FILED

FOR PUBLICATION JAN 04 2011

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

KRISTIN M. PERRY; SANDRA B. No. 10-16751

STIER; PAUL T. KATAMI; JEFFREY J.

ZARRILLO, D.C. No. 3:09-cv-02292-VRW

Plaintiffs - Appellees,

OPINION

CITY AND COUNTY OF SAN

FRANCISCO,

Plaintiff-Intervenor - Appellee,

v.

ARNOLD SCHWARZENEGGER, in his official capacity as Governor of California; EDMUND G. BROWN, Jr., in his official capacity as Attorney General of California; MARK B. HORTON, in his official capacity as Director of the California Department of Public Health & State Registrar of Vital Statistics; LINETTE SCOTT, in her official capacity as Deputy Director of Health Information & Strategic Planning for the California Department of Public Health; PATRICK O’CONNELL, in his official capacity as Clerk-Recorder for the County of Alameda; DEAN C. LOGAN, in his official capacity as Registrar-Recorder/County Clerk for the County of Los Angeles, Defendants,

DENNIS HOLLINGSWORTH; GAIL J.

KNIGHT; MARTIN F. GUTIERREZ;

MARK A. JANSSON;

PROTECTMARRIAGE.COM - YES ON

8, A PROJECT OF CALIFORNIA RENEWAL, as official proponents of Proposition 8; HAK-SHING WILLIAM

TAM,

Defendants-Intervenor,

and

COUNTY OF IMPERIAL; THE BOARD

OF SUPERVISORS OF THE COUNTY

OF IMPERIAL; ISABEL VARGAS, In her official capacity as Deputy Clerk/Deputy Commissioner of Civil Marriages for the County of Imperial,

Movants - Appellants.,

Appeal from the United States District Court for the Northern District of California Vaughn R. Walker, Chief District Judge, Presiding

Argued and Submitted December 6, 2010 San Francisco, California

Before: REINHARDT, HAWKINS, and N.R. SMITH, Circuit Judges.

PER CURIAM.

The County of Imperial, its Board of Supervisors, and a Deputy Clerk for the

County appeal the denial of their motion to intervene in this case concerning the

constitutionality under the United States Constitution of Article I, section 7.5 of the

California Constitution (“Proposition 8”). Concurrently, they assert their standing

to appeal on the merits the district court order holding Proposition 8 to be

unconstitutional. We affirm the denial of the intervention motion, although on

different grounds from those relied upon by the district court, and correspondingly

we dismiss the appeal on the merits for lack of standing. This decision, of course,

does not affect the standing or the separate appeal of the official proponents of

Proposition 8.

B ACKGROUND

In May 2009, six months after Californians adopted Proposition 8, Plaintiffs

brought this action in district court “for declaratory and injunctive relief against the

enforcement of Prop. 8.” They named as defendants, all in their official capacities,

the Governor of the State of California, the Attorney General of the State of

California, the Director of the California Department of Public Health (who serves

as the State Registrar of Vital Statistics), the Deputy Director of Health

Information & Strategic Planning for the California Department of Public Health,

2 the Clerk-Registrar for the County of Alameda, and the Registrar-Recorder/County

Clerk for the County of Los Angeles (“Defendants”). Plaintiffs specifically

requested that the court “construe Prop. 8 and enter a declaratory judgment stating

that this law and any other California law that bars same-sex marriage violate[s]”

the federal Constitution, and that the court “enter a preliminary and a permanent

injunction enjoining enforcement or application of Prop. 8 and any other California

law that bars same-sex marriage.” The Defendants refused to argue in favor of

Proposition 8’s constitutionality, so the initiative measure’s official sponsors

(“Proponents”) were permitted to intervene to do so. In addition, the City and

County of San Francisco was permitted to intervene as a plaintiff.

In December 2009, after San Francisco questioned Proponents’ standing, the

County of Imperial, its Board of Supervisors and Deputy County Clerk / Deputy

Commissioner of Civil Marriages Isabel Vargas1 (collectively, “the Movants”)

moved to intervene as defendants “to ensure the opportunity for appellate review”

of the district court order, in the event that the court granted Plaintiffs their

requested relief. The County alleged an interest in intervention because “[a]ny

injunctive relief granted by this Court would directly affect the Clerk’s

1 Vargas is also a “Recordable Document Examiner” for the County, but she moved to intervene only in her official capacity as a Deputy Clerk and Deputy Commissioner of Civil Marriages.

3 performance of her legal duties and the legal duty of the Board to oversee and

supervise County clerks and to ensure that the laws are faithfully executed.”

Movants explained that “Plaintiffs seek to enjoin all relevant state officials from

enforcing Proposition 8 and, ultimately, to require them to issue such orders as

may be necessary to ensure that all county clerks across California issue marriage

licenses to same-sex couples.” Because “the outcome of this action will affect

[Imperial’s] ability to comply with Proposition 8,” Movants argued, “the Clerks’

interest in the effective performance of their duties and the threat of an injunction

impacting those duties – either from a federal District Court or the California

Superior Court seeking to enforce an order from the Attorney General or other

state officials – justify intervention.”

Nine months later, following a bench trial and post-trial proceedings but

before ruling on the intervention motion, the district court held Proposition 8 to be

unconstitutional and ordered entry of judgment enjoining its enforcement. Perry v.

Schwarzenegger, 704 F. Supp. 2d. 921, 1003–1004 (N.D. Cal. 2010), appeal

pending, Ninth Cir. No. 10-16696. The court then denied the motion to intervene

both as of right and permissively. It determined that neither the County itself nor

the Board of Supervisors had any interest in the administration of the state

marriage laws, which are a “matter of statewide concern rather than a municipal

4 affair.” Lockyer v. City & County of San Francisco, 95 P.3d 459, 471 (Cal. 2004)

(internal quotation marks omitted). As to the deputy clerk, the court reasoned that

“[c]ounty clerks, although local officers when performing local duties, perform

their marriage-related duties ‘under the supervision and direction of the State

Registrar,’” and that “[c]ounty clerks have no discretion to disregard a legal

directive from the existing state defendants, who are bound by the court’s

judgment regarding the constitutionality of Proposition 8.” Consequently the court

found that none of the three movants had a significant protectable interest of its

own to justify intervention.

As is proper when a putative intervenor wishes to press an appeal on the

merits, Movants filed a notice of appeal from the order denying their motion to

intervene, and a protective notice of appeal from the district court’s order on the

merits of Proposition 8’s constitutionality. We have jurisdiction under 28 U.S.C.

§ 1291, and we affirm the order denying the motion to intervene, and dismiss

Movants’ appeal on the merits.

D ISCUSSION

I. Intervention as of Right

Under Federal Rule of Civil Procedure 24(a)(2), a district court “must permit

anyone to intervene who . . . claims an interest relating to the property or

5 transaction that is the subject of the action, and is so situated that disposing of the

action may as a practical matter impair or impede the movant’s ability to protect its

interest, unless existing parties adequately represent that interest.” We review the

application of that Rule de novo. Prete v. Bradbury, 438 F.3d 949, 953 (9th Cir.

2006). Specifically, we require that an applicant for intervention make four

showings to qualify under this Rule: “(1) it has a ‘significant protectable interest’

relating to the property 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 ability to protect its interest; (3) the application is timely; and (4) the

existing parties may not adequately represent the applicant’s interest.” Donnelly v.

Glickman, 159 F.3d 405, 409 (9th Cir. 1998). An applicant’s “[f]ailure to satisfy

any one of the requirements is fatal to the application, and we need not reach the

remaining elements if one of the elements is not satisfied.” Perry v. Proposition 8

Official Proponents, 587 F.3d 947, 950 (9th Cir. 2009). None of the Imperial

County movants has demonstrated a “significant protectable interest” at stake in

this action, as it was brought by Plaintiffs, and we affirm on that basis alone.

A. Deputy County Clerk Isabel Vargas

Isabel Vargas, a deputy county clerk and deputy commissioner of civil

marriages for Imperial County, sought to intervene because “[a]ny injunctive relief

6 granted by [the district court] would directly affect the Clerk’s performance of her

legal duties.” Were Imperial County’s elected County Clerk the applicant for

intervention, that argument might have merit. A County Clerk is not before us,

however, so we need not, and do not, decide now whether a County Clerk would

have been permitted to intervene under the circumstances present in this case.

Here, we are presented with a deputy clerk, who was appointed by and may

be removed by the Clerk. See Cal. Gov’t Code §§ 24101–24102. California law

vests deputies with authority to exercise the powers and perform the duties of their

principals. See Cal. Gov’t Code §§ 7, 1194, 24100. Those powers and duties,

however, remain the principals’. “The deputy of a public officer, when exercising

the functions or performing the duties cast by law upon such officer, is acting for

his principal or the officer himself. The deputy’s official acts are always those of

the officer. He merely takes the place of the principal in the discharge of duties

appertaining to the office.” Sarter v. Siskiyou County, 183 P. 852, 854 (Cal. Ct.

App. 1919); see also Hubert v. Mendheim, 30 P. 633, 635 (Cal. 1883). It follows

that whatever “significant protectable interest” may exist in those duties and

powers is an interest belonging to the principal, not the deputy. Vargas does not

claim to appear on behalf of the County Clerk or to represent the Clerk’s interests

in this litigation. She does not contend that the Clerk authorized her to act in her

7 place or otherwise to seek to intervene in the lawsuit now before us; nor does she

contend that the Clerk approved of or ratified her action. Accordingly, standing

alone, Vargas’s claimed interest as a deputy clerk in the performance of the Clerk’s

duties is insufficient for a finding of a “significant protectable interest.” 2

For similar reasons, Vargas’s claim that she should have been permitted to

intervene because she could be bound by the district court’s injunction, and her

related claim that she has standing to appeal now because she is bound, fails. To

the extent the injunction may affect local officers in counties beyond Alameda

County and Los Angeles County,3 it would enjoin only other County Clerks from

performing their duties as required by state law. While being bound by a judgment

may be an “concrete and particularized injury” sufficient to confer standing to

appeal, see W. Watersheds Project v. Kraayenbrink, 620 F.3d 1187, 1196 (9th Cir.

2010), the “injury,” if any, would be to the Clerk, not a deputy. As we have

explained, Vargas is neither the Clerk nor her authorized representative. She

2 We therefore affirm the district court on this alternate ground and do not adopt the district court’s reasoning, which would apply to County Clerks as well. 3 As discussed in footnote two of the concurrently filed certification order in No. 10-16696, the effect of the existing order and injunction on County Clerks in California’s other counties is unclear, but we need not resolve this question here.

8 therefore may not rely upon the Clerk’s injury to assert her own interest in

intervention or standing to appeal.

Vargas claims as an additional “significant protectable interest”: the desire to

avoid the “legal uncertainty and confusion” as to the applicability of Proposition 8

if the district court order is not reviewed on the merits by an appellate court and

thus no binding precedent exists as to its constitutionality. Specifically, Vargas

cites a provision of the California Constitution that states that “[a]n administrative

agency . . . has no power . . . to refuse to enforce a statute on the basis that federal

law or federal regulations prohibit the enforcement of such statute unless an

appellate court has made a determination that the enforcement of such statute is

prohibited by federal law or federal regulations.” Cal. Const. art. III, § 3.5(c)

(emphasis added). It seems likely that the reference in the provision is to a state

appellate court and that it is not intended to deal with decisions of federal district

courts. But there could, in any event, be no “confusion” in light of the Supremacy

Clause. U.S. Const. art. VI, cl. 2. If a federal district court were to enjoin a

County Clerk from enforcing state law, no provision of state law could shield her

against the force of that injunction. Cf. LSO, Ltd. v. Stroh, 205 F.3d 1146,

1159–1160 (9th Cir. 2000) (criticizing an expansive interpretation of Cal. Const.

art. III, § 3.5, and explaining, “It is a long-standing principle that a state may not

9 immunize its officials from the requirements of federal law”).4 The Vargas claim

therefore fails in this regard as well.

B. The County of Imperial and the Board of Supervisors

The Board of Supervisors of Imperial County and the County itself also

claim significant protectable interests warranting intervention. Neither claim is

sustainable. First, the Board alleges that it “has ultimate responsibility to ensure

that county clerks and their deputies faithfully perform their legal duties, including

those relating to marriage.” Under California law, however, the Board plays no

role with regard to marriage, which is “a matter of ‘statewide concern’ rather than a

‘municipal affair.’” Lockyer, 95 P.3d at 471. Local elected leaders “may have

authority under a local charter to supervise and control the actions of a county clerk

or county recorder with regard to other subjects,” but they have “no authority to

expand or vary the authority of a county clerk or county recorder to grant marriage

licenses or register marriage certificates under the governing state statutes . . . .”

4 In any event, it is an open question of California law whether Article III, section 3.5, addressed to state “administrative agenc[ies],” applies to individual Executive officers. See Lockyer, 95 P.3d at 473–475. Because, given the Supremacy Clause, Vargas would face no “confusion” even if she were covered by that provision, we need not request that the Supreme Court of California clarify the provision’s reach.

10 Id. Moreover, the duties of the Supervisors themselves are not directly affected by

this litigation, so they lack a significant protectable interest.

Second, the County itself has failed to demonstrate any interest of its own,

apart from those claimed by Vargas or the Board of Supervisors. The County

alleges “a direct financial interest in assuring that the vote of its residents is

defended and ultimately upheld” given its “responsibility to provide social welfare

programs for the County’s residents” and its “understanding that promoting

opposite-sex marriage will benefit the public welfare, and reduce a wide variety of

problems including, but not limited to, teenage pregnancy, depression in young

adults, incarceration rates, and the inability of parents to be the sole financial

providers for their children.”

We deem this argument waived, because in the district court, the County

made no mention of any such interest in the case, and certainly of no financial

interest. To the contrary it acknowledged that it “ha[d] no known information

relevant to this case” and “d[id] not intend to offer evidence at trial.” In any

event, the County fails to substantiate its “direct financial interest” with any

evidence, such as affidavits of financial officers or county records, and instead

asserts that “[t]he precise extent of the county’s financial interest is ultimately

unknowable and irrelevant.” Seeing as the burden is on the movant to demonstrate

11 its interest, and it has made no attempt to do so, we conclude that its newly claimed

interest is without merit.

II. Permissive Intervention

Federal courts may permit intervention by litigants who “ha[ve] a claim or

defense that shares with the main action a common question of law or fact.” Fed.

R. Civ. P. 24(b)(1)(B). Where a litigant timely presents such an interest in

intervention, courts consider a number of factors in deciding whether to permit

intervention, including:

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[,] whether changes have occurred in the litigation so that intervention that was once denied should be reexamined, whether the intervenors’ interests are adequately represented by other parties, whether intervention will prolong or unduly delay the litigation, and whether parties seeking intervention will 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.

Spangler v. Pasadena Bd. of Educ., 552 F.2d 1326, 1329 (9th Cir. 1977) (footnotes

omitted). The district court is given broad discretion to make this determination,

Kootenai Tribe v. Veneman, 313 F.3d 1094, 1110 (9th Cir. 2002), and we find no

abuse of discretion here.

12 The district court found that “the Spangler factors weigh[ed] strongly

against” intervention. It based this conclusion first on the fact that Movants had

explained that they had no new evidence or arguments to introduce into the case.

Second, the court determined that Movants’ only expressed interest in the litigation

– ensuring appellate review of Plaintiffs’ constitutional claims – was one that they

could not fulfill because they would lack standing to appeal the judgment in

Plaintiffs’ favor. In general, an applicant for intervention need not establish

Article III standing to intervene. Because the specific interest Movants claimed in

the litigation would require them to have standing, however, the court did not

abuse its discretion by considering their standing to appeal the merits.

The court did not err in determining that Movants lacked standing to appeal.

We held, supra, that Movants lacked any “significant protectable interest” that

would make them eligible for intervention under Rule 24(a). It necessarily follows

that they lack Article III standing to appeal the merits of the constitutional holding

below. In light of Movants’ stated purpose for seeking intervention, the district

court’s denial of permissive intervention was therefore not an abuse of discretion.

13

C ONCLUSION

The district court order denying the motion to intervene is AFFIRMED.

Movants’ appeal of the district court order concerning the constitutionality of

Proposition 8 is DISMISSED for lack of standing.

The deadline for filing a petition for panel rehearing or rehearing en banc is

hereby EXTENDED until the deadline for such petitions in No. 10-16696, which

will be 14 days after an opinion is filed in that appeal. The Clerk is DIRECTED to

stay the issuance of the mandate in this case until the mandate issues in No. 10-

16696.

AFFIRMED in part; DISMISSED in part.

14

COUNSEL

Robert H. Tyler (argued) and Jennifer L. Monk, Advocates for Faith and Freedom, Murrieta, Cal., for the movants-appellants.

Theodore B. Olson, Matthew D. McGill, and Amir C. Tayrani, Gibson, Dunn & Crutcher LLP, Washington, D.C.; Theodore J. Boutrous, Jr., Christopher D. Dusseault, Ethan D. Dettmer, Theane Evangelis Kapur, and Rebecca Justice Lazarus, Gibson, Dunn & Crutcher LLP, Los Angeles, Cal.; David Boies (argued), Jeremy M. Goldman, and Theodore H. Uno, Boies, Schiller & Flexner LLP, Armonk, N.Y., for the plaintiffs-appellees.

John C. Eastman, Anthony T. Caso, and Karen J. Lugo, Orange, Cal., for amicus curiae Center for Constitutional Jurisprudence.

Matthew B. McReynolds and Kevin T. Snider, Sacramento, Cal., for amicus curiae Pacific Justice Institute.

Michael S. Wald, Stanford Law School, Stanford, Cal.; Herma Hill Kay, Berkeley School of Law, Berkeley, Cal., for amici curiae Professors of Family Law.

David C. Codell, Linda M. Burrow, Albert Giang, and Benjamin A. Au, Caldwell Leslie & Proctor, PC, Los Angeles, Cal., for amicus curiae Equality California.

15