Tuesday, January 4, 2011

County, Board, Deputy Clerk Lack Standing to Intervene in Prop 8 Appeal

A three-judge panel of the Ninth Circuit ruled today that the County of Imperial, its Board of Supervisors, and a Deputy Clerk for the County lacked standing to appeal on the merits the district court order holding Proposition 8, the same-sex marriage ban, to be unconstitutional.  We most recently posted on the case here; our post on the district court ruling is here

The ruling leaves open whether the Ninth Circuit can hear the appeal on the merits: It's not clear that there is anyone with standing who will defend Prop. 8 on appeal.  (The Ninth Circuit panel asked the California Supreme Court in a separate Order Certifying a Question whether Prop. 8 proponents have standing to appeal.  We'll cover that in a separate post.)

The panel ruled today that the County, Board, and Deputy Clerk did not satisfy the standards for intervention as of right or permissive intervention.

As to intervention as of right under Federal Rule of Civil Procedure 24(a)(2) (requiring a district court to permit intervention for anyone who, among other things, "claims an interest relating to the property or transaction that is the subject of the action"), the court ruled that none had a "significant protectable interest" at stake.  The Deputy Clerk had no interest, because she did not have the powers and duties of the Clerk's office.  (Those belonged to the Clerk, not the Deputy Clerk.)  Her claimed interest in the case, its effect on the Clerk's performance of her legal duties, was therefore not the Deputy Clerk's interest; it was the Clerk's interest.  The Board had no interest, because it "plays no role with regard to marriage."  Op. at 10.  (Marriage is a state concern, not a "municipal affair."  Id.)  The County's "direct financial interest" was waived, Op. at 11, because the County failed to raise it at the district court.

As to permissive intervention under Federal Rule of Civil Procedure 24(b)(1)(B) (permitting, but not requiring, a district court to grant intervention by a litigant who has "a claim or defense that shares with the main action a common question of law or fact"), the Ninth Circuit deferred to the district court's judgment denying intervention.  The Ninth Circuit ruled that the County, the Board, and the Deputy Clerk would introduce no new evidence or arguments into the case, and that their "only expressed interest in the case--ensuring appellate review of the constitutional claims--was one that they could not fulfill because they would lack standing to appeal [the district court's judgment]."  Op. at 13.  (The court ruled that the movants' particular interest here would require them to have Article III standing to appeal the merits of the constitutional holding below.  That they did not have: the court ruled on intervention as of right that they lacked any significant protectable interest; and they therefore lacked Article III standing.)

Judge Reinhardt issued a separate concurrence, explaining the significance of the ruling and putting it in a larger context.  Judge Reinhardt concurrence is well worth a read for its plain-spoken explanation of the court's ruling today.  He also takes issue with the trend toward technicalization and proceduralism of federal litigation (with the resulting limits on access to the federal courts) and the way the plaintiffs litigated the case.  (He argues that the plaintiffs could have avoided the whole standing mess by suing a broader set of defendants.)  He also questions why the movants couldn't find a Clerk, not a Deputy Clerk, to move to intervene; the result may have been different.

(Judge Reinhardt also issued his more lengthy explanation of why he declined to recuse himself.  Recall that Prop. 8 proponent moved for recusal based on Judge Reinhardt's spouse's views and positions as ED of the ACLU/SC.  Judge Reinhardt explained that his "wife's views, public or private, as to any issue that may come before this court, constitutional or otherwise, are of no consequence.  She is a strong, independent woman who has long fought for the principle, among others, that women should be evaluated on their own merits and not judged in any way by the deeds or position in life of their husbands (and vice versa).  I share that view . . . ."  Op. at 3.)



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