Bench Memos

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Walker’s Gamesmanship on Standing: More on Imperial County


I’ve already outlined how Judge Walker’s delay in ruling on, and ultimate denial of, Imperial County’s motion to intervene as a defendant seems to have been designed to damage the prospects that his final judgment against Prop 8 would ever be subject to appellate review.  I’d like to develop the point more thoroughly and tie the matter to proper resolution of the Prop 8 proponents’ pending request to the Ninth Circuit that Walker’s judgment be stayed pending appeal.

On December 15, 2009, the County of Imperial, its Board of Supervisors, and its deputy clerk/deputy commissioner of civil marriages moved to intervene as defendants in the anti-Prop 8 case.  (Although it’s often convenient to refer to them collectively as “Imperial County,” it’s sometimes important to address them separately.)  In their motion to intervene, the Imperial County entities highlighted that the case “presents the truly extraordinary situation of a constitutional provision without a single governmental defender.”  Noting that whether Prop 8 proponents would have Article III standing to appeal had “been called into question,” they emphasized that the “momentous issues in this case—which have statewide and potentially national implications—surely warrant review and definitive resolution by the Court of Appeals and perhaps even the Supreme Court.” 

The Imperial County entities identified their “significantly protectable interests that satisfy the requirements for intervention.”  Among those interests were those of the deputy clerk/deputy commissioner of civil marriage, who “issues marriage licenses and performs marriages and thus will be directly affected in the performance of [her] duties if Proposition 8 is ruled unconstitutional and the state officials bound by that ruling seek to compel statewide compliance with it (as there is every reason to expect that they would).”  They pointed out, among other things, that the plaintiffs in the case had “named two county clerks as defendants in this action” (see Complaint at ¶¶ 17, 18) and that “[c]ounty clerks are frequently defendants in same-sex marriage litigation.”

Walker somehow saw fit not to rule on Imperial County’s motion until the same day that he issued his final judgment.  His odd and unexplained delay prevented Imperial County from pursuing an expedited appeal that, if successful, would have made Imperial County and its officers intervenor-defendants by the time of Walker’s final judgment.

More momentously, Walker denied Imperial County’s motion.  Among other things, he ruled that the fact that the county deputy clerk’s duties relating to marriage were “ministerial rather than discretionary” somehow meant that she did not have a “significant protectable interest” in the litigation.  (He also ruled that the Board of Supervisors’ supervisory responsibility over the deputy clerk somehow did not extend to her marriage-related duties.)

Walker’s reasoning seems contrived and makes no sense.  As Prop 8 proponents discuss in their emergency motion for a stay (see footnote 9 on pp. 23-24), the duties of the county deputy clerk are directly controlled by operation of California law.  County clerks have standing to challenge the laws governing their official actions, and it makes no sense to say that they don’t have standing to defend those laws.  Indeed, apart from the fact that plaintiffs themselves properly sued two county clerks in this very case, courts have held that county clerks are necessary parties in cases challenging the constitutionality of state marriage laws.  Further, Walker is simply wrong to state that “Imperial County’s clerk has no legitimate reason to be confused and will not be subjected to conflicting duties” if the state defendants order her to disregard Prop 8. 

It’s also worth noting that the state defendants did not oppose Imperial County’s motion to intervene.  Walker twice disparages the state defendants’ non-opposition as “cursory,” but the state defendants evidently recognized that they had no legitimate grounds to oppose the motion.

Walker also contends in his order that “Imperial County lacks independent Article III standing to defend Proposition 8 on appeal.”  (By “Imperial County,” he’s referring collectively to the three sets of proposed Imperial County intervenors.)  His contention rests on his same mistaken assertion about the county clerk’s supposed lack of a protectable interest (and the Board of Supervisors’ supposed lack of supervisory authority over her). 

In sum, Prop 8 proponents are right that Walker’s order “is patently incorrect and almost certain to be reversed on appeal”—almost certain, that is, if the Ninth Circuit were not the notoriously lawless court that it is.

Let me conclude with a couple of observations:

1.  Any remotely responsible district judge who was presiding over a potential landmark case would take all steps to ensure that his decision would be subject to full appellate review.  But Walker, well aware that issues had already been raised about Prop 8 proponents’ standing to appeal, instead contrived feeble reasons to deny Imperial County’s motion to intervene.  And he waited nearly eight months to deny the motion, when a prompt denial would have preserved the possibility that Imperial County could have obtained a timely reversal on appeal.

Compare, by contrast, Walker’s perfunctory order granting the motion of the City and County of San Francisco to intervene as plaintiffs.

2.  For reasons I have discussed (see also Jonathan Adler’s Volokh Conspiracy post), I believe that Prop 8 proponents have standing to appeal Walker’s final judgment.  I’ll note further that, in addition to the standing argument that I excerpted, Prop 8 proponents have also argued that Imperial County’s independent standing to appeal (per its notice of appeal) both Walker’s order denying intervention and Walker’s final judgment renders irrelevant whether Prop 8 proponents would have independent standing to appeal.

What this means is that, for purposes of the stay request, the Ninth Circuit and, if necessary, the Supreme Court have compelling grounds to reject the central rationale (Prop 8 proponents’ purported lack of standing on appeal) on which Walker refused to stay his judgment pending appeal.

In addition, I’ll note that Imperial County has filed in the Ninth Circuit its joinder in Prop 8 proponent’s pending stay motion in the Ninth Circuit.


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