CA9Doc 307

Case: 10-16696 02/24/2011 Page: 1 of 5 ID: 7659531 DktEntry: 307-1
IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT
KRISTIN M. PERRY, et al., No. 10-16696
Plaintiffs-Appellees,
Argued December 6, 2010
CITY AND COUNTY OF SAN
FRANCISCO,
U.S. District Court
Plaintiff-Intervenor-Appellee, Case No. 09-cv-02292 VRW
vs.
ARNOLD SCHWARZENEGGER, et al.,
Defendants,
DENNIS HOLLINGSWORTH, et al.
Defendants-Intervenors-Appellants.
PLAINTIFF-INTERVENOR-APPELLEE
CITY AND COUNTY OF SAN FRANCISCO'S
JOINDER IN MOTION TO VACATE STAY
PENDING APPEAL
On Appeal from the United States District Court

for the Northern District of California
The Honorable Vaughn R. Walker
DENNIS J. HERRERA, State Bar #139669
City Attorney
THERESE M. STEWART, State Bar #104930
Chief Deputy City Attorney
VINCE CHHABRIA, State Bar #208557
CHRISTINE VAN AKEN, State Bar #241755
Deputy City Attorneys
City Hall, Room 234
One Dr. Carlton B. Goodlett Place
San Francisco, California 94102-4682
Telephone: (415) 554-4708
Attorneys for Plaintiff-Intervenor-Appellee
CITY AND COUNTY OF SAN FRANCISCO
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In a motion filed yesterday, plaintiffs ask this Court to lift its stay of the
district court's judgment pending appeal. As plaintiffs demonstrate, the
Proposition 8 Proponents cannot make a strong showing that they are likely to
succeed on the merits of their appeal, there is no harm to them from lifting the stay,
and there is grave and irreparable harm that is inflicted on lesbian and gay couples
and their families by California's denial of the right to marry. The City and County
of San Francisco joins plaintiffs' motion.
But the City writes separately to raise an additional ground for lifting the
stay immediately: in certifying the standing question to the California Supreme
Court, this Court acknowledged that its jurisdiction is, at a minimum, uncertain.
Before granting a stay, federal courts "must make certain that an adequate basis
exists for the exercise of federal power." Demosthenes v. Baal, 495 U.S. 731, 737
(1990) (emphasis added). This rule applies even if a stay would prevent someone
from being put to death. Id. This Court therefore lacks jurisdiction to maintain its
stay.
Federal courts are courts of limited jurisdiction, Kokkonen v. Guardian Life
Ins. Co., 511 U.S. 375, 377 (1994), and "[t]hey possess only that power authorized
by Constitution and statute." Id. The burden of establishing federal jurisdiction
rests with the party invoking it. See DaimlerChrysler v. Cuno, 547 U.S. 332, 342
(2006). Here, after the district court entered judgment, the Proponents filed an
emergency motion in this Court asserting their standing to appeal the judgment
either on their own behalf or on behalf of the State of California, Doc. 4-1 at 19-23,
and claiming that the State would suffer irreparable harm if one of its laws were
enjoined. Id. at 66. This Court granted the stay but ordered expedited briefing,
including a discussion of whether " this appeal should not be dismissed for lack of
1
Article III standing." Doc. 14 at 2. Following briefing and oral argument, the
Court certified a question to the California Supreme Court, noting that it
"request[ed] clarification in order to determine whether [it has] jurisdiction to
decide this case." Id. at 8. With certification of that issue, the Court made plain
that the Proponents have not to date met their burden to establish this Court's
jurisdiction. As a result, they are not entitled to a continuing stay of the district
court's judgment.
"Without jurisdiction the court cannot proceed at all in any cause." Ex parte
McCardle, 7 Wall. 506, 514 (1868). "'The requirement that jurisdiction be
established as a threshold matter 'spring[s] from the nature and limits of the judicial
power of the United States' and is 'inflexible and without exception.'" Steel Co. v.
Citizens for a Better Environment, 523 U.S. 83, 94-95 (1998) (quoting Mansfield,
C. & L.M.R. Co. v. Swan, 111 U.S. 379, 382 (1884)). Thus, "[f]or a court to
pronounce upon the meaning or the constitutionality of a state or federal law when
it has no jurisdiction to do so is, by very definition, for a court to act ultra vires."
Id. at 101-02. Here, because this Court's jurisdiction has not been established—
indeed, turns on an unsettled question of California law—the Court cannot issue an
order resting on an evaluation of the parties' relative likelihood of success on the
merits, as a stay order necessarily does.
As this Court explained in Brewer v. Lewis, 989 F.2d 1021, 1025 (9th Cir.
1993), "[a] grant of a stay is an exercise of judicial power, and [federal courts] are
not authorized to exercise such power on behalf of a party who has not first
established standing." Accord Demosthenes, 495 U.S. at 737 ("before granting a
stay, . . . federal courts must make certain that an adequate basis exists for the
exercise of federal power."); Dennis ex rel. Butko v. Budge, 378 F.3d 880, 895 (9th
Cir. 2004) ("As [the petitioner] lacks standing, we also lack jurisdiction to stay the
2
execution."); see also Nonella v. United States, 16 Cl. Ct. 290 (1989) ("'A court
may not in any case, even in the interest of justice, extend its jurisdiction where
none exists.' . . . Absent jurisdiction, the court simply has no power to grant a
stay") (quoting Johns-Manville v. United States, 855 F.2d 1556, 1565
(Fed.Cir.1988)); In re Sunset Sales, Inc., 222 B.R. 914, 917 (B.A.P. 10th Cir.
1998) aff'd, 195 F.3d 568 (10th Cir. 1999) (where mandate had issued, "it [was]
impossible to stay the issuance of the mandate" because jurisdiction had passed).
As to whether the court may grant plaintiff a stay in the absence of
jurisdiction over the case, the answer is clearly negative. Brewer, Demosthenes,
and Butko arise in the habeas corpus context, and each holds that a federal
appellate court lacks the power even to stay an imminent execution if a putative
next friend invoking the court's habeas jurisdiction has not established the
prerequisites of next friend status and met the burden of showing jurisdiction. If,
as these cases hold, a federal appellate court may not enter a stay unless its
jurisdiction is affirmatively established even where the consequence of denying a
stay may be a wrongful execution, then it certainly cannot have that power where
the only claimed injury is an unsubstantiated and hypothetical set of unspecified
social ills that Proponents fear may somehow befall them and the rest of society if
lesbians and gay men are allowed to marry.
Nor is this a case where a stay is necessary to maintain the status quo to
preserve jurisdiction. Should it happen that Proponents are eventually determined
to have standing to maintain an appeal, the fact that some lesbian and gay citizens
of California have married while the appeal was pending would not impair this
Court's ability to review the district court's judgment any more than the 18,000
marriages of same-sex couples that occurred in California before Proposition 8 was
enacted have impaired any court's ability to test Proposition 8 against constitutional
3
standards. Because this Court has held that it requires "an authoritative
determination by the [California Supreme] Court" of Proponents' rights and
interests under California law "before [it] can determine whether Proponents have
standing to maintain this appeal," Doc. 14 at 17, the City respectfully submits that
the Court presently lacks jurisdiction to maintain a stay of the judgment.
As the Supreme Court has held, when jurisdiction is unsettled a stay of
judgment cannot be maintained. Here, this Court's certification order makes plain
that Proponents have not, to date, met their burden. The stay should be lifted unless
and until Proponents establish that this Court has the power to hear their appeal.
Dated: February 24, 2011 Respectfully submitted,

DENNIS J. HERRERA
City Attorney
THERESE M. STEWART,
VINCE CHHABRIA
CHRISTINE VAN AKEN
Deputy City Attorneys
By: s/Therese M. Stewart

THERESE M. STEWART
Attorneys for Plaintiff-Intervenor-Appellee
CITY AND COUNTY OF SAN FRANCISCO
4
9th Circuit Case Number 10-16696
CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing PLAINTIFF-INTERVENOR-

APPELLEE CITY AND COUNTY OF SAN FRANCISCO'S JOINDER IN MOTION TO
VACATE STAY PENDING APPEAL with the Clerk of the Court for the United States Court
of Appeals for the Ninth Circuit by using the appellate CM/ECF system on February 24, 2011.
Participants in the case who are registered CM/ECF users will be served by the appellate
CM/ECF system.
I further certify that some of the participants in the case are not registered CM/ECF users.
I have mailed the foregoing document by First-Class Mail, postage prepaid, or have dispatched it
to a third party commercial carrier for delivery within 3 calendar days to the following non-
CM/ECF participants:
Bailey, Arthur, Jr. Brejcha, Thomas

HAUSFELD LLP Thomas More Society
44 Montgomery Street, Suite 3400 29 S. La Salle Street, Suite 440
San Francisco, CA 94104 Chicago, IL 60603
Mateer, Jeffrey Moses, Michael F.

Liberty Institute United States Catholic Conference
2001 W Plano Parkway, Suite 1600 3211 Fourth Street, Northeast
Plano, TX 75075 Washington, DC 02991-0194
Oliphant, Lincoln C. Picarello, Anthony R., Jr., Attorney

Columbus School of Law United States Catholic Conference
The Catholic University of America 3211 Fourth Street, Northeast
Washington, DC 20064 Washington, DC 02991-0194
Roth, Stuart J., Attorney Staver, Anita L.

AMERICAN CENTER FOR LAW AND Liberty Counsel
JUSTICE P.O. Box 540774
201 Maryland Avenue, N.E. Orlando, FL 32854
Washington, DC 20002
Staver, Mathew D., Attorney

LIBERTY COUNSEL
1055 Maitland Center Commons, 2nd Floor
Maitland, FL 32751
/s/ Catheryn M. Daly

Catheryn M. Daly
9th Circuit Case Number 10-16696

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Case: 10-16696 02/24/2011 Page: 1 of 5 ID: 7659531 DktEntry: 307-1

IN THE UNITED STATES COURT OF APPEALS

DENNIS HOLLINGSWORTH, et al.

On Appeal from the United States District Court

Dated: February 24, 2011 Respectfully submitted,

By: s/Therese M. Stewart

9th Circuit Case Number 10-16696

I hereby certify that I electronically filed the foregoing PLAINTIFF-INTERVENOR-

Bailey, Arthur, Jr. Brejcha, Thomas

Mateer, Jeffrey Moses, Michael F.

Oliphant, Lincoln C. Picarello, Anthony R., Jr., Attorney

Roth, Stuart J., Attorney Staver, Anita L.

Staver, Mathew D., Attorney

/s/ Catheryn M. Daly

9th Circuit Case Number 10-16696

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