Perry Plaintiffs' Opposition To Imperial County's Intervention, Filed 12-30-09

Case3:09-cv-02292-VRW Document328 Filed12/30/09 Page1 of 23
1 GIBSON, DUNN & CRUTCHER LLP

Theodore B. Olson, SBN 38137
2 tolson@gibsondunn.com
Matthew D. McGill, pro hac vice
3 Amir C. Tayrani, SBN 229609
1050 Connecticut Avenue, N.W., Washington, D.C. 20036
4 Telephone: (202) 955-8668, Facsimile: (202) 467-0539
5 Theodore J. Boutrous, Jr., SBN 132009

tboutrous@gibsondunn.com
6 Christopher D. Dusseault, SBN 177557
Ethan D. Dettmer, SBN 196046
7 Sarah E. Piepmeier, SBN 227094
Theane Evangelis Kapur, SBN 243570
8 Enrique A. Monagas, SBN 239087
333 S. Grand Avenue, Los Angeles, California 90071
10 BOIES, SCHILLER & FLEXNER LLP

David Boies, pro hac vice
11 dboies@bsfllp.com
333 Main Street, Armonk, New York 10504
13 Jeremy M. Goldman, SBN 218888

jgoldman@bsfllp.com
14 Theodore H. Uno, SBN 248603
1999 Harrison Street, Suite 900, Oakland, California 94612
16 Attorneys for Plaintiffs

KRISTIN M. PERRY, SANDRA B. STIER,
17 PAUL T. KATAMI, and JEFFREY J. ZARRILLO
18 UNITED STATES DISTRICT COURT

19 NORTHERN DISTRICT OF CALIFORNIA
20
KRISTIN M. PERRY, et al., CASE NO. 09-CV-2292 VRW
21 Plaintiffs,
and PLAINTIFFS’ OPPOSITION TO
22
CITY AND COUNTY OF SAN FRANCISCO, PROPOSED INTERVENORS’ MOTION TO
23 INTERVENE
Plaintiff-Intervenor,
24 v. Trial Date: January 11, 2010
Judge: Chief Judge Walker
ARNOLD SCHWARZENEGGER, et al.,
25 Location: Courtroom 6, 17th Floor
Defendants,
26 and
PROPOSITION 8 OFFICIAL PROPONENTS
27 DENNIS HOLLINGSWORTH, et al.,
28
Defendant-Intervenors.
Gibson, Dunn &
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09-CV-2292 VRW PLAINTIFFS’ OPPOSITION TO PROPOSED INTERVENORS’ MOTION TO INTERVENE

1 TABLE OF CONTENTS
2 Page
3 I. INTRODUCTION ............................................................................................................................. 1
4 II. ARGUMENT ................................................................................................................................... 2
5 A. Imperial County Is Not Entitled To Intervene As Of Right. ......................................... 2
6 1. Imperial County’s Motion Is Untimely............................................................. 2
7 a) Every Important “Stage” Of These Proceedings Has
Passed Except Trial Itself. .................................................................... 3
8
b) There Is No Objectively Reasonable Justification For
9 Imperial County’s Five-Month Delay. ................................................. 5
10 2. Imperial County Lacks A Significant Protectable Interest In
This Litigation That May Be Practically Impaired. .......................................... 8
11
3. Imperial County Has Failed To Demonstrate Inadequacy Of
12 Representation................................................................................................. 12
13 B. Imperial County Has Not Satisfied The Requirements For Permissive
Intervention. ................................................................................................................ 13
14
III. CONCLUSION ............................................................................................................................. 16
15
16
17
18
19
20
21
22
23
24
25
26
27
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1 TABLE OF AUTHORITIES
2 Page(s)
3
CASES
4
Alameda Newspapers, Inc. v. City of Oakland,
5
95 F.3d 1406 (9th Cir. 1996).............................................................................................................. 5
6
Am. Brake Shoe & Foundry Co. v. Interborough Rapid Transit Co.,
7 3 F.R.D. 162 (S.D.N.Y. 1942) ........................................................................................................... 4
8 Am. Ass'n of People with Disabilities v. Herrera,

257 F.R.D. 236 (D.N.M. 2008).......................................................................................................... 9
9
Arakaki v. Cayetano,
10 324 F.3d 1078 (9th Cir. 2003).......................................................................................................... 12
11
Arizonans for Official English v. Arizona,
12 520 U.S. 43 (1997)............................................................................................................................. 1
13 Bogaert v. Land,
2008 WL 2952006 (W.D. Mich. July 29, 2008) ................................................................................ 9
14
California ex rel. Van de Kamp v. Tahoe Reg’l Planning Agency,
15 792 F.2d 779 (9th Cir. 1986)...................................................................................................... 10, 11
16
Diamond v. Charles,
17 476 U.S. 54 (1986)........................................................................................................................... 15
18 Donaldson v. United States,

400 U.S. 517 (1971)........................................................................................................................... 8
19
Donnelly v. Glickman,
20 159 F.3d 405 (9th Cir. 1998).............................................................................................................. 2
21 EEOC v. Pan Am. World Airways,
22 897 F.2d 1499 (9th Cir. 1990).......................................................................................................... 14
23 Freedom from Religion Found., Inc. v. Geithner,

-- F. Supp. 2d --, 2009 WL 4705425 (E.D. Cal. Dec. 2, 2009)........................................................ 13
24
Hodgson v. United Mine Workers,
25 473 F.2d 118 (D.C. Cir. 1972) ........................................................................................................... 5
26 League of United Latin Am. Citizens v. Wilson (“LULAC”),
131 F.3d 1297 (9th Cir. 1997)................................................................................................... passim
27
28 Legal Aid Soc’y of Alameda County v. Brennan,

608 F.2d 1319 (9th Cir. 1979)............................................................................................................ 4
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[Continued]
2
Page(s)
3
Lockyer v. City & County of San Francisco,
4
95 P.3d 459 (Cal. 2004) ......................................................................................................... 9, 10, 11
5
Lujan v. Defenders of Wildlife,
6 504 U.S. 555 (1992)......................................................................................................................... 15
7 Moosehead San Dist. v. S.G. Phillips Corp.,

610 F.2d 49 (1st Cir. 1979) .............................................................................................................. 13
8
NAACP v. New York,
9 413 U.S. 345 (1973)........................................................................................................................... 6
10
Northwest Forest Res. Council v. Glickman,
11 82 F.3d 825 (9th Cir. 1996).................................................................................................. 12, 13, 14
12 Park & Tilford, Inc. v. Schulte,

160 F.2d 984 (2d Cir. 1947)............................................................................................................... 5
13
Pellegrino v. Nesbit,
14 203 F.2d 463 (9th Cir. 1953).............................................................................................................. 4
15
Prete v. Bradbury,
16 438 F.3d 949 (9th Cir. 2006)............................................................................................................ 12
17 Public Serv. Co. of New Hampshire v. Patch,

136 F.3d 197 (1st Cir. 1998) ............................................................................................................ 10
18
Romer v. Evans,
19 517 U.S. 620 (1996)......................................................................................................................... 10
20 S. Cal. Edison Co. v. Lynch,
21 307 F.3d 794 (9th Cir. 2002).............................................................................................................. 8
22 Smith v. Marsh, 194 F.3d 1045 (9th Cir. 1999) ................................................................................. 3, 4
23 Sokaogon Chippewa Cmty. v. Babbitt,

214 F.3d 941 (7th Cir. 2000).............................................................................................................. 8
24
Spangler v. Pasadena City Bd. of Educ.,
25 552 F.2d 1326 (9th Cir. 1977).............................................................................................. 14, 15, 16
26 Stupak-Thrall v. Glickman,
27 226 F.3d 467 (6th Cir. 2000).............................................................................................................. 3
28 United Airlines, Inc. v. McDonald,

432 U.S. 385 (1977)........................................................................................................................... 4
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09-CV-2292 VRW PLAINTIFFS’ OPPOSITION TO INTERVENORS’ MOTION TO INTERVENE
[Continued]
2
Page(s)
3
United States Cas. Co. v. Taylor,
4
64 F.2d 521 (4th Cir. 1933)................................................................................................................ 5
5
United States v. British Am. Tobacco Austl. Servs., Ltd,
6 437 F.3d 1235 (D.C. Cir. 2006) ......................................................................................................... 3
7 United States v. City of Los Angeles,

288 F.3d 391 (9th Cir. 2002)...................................................................................................... 12, 13
8
United States v. Oregon,
9 745 F.2d 550 (9th Cir. 1984)............................................................................................................ 14
10
United States v. Washington,
11 86 F.3d 1499 (9th Cir. 1996)............................................................................................ 1, 2, 5, 6, 14
12 Westlands Water Dist. v. United States,

700 F.2d 561 (9th Cir. 1983)............................................................................................................ 10
13
Yniguez v. Arizona,
14 939 F.2d 727 (9th Cir. 1991).......................................................................................................... 1, 4
15
STATUTES
16
U.S. Const., art. VI, cl. 2 ...................................................................................................................... 10
17
Cal. Const. art. XX, § 3........................................................................................................................ 10
18
Cal. Fam. Code § 350(a) ........................................................................................................................ 9
19
Cal. Fam. Code § 400(b) ........................................................................................................................ 9
20
Cal. Fam. Code § 401(a) ........................................................................................................................ 8
21
Cal. Fam. Code § 511(a) ........................................................................................................................ 9
22
23 Cal. Gov’t Code §§ 3101-03 ................................................................................................................ 10
24 Cal. Health & Safety Code § 102180..................................................................................................... 8

27
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[Continued]
2
Page(s)
3
OTHER AUTHORITIES
4
5 Linda Deutsch (Associated Press), Calif. AG, Gov Oppose Suspending Gay Marriage Ban, S.D.
UNION TRIB., June 12, 2009................................................................................................................ 7
6
Lisa Leff (Associated Press), Lawsuit Seeks Federal Ruling on Gay Marriage, S.D. UNION TRIB.,
7 May 26, 2009 ..................................................................................................................................... 7
8 Maura Dolan & Carol J. Williams, Brown Again Says Prop. 8 Should be Struck Down, L.A. TIMES,
June 13, 2009 ..................................................................................................................................... 7
9
RULES
10
11 Fed. R. Civ. P. 24(a)............................................................................................................................... 8
12 Fed. R. Civ. P. 24(a)(2) ...................................................................................................................... 2, 3
13 Fed. R. Civ. P. 24(b)(1)........................................................................................................................ 15
14 Fed. R. Civ. P. 24(b)(3)........................................................................................................................ 14

15 Fed. R. Civ. P. 24(c)............................................................................................................................. 15
16
17
18
19
20
21
22
23
24
25
26
27
28
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1 I. INTRODUCTION
2 The Court should deny the untimely motion to intervene filed by County of Imperial, Board
3 of Supervisors of Imperial County, and Isabel Vargas in her official capacity as Deputy Clerk/Deputy
4 Commissioner of Civil Marriages for the County of Imperial (collectively “Imperial County” or “the
5 County”).
6 Imperial County seems to assume that, because this Court granted the motion to intervene
7 filed by Plaintiff-Intervenor City and County of San Francisco (“San Francisco”), Imperial County
8 also is entitled to intervene. But Imperial County and San Francisco are not similarly situated with
9 respect to this litigation. As an initial matter, San Francisco sought only permissive intervention,
10 implicitly acknowledging that it could not meet the requirements for intervention as of right, while
11 Imperial County seeks to intervene as of right. And San Francisco’s application for permissive
12 intervention—unlike Imperial County’s—was timely. Finally and most importantly, San Francisco
13 asserted an actual, cognizable “independent interest in the proceedings, and the ability to contribute
14 to the development of the underlying issues” (Doc #162 (Aug. 19, 2009 Tr.) at 55), that Imperial
15 County has failed to articulate. Indeed, Imperial County affirmatively argues that it has nothing to
16 contribute to the proceedings in this Court. See Doc #311 at 9-10, 14, 20.
17 Imperial County’s asserted grounds for intervention—allegedly preserving the ability to
18 appeal a judgment in Plaintiffs’ favor—is a matter of conjecture. It may be that Plaintiffs will prevail
19 in this proceeding, and it may be true that Proponents would lack standing to appeal that judgment on
20 their own; indeed, the Supreme Court’s decision in Arizonans for Official English v. Arizona, 520
21 U.S. 43, 64-66 (1997), vacating Yniguez v. Arizona, 939 F.2d 727 (9th Cir. 1991), suggests as much.
22 But Imperial County’s speculation that neither the Attorney General, the Administration, nor the
23 Counties of Los Angeles and Alameda will appeal is an inadequate basis for intervention. See, e.g.,
24 League of United Latin Am. Citizens v. Wilson (“LULAC”), 131 F.3d 1297, 1304 (9th Cir. 1997).
25 And, as final judgment has not yet been entered in Plaintiffs’ favor, it is “premature” to consider
26 requests for intervention for purposes of appeal. United States v. Washington, 86 F.3d 1499, 1505
27 (9th Cir. 1996).
28
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1 In any event, Imperial County’s motion fails to establish any of the required elements for
2 intervention as of right or permissive intervention. Its motion, filed on the event of the pretrial
3 conference and more than five months since the Court ordered on July 13, 2009 that all motions to
4 intervene must be filed no later than July 24, 2009 (Doc #104), is manifestly untimely.
5 As such, the Court need not even consider the remaining requirements for intervention.
6 Washington, 86 F.3d at 1503. But even if the Court considers those requirements, the Court should
7 deny the County’s motion because the County fails to assert any significant protectable interest that
8 may be impaired by the disposition of this case, and does not even suggest that Proponents’
9 representation in this Court is inadequate.
10 II. ARGUMENT
11 A. Imperial County Is Not Entitled To Intervene As Of Right.
12 Intervention as of right under Federal Rule of Civil Procedure 24(a)(2) is permissible only
13 where “(1) [the applicant] has a significant protectable interest relating to the property or transaction
14 that is the subject of the action; (2) the disposition of the action may, as a practical matter, impair or
15 impede the applicant’s ability to protect its interest; (3) the application is timely; and (4) the existing
16 parties may not adequately represent the applicant’s interest.” Donnelly v. Glickman, 159 F.3d 405,
17 409 (9th Cir. 1998) (internal quotations omitted). Because Imperial County must meet all four parts
18 of this test, failure to satisfy any one of the criteria justifies denial of its motion. See id.
19 1. Imperial County’s Motion Is Untimely.

20 “Timeliness is the ‘threshold requirement’ for intervention as of right.” LULAC, 131 F.3d at
21 1302 (internal citation omitted). “If the court finds that the motion to intervene [is] not timely, it
22 need not reach any of the remaining elements of Rule 24.” Washington, 86 F.3d at 1503. In
23 determining whether a motion to intervene is timely, a court must consider “(1) the stage of the
24 proceeding at which an applicant seeks to intervene; (2) the prejudice to other parties; and (3) the
25 reason for and length of the delay.” Id. (internal citation and quotation marks omitted). This
26 determination is left to the discretion of the trial court. Id. The Ninth Circuit has warned that
27 “[a]lthough the length of the delay is not determinative, any substantial lapse of time weighs heavily
28 against intervention.” Id. These factors demonstrate that Imperial County’s motion is untimely.
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1 a) Every Important “Stage” Of These Proceedings Has Passed Except

Trial Itself.
2
The fact that a “district court has substantively—and substantially—engaged the issues in [a]
3
case weighs heavily against allowing intervention as of right under Rule 24(a)(2).” LULAC, 131 F.3d
4
at 1303. In LULAC, the proposed intervenors attempted to intervene in a lawsuit challenging the
5
validity of Proposition 187, an initiative they sponsored. Id. at 1301. When the district court denied
6
the motion to intervene, the litigation was still “in the pretrial stages” and “no trial date had been set
7
for a final determination of Proposition 187’s fate.” Id. at 1303 (internal citations and quotation
8
marks omitted). Nonetheless, the court observed that “a lot of water had already passed underneath
9
Proposition 187’s litigation bridge.” Id. In particular, “the plaintiffs’ complaints had been filed . . . .
10
[t]he district court had issued a temporary restraining order, and subsequently a preliminary
11
injunction . . . . [t]he defendants had appealed the district court’s issuance of the preliminary
12
injunction to the Ninth Circuit . . . . four sets of parties had successfully intervened in the case . . . .
13
[t]he defendants had filed, and the district court had denied, a motion to dismiss . . . . [t]he plaintiffs
14
had filed a motion for summary judgment on which the district court had heard argument, and which
15
it had granted in part and denied in part. And finally, discovery had proceeded for roughly nine
16
months [].” Id. In light of the substantial “legal ground [covered] together” by “the district court and
17
the original parties[,]” the Ninth Circuit held that this factor weighed “heavily against allowing
18
intervention as of right under Rule 24(a)(2).” Id. See also Smith v. Marsh, 194 F.3d 1045, 1047-48,
19
1050-51 (9th Cir. 1999) (applying LULAC to deny a pretrial motion to intervene as untimely where
20
the district court had resolved various substantial motions, but in which discovery had not yet closed,
21
and trial was set to begin 7 months later); United States v. British Am. Tobacco Austl. Servs., Ltd, 437
22
F.3d 1235, 1239 (D.C. Cir. 2006) (rejecting a motion to intervene “virtually on the eve of trial”);
23
Stupak-Thrall v. Glickman, 226 F.3d 467, 474 (6th Cir. 2000) (holding that a proposed motion to
24
intervene filed over seven months after the complaint was filed, ten weeks after the discovery period
25
had ended, and five weeks after all witnesses, including expert witnesses, had been identified was
26
untimely).
27
Imperial County’s motion to intervene is untimely because, as in LULAC, substantial legal
28
ground already has been covered, including resolution of Plaintiff’s motion for a preliminary
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1 injunction, numerous motions to intervene, a motion for summary judgment, and two appeals in the
2 Ninth Circuit. In fact, intervention at this stage of the case is even less appropriate than in LULAC,
3 where a trial date had not yet been set. By contrast, Imperial County moved to intervene nearly two
4 weeks after the deadline for the close of fact discovery and less than one month before trial.
5 Imperial County observes that “trial is still a month away, [and] no judgment has been
6 entered” (Doc #311 at 13), but the Ninth Circuit has denied intervention on timeliness grounds when
7 trial was over 7 months away. See Smith, 194 F.3d at 1048, 1051 (noting that this factor counted
8 strongly against granting intervention where the motion to intervene was filed on June 4, 1998, and
9 trial was scheduled for January 19, 1999). Moreover, Imperial County did not file its motion until
10 after the parties had already filed their pretrial submissions, and, in the ordinary course, its motion
11 would not be heard until January 21, 2010—five weeks after the Court and the parties completed the
12 pretrial conference and ten days after trial will have commenced. Under these circumstances, the
13 County’s motion must be regarded as untimely.
14 In an effort to excuse the lateness of its motion, Imperial County also claims that “courts
15 frequently permit intervention even after trial for the purpose of appealing an adverse ruling.” Doc
16 #311 at 13. But the cases it cites for this proposition are inapposite because they involve proposed
17 intervenors who moved to intervene only after it was clear (i.e., no longer a matter of speculation)
18 that the party representing their interests would not appeal. See United Airlines, Inc. v. McDonald,
19 432 U.S. 385, 390 (1977) (putative class member allowed to intervene on appeal after plaintiffs
20 decided not to appeal an adverse class certification order); Yniguez v. State of Ariz., 939 F.2d 727,
21 730 (9th Cir. 1991) (initiative proponents allowed to intervene ten days after the Governor announced
22 she would not appeal a decision striking down parts of the initiative as unconstitutional); Legal Aid
23 Soc’y of Alameda County v. Brennan, 608 F.2d 1319, 1327 (9th Cir. 1979) (federal government
24 contractors allowed to intervene after government defendants withdrew notice of appeal of an adverse
25 decision relating to those contracts); Pellegrino v. Nesbit, 203 F.2d 463, 465 (9th Cir. 1953)
26 (shareholder allowed to intervene in securities action after the corporation’s board of directors
27 decided not to appeal adverse rulings by the trial court); Am. Brake Shoe & Foundry Co. v.
28 Interborough Rapid Transit Co., 3 F.R.D. 162, 164 (S.D.N.Y. 1942) (allowing bondholder to appeal
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1 when original bondholder gave up his efforts to challenge a plan for the acquisition of the real
2 property associated with the bonds).1
3 To the extent the County’s motion is based on speculation that none of the government
4 Defendants will appeal a judgment in Plaintiffs’ favor, it is “premature.” Washington, 86 F.3d at
5 1505 (holding that motion to intervene “for purpose of appeal” before “final judgment in the overall
6 proceeding from which an appeal could be taken” was “premature”). The Ninth Circuit has
7 explained that a motion to intervene for purposes of appeal should be filed following a “final
8 judgment in the overall proceeding from which an appeal could be taken.” Id. And to the extent it is
9 based on the County’s claims that the current parties do not adequately represent its alleged interests
10 in the proceedings before this Court, it is plainly too late. As discussed below, Imperial County
11 should have known that the government Defendants were, in its estimation, not adequately defending
12 the constitutionality of Prop. 8 by mid-June. See infra Section II.A.1.b. And in any event,
13 Proponents are now adequately representing the County’s alleged interests in the proceedings before
14 this Court. See infra Section II.A.3. Accordingly, the tardiness of Imperial County’s motion weighs
15 strongly against intervention.
16 b) There Is No Objectively Reasonable Justification For Imperial

County’s Five-Month Delay.
17
“Delay is measured from the date the proposed intervenor should have been aware that its
18
interests would no longer be protected adequately by the parties, not the date it learned of the
19
20
1 Other cases cited by Imperial County are also easily distinguished. See Hodgson v. United Mine
21 Workers, 473 F.2d 118, 129 (D.C. Cir. 1972) (allowing union members to intervene in a lawsuit
brought by the Secretary of Labor under the Labor-Management Reporting and Disclosure Act in
22 a motion brought four days after the U.S. Supreme Court held that a closely related provision of
the LMRDA did not prevent union members from intervening in actions, like the one union
23 members sought to join, initiated by the Secretary of Labor); United States Cas. Co. v. Taylor, 64
F.2d 521, 527 (4th Cir. 1933) (insurance company allowed to intervene after a decision of the
24 district court reversing an order by the U.S. Employers’ Compensation Commission that it did not
have jurisdiction to award compensation under the Longshoremen’s and Harbor Workers’
25 Compensation Act and awarding payment that would directly affect the interests of the insurer).
Others are entirely beside the point. In Alameda Newspapers, Inc. v. City of Oakland, 95 F.3d
26 1406 (9th Cir. 1996), the court only discussed the timeliness of the motion to intervene in passing,
because the issue was not raised on cross-appeal. Id. at 1412 n.8. And in Park & Tilford, Inc. v.
27 Schulte, 160 F.2d 984 (2d Cir. 1947), the Court of Appeals granted a motion to intervene in the
appeal; the district court had denied the same intervenors’ motion early in the proceedings. Id. at
28 987. The issue of timeliness therefore never arose.
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1 litigation.” Washington, 86 F.3d at 1503 (emphasis added). “[A]ny substantial lapse of time weighs
2 heavily against intervention.” Id. Indeed, where a claimed interest exists at the outset of the
3 litigation, a party must intervene at that stage. See LULAC, 131 F.3d at 1304 n.3.
4 The Supreme Court has held that a delay of as little as two-and-a-half weeks may make a
5 motion to intervene untimely. NAACP v. New York, 413 U.S. 345, 367 (1973). In NAACP, the State
6 of New York filed a complaint in December 1971 seeking a declaration that it was complying with
7 the Voting Rights Act of 1965. 413 U.S. at 357. On March 10, 1972, the United States filed an
8 answer in which it alleged insufficient knowledge or information to form a belief as to the truth of
9 New York’s primary allegation. Id. at 358-59. New York filed its motion for summary judgment on
10 March 17, 1972, and on April 3, 1972, the United States filed a formal consent to the entry of
11 declaratory judgment in New York’s favor. Id. at 359-60. The NAACP filed a motion to intervene
12 on April 7, asserting that if New York were successful, its members would be deprived of certain
13 Voting Rights Act protections. Id. at 360. In relevant part, the NAACP claimed that it was unaware
14 of the action until March 21. Id. at 363. The Court held that the district court “could reasonably have
15 concluded that [the NAACP] knew or should have know of the pendency of the § 4(a) action because
16 of an informative February article in the New York Times discussing the controversial aspect of the
17 suit; public comment by community leaders; [and] the size and astuteness of the membership and
18 staff of the organizational appellant [].” Id. at 366. Even calculating the delay from March 21,
19 however, the motion to intervene was untimely, because, “[a]t that point, the suit was over three
20 months old and had reached a critical stage.” Id. at 367. Because the United States’ March 10
21 answer to the complaint indicated that it would not necessarily offer a vigorous defense, and,
22 following New York’s March 17 motion for summary judgment, “[t]he only step remaining was for
23 the United States either to oppose or to consent to the entry of summary judgment[,] . . . it was
24 incumbent upon the appellants, at that stage of the proceedings, to take immediate affirmative steps to
25 protect their interests . . . by way of an immediate motion to intervene.” Id. Having failed to do so,
26 NAACP’s motion was untimely.
27 Likewise, here, “it was incumbent on” Imperial County to move to intervene as soon as it
28 became aware of its claimed interest in the case. Id. Even assuming arguendo that Imperial County
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1 has any interest that is not adequately protected by the current parties—which is does not (see infra
2 Sections II.A.2 and II.A.3)—it should have been aware that this lawsuit threatened its purported
3 interest in upholding Prop. 8 when Plaintiffs first filed their Complaint on May 22, 2009, thereby
4 generating immediate statewide and even national media attention. Multiple California news
5 organizations, including the largest newspaper in Southern California, the Los Angeles Times, and
6 the San Diego Union Tribune website, ran articles following the filing of the lawsuit and the Attorney
7 General’s decision not to defend the constitutionality of Prop. 8. See Decl. of Kaiponanea T.
8 Matsumura in Supp. of Pls.’ Opp’n to Proposed Intervenors Mot. to Intervene (“Matsumura Decl.”),
9 Ex. A (Linda Deutsch (for the Associated Press), Lawsuit Seeks Federal Ruling on Gay Marriage,
10 S.D. UNION TRIB., (May 26, 2009); Ex. B (Lisa Leff (for the Associated Press), Calif. AG, Gov
11 Oppose Suspending Gay Marriage Ban, S.D. UNION TRIB., June 12, 2009 (discussing in five separate
12 paragraphs and quoting from his brief the Attorney General’s position that Prop. 8 is
13 unconstitutional)); Matsumura Decl., Ex. C (Maura Dolan & Carol J. Williams, Brown Again Says
14 Prop. 8 Should be Struck Down, L.A. TIMES, June 13, 2009). If Imperial County does indeed have an
15 interest in having a governmental defendant defend Prop. 8, it was objectively unreasonable to not at
16 least begin inquiring about involvement in this case by that time. But that was six months ago, and
17 more than a month before this Court’s deadline for the filing of motions to intervene in this action.
18 See Doc #104.
19 Imperial County relies on the lone Declaration of Wally Leimgruber to excuse its tardiness,
20 but that declaration cannot overcome the County’s unreasonable delay in filing. First, even accepting
21 the truth of Mr. Leimgruber’s assertions, he speaks only to his personal knowledge, not what the
22 remaining four County Supervisors and Deputy Clerk knew or should have known. See Doc #311-1.
23 And it is objectively unreasonable for four elected officials and a county clerk with a professed
24 interest in defending Prop. 8 to remain ignorant of this lawsuit—despite ongoing and widespread
25 media coverage—for over six months. Second, it was especially unreasonable for Mr. Leimgruber,
26 who has a longstanding interest in Prop. 8, even going so far as to confer upon it his official
27 endorsement, to remain ignorant of Plaintiffs’ lawsuit and the Attorney General’s answer. See
28 Matsumura Decl., Ex. D (News, U.S. District Court Grants Intervenor Status to Prop. 8 Proponents in
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1 Case Challenging Law’s Validity (July 1, 2009), available at
2 http://www.protectmarriage.com/article/u-s-district-court-grants-intervenor-status-to-prop-8-
3 proponents-in-case-challenging-law-s-validity); Ex. E (Protect Marriage, Endorsements). Finally,
4 Mr. Leimgruber and the other proposed intervenors share counsel with the Yes on 8 campaign
5 managers, Frank Schubert and Jeff Flint (see Matsumura Decl., Ex. F), and their counsel certainly
6 were aware of this litigation no later than the date that they received Plaintiffs’ September 17, 2009
7 subpoena to Schubert Flint Public Affairs. These facts are difficult to reconcile with Mr.
8 Leimgruber’s claim that he was unaware of the Attorney General’s position in this case until
9 November 2009.
10 Because several months have passed since any reasonable party with Imperial County’s
11 claimed interests should have become aware of its interests in this case, the motion to intervene is
12 untimely.
13 2. Imperial County Lacks A Significant Protectable Interest In This

Litigation That May Be Practically Impaired.
14
Imperial County’s motion also should be denied because it lacks a “significant protectable
15
interest” that may be practically impaired or impeded by the disposition of this case. Donaldson v.
16
United States, 400 U.S. 517, 531 (1971); Fed. R. Civ. P. 24(a). “[A]n undifferentiated, generalized
17
interest in the outcome of an ongoing action” is insufficient. S. Cal. Edison Co. v. Lynch, 307 F.3d
18
794, 803 (9th Cir. 2002) (internal quotation marks omitted). Rather, “at some fundamental level the
19
proposed intervenor must have a stake in the litigation.” Sokaogon Chippewa Cmty. v. Babbitt, 214
20
F.3d 941, 946 (7th Cir. 2000) (internal quotation marks and brackets omitted).
21
Imperial County claims that it has an interest in this litigation because its clerk must perform
22
legal duties relating to marriages, and its Board of Supervisors has supervisory authority over the
23
clerk in this regard. See Doc #311 at 15. But under California law “[t]he forms for the marriage
24
license shall be prescribed by the State Registrar.” Cal. Health & Safety Code § 103125 (emphasis
25
added). And the State Registrar “has supervisory power over local registrars, so that there shall be
26
uniform compliance with all the requirements of this part.” Id. § 102180. Thus, although county
27
clerks are designated as commissioners of civil marriages (Cal. Fam. Code § 401(a)), issue marriage
28
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1 licenses (id. § 350(a)), perform civil marriages (id. § 400(b)), and maintain marriage records (id. §
2 511(a)), they do so “under the supervision and direction of the State Registrar [].” Cal. Health &
3 Safety Code § 102295 (emphasis added). Indeed, the California Supreme Court has held that
4 performance of these very duties by “the county clerk and the county recorder . . . properly are
5 characterized as ministerial rather than discretionary.” Lockyer v. City & County of San Francisco,
6 95 P.3d 459, 472 (Cal. 2004) (emphasis in original). And “[a] ministerial act is an act that a public
7 officer is required to perform in a prescribed manner in obedience to the mandate of legal authority
8 and without regard to his own judgment or opinion concerning such act’s propriety [].” Id. at 473
9 (internal citation and quotation marks omitted). Under this statutory scheme, there is simply no
10 substance to Imperial County’s claim that this lawsuit will subject the county clerk to “conflicting
11 duties” and lead to confusion about whether the clerk is bound by this Court’s decision. Doc #311 at
12 8. The county clerk has no discretion to disregard the mandates of the state officials who are already
13 parties to the case, and under the Supremacy Clause, whatever the language of the California
14 Constitution, those state officials have no discretion to disregard the requirements of the United
15 States Constitution as determined by this Court.2
16
17
18 2 Imperial County suggests that it would disregard a directive from the State Registrar to comply
with a decision of this Court, and would instead seek relief from any such directive in state court;
19 hence the “uncertainty” justifying its intervention. See Doc #311 at 10. But a party does not
create a cognizable interest in an action by threatening to violate state laws that govern its
20 performance of ministerial functions. Even so, any legal action that would arise from Imperial
County’s refusal would not reach the merits of the question before this Court—whether Prop. 8
21 violates the United States Constitution—but would instead focus on the legal authority of a local
government to refuse to obey the State Registrar on a matter of statewide concern. And that
22 question has been already been definitively resolved by the California Supreme Court—and
resolved against the position the County seems to contemplate. See Lockyer, 95 P.3d at 473. The
23 cases cited by Imperial County hardly suggest otherwise. In both American Association of People
with Disabilities v. Herrera, 257 F.R.D. 236 (D.N.M. 2008), and Bogaert v. Land, 2008 WL
24 2952006 (W.D. Mich. July 29, 2008), intervention was appropriate because granting the
plaintiffs’ requested injunctive relief would have changed the duties the proposed intervenors
25 were required to perform under the relevant state law. See Herrera, 257 F.R.D. at 256 (“If the
injunction was issued, [the clerk] would be prohibited from performing certain electoral duties
26 that New Mexico law requires”); Bogaert, 2008 WL 2952006, at *2 (“[I]f the Court grants
Plaintiff’s motion for a preliminary injunction [the clerks] would have obligations related to
27 administering the recall election”). That is not the case here. Whatever the outcome of this
litigation, the clerk’s ministerial duty will remain the same: to obey the mandate of the State
28 Registrar. An injunction in this case would not add to, or otherwise alter, the clerk’s legal duties.
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1 In addition, Imperial County is wrong to suggest that its Board of Supervisors has a statutorily
2 protected interest in this litigation because it allegedly has supervisory authority over the clerk’s
3 performance of its duties pertaining to marriage. See Doc #311 at 7. “[M]arriage is a matter of
4 ‘statewide concern’ rather than a ‘municipal affair’ [].” Lockyer, 95 P.3d at 471. And the California
5 Supreme Court has already held that “the only local officials to whom the state has granted authority
6 to act with regard to marriage licenses and marriage certificates are the county clerk and the county
7 recorder[,]” not “the mayor of a city . . . or any other comparable local official [].” Id. (emphasis in
8 original). The Board of Supervisors therefore has no interest in supervising the clerk with respect to
9 marriage, and no interest distinct from that held by any voter who supported Prop. 8. Such an
10 undifferentiated interest does not amount to a significant protectable interest justifying intervention.
11 See California ex rel. Van de Kamp v. Tahoe Reg’l Planning Agency, 792 F.2d 779, 781-82 (9th Cir.
12 1986) (per curiam) (holding that “a general interest in [the subject matter of the suit] shared by a
13 substantial portion of the population” is an insufficient ground for intervention as of right); Westlands
14 Water Dist. v. United States, 700 F.2d 561, 563 (9th Cir. 1983) (no significant protectable interest
15 where the asserted interest was shared by “a substantial portion of the population of northern
16 California”); Public Serv. Co. of New Hampshire v. Patch, 136 F.3d 197, 205 (1st Cir. 1998) (“It is
17 settled beyond peradventure . . . that an undifferentiated, generalized interest in the outcome of an
18 ongoing action” is insufficient for intervention as of right).
19 Imperial County also claims that is has “a sworn duty to uphold and defend the California
20 Constitution, which includes both Proposition 8 and the ‘precious’ initiative right by which it was
21 enacted.” Doc #311 at 17. But those same officials also took an oath to uphold and defend the
22 Constitution of the United States, see Cal. Const. art. XX, § 3; Cal. Gov’t Code §§ 3101-03, and
23 under the Supremacy Clause, the United States “Constitution, and the laws of the United States which
24 shall be made in pursuance thereof . . . shall be the supreme law of the land . . . anything in the
25 Constitution or laws of any State to the contrary notwithstanding.” U.S. Const., art. VI, cl. 2. If a
26 state constitutional provision conflicts with the federal constitution, the state constitutional provision
27 is invalid and the only duty the state law commands is its disregard. See, e.g., Romer v. Evans, 517
28 U.S. 620, 623 (1996).
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1 Moreover, Imperial County’s mere status as a governmental entity does not give rise to a
2 legally protectable interest. The Ninth Circuit has rejected attempts by state officials to intervene
3 based on their status as public officials absent a “show[ing] that any decision in [the] action will
4 directly affect their own duties and powers under the state laws.” Tahoe Reg’l Planning Agency, 792
5 F.2d at 782 (internal citation, quotation marks, and alterations omitted). And the court in Lockyer
6 rejected the City of San Francisco’s claim that the oath of office—to “support and defend the
7 Constitution of the United States and the Constitution of the State of California”—excused city
8 officials from performing duties required by law, noting that “[a] public official does not honor his or
9 her oath to defend the Constitution by taking action in contravention of the restrictions of his or her
10 office or authority [].” Lockyer, 95 P.3d at 485. Therefore, a government employee must have a
11 particularized interest, by virtue of the duties of his office, in defending a state statute. As
12 demonstrated above, after Lockyer, it is clear that Imperial County does not have any such interest in
13 defending (or attacking) Prop. 8.
14 Finally, Imperial County suggests that it has a significant protectable interest because “the
15 passive or outright hostile positions of the government” make it “very uncertain whether any
16 [Defendants] would notice an appeal from a decision invalidating Proposition 8 [],” and because
17 Proponents may be unable to pursue an appeal for lack of Article III standing. Doc #311 at 18. But
18 any jurisdictional deficiency among the Proponents has no bearing on whether Imperial County itself
19 has a significant protectable interest in this litigation. Moreover, any prediction as to whether
20 Defendants would appeal from a decision invalidating Prop. 8 is entirely speculative, and the Ninth
21 Circuit has explicitly rejected speculation as the basis for granting intervention. See LULAC, 131
22 F.3d at 1304 (“[T]he prospect of inadequate representation on the part of future defendants in future
23 years is purely speculative”) (emphasis in original); id. at 1307 (holding that the fact that current
24 officials who are adequately representing the proposed intervenors interests will leave office does not
25 give rise to the “purely speculative” possibility that interests will diverge so as to “justify intervention
26 as a full-fledged party”). Even assuming for the sake of argument that no defendant will appeal an
27 adverse decision—a point upon which Imperial County offers no evidence—the absence of a party to
28 prosecute an appeal does not confer a significant protectable interest upon the first willing volunteer
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Crutcher LLP 11
1 without an otherwise sufficient interest. In sum, Imperial County simply cannot point to a single
2 cognizable interest in this litigation—let alone one that is significant—in support of its intervention.
3 3. Imperial County Has Failed To Demonstrate Inadequacy Of

Representation.
4
Even if Imperial County’s motion to intervene were timely, and even if it could articulate a
5
significant protectable interest, the Court should deny Imperial County’s motion because it fails to
6
demonstrate that the current parties inadequately represent its interests. Despite Imperial County’s
7
arguments to the contrary, the requirement of inadequacy of representation “is not without teeth.”
8
Prete v. Bradbury, 438 F.3d 949, 956 (9th Cir. 2006). In evaluating adequacy of representation, the
9
Court considers: “‘(1) whether the interest of a present party is such that it will undoubtedly make all
10
the intervenor’s arguments; (2) whether the present party is capable and willing to make such
11
arguments; and (3) whether the would-be intervenor would offer any necessary elements to the
12
proceedings that other parties would neglect.’” United States v. City of Los Angeles, 288 F.3d 391,
13
398 (9th Cir. 2002) (quoting Nw. Forest Res. Council v. Glickman, 82 F.3d 825, 838 (9th Cir. 1996)).
14
The applicant “bears the burden of demonstrating that existing parties do not adequately represent its
15
interests.” City of Los Angeles, 288 F.3d at 398 (internal quotations omitted).
16
“When an applicant for intervention and an existing party have the same ultimate objective, a
17
presumption of adequacy of representation arises. If the applicant’s interest is identical to that of one
18
of the present parties, a compelling showing should be required to demonstrate inadequate
19
representation.” Arakaki v. Cayetano, 324 F.3d 1078, 1086 (9th Cir. 2003) (emphasis added)
20
(internal citations omitted). Imperial County’s ultimate objective is to uphold Prop. 8, an objective
21
shared by Proponents. See LULAC, 131 F.3d at 1305 (applying the presumption of adequacy where
22
both the proposed intervenor and the existing defendant shared the ultimate objective of upholding
23
Proposition 187 as constitutional). Imperial County therefore must make a compelling showing that
24
Proponents cannot adequately represent its interests.
25
Far from a compelling showing, Imperial County does not identify even one argument in
26
defense of Prop. 8 that Proponents are unable or unwilling to make, nor does it identify any
27
“necessary elements to the proceedings that [Proponents] would neglect.” City of Los Angeles, 288
28
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1 F.3d at 398 (internal citation and quotation marks omitted). Indeed, Imperial County has
2 affirmatively stated that it will offer no evidence at trial (see Doc #311 at 9-10, 14, 20), and that it
3 likely will join in Proponents’ substantive arguments (see id. at 10, 14). Imperial County’s proposed
4 Answer to Plaintiffs’ Complaint reflects the County’s desire to ride Proponents’ coattails; it offers
5 two affirmative defenses that are lifted verbatim from Proponents’ Answer. Compare Doc #311-4 at
6 8 with Doc #9 at 7-8 (1st and 6th Affirmative Defenses).
7 The County appears to argue that the current defendants’ representation is inadequate not
8 because they are failing to make arguments in this proceeding, but rather because the government
9 Defendants might not appeal a judgment in Plaintiffs’ favor, and Proponents’ may lack standing to do
10 so on their own. See Doc #311 at 20. As an initial matter, Imperial County’s argument is inherently
11 speculative as it is impossible to know whether any of the state Defendants will appeal a decision in
12 Plaintiffs’ favor. And it is well-settled that “a petitioner must produce something more than
13 speculation as to the purported inadequacy in order to justify intervention as of right . . . .” LULAC,
14 131 F.3d at 1307 (citing Moosehead San Dist. v. S.G. Phillips Corp., 610 F.2d 49, 54 (1st Cir. 1979)),
15 even when the speculation goes to whether or not the current parties will appeal an adverse decision.
16 See Freedom from Religion Found., Inc. v. Geithner, -- F. Supp. 2d --, 2009 WL 4705425, at *6 (E.D.
17 Cal. Dec. 2, 2009) (holding that the possibility that the government would not appeal an adverse
18 ruling did not suggest that the government was inadequately representing the proposed intervenor’s
19 interests).
20 Moreover, it is likely that Imperial County itself lacks standing to appeal. See supra Section
21 II.A.2. Thus, even if Proponents lack standing to appeal as Imperial County assumes, and even if that
22 could itself make Proponents’ representation inadequate—and it could not—Imperial County’s
23 intervention would not cure that inadequacy.
24 B. Imperial County Has Not Satisfied The Requirements For Permissive

Intervention.
25
A court may grant permissive intervention where the applicant shows “(1) independent
26
grounds for jurisdiction; (2) the motion is timely; and (3) the applicant’s claim or defense, and the
27
main action, have a question of law or a question of fact in common.” Nw. Forest Res. Council, 82
28
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1 F.3d at 839 (emphasis added). If the court finds that all these conditions are met, “it is then entitled
2 to consider other factors in making its discretionary decision on the issue of permissive intervention.”
3 Spangler v. Pasadena City Bd. of Educ., 552 F.2d 1326, 1329 (9th Cir. 1977). “These relevant
4 factors include the nature and extent of the intervenors’ interest, their standing to raise relevant legal
5 issues, the legal position they seek to advance, . . . its probable relation to the merits of the case,”
6 “whether the intervenors’ interests are adequately represented by other parties, whether intervention
7 will prolong or unduly delay the litigation, and whether parties seeking intervention will significantly
8 contribute to full development of the underlying factual issues in the suit and to the just and equitable
9 adjudication of the legal questions presented.” Id. “In exercising its discretion, the court must
10 consider whether the intervention will unduly delay or prejudice the adjudication of the original
11 parties’ rights.” Fed. R. Civ. P. 24(b)(3).
12 The Court should deny Imperial County’s motion because the County fails to meet the
13 requirements for permissive intervention. First, as discussed above, Imperial County’s motion is
14 plainly untimely, and “[a] finding of untimeliness defeats a motion for permissive intervention.”
15 Washington, 86 F.3d at 1507. The timeliness inquiry involves consideration of “the same three
16 factors—the stage of the proceedings, the prejudice to existing parties, and the length of and reason
17 for the delay”—that the court considers when determining the timeliness of a motion to intervene as
18 of right. LULAC, 131 F.3d at 1308. The Ninth Circuit has explained, however, that “[i]n the context
19 of permissive intervention, . . . [the court] analyze[s] the timeliness element more strictly than [it
20 does] with intervention as of right.” Id. (citing United States v. Oregon, 745 F.2d 550, 552 (9th Cir.
21 1984)). As discussed above, the timeliness factors preclude Imperial County’s intervention. See
22 supra Section II.A.1. Accordingly, this Court should exercise its discretion to deny Imperial
23 County’s motion as untimely.
24 Second, Imperial County has not established “independent grounds for jurisdiction.” Nw.
25 Forest Res. Council, 82 F.3d at 839; see EEOC v. Pan Am. World Airways, 897 F.2d 1499, 1509-10
26 (9th Cir. 1990) (party seeking permissive intervention must demonstrate a basis for federal
27 jurisdiction independent of the court’s jurisdiction over the underlying action). The County’s purely
28 ministerial function with respect to marriages will not be affected by the outcome of this case, and the
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1 County’s alleged interest in upholding Prop. 8 is no different than that of numerous other
2 municipalities and, indeed, the public at large. Accordingly, Imperial County lacks a legally
3 cognizable interest in this lawsuit and itself will have no standing to appeal an adverse decision,
4 because it lacks “an injury in fact—an invasion of a legally protected interest which is (a) concrete
5 and particularized, and (b) actual or imminent, not conjectural or hypothetical.” Lujan v. Defenders
6 of Wildlife, 504 U.S. 555, 560 (1992) (internal citation and quotation marks omitted). See also supra
7 Section II.A.2.
8 Third, Imperial County has no “claim or defense” that shares “a common question of law or
9 fact” with claims or defenses in the “main action.” Fed. R. Civ. P. 24(b)(1). “The words ‘claim or
10 defense’ [in Rule 24(b)(1)] manifestly refer to the kinds of claims or defenses that can be raised in
11 courts of law as part of an actual or impending law suit, as is confirmed by Rule 24(c)’s requirement
12 that a person desiring to intervene serve a motion stating ‘the grounds therefor’ and ‘accompanied by
13 a pleading setting forth the claim or defense for which intervention is sought.’” Diamond v. Charles,
14 476 U.S. 54, 76-77 (1986) (O’Connor, J., concurring). Thus, this element cannot be met if a
15 proposed intervenor “asserts no actual, present interest that would permit [it] to sue or be sued . . . in
16 an action sharing common questions of law or fact with those at issue in this litigation.” Id. at 77.
17 Imperial County cannot become a party to a lawsuit merely out “of a desire that the [law] as written
18 be obeyed[,]” id. at 66, and therefore cannot raise a “defense” in this case sufficient to satisfy this
19 element.
20 Because Imperial County fails to meet any of the threshold requirements for permissive
21 intervention, the Court’s analysis need go no further. But even if the Court considers the additional
22 discretionary factors, Imperial County’s motion still should be denied. As discussed above, the
23 County lacks a sufficient interest in the litigation because it lacks standing. See supra Section II.A.2;
24 Spangler, 552 F.2d at 1329. Moreover, its “interests are adequately represented by [Proponents],”
25 who are capable of making—and have made—all the same arguments advanced by Imperial County.
26 Id.; see supra Section II.A.3. It brings no “legal position” that is different from the claims brought by
27 Proponents, nor would it “significantly contribute to full development of the underlying factual issues
28 in the suit [or] to the just and equitable adjudication of the legal questions presented.” Spangler, 552
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Crutcher LLP 15
1 F.2d at 1329. In fact, Imperial County affirmatively argues that it will contribute nothing in the way
2 of facts, and only minimal, if any, briefing on any of the substantive legal issues. Doc #311 at 9-10,
3 14, 20. Finally, the addition of a new party to this case at this stage will inevitably “prolong or
4 unduly delay the litigation,” prejudicing Plaintiffs. Spangler, 552 F.2d at 1329.
5 Because Imperial County plainly cannot satisfy the requirements for permissive intervention,
6 it is easily distinguishable from Plaintiff-Intervenor City and County of San Francisco. In granting
7 the City’s motion for permissive intervention, this Court noted that the City asserted a unique
8 governmental interest that no other party had asserted: a financial interest in providing a social and
9 economic safety net to its citizens who would not require City services if Prop. 8 were invalidated.
10 Doc #162 (Aug. 19, 2009 Tr.) at 54-55. The Court held that, “[b]ecause of this interest, it appears
11 that San Francisco has an independent interest in the proceedings, and the ability to contribute to the
12 development of the underlying issues [].” Id. at 55. By contrast, Imperial County admits that its
13 presence in the lawsuit will not be helpful to the development of any of the underlying issues. See
14 Doc #311 at 9-10, 14, 20. Moreover, unlike the City—which demonstrated a unique economic
15 interest justifying intervention— Imperial County lacks any cognizable interest in this lawsuit. See
16 supra Section II.A.2.
17 III. CONCLUSION
18 Imperial County fails to satisfy any of the requirements for intervention as of right. Its motion
19 is indisputably untimely, and it lacks any cognizable interest in this case—much less a significantly
20 protectable one. And although the County purports to intervene to preserve the possibility of appeal,
21 the County itself lacks standing to appeal, and its motion is based entirely on speculation. Because
22 Imperial County must satisfy all the elements of Rule 24, yet cannot establish even one, the Court
23 should deny its motion to intervene.
24 ///
25 ///
26 ///
27
28
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1 DATED: December 30, 2009
2 GIBSON, DUNN & CRUTCHER LLP
4 By: /s/
Theodore B. Olson
5
and
6
BOIES, SCHILLER & FLEXNER LLP
7
David Boies
8
Attorneys for Plaintiffs
9 KRISTIN M. PERRY, SANDRA B. STIER,
PAUL T. KATAMI, AND JEFFREY J. ZARRILLO
10
11
12
13
14
15
16
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18
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Perry Plaintiffs' Opposition To Imperial County's Intervention, Filed 12-30-09

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Case3:09-cv-02292-VRW Document328 Filed12/30/09 Page1 of 23

1 GIBSON, DUNN & CRUTCHER LLP

5 Theodore J. Boutrous, Jr., SBN 132009

10 BOIES, SCHILLER & FLEXNER LLP

13 Jeremy M. Goldman, SBN 218888

16 Attorneys for Plaintiffs

18 UNITED STATES DISTRICT COURT

09-CV-2292 VRW PLAINTIFFS’ OPPOSITION TO PROPOSED INTERVENORS’ MOTION TO INTERVENE

Gibson, Dunn &

8 Am. Ass'n of People with Disabilities v. Herrera,

18 Donaldson v. United States,

23 Freedom from Religion Found., Inc. v. Geithner,

28 Legal Aid Soc’y of Alameda County v. Brennan,

7 Moosehead San Dist. v. S.G. Phillips Corp.,

12 Park & Tilford, Inc. v. Schulte,

17 Public Serv. Co. of New Hampshire v. Patch,

22 Smith v. Marsh, 194 F.3d 1045 (9th Cir. 1999) ................................................................................. 3, 4

23 Sokaogon Chippewa Cmty. v. Babbitt,

28 United Airlines, Inc. v. McDonald,

7 United States v. City of Los Angeles,

12 Westlands Water Dist. v. United States,

23 Cal. Gov’t Code §§ 3101-03 ................................................................................................................ 10

24 Cal. Health & Safety Code § 102180..................................................................................................... 8

25 Cal. Health & Safety Code § 102295..................................................................................................... 9

26 Cal. Health & Safety Code § 103125..................................................................................................... 8

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11 Fed. R. Civ. P. 24(a)............................................................................................................................... 8

12 Fed. R. Civ. P. 24(a)(2) ...................................................................................................................... 2, 3

13 Fed. R. Civ. P. 24(b)(1)........................................................................................................................ 15

14 Fed. R. Civ. P. 24(b)(3)........................................................................................................................ 14

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17 Imperial County’s asserted grounds for intervention—allegedly preserving the ability to

27 (9th Cir. 1996).

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9 representation in this Court is inadequate.

19 1. Imperial County’s Motion Is Untimely.

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1 a) Every Important “Stage” Of These Proceedings Has Passed Except

13 County’s motion must be regarded as untimely.

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2 property associated with the bonds).1

4 Defendants will appeal a judgment in Plaintiffs’ favor, it is “premature.” Washington, 86 F.3d at

15 strongly against intervention.

16 b) There Is No Objectively Reasonable Justification For Imperial

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26 NAACP’s motion was untimely.

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18 See Doc #104.

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1 Case Challenging Law’s Validity (July 1, 2009), available at

3 proponents-in-case-challenging-law-s-validity); Ex. E (Protect Marriage, Endorsements). Finally,

13 2. Imperial County Lacks A Significant Protectable Interest In This

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15 States Constitution as determined by this Court.2

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17 settled beyond peradventure . . . that an undifferentiated, generalized interest in the outcome of an

18 ongoing action” is insufficient for intervention as of right).

28 U.S. 620, 623 (1996).

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13 defending (or attacking) Prop. 8.

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3 3. Imperial County Has Failed To Demonstrate Inadequacy Of

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