Kristin Perry v. Arnold Schwarzenegger - Order Certifying a Question to the Supreme Court of California

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KRISTIN M. PERRY; SANDRA B. 

STIER; PAUL T. KATAMI; JEFFREY J.

ZARRILLO,

Plaintiffs-Appellees,

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,



549

550 PERRY v. SCHWARZENEGGER

and  No. 10-16696

DENNIS HOLLINGSWORTH; GAIL J. D.C. No.

KNIGHT; MARTIN F. GUTIERREZ; 3:09-cv-02292-

HAK-SHING WILLIAM TAM; MARK VRW

A. JANSSON; Northern District of

PROTECTMARRIAGE.COM-YES ON 8, A California,

PROJECT OF CALIFORNIA RENEWAL,  San Francisco

as official proponents of

ORDER

Proposition 8,

CERTIFYING A

Defendants-Intervenors-Appellants.

QUESTION TO

THE SUPREME

COURT OF

 CALIFORNIA

Filed January 4, 2011

Before: Stephen Reinhardt, Michael Daly Hawkins, and

N. Randy Smith, Circuit Judges.

ORDER

Before this panel of the United States Court of Appeals for

the Ninth Circuit is an appeal concerning the constitutionality

under the United States Constitution of Article I, § 7.5 of the

California Constitution (“Proposition 8”). Because we cannot

consider this important constitutional question unless the

appellants before us have standing to raise it, and in light of

Arizonans for Official English v. Arizona, 520 U.S. 43 (1997)

(“Arizonans”), it is critical that we be advised of the rights

under California law of the official proponents of an initiative

measure to defend the constitutionality of that measure upon

its adoption by the People when the state officers charged

with the laws’ enforcement, including the Attorney General,

PERRY v. SCHWARZENEGGER 551

refuse to provide such a defense or appeal a judgment declar-

ing the measure unconstitutional. As we are aware of no con-

trolling state precedent on this precise question, we

respectfully ask the Supreme Court of California to exercise

its discretion to accept and decide the certified question

below.

I. Question Certified

Pursuant to Rule 8.548 of the California Rules of Court, we

request that the Court answer the following question:

Whether under Article II, Section 8 of the California

Constitution, or otherwise under California law, the

official proponents of an initiative measure possess

either a particularized interest in the initiative’s

validity or the authority to assert the State’s interest

in the initiative’s validity, which would enable them

to defend the constitutionality of the initiative upon

its adoption or appeal a judgment invalidating the

initiative, when the public officials charged with that

duty refuse to do so.

We understand that the Court may reformulate our question,

and we agree to accept and follow the Court’s decision. Cal.

R. Ct. 8.548(b)(2), (f)(5).

II. Background

A

This appeal concerns a subject that is familiar to the

Supreme Court of California: the constitutionality of exclud-

ing same-sex couples from the institution of marriage in Cali-

fornia. In May 2008, the Court declared that California

statutes limiting marriage to opposite-sex couples were

unconstitutional under the equal protection clause of the Cali-

fornia Constitution. The Court then invalidated those statutes

552 PERRY v. SCHWARZENEGGER

and prohibited their enforcement. In re Marriage Cases, 183

P.3d 384, 452-453 (Cal. 2008). In the months that followed,

California issued approximately 18,000 marriage licenses to

same-sex couples.

Then, in November 2008, the People of the State of Cali-

fornia voted to adopt Proposition 8, an initiative constitutional

amendment that “added a new section — section 7.5 — to

article I of the California Constitution, providing: ‘Only mar-

riage between a man and a woman is valid or recognized in

California.’ ” Strauss v. Horton, 207 P.3d 48, 59 (Cal. 2009).

Proposition 8 had been placed on the ballot by five Califor-

nians, Defendants-Intervenors-Appellants Dennis Hollings-

worth, Gail J. Knight, Martin F. Gutierrez, Hak-Shing

William Tam, and Mark A. Jansson, whom California law

recognizes as the official “proponents” of the measure.1 Cal.

Elec. Code § 342.

After Proposition 8 was enacted, opponents of the measure

brought an original action for a writ of mandate in the

1

As the official “proponents,” the intervenors were responsible for pay-

ing the initiative filing fee (Cal. Elec. Code § 9001), requesting that the

Attorney General prepare a “circulating title and summary” of the initia-

tive for the intervenors to present to electors when circulating a petition

to qualify the initiative for the ballot (Cal. Elec. Code § 9001), preparing

petition forms to collect signatures to qualify the initiative for the ballot

(Cal. Elec. Code §§ 9001, 9012, 9014), managing signature gatherers (Cal.

Elec. Code §§ 9607, 9609), filing the petitions for signature verification

(Cal. Elec. Code § 9032), and designating arguments in favor of the initia-

tive for the voter information guide (Cal. Elec. Code § 9067, 9600). Pro-

ponents also established “ProtectMarriage.com — Yes on 8, a Project of

California Renewal,” also a defendant-intervenor-appellant here, as a “bal-

lot measure committee” to support Proposition 8 under Cal. Gov’t Code

section 84107. ProtectMarriage.com was responsible for all aspects of the

campaign to qualify Proposition 8 for the ballot, including the collection

of 1.2 million signatures. The committee spent $37 million to qualify

Proposition 8 for the ballot and to campaign in its favor in order to ensure

its adoption. See Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 954-955

(N.D. Cal. 2010).

PERRY v. SCHWARZENEGGER 553

Supreme Court of California, seeking invalidation of Proposi-

tion 8 as an improper attempt by the People to revise, rather

than amend, the California Constitution through exercise of

the initiative power. The three named respondents in that pro-

ceeding, Mark D. Horton, Linette Scott, and Edmund G.

Brown, Jr. — also defendants here — refused to defend the

measure’s constitutionality under state law, but remained par-

ties to the proceeding; Proponents were permitted to intervene

and defended Proposition 8 as a lawful initiative constitu-

tional amendment. The Court then upheld Proposition 8

against the opponents’ challenge, but preserved the 18,000

marriages of same-sex couples that had already been per-

formed. Strauss, 207 P.3d at 114, 119, 122.

B

Days before Strauss was decided, plaintiffs-appellees filed

this action in the United States District Court for the Northern

District of California, alleging that Proposition 8 violates the

Fourteenth Amendment to the United States Constitution and

seeking declaratory and injunctive relief. The named defen-

dants — the three officers who were respondents in Strauss,

plus the Governor and the County Clerks of Alameda and Los

Angeles Counties — filed answers to the complaint but

declined to defend the measure’s constitutionality. Proponents

were then permitted to intervene to do so. After a twelve-day

bench trial, the district court made findings of fact, and “con-

clude[d] that Proposition 8 is unconstitutional” under both the

Due Process Clause and the Equal Protection Clause. Perry v.

Schwarzenegger, 704 F. Supp. 2d. 921, 1003 (N.D. Cal.

2010). The court then entered the following injunction:

Defendants in their official capacities, and all per-

sons under the control or supervision of defendants,

are permanently enjoined from applying or enforcing

Article I, § 7.5 of the California Constitution.

554 PERRY v. SCHWARZENEGGER

This court stayed the injunction pending appeal; Proposition

8 remains in effect in California pending our final decision.

Plaintiffs and Proponents disagree as to the legal status of

Proposition 8 should it be determined that we are without

jurisdiction to hear this appeal.2

Proponents appealed the district court order, but the named

official defendants did not. We asked the parties to brief, as

a preliminary matter, the Proponents’ standing to seek review

of the district court order, in light of Arizonans and earlier

decisions of the United States Supreme Court. Having consid-

ered the parties’ briefs and arguments, we are now convinced

that Proponents’ claim to standing depends on Proponents’

particularized interests created by state law or their authority

under state law to defend the constitutionality of the initiative,

which rights it appears to us have not yet been clearly defined

by the Court. We therefore request clarification in order to

determine whether we have jurisdiction to decide this case.

III. Explanation of Certification

This court is obligated to ensure that it has jurisdiction over

this appeal before proceeding to the important constitutional

questions it presents, and we must dismiss the appeal if we

2

Plaintiffs argue that Proponents have no standing and therefore ask us

to simply dismiss this appeal. At oral argument, Plaintiffs contended that

were we to do so, the district court decision would be binding on the

named state officers and on the county clerks in two counties only, Los

Angeles and Alameda, and that further litigation in the state courts would

be necessary to clarify the legal status of Proposition 8 in the remaining

fifty-six counties. Alternatively, they suggested that the Governor, Attor-

ney General, or State Registrar would be required to issue a “legal direc-

tive” to the county clerks to cease enforcing Proposition 8.

Proponents argue that if they lack standing to appeal, then we are

required not only to dismiss the appeal but also to vacate the district court

judgment. In any event, we are required to resolve, nostra sponte, the issue

of standing before proceeding further with this matter.

PERRY v. SCHWARZENEGGER 555

lack jurisdiction. The certified question therefore is disposi-

tive of our very ability to hear this case.3

A

“The standing Article III requires must be met by persons

seeking appellate review, just as it must be met by persons

appearing in courts of first instance.” Arizonans, 520 U.S. at

64. Having been granted intervention in the district court is

not enough to establish standing to appeal; “an intervenor’s

right to continue a suit in the absence of the party on whose

side intervention was permitted is contingent upon a showing

by the intervenor that he fulfills the requirements of Art. III.”

Diamond v. Charles, 476 U.S. 54, 68 (1986). Where a plain-

tiff in federal district court must demonstrate “an ‘injury in

fact’ — an invasion of a legally protected interest” by the

defendant, Lujan v. Defenders of Wildlife, 504 U.S. 555, 560

(1992) — so too must an appellant prove his standing by

establishing “a concrete injury related to the judgment” he

seeks to appeal. W. Watersheds Project v. Kraayenbrink, 620

F.3d 1187, 1196 (9th Cir. 2010). States, however, “ha[ve] the

power to create new interests, the invasion of which may con-

fer standing.” Diamond, 476 U.S. at 65 n.17. “In such a case,

the requirements of Article III may be met.” Id.

Proponents contend that they possess such an “interest that

is created and secured by California law” — an interest in the

validity of the voter-approved initiative they sponsored, which

interest is “inva[ded]” by the judgment declaring Proposition

8 unconstitutional. Proponents’ Br. 22. They argue that their

interest as the official proponents of the initiative is different

3

In a separate published opinion filed concurrently with this order, we

dismiss for lack of standing the appeal on the merits in a companion case,

number 10-16751, that was filed by the County of Imperial, its Board of

Supervisors, and a Deputy Clerk of the County. Therefore, we may reach

the merits of the constitutional questions presented only if Proponents

have standing to appeal.

556 PERRY v. SCHWARZENEGGER

in kind than that of the citizens of California generally. If Pro-

ponents do possess such a particularized interest, they would

have standing to appeal the judgment below.

Proponents also claim an alternative and independent addi-

tional basis for standing: The State of California itself has an

undisputed interest in the validity of its laws, and Proponents

argue that “they may directly assert the State’s interest in

defending the constitutionality of its laws.” Proponents’ Br.

19. Proponents allege they are able to represent the State’s

interest because they “have ‘authority under state law’ to

defend the constitutionality of an initiative they have success-

fully sponsored . . . acting ‘as agents of the people’ of Califor-

nia ‘in lieu of public officials’ who refuse to do so.” Id.

(quoting Karcher v. May, 484 U.S. 72, 82 (1987) and Arizo-

nans, 520 U.S. at 65). If California does grant the official pro-

ponents of an initiative the authority to represent the State’s

interest in defending a voter-approved initiative when public

officials have declined to do so or to appeal a judgment inval-

idating the initiative, then Proponents would also have stand-

ing to appeal on behalf of the State.

B

The parties agree that “Proponents’ standing” — and there-

fore our ability to decide this appeal — “ ‘rises or falls’ on

whether California law” affords them the interest or authority

described in the previous section. Proponents’ Reply Br. at 8

(quoting Plaintiffs’ Br. 30-31). It is not sufficiently clear to

us, however, whether California law does so. In the absence

of controlling authority from the highest court of California

on these important questions of an initiative proponent’s

rights and interests in the particular circumstances before us,

we believe we are compelled to seek such an authoritative

statement of California law. Cf. Arizonans, 520 U.S. at 65

(“[W]e are aware of no Arizona law appointing initiative

sponsors as agents of the people of Arizona to defend, in lieu

PERRY v. SCHWARZENEGGER 557

of public officials, the constitutionality of initiatives made law

of the State.”) (emphasis added).

We are aware that in California, “All political power is

inherent in the people,” Cal. Const. art. II, § 1, and that to that

end, Article II, section 8(a) of the California Constitution pro-

vides, “The initiative is the power of the electors to propose

statutes and amendments to the Constitution and to adopt or

reject them.” We are also aware that the Supreme Court of

California has described the initiative power as “one of the

most precious rights of our democratic process,” and indeed,

that “the sovereign people’s initiative power” is considered to

be a “fundamental right.” Assoc. Home Builders v. City of

Livermore, 557 P. 2d 473, 477 (Cal. 1976); Brosnahan v.

Brown, 651 P.2d 274, 277 (Cal. 1982); Costa v. Super. Ct.,

128 P.3d 675, 686 (Cal. 2006). Finally, we are aware of Cali-

fornia law that the courts have a “solemn duty to jealously

guard” that right, Amador Valley Joint Union High Sch. Dist.

v. State Bd. of Equalization, 583 P.2d 1281, 1302 (Cal. 1978)

(internal quotation marks omitted), “and to prevent any action

which would improperly annul that right,” Martin v. Smith,

176 Cal. App. 2d 115, 117 (1959).

The power of the citizen initiative has, since its inception,

enjoyed a highly protected status in California. For example,

the Legislature may not amend or repeal an initiative statute

unless the People have approved of its doing so. Cal. Const.

art. II, § 10(c).4 Most relevant here, “the Governor has no veto

power over initiatives,” Kennedy Wholesale, Inc. v. State Bd.

of Equalization, 806 P.2d 1360, 1364 n.5 (Cal. 1991), and the

Attorney General possesses no veto power at all.

4

See People v. Kelly, 222 P.3d 186, 200 (Cal. 2010) (“California’s bar

on legislative amendment of initiative statutes stands in stark contrast to

the analogous constitutional provisions of other states. No other state in

the nation carries the concept of initiatives as ‘written in stone’ to such

lengths as to forbid their legislatures from updating or amending initiative

legislation.”) (internal quotation marks and citations omitted).

558 PERRY v. SCHWARZENEGGER

Although the Governor has chosen not to defend Proposi-

tion 8 in these proceedings, it is not clear whether he may,

consistent with the California Constitution, achieve through a

refusal to litigate what he may not do directly: effectively veto

the initiative by refusing to defend it or appeal a judgment

invalidating it, if no one else — including the initiative’s pro-

ponents — is qualified to do so.5 Proponents argue that such

a harsh result is avoided if the balance of power provided in

the California Constitution establishes that proponents of an

initiative are authorized to defend that initiative, as agents of

the People, in lieu of public officials who refuse to do so.

Similarly, under California law, the proponents of an initiative

may possess a particularized interest in defending the consti-

tutionality of their initiative upon its enactment; the Constitu-

tion’s purpose in reserving the initiative power to the People

would appear to be ill-served by allowing elected officials to

nullify either proponents’ efforts to “propose statutes and

amendments to the Constitution” or the People’s right “to

adopt or reject” such propositions. Cal. Const. art. II, § 8(a).

Rather than rely on our own understanding of this balance of

power under the California Constitution, however, we certify

the question so that the Court may provide an authoritative

answer as to the rights, interests, and authority under Califor-

nia law of the official proponents of an initiative measure to

defend its validity upon its enactment in the case of a chal-

lenge to its constitutionality, where the state officials charged

with that duty refuse to execute it.

Proponents and an amicus, the Center for Constitutional

Jurisprudence, have referred us to numerous cases in which

proponents of an initiative defended against pre-election chal-

lenges to their initiatives,6 defended against post-election

5

Here, of course, the Attorney General was also a defendant and refused

to defend the initiative along with the Governor.

6

See Indep. Energy Producers Ass’n v. McPherson, 136 P.3d 178 (Cal.

2006) (proponents defended against challenge that subject matter of initia-

tive was improper under the state constitution); Legislature v. Deukmejian,

PERRY v. SCHWARZENEGGER 559

challenges concerning the validity of their exercise of the ini-

tiative power,7 and proponents of an initiative were permitted

to intervene to defend, alongside government defendants, the

validity of their initiatives.8 None of those cases explained,

however, whether or why proponents have the right to defend

the validity of their initiative upon enactment when the state

officials charged with the law’s enforcement refuse to do so,

either because proponents have a particularized state-law

interest in doing so or because they are authorized to represent

the State’s interest in defending the initiative adopted by the

People. In particular, Proponents rely on Strauss v. Horton as

669 P.2d 17 (Cal. 1983) (same); see also Costa v. Super. Ct., 128 P.3d 675

(Cal. 2006) (challenge based on differences between the versions of the

measure (1) submitted to the Attorney General prior to the circulation of

the initiative petition, and (2) printed on the petition that was circulated

for signature); Senate v. Jones, 988 P.2d 1089 (Cal. 1999) (challenge

based on single-subject rule for initiatives); Brosnahan v. Eu, 641 P.2d

200 (Cal. 1982) (challenge to signatures qualifying measure for the bal-

lot); Vandeleur v. Jordan, 82 P.2d 455 (Cal. 1938) (challenge based on

format and content of initiative petition).

7

See Strauss v. Horton, 207 P.3d 48 (Cal. 2009) (Proponents permitted

to intervene to defend Proposition 8 as a valid exercise of the initiative

power to amend, rather than revise, the California Constitution); City of

Westminster v. County of Orange, 204 Cal. App. 3d 623 (1988) (propo-

nents intervened to defend against challenge that subject matter of initia-

tive — tax levies — was improper under the state constitution);

Community Health Ass’n v. Bd. of Supervisors, 146 Cal. App. 3d 990

(1983) (same).

8

See Amwest Surety Ins. Co. v. Wilson, 906 P.2d 1112 (Cal. 1995) (pro-

ponents intervened in state official’s challenge to an act of the Legislature

that amended, without voter approval, an initiative); 20th Century Ins. Co.

v. Garamendi, 878 P.2d 566 (Cal. 1994) (proponents intervened to defend,

alongside state official, the implementation of state initiative); Calfarm

Ins. Co. v. Deukmejian, 771 P.2d 1247 (Cal. 1989) (proponents intervened

as “real parties in interest” to defend, alongside state officials, challenge

that state initiative was unconstitutional); People ex rel. Deukmejian v.

County of Mendocino, 683 P.2d 1150 (Cal. 1984) (proponents intervened

to assist county officials in defending against challenge that county initia-

tive ordinance was preempted by state law).

560 PERRY v. SCHWARZENEGGER

evidence that “California law authorizes Proponents to defend

Proposition 8 on behalf of the State,” because the Supreme

Court of California “permitted these very Proponents to

defend this very Proposition when the Attorney General

would not do so.” Proponents’ Br. 20. But the Court did not

explain in Strauss why Proponents were permitted to inter-

vene, and under Arizonans we cannot simply infer from the

fact that they were allowed to do so that they have either the

particularized state-created interest or the authority under the

state constitution or other state law to act as agents of the Peo-

ple that they would need to be proper sole appellants here.

We are aware of only one case presenting circumstances

similar to those here (a post-enactment substantive challenge

to an initiative) that provides any discussion of official propo-

nents’ rights to appeal a lower court decision regarding a bal-

lot initiative in the absence of the government officials

charged with its enforcement: Simac Design, Inc. v. Alciati,

92 Cal. App. 3d 146 (1979). We recognize that the issues in

that case were in some regard dissimilar, however, and it was

decided by only an intermediate court and has not been dis-

cussed in subsequent decisions of the Supreme Court of Cali-

fornia. We therefore believe that we are required under

Arizonans to request a more definitive statement from the

State’s highest court rather than treat that decision as control-

ling.9

We do not find Building Industry Ass’n v. City of Cama-

rillo, 718 P.2d 68 (Cal. 1986), to be controlling authority for

the question certified here either. That case explained, in

dicta, that if government officials failed to defend an

initiative-enacted law “with vigor,” then “[p]ermitting inter-

vention by the initiative proponents . . . would serve to guard

9

We recognize that the discussion of proponents’ standing in Arizonans

is obiter dictum. See 520 U.S. at 65-66. Nevertheless it is a forceful state-

ment in a decision by a unanimous Court and we believe we would be

unwise to disregard it.

PERRY v. SCHWARZENEGGER 561

the people’s right to exercise initiative power, a right that

must be jealously defended by the courts.” Id. at 75. While the

statement may accurately express the intent of the California

Constitution, it was not a holding, and thus would not appear

to satisfy the requirements of Arizonans.10 In addition,

because it addresses possible intervention, it does not directly

address the authority or interest of initiative proponents. Con-

sequently, although all the cases cited underscore the signifi-

cant interest initiative proponents have in defending their

measures in the courts, we lack an authoritative statement of

California law that would establish proponents’ rights to

defend the validity of their initiatives, whether because they

have a particularized state-created interest in doing so or

because under California law they are authorized to assert the

State’s interest, on behalf of the People, in defending the con-

stitutionality of an initiative measure or appealing a judgment

invalidating that measure, when the state officials charged

with that responsibility refuse to do so. We believe that we

require such an authoritative determination by the Court

before we can determine whether Proponents have standing to

maintain this appeal.

C

The question we certify affects the “fundamental right”

under the California Constitution of the State’s electors to

10

That the statement in Building Industry Ass’n is dictum was recog-

nized in City & County of San Francisco v. State, 128 Cal. App. 4th 1030,

1042 n.9 (2005). That case did not hold to the contrary, however. The

Court of Appeal rejected as insufficient the interest in defending Proposi-

tion 22 claimed by a group formed one year after its adoption, but noted

that “this case does not present the question of whether an official propo-

nent of an initiative (Elec. Code, § 342) has a sufficiently direct and

immediate interest to permit intervention in litigation challenging the

validity of the law enacted.” Id. at 1038 (emphasis added). The Court’s

subsequent decision in In re Marriage Cases did not answer that question

either, and it described the Proposition 22 Legal Defense Fund as an “ad-

vocacy group” rather than the official proponents of the initiative. 183

P.3d at 405-406.

562 PERRY v. SCHWARZENEGGER

participate directly in the governance of their State. The

answer to that question will also affect our ability to consider

the fundamental rights under the United States Constitution

asserted by Plaintiffs. We therefore pray the Court to accept

our request for certification.

IV. Administrative Information

The names and addresses of lead counsel for the parties and

intervenors are listed in the appendix at the end of this order.

Cal. R. Ct. 8.548(b)(1). A complete listing of all counsel for

parties, intervenors, and amici curiae is provided in the

unpublished memorandum filed concurrently herewith. If the

Supreme Court of California accepts this request, the

Defendants-Intervenors-Appellants (Proponents) should be

deemed the petitioners.

The Clerk is hereby directed to transmit forthwith to the

Court the original and ten copies of this order and accompa-

nying memorandum, as well as a certificate of service on the

parties. Cal. R. Ct. 8.548(d). The clerk shall also transmit the

following along with this request: ten copies of the district

court Findings of Fact / Conclusions of Law / Order (704 F.

Supp. 2d. 921 (N.D. Cal. 2010)); ten copies of the Permanent

Injunction issued by the district court (docket entry 728 in No.

C 09-2292-VRW (N.D. Cal. Aug. 12, 2010)); a copy of the

video recording of the oral argument heard in these appeals on

December 6, 2010; the briefs of the parties and intervenors in

this appeal; and the briefs amicus curiae filed by (1) the Cen-

ter for Constitutional Jurisprudence and (2) Equality Califor-

nia in No. 10-16696. The Clerk shall provide additional

record materials if so requested by the Supreme Court of Cali-

fornia. Cal. R. Ct. 8.548(c).

The case is withdrawn from submission, and further pro-

ceedings in this court are stayed pending final action by the

Supreme Court of California. The parties shall notify the

Clerk of this Court within three days after the Court accepts

PERRY v. SCHWARZENEGGER 563

or rejects certification, and again within three days if the

Court renders an opinion. The panel retains jurisdiction over

further proceedings.

IT IS SO ORDERED.

APPENDIX

Lead Counsel for Defendants-Intervenors-Appellants

Charles J. Cooper (argued)

COOPER & KIRK, PLLC

1523 New Hampshire Avenue, N.W.

Washington, DC 20036

Lead Counsel for Plaintiffs-Appellees

David Boies (argued)

BOIES, SCHILLER & FLEXNER

333 Main St.

Armonk, NY 10504

Theodore Olson (argued)

GIBSON DUNN & CRUTCHER, LLP

1050 Connecticut Ave., NW

Washington, DC 20036-5306

Lead Counsel for Plaintiff-Intervenor-Appellee City and

County of San Francisco

Therese Stewart, Chief Deputy City Attorney (argued)

SAN FRANCISCO CITY ATTORNEY’S OFFICE

City Hall 234

One Dr. Carlton B. Goodlett Place

San Francisco, CA 94102-4682

564 PERRY v. SCHWARZENEGGER

Lead Counsel for Defendant Arnold Schwarzenegger, in his

official capacity as Governor of California

Tamar Pachter, Deputy Attorney General (no appearance)

CALIFORNIA DEPARTMENT OF JUSTICE

Suite 11000

455 Golden Gate Ave.

San Francisco, CA 94102

Andrew W. Stroud, Attorney (no appearance)

Mennemeier, Glassman & Stroud LLP

980 9th Street

Suite 1700

Sacramento, CA 95814

Lead Counsel for Defendant Edmund G. Brown, Jr., in his

official capacity as Attorney General of California

Tamar Pachter, Deputy Attorney General (no appearance)

(see above)

Lead Counsel for Defendants Mark B. Horton, in his official

capacity as Director of the California Department of Public

Health & State Registrar of Vital Statistics, and Linette Scott,

in her official capacity as Deputy Director of Health Informa-

tion & Strategic Planning for the California Department of

Public Health

Kenneth C. Mennemeier, Jr. (no appearance)

Mennemeier, Glassman & Stroud LLP

980 9th Street

Suite 1700

Sacramento, CA 95814

PERRY v. SCHWARZENEGGER 565

Lead Counsel for Defendant Patrick O’Connell, in his official

capacity as Clerk-Recorder for the County of Alameda

Claude Franklin Kolm, Esquire (no appearance)

OFFICE OF COUNTY COUNSEL

Suite 450

1221 Oak Street

Oakland, CA 94612-4296

Lead Counsel for Defendant Dean C. Logan, in his official

capacity as Registrar-Recorder/County Clerk for the County

of Los Angeles

Judy W. Whitehurst, Principal Deputy County Counsel (no

appearance)

LOS ANGELES COUNTY COUNSEL

6th Floor

648 Kenneth Hahn Hall of Administration

500 West Temple Street

Los Angeles, CA 90012-2713