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San Francisco's Opposition to Stay

San Francisco's Opposition to Stay

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Published by Eric Kibel
PROP 8 - APPELLEE CITY AND COUNTY OF SAN
FRANCISCO'S SEPARATE OPPOSITION TO
APPELLANTS' EMERGENCY MOTION FOR
STAY PENDING APPEAL - NINTH CIRCUIT COURT OF APPEALS
PROP 8 - APPELLEE CITY AND COUNTY OF SAN
FRANCISCO'S SEPARATE OPPOSITION TO
APPELLANTS' EMERGENCY MOTION FOR
STAY PENDING APPEAL - NINTH CIRCUIT COURT OF APPEALS

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Published by: Eric Kibel on Aug 14, 2010
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CCSF’S SEPARATE OPP. TO MOT. TO STAYCASE NO. 10-16696
 
n:\govli1\li2010\100617\00646462.doc 
IN THE UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUITKRISTIN M. PERRY, et al.,Plaintiffs/Appellees,vs.ARNOLD SCHWARZENEGGER, et al.,Defendants.No. 10-16696U.S. District CourtCase No. 09-cv-02292 VRW
APPELLEE CITY AND COUNTY OF SANFRANCISCO'S SEPARATE OPPOSITION TOAPPELLANTS' EMERGENCY MOTION FORSTAY PENDING APPEAL
On Appeal from the United States District Courtfor the Northern District of CaliforniaThe Honorable Chief District Judge Vaughn R. WalkerDENNIS J. HERRERA,
State Bar #139669
 City AttorneyTHERESE M. STEWART,
State Bar
 
#104930
 Chief Deputy City AttorneyVINCE CHHABRIA,
State Bar
 
#208557
 Deputy City AttorneyCity Hall, Room 234One Dr. Carlton B. Goodlett PlaceSan Francisco, California 94102-4682Telephone: (415) 554-4708Facsimile: (415) 554-4699E-Mail: therese.stewart@sfgov.orgAttorneys for Plaintiff-Intervenor/AppelleeCITY AND COUNTY OF SAN FRANCISCO
Case: 10-16696 08/13/2010 Page: 1 of 9 ID: 7440235 DktEntry: 10-1
 
CCSF’S SEPARATE OPP. TO MOT. TO STAYCASE NO. 10-16696
 1
n:\govli1\li2010\100617\00646462.doc 
INTRODUCTION
Appellee City and County of San Francisco ("City") joins fully in theopposition filed by Appellees Perry, et al. The City files this separate oppositionsolely to respond to Appellants' contention that they have standing to appeal. Theircontention is based on the theory that California law authorizes them to act as theState's chief legal officer, representing the interests of the entire State. Asdiscussed below, that is wrong as a matter of law. The official proponents of Proposition 8 do not have standing to represent the interests of the State of California in this litigation, and therefore they lack standing to appeal.
DISCUSSION
Article III of the United States Constitution requires that an individual musthave "standing" to be an original party to a federal appeal. To have standing, theindividual must show, first and foremost, an "actual" stake in the litigation that is"concrete and particularized."
 Lujan v. Defenders of Wildlife
, 504 U.S. 555, 560(1992). "An interest shared generally with the public at large in the properapplication of the Constitution and laws will not do" to confer standing on anindividual.
 Arizonans for Official English v. Arizona
, 520 U.S. 43, 64 (1997)("
 AOE 
").Even if an individual has intervened in a federal lawsuit, that does not meanhe has standing to appeal, as would an original party to the lawsuit. And when theoriginal party to the lawsuit does not appeal, this will in many cases preclude theintervenor from doing so. As the Supreme Court has explained:Although intervenors are considered parties entitled, amongother things, to seek review by this Court . . . an intervenor'sright to continue a suit in the absence of the party on whose sideintervention was permitted is contingent upon a showing by theintervenor that he fulfills the requirements of Art. III.
Case: 10-16696 08/13/2010 Page: 2 of 9 ID: 7440235 DktEntry: 10-1
 
CCSF’S SEPARATE OPP. TO MOT. TO STAYCASE NO. 10-16696
 2
n:\govli1\li2010\100617\00646462.doc 
 Diamond v. Charles
, 476 U.S. 54, 69 (1986) (citations and quotations omitted).
See also AOE 
, 520 U.S. at 65 ("An intervenor cannot step into the shoes of theoriginal party unless the intervenor independently fulfills the requirements of Article III") (internal quotations omitted). Accordingly, the fact that theproponents of Proposition 8 intervened in the proceedings below does not answerthe question whether they have independent standing to pursue an appeal.In fact, the proponents of Proposition 8 cannot appeal, because sponsors of ballot measures do not have Article III standing. Although this Court previouslyhad ruled that initiative sponsors can have standing,
see Yniguez v. Arizona
, 939F.2d 727, 733 (9th Cir. 1991), the Supreme Court vacated that ruling in
 AOE 
,where all nine Justices expressed "grave doubts" about whether initiative sponsors"have standing under Article III to pursue appellate review." 529 U.S. at 66.Appellants do not appear to dispute the general rule that initiativeproponents lack Article III standing. Instead, they invoke an apparent exception tothe "no standing" rule discussed in
 AOE 
. There, the Court stated:We have recognized that state legislators have standing tocontest a decision holding a state statute unconstitutional if statelaw authorizes legislators to represent the State's interests. See
Karcher v. May
, 484 U.S. 72, 82, 108 S.Ct. 388, 395, 98L.Ed.2d 327 (1987). [The initiative sponsor] and its members,however, are not elected representatives, and we are aware of no Arizona law appointing initiative sponsors as agents of thepeople of Arizona to defend, in lieu of public officials, theconstitutionality of initiatives made law of the State.520 U.S. at 65.
1
According to Appellants, California decisional law authorizesinitiative sponsors to step into the shoes of California's chief legal officer and makelegal decisions on behalf of the entire State of California.
1
Incidentally, it is not at all clear that
Karcher 
stands for the proposition that
individual legislators
can ever have Article III standing to defend legislativeenactments. In
Karcher 
, the Supreme Court concluded that the Speaker of theNew Jersey General Assembly and the President of the New Jersey Senate hadstanding to appear in federal court on behalf of 
the entire New Jersey Legislature
 
Case: 10-16696 08/13/2010 Page: 3 of 9 ID: 7440235 DktEntry: 10-1

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