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Saturday, July 20, 2013

Procedure of marriage equality, ctd.

If the wrangling over Prop 8 teaches us anything, it is that more students need to take Federal Courts and Remedies. In addition to the action filed by Prop 8 supporters in the California Supreme Court seeking clarification of the continued legal status of Prop 8, in light of another provision of state law requiring that state officials enforce state laws until there is a "definitive" decision invalidating the to-be-enforced law. Meanwhile, yesterday, the clerk-registrar of San Diego County filed his own petition seeking clarification, also arguing that, as an independently elected official, he is not bound by AG Kamala Harris' interpretation. (H/T: A commenter to my earlier Prop 8 post). The clerk asked the state court to stop the issuance of licenses to same-sex couples until a final determination (although the Supreme Court denied a similar request from Prop 8 supporters last week, so don't expect this one to have any more success). And the state's argument is that the Supreme Court should stay out of this altogether to avoid conflict with the federal court.

Has the state gone to the district court seeking to enjoin the state-court action under the "protect or effectuate its judgments" exception of the Anti-Injunction Act? And if not, why not? The state-court action, in part, functionally asks the court to interpret the scope and effect of the federal injunction (does it protect all couples? Does it apply to all officials in all counties)?, which seems like the district court's job. County officials (who have been working closely with Prop 8 supporters and similar organizations) have been very careful not to simply refuse to issue licenses, thus risking either a contempt citation in Hollingsworth or a new § 1983 action in which Hollingsworth might have either stare decisis or even (although less likely) preclusive effect. Clearly, they want to keep interpretation of the injuntion out of federal court, especially in light of the sense among many (including me) that the injunction is overbroad.

Of course, state-wide application depends on state officials (who were named as defendants) controlling unnamed county officials; faced with a motion under § 2283, might the district court have to certify that question back to the state supreme court? Or worse, abstain on a matter of ambiguous or complex state law?

Update: Kaimi Wenger (who was quoted in the linked article) expands on those comments. Kaimi discusses something I wanted to get into--whether the petition really is a request for procedural clarification or an act of conservative political theatre. He points out that the county clerk worked with a conservative religious organization and that the filing contains "broad social policy and political-usurpation language that seems extraneous to the procedural issues.' Actually, that complaint can be applied to the newspaper story itself, which intersperses discussions of the filing with heated rhetoric about the substance of marriage equality from both sides of the debate.

broad social-policy and political-usurpation language that seem extraneous to the procedural issues - See more at: http://www.concurringopinions.com/archives/2013/07/dronenburg-and-reasonableness.html#more-77890

Posted by Howard Wasserman on July 20, 2013 at 08:45 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink


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Really good, technical, questions. I hope someone comments who might know good answers!

If I remember rightly, the California AG refused to appeal the injunction, and the SC said nobody else could appeal it, so the injunction stands. A question now is what happens if some state official interprets the injunction in a way the district court thinks is wrong and so issues a contempt order. At that point, who has standing to appeal the contempt order? The official? The AG? Both? Is the AG allowed to block the official from appealing if the official wants to?

Posted by: Eric Rasmusen | Jul 20, 2013 3:06:30 PM

Anyone charged with contempt has standing to challenge the contempt citation, even if that person would not otherwise have has standing. The argument against the citation is that the recorder is not subject to the injunction and thus can't be in contempt.

Posted by: Howard Wasserman | Jul 20, 2013 7:23:50 PM

I've got a brief summary of the issues here:


Posted by: Marty Lederman | Jul 21, 2013 8:38:51 AM

Sitting here in Northern California, I think that the San Diego clerk ought to intervene in the Hollingsworth case in the ND Cal, rather than waste time seeking relief at the Cal Supreme Court. The clerk should seek declaratory relief on the actual binding effect of the injunction of the 56 county clerks who were not made parties originally. All we have right now is the state AG's advisory opinion--maybe she is incorrect.

Posted by: David Levine | Jul 21, 2013 3:13:02 PM

Would the district court allow intervention here? Or would the clerk need to file a new separate D/J action (which would be assigned to the same judge)? But since it still depends on the state-law issues, I wonder if certification still looms.

Posted by: Howard Wasserman | Jul 21, 2013 5:06:26 PM

I am puzzled, to say the least, why the attorney general did not go to ND Cal to seek clarification and/or modification of the injunction to apply it to all county clerks. There is no question that courts have such authority. See System Federation v. Wright, 364 U.S. 642, 646-47 (1932)See also Salazar v. Buono, concurring opinion of Scalia, J, at 6. Surely making clear who is biound by an injunction is an appropriate exercise of the court's power.

And if "the state's argument is that the Supreme Court should stay out of this altogether to avoid conflict with the federal court", and if it truly is the " the district court's job" to interpret its orders, then why did the attorney general create a potential conflict with the federal court by interpreting the injunction on her own? I find it preposterous that a state attorney general should be able to interpret a federal court order if it is improper for the State Supreme Court to do so.

Also, it is settled law within the Ninth Circuit that 'all ambiguities are resolved in favor of the person subject to the injunction.' United States v. Holtzman, 762 F.2d 720, 726 (9th Cir.1985) Indeed, there is this exchange between Judge Hawkins and David Boies during the Ninth Circuit oral arguments in Perry v. Schwarzenegger.

JUDGE HAWKINS: If the injunction were lifted, if the stay were lifted, and the injunction was in force, could the County Clerk in San Diego County refuse a marriage license to a same-sex couple?

Perry v. Schwarzenegger Unofficial Oral Argument Transcript on Standing, at 14


David Boies answered in the affirmative.

Posted by: Michael Ejercito | Jul 24, 2013 10:26:37 PM

For more reasons why county clerks are not agents of the governor, see here.


The County Clerk, as an elected county official, is neither subject to summary removal by the Governor, nor subject to impeachment by the Senate.

Geraldine Salazar's Response to Verified Petition for Writ of Mandamus, Hanna v. Salazar, No. 34216 (NM Sup. Ct.), at 5

Cf. Restatement of Agency (3rd) § 3.10 (allowing principals to summarily terminate authority of their agents)

Posted by: Michael Ejercito | Jul 25, 2013 11:10:39 AM


I do have one question.

Must the phrase "supervision or control" as described in the injunction be interpreted ibn the context of FRCP 65 (d)? ""Every order granting an injunction and every restraining order . . . is binding ONLY upon the parties to the action and their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise." FRCP 65 (d), quoted in Regal Knitwear Co. v. Labor Board, 324 U.S. 9 at 13-14 (1945. )It would seem a formal agency relationship is required to bind someone under this rule; mere supervision or control would be insufficient lacking this formal agency relationship.

Posted by: Michael Ejercito | Jul 26, 2013 10:06:07 AM

Not necessarily. It also could be read as enjoining the named officer defendants to take steps to control those under their supervision or control (through whatever state-law or other means are available).

Posted by: Howard Wasserman | Jul 26, 2013 10:50:11 AM

Of course, this would only mean that the injunction could have collateral consequences on the legal duties of the clerks, and there is of course no guarantee that the steps taken by official defendants to make sure the non-defendant clerks comply with the injunction would actually be effective.

The big problem with the injunction it is not clear on its face that the state defendants actually have an affirmative duty to require all state and local officials to comply with the injunction, regardless of whether those officials are actually agents under the Restatement of Agency. There is nothing to indicate that the refusal of the San Diego County Clerk to issue a marriage license to a same-sex couple would somehow infringe on the plaintiffs' relief, cause an injury to the plaintiffs identical to the injury at issue in Perry, or somehow impose a duty on the defendants to violate the injunction.

Posted by: Michael Ejercito | Jul 26, 2013 2:00:48 PM

Isn't there a more fundamental problem here given the limited preclusive effects of the federal judgment? Now that the judgment has been executed as to the named plaintiffs, it seems to me that the federal case is moot, and the district court lacks jurisdiction to enforce that judgment under cases such as Kokkonen v. Guardian Insurance Life Co. of Am. since there is no longer a basis to exercise federal jurisdiction over what is now a moot case; after all, the named plaintiffs have standing to enforce the judgment on behalf of nonparties because Perry was not a class action, nor do I see any basis for nonparties to have standing at this juncture to intervene to enforce the judgment except if it could have preclusive effect. Collateral estoppel against the government on questions of law, however, is ordinarily not permitted, the judgment in Perry plainly could have no preclusive effect on nonparties to Perry, nor even on the sponsors of Proposition 8 given that they were not permitted to appeal, and judgments that cannot be appealed receive no preclusive effect. For that reason, to the extent that state law grants the sponsors, taxpayers, or others a legally cognizable right to enforce Proposition 8, the district court's judgment cannot have any preclusive effect in a state-law action brought to enforce Proposition 8 by nonparties under cases such as Martin v. Wilks, or so it seems to me.

Larry Rosenthal
Chapman University School of Law

Posted by: Larry Rosenthal | Jul 27, 2013 4:21:11 PM


in a very technical sense, the Perry case is not moot, but instead satisfied. But it does give the same problems as to standing for the purposes of seeking a motion to enforce.

In a dispute between persons not parties to Perry, the judgment would lack any sort of preclusive effect at all. Preclusion requires thwe presence of at least one party to the judgment, and the Clerk of San Diego County was not a party.

This does bring about the question of how a court is supposed to resolve a case if the defendant claims that the challenged acts were mandated by an injunction from another court. Clearly, they can not simply defer to the defendant's interpretation of the injunction, lest it provides defendants in lawsuits with an invincible defense that would prevent any plaintiffs from winning. The Hollingsworth and Dronenburg cases before the California Supreme Court clearly can not be the first such cases where a court requires the substantive interpretation of another court's injunction to resolve its own case.

The necessity of the current suit in the state supreme court could have been avoided if the attorney general immediately went to the district court to clarify the scope of the injunction. Alternatively, the respondent county clerks could have done that same thing. The oral arguments before the Ninth Circuit clearly demonstrate this ambiguity, and it clearly is within the district court's power to interpret its own orders.

If I were a justice on this court, my answer will be simple. I would order the respondents to, within fifteen days, seek clarification and/or modification of the injunction to determine if they are bound by it. If they fail to seek such action, I would proceed as if they were NOT bound b y the injunction, and let them reap the legal consequences of refusing to seek clarification.

Posted by: Michael Ejercito | Jul 27, 2013 7:56:04 PM


Martin v. Wilks resolves the question you pose -- "how a court is supposed to resolve a case if the defendant claims that the challenged acts were mandated by an injunction from another court? -- by reference to the lack of preclusive effect of a judgment on a nonparty. Martin held that in fresh litigation brought by a nonparty to the earlier case, the prior judgment has no preclusive effect, that is, compliance with the injunction in the earlier case (in that case one that had not yet been satisfied) was not a defense to the new action. If compliance with the injunction was not a defense in Martin, I fail to see how it could be a defense in Perry.


Posted by: Larry Rosenthal | Jul 27, 2013 8:56:00 PM


Martin v. Wilks resolves the question you pose -- "how a court is supposed to resolve a case if the defendant claims that the challenged acts were mandated by an injunction from another court? -- by reference to the lack of preclusive effect of a judgment on a nonparty. Martin held that in fresh litigation brought by a nonparty to the earlier case, the prior judgment has no preclusive effect, that is, compliance with the injunction in the earlier case (in that case one that had not yet been satisfied) was not a defense to the new action. If compliance with the injunction was not a defense in Martin, I fail to see how it could be a defense in Perry.


Posted by: Larry Rosenthal | Jul 27, 2013 8:56:00 PM

This is a very interesting point, Larry.

I do note that the district court would likely have rejected attempts to make the other clerks parties by joinder. The plaintiffs did not allege that any actions from the other clerks violated their rights. And even if the other clerks were joined as parties, the district court would likely have declined to enter judgment against them regardless of the merits of the constitutional questions.

The principles in Martin would apply even more so in the Hollingsworth and Dronenburg cases than Martin itself. The consent decrees were indeed binding on the City of Birmingham and Jefferson County, and they were indeed parties to the original suit. The fifty-six county clerks, including Clerk Dronenburg, were not, and the suit did not name them.

Posted by: Michael Ejercito | Jul 28, 2013 12:43:33 PM


here is a copy of the reply brief in a related case.


Here are some quotations.

"If their view of that injunction were to prevail, the persons bound would include the named official defendants and all county clerks and county registrars. Yet countless other local officials are not persons under the control or supervision of the named defendants, and thus are not bound by the injunction. Therefore, if the hypothetical Ventura County employee discussed above worked for the Board of Supervisors, her employer would not be bound and thus would be required to enforce Proposition 8, which instructs the board to recognize or treast as valid only marriages between a man and a woman. Similarly, in the other hypothetical, the Sonoma County Assessor, who likewise is not bound by the injunction, is obligated to enforce Proposition 8 and thus forbidden from recognizing the property owner as married. The lack of uniformity would reach far beyond these two examples. Proposition 8 wil continue to require all county and other local officials not bound by the injunction (e.g., mayors, county assessors, school boards) to decline to recognize or treat as valid any marriage other than a union between a man and a woman. Reply to Preliminary Opposition to Writ of Mandate, Hollingsworth v. O'Connell, S211990, at 12-13 (Cal. Sup. Ct.) (internal quotations and citations omitted)

"The Attorney General and non-Perry respondents concede that no statute gives the state registrar the authority to supervise or control county clerks when they issue marriage licenses." id. at 14

"[S]ubsequent legal developments would clarify Proposition 8's validity before long" id. at 21

Posted by: Michael Ejercito | Aug 1, 2013 8:11:49 PM

There is a related case.


Here, plaintiffs not parties to the Perry litigation are petitioning for legal recognition of their marriage, and the respondents are those who would have to issue survivor's benefits if the marriage was indeed valid. "[i]t is a principle of general application in anglo-American jurisprudence that one is not bound by a judgment in personam in a litigation in which he is not designated as a party or to which he has not been made a party by service of process." Martin v. Wilks, 490 U.S. 755 at 761 (1989) (internal citations omitted) [A federal district court] may not attempt to determine the rights of persons not before the court" Zepeda v. INS, 753 F.2d 719, 727 (9th Cir. 1985) This binding precedent from the Supreme Court and the Ninth Circuit plainly establishes that Perry does not determine the validity of the union of Stacey Schuett and Lesly Taboada-Hall. Under California law, they are not married, and the Perry injunction does not, and can not, compel a different result.

Posted by: Michael Ejercito | Aug 13, 2013 11:10:23 PM


What the Court did was to simply refuse to take the case. This was an original jurisdiction suit. As such, they were not required to decide the merits. They did not rule on any of the legal questions or even their own jurisdiction to decide the case, which means the order is not res judicata upon the proponents or the county clerks.

Indeed, in New Mexico there is a lawsuit before the state's Supreme Court challenging the ban on same-sex "marriage". This, too, is an original jurisdiction suit. A refusal to take the case would not preclude the plaintiffs from taking their complaint to another court.

Similarly, the issue of whether the county clerks are bound by the injunction can be relitigated in another court, which would not be precluded from deciding the merits. As of now, there is no binding judicial authority that states that the clerks are bound by the Perry v. Schwarzenegger injunction.

Posted by: Michael Ejercito | Aug 14, 2013 8:26:16 PM

The New Mexico case I cited above was dismissed without opinion.


Posted by: Michael Ejercito | Aug 21, 2013 12:03:34 AM

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