Olson Opp. to Realignment Filed 10-28-09

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Opposition by Plaintiffs to Motion to Realign Attorney General, filed 10-28-09 in Perry v. Schwarzenneger, posted by Michael Ginsborg, MLS, for http://prop8legalcommentary.blogspot.com
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    09-CV-2292 VRW PLAINTIFFS’ AND PLAINTIFF-INTERVENOR’S JOINT OPPOSITION TODEFENDANT-INTERVENORS’ MOTION TO REALIGN ATTORNEY GENERAL EDMUND G. BROWN, JR. 12345678910111213141516171819202122232425262728 Gibson, Dunn &Crutcher LLP GIBSON, DUNN & CRUTCHER LLPTheodore B. Olson, SBN 38137 tolson@gibsondunn.com  Matthew D. McGill,  pro hac vice  Amir C. Tayrani, SBN 2296091050 Connecticut Avenue, N.W., Washington, D.C. 20036Telephone: (202) 955-8668, Facsimile: (202) 467-0539Theodore J. Boutrous, Jr., SBN 132009 tboutrous@gibsondunn.com  Christopher D. Dusseault, SBN 177557Ethan D. Dettmer, SBN 196046Sarah E. Piepmeier, SBN 227094Theane Evangelis Kapur, SBN 243570Enrique A. Monagas, SBN 239087333 S. Grand Avenue, Los Angeles, California 90071Telephone: (213) 229-7804, Facsimile: (213) 229-7520BOIES, SCHILLER & FLEXNER LLPDavid Boies,  pro hac vice   dboies@bsfllp.com Theodore H. Uno, SBN 248603333 Main Street, Armonk, New York 10504Telephone: (914) 749-8200, Facsimile: (914) 749-8300Attorneys for Plaintiffs KRISTIN M. PERRY, SANDRA B. STIER,PAUL T. KATAMI, and JEFFREY J. ZARRILLO[Additional counsel listed on signature page] UNITED STATES DISTRICT COURTNORTHERN DISTRICT OF CALIFORNIA KRISTIN M. PERRY, SANDRA B. STIER,PAUL T. KATAMI, and JEFFREY J.ZARRILLO,Plaintiffs,v.ARNOLD SCHWARZENEGGER, in his officialcapacity as Governor of California; EDMUNDG. BROWN, JR., in his official capacity asAttorney General of California; MARK B.HORTON, in his official capacity as Director of the California Department of Public Health andState Registrar of Vital Statistics; LINETTESCOTT, in her official capacity as DeputyDirector of Health Information & StrategicPlanning for the California Department of PublicHealth; PATRICK O’CONNELL, in his officialcapacity as Clerk-Recorder for the County of Alameda; and DEAN C. LOGAN, in his officialcapacity as Registrar-Recorder/County Clerk forthe County of Los Angeles,Defendants.CASE NO. 09-CV-2292 VRW PLAINTIFFS’ AND PLAINTIFF-INTERVENOR’S JOINT OPPOSITION TODEFENDANT-INTERVENORS’ MOTIONTO REALIGN ATTORNEY GENERALEDMUND G. BROWN, JR. Date: Submitted on the papersJudge: Chief Judge WalkerLocation: Courtroom 6, 17th Floor Case3:09-cv-02292-VRW Document240 Filed10/28/09 Page1 of 7    09-CV-2292 VRW PLAINTIFFS’ AND PLAINTIFF-INTERVENOR’S JOINT OPPOSITION TODEFENDANT-INTERVENORS’ MOTION TO REALIGN ATTORNEY GENERAL EDMUND G. BROWN, JR. 12345678910111213141516171819202122232425262728 Gibson, Dunn &Crutcher LLP INTRODUCTION For at least four reasons, this Court should deny Defendant-Intervenors’ motion to realignAttorney General Edmund G. Brown, Jr., as a plaintiff in this case. First, realignment is appropriateonly where repositioning the parties would have jurisdictional consequences or assist the court inconsidering the evidence introduced at trial. Neither of those prerequisites to realignment is presenthere. Second, this Court lacks the authority to realign a nominal party, and both the Attorney Generaland Defendant-Intervenors describe the Attorney General’s role in this case as merely “nominal.”Third, the interests of Plaintiffs and the Attorney General diverge regarding the primary matter indispute in this case: whether this Court should immediately issue an injunction prohibiting theenforcement of Prop. 8. The Attorney General—the chief legal officer of California responsible foroverseeing the enforcement of the State’s laws—has refused to direct state officials to cease theirenforcement of that unconstitutional provision and actively opposed Plaintiffs’ motion for apreliminary injunction. Maintaining the current alignment of the parties is therefore necessary toafford Plaintiffs the possibility of obtaining full relief in the form of an injunction that immediatelyrequires all state officials in California to terminate their enforcement of Prop. 8. Finally, it ispossible that Attorney General Brown will be replaced in office after the 2010 election by anindividual unwilling to acknowledge Prop. 8’s unconstitutionality. Because the new attorney generalwould automatically be substituted for Attorney General Brown in this case, it would beinappropriate to realign the Attorney General based on the position staked by an officeholder whomay no longer be in office during subsequent proceedings in this case. ARGUMENT Realignment is rarely appropriate where repositioning the parties would not have jurisdictional consequences. See   Prudential Real Estate Affiliates, Inc. v. PPR Realty, Inc. , 204 F.3d867, 873 (9th Cir. 2000) (“We must align  for jurisdictional purposes those parties whose interestscoincide respecting the primary matter in dispute.”) (emphasis added; internal quotation marksomitted). Indeed, the Ninth Circuit has repeatedly described realignment as a procedural mechanismavailable where reordering the parties would have “the effect of  conferring or denying subject matter jurisdiction on the court.” Smith v. Salish Kootenai College , 434 F.3d 1127, 1133 (9th Cir. 2006) (en Case3:09-cv-02292-VRW Document240 Filed10/28/09 Page2 of 7    09-CV-2292 VRW PLAINTIFFS’ AND PLAINTIFF-INTERVENOR’S JOINT OPPOSITION TODEFENDANT-INTERVENORS’ MOTION TO REALIGN ATTORNEY GENERAL EDMUND G. BROWN, JR. 12345678910111213141516171819202122232425262728 Gibson, Dunn &Crutcher LLP 2banc) (emphases added). Thus, the most appropriate—and by far the most common—use of realignment is to neutralize attempts to invoke diversity jurisdiction through artful pleading thatmisaligns parties in order to create complete diversity. See In re Digimarc Corp. Derivative Litig. ,549 F.3d 1223, 1234 (9th Cir. 2008); Prudential Real Estate , 204 F.3d at 872; Cont’l Airlines, Inc. v.Goodyear Tire & Rubber Co. , 819 F.2d 1519, 1523 (9th Cir. 1987);  Dolch v. United Cal. Bank  , 702F.2d 178, 181 (9th Cir. 1983). Only in unusual cases where realignment materially assists theadjudication of a case has this Court realigned parties despite the absence of jurisdictionalconsequences. See, e.g. , Plumtree Software, Inc. v. Datamize, LLC  , No. C 02-5693 VRW, 2003 U.S.Dist. LEXIS 26948, at *9-*15 (N.D. Cal. Oct. 6, 2003) (realigning a patent holder as the plaintiff andthe alleged patent infringer as the defendant in a suit seeking a declaratory judgment of non-infringement because the patent holder bore the burden of proof at trial and realignment would “aidin the logical presentation of the evidence at trial”).Realignment of the Attorney General is not appropriate because his classification as a plaintiff or defendant has no bearing on this Court’s federal-question jurisdiction over this case or theexistence of a constitutionally adequate case or controversy between Plaintiffs and Defendant-Intervenors. Realignment therefore would not have “the effect of conferring or denying subjectmatter jurisdiction on the court.” Smith , 434 F.3d at 1133. Nor would it “aid in the logicalpresentation of the evidence at trial” ( Plumtree , 2003 U.S. Dist. LEXIS 26948, at *12-*13), becausethe Attorney General has not asserted any claims for relief and has indicated that he “does not intendto present opinion or expert evidence” at trial. Doc # 153 at 2. He is thus poorly situated to assumethe status of a plaintiff in this case.In any event, even if this were a case where realignment was an available procedural device,realignment would nevertheless be inappropriate because both the Attorney General and Defendant-Intervenors characterize the Attorney General as merely a nominal party to this dispute. Where theNinth Circuit has “realigned parties according to their interest, those interests have involvedsubstantial legal rights or detriments flowing from the resolution of the primary matter in dispute.” Prudential Real Estate , 204 F.3d at 874; see also Cont’l Airlines , 819 F.2d at 1523 (realigning adefendant airplane parts supplier with the plaintiff aircraft manufacturer because the supplier would Case3:09-cv-02292-VRW Document240 Filed10/28/09 Page3 of 7    09-CV-2292 VRW PLAINTIFFS’ AND PLAINTIFF-INTERVENOR’S JOINT OPPOSITION TODEFENDANT-INTERVENORS’ MOTION TO REALIGN ATTORNEY GENERAL EDMUND G. BROWN, JR. 12345678910111213141516171819202122232425262728 Gibson, Dunn &Crutcher LLP 3avoid liability for an airplane accident if the manufacturer prevailed);  Dolch , 702 F.2d at 181(realigning a defendant trustee who would gain a beneficial interest in the trust if the plaintiff prevailed). A party’s “mere preference regarding an outcome,” however, “is insufficient to compelrealignment,” and the Ninth Circuit therefore “ignore[s] . . . nominal or formal parties” whenconsidering realignment. Prudential Real Estate , 204 F.3d at 873, 874.Defendant-Intervenors have labeled the Attorney General a “nominal [d]efendant” in thiscase. Doc # 216 at 6. The Attorney General has likewise described himself as a “nominal defendant”and has stated that “plaintiffs and defendant intervenors . . . are to date the real parties in interest.”Doc # 127 at 2, 3. Indeed, while the Attorney General certainly has a strong “preference regarding anoutcome” in this case—he has unequivocally admitted that Prop. 8 is unconstitutional under the DueProcess and Equal Protection Clauses (Doc # at 39 at 9, 10)—he has indicated that he will notconduct discovery or present opinion or expert evidence at trial. Doc # 153 at 2. Under Ninth Circuitprecedent, realignment of the Attorney General would therefore be improper. See Prudential Real Estate , 204 F.3d at 873.Moreover, realignment is also unwarranted because the interests of Plaintiffs and the AttorneyGeneral do not “coincide respecting the primary matter in dispute.” Prudential Real Estate , 204 F.3dat 873 (internal quotation marks omitted). Plaintiffs’ objective in bringing this suit was to obtain asquickly as possible an injunction prohibiting the enforcement of Prop. 8 because each day that thisdiscriminatory provision remains in force, Plaintiffs are irreparably harmed by the denial of theirconstitutional right to marry the person with whom they are in a loving, committed relationship. TheAttorney General has conceded that Prop. 8 is unconstitutional. He has nevertheless refused toinvoke his authority as the chief legal officer of California to direct state officials not to enforce Prop.8. He also opposed Plaintiffs’ motion for a preliminary injunction at the outset of this case on theground that the injunction would purportedly create “significant uncertainty . . . in same-sexmarriages that might be performed before a final judgment.” Doc # 34 at 4. According to theAttorney General, “[s]taying operation of Proposition 8, without the certainty of a final judgment asto its constitutionality, would leave same-sex couples, as well as their families, friends, and the widercommunity, in legal limbo” because this Court could ultimately decide to uphold Prop. 8 after a full Case3:09-cv-02292-VRW Document240 Filed10/28/09 Page4 of 7
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