Perry et al v. Schwarzenegger et al, No. 3:2009cv02292 - Document 709 (N.D. Cal. 2010)

Court Description: ORDER denying 311 Motion to Intervene (vrwlc1, COURT STAFF) (Filed on 8/4/2010) (Entered: 08/04/2010)
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Perry et al v. Schwarzenegger et al Doc. 709 Case3:09-cv-02292-VRW Document709 Filed08/04/10 Page1 of 18 1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 5 6 7 8 United States District Court For the Northern District of California 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 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, No C 09-2292 VRW ORDER Defendants, DENNIS HOLLINGSWORTH, GAIL J KNIGHT, MARTIN F GUTIERREZ, HAKSHING WILLIAM TAM, MARK A JANSSON and PROTECTMARRIAGE.COM – YES ON 8, A PROJECT OF CALIFORNIA RENEWAL, as official proponents of Proposition 8, Defendant-Intervenors. / 28 Case3:09-cv-02292-VRW Document709 United States District Court For the Northern District of California 1 Filed08/04/10 Page2 of 18 On December 15, 2009, the County of Imperial, the Board 2 of Supervisors of the County of Imperial and Isabel Vargas, the 3 County of Imperials’s Deputy Clerk/Deputy Commissioner of Civil 4 Marriages (collectively “Imperial County”) moved under FRCP 24 to 5 intervene as defendants. 6 ensure the possibility of appellate review of the important 7 questions presented in this case, regardless of [their] outcome in 8 this [c]ourt.” Doc #311. Imperial County seeks “to Id at 10. 9 Plaintiffs oppose intervention. 10 intervenors, the official proponents of Proposition 8 11 (“proponents”) support intervention. 12 defendants filed cursory statements of non-opposition to 13 intervention. 14 (Attorney General), 321 (Los Angeles County Registrar- 15 Recorder/County Clerk), 323 (Alameda County Clerk-Recorder). 16 court heard argument on the motion on January 6, 2010. 17 #363 at 46–70 (hrg tr). 18 would ensure neither of its purported objectives in intervening and 19 because Imperial County fails to satisfy the standards for 20 intervention, Imperial County’s motion to intervene is DENIED. Doc #328. Doc #331. Defendant- The government Doc ##316 (Governor and administration), 320 The See Doc Because Imperial County’s intervention 21 22 I 23 FRCP 24 permits, under certain circumstances, the 24 intervention of a non-party in ongoing litigation. 25 applicant seeking to intervene may do so of right or by permission 26 of the court. 27 meets the requirements for intervention under FRCP 24(a) or FRCP 28 24(b). A non-party The applicant bears the burden to demonstrate it Petrol Stops Northwest v Continental Oil Co, 647 F2d 1005, 2 United States District Court For the Northern District of California Case3:09-cv-02292-VRW Document709 Filed08/04/10 Page3 of 18 1 1010 n5 (9th Cir 1981). 2 appropriate, the court is “guided primarily by practical and 3 equitable considerations.” In determining whether intervention is Id. 4 To seek intervention as of right under FRCP 24(a), an 5 applicant must make a four-part showing: (1) its application is 6 timely; (2) it has a significant protectible interest relating to 7 the property or transaction that is the subject of the action; (3) 8 the disposition of the action may practically impair its ability to 9 protect its interest; and (4) the existing parties may not 10 adequately represent its interest. 11 159 F3d 405, 409 (9th Cir 1998). 12 protectable interest’ in an action if (1) it asserts an interest 13 that is protected under some law, and (2) there is a ‘relationship’ 14 between its legally protected interest and the plaintiff[s’] 15 claims.” Donnelly v Glickman, “An applicant has a ‘significant Id at 409. 16 The court may permit the applicant to intervene under 17 FRCP 24(b) if the applicant satisfies three threshold criteria: (1) 18 its motion is timely; (2) it has independent grounds for federal 19 jurisdiction; and (3) its claim or defense and the main action 20 share a common question of law or fact. 21 996 F2d 973, 978 (9th Cir 1993). 22 Greene v United States, Under either provision of FRCP 24, the threshold inquiry 23 is whether the application is timely. 24 determination is left to the discretion of the district court. 25 Northwest Forest Resource Council v Glickman, 82 F3d 825, 836 (9th 26 Cir 1996). 27 reach the remaining elements of FRCP 24. 28 Washington, 86 F3d 1499, 1503 (9th Cir 1996). FRCP 24’s timeliness If an application is not timely, the court need not 3 United States v Case3:09-cv-02292-VRW Document709 United States District Court For the Northern District of California 1 Filed08/04/10 Page4 of 18 Imperial County asserts its motion is timely because it 2 filed its motion one month before trial began and before the court 3 entered judgment. 4 frequently permit intervention even after trial to facilitate 5 appellate review. 6 at a late stage in the proceedings and well after the court’s July 7 24, 2009 deadline for intervention motions, the court will not rely 8 on the untimeliness of Imperial County’s proposed intervention as 9 its intervention would not prejudice existing parties and there is Doc #311 at 13. Id. Although Imperial County moved to intervene 10 no showing of bad faith. 11 for Imperial County’s delay). 12 Imperial County argues courts See Doc #311 at 14 (describing reasons Furthermore, Imperial County raises serious concerns 13 whether the existing defendants are willing and able to seek 14 appellate review. 15 7. 16 Proposition 8 on appeal if no other defendant is willing or able to 17 do so. 18 turn to the other grounds for intervention beyond FRCP 24’s 19 threshold timeliness determination. See Doc #148 at 10; Doc #311 at 10; Doc #328 at Imperial County states its motive for intervention is to defend See Doc #311 at 9, 10, 20. Accordingly, the court will 20 21 22 II As explained below, Imperial County does not have a 23 significant protectible interest in the outcome of plaintiffs’ 24 constitutional challenge to Proposition 8. 25 Imperial County did have an interest in the subject matter of this 26 litigation, state law provides adequate procedures for Imperial 27 County to protect that interest, and, in addition, the current 28 state defendants adequately represent Imperial County’s interest as 4 Moreover, even if Case3:09-cv-02292-VRW Document709 1 a matter of law. 2 intervene under FRCP 24(a). Filed08/04/10 Page5 of 18 Accordingly, Imperial County is not entitled to 3 4 5 A FRCP 24(a) requires an applicant to demonstrate a 6 significant protectible interest; Imperial County asserts four, 7 none of which is significantly protectible. 8 United States District Court For the Northern District of California 9 10 1 First, Imperial County asserts county clerks and their 11 deputies have a “direct interest in the same-sex marriage debate” 12 because they perform “practical, day-to-day responsibilities 13 relating to new marriages.” 14 Doc #311 at 15. California statutes direct county clerks and county 15 recorders to perform duties relating to civil marriage. 16 City and County of San Francisco, 33 Cal 4th 1055, 1080 (2004). 17 But all of these duties are “ministerial rather than 18 discretionary.” 19 must therefore apply California marriage laws “without regard to 20 [their] own judgment or opinion concerning such act’s propriety or 21 impropriety.” 22 California Family Code designates the clerk of each county “a 23 commissioner of civil marriages.” 24 ministerial duties include solemnizing marriages, issuing marriage 25 licenses and maintaining vital marriage records. 26 400(b), § 350(a), § 511; Cal Health & Safety Code § 102285. 27 clerks are not vested with any discretion in the performance of 28 their duties relating to marriage. Id at 1081. Lockyer v Imperial County clerks and recorders Id at 1082 (internal quotation omitted). § 401(a). 5 The County clerks’ Cal Fam Code § County Case3:09-cv-02292-VRW Document709 United States District Court For the Northern District of California 1 Filed08/04/10 Page6 of 18 Under California law, the only obligation of Imperial 2 County’s clerk, Isabel Vargas, is to know the requirements of the 3 operative marriage laws so that she can perform the duties of her 4 office. 5 operative marriage laws of California following entry of judgment 6 in this case, she may pursue declaratory relief as discussed below, 7 Part (I)(B). 8 ministerial and do not create a significant protectible interest 9 that bears a relationship to the plaintiffs’ claims in this 10 If Vargas is uncertain about her duties under the Vargas’s duties as a county clerk are purely litigation. 11 12 2 13 Second, Imperial County argues its Board of Supervisors 14 has an interest in this action because the Board has “ultimate 15 responsibility to ensure that county clerks and their deputies 16 faithfully perform their legal duties, including those relating to 17 marriage.” 18 Doc #311 at 15. Although a county board of supervisors generally must 19 supervise the official conduct of county officers and ensure they 20 faithfully perform their duties, Cal Gov Code § 25303, this 21 supervisory responsibility does not extend to the marriage-related 22 duties of county clerks. 23 when performing local duties, perform their marriage-related duties 24 “under the supervision and direction of the State Registrar.” 25 Cal Health & Safety Code § 102295. 26 Health Services is designated as the State Registrar, Cal Health & 27 Safety Code § 102175, and is charged with “supervisory power over 28 local registrars, so that there shall be uniform compliance with County clerks, although local officers 6 The California Director of United States District Court For the Northern District of California Case3:09-cv-02292-VRW Document709 Filed08/04/10 Page7 of 18 1 all the requirements of [the Health and Safety Code provisions 2 relating to marriage].” 3 Lockyer, 33 Cal 4th at 1078. 4 the California Attorney General “shall assist in the enforcement 5 [of the Health and Safety Code provisions relating to marriage].” 6 Cal Health & Safety Code § 102195. 7 perform duties relating to marriage licenses and records, they are 8 state officers. 9 Lewis, 33 Cal App 792, 794 (1917)). Cal Health & Safety Code § 102180; see Upon request of the State Registrar, When California county clerks See Lockyer, 33 Cal 4th at 1080 (citing Boss v The state, not the county, 10 thus bears the “ultimate responsibility” to ensure county clerks 11 perform their marriage duties according to California law. 12 13 3 14 Third, Imperial County asserts that its Board of 15 Supervisors has an interest in this action arising from its 16 authority as a locally-elected legislative body. 17 Doc #311 at 17. California’s statutory scheme places marriage regulation 18 “solely within the province of the [state] Legislature.” 19 33 Cal 4th at 1074 (internal quotations omitted). 20 matter of statewide concern rather than a municipal affair.” 21 1080 (internal quotation marks omitted). 22 subject of marriage preempt any conflicting local laws or 23 practices. 24 statutory scheme for marriage that clearly defines the duties of 25 public officers. 26 are the only local officials to whom the state has granted any 27 duties regarding marriage, and California law does not authorize a 28 local executive “or any other comparable local official to take any Id. Lockyer, “[M]arriage is a Id at State statutes on the California has a comprehensive and uniform See id at 1079-80. 7 County clerks and recorders Case3:09-cv-02292-VRW Document709 Filed08/04/10 Page8 of 18 1 action with regard to the process of issuing marriage licenses or 2 registering marriage certificates.” 3 legally-recognized government role in the interpreting the marital 4 statutory scheme, much less one capable of establishing the 5 significant protectible interest required for intervention as of 6 right. Id. Imperial County has no 7 8 4 United States District Court For the Northern District of California 9 Fourth, Imperial County asserts an interest based on the 10 sworn duty of California public officials to support the California 11 Constitution, including Proposition 8 and the “precious initiative 12 right by which it was enacted.” 13 (attempting to draw a distinction between Imperial County’s 14 purported interest and that of local officials who refuse to follow 15 law based on their personal belief that law is unconstitutional). 16 Doc #311 at 17; see id at 17 n2 California employees and officers swear an oath of office 17 to support the California Constitution and the United States 18 Constitution. 19 § 18150 (public employees); Cal Gov Code § 1360 (state officers). 20 But Imperial County officials can have no duty to enforce an 21 unconstitutional provision. 22 (1996). 23 Proposition 8 is valid, Imperial County lacks a significant 24 protectible interest in the constitutionality of Proposition 8. Cal Const Art XX, § 3 (oath of office); Cal Gov Code See Romer v Evans, 517 US 620, 623 Furthermore, as explained in the next subsection, even if 25 26 27 28 B FRCP 24(a) requires an applicant seeking intervention as of right to demonstrate the disposition of the action may 8 United States District Court For the Northern District of California Case3:09-cv-02292-VRW Document709 Filed08/04/10 Page9 of 18 1 practically impair or impede its ability to protect its interest. 2 Imperial County argues the disposition of this action will affect 3 county officials’ ability to comply with Proposition 8 and will 4 subject them to conflicting duties. 5 lacks merit. Doc #311 at 19. This argument 6 Imperial County asserts it must intervene to avoid 7 subjecting its county clerk and her deputies to “significant 8 confusion * * * in the performance of [their] legal duties 9 regarding marriage.” 10 Vargas Decl ¶¶3–4). 11 reason to be confused and will not be subjected to conflicting 12 duties because the marriage-related legal duties performed by 13 county clerks are ministerial rather than discretionary. 14 33 Cal 4th at 1081. 15 a legal directive from the existing state defendants, who are bound 16 by the court’s judgment regarding the constitutionality of 17 Proposition 8. 18 conflicting duties and wants to challenge a directive from state 19 officials, it may independently pursue declaratory relief. 20 Doc #311-2 at ¶3; Doc #311 at 18 (citing But Imperial County’s clerk has no legitimate Lockyer, County clerks have no discretion to disregard If Imperial County believes it is subject to If Imperial County does not obey state officials, state 21 officials may seek a writ of mandate compelling Imperial County 22 officials to perform the legal duties of their public office. 23 Cal Civ Proc Code § 1085(a). 24 the California Supreme Court in Lockyer, 33 Cal 4th at 1066–67, in 25 which the court held San Francisco officials exceeded the scope of 26 their authority by refusing to enforce state marriage laws. 27 1069. 28 mandate to compel San Francisco officials to perform the duties of See This was the writ proceeding before Id at Faced with the Attorney General’s petition for writ of 9 Case3:09-cv-02292-VRW Document709 1 their office under the operative marriage laws of California, the 2 Lockyer court did not need to determine whether those laws were 3 constitutional. 4 of the constitutional validity of California's statutory provisions 5 * * * is not before our court in this proceeding”). 6 provides clear methods to resolve any dispute between the state and 7 Imperial County without regard to the constitutionality of 8 Proposition 8. 9 United States District Court For the Northern District of California Filed08/04/10 Page10 of 18 Id (“[we emphasize that the substantive question State law thus Imperial County is charged with administering —— not 10 interpreting or defending —— California’s marriage laws. 11 court’s disposition regarding the constitutionality of Proposition 12 8 has no effect on Imperial County’s ministerial duties relating to 13 marriage. The 14 15 C 16 Even if Imperial County had an interest in the 17 constitutionality of Proposition 8, FRCP 24(a) would require it to 18 demonstrate that its interest is not adequately represented by the 19 existing parties. 20 defendants do not adequately represent its interests because they 21 may decline to defend Proposition 8 on appeal. 22 Imperial County argues it has the right to intervene to stand in 23 the place of the California Attorney General and Governor as a 24 government defendant “willing to defend Proposition 8” on appeal. 25 Id at 20. 26 the state defendants as a matter of law; accordingly, the state 27 defendants adequately represent any interest Imperial County may 28 claim in the constitutionality of Proposition 8. Imperial County argues the existing state Doc #311 at 19. Imperial County cannot have an interest independent from 10 Case3:09-cv-02292-VRW Document709 United States District Court For the Northern District of California 1 Filed08/04/10 Page11 of 18 Local governments are political subdivisions of the state 2 that created them. 3 (1907). 4 state has absolute authority over the powers of a local government 5 and may modify, create or destroy those powers at will. 6 also Cal Const Art XI, § 1(a); Cal Gov Code § 23002. 7 counties are vested only with powers that “the state itself may 8 assume or resume and directly exercise.” 9 Riley, 6 Cal 2d 625, 627 (1936). Hunter v City of Pittsburgh, 207 US 161, 178–79 Because local governments are creatures of the state, the Id; see California Los Angeles County v Counties are thus vested only 10 with the authority to administer state policy and to exercise the 11 police power of the state at the local level. 12 County v Superior Court of Marin County, 53 Cal 2d 633, 638–39 13 (1960); Star-Kist Foods, Inc, v County of Los Angeles, 42 Cal 3d 1, 14 6 (1986). 15 Id; see also Marin Counties and cities in California may adopt charters for 16 local self-governance or “home rule.” 17 Local governments that have enacted a charter as their organic law 18 have more autonomy over their local affairs and an additional layer 19 of protection from preemption by state law. 20 law counties such as Imperial County lack this grant of autonomy 21 from the state. 22 legislation conflicts with state law, the local legislation is 23 preempted and is void. 24 1061, 1067 (2007). Cal Const Art XI, § 3(a). In contrast, general If a general law county’s otherwise valid local O'Connell v City of Stockton, 41 Cal 4th 25 Even charter cities, which have a layer of protection for 26 local measures that are deemed municipal affairs, may not legislate 27 on the subject of marriage. 28 California Supreme Court has made clear that “in light of both the Lockyer, 33 Cal 4th at 1080. 11 The Case3:09-cv-02292-VRW Document709 1 historical understanding * * * [and] the importance of having 2 uniform rules and procedures apply throughout the state to the 3 subject of marriage, there can be no question but that marriage is 4 a matter of ‘statewide concern’ rather than a ‘municipal affair.’” 5 Id at 1079–80. 6 conflicting local measures, including measures enacted by charter 7 cities. 9 State laws on the subject of marriage preempt all Lockyer, 33 Cal 4th at 1080. 8 United States District Court For the Northern District of California Filed08/04/10 Page12 of 18 San Francisco, a charter city and county, lacks the power to legislate on the subject of marriage because marriage is a 10 matter of statewide concern. 11 charter cities and counties lack the power to legislate on the 12 subject of marriage, then Imperial County, as a general law county, 13 has still less claim to power to legislate on the subject of 14 marriage. Lockyer, 33 Cal 4th at 1080. If 15 Given this legal framework, California law provides no 16 basis for Imperial County’s assertion that it has an interest in 17 California marriage law, much less that its interests here are not 18 adequately represented by the existing California defendants. 19 Instead, as a matter of law, only the state itself has an interest 20 in California marriage law. 21 Finally, California has not authorized any local 22 government to exercise authority on the subject of marriage or to 23 represent the interests of the state in this litigation. 24 the state defendants filed cursory statements of non-opposition to 25 Imperial County’s motion to intervene, Doc ##316, 320, these 26 statements fall far short of showing that California has delegated 27 to Imperial County its sovereign authority to defend Proposition 8 28 on appeal. Although Among the existing defendants, only proponents filed a 12 Case3:09-cv-02292-VRW Document709 Filed08/04/10 Page13 of 18 1 substantive memorandum supporting Imperial County’s intervention. 2 Doc #331. 3 authority to defend Proposition 8 on appeal. 4 The state thus has not granted Imperial County the For the foregoing reasons, Imperial County has no 5 interest in the subject of this action and is, under California 6 law, adequately represented by the existing state defendants. 7 Imperial County thus has no right to intervene under FRCP 24(a). 8 United States District Court For the Northern District of California 9 10 III Imperial County moves in the alternative for permissive 11 intervention under FRCP 24(b). 12 intervention available to Imperial County lies in FRCP 24(b)(1)(B), 13 which, in addition to a showing of timeliness, requires Imperial 14 County to show that its defense and the main action share a common 15 question of law or fact over which the court has jurisdiction. 16 Greene v United States, 996 F2d at 978 (9th Cir 1993). 17 applicant satisfies these threshold criteria, the decision whether 18 to permit intervention is committed to the discretion of the court. 19 Donnelly v Glickman, 159 F3d 405, 412 (9th Cir 1998). The only basis for permissive Once an 20 21 22 A FRCP 24(b) requires an applicant to assert independent 23 grounds for federal jurisdiction. 24 has subject matter jurisdiction to resolve the claims or defenses 25 asserted by the applicant, not whether the applicant has 26 independent Article III standing. 27 956–57 (9th Cir 1977). 28 13 The court considers whether it See Blake v Pallan, 554 F2d 947, Case3:09-cv-02292-VRW Document709 1 Imperial County seeks to join claims already before the 2 court and seeks to rely on proponents’ substantive defenses 3 regarding the constitutionality of Proposition 8. 4 20–21. 5 plaintiffs’ claims against defendants, Imperial County’s defense of 6 Proposition 8 lies within this court’s subject matter jurisdiction. 7 United States District Court For the Northern District of California Filed08/04/10 Page14 of 18 See Doc #311 at Because the court has subject matter jurisdiction over FRCP 24(b) further requires an applicant to demonstrate 8 that its claims or defenses and the main action share a common 9 question of law or fact. “The existence of a ‘common question’ is 10 liberally construed.” 11 1996) (internal citations omitted). 12 on proponents’ legal defenses regarding the constitutionality of 13 Proposition 8 on appeal. 14 County shares common questions of law and fact with the existing 15 local government defendants from the Los Angeles County and the 16 Alameda County. 17 the threshold requirements for permissive intervention and the 18 court thus turns to the discretionary factors for permissive 19 intervention. Bureegong v Uvawas, 167 FRD 83, 85 (CD Cal Imperial County seeks to rely Doc #311 at 20. Id at 21. In addition, Imperial Accordingly, Imperial County satisfies 20 21 22 B The discretionary factors include the nature and extent 23 of the applicant’s interest, whether the applicant’s interests are 24 adequately represented by other parties and whether intervention 25 will prolong or unduly delay the litigation. 26 City Bd of Ed, 552 F2d 1326, 1329 (9th Cir 1977) (internal 27 citations omitted). 28 intervention would help develop the underlying factual issues and Spangler v Pasadena In addition, the court may consider whether 14 Case3:09-cv-02292-VRW Document709 1 adjudicate the legal questions presented and, importantly, whether 2 the applicant has independent Article III standing. 3 Spangler factors weigh strongly against permitting Imperial County 4 to intervene. 5 United States District Court For the Northern District of California Filed08/04/10 Page15 of 18 Id. Here, the First, Imperial County will not contribute to the 6 development of the underlying factual issues or the adjudication of 7 the legal questions presented in this action. 8 intervention motion states unequivocally it will conduct no 9 discovery, has no information relevant to this case, seeks to Imperial County’s 10 introduce no new evidence and plans to adopt proponents’ 11 substantive legal arguments on appeal. 12 20–21. 13 party” in this action and instead seeks to intervene for one 14 reason: “to address potential problems with standing” if the 15 existing defendants are unwilling or unable to defend Proposition 8 16 on appeal. 17 Doc #311 at 9–10, 14, Imperial County does not seek to participate as an “active Id at 14, 10. With Imperial County’s stated purpose in mind, the court 18 turns to the second factor weighing against permitting Imperial 19 County to intervene: 20 standing to defend Proposition 8 on appeal. 21 Imperial County lacks independent Article III Litigants must have standing under the case-or- 22 controversy requirement of Article III, Section 2 of the United 23 States Constitution. 24 520 US 43, 64 (1997), citing NE Fla Ch, Associated General 25 Contractors of America v Jacksonville, 508 US 656, 663–64 (1993) 26 (standing required to sue); Diamond v Charles, 476 US 54, 56 (1986) 27 (standing required to defend on appeal). Arizonans for Official English v Arizona, 28 15 The party invoking Case3:09-cv-02292-VRW Document709 1 federal jurisdiction bears the burden of establishing Article III 2 standing. 3 United States District Court For the Northern District of California Filed08/04/10 Page16 of 18 Lujan v Defenders of Wildlife, 504 US 555, 561 (1992). Parties seeking to establish Article III standing must 4 demonstrate they have suffered an “injury in fact —— an invasion of 5 a legally protected interest which is (a) concrete and 6 particularized and (b) actual or imminent, not conjectural or 7 hypothetical.” 8 citations and quotations omitted). 9 with the public at large in the proper application of the 10 Constitution and laws” does not establish injury in fact. 11 Arizonans for Official English, 520 US at 64. 12 establish standing to defend on appeal in the place of an original 13 defendant must possess an interest that constitutes “a direct stake 14 in the outcome.” 15 Defenders of Wildlife, 504 US at 560 (internal “An interest shared generally Parties seeking to Id (quoting Diamond, 476 US at 62). Article III standing is not required in the district 16 court if the intervenor raises no new claims and an existing party 17 with standing that is aligned with the intervenor remains in the 18 case. 19 1108–109 (9th Cir 2002). 20 step into the shoes of the original party unless the intervenor 21 independently fulfills the requirements of Article III.” 22 for Official English, 520 US at 65 (internal citations omitted); 23 see also Didrickson v United States Dept of Interior, 982 F2d 1332, 24 1337–338 (9th Cir 1992) (“A permissive defendant-intervenor must 25 have independent jurisdictional grounds on which to pursue an 26 appeal, absent an appeal by the party on whose side the intervenor 27 intervened.”). See Kootenai Tribe of Idaho v Veneman, 313 F3d 1094, But on appeal, “[a]n intervenor cannot Arizonans The decision to seek appellate review may not be 28 16 Case3:09-cv-02292-VRW Document709 1 placed in the hands of concerned bystanders seeking to vindicate 2 valued interests. 3 Arizonans for Official English, 520 US at 64–65. To defend Proposition 8 on appeal in the absence of the 4 state defendants, Imperial County must have independent Article III 5 standing. 6 interest in this action that would justify intervention of right, 7 it lacks an injury in fact sufficient to establish Article III 8 standing. 9 United States District Court For the Northern District of California Filed08/04/10 Page17 of 18 For many of the same reasons Imperial County lacks an Imperial County’s ministerial duties surrounding marriage 10 are not affected by the constitutionality of Proposition 8. 11 Imperial County asserts its Board of Supervisors has a strong 12 interest in defending Proposition 8 on appeal because “the voters 13 of Imperial County overwhelmingly supported Proposition 8 by a 14 margin of approximately 70% to 30%.” 15 Leimgruber Decl at ¶5). 16 relating to Proposition 8 is “in the proper application of the 17 Constitution and laws.” 18 64. 19 do” as an injury in fact. Doc #311 at 17 (citing But Imperial County’s only concern Arizonans for Official English, 520 US at That concern is shared with the public at large and “will not 20 Id. Imperial County itself, as a political subdivision of 21 California, has no legally-protected interest relating to the 22 state’s marriage laws. 23 Proposition 8 on appeal if the legal representatives of the state 24 determine that defending Proposition 8 is not in the state’s best 25 interests. 26 \\ 27 \\ 28 \\ Imperial County may not stand in to defend 17 Case3:09-cv-02292-VRW Document709 1 2 Filed08/04/10 Page18 of 18 IV Imperial County’s status as a local government does not 3 provide it with an interest in the constitutionality of Proposition 4 8 or standing to defend Proposition 8 on appeal. 5 Imperial County’s motion to intervene as a defendant in this 6 action, Doc #311, is DENIED. Accordingly, 7 8 IT IS SO ORDERED. United States District Court For the Northern District of California 9 10 11 VAUGHN R WALKER United States District Chief Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18