City and County of San Francisco v. State

• Decision Date: 27 April 2005
• Docket Number: No. A106760.,A106760.
• Citation: 128 Cal.App.4th 1030,27 Cal.Rptr.3d 722
• Court: California Court of Appeals Court of Appeals
• Parties: CITY AND COUNTY OF SAN FRANCISCO, Plaintiff and Respondent, v. STATE of California, et al., Defendants and Respondents; Proposition 22 Legal Defense and Education Fund, Movant and Appellant. Lancy Woo, et al., Plaintiffs and Respondents, v. Bill Lockyer, Defendants and Respondents; Proposition 22 Legal Defense and Education Fund, Movant and Appellant.

27 Cal.Rptr.3d 722

128 Cal.App.4th 1030

CITY AND COUNTY OF SAN FRANCISCO, Plaintiff and Respondent, v. STATE of California, et al., Defendants and Respondents;

Proposition 22 Legal Defense and Education Fund, Movant and Appellant.

Lancy Woo, et al., Plaintiffs and Respondents, v. Bill Lockyer, Defendants and Respondents;

Proposition 22 Legal Defense and Education Fund, Movant and Appellant.

No. A106760.

Court of Appeal, First District, Division 3.

April 27, 2005.

Review Denied July 20, 2005.^*

Alliance Defense Fund Law Center, Robert H. Tyler; Law Offices of Terry L. Thompson and Terry L. Thompson; Law Offices of Andrew P. Pugno and Andrew P. Pugno for Movant and Appellant.

Dennis J. Herrera, City Attorney, Therese M. Stewart, Chief Deputy City Attorney and Sherri Skoland Kaiser, Deputy City Attorney; Howard, Rice, Nemerovski, Canady, Falk & Rabkin, Bobbie J. Wilson, Pamela K. Fulmer and Amy Margolin for Plaintiff and Respondent City and County of San Francisco.

Heller Ehrman White & McAuliffe LLP, Stephen V. Bomse, Richard DeNatale, Christopher F. Stoll and Ryan R. Tacorda; National Center for Lesbian Rights, Shannon Minter and Courtney Joslin; Lambda Legal Defense and Education Fund, Jon W. Davidson and Jennifer C. Pizer; ACLU Foundation of Southern California, Peter J. Eliasberg; ACLU Foundation of Northern California, Christine P. Sun and Alan L. Schlosser; Steefel, Levitt & Weiss, Clyde J. Wadsworth and Dena L. Narbaitz; Law Office of David C.Codell and David C.Codell for Plaintiffs and Respondents Woo et al.

McGUINESS, P.J.

In a case challenging the legality of an initiative enacted by California voters, does an organization created to defend the initiative have a sufficiently direct and immediate interest in the litigation to require that it be permitted to intervene under Code of Civil Procedure section 387, subdivision (a)? Here, one such organization, the Proposition 22 Legal Defense and Education Fund (Fund), argues the trial court erred in denying its motions to intervene in two cases, since consolidated, that challenge the applicability and constitutionality of Family Code sections defining marriage in California as between a man and a woman. (Fam.Code, §§ 300, 301, 308.5.)¹ We conclude the trial court did not abuse its discretion in denying the Fund's motions for permissive intervention because the Fund has identified no direct or immediate effect that a judgment in the consolidated cases may have on it or its individual members. Although the Fund actively supports the Family Code statutes in question, its interest in upholding these laws is not sufficient to support intervention where there is no allegation the Fund or its members may suffer tangible harm from an adverse judgment. Accordingly, we affirm the order denying intervention.

BACKGROUND

On February 12, 2004, at the direction of its mayor and county clerk, the City and County of San Francisco (City) began issuing marriage licenses to same-sex couples. (See Lockyer v. City & County of San Francisco (2004) 33 Cal.4th 1055, 1070-1071, 17 Cal.Rptr.3d 225, 95 P.3d 459.) The following day, two actions were filed in superior court² seeking an immediate stay and writ relief to halt the city's actions. (Id. at p. 1071 & n. 6, 17 Cal. Rptr.3d 225, 95 P.3d 459.) On March 11, 2004, after original writ petitions were filed in the Supreme Court, that court stayed all proceedings in the two superior court actions, noting, however, that this order would not preclude the filing of a separate action raising a direct challenge to the constitutionality of California's marriage statutes. (Id. at pp. 1073-1074, 17 Cal.Rptr.3d 225, 95 P.3d 459.) Acting immediately on this suggestion, the City filed a complaint that same day challenging the validity of Family Code provisions limiting marriage in California to unions between a man and a woman. Specifically, the City sought declarations that: (1) sections 300 and 301 violate the California Constitution insofar as they prohibit licensure of same-sex marriages;³ and (2) section 308.5 either does not apply to in-state marriages or else is unconstitutional for the same reasons set forth for sections 300 and 301.⁴ The next day, March 12, 2004, a similar action (denoted Woo v. Lockyer) was filed by several individual plaintiffs, who allege they are committed same-sex couples, and two advocacy groups, Our Family Coalition and Equality California.

The Fund promptly filed ex parte applications seeking leave to intervene in the two cases. After the trial court refused to grant ex parte relief, the Fund filed noticed motions to intervene. Noting that it "represents over 15,000 residents and taxpayers of California who supported and continue to support Proposition 22," the initiative now codified as section 308.5, the Fund asserted it had an interest in the outcome of the cases "because of its interest in enforcing and defending Proposition 22 and California's marriage statutes." The Fund also cited the "active support of Proposition 22" by its board members and individual contributors as evidence of its interest in the litigation. Three of these board members, Senator William J. (Pete) Knight, Natalie Williams and Dana Cody, submitted declarations in support of the Fund's intervention motions.

Senator Knight was the official proponent of Proposition 22. He declared he "took an active role in assuring successful passage" of the initiative by working with others to create a registered ballot measure committee and by obtaining necessary signatures to submit the initiative to California voters. Now a board member and president of the Fund, Knight explained that the Fund was established approximately one year after the passage of Proposition 22 for the purpose of ensuring enforcement of the initiative, and he represented that more than 15,000 California residents had financially contributed to support this aim. Besides seeking to intervene in these actions, and others, the Fund had filed its own litigation challenging the City's licensure of same-sex marriage (see ante, fn. 2) and challenging Assembly Bill No. 205 (2003-2004 Reg. Sess.), by which the Legislature sought to extend many of the rights and benefits of marriage to registered domestic partners (Knight v. Schwarzenegger, 2004 WL 2011407 (Super.Ct.Sac.County, 2003, No. 03-AS05284)). Knight represented that "[m]any of the Fund's supporters were involved in organizing voter support" and many, like himself, had voted for Proposition 22.

Another board member, Natalie Williams, described the Fund's contributors and declared that the Fund represents her personal interests as a California elector, voter and taxpayer. Williams "regularly spoke to individuals and organizations urging support for Proposition 22" before it was enacted, and she participated in designing campaign strategies in support of the initiative. She also voted in favor of Proposition 22. In addition, Dana Cody, board member and secretary for the Fund, declared that she signed the petition to place Proposition 22 on the March 2000 ballot and participated in campaign meetings regarding the initiative. At the time, she also headed a separate public interest organization that supported passage of Proposition 22. Cody also voted in favor of Proposition 22.

On April 1, 2004, the superior court ordered the City's case consolidated with Woo v. Lockyer, and the plaintiffs later filed a joint opposition to the Fund's intervention motions. In support of their arguments, plaintiffs submitted California Supreme Court orders denying motions to intervene that several individuals (including Senator Knight) and a public interest group (Campaign for California Families) had filed in the original writ proceedings before that court. (See Lockyer v. City and County of San Francisco, supra, 33 Cal.4th at pp. 1072-1073, 17 Cal.Rptr.3d 225, 95 P.3d 459.) The trial court denied the Fund's motions to intervene after a hearing, and this appeal followed.⁵

DISCUSSION

The Fund sought permissive intervention in the consolidated cases pursuant to Code of Civil Procedure section 387, subdivision (a). This statute states, in relevant part: "Upon timely application, any person, who has an interest in the matter in litigation, or in the success of either of the parties, or an interest against both, may intervene in the action or proceeding." (Code Civ. Proc., § 387, subd. (a).) Under Code of Civil Procedure section 387, subdivision (a), "the trial court has discretion to permit a nonparty to intervene where the following factors are met: (1) the proper procedures have been followed; (2) the nonparty has a direct and immediate interest in the action; (3) the intervention will not enlarge the issues in the litigation; and (4) the reasons for the intervention outweigh any opposition by the parties presently in the action. [Citation.]" (Reliance Ins. Co. v. Superior Court (2000) 84 Cal.App.4th 383, 386, 100 Cal.Rptr.2d 807.) The permissive intervention statute balances the interests of others who will be affected by the judgment against the interests of the original parties in pursuing their litigation unburdened by others. (People v. Superior Court (Good) (1976) 17 Cal.3d 732, 736, 131 Cal.Rptr. 800, 552 P.2d 760.)

Because the decision whether to allow intervention is best determined based on the particular facts in each case, it is generally left to the sound discretion of the trial court. (Northern Cal. Psychiatric Society v. City of Berkeley (1986) 178 Cal.App.3d 90, 109, 223 Cal.Rptr. 609; Fireman's Fund Ins. Co. v. Gerlach (1976) 56 Cal.App.3d 299, 302, 128 Cal.Rptr. 396.) We therefore review an order denying leave to intervene under the abuse of discretion standard. (Reliance Ins. Co. v. Superior Court, supra, 84 Cal.App.4th at p. 386, 100 Cal.Rptr.2d 807.) Under this standard of review, a reviewing court should not disturb the trial court's exercise of discretion unless it has resulted in a miscarriage of justice. (...