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Case No. 09-16959 in The United States Court of Appeals For The Ninth Circuit
Case No. 09-16959 in The United States Court of Appeals For The Ninth Circuit
“Campaign”), moves this Court to expedite its appeal against Plaintiffs/Appellees KRISTIN
are listed as Appellees because they are the only parties who opposed the Campaign’s Motion to
Intervene. None of the originally named Defendants opposed the Campaign’s intervention as an
additional Defendant.
The Campaign makes this motion pursuant to 9th Cir. R. 27-12 on the grounds that
in the absence of expedited treatment, the appeal will become moot and irreparable harm
may occur.
The Campaign’s counsel has contacted counsel for the other parties regarding their
position on this motion. The County of Los Angeles and County of Alameda have responded
that they have no position on the motion. The Plaintiffs, Administration Defendants (Arnold
Schwarzenegger, Linette Scott and Mark Horton), Attorney General and Intervenor-
Defendants have responded that they do not object to the motion. As of the date and time this
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motion is being filed, the Campaign has not received a response from Intervenor-Plaintiff the
INTRODUCTION
listed along with the Plaintiffs as an adverse party in this appeal – and the Intervenor-
Defendants’ agreement to concede certain ultimate facts and expedite the prosecution of the
case illustrate why it is critical that this Court expedite the Campaign’s appeal. At issue is
At the behest of Plaintiffs the District Court set an expedited pre-trial and trial schedule
under which the case will be decided before briefing is completed in this Court. (Civil
Minute Order, District Court Dkt. # 160, Exhibit A to the Declaration of Mary E. McAlister,
“McAlister Declaration”). As a result, the Campaign’s appeal will become moot unless it
is expedited.
If the Campaign’s appeal is not expedited, then irreparable harm may occur in that
the district court will determine the constitutionality of voter-enacted constitutional and
statutory provisions before this Court can determine whether the Campaign’s participation
is necessary to create the fully developed factual record and comprehensive legal analysis
necessary to establish whether the enactments violate the United States Constitution. See City
of Hammond v. Schappi Bus Line, 275 U.S. 164, 172 (1927)(Mem)(District Court must have
Instead of acknowledging the need for well-developed facts and legal arguments to meet their
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burdens of proof, the parties emphasized simplicity and speed and decried what they viewed
as the Campaign’s proposed interference with their tactical decisions. If the appeal is not
expedited, then tactics will trump constitutional analysis before this Court has the
opportunity to determine whether exclusion of the Campaign and other tactical decisions will
constitutionality of amendments and statutes–have indicated that they will not be vigorously
defending the challenged amendment and statutes, but are delegating those obligations to
Declaration, p. 38). The Attorney General has gone one step farther, saying not only that he
will not defend the laws, but that he will join with Plaintiffs in seeking to have them
overturned. (R.T., p. 39). Neither Plaintiffs nor any of the originally named Defendants
alliance with Plaintiffs and the other Defendants’ neutral stance on the challenged provisions,
the Campaign’s request to join as a fellow defender of the constitutionality of the voter-
The reasons behind the Intervenor-Defendants’ curious alliance with the Plaintiffs to
silence any further voices in defense of the amendments and statutes became clear during the
hearing on the intervention motion and further illustrate why the Campaign’s appeal must
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involvement might delay the expeditious resolution of the case. (R.T., pp. 36, 41). More
would interfere with their tactical decision to concede certain prerequisite factual
already conceded several issues and Plaintiffs did not want the Campaign to disturb their
arrangement. (R.T. p. 36). For both Plaintiffs and Intervenor-Defendants the emphasis was
constitutional issues involved. (R.T. pp. 36, 41-42). The Campaign described the significant
Plaintiffs and Intervenor-Defendants for trying to add too much complexity and possibly
slowing down their high speed train. (R.T. pp. 18-25, 36, 41-42).
The District Court agreed with the parties, denied the Campaign’s motion to intervene
and approved an expedited pre-trial and trial schedule that will be completed before the
parties can complete their briefing in this Court. The District Court’s action guarantees that
the significant factual issues which must be analyzed in order to determine the
consideration, regardless of whether this Court would find the issues critical to the analysis.
Only expedited consideration of the Campaign’s appeal will permit this Court to
meaningfully determine whether the existing parties’ tactical decisions are constitutionally
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permissible.
LEGAL ARGUMENT
Under 9th Cir. Rule 27-12, the Campaign can move for an expedited appeal for good
cause, which includes situations in which the appeal will become moot if it is not expedited.
Alaska Center for Environment v. U.S. Forest Serv., 189 F.3d 851, 855 (9th Cir. 1999). The
schedules adopted by the District Court and this Court create just such a situation. If this
appeal is not expedited, then the case in which the Campaign is seeking intervention will be
concluded, or within days of being concluded, before the final brief is filed in this appeal.
The Time Schedule Order filed by this Court on September 4, 2009 provides that Appellant’s
Opening Brief and Excerpts of Record are to be served and filed on or before December 11,
2009; the Appellees’ Brief filed on or before January 11, 2010 and Appellant’s Reply Brief
within 14 days of the filing of the Appellees’ Brief. The District Court’s pre-trial/trial
scheduling order provides for a hearing on dispositive motions on October 14, 2009,
2009 and trial on January 11, 2010, the same day that Appellees’ brief is due in this Court.
Even if Appellants filed their brief before December 11, 2009, Appellees’ brief would still
not be due until the first day of trial on January 11, 2010. Ninth Cir. R. 31-2.1. Appellant’s
reply brief would be filed during the course of the trial of the case into which the Campaign
is seeking intervention, and this Court’s ruling would occur after the trial had concluded.
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permitted to participate as a party in pre-trial and trial proceedings that were already
concluded. Unlike the situation in Alaska Center for Environment, the circumstances of the
underlying case here would not be subject to the “capable of repetition yet evading review”
exception to mootness. Alaska Center for Environment, 189 F. 3d at 855. The Plaintiffs’
constitutional challenges are not recurring events into which the Campaign might seek
intervention in the future. Once the District Court has tried the case in January 2010, the
unless this Court grants the motion to expedite, the appeal will become moot. The question
of whether the Campaign should be precluded from providing part of that analysis should not
resolution. That is particularly true in light of the significant constitutional questions posed
When, as is true in this case, irreparable harm may result if an appeal is not expedited,
then good cause exists for expedited treatment. Ninth Circuit Rule 27-12(3). Plaintiffs are
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their due process and equal protection rights under the United States Constitution. The
Plaintiffs’ claims are novel and far-reaching, as they are asking the District Court to
invalidate the definition of marriage as the union of one man and one woman and establish
a new standard of review for claims based upon sexual orientation. The Supreme Court has
long recognized that such claims can only be decided after the facts and legal concepts
essential to the determination are developed by the district court through adequate evidence.
City of Hammond v. Schappi Bus Line, 275 U.S. 164, 172 (1927)(mem).
In this case, the essential facts and legal concepts include obtaining empirical
evidence to determine which analytic standard should be applied to Plaintiffs’ claims, and
in turn, what facts need to be established to meet the relevant burden of proof for that
standard. For the due process claim, the parties need to particularly describe the asserted
liberty interest at stake and provide the Court with facts necessary to determine whether the
intermediate scrutiny or the rational basis test. See Washington v. Glucksberg, 521 U.S. 702,
721, 723 (1997). For the equal protection claim, the parties need to provide facts to enable the
district court to establish whether Plaintiffs are being subjected to differential treatment
despite being similarly situated to other groups and whether the challenged laws burden a
fundamental right or target a suspect class. See City of Cleburne v. Cleburne Living Center,
473 U.S. 432, 439-441 (1985). In order for the district court to determine whether the
challenged laws target a suspect class, the parties must provide empirical evidence regarding
whether the challengers possess a readily identifiable characteristic, whether there has been
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a history of invidious discrimination against the group, whether the group lacks political
power, whether the group’s identifying characteristic is immutable, and whether the
situated people, no burden on a fundamental right and no targeting of a suspect class, then
it will apply the rational basis test. See id. at 439-441. If that test is applied, then Plaintiffs
would have the burden of negating every conceivable basis which might support the
those conceivable bases. See Fields v. Legacy Health Systems, 413 F.3d 943, 955 (9th Cir.
2005). If the district court determines that the laws target a quasi-suspect class, then a
heightened, or intermediate scrutiny standard will apply. Cleburne, 473 U.S. at 440-441.
Under that standard, the Defendants would have to provide the factual basis necessary for
the district court to determine that the laws serve important governmental objectives and that
the means employed are substantially related to the achievement of those objectives. See
Hibbs v. Department of Human Resources, 273 F.3d 844, 855 (9th Cir. 2001). If the district
court determines that the laws burden a fundamental right or a suspect class, then the
Defendants would have to provide the factual basis necessary for the court to determine that
there is a compelling governmental interest for making the challenged classification and that
the law is narrowly tailored to meet that interest. Cleburne, 472 U.S. at 441.
With the Attorney General aligned with the Plaintiffs and the other governmental
defendants indicating that they will not actively participate in development of the factual
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record, the task of developing the thorough factual record necessary to meet these burdens
district court that instead of creating an evidentiary record for many of the facts they were
simply going to concede that those facts exist. (See R.T. pp. 18-24). For example, the
Intervenor-Defendants said that they will not present evidence regarding history of invidious
discrimination, but will merely concede that it exists. (R.T. p. 21). The Campaign will
provide empirical evidence regarding the discrimination issue to enable the district court to
make the determination, as is required under Cleburne. (R.T. p. 21). The Intervenor-
Defendants similarly said that they will concede the identifying characteristic factor for
suspect classification, while the Campaign would provide empirical evidence to enable the
The district court found that the empirical evidence to be offered by the Campaign
would not contribute elements necessary to its determination which would otherwise not be
presented by the parties. (R.T. p. 48). Implicit in that ruling is a statement that facts related
determining suspect classification under Cleburne are not in fact necessary to the district
court’s determination of that issue. The district court also questioned whether those elements
were even appropriate to consider. (R.T. , p. 48). The court also emphasized that permitting
the Campaign to intervene would likely require additional time to develop the factual record,
time that the court did not believe was necessary. Since the district court adopted an
expedited pre-trial and trial schedule, this Court will not have the opportunity to determine
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whether the district court acted properly unless this appeal is expedited. That would mean
that the parties and the court would speed through discovery and pre-trial preparation to
create an abbreviated factual record upon which to base findings regarding fundamental
The fundamental rights at stake make this Court’s review of the district court’s action
particularly critical. This Court should not be foreclosed from reviewing those actions by the
Plaintiffs’ and district court’s desire to race toward a resolution. Granting the Campaign’s
motion to expedite the appeal will ensure that does not happen.
The Campaign’s appeal is based upon a hearing conducted on August 19, 2009. The
reporter’s transcript of that hearing is already prepared and has been placed on the District
Court’s electronic docket as Dkt. # 162. Therefore, it should be available for immediate
The Campaign would propose the following briefing schedule for the Court’s
consideration:
Appellant’s Opening Brief and Excerpts of Record due September 25, 2009;
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CONCLUSION
The Campaign’s appeal will become moot unless it is expedited by this Court. In the
absence of expedited consideration, irreparable harm may occur as the district court will
On these bases the Campaign’s motion to expedite the appeal should be granted.
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PROOF OF SERVICE
I am employed at the law firm of Liberty Counsel. I am over the age of 18 and not a party
to the within action. My business address is 100 Mountain View Road, Suite 2775, Lynchburg
Virginia 24502.
On September 10, 2009 I electronically filed this document through the ECF
system, which will send a notice of electronic filing to the parties as shown on the
I declare under penalty of perjury under the laws of the United States of America and
Mary E. McAlister
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SERVICE LIST
Charles J. Cooper
Theodore B. Olson
Matthew C. McGill David H. Thompson
Amir C. Tayranit Howard C. Nielson, Jr.
GIBSON, DUNN & CRUTCHER, LLP Peter A. Patterson
1050 Connecticut Avenue, NW 1523 New Hampshire Ave., N.W.,
Washington, D.C. 20036 Washington, D.C. 20036
(202) 955-8668
[email protected] (202) 220-9600
FAX (202) 220-9601
Theodore J. Boutrous, Jr. [email protected]
Christopher D. Dusseault
Ethan D. Dettmer Timothy Chandler
Theane Evangelis Kapur ALLIANCE DEFENSE FUND
Enrique A. Monagas
GIBSON, DUNN & CRUTCHER, LLP 101 Parkshore Dr, Suite 100
333 S. Grand Avenue Folsom, CA 95630
Los Angeles, CA 90071 (916) 932-2850
(213) 229-7804 [email protected]
[email protected]
Andrew P. Pugno
David Boies
Theodore H. Uno LAW OFFICES OF ANDREW P. PUGNO
BOIES, SCHILLER & FLEXNER, LLP 101 Parkshore Dr, Suite 100
333 Main St Folsom, CA 95630
Armonk, NY 10504 (916) 608-3065
(914) 749-8200 [email protected]
[email protected]
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1. I am an attorney duly licensed to practice law in the State of California and a member
of the bar of this Court. I work for Liberty Counsel, attorney of record for Appellant Campaign for
California Families (“the Campaign”). I have actual knowledge of the following facts and if called
upon to testify to them could and would do so competently. This Declaration is being offered in
2. On September 9, 2009, I contacted counsel for the other parties in this action and
requested that they inform me of their position regarding this Motion to Expedite. As of the date of
the filing of this Motion, I have heard from the County of Los Angeles and County of Alameda, who
have no position on the motion, and from the Plaintiffs, the Intervenor-Defendants, the Attorney
General and Administration Defendants who indicated that they do not object to the motion. As of
the date of filing of this motion I have not received a response from the Intervenor-Plaintiff City and
a true and correct copy of the Civil Minute Order issued by Chief Judge Vaughn Walker following
the August 19, 2009 hearing and listed as Dkt. # 160 on the Northern District of California’s
electronic docket.
a true and correct copy of pages 18-25, 36-42 and 48 of the Reporter’s Transcript of Proceedings,
prepared by U.S. District Court Official Reporter Belle Ball, listed as Dkt. # 162 on the Northern
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I declare under penalty of perjury under the laws of the United States of America and State
Mary E. McAlister
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SERVICE LIST
Charles J. Cooper
Theodore B. Olson
Matthew C. McGill David H. Thompson
Amir C. Tayranit Howard C. Nielson, Jr.
GIBSON, DUNN & CRUTCHER, LLP Peter A. Patterson
1050 Connecticut Avenue, NW 1523 New Hampshire Ave., N.W.,
Washington, D.C. 20036 Washington, D.C. 20036
(202) 955-8668
[email protected] (202) 220-9600
FAX (202) 220-9601
Theodore J. Boutrous, Jr. [email protected]
Christopher D. Dusseault
Ethan D. Dettmer Timothy Chandler
Theane Evangelis Kapur ALLIANCE DEFENSE FUND
Enrique A. Monagas
GIBSON, DUNN & CRUTCHER, LLP 101 Parkshore Dr, Suite 100
333 S. Grand Avenue Folsom, CA 95630
Los Angeles, CA 90071 (916) 932-2850
(213) 229-7804 [email protected]
[email protected]
Andrew P. Pugno
David Boies
Theodore H. Uno LAW OFFICES OF ANDREW P. PUGNO
BOIES, SCHILLER & FLEXNER, LLP 101 Parkshore Dr, Suite 100
333 Main St Folsom, CA 95630
Armonk, NY 10504 (916) 608-3065
(914) 749-8200 [email protected]
[email protected]
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Case3:09-cv-02292-VRW
Case: 09-16959 09/10/2009 Document160
Page: 1 of 2 Filed08/19/09
ID: 7058083 Page1 of 2 4-3
DktEntry:
VAUGHN R. WALKER
United States District Chief Judge
PLAINTIFF INTERVENOR:
City and County of San Francisco:
Therese Stewart, Christine Van Aken
Erin Bernstein, Dennis Herrera
DEFENDANTS:
Arnold Schwarzenegger, Mark Horton, Linette Scott:
Kenneth C Mennemeier
Dean C Logan - Registrar Recorder/County Clerk for the County of Los Angeles:
Judy Whitehurst
INTERVENOR DEFENDANTS:
Prop 8 Official Proponents and protectmarriage.com:
Charles J Cooper
David H Thompson
Campaign For California Families:
Rena Lindevaldsen
Exhibit A
Case3:09-cv-02292-VRW
Case: 09-16959 09/10/2009 Document160
Page: 2 of 2 Filed08/19/09
ID: 7058083 Page2 of 2 4-3
DktEntry:
1. Motion to intervene as party plaintiffs filed by the Our Family coalition, Doc #79 -
denied.
2. Motion for intervention as intervenor-defendant filed by Campaign for California
Families, Doc # 91 - denied.
3. Motion to intervene filed by City and County of San Francisco, Doc #109 - granted
in part to allow San Francisco to present issue of alleged effect on governmental
interests.
4. Trial setting and scheduling as follows:
a. Designation of witnesses presenting evidence under FRE 702, 703 or 705
and production of written reports pursuant to FRCP 26(a)(2)(B): October 2,
2009;
b. Dispositive motions to be served and filed so as to be heard on October 14,
2009 at 10 AM;
c. Completion of all discovery, except for evidence intended solely to contradict
or rebut evidence on the same subject matter identified by another party
under FRCP 26(a)(2)(B): November 30, 2009;
d. Completion of discovery on the same subject matter identified by another
party under FRCP 26(a)(2)(B): December 31, 2009; see FRCP 26(a)(2)(C)(ii);
e. Pretrial conference: December 16, 2009 at 10 AM;
f. Trial: January 11, 2010 at 8:30 AM.
5. With respect to any disputes regarding discovery, counsel are directed to comply with
Civ LR 37-1(b) and the court’s standing order 1.5.
6. In the absence of the assigned judge, counsel are directed to bring any discovery
disputes before Magistrate Judge Joseph C Spero.
Exhibit A
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Exhibit B
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Exhibit B
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Exhibit B
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Exhibit B
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Exhibit B
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Exhibit B
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Exhibit B
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Exhibit B
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Exhibit B
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Exhibit B
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Exhibit B