Perry v. Proposition 8 Official Proponents

• Decision Date: 19 November 2009
• Docket Number: No. 09-16959.,09-16959.
• Citation: 587 F.3d 947
• Court: U.S. Court of Appeals — Ninth Circuit
• Parties: Kristin M. PERRY; Sandra B. Stier; Paul T. Katami; Jeffrey J. Zarrillo, Plaintiffs-Appellees, v. PROPOSITION 8 OFFICIAL PROPONENTS, Defendant-intervenor-Appellee, Campaign for California Families, Defendant-intervenor-Appellant, and 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 & 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 Clerk-Recorder for the County of Alameda; Dean C. Logan, in his official capacity as Registrar-Recorder/County Clerk for the County of Los Angeles, Defendants, Dennis Hollingsworth; Gail J. Knight; Hak-Shing William Tam; Mark A. Jansson; Protectmarriage.Com—Yes On 8, A Project of California Renewal, Defendant-intervenors, Martin F. Gutierrez, Defendant-intervenor.

587 F.3d 947

Kristin M. PERRY; Sandra B. Stier; Paul T. Katami; Jeffrey J. Zarrillo, Plaintiffs-Appellees, v. PROPOSITION 8 OFFICIAL PROPONENTS, Defendant-intervenor-Appellee Campaign for California Families, Defendant-intervenor-Appellant, and 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 & 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 Clerk-Recorder for the County of Alameda; Dean C. Logan, in his official capacity as Registrar-Recorder/County Clerk for the County of Los Angeles, Defendants Dennis Hollingsworth; Gail J. Knight; Hak-Shing William Tam; Mark A. Jansson; Protectmarriage.Com—Yes On 8, A Project of California Renewal, Defendant-intervenors Martin F. Gutierrez, Defendant-intervenor.

No. 09-16959.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 4, 2009.

Filed November 19, 2009.

Mary E. McAlister and Mathew D. Staver, Liberty Counsel, Lynchburg, VA, for the intervenor-appellant.

Matthew D. McGill and Theodore B. Olson, Gibson, Dunn & Crutcher LLP, Washington, DC, for plaintiffs-appellees.

Charles J. Cooper and Howard C. Nielson, Cooper and Kirk, PLLC, Washington, DC, for intervenor-appellees.

Appeal from the United States District Court for the Northern District of California, Vaughn R. Walker, Chief District Judge, Presiding. D.C. No. 3:09-cv-02292-VRW.

Before: PAMELA ANN RYMER, M. MARGARET McKEOWN and N. RANDY SMITH, Circuit Judges.

McKEOWN, Circuit Judge:

We consider whether a public interest organization is entitled to intervene in a suit challenging the constitutionality of Proposition 8 ("Prop. 8"), a state ballot initiative restricting the definition of marriage to the union of a man and a woman under California law. The Campaign for California Families ("the Campaign") seeks to intervene in part because it alleges that the Official Proponents of Prop. 8 and ProtectMarriage.com—parties to the suit—will not adequately represent all the Campaign's interests in the litigation. The reality is that the Campaign and those advocating the constitutionality of Prop. 8 have identical interests—that is, to uphold Prop. 8. Any differences are rooted in style and degree, not the ultimate bottom line. Divergence of tactics and litigation strategy is not tantamount to divergence over the ultimate objective of the suit. Because the existing parties will adequately represent the Campaign's interests, we affirm the district court's denial of intervention as of right. We also dismiss the appeal in part because the district court did not abuse its discretion in denying permissive intervention.

BACKGROUND

On November 4, 2008, voters approved Prop. 8, a state ballot initiative that amended the California Constitution to provide that "[o]nly marriage between a man and a woman is valid or recognized in California." CAL. CONST. art. I, § 7.5. On May 22, 2009, Kristen M. Perry and several gay and lesbian residents of California who wish to marry (together, "Perry") filed suit seeking a declaration that Prop. 8 and any other California law that bars same-sex marriage are unconstitutional under the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the U.S. Constitution, and an injunction preventing the State from enforcing Prop. 8 and any other similar California law. The defendant Governor, state administrative officers, and county clerks declined to take any position on the constitutionality of Prop. 8. The defendant California Attorney General responded that he agreed that Prop. 8 was unconstitutional. The district court granted an unopposed motion to intervene by the Official Proponents of Prop. 8 and ProtectMarriage.com—a ballot committee under California law (together, "the Proponents")—so that they could defend the constitutionality of Prop. 8.

The Campaign unsuccessfully moved to intervene as a defendant as well.¹ The district court denied the Campaign's motion to intervene as of right because the Campaign failed to show that it had a significantly protectable interest in the subject matter of the litigation, that the disposition of the action might practically impair or impede its ability to protect its interest, or that its interest was not adequately represented by the existing parties to the action. The Campaign's motion for permissive intervention failed for similar reasons. Finally, the district court noted that the Campaign could seek leave to file amicus briefs on "specific legal issues that [it] believe[s] require elaboration or explication that the parties fail to provide."

ANALYSIS

I. INTERVENTION AS OF RIGHT

We have jurisdiction to review the denial of intervention as of right as a "final decision" under 28 U.S.C. § 1291. League of United Latin Am. Citizens v. Wilson (LULAC), 131 F.3d 1297, 1302 (9th Cir.1997). We review such decisions de novo. Prete v. Bradbury, 438 F.3d 949, 953 (9th Cir.2006). An applicant for intervention as of right must satisfy four criteria under Federal Rule of Civil Procedure 24(a)(2):

(1) the applicant must timely move to intervene; (2) the applicant must have a significantly protectable interest relating to the property or transaction that is the subject of the action; (3) the applicant must be situated such that the disposition of the action may impair or impede the party's ability to protect that interest; and (4) the applicant's interest must not be adequately represented by existing parties.

Arakaki v. Cayetano, 324 F.3d 1078, 1083 (9th Cir.2003) (citing Donnelly v. Glickman, 159 F.3d 405, 409 (9th Cir.1998)). Failure to satisfy any one of the requirements is fatal to the application, and we need not reach the remaining elements if one of the elements is not satisfied. See California ex rel. Van de Kamp v. Tahoe Reg'l Planning Agency, 792 F.2d 779, 781 (9th Cir.1986). As we explain below, the Campaign failed to show that the Proponents will not adequately represent its interests in the litigation. Consequently, we do not address any of the other requirements of Rule 24(a)(2).²

II. ADEQUACY OF REPRESENTATION

The "most important factor" to determine whether a proposed intervenor is adequately represented by a present party to the action is "how the [intervenor's] interest compares with the interests of existing parties." Arakaki, 324 F.3d at 1086 (citations omitted). Where the party and the proposed intervenor share the same "ultimate objective," a presumption of adequacy of representation applies, and the intervenor can rebut that presumption only with a "compelling showing" to the contrary. Id. (citing LULAC, 131 F.3d at 1305).

A. THE CAMPAIGN AND THE PROPONENTS SHARE THE SAME "ULTIMATE OBJECTIVE" IN THE SUIT

Despite the Campaign's quibble over fine details, even "interpret[ing] the requirements broadly in favor of intervention," Donnelly, 159 F.3d at 409 (citation omitted), it is apparent to us that the ultimate objective of the Campaign and the Proponents is identical—defending the constitutionality of Prop. 8 and the principle that the traditional definition of marriage is the union of a man and a woman. In an effort to sidestep this unity of interest, the Campaign argues that it bears an interest beyond defending the constitutionality of Prop. 8: namely, "the constitutionality of defining marriage as the union of a man and a woman, which goes beyond merely the language of Proposition 8." This is so, according to the Campaign, because Perry's suit does not implicate the validity of Prop. 8 alone, but rather "any California law that defines marriage as the union of a man and a woman," including "numerous statutes and other legislative enactments that refer to marriage, including measures that the Campaign sponsored, helped to enact[,] and worked to preserve." The Campaign's only example of such a measure is Proposition 22, codified as CAL. FAM. CODE § 308.5 (2000), which provided that "[o]nly marriage between a man and a woman is valid or recognized in California" and was invalidated by the California Supreme Court in In re Marriage Cases, 43 Cal.4th 757, 76 Cal.Rptr.3d 683, 183 P.3d 384, 452-53 (2008). The Campaign also cites its lawsuits against California AB205, which granted marriage rights to same-sex couples, and against San Francisco Mayor Gavin Newsom when he attempted to issue marriage licenses to same-sex couples, as well as its work in defense of Prop. 8 as evidence of the Campaign's "broader" interest in defending the opposite-sex definition of marriage in California.

When pressed at oral argument to put some meat on the bare bones of the claim that its interest is broader than that of the Proponents, the Campaign was unable to do so. Taken together, the Campaign's statements simply circle back to Prop. 8. Indeed, the only marriage-related measure outside of Prop. 8 cited by the Campaign, Proposition 22, is verbatim identical to Prop. 8. We agree with the district court that the Campaign failed to explain "how Proposition 8, if upheld as constitutional, would fail to assure this claimed broader interest in defining marriage as only an opposite-sex union."

As the district court aptly held, the Campaign's interest in defending the opposite-sex definition of marriage under California law is not "meaningfully distinct" from the Proponents' interest in defending the constitutionality of Prop. 8. Rather, whether California may constitutionally define marriage as the union of a man and a woman will be wholly determined by the ultimate ruling on the constitutionality of Prop. 8, because any California law defining marriage as the union of a man and a woman would be invalidated if Prop. 8 were...