Case3:09-cv-02292-VRW Document248 Filed11/04/09 Page1 of 12

1 COOPER AND KIRK, PLLC

Charles J. Cooper (DC Bar No. 248070)*
2 [email protected]
David H. Thompson (DC Bar No. 450503)*
3 [email protected]
Howard C. Nielson, Jr. (DC Bar No. 473018)*
4 [email protected]
Nicole J. Moss (DC Bar No. 472424)*
5 [email protected]
Jesse Panuccio (DC Bar No. 981634)*
6 [email protected]
Peter A. Patterson (OH Bar No. 0080840)*
7 [email protected]
1523 New Hampshire Ave. N.W., Washington, D.C. 20036
8 Telephone: (202) 220-9600, Facsimile: (202) 220-9601

9 LAW OFFICES OF ANDREW P. PUGNO

Andrew P. Pugno (CA Bar No. 206587)
10 [email protected]
101 Parkshore Drive, Suite 100, Folsom, California 95630
11 Telephone: (916) 608-3065, Facsimile: (916) 608-3066

12 ALLIANCE DEFENSE FUND

Brian W. Raum (NY Bar No. 2856102)*
13 [email protected]
James A. Campbell (OH Bar No. 0081501)*
14 [email protected]
15100 North 90th Street, Scottsdale, Arizona 85260
15 Telephone: (480) 444-0020, Facsimile: (480) 444-0028

16 ATTORNEYS FOR DEFENDANT-INTERVENORS DENNIS HOLLINGSWORTH,

GAIL J. KNIGHT, MARTIN F. GUTIERREZ, HAK-SHING WILLIAM TAM,
17 MARK A. JANSSON, and PROTECTMARRIAGE.COM – YES ON 8, A
PROJECT OF CALIFORNIA RENEWAL
18
* Admitted pro hac vice
19
UNITED STATES DISTRICT COURT
20 NORTHERN DISTRICT OF CALIFORNIA

21 KRISTIN M. PERRY, SANDRA B. STIER, PAUL

T. KATAMI, and JEFFREY J. ZARRILLO, CASE NO. 09-CV-2292 VRW
22
DEFENDANT-INTERVENORS’
Plaintiffs, REPLY IN SUPPORT OF MOTION
23
TO REALIGN DEFENDANT
24 CITY AND COUNTY OF SAN FRANCISCO, EDMUND G. BROWN, JR.

25 Plaintiff-Intervenor,
Date: Submitted on the papers
26 v. Location: Courtroom 6, 17th Floor
Judge: Chief Judge Vaughn R. Walker
27
ARNOLD SCHWARZENEGGER, in his official
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1 capacity as Governor of California; EDMUND G.

BROWN, JR., in his official capacity as Attorney
2 General of California; MARK B. HORTON, in his
official capacity as Director of the California
3
Department of Public Health and State Registrar of
4 Vital Statistics; LINETTE SCOTT, in her official
capacity as Deputy Director of Health Information
5 & Strategic Planning for the California Department
of Public Health; PATRICK O’CONNELL, in his
6 official capacity as Clerk-Recorder for the County
7 of Alameda; and DEAN C. LOGAN, in his official
capacity as Registrar-Recorder/County Clerk for
8 the County of Los Angeles,

9 Defendants,

10 and

11 PROPOSITION 8 OFFICIAL PROPONENTS

DENNIS HOLLINGSWORTH, GAIL J.
12 KNIGHT, MARTIN F. GUTIERREZ, HAK-
SHING WILLIAM TAM, and MARK A.
13 JANSSON; and PROTECTMARRIAGE.COM –
YES ON 8, A PROJECT OF CALIFORNIA
14 RENEWAL,

15 Defendant-Intervenors.

16

17 Additional Counsel for Defendant-Intervenors

18
ALLIANCE DEFENSE FUND
19 Timothy Chandler (CA Bar No. 234325)
[email protected]
20 101 Parkshore Drive, Suite 100, Folsom, California 95630
Telephone: (916) 932-2850, Facsimile: (916) 932-2851
21
Jordan W. Lorence (DC Bar No. 385022)*
22 [email protected]
Austin R. Nimocks (TX Bar No. 24002695)*
23 [email protected]
801 G Street NW, Suite 509, Washington, D.C. 20001
24 Telephone: (202) 393-8690, Facsimile: (202) 347-3622
25 * Admitted pro hac vice
26

27

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1 TABLE OF CONTENTS

2 INTRODUCTION ............................................................................................................................... 1

3 ARGUMENT....................................................................................................................................... 1

4 I. Realignment Is Proper For Reasons Other Than Assessing Jurisdiction. .............................. 1

5 II. The Current Alignment Of the Attorney General Prejudices Defendant-Intervenors

And Undermines The Adversarial Nature Of The Proceedings. ............................................ 3
6
III. The Interests Of Attorney General Brown and Plaintiffs Are Clearly Aligned. .................... 5
7
IV. The Attorney General Is Not A “Nominal” Party In The Sense Urged By Plaintiffs. ........... 7
8
V. The Attorney General’s Preference to be Labeled a Defendant in this Action Does
9 Not Empower Him To Thwart The Requirement Of Adversity. ............................................ 7

10 CONCLUSION.................................................................................................................................... 8

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1 TABLE OF AUTHORITIES
2 Cases Page
3 Arakaki v. Cayetano, 324 F.3d 1078 (9th Cir. 2003) .................................................................. 6
4 California ex rel. Vand de Kamp v. Tahoe Reg’l Planning Auth., 792 F.2d 775
5 (9th Cir. 1986) ....................................................................................................................... 6

6 Christie v. Standard Ins. Co., No. C 02-02520 WHA, 2002 U.S. Dist. LEXIS 22062
(N.D. Cal. July 19, 2002)............................................................................................... 2, 3, 4
7
Delchamps, Inc. v. Alabama State Milk Control Bd., 324 F. Supp. 117 (M.D. Ala. 1971) .... 2, 6
8
Dolch v. United California Bank, 702 F.2d 178 (9th Cir. 1983)............................................. 1, 2
9
In re Marriage Cases, 183 P.3d 384 (Cal. 2008) ........................................................................ 4
10

11 Independent. Towers of Wash. v. Wash., 350 F.3d 925 (9th Cir. 2003) ..................................... 4

12 Indianapolis v. Chase Nat’l Bank, 314 U.S. 63 (1941) .............................................................. 7

13 Larios v. Perdue, 306 F. Supp. 2d 1190 (N.D. Ga. 2003) ................................................... 2, 3, 4

14 League of United Latin Am. Citizens, Council No. 4434 v. Clements, 999 F.2d 831
(5th Cir. 1993) ...................................................................................................................... 3
15
Lockyer v. City and County of San Francisco, 33 Cal. 4th 1055 (2004)..................................... 6
16
Plumtree Software Inc. v. Datamize, LLC, No. C 02-5693 VRW, 2003 U.S. Dist.
17
LEXIS 26948 (N.D. Cal. Oct. 6, 2003) ................................................................ 2, 3, 4, 5, 7
18
Prudential Real Estate Affiliates, Inc. v. PPR Realty, Inc., 204 F.3d 867 (9th Cir. 2000).......... 5
19
Standard Oil Co. v. Perkins, 347 F.2d 379 (9th Cir. 1965)........................................................ 5
20
Still v. DeBuono, 927 F. Supp. 125 (S.D.N.Y. 1996) .................................................................. 7
21
United States v. Johnson, 319 U.S. 302 (1943) .......................................................................... 4
22

23

24

25

26

27

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1 INTRODUCTION

2 There is no defensible reason for allowing the Plaintiffs and Plaintiff-Intervenors

3 (hereinafter collectively referred to as “Plaintiffs”) to maintain an ally in defendants’ camp. No one

4 denies that the Attorney General is substantively aligned with Plaintiffs on whether Proposition 8 is

5 constitutional—the primary issue in this case. No one denies—and the Attorney General essentially

6 admits—that he is collaborating with Plaintiffs on discovery and evidentiary matters. The obvious

7 reality is that the Attorney General is a plaintiff in all but name. Little wonder that Plaintiffs and

8 the Attorney General want to keep him on the defense side where he can provide them with made-

9 to-order concessions useful to their common mission of invalidating Proposition 8. Their

10 objections to realignment, however, are make-weight. Evidentiary and practical concerns—not just

11 jurisdictional grounds—are established reasons for realignment. Word games do not suffice: the

12 Attorney General is a nominal defendant, not a nominal party, which is why Plaintiffs have already

13 argued that his admissions are entitled to great weight. The disagreement between Plaintiffs and the

14 Attorney General over the preliminary injunction motion was a matter of tactics, not ultimate

15 objective—and, in any event, that issue is irrelevant going forward. And, lastly, speculation about

16 what legal positions a new Attorney General may or may not take upon assuming office in January

17 2011 is immaterial to properly aligning this Attorney General for a trial scheduled for January 2010.

18 If a new Attorney General decides to defend Proposition 8 rather than assail it, he or she may seek,

19 with our enthusiastic endorsement, to be redesignated as a defendant. For now, however, the

20 Attorney General is a de facto plaintiff and should be denominated as such.

21 ARGUMENT

22 I. Realignment Is Proper For Reasons Other Than Assessing Jurisdiction.

23 The Attorney General’s primary argument is that realignment is proper only in cases in

24 which the alignment of the parties affects the Court’s jurisdiction. See Doc # 239 at 4-7. Indeed,

25 the Attorney General states that “each and every case” relied upon in our opening brief

26 demonstrates that realignment is “merely a tool to test the court’s jurisdiction.” Id. at 6. Both of

27 these contentions are simply wrong.

28 As the Ninth Circuit has explained, “[t]he courts, not the parties, are responsible for aligning
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1 the parties according to their interests in the litigation.” Dolch v. United California Bank, 702 F.2d

2 178, 181 (9th Cir. 1983). While this responsibility may be most pressing in situations in which the

3 alignment of the parties goes to the Court’s jurisdiction—i.e., its very power to hear a dispute—the

4 Attorney General has not identified any case law suggesting that the Court’s authority is limited to

5 such situations. This Court, in fact, has held otherwise. See Plumtree Software Inc. v. Datamize,

6 LLC, No. C 02-5693 VRW, 2003 U.S. Dist. LEXIS 26948, at *4-*8 (N.D. Cal. Oct. 6, 2003)

7 (holding that district court has the authority to realign parties despite absence of jurisdictional

8 issue); see also Christie v. Standard Ins. Co., No. C 02-02520 WHA, 2002 U.S. Dist. LEXIS

9 22062, at *19-*20 (N.D. Cal. July 19, 2002) (realigning party for discovery purposes in absence of

10 jurisdictional controversy).

11 And, as we explained in our opening brief, district courts have realigned government

12 defendants as plaintiffs even where the courts’ jurisdiction did not hinge on the decision. See Doc #

13 216 at 12-13. The Attorney General attempts to distinguish one of those cases, Delchamps, Inc. v.

14 Alabama State Milk Control Bd., 324 F. Supp. 117 (M.D. Ala. 1971), on the ground that the

15 government official in question (the Attorney General of Alabama) “himself moved to be

16 realigned.” Doc # 239 at 17 n.4. But as we have explained, the proper alignment of the parties is

17 for the Court, not the parties, to decide, see Dolch, 702 F.2d at 181; the Court’s authority and

18 responsibility thus does not depend upon which party seeks realignment.

19 The Attorney General does not even attempt to distinguish another such case, Larios v.

20 Perdue, 306 F. Supp. 2d 1190 (N.D. Ga. 2003); rather, he claims it “was wrongly decided.” Doc #

21 239 at 12 (capitalization altered), see also id. at 14. This claim, of course, stands or falls with the

22 Attorney General’s assertion that the Court lacks authority to realign the parties when jurisdiction is

23 not at issue—an assertion that, as we have explained, is incorrect. Indeed, the Attorney General’s

24 discussion of Larios only succeeds in emphasizing its factual and legal similarities to this case.

25 Larios is directly on point and confirms the need for realignment where a public official, sued in his

26 official capacity, walks arm-in-arm with the plaintiffs. The Larios court realigned the President of

27 the Georgia Senate because:

28  his positions were “wholly consonant” with those of the plaintiffs;

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1  his answer did not deny any of the substantive allegations in plaintiffs’ complaint;

2  he opposed the motions of his co-defendants; and

3  he took positions adverse to co-defendants in response to questions posed by the court.

4 See Larios, 306 F. Supp. 2d at 1196.

5 “Simply put, [the Attorney General] has taken—and undoubtedly will continue to take—

6 precisely the same positions espoused by the plaintiffs in this case, and his interests, as reflected in

7 those positions, are aligned with those of the plaintiffs and not with those of [Defendant-

8 Intervenors]. Thus, … realignment plainly is appropriate.” Id.1

9 II. The Current Alignment of the Attorney General Prejudices Defendant-

Intervenors and Undermines the Adversarial Nature of the Proceedings.
10

11 Unlike the Attorney General, Plaintiffs do not contest this Court’s authority to realign

12 parties for nonjurisdictional purposes. Doc # 240 at 3. They argue, however, that it would be

13 inappropriate to realign the Attorney General because he has stated an intention not to produce

14 evidence at trial. Id. True as that may be, it is by no means the sine qua non of the realignment

15 inquiry. As this Court recognized in Plumtree, courts look to the “primary purpose” of the

16 litigation and “should align the parties in accordance with the primary dispute in the controversy.”

17 2003 U.S. Dist. LEXIS 26948, at *8.2 The primary dispute here, of course, centers on the validity

18 of Proposition 8 under the United States Constitution. On that question, the Attorney General and

19 Plaintiffs stand united against Defendant-Intervenors, and the party alignment in this case should

20 reflect that reality. “To allow the current alignment would frustrate the adversarial purpose of the

21 judicial system.” Christie, 2002 U.S. Dist. LEXIS 22062, at *20.

22 Events to date in this litigation illustrate that a misaligned party can, among other things,

23 lead parties to attempt to manipulate the presentation of and weight to be accorded evidence. For

24 1
See also League of United Latin Am. Citizens, Council No. 4434 v. Clements, 999 F.2d
25 831, 844 (5th Cir. 1993) (en banc) (“[I]f the Attorney General changes his views on the merits
of the case” to agree with plaintiffs’ legal theories, “realigning him with the plaintiffs may be
26 appropriate.”).
2
In Plumtree the Court did consider whether realignment would “aid in the logical
27 presentation of the evidence at trial,” but this consideration was tied to determining the
dispute’s “primary purpose.” 2003 U.S. Dist. LEXIS 26948, at *12-*13. Moreover, it was
28 only one of six considerations the Court identified as supporting that determination.

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1 example, despite the Attorney General’s contention that he would “play a minor role in creating the

2 evidentiary record,” Doc # 127 at 2, Plaintiffs engaged him in discovery by presenting him with

3 detailed requests for admission. The Attorney General obligingly responded by making the vast

4 majority of the requested admissions. See Doc # 204-1. Plaintiffs then attached the Attorney

5 General’s admissions as Exhibit A to their opposition to Defendant-Intervenors’ summary judgment

6 motion, asserting that they were “binding.” Doc # 202 at 32.

7 This, of course, was a blatant attempt to use the Attorney General’s miscast role as a

8 defendant in this action to the detriment of the defense of Proposition 8.3 And while the Attorney

9 General’s admissions—even as a co-defendant—are not binding upon Defendant-Intervenors, see

10 Doc # 213 at 31 n.19, neither judicial economy nor a system of justice premised upon adversity

11 between parties is served by enabling such a charade.4 See Christie, 2002 U.S. Dist. LEXIS 22062,

12 *20 (realignment required “[f]rom a practical standpoint”); Plumtree, 2003 U.S. Dist. LEXIS

13 26948, at *8-*16 (realignment ordered, in part, to aid orderly adjudication of case); Larios, 306

14 F.Supp. 2d at 1195. Indeed, should the Attorney General continue as a defendant there is every

15 reason to expect that Plaintiffs will continue to attempt to exploit that status to their advantage. It is

16 one thing for the Attorney General to opt not to defend in court a measure adopted by the people of

17 California; it is quite another for a court to allow that decision to strip those voters of the right to the

18 fair and fully adversarial process that is every litigant’s due. See United States v. Johnson, 319 U.S.

19 302, 305 (1943) (Actual adverseness of the parties is “a safeguard essential to the integrity of the

20 judicial process, and one which we have held to be indispensable to adjudication of constitutional

21 questions by this Court.”); Independent Towers of Wash. v. Wash., 350 F.3d 925, 929 (9th Cir.

22
3
23 Regardless of whether the service of the Attorney General’s admissions only upon
Plaintiffs was intentional, Plaintiffs’ attempt to use them against Defendant-Intervenors
24 certainly was.
4
The Attorney General chides us for any expectation that he would be our “friend” in this
25 litigation, pointing to the position he took in Strauss v. Horton. See Doc # 239 at 15. Strauss,
of course, did not involve the validity of Proposition 8 under the federal Constitution. In any
26 event, the Attorney General can hardly claim that his position in one case concerning the
traditional definition of marriage can be used to predict his position in subsequent cases on the
27 issue. For example, in In re Marriage Cases, 183 P.3d 384 (Cal. 2008), the Attorney General
put forward a robust defense of the validity, under the California Constitution, of Proposition
28 22, which is worded identically to Proposition 8.

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1 2003) (“Our adversarial system relies on the advocates to inform the discussion and raise the issues

2 to the court.”). Realigning the Attorney General as a party plaintiff will ensure that the proceedings

3 in this case are truly adversarial in nature.

4 III. The Interests Of Attorney General Brown and Plaintiffs Are Clearly Aligned.
5 Despite his position that Proposition 8 violates the Due Process and Equal Protection

6 Clauses of the Constitution, the Attorney General argues that he should not be realigned as a

7 plaintiff because his interests are not “necessarily aligned with the Plaintiffs, or for that matter, with

8 San Francisco, in all respects.” Doc # 239 at 16. Whether his interests are aligned with Plaintiffs

9 “in all respects,” however, is irrelevant. What matters is the Attorney General’s position on the

10 constitutionality of Proposition 8, “the primary dispute in the controversy.” Plumtree, 2003 U.S.

11 Dist. LEXIS 26948, at *9. That the Attorney General chose not to bring his own suit in the first

12 instance is of no moment, as he is now actively opposing Proposition 8. Cf. Standard Oil Co. v.

13 Perkins, 347 F.2d 379, 382 (9th Cir. 1965) (affirming district court decision to realign defendant as

14 plaintiff, reasoning that “[t]o say that [party] did not agree with [plaintiff] that an action should have

15 been brought, is not to say that he occupied the position of a defendant having an immediate stake

16 in the suit”). And the additional disagreements cited by the Attorney General—regarding Plaintiffs’

17 motion for a preliminary injunction and various intervention motions—are clearly “subsidiary” in

18 nature. Prudential Real Estate Affiliates, Inc. v. PPR Realty, Inc., 204 F.3d 867, 874 (9th Cir.

19 2000); see also id. (explaining that parties’ “alignment … in securing and maintaining [a]

20 preliminary injunction relates only to the subsidiary issue of whether [a party] is entitled to maintain

21 the status quo ante pending resolution of the ultimate dispute, and not to the ultimate dispute

22 itself”).5

23 Plaintiffs, on the other hand, attempt to distance their interests from the Attorney General’s

24 by casting the “primary matter in dispute” as “whether Prop. 8 should be immediately enjoined.”

25 Doc # 240 at 5 (quotation marks omitted). This characterization, however, is a not-so-subtle

26
5
27 What is more, the Attorney General overstates the disagreement between him and
Plaintiffs. Contrary to his assertion, see Doc # 239 at 16, Plaintiffs did not oppose Defendant-
28 Intervenors’ motion to intervene in this case. See Doc # 31.

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1 attempt to elevate to the status of “ultimate” or “primary” dispute subsidiary considerations relating

2 to Plaintiffs’ prior motion for a preliminary injunction, such as whether the Court should “maintain

3 the status quo ante pending resolution of the ultimate dispute.” Prudential Real Estate, 204 F.3d at

4 874.6

5 In addition, the Attorney General’s failure to “invoke his authority as the chief legal officer

6 of California to direct state officials not to enforce Prop. 8,” Doc # 240 at 4, does not represent a

7 conflict with respect to the primary issue in dispute in this litigation. As an initial matter, Plaintiffs

8 cite no authority supporting this purported authority of the Attorney General, and the Attorney

9 General effectively disclaims having such authority. See Doc # 239 at 14 (stating that he “has an

10 obligation to enforce the law until a court declares it invalid”).7 More importantly, the relevant

11 issue for realignment purposes is the parties’ position with respect to the constitutionality of

12 Proposition 8—the primary dispute in this controversy. The Attorney General’s interests in that

13 dispute are fundamentally aligned with those of Plaintiffs.8

14

15

16 6
In the related context of intervention, the Ninth Circuit has held that where the applicant
17 for intervention and an existing party “have the same ultimate objective” a presumption of
adequate representation—sufficient to deny intervention if not overcome—arises. See
18 California ex rel. Vand de Kamp v. Tahoe Reg’l Planning Auth., 792 F.2d 775, 778 (9th Cir.
1986); Arakaki v. Cayetano, 324 F.3d 1078, 1086 (9th Cir. 2003). Although Plaintiffs
19 downplay the importance of parties’ ultimate objectives in this context, they have represented
to the Ninth Circuit that a putative intervenor who shares the same ultimate objective as
20 Defendant-Intervenors in this case is adequately represented and thus should not be granted
intervention. See Plaintiffs’-Appellees’ Response Br. at 24, Perry v. Schwarzenegger, No. 09-
21 16959 (9th Cir. Oct. 9, 2009) (quoting Arakaki).
7
The idea that the Attorney General could order state officials to disregard Proposition 8 is
22 difficult to square with the California Supreme Court’s decision in Lockyer v. City and County of
San Francisco, 33 Cal. 4th 1055 (2004). Lockyer, of course, made clear that executive branch
23 officials may not issue ipse dixit constitutional rulings and refuse to enforce duly-enacted laws. The
California Supreme Court held that the separation of powers under the California Constitution
24 placed the power to declare a statute unconstitutional with the courts. See Lockyer, 33 Cal. 4th at
1068-69 (citing Kendall v. United States, 37 U.S. (12 Pet.) 524, 613 (1838)).
8
25 Plaintiffs’ assertion that a new Attorney General with a different view may be elected in
November 2010, see Doc # 240 at 4, is similarly baseless as a reason for declining realignment
26 for a case going to trial in January 2010. The Court is bound to ensure that the case as
currently captioned is truly adversarial. Should a new Attorney General take a different view,
27 the courts may elect to align him or her as a defendant once more. See Delchamps, 324 F.
Supp. at 117-18 (granting motion of “successor” Attorney General to be realigned as a party
28 plaintiff).

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1 IV. The Attorney General Is Not A “Nominal” Party In The Sense Urged By
Plaintiffs.
2

3 While it is true that the Attorney General has proven himself a “nominal Defendant” (Doc #

4 216 at 6 (emphasis added))—meaning that he is a defendant in name only because of his

5 substantive alliance with Plaintiffs—he is not a mere bystander without a stake in the matter, as

6 Plaintiffs attempt to recast him. See Doc # 240 at 3. The Attorney General’s participation in the

7 case, his duty as “chief legal officer of the State” to “uniformly and adequately” enforce the law at

8 issue, Cal. Const., art. 5, sec. 13, his representation of the People’s interests in a case that attacks

9 the constitutionality of an initiative passed by a majority of citizens, the fact that he (or his office)

10 will be bound by any judgment, and the fact that Plaintiffs themselves named him as a party in this

11 action, all undermine the attempt to minimize the Attorney General’s standing. Given these

12 interests, the Attorney General is faced with “substantial legal rights or detriments flowing from the

13 resolution of the primary matter in dispute,” Prudential Real Estate, 204 F.3d at 874, and the Court

14 cannot simply disregard him for purposes of realignment.

15 V. The Attorney General’s Preference to be Labeled a Defendant in this Action

Does Not Empower Him To Thwart The Requirement Of Adversity.
16

17 Finally, the Attorney General argues that realigning him as a plaintiff would interfere with

18 his discretion to decide the substantive positions he will take in a matter. Doc # 239 at 17-18. But

19 the Attorney General has already made his choice by acceding to Plaintiffs’ substantive position in

20 the case. See Doc # 239 at 16. He cannot now straddle the line—adopting plaintiffs’ substantive

21 position but doing so under the guise of a defendant. “Obviously, to be recognized as a ‘defendant’

22 …, a party must be in an adversarial relationship with the plaintiff.” Still v. DeBuono, 927 F. Supp.

23 125, 130 (S.D.N.Y. 1996).

24 In summary, the Court is bound to “look beyond the pleadings and arrange the parties

25 according to their sides in the dispute.” Indianapolis v. Chase Nat’l Bank, 314 U.S. 63, 69 (1941)

26 (quotations omitted). Attorney General Brown should be realigned as a party plaintiff because he

27 has embraced Plaintiffs’ claims that Proposition 8 violates the Fourteenth Amendment. Allowing

28 him to continue as a defendant invites collusion and undermines the adversarial nature of these

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1 proceedings.

2 CONCLUSION

3 For the foregoing reasons, Attorney General Brown should be realigned as a party plaintiff.

5 Dated: November 4, 2009 COOPER AND KIRK, PLLC

ATTORNEYS FOR DEFENDANT-INTERVENORS
6 DENNIS HOLLINGSWORTH, GAIL J. KNIGHT,
7 MARTIN F. GUTIERREZ, HAK-SHING WILLIAM TAM,
MARK A. JANSSON, AND PROTECTMARRIAGE.COM –
8 YES ON 8, A PROJECT OF CALIFORNIA RENEWAL

9
By: /s/Charles J. Cooper
10 Charles J. Cooper
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