• As Lyle has explained, the sponsors of Proposition 8 have filed a petition for a “writ of mandate” in the California Supreme Court, seeking to enjoin (at least) fifty-six of the fifty-eight California county clerks from issuing marriage licenses to same-sex couples.  The state supreme court has denied preliminary relief, and the parties will be filing further briefs between now and August 1 on the merits.

Meanwhile, on Friday the San Diego county clerk, Ernest Dronenburg, filed a similar petition to the California Supreme Court.  Dronenburg is currently abiding by the directive of state officials and issuing licenses to same-sex couples.  He is, however, asking the court to direct those state officials, including the governor and attorney general, “to execute their supervisory duties, which do not include control over county clerks issuing marriage licenses.”  In other words, he appears to be asking the state judiciary to enjoin the state officials from trying to sanction Dronenburg if and when he refuses to issue a marriage license to a same-sex couple.

In his latest post, Lyle describes in detail the procedural schedule for the two cases.

The petitions to the highest state court each raise two distinct, primary issues – the second and third issues I discussed in this post just after the U.S. Supreme Court decision in Hollingsworth v. PerryUnfortunately those two issues were somewhat conflated in the initial, preliminary pleadings on the sponsors’ petition last week.  But now that the parties are moving on to further briefing on the merits in that case – the court has ordered the California attorney general to file her brief on Monday, with the sponsors filing their reply brief on Thursday, August 1 – and there is now yet another petition raising the same questions, perhaps a quick effort to detangle the issues is in order.  (Clerk Dronenburg has also raised a third issue, which I discuss briefly at the conclusion of this post.)The fate of the two petitions to the California Supreme Court depends largely on the meaning and effect of the injunction already entered by the federal judge in the Perry case, Vaughn Walker.  In her initial response to the sponsors’ petition, Attorney General Kamala Harris argued that state courts cannot order the county clerks to deny same-sex marriage licenses, because those same clerks are required to issue such licenses under the terms of Judge Walker’s injunction.

The first issue in dispute in the new actions is which state officials are bound by Judge Walker’s injunction.  The order applies by its terms to two of the fifty-eight state county clerks – those in Alameda and Los Angeles Counties.  It also applies by its terms to “all persons under the control or supervision of [the] defendants.”  California Attorney General Harris has concluded (see page 5 of her June 3d memorandum) that, under California law, all California county clerks – officers who have responsibilities to issue marriage licenses and otherwise implement state marriage laws – are “under the control or supervision” of two of the named defendants, the Director of the Department of Public Health and the Registrar of Vital Statistics, and therefore those clerks are bound by Judge Walker’s injunction.  The attorney general relies primarily upon language at page 498 of the California Supreme Court opinion in Lockyer v. City and County of San Francisco.  In accord with the attorney general’s interpretation of state law, the state registrar directed all county clerks to issue licenses to same-sex couples as soon as the district court’s injunction became operative on June 28.

The Proposition 8 sponsors, and San Diego County Clerk Dronenburg, disagree on the state-law question:  They argue (see pages 37-43 of the sponsors’ brief to the California Supreme Court; pages 29-34 of Dronenburg’s brief) that neither Lockyer or any other source of California law gives the named defendants supervisory authority over county clerks with respect to issuing marriage licenses.  Therefore, they argue, the fifty-six clerks who were not named defendants in Perry – including Dronenburg – are not bound by any federal injunction, and the state court should accordingly direct those clerks to comply with Proposition 8, which prohibits the issuance of licenses to same-sex couples.  (Dronenburg asks the court to block the state officials from trying to prevent him from denying such licenses.)

The dispute on this first question is purely on a matter of state law, since the effective scope of Judge Walker’s injunction turns on a state-law question – namely, whether certain county officials are controlled or supervised by any of the four named state officials.  (As I mentioned in my earlier post, I do not know enough about California law to assess whether the attorney general’s opinion is correct that county clerks are subject to the supervision of the officials in the Department of Public Health.)

If the California Supreme Court (or a lower state court) reaches this question, and if it concludes that Attorney General Harris is correct in her interpretation of state law, then all fifty-eight clerks will be bound by the federal injunction, and the cases would proceed to the second question (see below).

If, however, the state court holds instead that fifty-six of the clerks, including Dronenburg, are not supervised or directed by any of the named Perry defendant-officials, then presumably that state-court ruling on a question of state law will be determinative, and Judge Walker’s injunction will run only against the two named clerks, in Alameda and L.A. Counties.

Such a decision would not mean, however, that the California court would necessarily order the other fifty-six clerks to deny same-sex marriage licenses, as the sponsors have requested, or would preclude state officials from directing Dronenburg to grant such licenses, because the attorney general likely will argue, in the alternative, that Proposition 8 is unconstitutional in light of Windsor.  Therefore, even if the California Supreme Court holds that fifty-six of the clerks are not bound by Judge Walker’s injunction, the state courts presumably would then proceed to adjudicate the merits of the federal constitutional question – and would enjoin the county clerks from issuing same-sex marriage licenses only if the California Supreme Court ultimately decides that Proposition 8 survives constitutional scrutiny.  After Windsor, I think it is unlikely the state court would reach that conclusion – and if it did, such a decision presumably would be appealed to the U.S. Supreme Court.

The second issue raised by the two state-court petitions is which same-sex couples are protected by Judge Walker’s injunction.  The sponsors and Clerk Dronenburg argue that even the clerks covered by the Walker injunction should be enjoined from issuing marriage licenses to any more same-sex couples, now that the two named plaintiff couples have themselves been married.  There is no dispute that Judge Walker’s injunction was written to protect all same-sex couples in California, not only the four named plaintiffs.  The sponsors and Clerk Dronenburg argue, however, that Judge Walker lacked the power under federal law to issue relief to such nonparties.

Although I previously expressed some sympathy with the merits of the argument that Judge Walker lacked the authority to afford relief to non-plaintiffs, it’s not obvious to me why a state court can do anything about it, even if the federal judge overstepped.  A state court obviously could not, for example, reopen, or quash, a federal court’s injunction on the theory that the federal judge violated federal law.  It’s therefore not surprising that neither the Proposition 8 sponsors nor Clerk Dronenburg are seeking such relief against the federal court, or seeking to have the state court quash or amend the federal court injunction.

Instead, the sponsors are asking the state court to issue a parallel injunction prohibiting the covered clerks from doing what the federal order requires them to do.  That is to say:  The sponsors are asking the California Supreme Court to issue an order to the clerks that would put them in an impossible situation, ordered by one court to do X and by another not to do X.  But just as “state courts are completely without power to restrain federal-court proceedings in in personam actions,” and may not enjoin parties from proceeding in federal court (Donovan v. City of Dallas), so, too, presumably a state court may not in effect order officials not to abide by a federal court injunction.  Not only does the federal court order have supremacy, but it also would presumably be res judicata in the state court proceeding.  I expect, therefore, that the California state courts will decline to issue any injunction that conflicts with Judge Walker’s order, even if they are concerned that Judge Walker acted beyond his jurisdiction.

Moreover, if the state court were to give any sign that they were inclined to issue such an order, it would not be surprising if state officials or other parties were then to ask the federal court to enjoin the state court proceedings, perhaps using the All Writs Act, to effectuate and prevent the frustration of the existing federal court order.

Turns out there is an historical precedent for this “dueling orders” situation . . . and in a famous case, at that.

Back in 1957, a federal district court approved a desegregation plan proposed by the Little Rock School District in response to a lawsuit challenging its so-called “separate-but-equal” schools.  But just as the new school year was to commence, Arkansas Governor Orval Faubus colluded with white parents to file suit in state court, seeking to enjoin the school board from admitting African-American students to Central High School – and, based upon testimony by Governor Faubus of an increase in gun sales in the Little Rock area, the Pulaski County Chancery Court issued the injunction.

At that point, the school board petitioned the federal court for relief from the state-court judgment.  The district judge granted the relief, and the court of appeals affirmed, reasoning in Thomason v. Cooper that the school board had been put between “the upper and the nether millstone.”  (Apparently that was the 1958 Arkansas version of “between a rock and a hard place.”)  The Board “had, in effect, been ordered by the federal court to carry out the plan of school integration, and had by the state court been enjoined from carrying it out. . . .  The federal District Court was certainly not required to permit the decree of the state court to frustrate the judgment and decree of the federal court approving and effectuating the plan of the School Board for the gradual integration of the schools.  A federal court should not, when prompt action is required, be compelled to indulge in useless formalities in protecting its judgments from being emasculated by state court proceedings.”

Even without the aid of the Arkansas state court, Governor Faubus continued to resist the desegregation decree—conduct that led to the landmark Supreme Court decision a few months later in Cooper v. Aaron.

[N.B.:  Clerk Dronenburg also raises yet a third argument:  He claims (at pages 34-36 of his memorandum) that Judge Walker did not have even the authority to enjoin the four California state officials, including the DPH director and the registrar, because those officials do not have the specific authority under state law to direct the clerks to issue, or to deny, marriage licenses.  I'd be surprised if this argument has any traction, not only because the proper place to raise it would be in federal court, but also because the four state officials in question did not themselves interpose such an objection:  It does not appear that they contested Judge Walker's authority to enjoin them.]

Posted in Everything Else

Recommended Citation: Marty Lederman, Untangling the two distinct questions in the new California marriage petitions, SCOTUSblog (Jul. 21, 2013, 5:59 AM), http://www.scotusblog.com/2013/07/untangling-the-two-distinct-questions-in-the-new-california-marriage-petitions/