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Thursday, June 27, 2013

Remedial effects of procedure

A colleague proposes the following: The overly broad language of Judge Walker's injunction, and thus the confusion about its scope, is a product of the state's refusal to defend in the district court and turning defense over to the sponsors.

I think there might be something to this. Kamala Harris' letter states that the state officials litigated on the belief (which they undoubtedly preferred) that any injunction should apply statewide as to all county clerks and registrars and as to all persons, not only the named plaintiffs. So they were not going to object to the overbroad injunction or bring the problem to the district court's attention, as an ordinary defendant, who actually defends, would have done. On the other hand, the sponsors likely were not thinking in remedial terms, since they were not the ones who would be subject to any injunction; they therefore had less incentive to really be on guard with respect to this ssue.

Posted by Howard Wasserman on June 27, 2013 at 01:08 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink


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Howard, I was going to post this as a comment to your earlier post, but maybe it fits better here. The thoughts are tentative, but I figure they are formed enough to put out there for response/rebuttal/development:

The Supreme Court's opinion in Hollingsworth may not defeat the ability of the initiative proponents themselves to file a 60(b)(5) or (6) motion to modify the terms of the injunction.

Under Rule 60, they have a procedural right to file such a motion as parties. And they are parties to the district court case by virtue of their Rule 24 intervention as defendants. The Supreme Court's opinion in Hollingsworth decides that they lacked standing to appeal and that that they "have no 'personal stake' in defending [Prop. 8's] enforcement that is distinguishable from the general interest of every citizen of California." But if memory serves, it remains an open question at the Supreme Court level (circuits are split) whether intervenors require standing in order to be proper parties to a case. If they did not need standing to intervene, then they are still proper parties, as nobody has sought to overturn the grant of intervention. And even if they do require standing for this motion (because they are now "invoking the judicial power"), perhaps they could rely on Rule 60 as vesting them with a procedural right to protect their now-concrete interest in not being used as parties to what has become something of a collusive proceeding. They can vindicate this interest by obtaining the relief of narrowing the overbroad injunction so that it is clear that non-enforcement of Prop 8 by state officials more generally is voluntary (as to the federal-court-directed state officials) and compelled by state officials' order to acquiesce rather than federal court order (as to the state-official-directed subordinates).

Judge Walker's order granting proponents intervention decided, among other things, that "as official proponents, they have a significant protectible interest in defending Prop 8's unconstitutionality" and that "their interest is not represented by another party, as no defendant has argued that Prop 8 is constitutional." Proponents' presence in the case is what enabled the compilation of the record and the adversarial presentation underlying Judge Walker's opinion, which in turn underlay the judgment that the state-official parties now wish to treat as of statewide effect. Yet subsequent appellate proceedings have now made clear that nobody with authority to represent the state actually defended the state's interest in a proceeding resulting in an injunction that the state officials now seek to treat as of statewide effect. Is it really the case that there is no procedural mechanism in this particular case to undo the overbroad injunction consistently with Article III? Perhaps. But I'm not yet persuaded.

Posted by: Kevin C. Walsh | Jun 27, 2013 2:24:45 PM


Good points and maybe I was too quick to conclude the intervenors couldn't make the motion. The majority opinion made it sound that any interest for the intervenors ended when the injunction issued and there was a final judgment in the district court, such that the controversy between the plaintiffs and the state officials ended. So is a 60(b) motion to modify an erroneous injunction more like an appeal or a continuation of district court proceedings?

BTW, could 60(b)(5) really form the basis for modification? The only possible basis is the "applying it prospectively is no longer equitable" provision. But it seems to me that applies to injunctions that were once equitable and proper, but no longer are because of changed legal or factual circumstances. That doesn't seem to capture an injunction that was erroneous from the outset. But maybe I'm being too literal.

Posted by: Howard Wasserman | Jun 27, 2013 2:52:53 PM

Good point about 60(b)(5). That doesn't capture overbreadth in itself. You are right the 60(b)(6) would be better for that. But what about 60(b)(5) once the plaintiffs have their marriage licenses? Anyhow, this could all be misguided if there is some reason why the intervenor-proponents cannot bring the motion (could be the reason you mention or others).

Posted by: Kevin C. Walsh | Jun 27, 2013 3:14:10 PM

There is a significant changed circumstance.
To Kevin and Howard:

The plaintiffs got married.

If any official in California, even the defendants, were to enforce Prop 8 against a third party, would plaintiffs have standing to seek a Motion to Enforce in this case? After all, they were not injured in this case.

Can third parties even have standing to seek a Motion to Enforce in this case? Or must they seek their remedy in their own case?

Would the defendants have standing to seek a Motion to Enforce, as they are not beneficiaries of the injunction?

Would the plaintiffs' marriages be a basis for a Rule 60 (b) (5) motion?

Posted by: Michael Ejercito | Jun 28, 2013 11:59:45 PM

I should add more.

Now that the plaintiffs married, could this have mooted the case, since they did so before the Supreme Court issued its mandate to the Ninth Circuit? (The mandate is normally released 25 days after the ruling) The injury that granted them standing to pursue relief was the denial of the marriage licenses by the county clerks, and now they have their licenses and their union solemnized.

In Arizonans for Official English v. Arizona, 520 U.S. 43 (1997), the plaintiff in that case had standing in the district court due the threat of the termination of her employment arising from Arizona law. She voluntarily left her employment. Arizonans, 520 U.S. at 48. It vacated the lower courts' judgments as moot. id. at 73. this was because when the plaintiff left her employment, the threat of termination no longer existed, and thus the injury that gave her standing ceased to exist.

Similarly, in Log Cabin Republicans v. United States,658 F.3d 1162 (9th Cir. 2011), the Ninth Circuit heard an appeal of a district court ruling striking down the Don't Ask, Don't Tell law. The United States asserted that plaintiffs lacked standing. In the meantime, the law was repealed. If plaintiffs faced the threat of military discharge due to the law, which would have given them standing in the district court, the removal of that threat eliminated what standing they have.

This argument seems to apply here. Their marriages provided full relief for the injury that granted them standing. They would have no further cause in this case. Indeed, if any of the enjoined defendants started to enforce Prop 8, they would lack standing to pursue a Motion to Enforce.

The only counterargument that might keep this case live would be if there was a threat by the defendants to seek legal action under Proposition 8 to void the marriages, which would justify keeping the judgment. But there is no indication of any such threat from the defendants. As an initial matter, defendants lack power under state law to unilaterally void marriages. And a threat by defendants to seek judicial action to void the marriages must be ""actual or imminent, not 'conjectural' or 'hypothetical", Lujan v. Defenders of Wildlife, 504 U.S. 555 at 560 (1992) Given the legal positions defendants took in this case, it is doubtful that there is any actual or imminent threat that they would seek judicial action to void plaintiffs' marriages.

Posted by: Michael Ejercito | Jun 30, 2013 11:02:39 AM

Michael, as long as the relevant state officials have control over everyone authorized to issue marriage licenses, there would presumably be no need for federal court enforcement of the injunction.

The scope of the injunction matters because, insofar as the statewide change in the enforcement of California's marriage laws exceeds the scope of the federal court's authority, the change taking place is a function of voluntary acquiescence rather than federal court command. Yet Attorney General Harris and other political actors continue to assert the opposite, based on the asserted beliefs that the district court injunction (1) applies statewide, and (2) is within the district court's authority.

Posted by: Kevin C. Walsh | Jul 1, 2013 7:17:25 AM

Even if we assume arguendo that county clerks fall under Rule 65(d)(2)(C), many state and local officials do not, including (but not limited to), the Secretary of State, the Franchise Tax Board, the State Board of Equalization, city mayors, local school districts, and of course, state and municipal judges. The ruling, by its own terms, does not enjoin them.

It is true that some of the officials above may choose not to enforce Prop 8, even though they are not bound by the injunction. They may even conclude, as Judge Lawson did in Bassett v. Snyder, 12-10038 (S.D. Mich. Jun 28, 2013) that United States v. Windsor forecloses arguments that state laws limiting benefits to opposite-sex couples are consistent with the Constitution.

Indeed, the Ninth Circuit is currently deciding two marriage equality cases, with briefing expected to be concluded this fall. A ruling striking down those laws would have the practical effect of extending the Perry ruling to the officials I mentioned above (except state judges, who appellate chain of command bypasses the Ninth Circuit). A ruling upholding those laws will be the basis for a Rule 60 (b) (5) motion, because to lift the injunction, on the basis that "decisional law [had] changed to make legal what the [injunction] was designed to prevent." Agostini v. Felton, 521 U.S. 203 at 214 (1997) (internal citation omitted)

Posted by: Michael Ejercito | Jul 1, 2013 10:09:38 AM

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