In The United States Court of Appeals For The Ninth Cmcuit

Case: 09-16959 10/09/2009 Page: 1 of 36 ID: 7091339 DktEntry: 39
No. 09-16959
IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CmCUIT
KRSTIN M. PERRY, et aI.,

Plaintif-Appellees,
v.
CAMAIGN FOR CALIFORNA FAMILIES,
Proposed Defendant-Intervenor-
Appellant
On Appeal from the United States District Court

for the Northern District of California
No. CV-09-02292 VRW
Honorable Vaughn R. Walker
PLAINTIFFS'-APPELLEES' RESPONSE BRIEF
THEODORE J. BOUTROUS, JR. THEODORE B. OLSON

CHRSTOPHERD. DUSSEAULT (7ounsel of Record
THANE EVANGELIS KApUR MATTHEW D. MCGILL
REBECCA JUSTICE LAZARUS GIBSON, DUN & CRUTCHER LLP
ENRIQUE A. MONAGAS 1050 Connecticut Avenue, N.W.
GIBSON, DUN & CRUTCHER LLP Washington, D.C. 20036
333 South Grand Avenue (202) 955-8668
Los Angeles, CA 90071
(213) 229-7804
Attorneys for Plaintif-Appellees Kristin M Perry, Sandra B. Stier,

Paul T. Katami, and Jeffrey J Zarrillo
CORPORATE DISCLOSURE STATEMENT
Pursuant to Federal Rule of Appellate Procedure 26.1, Plaintiffs-Appellees
Kristin M. Perr, Sandra B. Stier, Paul T. Katami, and Jeffrey J. Zarrilo state that
they are individuals and not publicly traded corporations.

TABLE OF CONTENTS
Page
INTRODUCTION.....................................................................................................1
JURSDICTIONAL STATEMENT ......................................................................... 3
STATEMENT OF THE ISSUES.............................................................................. 4
STATEMENT OF FACTS .......................................................................................4
SUMY OF ARGUMNT ................................................................................ 9

STANDAR OF REVIEW .................................................................................... 10
ARGUMNT.......................................................................................................... 11
i. The District Court Correctly Denied The Campaign's Motion

To Intervene As Of Right. .................................................................. 11
A. The Campaign Lacks A Legally Protectable Interest That

May Be Practically Impaired By The Disposition Of This
Case. .........................................................................................11
B. The Current Parties Adequately Represent The

Campaign's Interests. ............................................................... 17
II. The District Court Did Not Abuse Its Discretion In Denying
The Campaign's Motion For Permissive Intervention....................... 19
CONCLUSION .......................................................................................................26
STATEMENT OF RELATED CASES ..................................................................27
CERTIFICATE OF COMPLIANCE...................................................................... 28
i
TABLE OF AUTHORITIES
Page(s) .
Cases
Allen (7alculators, Inc. v. Natl (7ash Register (70.,
322 U.S. 137 (1944).............................................................................................25
Arakaki v. (7ayetano,
324 F.3d 1078 (9th Cir. 2003) ............................................................................. 18
Arizonans for Offcial English v. Arizona,
520 U.S. 43 (1997)............................................................................................... 17
Beckman Indus., Inc. v. Int'l Ins. (70.,
966 F.2d 470 (9th Cir. 1992) ............................................................................... 11
Butler, Fitzgerald & Potter v. Sequa (7orp.,
250 F.3d 171 (2d Cir. 2001) ................................................................................19
(7al. Dep't of Toxic Substances (7ontrol v. (7ommercial Realty Projects, Inc.,
309 F.3d 1113 (9th Cir. 2002) ............................................................................. 10
(7alifornia ex rei. Van de Kamp v. Tahoe Reg 'I Planning Agency,
792 F .2d 779 (9th Cir. 1986)........ ........................... .............. ................ .............. 13
(7alifornia v. Tahoe Reg 'I Planning Agency,
792 F.2d 775 (9th Cir. 1986)............................................................................... 22
(7ooter & Gell v. Hartmarx (7orp.,
496 U.S. 384 (1990)............................................................................................. 11
Diamond v. (7harles,
476 U.S. 54 (1986)............................................................................................... 21
Donaldson v. United States,
U.S. 517 (1971).......................................................................................12, 14
400
Donnelly v. Glickman,
159 F.3d 405 (9th Cir. 1998) .......................................................................1,9, 11
EEO(7v. Pan Airways,
Am. World
897 F.2d 1499 (9th Cir. 1990) .............................................................................21

Idaho v. Freeman,
625 F.2d 886 (9th Cir. 1980).........................................................................14,15
11
(cont)
Page(s)
Jones v. Prince George's (7ounty,

348 F.3d 1014 (D.C. Cir. 2003)........................................................................... 19
Kootenai Tribe of Idaho v. Veneman,
313 F.3d 1094 (9th Cir. 2002).....:.......................................................................11
League of United Latin Am. (7itizens v. Wilson,
131 F.3d 1297 (9th Cir. 1997) ...............................................................................3
Nw. Forest Res. (7ouncil v. Glickman,
82 F.3d 825 (9th Cir. 1996) ...............................................................12, 17,20,21
Portland Audubon Soc. v. Hodel,
866 F.2d 302 (9th Cir. 1989) ............................................................................... 14
Prete v. Bradbury,
438 F.3d 949 (9th Cir. 2006) ................................................................... 10, 14, 17
Public Servo (70. of New Hampshire V. Patch,
136 F.3d 197 (lst Cir. 1998)..........................................................................13, 15
S. (7al. Edison (70. v. Lynch,
307 F.3d 794 (9th Cir. 2002) ................................................................. 2,9, 12, 15
Sagebrush Rebellion, Inc. v. Watt,
713 F.2d 525 (9th Cir. 1983) .........................................................................14, 15
Schlesinger v. Reservists (7omm. to Stop the War,
418 U.S. 208 (1974)............................................................................................. 17
Sierra (71ub v. Us. E.P.A.,
995 F.2d 1478 (9th Cir. 1993) ............................................................................. 15
Sokaogon (7hippewa (7mty. V. Babbitt,
214 F.3d 941 (7th Cir. 2000) ............................................................................... 12
Spangler V. Pasadena (7ity Bd. of Educ.,
552 F.2d 1326 (9th Cir. 1977) ......................................................................passim
Stadin v. Union Electric (70.,
309 F.2d 912 (8th Cir. 1962)............................................................................... 25
Strauss v. Horton,
207 P.3d 48 (CaL. 2009)................................................................................... 4, 13
ii
(cont)
Page(s)
Summers v. Earth Island Inst.,

129 S. Ct. 1142 (2009)......................................................................................... 17
United States ex rei. Richards v. De Leon Guerrero,
4 F.3d 749 (9th Cir. 1993) ................................................................................... 22
United States v. Alisal Water (7orp.,
370 F.3d 915 (9th Cir. 2004) ................................................................... 12, 14, 16
United States v. (7ity of Los Angeles,
288 F.3d 391 (9th Cir. 2002)........ .......... .......... ........................ .................... passim
United States v. (7ity of Philadelphia,
798 F.2d 81 (3d Cir. 1986) ............................................................................ 19,23
United States v. Oregon,
745 F.2d 550 (9th Cir. 1984) ............................................................................... 16
Valley Forge (7hristian (7ollege v. Ams. Unitedfor Separation of(7hurch & State,
454 U.S. 464 (1982)............................................................................................. 17
Venegas v. Skaggs,
867 F.2d 527 (9th Cir. 1989) ............................................................................... 23
Washington State Bldg. & (7onstruction Trades (7ouncil, AFL-(7IO v. Spellman,
684 F .2d 627 (9th Cir. 1982) ............................................................................... 13
Westlands Water Dist. v. United States,
700 F.2d 561 (9th Cir. 1983) ............................................................................... 13
Statutes
28 U.S.C. § 1291 ....................................................................................................... 3
28 U.S.C. § 1331 ....................................................................................................... 3
42 U.S.C. § 1983 .......................................................................................................3
Rules
Fed. R. Civ. P. 24(a)................................................................................................ 12
Fed. R. Civ. P. 24(b)(3)..................................................................................... 21,24
Fed. R. Civ. P. 24(b)(1)(B) ..................................................................................... 20
iv
INTRODUCTION
Plaintiffs are gay and lesbian individuals who brought suit in the district
court to vindicate their federal constitutional right to marr the person of their
choice-a right that has been denied by a California ballot initiative, Proposition 8
("Prop.
8"). The Campaign for California Families (the "Campaign"), one of many
groups made up of persons who claim an interest in restricting civil marriage to
"between a man and a woman" (ER 17), sought to intervene as a defendant in
Plaintiffs' lawsuit. Chief Judge Vaughn R. Walker denied the motion to intervene
because the Campaign did not satisfy the requirements for intervention as of right
or permissive intervention. This Court should affirm the district court's well-
reasoned decision.
The Campaign failed to establish its entitlement to intervention as a matter
of right because (1) it could not identify any "significant protectable interest" that
may be impaired by the disposition of Plaintiff s lawsuit, Donnelly v. Glickman,
159 F.3d 405, 409 (9th Cir. 1998), and (2) its interests are adequately represented
by the official proponents of Prop. 8, who previously had been permitted to
intervene as a party in the litigation, United States v. (7ity of Los Angeles, 288 F.3d
391, 398 (9th Cir. 2002). Indeed, the interest in the "defense of traditional
marriage" asserted by the Campaign is indistinguishable from that shared by most
(if not all) supporters of Prop. 8. But this Court has made clear that "an
undifferentiated, generalized interest in the outcome of an ongoing action is too
porous a foundation on which to premise intervention as of right." S. (7al. Edison
(70. v. Lynch, 307 F.3d 794, 803 (9th Cir. 2002) (quotation marks and citation
omitted).
Moreover, though the Campaign accuses the official proponents of
conceding away "many of the facts necessary to defend the constitutionality of the
challenged provisions" (Op. Br. 2), a review of the record demonstrates that the
official proponents in fact have conceded much less than the Campaign surmises,
and the few concessions the official proponents have made-such as admitting that
"homosexuals have been subjected to discrimination" (id. at 29)-cannot seriously
be disputed. The Campaign's apparent wilingness to challenge commonly
accepted truths, and the official proponents' judgment that such efforts either could
not be made in good faith or would be unfritful amounts ( at most) to a difference
in litigation tactics. Tactical differences are "not enough to justify intervention as
a matter of right." (7ity of Los Angeles, 288 F .3d at 402-03.
Similarly, the district court correctly denied the Campaign's motion for
permissive intervention because the discretionary Spangler factors-many of
which track the requirements for intervention as of right-weigh decisively against
the Campaign's intervention. See Spangler v. Pasadena (7ity Bd. of Educ., 552
F.2d 1326, 1329 (9th Cir. 1977). Here, the district court found that the existing
2
parties are more than capable of developing a factual record encompassing. the
Campaign's interests and that the Campaign's intervention would delay the
proceedings. Those findings are not clearly erroneous-indeed, the Campaign
itself acknowledges that its intervention will delay the proceedings-and the
district court's conclusion grounded upon those findings accordingly cannot be
viewed as an abuse of discretion.
JUSDICTIONAL STATEMENT
The district court, which had jurisdiction over this action arising under the
U.S. Constitution and 42U.S.C. § 1983 pursuant to 28 U.S.C. § 1331, denied the
Campaign's motion to intervene as of right and motion for permissive intervention
on August 19,2009. ER 72. The district court's decision denying intervention as
of right under Federal Rule of Civil Procedure 24(a)(2) "is an appealable 'final
decision' within the meaning of28 U.S.C. § 1291." League of

United Latin Am.
(7itizens v. Wilson, 131 F.3d 1297,1302 (9th Cir. 1997). This Court lacks
jurisdiction over the district court's order denying permissive intervention unless
the district court abused its discretion. Id. at 1307. Thus, if

the Court "finds an
abuse of discretion, it retains jurisdiction and must reverse; if it determines, on the
other hand, that no abuse of discretion has occurred, it must dismiss the appeal for
want of jurisdiction." Id. at 1308.
3
STATEMENT OF THE ISSUES

1. Whether the district court correctly denied the Campaign's motion to
intervene as of right, where the Campaign failed to demonstrate either that it has a
significantly protectable interest in the litigation that may be practically impaired
by a disposition of this case, or that its interests are inadequately represented by the
official proponents of Prop. 8.
2. Whether the district cour abused its discretion by denying the
Campaign's motion for permissive intervention.
STATEMENT OF FACTS
On November 4, 2008, California voters narrowly approved Prop. 8, a
California ballot initiative that amended the California Constitution to provide that
"only a civil marriage between a man and a woman is valid or recognized in
California." ER 204 (internal quotations omitted). According to the official
General Election Voter Information Guide, Prop. 8 "( c )hange( d) the California
Constitution to eliminate the right of same-sex couples to marr in California."
Strauss v. Horton, 207 P.3d 48, 77 (CaL. 2009) (internal quotations omitted). Prop.
8 went into effect on November 5,2008, the day after the election. ER 209.
Plaintiffs are gay and lesbian residents of California who are involved in
long-term, serious relationships with individuals of the same sex and who desire to
marr those individuals to demonstrate publicly their commitment and to obtain all
4
the benefits that come with the official recognition of their family relationship. ER
205, ER 210. Plaintiffs applied for marriage licenses but were denied solely
because they are gay and lesbian couples. ER 210.
On May 22, 2009, Plaintiffs filed this lawsuit seeking a declaration that
Prop. 8 is unconstitutional under the Due Process and Equal Protection Clauses of
the Fourteenth Amendment to the U.S. Constitution, and an injunction preventing
the State from enforcing that provision against Plaintiffs. ER 204-205. Plaintiffs
also sought a preliminary injunction because Plaintiffs are irreparably harmed each
day that Prop. 8 remains in force and continues to deprive them of their due
process and equal protection rights. Id.
On May 28, 2009, a group representing the official proponents of Prop. 8,
Dennis Hollngsworth, Gail J. Knight, Martin F. Gutierrez, Hak-Shing, Wiliam
Tam, Mark A. Jansson, and ProtectMarriage.com - Yes on 8 ("Proponents"), filed
a motion to intervene as defendants. ER 235. No part opposed. On June 30,
2009, the district court granted Proponents' motion to intervene as defendants. ER
241.
Later, three other groups also sought to intervene in this litigation: (1) Our
Family Coalition, Lavender Seniors of the East Bay, and Parents, Families, and
Friends of Lesbians and Gays (collectively "Our Family Coalition") (as plaintiffs);
(2) the City and County of San Francisco (the "City") (as a plaintiff); and (3)
5
Appellant, the Campaign for California Families (as a defendant). ER 240, 242,
244. Our Family Coalition and the Campaign sought to intervene as a matter of
right under Federal Rule of Civil Procedure 24(a) and, alternatively, sought
permissive intervention under Rule 24(b). ER 45-46. The City sought only
permissive intervention. ER 46. Plaintiffs opposed all three motions to intervene.

.
ER 33-34. The district court heard argument on August 19, 2009 and denied the
Campaign's motion to intervene. ER 72-73.1
The district court denied the Campaign's motion to intervene as of right
based on its findings that the Campaign failed to show that (1) it had a significant
protectable interest relating to the transaction that is the subject matter of the
action; (2) it was so situated that the disposition of the action may practically
impair or impede its ability to protect its interest; and (3) its interest was not
adequately represented by the existing parties to the action. ER 46.
The district court explained that, to establish a "significant protectable
interest," the Campaign was required to show both that it has an interest protected
under some law and that there is a relationship between that legally protected
interest and the claims at issue in this case. ER 47. The district court found that
the Campaign failed to make that showing. ER 47-48.
1 The district court also denied Our Family Coalition's motion to intervene, but
that ruling has not been appealed.
6
Although the Campaign asserted that its interests were "broader than merely
i
upholding Proposition 8 because it wishes to assure marriage is defined only as an
opposite-sex union," the district court observed that "the Campaign fail ( ed) to
explain the practical effect of (its) broader interest, or to explain how the Court
could protect this interest, how Proposition 8, if upheld as constitutional, would fail
to assure this claimed broader interest in defining marriage as only an opposite-sex
union." ER 47-48. The district court further noted that "the Campaign is not the
official sponsor of Proposition 8, (therefore) its interest in Proposition 8 is
essentially no different from the interest of a voter who supported Proposition 8."
ER47.
Addressing the Campaign's argument that its interests were inadequately
represented by the existing parties, the district court stated that the Campaign
"failed to explain that its interest is not adequately represented by the Intervenor
Defendants who are, after all, the official proponents of Proposition 8." ER 48.
The district cour accordingly denied the Campaign's motion to intervene as of
right. ER 49.
The district court also denied the Campaign's motion for permissive
intervention. ER 53. Applying the legal standard set forth in Spangler, 552 F.2d at
1326, the district court considered several factors, including "the nature and extent
of the applicants' interest, their standing to raise relevant legal issues, the legal
7
position they seek to advance and its probable relation to the merits of the case."
ER 52. In addition, the district court considered "whether the applicants' interests
are adequately represented by the other paries, whether intervention wil prolong
or unduly delay the litigation, and whether the parties seeking intervention wil
significantly contribute to the full development of the underlying factual issues in
the suit and to the just and equitable adjudication of the legal questions presented."
Id.
The district court found that "the Spangler factors weigh against permitting
Our Family Coalition and the Campaign to intervene. Their interests are
represented by the current parties to the action." ER 52. In reaching this
conclusion, the district court noted that "nothing in the record before the Court
suggests that the current parties are not independently capable of developing a
complete factual record encompassing all of

the applicants' interests. Furthermore,
permitting the Our Family Coalition and the Campaign to intervene might very
well delay the proceedings, as each group would need to conduct discovery on
substantially similar issues." ER 53. Indeed, the district court found that the
interests of the Campaign were "indistinguishable from those advanced by
Plaintiffs." Id. Based on these findings, the district court denied the Campaign's
motion for permissive intervention, noting that it could seek to file amicus briefs
8
on "specific legal issues that they believe require elaboration or explication that the
parties fail to provide." Id.2
SUMMARY OF ARGUMENT
This Court should affirm the district court's denial of the Campaign's
motion to intervene.
The Campaign failed to establish its entitlement to intervention as of right.
It cannot identify any "significant protectable interest" that may be impaired by the
disposition of Plaintiffs lawsuit. Donnelly, 159 F.3d at 409. Rather, it states only
a generalized interest in "defending the institution of marriage as the union of a
man and woman." Op. Br. 21. But this is precisely the same interest shared by
virtually every person who counts himself as a supporter of Prop. 8, and such "an
undifferentiated, generalized interest in the outcome of an ongoing action is too
porous a foundation on which to premise intervention as of right." Lynch, 307
F.3d at 803 (quotation marks and citation omitted). In addition, the Campaign has
not met its burden of establishing that its stated interest-preventing gay and
2 The district court granted the City's motion to intervene in part, concluding that
"to the extent that San Francisco claims a governent interest in the
controversy about the constitutionality of Proposition 8, it may represent that
interest and present such evidence as necessary for the Court to decide that
issue." ER 56. The district court reached this conclusion based on its finding
that, unlike the other two proposed intervenors, the City identified an
independent protectable interest in the action because it claimed a financial
interest that it alleges is adversely affected by Prop. 8. ER 54.
9
lesbian individuals from marring-is inadequately represented by the official
proponents of Prop. 8, who are already a part to the litigation. (7ity of Los
Angeles, 288 F.3d at 398.
Nor did the district court abuse its discretion in denying the Campaign's
motion for permissive intervention. The discretionary Spangler factors-many of
which track the requirements for intervention as of right-weigh decisively against
granting permissive intervention. See Spangler, 552 F.2d at 1329. As the district
court explained, "nothing in the record before the Court suggests that the current
parties are not independently capable of developing a complete factual record
encompassing all of the (Campaign's) interests," and, on the other hand, allowing
the Campaign to intervene would unduly delay the resolution of Plaintiffs' lawsuit.
ER 52-53 (citing Spangler). These findings are indisputably correct and foreclose
any argument that the district court abused its discretion.
STANDARD OF REVIEW
The Ninth Circuit reviews de novo district court decisions concerning
intervention as of right pursuant to Rule 24(a). Prete v. Bradbury, 438 F.3d 949,
953 (9th Cir. 2006); (7al. Dep't of Toxic Substances (7ontrol v. (7ommercial Realty
Projects, Inc., 309 F3d 1113, 1119 (9th Cir. 2002). A district court has "broad"
discretion to determine whether to grant permissive intervention under Rule
24(b)(2), Spangler, 552 F.2d at 1329, and its decision granting or denying
10
permissive intervention pursuant to Rule 24(b )(2) will be reversed only for abuse
of discretion, Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094, 1110 (9th Cir.
2002); Beckman Indus., Inc. v. Intl Ins. (70.,966 F.2d 470,472 (9th Cir. 1992). A
district court abuses its discretion only when it premises its decision on a legal
error or a clearly erroneous view of the relevant facts. (7ooter & Gell v. Hartmarx
(7orp., 496 U.S. 384,405 (1990).
ARGUMENT
I. The District Court Correctly Denied The Campaign's Motion To
Intervene As Of Right.
Intervention as of right under Rule 24(a)(2) is permissible only where "(1)
(the applicant) has a significant protectable interest relating to the propert or

transaction that is the subject of the action; (2) the disposition of the action may, as
,
a practical matter, impair or impede the applicant's abilty to protect its interest; (3)
the application is timely; and (4) the existing parties may not adequately represent
the applicant's interest." Donnelly, 159 F.3d at 409 (internal quotation marks
omitted). Failure to satisfy anyone of these criteria is fataL. See id.
A. The Campaign Lacks A Legally Protectable Interest That

May Be Practically Impaired By The Disposition Of This
Case.
The district court correctly denied the Campaign's motion to intervene as of
right under Rule 24(a)(2) because, among other things, the Campaign failed to
articulate a "significantly protectable interest" in the subject matter of the litigation
11
that may be practically impaired by the disposition of this case. Donaldson v.
United States, 400 U.S. 517, 531 (1971); Fed. R. Civ. P. 24(a); ER 47.
"An applicant for intervention has a significantly protectable interest if ((1))
the interest is protected by law and ((2)) there is a relationship between the legally
protected interest and the plaintiffs claims." United States v. Alisal Water (7orp.,
370 F.3d 915, 919 (9th Cir. 2004); Nw. Forest Res. (7ouncil v. Glickman, 82 F.3d
825, 837 (9th Cir. 1996). "(A)n undifferentiated, generalized interest in the
outcome of an ongoing action" is insufficient. Lynch, 307 F.3d at 803 (internal
quotation marks omitted). Rather, "at some fundamental level the proposed
intervenor must have a stake in the litigation." Sokaogon (7hippewa (7mty. v.
Babbitt, 214 F.3d 941, 946 (7th Cir. 2000) (internal quotation marks and brackets
omitted).
The Campaign has no such stake in the litigation. It contends only that it has
a generalized interest in "defending the institution of marriage as the union of a
man and a woman against diminution and disintegration" by preventing gay and
lesbian couples from marring. Op. Br. 21. But as the district court recognized,
ER 47, this is precisely the same interest shared by any of the numerous
Californians who voted in favor of Prop. 8, and such "an undifferentiated,
generalized interest in the outcome of an ongoing action is too porous a foundation
on which to premise intervention as of right." Lynch, 307 F.3d at 803 (quotation
12
marks and citation omitted); see also (7alifornia ex rei. Van de Kamp v. Tahoe
Reg'l Planning Agency, 792 F.2d 779, 781-82 (9th Cir. 1986) (holding that "a
general interest in (the subject matter of the suit) shared by a substantial portion of
the population" is an insufficient ground for intervention as of right); Westlands
Water Dist. v. United States, 700 F.2d 561, 563 (9th Cir. 1983) (no significant
protectable interest where the asserted interest was shared by "a substantial portion
of the population of northern California"); Public Servo (70. of New Hampshire v.
Patch, 136 F.3d 197, 205 (1st Cir. 1998) ("(i)t is settled beyond peradventure. . .
that an undifferentiated, generalized interest in the outcome of an ongoing action"
is insufficient for intervention as of right).
As the district court noted, the Campaign was merely one of many
supporters of Prop. 8-and not even one of the official sponsors, who are already
parties to the case. ER 47. In fact, the California Supreme Court denied the
Campaign's motion to intervene in the state court challenge to Prop. 8 in Strauss V.
Horton, 207 P.3d 48 (CaL. 2009), after other groups opposed its intervention on the
ground that it lacked a sufficient interest in the litigation. Strauss, Nos. S168047,
S168066, S168078 (CaL. Nov. 19,2008) (order denying motion to intervene); Pet'r
Opp. to Mot. of Campaign for California Families to Intervene as Resp't, Strauss,
207 P.3d 48 (No. S168047). Thus, the Campaign's reliance on Washington State
Bldg. & (7onstruction Trades (7ouncil, AFL-(7IO v. Spellman, 684 F.2d 627 (9th
13
Cir. 1982), and Prete v. Bradbury, 438 F.3d at 956, is misplaced. Both cases
involved intervention by the offcial sponsor of the challenge ballot initiative.
The Campaign also relies on two cases decided over two decades ago, Idaho
v. Freeman, 625 F .2d 886, 887 (9th Cir. 1980), and Sagebrush Rebellion, Inc. v.
Watt, 713 F.2d 525 (9th Cir. 1983), for the proposition that any supporter or
opponent of a rule of law-be it a statute, a regulation, or a ballot initiative-has
an interest sufficient to intervene whenever its "broader interests . . . would be
affected by the narrower interests at issue in the respective cases." Op. Br. 21. But
Freeman and Sagebrush are readily distinguishable.
First, both Freeman and Sagebrush were decided before this Court fully
embraced the fact that the Supreme Court's 1971 decision in Donaldson, 400 U.S.
at 517, held that intervention as of right "does require a 'significantly protectable
interest.'" Portland Audubon Soc. v. Hodel, 866 F.2d 302, 309 (9th Cir. 1989)
(quoting Donaldson, 400 U.S. at 531). Rather than asking whether the particular
interests asserted by the applicants for intervention were "protected by law," Alisal
Water (7orp., 370 F.3d at 919, the Freeman and Sagebrush Courts inquired only
whether the proposed intervenors "had an interest in the subject of the suit."
Sagebrush, 713 F.2d at 527 (citing Freeman, 625 F.2d 886). But this Court has
now made clear that such an "undifferentiated, generalized interest in the outcome
14
of an ongoing action" is an insufficient basis for intervention as of right. Lynch,
307 F.3d at 803; see also Patch, 136 F.3d at 205.
Second, even if the National Organization for Women's "interest in the
continued vitality of the (Equal Rights Amendment)," Freeman, 625 F.2d at 887,
and the Audubon Society's "interest in the preservation of

birds and their habitats,"
Sagebrush, 713 F.2d at 528, could qualify as "significantly protectable interests"
under Donaldson, the interests asserted by the proposed intervenors in Freeman
and Sagebrush are of an entirely different magnitude from those pressed here by
the Campaign. The proposed intervenors in those cases were more akin to the
official proponents of Prop. 8 than the Campaign: The National Organization for
Women "had championed" the Equal Rights Amendment, Sagebrush, 713 F.2d at
527, and the Audubon Society had "participated actively in the administrative
process" advocating in favor of the administrative actions challenged in Sagebrush,
id. at 526. By contrast, before Prop. 8 qualified for the ballot, the Campaign was a
vocal critic of the measure-a poor analogy to the role played by NOW and the
Audubon Society in connection with the provisions there under review. ER 173-
180.
The Campaign's other cited cases (Op. Br. 19-21) are also inapposite.
Sierra (71ub v. Us. E.P.A., 995 F.2d 1478 (9th Cir. 1993), involved an intervenor
who owned propert directly affected by the lawsuit. Likewise, in United States v.
15
Oregon, 745 F.2d 550, 553 (9th Cir. 1984), Idaho intervened in a lawsuit between
Oregon and Washington regarding regulation of fishing in the Columbia River,
which had a direct impact on tributaries to that river located in Idaho.
The district court rightly held that the Campaign's "interest in Proposition 8
is essentially no different from the interest of a voter who supported Proposition 8,
and is insufficient to allow the Campaign to intervene as of right." ER 47. To
accept the Campaign's argument-that it may intervene whenever a litigation
implicates its "broader interests"-would be to allow any voter or group that
professes a generalized interest in the subject matter of a particular litigation to
intervene as a part. Litigation would look like agency rulemaking, and the
"significant protectable interest" requirement imposed by the Supreme Court in
Donaldson would be no more. See Alisal Water (7orp., 370 F.3d at 920 n.3 ("A
mere interest in propert that may be impacted by litigation is not a passport to
participate in the litigation itself. To hold otherwise would create a slippery slope
where anyone with an interest in the propert of a part to a lawsuit could
bootstrap that stake into an interest in the litigation itself."). Because "(a)n
intervenor canot step into the shoes of the original part unless the intervenor
independently fulfills the requirements of Aricle III," it makes little sense to allow
intervention on terms insufficient to invoke the jurisdiction of the federal courts.
16
Arizonans for Offcial English v. Arizona, 520 U.S. 43, 64-65 (1997) (internal
quotation marks omitted).3
B. The Current Parties Adequately Represent The

Campaign's Interests.
The district court correctly held that the Campaign's interest in the
litigation-even if it qualified as a "significantly protectable interest" under
Donaldson (which it does not)-is adequately represented by Proponents. ER 48.
The inadequacy of representation requirement "is not without teeth." Prete,
438 F.3d at 956. In evaluating this requirement, the Court considers: '''(1) whether
the interest of a present part is such that it wil undoubtedly make all the
intervenor's arguments; (2) whether the present part is capable and wiling to
make such arguments; and (3) whether the would-be intervenor would offer any
necessary elements to the proceedings that other parties would neglect. '" (7ity of
Los Angeles, 288 F.3d at 398 (quoting Nw. Forest Res. (7ouncil, 82 F.3d at 838).
3 Indeed, the requirement that a proposed intervenor demonstrate more than a

generalized grievance is fully consistent with fundamental principles of Aricle
III standing. See, e.g., Summers v. Earth Island Inst., 129 S. Ct. 1142, 1149
(2009) ("federal courts (must) satisfy themselves that the plaintiff has alleged
such a personal stake in the outcome of the controversy as to warrant his
invocation of federal-court jurisdiction" (internal quotation marks omitted;
emphasis in original)); Schlesinger v. Reservists (7omm. to Stop the War, 418
U.S. 208, 220 (1974) ("standing to sue may not be predicated upon an interest
of the kind alleged here which is held in common by all members of the public,
because of the necessarily abstract nature of the injury all citizens share"); cf
Valley Forge (7hristian (7ollege v. Ams. United for Separation of (7hurch &
State, 454 U.S. 464, 486 n.21 (1982) (standing is not measured by the "sincerity
their commitment to them").
of (plaintiffs') stated objectives and the depth of
17
Where, as here, "an applicant for intervention and an existing party have the
same ultimate objective"-to wit, the continuing enforcement of Prop. 8-"a
presumption of adequacy of representation arises." Arakaki v. (7ayetano, 324 F .3d
1078, 1086 (9th Cir. 2003) (emphasis added). And where "the applicant's interest
is identical to that of one of the present parties, a compelling showing should be
required to demonstrate inadequate representation." Id. (emphasis added).
The Campaign has identified no way in which its interest in this litigation
differs from that of Proponents, and it has failed to make the compellng showing
of inadequacy of representation required under those circumstances. As the district
court explained, the Campaign argues that "the proponents of Proposition 8 wil
not make all of the arguments the Campaign wishes to present, because the
Campaign has ( a) broader interest. . . in not only upholding Proposition 8 but also
in securing a definition of marriage as an opposite-sex union." ER 49. But the
Campaign does not explain "how its interest is meaningfully distinct from
(Proponents') interest, or how the Court could fashion a remedy for this claimed
broader interest." Id. In addition, the Campaign has not shown that Proponents are
unwiling or unable "to present all of the arguments the Campaign wishes to
introduce that are consistent with the law and the facts." Id.4
4 The Campaign has suggested that it has an additional interest, perhaps not
embraced by the official proponents, in stripping gay and lesbian individuals of
18
Moreover, the Campaign's brief plainly demonstrates that its adequacy of
representation argument is premised on nothing more than a difference in trial
strategy. See Op. Br. 29-38. But mere "differences in strategy. . . are not enough
to justify intervention as a matter of right." (7ity of Los Angeles, 288 F.3d at 402-
03. Indeed, courts deny intervention even where intervenors have a "different
view of the applicable law" and would be "less prone to agree to the facts." United
States v. (7ity of Philadelphia, 798 F .2d 81, 90 (3d Cir. 1986). This is because, if
"quibbles over litigation tactics" or "'disagreement with an existing part over trial
strategy qualified as inadequate representation, the requirement of Rule 24 would
have no meaning.'" Jones v. Prince George's (7ounty, 348 F.3d 1014, 1020 (D.C.
Cir. 2003) (quoting Butler, Fitzgerald & Potter v. Sequa (7orp., 250 F.3d 171,181
(2d Cir. 2001)).
Because the Campaign has failed to meet its burden of demonstrating both a
significant protectable interest and inadequacy of representation, this Court should
affirm the district court's decision denying the motion to intervene as of

right.
II. The District Court Did Not Abuse Its Discretion In Denying The
Campaign's Motion For Permissive Intervention
Rule 24(b)(1)(B) provides that "(o)n timely motion, the cour may permit
anyone to intervene who: . . . has a claim or defense that shares with the main
domestic partnership rights in addition to their state constitutional right to

marr. Whether or not the official proponents share this objective, it is not at
issue in this case.
19
action a common question of law or fact." Fed. R. Civ. P. 24(b )(l)(B). This Court
has held that a district court, in its discretion, may grant permissive intervention
where the applicant for intervention shows "( 1 ) independent grounds for
jurisdiction; (2) the motion is timely; and (3) the applicant's claim or defense, and
the main action, have a question of law or a question of fact in common." Nw.
Forest Res. (7ouncil, 82 F.3d at 839.
If the district court finds that all these conditions are met, "it is then entitled
to consider other factors in making its discretionary decision on the issue of
permissive intervention." Spangler, 552 F.2d at 1329. "These relevant factors
include the nature and extent of the intervenors' interest, their standing to raise
relevant legal issues, the legal position they seek to advance, and its probable
relation to the merits of the case." Id. The district court may also consider
"whether the intervenors' interests are adequately represented by other parties,
whether intervention will prolong or unduly delay the litigation, and whether
parties seeking intervention wil significantly contribute to full development of the
underlying factual issues in the suit and to the just and equitable adjudication of the
legal questions presented." Id. Rule 24(b )(3) expressly provides, however, that
"(i)n exercising its discretion, the court must consider whether intervention wil
unduly delay or prejudice the adjudication of the original paries' rights." Fed. R.
Civ. P. 24(b)(3) (emphasis added). Collectively, these factors inform the district
20
court's exercise of its broad discretion as to whether to permit intervention under
Rule 24(b)( 1 ).
Here, the district cour found the Campaign's motion to intervene deficient
on several of these grounds, at least two of which are independently sufficient to
support its denial of the motion.5
First, the district cour concluded that the Campaign has not asserted a legal
interest that is independent of those asserted by the existing parties, nor does it
seek to raise any legal argument that the original parties are unwilling to advance.
ER 20-21. This conclusion is well-supported by the relevant case law concerning
permissive intervention. See, e.g., United States ex rei. Richards v. De Leon
Guerrero, 4 F.3d 749, 756 (9th Cir. 1993) (denying permissive intervention
5 Although the district court did not address the question of whether the
Campaign's motion met the threshold eligibilty requirements for permissive
intervention, the Campaign's failure to establish "independent grounds for
jurisdiction" provides another basis for the denial of the motion for permissive
intervention. F or the same reasons that the Campaign's undifferentiated,
generalized interest in this litigation cannot serve as the basis for intervention as
of right, see supra Section I.A, the Campaign also fails to establish such
independent grounds for jurisdiction or a "common question of law or fact"
with Plaintiffs' claim necessary to establish its eligibility for permissive
intervention. See, e.g., Nw. Forest Res. (7ouncil, 82 F.3d at 839; EEO(7 v. Pan
Am. World Airways, 897 F.2d 1499, 1509-10 (9th Cir. 1990) (part seeking
permissive intervention must demonstrate a basis for federal jurisdiction
independent of the court's jurisdiction over the underlying action). See also
Diamond v. (7harles, 476 U.S. 54, 76-77 (1986) (O'Connor, J., concurring)
("The words 'claim or defense' (in Rule 24(b)(2)) manifestly refer to the kinds
of claims or defenses that can be raised in courts of law as part of an actual or
impending law suit").
,
21
because applicant's argument was "essentially the same" as an existing part's and
interest asserted by applicant was already adequately represented); California v.
Tahoe Reg'l Planning Agency, 792 F.2d 775, 779 (9th Cir. 1986) (affirming
district court's denial of permissive intervention because applicant's interests were
addressed by at least one of the existing paries and intervention "would impair the
efficiency of the litigation").
The Campaign asserts that the district court abused its discretion because
"Defendant-Intervenors (Proponents) said they would essentially concede" some of
the factors that the Campaign argues "must be subjected to the adversarial fact-
finding process," including whether sexual orientation is related to an individual's
abilty to contribute to society and whether sexual orientation is a readily

identifiable characteristic that defines gay and lesbian individuals as a discrete
class. Gp. Br. 48-49. But the district court directly addressed these concerns at
the August 19 hearing on the motion to intervene by closely questioning counsel
for Proponents as to whether they intended to raise these and other issues. ER 41.
Counsel confirmed that Proponents would "vigorously pursue" these issues (id.),
and the district cour thus concluded that "the Campaign fail (ed) to counter
proponents' assertions that they are wiling and able to present all of the arguments
the Campaign wishes to introduce that are consistent with the law and the facts"
(ER49).
22
While the Campaign may disagree with certin of Proponents' tactical
decisions in defending Prop. 8, the Campaign has failed to identify any actual
"divergence of interests" between them. ER 42. Rather, as the district court
correctly concluded, the interests of the Campaign and Proponents are

"indistinguishable" because both Proponents and the Campaign wish to defend
Prop. 8 (as well as other California laws that may prohibit gay and lesbian
individuals from marring). Id. And, as noted above, the Campaign has not
explained how the allegedly "broader interest" it asserts would not be served if
Proponents are successful and Prop. 8 is upheld. ER 48. Disagreements over
litigation strategy do not establish a difference in interest. See, e.g., (7ity of
Philadelphia, 798 F.2d at 90 ("(T)he fact that the intervenors would have been less
prone to agree to the facts and would have taken a different view of the applicable
law does not mean that the (existing parties) did not adequately represent their
interests in the litigation" (internal quotation marks omitted)). This case stands in
stark contrast to those in which this Court has found divergent interests sufficient
to justify permissive intervention. See, e.g., Venegas v. Skaggs, 867 F.2d 527, 530
(9th Cir. 1989) aff'd sub nom. Venagas v. Mitchell, 495 U.S. 82 (1990) (granting
permissive intervention where "neither of the existing parties (was) concerned with
protecting the (intervenor's distinct) interest" and "(n)either of the original parties.
23
. . alleged that. . . intervention would cause delay or prejudice to the adjudication
of their rights").
Second, the district court reasoned that "permitting () the Campaign to
intervene might very well delay the proceedings, as each group would need to
conduct discovery on substantially similar issues." ER 53. The Campaign
concedes that its involvement would hamper the district court's ability to move
forward efficiently to a resolution of this dispute, noting that "(t)he problem is not
that the Campaign has nothing to contribute, it is that the Campaign has so much to
contribute that it would slow down the proceedings." Gp. Br. 50. Nevertheless,
the Campaign contends that "the district court's statements reflect a wilingness to
sacrifice development of a complete factual record in favor of expediency." Id.
Not so. Rule 24(b )(3) expressly requires the district court to consider the
delays attendant to the Campaign's proposed intervention in this suit. Fed. R. Civ.
P. 24(b)(3) ("In exercising its discretion, the court must consider whether
intervention wil unduly delay or prejudice the adjudication of

the original parties'
rights") (emphasis added). As Plaintiffs pointed out in their preliminary injunction
motion and at the August 19 hearing, they suffer irreparable injur every day Prop.
8 remains the law in California. ER 34-35. In recognition of the serious and far-
reaching consequences of the issues presented in this case, the district court has
repeatedly emphasized its focus on an orderly process that wil enable this
24
litigation to be resolved on the merits in an expeditious manner. ER 35; ER 45.
This focus is consistent with-and required by-Rule 24(b )(3).
Indeed, the Supreme Court has explained, "(i)t is common knowledge that,
where a suit is of large public interest, the members of the public often desire to
present their views to the court in support of the claim or the defense," but such
interventions are inappropriate where they will "result in accumulating proofs and
arguments without assisting the court." Allen (7alculators, Inc. v. Nat'l (7ash
Register (70., 322 U.S. 137, 141-42 (1944). Thus, in Stadin v. Union Electric (70.,
309 F.2d 912, 920 (8th Cir. 1962), the court affirmed denial of a motion to
intervene because intervention "(would have brought) into (the) lawsuits added
complexity; the inevitable problems attendant upon additional witnesses,
interrogatories and depositions; expanded pretrial activity; greater length of trial;
and elements of confusion," which "in themselves suggest delay and the clouding
of the issues involved in the original causes of action." See also id. ("More than
one trial court has observed that (a)dditional parties always take additional time
and that they are the source of additional questions, objections, briefs, arguments,
motions and the like which tend to make the proceeding a Donnybrook Fair."
(internal citation and quotation marks omitted)).
The only thing the Campaign's intervention would bring to this litigation is
delay, which would unduly impair and prejudice the adjudication of Plaintiffs'
25
rights. In this light, the Campaign's intimation that allowing the case to go
forward with the current parties somehow impermissibly sacrifices justice for
efficiency rings decidedly hollow.
CONCLUSION
This Court should affirm the district court's well-reasoned decision denying
the Campaign's motion for intervention as of right and dismiss the Campaign's
appeal of the court's denial of permissive intervention for want of jurisdiction.
DATED: October 9,2009 Respectfully submitted,
GIBSON, DUN & CRUTCHER LLP

THEODORE B. OLSON
(7ounsel of Record
THEODORE J. BOUTROUS, JR.
CHRSTOPHER D. DUSSEAULT
MATTHEW D. MCGILL
THEANE EVANGELIS KApUR
REBECCA JUSTICE LAZARUS . ./
GAS ¿
By~~6~
ENRIQUE A. MONA
Theodore B. Olson 7\1
Attorneys for Plaintiffs-Appellees Kristin M.

Perr, Sandra B. Stier, Paul T. Katami, and
Jeffrey J. Zarrilo
26
STATEMENT OF RELATED CASES

Pursuant to Ninth Circuit Rule 28-2.6, Plaintiffs are not aware of any related
cases.
27
CERTIFICATE OF COMPLIANCE
Pursuant to Fed. R. App. P. 32(a)(7)(C) and Ninth Circuit Rule 32-1, I, the
under-signed counsel, certify that this Appellees' Response Brief is proportionately
spaced, has a typeface of 14 points or more, and contains 6,195 words and 540
lines of text (not counting the cover, the Corporate Disclosure Statement, Tables of
Contents and Authorities, this Certificate of Compliance, the Statement of Related
Cases, or the Proof of Service) according to the word count feature of Microsoft
Word used to generate this Brief.
DATED: October 9,2009 Respectfully submitted,
GIBSON, DUN & CRUTCHER LLP

THEODORE B. OLSON
(7ounsel of Record
THEODORE J. BOUTROUS, JR.
CHRSTOPHERD. DUSSEAULT
MATTHEW D. MCGILL
THEANE EVANGELIS KApUR
/
REBECCA JUSTICE LAZARUS
ENRQUE A. MONAGAS
BY:~~~
Theaï1p r ~
Attorneys for Plaintiffs-Appellees
28
9t Circut Case Number s) 109- i 6959
NOTE: To secure your input you should print the filled-in fon::n to PDF (File ;;, Print ;~ PDF Printer/Creator).
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SERVICE LIST
Case Name: Perry, et al. v. Campaignfor California Familes, et al.

Case No: U.S. Court of Appeals, Ninth Circuit, Case No. 09-16959
Matthew A. Coles Thoedore H. Uno

ACLU - AMERICAN CIVIL LIBERTIES BOIES, SCHILLER & FLEXNER
UNION FOUNDATION 333 Main S1.
2 Charleston St. Aronk, NY 10504
New York, NY 10014
Christopher Francis Stoll
Alan L. Schlosser NATIONAL CENTER FOR LESBIAN
ACLU FOUNDATION OF NORTHERN RIGHTS
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39 Drumm S1. Suite 370
San Francisco, CA 94111 San Francisco, CA 94102
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EDUCATION FUND, INC. RIGHTS
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Case: 09-16959 10/09/2009 Page: 1 of 36 ID: 7091339 DktEntry: 39

IN THE UNITED STATES COURT OF APPEALS

KRSTIN M. PERRY, et aI.,

CAMAIGN FOR CALIFORNA FAMILIES,

On Appeal from the United States District Court

PLAINTIFFS'-APPELLEES' RESPONSE BRIEF

THEODORE J. BOUTROUS, JR. THEODORE B. OLSON

Attorneys for Plaintif-Appellees Kristin M Perry, Sandra B. Stier,

CORPORATE DISCLOSURE STATEMENT

Pursuant to Federal Rule of Appellate Procedure 26.1, Plaintiffs-Appellees

they are individuals and not publicly traded corporations.

JURSDICTIONAL STATEMENT ......................................................................... 3

STATEMENT OF THE ISSUES.............................................................................. 4

STATEMENT OF FACTS .......................................................................................4

SUMY OF ARGUMNT ................................................................................ 9

i. The District Court Correctly Denied The Campaign's Motion

A. The Campaign Lacks A Legally Protectable Interest That

B. The Current Parties Adequately Represent The

STATEMENT OF RELATED CASES ..................................................................27

897 F.2d 1499 (9th Cir. 1990) .............................................................................21

Jones v. Prince George's (7ounty,

Summers v. Earth Island Inst.,

groups made up of persons who claim an interest in restricting civil marriage to

"between a man and a woman" (ER 17), sought to intervene as a defendant in

The Campaign failed to establish its entitlement to intervention as a matter

may be impaired by the disposition of Plaintiff s lawsuit, Donnelly v. Glickman,

by the official proponents of Prop. 8, who previously had been permitted to

marriage" asserted by the Campaign is indistinguishable from that shared by most

undifferentiated, generalized interest in the outcome of an ongoing action is too

porous a foundation on which to premise intervention as of right." S. (7al. Edison

Moreover, though the Campaign accuses the official proponents of

"homosexuals have been subjected to discrimination" (id. at 29)-cannot seriously

be disputed. The Campaign's apparent wilingness to challenge commonly

not be made in good faith or would be unfritful amounts ( at most) to a difference

in litigation tactics. Tactical differences are "not enough to justify intervention as

a matter of right." (7ity of Los Angeles, 288 F .3d at 402-03.

permissive intervention because the discretionary Spangler factors-many of

which track the requirements for intervention as of right-weigh decisively against

proceedings. Those findings are not clearly erroneous-indeed, the Campaign

district court's conclusion grounded upon those findings accordingly cannot be

viewed as an abuse of discretion.

Campaign's motion to intervene as of right and motion for permissive intervention

on August 19,2009. ER 72. The district court's decision denying intervention as

decision' within the meaning of28 U.S.C. § 1291." League of

the district court abused its discretion. Id. at 1307. Thus, if

abuse of discretion, it retains jurisdiction and must reverse; if it determines, on the

want of jurisdiction." Id. at 1308.

STATEMENT OF THE ISSUES

significantly protectable interest in the litigation that may be practically impaired

official proponents of Prop. 8.

2. Whether the district cour abused its discretion by denying the

Campaign's motion for permissive intervention.

"only a civil marriage between a man and a woman is valid or recognized in

California." ER 204 (internal quotations omitted). According to the official

Constitution to eliminate the right of same-sex couples to marr in California."

because they are gay and lesbian couples. ER 210.

the Fourteenth Amendment to the U.S. Constitution, and an injunction preventing