Saturday, August 8, 2009

Olson/Boies File Motion Opposing LGBT Legal Groups Participation in Federal Case Against Prop 8

If you're wondering why the news and media are once again reporting on the internal conflict between the American Foundation for Equal Rights (AFER) and LGBT legal organizations Lambda Legal and NCLR, including ACLU, it's because late Friday, the legal team of Ted Olson and David Boies who are behind the federal case against Proposition 8, filed two motions yesterday. One was their case management statement, which I'll touch on later, and the second was their motion opposing the LGBT organizations (referred to as "Our Family Coalition") intervention of the case.

The legal organizations claim the need to intervene because they represent a broader swath of demographics who are affected by Proposition 8, such as PFLAG and elderly LGBT, as opposed to the two gay and lesbian couples that are currently the plaintiffs in the case.

The City of San Francisco had also filed to intervene, but this the plaintiffs did not fully reject since San Francisco already has compiled a long standing factual record in support of marriage equality. So they state if the court must allow an intervention, to only allow the city and not the organizations, but with the caveat that it not delay the trial process.

I have attempted to consolidate twenty four pages of legalese and argument into a brief summary.

(References to the "Campaign" is an intervenor, Campaign for California Families (CCF), on behalf of the defendants, or in this case, the proponents of Proposition 8.)

The Plaintiffs opposing motion, embedded at the bottom of the post, states its argument against the intervening organizations as such:

A. Our Family Coalition and the Campaign Are Not Entitled To Intervene As Of Right

1. Neither Our Family Coalition Nor the Campaign Has a Legally Protectable Interest in This Case That May Be Practically Impaired:

"...controlling authority [current Plaintiffs] suggests that Our Family Coalition’s complaint, because it lacks any allegation that any particular person actually sought and was denied a license to marry in California, is insufficient to create an Article III case or controversy."

2. The Current Parties Adequately Represent the Interests of Our Family Coalition and the Campaign:

"The interests both wish to protect are adequately represented by the existing parties to this litigation. Their motion identifies no argument Plaintiffs are unwilling to make."

B. The Motions For Permissive Intervention Should Be Denied

1. Our Family Coalition and the Campaign Are Not Eligible For Permissive Intervention:

"In the absence of a statute granting a right of intervention, a court may allow persons to intervene only if they have a “claim or defense” in common with the main action. Fed. R. Civ. P. 24(b). Our Family Coalition and the Campaign have no judicially cognizable claim."

2. The Spangler Factors Militate in Favor of Allowing Proposed Intervenors to Participate as Amici [friend of the court] Rather Than Parties:

"The Spangler Factors [created by a prior case], are, 'he nature and extent of the intervenors’ interest, their standing to raise relevant legal issues, the legal position they seek to advance, . . . its probable relation to the merits of the case . . . 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.'"

Now here comes the drama that we've all been reading about.

C. Any Intervention Should Be Strictly Limited to Avoid Prejudice to Plaintiffs

"When it deferred consideration of Plaintiffs’ motion for a preliminary injunction, the Court stated that it would 'proceed[] promptly to trial' to reach a 'just, speedy and inexpensive determination of these issues.' Doc #76 at 9. Yet, adding parties to this already complex litigation inevitably will multiply the proceedings and jeopardize that goal. And that substantial risk of prejudicial delay is compounded by the fact that one proposed intervenor—Our Family Coalition—is represented by counsel that (1) have publicly urged against the filing of any federal constitutional challenge to Prop. 8 (2) have publicly suggested that this lawsuit should be delayed to advance a national litigation strategy (3) have opposed the development of a factual record in similar litigation, and (4) to this day, are unwilling to say that they actually support Plaintiffs’ effort to vindicate their rights in this lawsuit."

They argue that allowing these organizations to intervene compounds the harm of Proposition 8 by delaying its end:

"Delay is even more significant a problem here than in many cases. The chief legal officer of the State acknowledges that the injuries Plaintiffs are suffering are ongoing and irreparable. Doc #39 at 2. "

Olson and Boies here suggest then that if there is to be an intervention, allow it to be San Francisco alone:

"If there is to be any further intervention into Plaintiffs’ case, it should be the City alone that is permitted to join. The City Attorney’s demonstrated experience in assembling factual evidence pertaining to the constitutional issues presented in this case and its demonstrated willingness to take on Plaintiffs’ fight as its own mitigates the threats of delay and unnecessarily prolonged injury to Plaintiffs. If the Court is inclined to grant the City’s motion (or Our Family Coalition’s), Plaintiffs respectfully suggest that, to minimize duplication of proceedings and protect Plaintiffs’ right to maintain control over their own claims, Plaintiffs’ counsel be designated Lead Plaintiffs’ Counsel for this action, and that the intervenors’ participation in this action be limited and coordinated through Lead Counsel."

Today, the Los Angeles Times wrote about what we all already knew - the tension between the LGBT legal organizations and AFER. However, it did quote Andrew Pugno, a lawyer for Proposition 8. "Advocates for gay marriage are in complete disarray, not only on the political fence but on the legal fence as well. Our job would be much harder if they were all unified in their efforts."

Can you say, "Pot calling the kettle black?"

Proposition 8 and the Right to Marry blog writes:
CCF [the defendant's intervenor] previously sought to intervene in Strauss v. Horton, 46 Cal.4th 364 (2009), but Yes on 8 publicly opposed its intervention, and its attorney, Andrew Pugno, filed a letter of letter of opposition on November 18, 2008. The California Supreme Court denied CCF's intervention motion, which Liberty Counsel filed on its behalf. At the time, ADF did not represent Yes on 8, but rather filed amicus briefing for the Family Research Council.

Shortly after the election in November 2008, Yes on 8 sent its supporters an e-mail on why CCF could not be trusted to intervene. The controversy will sound familiar to those who have followed the latest AFER contratemps over gay rights organizations that initially opposed a federal challenge to Prop. 8:

"Campaign for California Families...actually campaigned against Proposition 8 until a short time before the election," the email read. "Since we are the only organization representing the official proponents and the campaign committee that was responsible for passing Prop 8, allowing outside groups to participate in the defense of Prop 8 will only harm our chances of success." (11/20/08 SF Weekly)
So for all of us who are concerned about the airing of our dirty laundry, with the squabbling and bickering, here's a little bit of comfort. We're not alone. With stakes this high, both sides are bound to have disagreements.

But let's get it out now. For we have a long road ahead of us. Let's focus on winning.

Federal Proposition 8 Case Plaintiffs' Opposition to Motions to Intervene


  1. To learn more about Our Family Coalition and the diverse array LGBTQ families we support and represent, please visit