Perry v. Schwarzenegger, 10-16696

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: HAWKINS
• Citation: 628 F.3d 1191
• Parties: Kristin M. PERRY; Sandra B. Stier; Paul T. Katami; Jeffrey J. Zarrillo, Plaintiffs-Appellees, City and County of San Francisco, Plaintiff-Intervenor-Appellee, 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 & 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, and Dennis Hollingsworth; Gail J. Knight; Martin F. Gutierrez; Hak-Shing William Tam; Mark A. Jansson; ProtectMarriage.com—Yes On 8, a Project of California Renewal, as official proponents of Proposition 8, Defendants-Intervenors-Appellants.
• Docket Number: No. 10-16696,10-16696
• Decision Date: 04 January 2011

628 F.3d 1191

Kristin M. PERRY; Sandra B. Stier; Paul T. Katami; Jeffrey J. Zarrillo, Plaintiffs-Appellees,
City and County of San Francisco, Plaintiff-Intervenor-Appellee,
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 & 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,
and
Dennis Hollingsworth; Gail J. Knight; Martin F. Gutierrez; Hak-Shing William Tam; Mark A. Jansson; ProtectMarriage.com—Yes On 8, a Project of California Renewal, as official proponents of Proposition 8, Defendants-Intervenors-Appellants.

No. 10-16696.

United States Court of Appeals,
Ninth Circuit.

Jan. 4, 2011.

628 F.3d 1192

David Boies, Rosanne C. Baxter, Esquire, Counsel, Boies, Schiller & Flexner, Armonk, NY, Theodore Olson, Theodore J. Boutrous, Jr., Esquire, Matthew McGill, Amir C. Tayrani, Gibson Dunn & Crutcher, LLP, Washington, DC, Ethan Douglas Dettmer, Esquire, Enrique Antonio Monagas, Sarah E. Piepmeier, Esquire, Gibson, Dunn & Crutcher LLP, San Francisco, CA, Christopher D. Dusseault, Theane Evangelis Kapur, Gibson Dunn & Crutcher, LLP, Los Angeles, CA, Jeremy Michael Goldman, Esquire, Boies, Schiller & Flexner, LLP, Oakland, CA, Theodore H. Uno, Boies Schiller & Flexner LLP, Hollywood, FL, for Plaintiffs-Appellees.

Ronald P. Flynn, Therese Stewart, Chief Deputy City, Christine Van Aken, Deputy City, Erin Bernstein, Deputy City, Mollie Mindes Lee, Deputy City, San Francisco City Attorney's Office, Vince Chhabria, Esquire, Dennis J. Herrera, City, Office of the City Attorney, Danny Chou, San Francisco, CA, for Plaintiff-Intervenor-Appellee.

Tamar Pachter, Deputy Attorney General, Daniel Powell, Deputy Attorney General, California Department of Justice, San Francisco, CA,

628 F.3d 1193

Kenneth C. Mennemeier, Jr., Mennemeier, Glassman & Stroud LLP, Sacramento, CA, Claude Franklin Kolm, Esquire, Oakland, CA, Judy W. Whitehurst, Principal Deputy County Counsel, Los Angeles County Counsel, Los Angeles, CA, for Defendants.

Terry L. Thompson, Law Office of Terry L. Thompson, Alamo, CA, for Defendants-Intervenors-Appellants.

D.C. No. 3:09-cv-02292-VRW.

Before: STEPHEN REINHARDT, MICHAEL DALY HAWKINS, and N. RANDY SMITH, Circuit Judges.

ORDER CERTIFYING A QUESTION TO THE SUPREME COURT OF CALIFORNIA

Before this panel of the United States Court of Appeals for the Ninth Circuit is an appeal concerning the constitutionality under the United States Constitution of Article I, § 7.5 of the California Constitution ("Proposition 8"). Because we cannot consider this important constitutional question unless the appellants before us have standing to raise it, and in light of Arizonans for Official English v. Arizona, 520 U.S. 43, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997) (" Arizonans "), it is critical that we be advised of the rights under California law of the official proponents of an initiative measure to defend the constitutionality of that measure upon its adoption by the People when the state officers charged with the laws' enforcement, including the Attorney General, refuse to provide such a defense or appeal a judgment declaring the measure unconstitutional. As we are aware of no controlling state precedent on this precise question, we respectfully ask the Supreme Court of California to exercise its discretion to accept and decide the certified question below.

I. Question Certified

Pursuant to Rule 8.548 of the California Rules of Court, we request that the Court answer the following question:

Whether under Article II, Section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure possess either a particularized interest in the initiative's validity or the authority to assert the State's interest in the initiative's validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so.

We understand that the Court may reformulate our question, and we agree to accept and follow the Court's decision. Cal. R. Ct. 8.548(b)(2), (f)(5).

II. Background

A

This appeal concerns a subject that is familiar to the Supreme Court of California: the constitutionality of excluding same-sex couples from the institution of marriage in California. In May 2008, the Court declared that California statutes limiting marriage to opposite-sex couples were unconstitutional under the equal protection clause of the California Constitution. The Court then invalidated those statutes and prohibited their enforcement. In re Marriage Cases, 43 Cal.4th 757, 76 Cal.Rptr.3d 683, 183 P.3d 384, 452-453 (2008). In the months that followed, California issued approximately 18,000 marriage licenses to same-sex couples.

Then, in November 2008, the People of the State of California voted to adopt Proposition 8, an initiative constitutional amendment that "added a new section—section 7.5—to article I of the California Constitution, providing: 'Only marriage

628 F.3d 1194

between a man and a woman is valid or recognized in California.' " Strauss v. Horton, 46 Cal.4th 364, 93 Cal.Rptr.3d 591, 207 P.3d 48, 59 (2009). Proposition 8 had been placed on the ballot by five Californians, Defendants-Intervenors-Appellants Dennis Hollingsworth, Gail J. Knight, Martin F. Gutierrez, Hak-Shing William Tam, and Mark A. Jansson, whom California law recognizes as the official "proponents" of the measure.¹ Cal. Elec.Code § 342.

After Proposition 8 was enacted, opponents of the measure brought an original action for a writ of mandate in the Supreme Court of California, seeking invalidation of Proposition 8 as an improper attempt by the People to revise, rather than amend, the California Constitution through exercise of the initiative power. The three named respondents in that proceeding, Mark D. Horton, Linette Scott, and Edmund G. Brown, Jr.—also defendants here—refused to defend the measure's constitutionality under state law, but remained parties to the proceeding; Proponents were permitted to intervene and defended Proposition 8 as a lawful initiative constitutional amendment. The Court then upheld Proposition 8 against the opponents' challenge, but preserved the 18,000 marriages of same-sex couples that had already been performed. Strauss, 93 Cal.Rptr.3d 591, 207 P.3d at 114, 119, 122.

B

Days before Strauss was decided, plaintiffs-appellees filed this action in the United States District Court for the Northern District of California, alleging that Proposition 8 violates the Fourteenth Amendment to the United States Constitution and seeking declaratory and injunctive relief. The named defendants—the three officers who were respondents in Strauss, plus the Governor and the County Clerks of Alameda and Los Angeles Counties—filed answers to the complaint but declined to defend the measure's constitutionality. Proponents were then permitted to intervene to do so. After a twelve-day bench trial, the district court made findings of fact, and "conclude[d] that Proposition 8 is unconstitutional" under both the Due Process Clause and the Equal Protection Clause. Perry v. Schwarzenegger, 704 F.Supp.2d. 921, 1003 (N.D.Cal.2010). The court then entered the following injunction:

Defendants in their official capacities, and all persons under the control or supervision of defendants, are permanently enjoined from applying or enforcing Article I, § 7.5 of the California Constitution.

This court stayed the injunction pending appeal; Proposition 8 remains in effect in California pending our final decision.

628 F.3d 1195

Plaintiffs and Proponents disagree as to the legal status of Proposition 8 should it be determined that we are without jurisdiction to hear this appeal.²

Proponents appealed the district court order, but the named official defendants did not. We asked the parties to brief, as a preliminary matter, the Proponents' standing to seek review of the district court order, in light of Arizonans and earlier decisions of the United States Supreme Court. Having considered the parties' briefs and arguments, we are now convinced that Proponents' claim to standing depends on Proponents' particularized interests created by state law or their authority under state law to defend the constitutionality of the initiative, which rights it appears to us have not yet been clearly defined by the Court. We therefore request clarification in order to determine whether we have jurisdiction to decide this case.

III. Explanation of Certification

This court is obligated to ensure that it has jurisdiction over this appeal before proceeding to the important constitutional questions it presents, and we must dismiss the appeal if we lack jurisdiction. The certified question therefore is dispositive of our very ability to hear this case.³

A

"The standing Article III requires must be met by persons seeking appellate review, just as it must be met by persons appearing in courts of first instance." Arizonans, 520 U.S. at 64, 117 S.Ct. 1055. Having been granted intervention in the district court is not enough to establish standing to appeal; "an intervenor's right to continue a suit in the absence of the party on whose side intervention was permitted is contingent upon a showing by the intervenor that he fulfills the requirements of Art. III." Diamond v. Charles, 476 U.S. 54, 68, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986). Where a plaintiff in federal district court must demonstrate "an 'injury in fact'—an...