Perry et al v. Schwarzenegger et al

Filing 320

Statement re #311 MOTION to Intervene ATTORNEY GENERAL'S STATEMENT OF NO OPPOSITION TO MOTION TO INTERVENE OF IMPERIAL COUNTY by Edmund G. Brown, Jr. (Attachments: #1 proof of service)(Pachter, Tamar) (Filed on 12/24/2009)

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 KRISTIN M PERRY, SANDRA B STIER, PAUL T KATAMI and JEFFREY J ZARRILLO, Plaintiffs, CITY AND COUNTY OF SAN FRANCISCO, Plaintiff-Intervenor, v ARNOLD SCHWARZENEGGER, in his official capacity as governor of California; EDMUND G BROWN JR, in his official capacity as attorney general of California; MARK B HORTON, in his official capacity as director of the California Department of Public Health and state registrar of vital statistics; LINETTE SCOTT, in her official capacity as deputy director of health information & strategic planning for the California Department of Public Health; PATRICK O'CONNELL, in his official capacity as clerkrecorder of the County of Alameda; and DEAN C LOGAN, in his official capacity as registrarrecorder/county clerk for the County of Los Angeles, Defendants, DENNIS HOLLINGSWORTH, GAIL J KNIGHT, MARTIN F GUTIERREZ, HAKSHING WILLIAM TAM, MARK A JANSSON and PROTECTMARRIAGE.COM ­ YES ON 8, A PROJECT OF CALIOFORNIA RENEWAL, as official proponents of Proposition 8, Defendant-Intervenors. / No C 09-2292 VRW ORDER IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

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Defendant-intervenors, the official proponents of Proposition 8 ("proponents") move to realign the California Attorney General as a party plaintiff. Doc #216. Plaintiffs filed

a complaint in May 2009 against the California Governor, Attorney General and other state and county administrative officials seeking declaratory and injunctive relief to enjoin enforcement of Proposition 8 and any other California law that bars same-sex marriage. Doc #1. No government official has sought to defend the

constitutionality of Proposition 8, see Doc ##41, 42, 46, and the Attorney General has admitted the material allegations of plaintiffs' complaint, Doc #39. Proponents now seek to re-align

the Attorney General as a plaintiff because he has "embraced plaintiffs' claims that Proposition 8 violates the Fourteenth Amendment." Doc #216 at 1. Plaintiffs and the Attorney General For the reasons explained

oppose realignment.

Doc ##239, 240.

below, proponents' motion to realign the Attorney General is DENIED.

I Proponents argue realignment is appropriate because the Attorney General has admitted all material allegations in plaintiffs' complaint and, according to proponents, has become a "litigation partner[]" with plaintiffs. Doc #216 at 8-10.

Proponents assert they have been prejudiced by the Attorney General's actions, as plaintiffs used the Attorney General's admissions in their opposition to proponents' motion for summary judgment. Doc #204 Exh A. Proponents note that the Attorney

General served his admissions on plaintiffs a day before they were 2

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due, which allowed plaintiffs to use the admissions in their opposition. Doc #216 at 9.

Plaintiffs argue proponents' motion should be denied because the Attorney General has not "direct[ed] state officials to cease their enforcement" of Proposition 8. Doc #140 at 2.

Plaintiffs point out that the Attorney General was sued in his official capacity and that a new Attorney General might decide to defend the constitutionality of Proposition 8. The Attorney

General argues realignment is inappropriate because "the government has the duty to enforce the law until a court declares it invalid." Doc #239 at 14. Although the Attorney General has admitted

plaintiffs' material allegations, he will continue to enforce Proposition 8 absent a court order. Id.

II The court has the power and the duty to "look beyond the pleadings" to the "realities of the record" to realign parties according to the principle purpose of a suit. Indianapolis v Chase

National Bank, 314 US 63, 69 (1941) (internal citations omitted). The most frequent use of realignment has been to maintain or defeat diversity jurisdiction. See Dolch v United California Bank, 702

F2d 178, 181 (9th Cir 1983) ("If the interests of a party named as a defendant coincide with those of the plaintiff in relation to the purpose of the lawsuit, the named defendant must be realigned as a plaintiff for jurisdictional purposes."). But, as the court noted

in a previous case, nothing "explicitly limits the test" to jurisdictional matters. Plumtree Software, Inc v Datamize, LLC, See also Larios

02-5693 VRW Doc #32 at 6 (ND Cal October 6, 2003). 3

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v Perdue, 306 F Supp 1190, 1195 (ND Ga 2003); League of United Latin American Citizens v Clements, 999 F2d 831, 844 (5th Cir 1993); Delchamps, Inc v Alabama State Milk Control Board, 324 F Supp 117, 118 (MD Ala 1971). In Larios, the court realigned a

Georgia Republican state senator as a plaintiff in a suit brought by Georgia Republicans because the senator took "precisely the same positions espoused by plaintiffs." 306 F Supp at 1196. The court

in Delchamps granted the Alabama Attorney General's motion to be realigned as a plaintiff based on his belief that the statute at issue was unconstitutional. 324 F Supp at 118. Thus, realignment

is available to the court as a procedural device even if realignment would have no jurisdictional consequences. The Ninth Circuit applies a "primary purpose" test to determine whether realignment is appropriate and vests the court with responsibility to align "those parties whose interests coincide respecting the `primary matter in dispute.'" Prudential

Real Estate Affiliates v PPR Realty, 204 F3d 867, 873 (9th Cir 2000) (citing Continental Airlines v Goodyear Tire & Rubber Co, 819 F2d 1519, 1523 (9th Cir 1987)). Realignment is only appropriate,

however, where the party to be realigned "possesses and pursues its own interests respecting the primary issue in a lawsuit." Prudential Real Estate Affiliates, 204 F3d at 873; see also Dolch, 702 F2d at 181 (noting that the defendant to be realigned would "benefit" from a decision in favor of plaintiff). The primary purpose of plaintiffs' complaint is to enjoin enforcement of Proposition 8. Doc #1. The Attorney General has

admitted the material allegations of the complaint but has taken no affirmative steps in support of the relief plaintiffs seek. 4 See

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Doc #153 at 2 (stating that the Attorney General does not intend to conduct discovery or present evidence). The Attorney General's

primary interest in the lawsuit is to act as the chief law enforcement officer in California. The Attorney General's position

regarding the constitutionality of Proposition 8 is now well-known, but he would not benefit in any meaningful way from a decision in favor of plaintiffs. Cf Dolch, 702 F2d at 181.

Any prejudice proponents may experience because of the Attorney General's position regarding the constitutionality of Proposition 8 would not be remedied if the Attorney General were realigned. Counsel for the Attorney General filed a declaration

explaining that any apparent collusion between the Attorney General and plaintiffs resulting from service of the Attorney General's admissions was the result of an unintentional email error. #239-1 at ¶ 6. The Attorney General continues to enforce Doc

Proposition 8 and has informed the court he will continue to do so unless and until he is ordered by a court to do otherwise. #239 at 14. Doc

Because the Attorney General does not intend to

present evidence at trial, no procedural benefit would result from his realignment. \\ \\ \\ \\ \\ \\ \\ \\

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1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IT IS SO ORDERED.

III For the reasons explained above, realigning the Attorney General as a plaintiff would benefit neither the parties nor the court. Accordingly, proponents' motion to realign the Attorney

General is DENIED.

VAUGHN R WALKER United States District Chief Judge

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