The opinion
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;
599
600 PERRY v. SCHWARZENEGGER
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 No. 10-16751
RENEWAL, as official proponents of D.C. No.
Proposition 8; HAK-SHING WILLIAM
TAM,
3:09-cv-02292-
VRW
Defendants-Intervenors,
OPINION
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
Filed January 4, 2011
Before: Stephen Reinhardt, Michael Daly Hawkins, and
N. Randy Smith, Circuit Judges.
PERRY v. SCHWARZENEGGER 601
Per Curiam Opinion
PERRY v. SCHWARZENEGGER 603
COUNSEL
Robert H. Tyler (argued) and Jennifer L. Monk, Advocates
for Faith and Freedom, Murrieta, California, for the movants-
appellants.
Theodore B. Olson, Matthew D. McGill, and Amir C. Tay-
rani, Gibson, Dunn & Crutcher LLP, Washington, D.C.; The-
odore J. Boutrous, Jr., Christopher D. Dusseault, Ethan D.
Dettmer, Theane Evangelis Kapur, and Rebecca Justice Laza-
rus, Gibson, Dunn & Crutcher LLP, Los Angeles, California;
David Boies (argued), Jeremy M. Goldman, and Theodore H.
Uno, Boies, Schiller & Flexner LLP, Armonk, New York, for
the plaintiffs-appellees.
John C. Eastman, Anthony T. Caso, and Karen J. Lugo,
Orange, California, for amicus curiae Center for Constitu-
tional Jurisprudence.
Matthew B. McReynolds and Kevin T. Snider, Sacramento,
California, for amicus curiae Pacific Justice Institute.
604 PERRY v. SCHWARZENEGGER
Michael S. Wald, Stanford Law School, Stanford, California;
Herma Hill Kay, Berkeley School of Law, Berkeley, Califor-
nia, for amici curiae Professors of Family Law.
David C. Codell, Linda M. Burrow, Albert Giang, and Benja-
min A. Au, Caldwell Leslie & Proctor, PC, Los Angeles, Cal-
ifornia, for amicus curiae Equality California.
OPINION
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 cor-
respondingly 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 Proposi-
tion 8.
BACKGROUND
In May 2009, six months after Californians adopted Propo-
sition 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 Attor-
ney General of the State of California, the Director of the Cal-
ifornia Department of Public Health (who serves as the State
Registrar of Vital Statistics), the Deputy Director of Health
PERRY v. SCHWARZENEGGER 605
Information & Strategic Planning for the California Depart-
ment of Public Health, 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 declara-
tory judgment stating that this law and any other California
law that bars same-sex marriage violate[s]” the federal Con-
stitution, and that the court “enter a preliminary and a perma-
nent 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 addi-
tion, the City and County of San Francisco was permitted to
intervene as a plaintiff.
In December 2009, after San Francisco questioned Propo-
nents’ standing, the County of Imperial, its Board of Supervi-
sors 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 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 offi-
cials 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,”
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.
606 PERRY v. SCHWARZENEGGER
Movants argued, “the Clerks’ interest in the effective perfor-
mance of their duties and the threat of an injunction impacting
those duties — either from a federal District Court or the Cal-
ifornia Superior Court seeking to enforce an order from the
Attorney General or other state officials — justify interven-
tion.”
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 per-
missively. 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 con-
cern rather than a municipal affair.” Lockyer v. City & County
of San Francisco, 95 P.3d 459, 471 (Cal. 2004) (internal quo-
tation marks omitted). As to the deputy clerk, the court rea-
soned 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 mer-
its.
PERRY v. SCHWARZENEGGER 607
DISCUSSION
I. Intervention as of Right
[1] Under Federal Rule of Civil Procedure 24(a)(2), a dis-
trict court “must permit anyone to intervene who . . . claims
an interest relating to the property or 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 ade-
quately represent the applicant’s interest.” Donnelly v. Glick-
man, 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 “signifi-
cant 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 commis-
sioner of civil marriages for Imperial County, sought to inter-
vene because “[a]ny injunctive relief 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,
608 PERRY v. SCHWARZENEGGER
and do not, decide now whether a County Clerk would have
been permitted to intervene under the circumstances present
in this case.
[2] 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 act-
ing for his principal or the officer himself. The deputy’s offi-
cial 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 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 insuf-
ficient for a finding of a “significant protectable interest.”2
[3] 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
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.
PERRY v. SCHWARZENEGGER 609
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 a “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 “inju-
ry,” if any, would be to the Clerk, not a deputy. As we have
explained, Vargas is neither the Clerk nor her authorized rep-
resentative. She therefore may not rely upon the Clerk’s
injury to assert her own interest in intervention or standing to
appeal.
[4] Vargas claims as an additional “significant protectable
interest”: the desire to avoid the “legal uncertainty and confu-
sion” 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 Consti-
tution that states that “[a]n administrative agency . . . has no
power . . . to refuse to enforce a statute on the basis that fed-
eral law or federal regulations prohibit the enforcement of
such statute unless an appellate court has made a determina-
tion that the enforcement of such statute is prohibited by fed-
eral law or federal regulations.” Cal. Const. art. III, § 3.5(c)
(emphasis added). It seems likely that the reference in the pro-
vision 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 Suprem-
acy 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.
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.
610 PERRY v. SCHWARZENEGGER
Const. art. III, § 3.5, and explaining, “It is a long-standing
principle that a state may not 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
[5] The Board of Supervisors of Imperial County and the
County itself also claim significant protectable interests war-
ranting 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 mar-
riage, 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 certifi-
cates under the governing state statutes . . . .” Id. Moreover,
the duties of the Supervisors themselves are not directly
affected by this litigation, so they lack a significant protect-
able interest.
[6] 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
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.
PERRY v. SCHWARZENEGGER 611
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 prob-
lems including, but not limited to, teenage pregnancy, depres-
sion 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 pre-
cise extent of the county’s financial interest is ultimately
unknowable and irrelevant.” Seeing as the burden is on the
movant to demonstrate its interest, and it has made no attempt
to do so, we conclude that its newly claimed interest is with-
out merit.
II. Permissive Intervention
[7] 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 interven-
tion, 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 rela-
tion 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
612 PERRY v. SCHWARZENEGGER
other parties, whether intervention will prolong or
unduly delay the litigation, and whether parties seek-
ing 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.
[8] The district court found that “the Spangler factors
weigh[ed] strongly against” intervention. It based this conclu-
sion first on the fact that Movants had explained that they had
no new evidence or arguments to introduce into the case. Sec-
ond, the court determined that Movants’ only expressed inter-
est 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.
[9] 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.
PERRY v. SCHWARZENEGGER 613
CONCLUSION
The district court order denying the motion to intervene is
AFFIRMED. Movants’ appeal of the district court order con-
cerning 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.