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

Filing 78

OPPOSITION by Jan Scully to #16 Motion for Preliminary Injunction and Protective Order. (Cassidy, Terence) Modified on 1/26/2009 (Streeter, J).

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

Doc. 78

1 PORTER I SCOTT
A PROFESSIONAL CORPORA nON
2 Terence J. Cassidy, SBN 99180

Kristina M. Hall, SBN 196794
3 350 University Ave., Suite 200

Sacramento, California 95825
4 TEL: [phone]

FAX: [phone]
5

6 Attorneys for Defendants JAN SCULLY, in her official capacity
7

UNITED STATES DISTRICT COURT
8

EASTERN DISTRICT OF CALIFORNIA
9

10 PROTECTMARRAGE.COM - YES ON 8, A PROJECT OF CALIFORNIA RENEWAL;

Case No. 2:09-CV-00058-MCE-DAD

11 NATIONAL ORGANIZATION FOR

12 SPONSORED BY NATIONAL
ORGANIZATION FOR MARRAGE, JOHN

MARRAGE CALIFORNIA - YES ON 8,

DEFENDANT JAN SCULLY'S OPPOSITION TO MOTION FOR
PRELIMINARY INJUNCTION AND
PROTECTIVE ORDER

13 DOE #1, an individual and as representative
the CLASS OF MAJOR DONORS, of i 4 Plaintiffs,
15 VS.

16 DEBRA BOWEN, Secretar of State for the
State of California, in her offcial capacity;

17 EDMUND G. BROWN, JR., Attorney

18I,official capacity; DEAN C. LOGAN, Geneial for the State of California, in his
19 California, in his official capacity;

Registrar-Recorder of Los Angeles County,

DEPARTMENT OF ELECTIONS - CITY
20 AND COUNTY OF SAN FRANCISCO; JAN

SCULL Y, District Attorney for Sacramento
21 County, California in her official capacity and

as a representative of the Class of District
22 Attorneys in the State of California; DENNIS J. HERRRA, City Attorney for the City and 23 County of San Francisco, California, in his the offcial capacity and as a representative of 24 Class of Elected City Attorneys in the State of California; ROSS JOHNSON, TIMOTHY

25 HODSON, EUGENE HUGUENIN, JR., ROBERT LEIDIGH and RA Y REMY, 26 members of the California Fair Political Practices Commision, in their official

27 capacities,

Defendants.
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PORTER SCOTT
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DEFENDANT JAN SCULLY'S OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION AND PROTECTIVE ORDER

www.porterscott.com

00648095.WPD

Dockets.Justia.com

1 Defendant JAN SCULLY, in her official capacity as District Attorney for the County of

4 I.
12 question.

2 Sacramento, hereby submits the following opposition to Plaintiffs' Motion for Preliminary
3 Injunction and Protective Order.

5 DEFENDANT SCULLY'S POSITION OF NEUTRALITY
6 Defendant SCULLY takes a neutral position in regard to Plaintiffs' Motions for
7 Preliminary Injunction and a Protective Order. It is the position and responsibility of the

8 District Attorney to enforce existing law. Accordingly, in this instance, Defendant SCULL Y,
9 as the District Attorney of Sacramento County, wil neither support or oppose the position

10 of the other parties on the merits of the claims being asserted in this action. Defendant

11 SCULL Y wil therefore defer to this Court's determination of the status of the laws in

13 II.
15
II

14 IT IS IMPROPER TO ENJOIN A DISTRICT ATTORNEY
FROM ENFORCING THE LAW
16 California Government Code § 91001 i authorizes the Sacramento County District

17 Attorney to fie an a criminal or civil action if she determines that any violation of the
18 Political Reform Act of 1974 (Govt. Code § 81000 et seq.) exists. Thus, it stands to reason
19

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¡Government Code § 91001 provides, in pertinent part:

(a)

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The Attorney General is responsible for enforcing the criminal provisions of this title with respect to state agencies, lobbyists and state elections. The district attorney of any county in which a violation occurs has concurrent powers and responsibilities with the Attorney General.

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(b)
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The civil prosecutor is primarily responsible for enforcement of the civil penalties and
this title. The civil prosecutor is the commission with respect to the state or any state agency, except itself. The Attorney General is the civil prosecutor with respect to the commission. The district attorneys are the civil prosecutors with respect to any other agency. The civil prosecutor may bring any civil action under this title which could be brought by a the jurisdiction. Upon written authorization from a district attorney, the voter or resident of commission may bring any civil action under this title which could be brought by a voter or resident of the jurisdiction.
remedies of

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DEFENDANT JAN SCULLY'S OPPOSITION TO MOTION l'OR PRELIMINARY INJUNCTION AND PROTECTIVE ORDER
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1 that Plaintiffs cannot enjoin the Sacramento County District Attorney from taking an action

2 that she is statutorily authorized to take. See, e.g., Ingram v. Flippo, 74 Cal.AppAth 1280,
3 1291 (1999). In fact, not only is the District Attorney authorized to take action, but she may
4 be required to do so by law.

5 In addition, any request for an injunction against Defendant SCULL Y is also improper

6 because it is not ripe for adjudication. The ripeness requirement is intended "to prevent the
7 courts, through avoidance of

premature adjudication, from entangling themselves in abstract

8 disagreements." Abbott Laboratories, Inc. v. Gardner, 387 U.S. 136, 148-49 (1967). "An
9 action is unripe when the issues are not sufficiently concrete for judicial resolution." Western

10 Oil & Gas Ass'n v. Sonoma County, 905 F.2d 1287,1290 (9th Cir. 1990). In determining
11 the ripeness of a pre-enforcement challenge to a law, the court must examine "whether the

12 plaintiffs have articulated a 'concrete plan' to violate the law in question, whether the

13 prosecuting authorities have communicated a specific warning or threat to initiate
14 proceedings, and the history ofpast prosecution or enforcement." Sacks v. Office of Foreign

15 Assets Control, 466 F.3d 764, 773 (9th Cir. 2006). Here, Plaintiffs fail to present any
16 evidence of any "concrete plan," any threat by Defendant Scully that she wil initiate
17 proceedings against them, nor any history of past prosecution. Accordingly, Defendant

18 respectfully submits that any Motion for an injunction against her should also be denied
19 because it is premature at this time.
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II ,

III.
DEFENDANT JAN SCULLY APPEARS ONLY ON BEHALF OF HERSELF AS A NAMED PARTY, NOT AS A REPRESENTATIVE OF ANY PURPORTED CLASS
The Sacramento County District Attorney, in her official capacity, is being sued
directly and as a purported class Defendant representative against all district attorneys in
California. Defendant Scully submits that this designation is improper. The Court has made

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no certification of or any other finding regarding any "class" of California district attorney
Defendants. Similarly, the Court has not determined the propriety of any appointment of

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Sacramento County District Attorney as a class representative, nor has Defendant sought to
3 DEFENDANT JAN SCULLY'S OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION AND PROTECTIVE ORDER

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00648095. WPD

be a class Defendant or even been heard on the matter. For purposes of

Plaintiffs' present

2 Motion, the Sacramento County District Attorney can and wil only represent herself and
3 only speak on her own behalf. Thus, the Sacramento County District Attorney is not
4 authorized to nor can she bind any of the other California District Attorneys through her

6 CONCLUSION iv. 7
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5 actions. Therefore any order issued by this Court should be limited accordingly.

8 Based on the foregoing, Defendant JAN SCULLY, in her official capacity, as the

9 District Attorney for Sacramento County, respectfully takes a position of neutrality as to
10 Plaintiffs' claims, but submits that any issuing injunction against her office is inappropriate
11 and, assuming arguendo an order is issued, it cannot bind the District Attorneys in the

remaining California counties.
Respectfully submitted,

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15

Dated: January 23,2009

PORTER SCOTT
A PROFESSIONAL CORPORATION

By
16

Is/Terence J. Cassidy
Terence 1. Cassidy

Attorney for Defendant
17
II

JAN SCULLY, District Attorney for SaCiamentû Coüntj, California in her i
official capacity

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DEFENDANT JAN SCULLY'S OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION AND PROTECTIVE ORDER
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