Perry et al v. Schwarzenegger et al

Filing 127

CASE MANAGEMENT STATEMENT Case Management Statement of The Attorney General filed by Edmund G. Brown, Jr. (Pachter, Tamar) (Filed on 8/7/2009)

Perry et al v. Schwarzenegger et al

Doc. 127

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EDMUND G. BROWN JR. Attorney General of California JONATHAN K. RENNER Senior Assistant Attorney General GORDON BURNS Deputy Solicitor General State Bar No. 173441 Deputy Attorney General State Bar No. 146083 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 Telephone: [phone] Fax: [phone] E-mail: [e-mail] Attorneys for Defendant Attorney General Edmund G. Brown Jr. IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

KRISTIN M. PERRY, et al.,

Civil Case No. 09-2292-VRW Plaintiffs, ATTORNEY GENERAL'S CASE MANAGEMENT STATEMENT

Date: August 19, 2009 Time: 10 a.m. ARNOLD SCHWAREZENEGGER, et al., Courtroom: 6 Judge: Hon. Vaughn R. Walker, C.J. Defendants. Trial Date: None Action Filed: 5/27/2009

v.

Attorney General's Case Management Statement (Civil Case No. 09-02292 VRW)
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In accord with the reasoning of the California Supreme Court in the Marriage Cases, 43 Cal.4th 757 (2008), defendant California Attorney General Edmund G. Brown Jr. has admitted the material allegations of the Complaint. He is therefore an interested but nominal defendant in this case. As a nominal defendant, the Attorney General will likely play a minor role in creating the evidentiary record in these proceedings, but he stands ready to assist the Court as required and to work cooperatively with the other parties to do so. The Attorney General plans to participate in the case primarily by briefing the legal issues as he sees them from the perspective of the State of California. The Attorney General participated in a conference call with the other parties at which methods and shortcuts for the introduction of evidence were discussed. During that call, there was some discussion of the defendant intervenors and the plaintiffs exchanging draft joint case management statements with all the parties. This made sense at the time, because it was apparent that the plaintiffs and defendant intervenors would be shouldering the greatest share of the burden in creating the record. As of the date of this writing, however, the Attorney General has not received a draft joint case management statement from any party for review. Accordingly, the Attorney General respectfully submits this case management statement as directed by the Court at the hearing in this matter held July 2, 2009 and pursuant to Federal Rule of Civil Procedure, Rule 16, Civil Local Rule 16 and the Court's Standing Order for All Judges. 1. Jurisdiction and Service. The asserted basis for jurisdiction is 28 U.S.C. § 1983.

The Attorney General does not challenge the Court's jurisdiction or venue and is informed and believes that all parties have been served. 2. Facts. In May 2008, the California Supreme Court held that same-sex couples had

right to marry under principles of equal protection and due process found in the California Constitution. In re Marriage Cases, 43 Cal.4th 757 (2008). The following November, however, the voters passed Proposition 8, which amended the state constitution to declare that only marriages between a man and a woman would be legally recognized. Between May and November 2008, over 18,000 same-sex couples were married in California. In May 2009, The California Supreme court upheld the validity of these marriages, but declared that the voters had 1
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the authority to carve out of the state constitution an exception to the rights of liberty and equal protection with respect to marriage. Strauss v. Horton, ___ Cal.4th ___, 93 Cal.Rptr.3d 591 (2009). This suit followed, challenging Proposition 8 under the United States Constitution. The Court identified at a high level the factual issues in dispute it its June 30, 2009 Order, at pages 69. The Attorney General is informed and believes that the plaintiffs and defendant intervenors (who are to date the real parties in interest) have not been able to agree to any stipulations that would obviate the need for a trial on these issues. 3. Legal Issues. The legal issue in this case is whether Proposition 8 violates the

Fourteenth Amendment. 4. Motions. a. Resolved and Pending Motions: i. trial on the merits. ii. Motion to Intervene as Defendants of Dennis Hollingsworth, Gail J. Plaintiffs' Motion for Preliminary Injunction. Status: Continued pending

Knight, Martin F. Gutierrez, Hak-Shing William Tam, Mark A. Jansson, and Protectmarriage.Com ­ Yes On 8, a Project of California Renewal. Status: Granted by Order filed June 30, 2009. iii. Motion to Intervene as Defendants of Campaign for California Families.

Status: set for hearing August 19, 2009. iv. Motion to Intervene as Plaintiffs of Our Family Coalition, Lavender

Seniors of the East Bay, and Parents, Family, and Friends of Lesbians and Gays. Status: set for hearing August 19, 2009. v. Motion to Intervene as Plaintiffs of the City and County of San Francisco.

Status: set for hearing August 19, 2009. b. Anticipated Motions: The Attorney General anticipates that he will brief any

dispositive motions brought, but does not anticipate initiating motion practice. 2
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5. 6. 7. 8.

Amendment of Pleadings. None anticipated. Evidence Preservation. No issues anticipated. Disclosures. None yet made. Discovery. None yet initiated. At this time the Attorney General does not anticipate

initiating discovery, but reserves the right to change position as the case parameters become more focused. 9. 10. 11. Class Allegations. None. Related Cases. None. Relief Sought. The plaintiffs seek a declaration invalidating Proposition 8, and an

order permanently enjoining its enforcement. 12. 13. 14. 15. Settlement. This case is not amenable to settlement. Consent to Magistrate. This case is not amenable to reference. Other References. This case is not amenable to reference. Narrowing of Issues. It may be that some of the factual issues raised by the Court's

June 30, 2009 Order are amenable to summary adjudication, but that will not be clear until some discovery is conducted. 16. Expedited Schedule. As stated above, the Attorney General expects that the

plaintiffs and defendant intervenors will shoulder the greatest burden in creating a record for the court. Accordingly, it is not appropriate for the Attorney General to suggest a schedule in the absence of any understanding from those parties about how long they think it will take to prepare for trial. 17. 18. Scheduling. Please see above. Trial. This will be a bench trial. Length to be determined in consultation with the

plaintiffs and defendant intervenors.

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19.

Civil Local Rule 3-16 Disclosure. The Attorney General is a government entity

excused from disclosure.

Dated: August 7, 2009

Respectfully Submitted, EDMUND G. BROWN JR. Attorney General of California JONATHAN K. RENNER Senior Assistant Attorney General GORDON BURNS Deputy Solicitor General /s/Tamar Pachter TAMAR PACHTER Deputy Attorney General Attorneys for Defendant Attorney General Edmund G. Brown Jr.

SA2009310603 20213244.doc

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CERTIFICATE OF SERVICE
Case Name: Kristin M. Perry, et al. v. Arnold Schwarzenegger, et al. No. 3:09-cv-02292-VRW

I hereby certify that on August 7, 2009, I electronically filed the following documents with the Clerk of the Court by using the CM/ECF system: ATTORNEY GENERAL'S CASE MANAGEMENT STATEMENT Participants in the case who are registered CM/ECF users will be served by the CM/ECF system. I further certify that some of the participants in the case are not registered CM/ECF users. On August 7, 2009, I have mailed the foregoing document(s) by First-Class Mail, postage prepaid, or have dispatched it to a third party commercial carrier for delivery within three (3) calendar days to the following non-CM/ECF participants: David Boies Attorney at Law Boies Schiller & Flexner LLP 333 Main Street Armonk, NY 10504 Gordon Bruce Burns Attorney Generals Office, Dept. of Justice Executive Unit 1300 I Street, 17th Floor Sacramento, CA 95814

Theane Evangelis Kapur Gibson Dunn & Crutcher LLP 333 South Grand Avenue Los Angeles, CA 90071 Tobias Barrington Wolff University of Pennsylvania Law School 3400 Chestnut Street Philadelphia, PA 19104-620

I declare under penalty of perjury under the laws of the State of California the foregoing is true and correct and that this declaration was executed on August 7, 2009, at San Francisco, California. Esther McDonald Declarant /s/ Esther McDonald Signature

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