Plaintiffs' Reply Letter to CA Supreme Court

8/7/2019 Plaintiffs' Reply Letter to CA Supreme Court

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GIBSON DUNN

Supreme Court of California, No. S189476February 2, 2011Page 2

Proponents rely on Connerly v. State Personnel Board (2006) 37 Cal.4th 1169, 1178-79 and Costa v. Superior Court (2006) 37 Cal.4th 986,1007-08 for the unremarkableproposition that proponents of ballot initiatives have a state-recognized interest in thecampaign process itself. Prop. Letter p. 3; see also Connerly, 37 Cal.4th at pp. 1178-79(discussing Sonoma Co. Nuclear Free Zone '86 v. Super. Ct. (1987) 189 Cal.App.3d 167).These decisions applying state law in state court are irrelevant to the question whetherproponents possess Article III standing to appeal an adverse judgment in federal court. SeeBaker v. Carr (1962) 369 U.S. 186,204 (standing in federal court "is, of course, a questionof federal law"). In any event, those cases arose in a different posture from proponents'pending appeal in the Ninth Circuit, which is a challenge to the constitutionality ofProposition 8, rather than to the process that placed the initiative on the ballot.

Proponents also concede that this Court has never afforded initiative proponents theauthority under state law to represent the interest of the State. See Prop. Letter pp. 3-4. Infact, it is already well-settled under California law that initiative proponents do not possessthe authority to represent the State's interest-as opposed to their own interest-regarding aninitiative's validity. See In re Marriage Cases (2008) 43 Cal.4th 757, 790-91. And, as theNinth Circuit observed in its certification request, nothing in Strauss v. Horton (2009)46 Cal.4th 364 suggests that proponents have either a particularized interest in the validity ofProposition 8 or the authority to assert the State's interest in its validity. See Perry v.Schwarzenegger (9th Cir. Jan. 4, 2011, No. 10-16696) _ F.3d _ [at pp. 13-14]. InStrauss, this Court (like the district court here) merely permitted proponents to intervene toadvance their own interest in Proposition 8 in a proceeding in which the State was also aparty; that decision to permit intervention has no bearing on whether proponents possessArticle III standing to pursue an appeal in the absence of the State. See Diamond v. Charles(1986) 476 U.S. 54,68 ("Diamond's status as an intervenor below . . . does not conferstanding sufficient to keep the case alive in the absence of the State on this appeal.").

Karcher v. May (1987) 484 U.S. 72 underscores this conclusion. In Karcher, theUnited States Supreme Court held that the Speaker of the New Jersey General Assembly andPresident of the New Jersey Senate possessed standing to pursue an appeal because theywere "authorize[d]" under "state law . . . to represent the State's interests." Arizonans/orOfficial English v. Arizona (1997) 520 U.S. 43, 65 (citing Karcher, 484 U.S. at p. 82). Oncethe legislators lost their leadership posts in the New Jersey Legislature, however, they"lack[ed] authority to pursue [an] . . . appeal" because "[t]he authority to pursue the lawsuiton behalf of the legislature belong[ed] to those who succeeded [them] . . . in office."Karcher, 484 U.S. at pp. 77, 81.

There is nothing in California law that authorizes proponents to represent the interestof the State in litigation challenging the constitutionality of a ballot initiative. Thus,proponents are in the same position as the former legislative leaders in Karcher-they are no


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GIBSON DUNNSupreme Court of California, No. S189476February 2, 2011Page 3

different from the millions of other California voters who supported Proposition 8 and wholack standing to represent the State's interest in the validity of the initiative.Proponents nevertheless contend that, if they are not permitted to pursue an appeal inthis case, "the validity of initiative measures will rest solely in the hands of the very publicofficials the initiative process was meant to control, and who very well may be hostile to the

initiative." Prop. Letter p. 4. But proponents have already been afforded the opportunity tomount a vigorous defense ofProposition 8 during the twelve-day bench trial conducted bythe district court. Without opposition from any party, the district court permitted proponentsto intervene in that proceeding to defend Proposition 8. Thus, the defense ofProposition 8clearly did not "rest solely in the hands of' the Governor and the Attorney General.Proponents forcefully defended their initiative in the district court-and lost.Proponents now seek to circumvent the discretion that the California Constitution andstate law grant to the Governor and Attorney General to determine whether to appeal a

judgment that has invalidated a state enactment. See, e.g., Gov. Code, 12511 (the"Attorney General has charge, as attorney, of all legal matters in which the State isinterested"); State v. Super. Ct. (1986) 184 Cal.App.3d 394,397-98. This Court has alreadymade clear, however, that ballot initiative proponents and other private parties lack theauthority to second-guess that discretionary determination. See Beckley v. Schwarzenegger,No. S1860n (Sept. 8,2010).II. I f Certification Is Granted, Expedited Treatment OfThis Case Is Warranted.

Because the certification request raises only issues of federal law and settled issues ofstate law, certification would needlessly prolong the denial ofplaintiffs' constitutional rights.In the event that the Court decides to grant the Ninth Circuit's request, plaintiffs respectfullyrequest that the Court expedite its treatment of this case to the greatest extent possible.As every court considering this case has concluded, expedited treatment is warranted becauseplaintiffs suffer grievous, irreparable harm each day that Proposition 8 continues to denythem the right to marry. See District Court D.E. 76 at p. 9 (June 30, 2009) ("The just, speedyand inexpensive determination of these issues would appear to call for proceeding promptlyto trial."); Ninth Circuit D.E. 14 at p. 2 (Aug. 16,2010) (setting expedited briefing schedule).On a daily basis, plaintiffs are told by the State of California that they are not good enough toenter into the fundamental institution ofmarriage and that their relationships are somehowinferior to, and less worthy than, those of heterosexual individuals. That invidiousdiscrimination cannot be undone and inflicts enduring and irremediable harm on plaintiffs.See Nelson v. NASA (9th Cir. 2008) 530 F.3d 865, 882 ("[C]onstitutional violations cannot beadequately remedied through damages and therefore generally constitute irreparable harm. ").


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CERTIFICATE OF SERVICEI declare that I am, and was at the time of service hereinafter mentioned, atleast 18 years of age and not a party to the above-entitled action. I am employedin the City and County of San Francisco. My business address is 555 Mission

Street, Suite 3000, San Francisco, California 94105. On February 2, 2011,I caused to be served the following documents:PLAINTIFFS-APPELLEES' REPLY LETTER REGARDING

THE NINTH CIRCUIT'S CERTIFICATION REQUESTby placing a true copy thereof in an envelope addressed to each of the personsnamed below at the address shown, in the following manner:

SEE SERVICE LIST BELOW0' BY MAIL: I placed a true copy in a sealed envelope for deposit in theU.S. Postal Service through the regular mail collection process at Gibson,

Dunn & Crutcher LLP on the date indicated above. I am familiar with thefirm's practice for collection and processing of correspondence for mailingwith the U.S. Postal Service. It is deposited with the U.S. Postal Servicewith postage prepaid on that same day in the ordinary course of business.I am aware that on motion of a party served, service is presumed invalid ifthe postal cancellation date or the postage meter date is more than one dayafter the date of deposit for mailing in the declaration.0' BY EMAIL: By agreement of the parties, a copy was emailed to the emailaddresses listed below.CounselCharles 1. CooperDavid H. ThompsonHoward C. Nielson, lr.Peter A. PattersonCooper & Kirk, PLLC1523 New Hampshire Avenue, N.W.Washington, DC [email protected]@cooperkirk.comAndrew P. PugnoLaw Offices of Andrew P. Pugno101 Parkshore Drive, Suite 100Folsom, CA [email protected]

Attorneys ForAttorneys for DefendantsIntervenors-Appellants

Attorneys for DefendantsIntervenors-Appellants


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Brian W. RaumJames A. CampbellAlliance Defense Fund15100 North 90th StreetScottsdale, AZ [email protected] [email protected] J. HerreraTherese StewartChristine VanAkenSan Francisco City Attorney's OfficeCity Hall 234One Dr. Carlton B. Goodlett PlaceSan Francisco, CA [email protected]. van.ak:[email protected] PachterDaniel PowellDeputy Attorney GeneralCalifornia Department of Justice455 Golden Gate Avenue, Suite 11000San Francisco, CA [email protected] C. Mennemeier, JrAndrew W. StroudMennemeier, Glassman & Stroud LLP980 9th Street, Suite 1700Sacramento, CA [email protected]@mgslaw.com

Claude Franklin KolmOffice ofCounty Counsel1221 Oak: Street, Suite 450Oakland, CA [email protected]

Attorneys for DefendantsIntervenors-Appellants

Attorneys for Plaintiff-IntervenorAppellee City and County of SanFrancisco

Attorneys for Defendant Edmund G.Brown, Jr., in his official capacity asAttorney General ofCalifornia

Attorneys for Defendants ArnoldSchwarzenegger, in his officialcapacity as Governor of California;Mark B. Horton, in his officialcapacity as Director of the CaliforniaDepartment ofPublic Health & StateRegistrar ofVital Statistics; andLinette Scott, in her official capacityas Deputy Director ofHealthInformation & Strategic Planning forthe California Department of PublicHealth (the "AdministrationDefendants")Attorneys for Defendant PatrickO'Connell, in his official capacity asClerk-Recorder for the County ofAlameda


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Judy W. WhitehurstPrincipal Deputy County CounselLos Angeles County Counsel648 Kenneth Hahn Hall of

Administration500 West Temple Street, 6th FloorLos Angeles, CA [email protected] of the GovernorAttn: Legal DepartmentState Capitol BuildingSacramento, CA 95814(VIA U.S. MAIL ONLY)Office of the Attorney General455 Golden Gate Avenue, Suite 11000San Francisco, CA 94102-7004(VIA U.S. MAIL ONLY)Ms. Molly C. DwyerClerk of the CourtUnited States Court ofAppeals

for the Ninth CircuitJames Browning Courthouse95 7th StreetSan Francisco, CA 94103(VIA U.S. MAIL ONLY)

Attorneys for Defendant Dean C.Logan, in his official capacity asRegistrar-Recorder/County Clerk forthe County of Los Angeles

Attorneys for the GovernorEdmund G. Brown, Jr.

Attorneys for the Attorney GeneralKamala D. Harris

United States Court ofAppeals forthe Ninth Circuit

I certify under penalty of perjury that the foregoing is true and correct, thatthe foregoing document(s) were printed on recycled paper, and that thisCertificate of Service was executed by me on February 2, 20ll , at San Francisco,California.

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Documents

Plaintiffs' Reply Letter to CA Supreme Court