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Wednesday, April 29, 2015

A new wrinkle on now-invalid injunctions

A colleague at an Oregon-based school offers a different twist on what happens to Article III-final injunctions if the petitioners lose in Obergefell: What happens if the relevant state actors (the Governor or the AG) favor same-sex marriage and decline to file the motion to dissolve the injunction? This would be most likely in Oregon and California, where state officials declined to defend the ban or appeal the district court's decision invalidating it. This, my colleague suggested, might offer state officials a "weird way" to get around their own state's laws.

I can see four possibilities, although I would like to hear more (or hear why my three are wrong).

First, the district court might raise the issue sua sponte and issue an order to show cause why the injunction should not be dissolved; the state officials will have to respond and either distinguish Obergefell (or the state laws at issue there) or acknowledge that changed legal circumstances require the injunction be dissolved. Judges are not obligated to raise merits issue in this way (contra subject matter jurisdiction). But they often will do so, especially when it means getting cases off their dockets. And the judge has incentive to do this, precisely to prevent state officials from not enforcing laws they do not like.

Second, someone might intervene in the district court and file the motion to dissolve. It might be a county clerk arguing that the injunction is compelling him to act in a way contrary to controlling Supreme Court precedent. Or it might be one of the sponsors of the voter initiative that produced the constitutional amendment (a Rule 24 intervenor need not have Article III standing).

This involves a couple of tricky FRCP 24 issues. First, it is not clear who would be able to intervene as of right under FRCP 24(a)--would a clerk or the initiative sponsor claim an "interest" relating to the case that will be impaired or impeded and is not adequately represented? If not, then intervention could only be permissive under 24(b) and subject to the court's discretion. In the initial Oregon litigation, the district court denied permissive intervention by the National Organization for Marriage, even on behalf of an anonymous county clerk who claimed a religious objection to having to issue licenses to same-sex couples. The question is whether the intervention analysis changes if the dispute is over the continuing validity of an injunction that is inconsistent with new Supreme Court precedent, as opposed to the validity of the underlying law. Certainly the district judge may be more willing to permit 24(b) intervention in this situation than in the underlying action.

Third, someone--again, probably a county clerk or the initiative proponents--goes to state court, themselves or on behalf of the state, seeking a mandamus ordering the Governor or AG to do their duty and file the motion to dissolve the federal injunction. Whether this option is available and depends on specifics of Oregon law.

Fourth, state processes in Oregon (another voter initiative or some other process to amend the state constitution) repeals the 2004 constitutional amendment, perhaps moving very quickly to do so. As my colleague argues, the political culture has so changed in Oregon in just a decade that no one wants to defend the ban or to reinstate it by taking steps to dissolve the federal injunction.

Thoughts? My original post assumed that state officials would be anxious to dissolve the injunctions. This example shows that there may be a few states where that will not be true.

Posted by Howard Wasserman on April 29, 2015 at 08:32 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink

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