Appeal from the United States District Court for the Northern District of California Vaughn R. Walker, Chief District Judge, Presiding D.C. No. 3:09-cv-02292-TAM,
December 6, 2010-San Francisco, California
Before: Stephen Reinhardt, Michael Daly Hawkins, and N. Randy Smith, Circuit Judges.
The County of Imperial, its Board of Supervisors, and a Deputy Clerk for the County appeal the denial of their motion to intervene in this case concerning the constitutionality under the United States Constitution of Article I, section 7.5 of the California Constitution ("Proposition 8"). Concurrently, they assert their standing to appeal on the merits the district court order holding Proposition 8 to be unconstitutional. We affirm the denial of the intervention motion, although on different grounds from those relied upon by the district court, and correspondingly we dismiss the appeal on the merits for lack of standing. This decision, of course, does not affect the standing or the separate appeal of the official proponents of Proposition 8.
In May 2009, six months after Californians adopted Proposition 8, Plaintiffs brought this action in district court "for declaratory and injunctive relief against the enforcement of Prop. 8." They named as defendants, all in their official capacities, the Governor of the State of California, the Attorney General of the State of California, the Director of the California Department of Public Health (who serves as the State Registrar of Vital Statistics), the Deputy Director of Health Information & Strategic Planning for the California Department of Public Health, the Clerk-Registrar for the County of Alameda, and the Registrar-Recorder/County Clerk for the County of Los Angeles ("Defendants"). Plaintiffs specifically requested that the court "construe Prop. 8 and enter a declaratory judgment stating that this law and any other California law that bars same-sex marriage violate[s]" the federal Constitution, and that the court "enter a preliminary and a permanent injunction enjoining enforcement or application of Prop. 8 and any other California law that bars same-sex marriage." The Defendants refused to argue in favor of Proposition 8's constitutionality, so the initiative measure's official sponsors ("Proponents") were permitted to intervene to do so. In addition, the City and County of San Francisco was permitted to intervene as a plaintiff.
In December 2009, after San Francisco questioned Proponents' standing, the County of Imperial, its Board of Supervisors and Deputy County Clerk / Deputy Commissioner of Civil Marriages Isabel Vargas*fn1 (collectively, "the Movants") moved to intervene as defendants "to ensure the opportunity for appellate review" of the district court order, in the event that the court granted Plaintiffs their requested relief. The County alleged an interest in intervention because "[a]ny injunctive relief granted by this Court would directly affect the Clerk's performance of her legal duties and the legal duty of the Board to oversee and supervise County clerks and to ensure that the laws are faithfully executed." Movants explained that "Plaintiffs seek to enjoin all relevant state officials from enforcing Proposition 8 and, ultimately, to require them to issue such orders as may be necessary to ensure that all county clerks across California issue marriage licenses to same-sex couples." Because "the outcome of this action will affect [Imperial's] ability to comply with Proposition 8," Movants argued, "the Clerks' interest in the effective performance of their duties and the threat of an injunction impacting those duties - either from a federal District Court or the California Superior Court seeking to enforce an order from the Attorney General or other state officials - justify intervention."
Nine months later, following a bench trial and post-trial proceedings but before ruling on the intervention motion, the district court held Proposition 8 to be unconstitutional and ordered entry of judgment enjoining its enforcement. Perry v. Schwarzenegger, 704 F. Supp. 2d. 921, 1003-1004 (N.D. Cal. 2010), appeal pending, Ninth Cir. No. 10-16696. The court then denied the motion to intervene both as of right and permissively. It determined that neither the County itself nor the Board of Supervisors had any interest in the administration of the state marriage laws, which are a "matter of statewide concern rather than a municipal affair." Lockyer v. City & County of San Francisco, 95 P.3d 459, 471 (Cal. 2004) (internal quotation marks omitted). As to the deputy clerk, the court reasoned that "[c]county clerks, although local officers when performing local duties, perform their marriage-related duties 'under the supervision and direction of the State Registrar,' " and that "[c]county clerks have no discretion to disregard a legal directive from the existing state defendants, who are bound by the court's judgment regarding the constitutionality of Proposition 8." Consequently the court found that none of the three movants had a significant protectable interest of its own to justify intervention.
As is proper when a putative intervenor wishes to press an appeal on the merits, Movants filed a notice of appeal from the order denying their motion to intervene, and a protective notice of appeal from the district court's order on the merits of Proposition 8's constitutionality. We have jurisdiction under 28 U.S.C. § 1291, and we ...