Case: 09-16959 09/10/2009 Page: 1 of 15 ID: 7058083 DktEntry: 4-1

Case No. 09-16959

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KRISTIN M. PERRY, SANDRA B. STIER, PAUL T. KATAMI, and JEFFREY J.

ZARRILLO, Plaintiffs/Appellees
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 Clerk-
Recorder for the County of Alameda; and DEAN C. LOGAN, in his official capacity as
Registrar-Recorder/ County Clerk for the County of Los Angeles, Defendants.

CAMPAIGN FOR CALIFORNIA FAMILIES, Proposed Intervenor-Defendant/Appellant

PROPOSITION 8 OFFICIAL PROPONENTS DENNIS HOLLINGSWORTH, GAIL J.

KNIGHT, MARTIN F. GUTIERREZ, HAK-SHING WILLIAM TAM, and MARK A.
JANSSON; andPROTECTMARRIAGE.COM-YES ON 8, A PROJECT OF CALIFORNIA
RENEWAL, Intervenor-Defendants/Appellees
________________________________________________________________________
Appeal from the United States District Court for the Northern District of California
Honorable Vaughn R. Walker, U.S. District Judge
Case No. CV-09-02292 VRW
________________________________________________________________________
APPELLANT’S MOTION TO EXPEDITE APPEAL
_________________________________________________________________________
MARY E. MCALISTER MATHEW D. STAVER
STEPHEN M. CRAMPTON ANITA L. STAVER
RENA M. LINDEVALDSEN LIBERTY C OUNSEL
LIBERTY COUNSEL P.O. Box 540774
P.O. Box 11108 Orlando, FL 32854
Lynchburg, VA 24506 (800)671-1776 Telephone
(434) 592-7000 Telephone
(407) 875-0770 Facsimile
(434) 592-7700 Facsimile
[email protected] Email
[email protected] Email

Attorneys for Appellant Campaign for California Families

 Case: 09-16959 09/10/2009 Page: 2 of 15 ID: 7058083 DktEntry: 4-1

Appellant, proposed Defendant-Intervenor Campaign for California Families (the

“Campaign”), moves this Court to expedite its appeal against Plaintiffs/Appellees KRISTIN

M. PERRY, SANDRA B. STIER, PAUL T. KATAMI, and JEFFREY J. ZARRILLO

(“Plaintiffs”) and Intervenor-Defendants/Appellees PROPOSITION 8 OFFICIAL

PROPONENTS DENNIS HOLLINGSWORTH, GAIL J. KNIGHT, MARTIN F.

GUTIERREZ, HAK-SHING WILLIAM TAM, and MARK A. JANSSON and

PROTECTMARRIAGE.COM-YES ON 8, A PROJECT OF CALIFORNIA RENEWAL

(“Intervenor-Defendants”). As a point of clarification, only the Plaintiffs and Intervenor-Defendants

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.

PARTIES’ POSITION ON THE MOTION

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

2
 Case: 09-16959 09/10/2009 Page: 3 of 15 ID: 7058083 DktEntry: 4-1

motion is being filed, the Campaign has not received a response from Intervenor-Plaintiff the

City and County of San Francisco.

INTRODUCTION

The unusual alignment of parties in this case – with a fellow Intervenor-Defendant

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

whether thorough constitutional analysis can be sacrificed in favor of a speedy resolution.

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

an adequate, unambiguous record before it can rule on significant constitutional issues).

Instead of acknowledging the need for well-developed facts and legal arguments to meet their

3
 Case: 09-16959 09/10/2009 Page: 4 of 15 ID: 7058083 DktEntry: 4-1

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

do justice to the significant constitutional issues raised in this case.

The originally named government Defendants–the parties obligated to defend the

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

third-party intervenors. (See Reporter’s Transcript (“R.T.”), Exhibit B to McAlister

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

opposed Intervenor-Defendants’ motion to intervene. Because of the Attorney General’s

alliance with Plaintiffs and the other Defendants’ neutral stance on the challenged provisions,

Intervenor-Defendants were left as the only true “defendants” of the voter-approved

initiatives. Nevertheless, Intervenor-Defendants joined the Plaintiffs in vigorously opposing

the Campaign’s request to join as a fellow defender of the constitutionality of the voter-

approved initiatives challenged by Plaintiffs. (R.T., pp. 36-37 and 41-42).

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

4
 Case: 09-16959 09/10/2009 Page: 5 of 15 ID: 7058083 DktEntry: 4-1

be expedited. Plaintiffs and Intervenor-Defendants expressed concerns that the Campaign’s

involvement might delay the expeditious resolution of the case. (R.T., pp. 36, 41). More

tellingly, Intervenor-Defendants emphasized that permitting the Campaign to intervene

would interfere with their tactical decision to concede certain prerequisite factual

determinations critical to defending the constitutional and statutory provisions being

challenged by Plaintiffs. (R.T. pp 41-42). Plaintiffs affirmed that Intervenor-Defendants had

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

on speedy completion of the case instead of on reasoned analysis of the significant

constitutional issues involved. (R.T. pp. 36, 41-42). The Campaign described the significant

constitutional issues being conceded by Intervenor-Defendants, but was rebuffed by both

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

constitutionality of the challenged provisions will be given abbreviated consideration or no

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

5
 Case: 09-16959 09/10/2009 Page: 6 of 15 ID: 7058083 DktEntry: 4-1

permissible.

LEGAL ARGUMENT

I. THE CAMPAIGN’S APPEAL WILL BECOME MOOT IF IT IS NOT

EXPEDITED BY THIS COURT.

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,

completion of discovery by November 30, 2009, a pre-trial conference on December 16,

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.

6
 Case: 09-16959 09/10/2009 Page: 7 of 15 ID: 7058083 DktEntry: 4-1

Consequently, this Court would be deciding whether the Campaign should be

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

Campaign’s opportunity to present evidence and legal argument disappears. Therefore,

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

be permitted to go unanswered by this Court because of Plaintiffs’ desires for a speedy

resolution. That is particularly true in light of the significant constitutional questions posed

by Plaintiffs, as discussed below.

II. IF THIS APPEAL IS NOT EXPEDITED, THEN IRREPARABLE HARM MAY

OCCUR IN THAT THE DISTRICT COURT WILL MAKE A RULING ON
THE CONSTITUTIONALITY OF VOTER INITIATIVES WITHOUT THIS
COURT’S DETERMINATION OF WHETHER EXCLUSION OF THE
CAMPAIGN PRECLUDES DEVELOPMENT OF THE COMPREHENSIVE
FACTUAL RECORD AND LEGAL ANALYSIS NECESSARY TO MAKE
SUCH A RULING.

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

seeking to invalidate voter-approved constitutional and statutory provisions as violative of

7
 Case: 09-16959 09/10/2009 Page: 8 of 15 ID: 7058083 DktEntry: 4-1

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

liberty interest is a fundamental right subject to strict scrutiny or a right subject to

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

8
 Case: 09-16959 09/10/2009 Page: 9 of 15 ID: 7058083 DktEntry: 4-1

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

characteristic is related to an individual’s ability to contribute to society. See id. at 442-446.

If the district court determines that there is no differential treatment of similarly

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

legislative classification, which would require development of a factual record describing

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

9
 Case: 09-16959 09/10/2009 Page: 10 of 15 ID: 7058083 DktEntry: 4-1

record, the task of developing the thorough factual record necessary to meet these burdens

of proof falls on third-party intervenors. The present Intervenor-Defendants indicated to the

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

court to make that determination. (R.T., p. 21).

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

to history of discrimination and identifiable characteristics, elements necessary to

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

10
 Case: 09-16959 09/10/2009 Page: 11 of 15 ID: 7058083 DktEntry: 4-1

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

constitutional principles of due process and equal protection.

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.

STATUS OF TRANSCRIPT PREPARATION

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

transmission to this Court.

PROPOSED BRIEFING SCHEDULE

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;

Appellees’ Answer Brief due October 9, 2009;

Appellant’s Reply Brief due October 16, 2009.

Oral argument the week of October 19, 2009.

11
 Case: 09-16959 09/10/2009 Page: 12 of 15 ID: 7058083 DktEntry: 4-1

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

make constitutional determinations based upon an artificially limited factual record.

On these bases the Campaign’s motion to expedite the appeal should be granted.

Dated: September 10, 2009

/s/ Mary E. McAlister MATHEW D. STAVER

MARY E. MCALISTER ANITA L. STAVER
STEPHEN M. CRAMPTON LIBERTY C OUNSEL
RENA M. LINDEVALDSEN P.O. Box 540774
LIBERTY COUNSEL Orlando, FL 32854
P.O. Box 11108 (800)671-1776 Telephone
Lynchburg, VA 24506
(407) 875-0770 Facsimile
(434) 592-7000 Telephone
[email protected] Email
(434) 592-7700 Facsimile
Attorneys for Appellant Campaign for
[email protected] Email
California Families
Attorneys for Appellant Campaign for
California Families

12
 Case: 09-16959 09/10/2009 Page: 13 of 15 ID: 7058083 DktEntry: 4-1

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

attached SERVICE LIST.

Executed on September 10, 2009, at Lynchburg, Virginia.

I declare under penalty of perjury under the laws of the United States of America and

State of California that the above is true and correct.

/s/ Mary E. McAlister

Mary E. McAlister

13
 Case: 09-16959 09/10/2009 Page: 14 of 15 ID: 7058083 DktEntry: 4-1

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]

Attorneys for Plaintiffs Benjamin W. Bull

Brian W. Raum
James A. Campbell
Kenneth C. Mennemeier ALLIANCE DEFENSE FUND
Kelcie M. Gosling 15100 N. 90th St.
Landon D. Bailey Scottsdale, AZ 85260
MENNEMEIER, GLASSMAN & (480) 444-0020
STROUD, LLP [email protected]
980 9TH St, Suite 1700 [email protected]
Sacramento, CA 95814-2736 [email protected]
(916) 553-4000 Attorneys for Proposition 8 Official Proponent
[email protected] Intervenor Defendants

Attorneys for Administration Defendants

14
 Case: 09-16959 09/10/2009 Page: 15 of 15 ID: 7058083 DktEntry: 4-1

Edmund G. Brown, Jr. Richard E. Winnie

Attorney General of California County Counsel
Jonathan K. Renner Claude F. Kolm
Senior Assistant Attorney General Deputy County Counsel
Tamar Pachter Brian E. Washington
Deputy Attorney General Assistant County Counsel
455 Golden Gate Ave, Suite 11000 Lindsey G. Stern
San Francisco, CA 94102-7004 Associate County Counsel
(415) 703-5970 OFFICE OF THE COUNTY COUNSEL
[email protected] County of Alameda
1221 Oak St. Suite 450
Attorneys for Defendant Attorney Oakland , CA 94612
General Edmund G. Brown Jr. (510)272-6700
[email protected]

Dennis J. Herrera Attorneys for Defendant Patrick O’Connell

City Attorney
Therese Stewart Elizabeth M. Cortez
Chief Deputy City Attorney Assistant County Counsel
Danny Chou Judy W. Whitehurst
Principal Deputy County Counsel
Chief of Complex and Special Litigation
OFFICE OF THE COUNTY COUNSEL
Vince Chhabria
648 Kenneth Hahn Hall of Administration
Erin Bernstein 500 W. Temple St.
Christine Van Aken Los Angeles, CA 90012-2713
Mollie M. Lee (213) 974-1845
Deputy City Attorneys [email protected]
City and County of San Francisco
Office of the City Attorney Attorneys for Defendant Dean C. Logan
1 Dr. Carlton B. Goodlett Place
Room 234
San Francisco, CA 94102-4682
(415) 554-4708
FAX (415) 554-4699
[email protected]

Attorneys for Intervenor- Plaintiff City

and County of San Francisco

15
 Case: 09-16959 09/10/2009 Page: 1 of 5 ID: 7058083 DktEntry: 4-2

Case No. 09-16959

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KRISTIN M. PERRY, SANDRA B. STIER, PAUL T. KATAMI, and JEFFREY J.

ZARRILLO, Plaintiffs/Appellees
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 Clerk-
Recorder for the County of Alameda; and DEAN C. LOGAN, in his official capacity as
Registrar-Recorder/ County Clerk for the County of Los Angeles, Defendants.

CAMPAIGN FOR CALIFORNIA FAMILIES, Proposed Intervenor-Defendant/Appellant

PROPOSITION 8 OFFICIAL PROPONENTS DENNIS HOLLINGSWORTH, GAIL J.

KNIGHT, MARTIN F. GUTIERREZ, HAK-SHING WILLIAM TAM, and MARK A.
JANSSON; andPROTECTMARRIAGE.COM-YES ON 8, A PROJECT OF CALIFORNIA
RENEWAL, Intervenor-Defendants/Appellees
________________________________________________________________________
Appeal from the United States District Court for the Northern District of California
Honorable Vaughn R. Walker, U.S. District Judge
Case No. CV-09-02292 VRW
________________________________________________________________________
DECLARATION OF MARY E. MCALISTER IN SUPPORT OF
APPELLANT’S MOTION TO EXPEDITE APPEAL
_________________________________________________________________________
MARY E. MCALISTER MATHEW D. STAVER
STEPHEN M. CRAMPTON ANITA L. STAVER
RENA M. LINDEVALDSEN LIBERTY C OUNSEL
LIBERTY COUNSEL P.O. Box 540774
P.O. Box 11108 Orlando, FL 32854
Lynchburg, VA 24506 (800)671-1776 Telephone
(434) 592-7000 Telephone
(407) 875-0770 Facsimile
(434) 592-7700 Facsimile
[email protected] Email
[email protected] Email

Attorneys for Appellant Campaign for California Families

 Case: 09-16959 09/10/2009 Page: 2 of 5 ID: 7058083 DktEntry: 4-2

I, Mary E. McAlister, declare as follows:

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

support of the Campaign’s Motion to Expedite the Appeal.

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

County of San Francisco.

3. Attached to this Declaration, marked as Exhibit A and incorporated by reference is

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.

4. Attached to this Declaration, marked as Exhibit B and incorporated by reference is

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

District of California’s electronic docket.

1
 Case: 09-16959 09/10/2009 Page: 3 of 5 ID: 7058083 DktEntry: 4-2

Executed on September 10, 2009, at Lynchburg, Virginia.

I declare under penalty of perjury under the laws of the United States of America and State

of California that the above is true and correct.

/s/ Mary E. McAlister

Mary E. McAlister

2
 Case: 09-16959 09/10/2009 Page: 4 of 5 ID: 7058083 DktEntry: 4-2

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]

Attorneys for Plaintiffs Benjamin W. Bull

Brian W. Raum
James A. Campbell
Kenneth C. Mennemeier ALLIANCE DEFENSE FUND
Kelcie M. Gosling 15100 N. 90th St.
Landon D. Bailey Scottsdale, AZ 85260
MENNEMEIER, GLASSMAN & STROUD, (480) 444-0020
LLP [email protected]
980 9TH St, Suite 1700 [email protected]
Sacramento, CA 95814-2736 [email protected]
(916) 553-4000 Attorneys for Proposition 8 Official Proponent
[email protected] Intervenor Defendants

Attorneys for Administration Defendants

3
 Case: 09-16959 09/10/2009 Page: 5 of 5 ID: 7058083 DktEntry: 4-2

Edmund G. Brown, Jr. Richard E. Winnie

Attorney General of California County Counsel
Jonathan K. Renner Claude F. Kolm
Senior Assistant Attorney General Deputy County Counsel
Tamar Pachter Brian E. Washington
Deputy Attorney General Assistant County Counsel
455 Golden Gate Ave, Suite 11000 Lindsey G. Stern
San Francisco, CA 94102-7004 Associate County Counsel
(415) 703-5970 OFFICE OF THE COUNTY COUNSEL
[email protected] County of Alameda
1221 Oak St. Suite 450
Attorneys for Defendant Attorney General Oakland , CA 94612
Edmund G. Brown Jr. (510)272-6700
[email protected]

Dennis J. Herrera Attorneys for Defendant Patrick O’Connell

City Attorney
Therese Stewart Elizabeth M. Cortez
Chief Deputy City Attorney Assistant County Counsel
Danny Chou Judy W. Whitehurst
Chief of Complex and Special Litigation Principal Deputy County Counsel
Vince Chhabria OFFICE OF THE COUNTY COUNSEL
Erin Bernstein 648 Kenneth Hahn Hall of Administration
Christine Van Aken 500 W. Temple St.
Mollie M. Lee Los Angeles, CA 90012-2713
Deputy City Attorneys (213) 974-1845
City and County of San Francisco [email protected]
Office of the City Attorney
1 Dr. Carlton B. Goodlett Place Attorneys for Defendant Dean C. Logan
Room 234
San Francisco, CA 94102-4682
(415) 554-4708
FAX (415) 554-4699
[email protected]

Attorneys for Intervenor- Plaintiff City and

County of San Francisco

4
 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:

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

CIVIL MINUTE ORDER

VAUGHN R. WALKER
United States District Chief Judge

DATE: August 19, 2009

COURTROOM DEPUTY: Cora Klein Court Reporter: Belle Ball

CASE NO. C 09-2292 VRW

CASE TITLE: KRISTIN PERRY et al v. ARNOLD SCHWARNEGGER et al

COUNSEL FOR PLAINTIFFS: PLAINTIFF INTERVENORS:

David Boies, Theodore B Olson Our Family Coalition:
Theodore Boutrous, Christopher Dusseault Shannon P Minter, Christopher Stoll,
Theane Kapur, Enrique Monagas James Esseks, Elizabeth Gill,
Jeremy Goldman, Theodore Uno Matthew Coles, Jennifer Pizer
Matthew D McGill

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

Edmund G Brown- Attorney General of California:

Gordon Burns, Tamar Pachter

Patrick O’Connell - Clerk Recorder for County of Alameda:

Claude Kolm, Lindsey Stern

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:

PROCEEDINGS and RESULTS:

The Court heard argument from counsels and ruled as follows:

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
Case: 09-16959 09/10/2009 Page: 1 of 17 ID: 7058083 DktEntry: 4-4

Exhibit B
Case: 09-16959 09/10/2009 Page: 2 of 17 ID: 7058083 DktEntry: 4-4

Exhibit B
Case: 09-16959 09/10/2009 Page: 3 of 17 ID: 7058083 DktEntry: 4-4

Exhibit B
Case: 09-16959 09/10/2009 Page: 4 of 17 ID: 7058083 DktEntry: 4-4

Exhibit B
Case: 09-16959 09/10/2009 Page: 5 of 17 ID: 7058083 DktEntry: 4-4

Exhibit B
Case: 09-16959 09/10/2009 Page: 6 of 17 ID: 7058083 DktEntry: 4-4

Exhibit B
Case: 09-16959 09/10/2009 Page: 7 of 17 ID: 7058083 DktEntry: 4-4

Exhibit B
Case: 09-16959 09/10/2009 Page: 8 of 17 ID: 7058083 DktEntry: 4-4

Exhibit B
Case: 09-16959 09/10/2009 Page: 9 of 17 ID: 7058083 DktEntry: 4-4

Exhibit B
Case: 09-16959 09/10/2009 Page: 10 of 17 ID: 7058083 DktEntry: 4-4

Exhibit B
Case: 09-16959 09/10/2009 Page: 11 of 17 ID: 7058083 DktEntry: 4-4

Exhibit B
Case: 09-16959 09/10/2009 Page: 12 of 17 ID: 7058083 DktEntry: 4-4

Exhibit B
Case: 09-16959 09/10/2009 Page: 13 of 17 ID: 7058083 DktEntry: 4-4

Exhibit B
Case: 09-16959 09/10/2009 Page: 14 of 17 ID: 7058083 DktEntry: 4-4

Exhibit B
Case: 09-16959 09/10/2009 Page: 15 of 17 ID: 7058083 DktEntry: 4-4

Exhibit B
Case: 09-16959 09/10/2009 Page: 16 of 17 ID: 7058083 DktEntry: 4-4

Exhibit B
Case: 09-16959 09/10/2009 Page: 17 of 17 ID: 7058083 DktEntry: 4-4

Exhibit B