaintiffs move only for declaratory and injunctive relief. See TAC at p. 25, Prayer for Relief. Thus, Defendant Scully opposes Plaintiffs' motion to th e extent that Plaintiffs in any way seek damages, as this is not part of their Complaint and th e y should be estopped from asserting any position to the contrary. Further, to the extent th a t Plaintiffs seek any type of monetary damages, certification is inappropriate under Rule 2 3 (b )(1 ) and (b)(2) and therefore Plaintiffs' motion for certification also should be denied in this regard. See In re Greenman, 829 F.2d 1539 (11th Cir. 1988); McDonnell Douglas C o rp . v. United States Dist. Court, 523 F.2d 1083, 1085-1087 (9th Cir. 1975). Each of the f o r e g o in g arguments, applicable to the proposed Plaintiff Class, is also applicable to the p ro p o s e d class of California District Attorneys that Plaintiffs seek to create. Therefore, out o f an abundance of precaution, Defendant Scully respectfully requests that Plaintiff's Motion w ith respect to any Plaintiffs or any Defendants be denied as to any express or implied p o te n tia l claim for damages that Plaintiffs may assert. A ss u m in g arguendo Plaintiffs seek only injunctive relief, Defendant Scully, in her o f f ic ia l capacity, takes no position regarding the merits of Plaintiffs' Motion, subject to the C o u rt requiring Plaintiffs to provide at their expense notice to each member of the Defendant D is tric t Attorney class should Plaintiffs' Motion be granted. R e s p e c tf u lly submitted, D a te d : January 30, 2009 P O R T E R SCOTT
A PROFESSIONAL CORPORATION

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PORTER * SCOTT
ATTORNEYS 3 5 0 U N I V E R S I T Y A V E ., S U I T E 2 0 0 SAC RAM EN T O , C A 95825 T E L : 9 1 6 . 9 2 9 .1 4 8 1 F A X : 9 1 6 . 9 2 7 .3 7 0 6

/s/Terence J. Cassidy Terence J. Cassidy A tto rn e y for Defendant J A N SCULLY, District Attorney for S a c ra m e n to County, California in her o f f ic ia l capacity 2

DEFENDANT JAN SCULLY'S CONDITIONAL STATEMENT OF NO POSITION REGARDING PLAINTIFFS' MOTION FOR CERTIFICATION OF CLASS ACTION 00705690.WPD

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