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Aimee Dudovitz (SBN 203914) 2 Law Office of David C 1 David C. Codell (SBN 200965) Aimee Dudovitz (SBN 203914) 2 Law Office of David C. Codell 9200 Sunset Boulevard, Penthouse Two 3 Los Angeles, California 90069 Telephone: (310) 273-0306 / Facsimile: (310) 273-0307 4 Shannon Minter (SBN 168907) Courtney Joslin (SBN 202103) 5 National Center for Lesbian Rights 870 Market Street, Suite 570, San Francisco, California 94014 6 Telephone: (415) 392-6257 / Facsimile: (415) 392-8442 7 [Additional attorneys listed on following page] Attorneys in Case No. 03AS07035 for Defendant-Intervenor Equality California 8 and in Case No. 03AS05284 for Defendant-Intervenors Equality California and Michele Graham-Newlan and Debrah Armitage, Willard Kim Halm and Marcellin Simard, 9 Donna Hitchens and Nancy Davis, Deborah Lynn Johnson and Valarie Joi Fiddmont, Christine Kehoe and Julie Warren, Phyllis Lyon and Del Martin, and 10 William Rogers and John Griffith Symons Jon W. Davidson (SBN 89301) 11 Jennifer C. Pizer (SBN 152327) Lambda Legal Defense and Education Fund 12 3325 Wilshire Boulevard, Suite 1300, Los Angeles, California 90010 Telephone: (213) 382-7600 / Facsimile: (213) 351-6063 13 Attorneys in Case No. 03AS07035 for Defendant-Intervenor Equality California 14 and in Case No. 03AS05284 for Defendant-Intervenors Brittany Bouchet and Deven Bouchet, Christopher G. Caldwell and 15 Richard H. Lewellyn, Jr., Frederick Echeverria and Clinton Oie, Mina Meyer and Sharon Raphael, and Kay B. Smith and Carolyn Confer 16 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SACRAMENTO 17 SENATOR WILLIAM J. KNIGHT, et al., ) TO BE FILED IN BOTH CASES 18 Plaintiffs, ) vs. ) Consolidated Cases: 19 ) ARNOLD SCHWARZENEGGER, et al., ) Case No. 03AS05284 20 Defendants, ) Complaint Filed: September 22, 2003 and ) 21 ) Case No. 03AS07035 EQUALITY CALIFORNIA, et al., ) Complaint Filed: September 23, 2003 22 Defendant-Intervenors. ) ) DEFENDANT-INTERVENORS’ 23 RANDY THOMASSON, et al., ) MEMORANDUM OF POINTS AND Plaintiffs, ) AUTHORITIES IN SUPPORT OF 24 vs. ) MOTIONS FOR SUMMARY JUDGMENT, ) OR IN THE ALTERNATIVE FOR 25 ARNOLD SCHWARZENEGGER, et al., ) SUMMARY ADJUDICATION OF ALL Defendants, ) CAUSES OF ACTION, IN 26 and ) CONSOLIDATED CASES ) NOS. 03AS05284 AND 03AS07035 27 EQUALITY CALIFORNIA, ) Defendant-Intervenor. ) Date: July 16, 2004 28 ) Time: 9:00 a.m. _______________________________________ ) Place: Department 54 DEFENDANT-INTERVENORS’ MEMORANDUM IN SUPPORT OF MOTIONS FOR SUMMARY JUDGMENT OR ADJUDICATION 1 Additional Attorneys in Case No. 03AS07035 for Defendant-Intervenor Equality California and in Case No. 03AS05284 for Defendant-Intervenors Equality California and 2 Michele Graham-Newlan and Debrah Armitage, Willard Kim Halm and Marcellin Simard, Donna Hitchens and Nancy Davis, Deborah Lynn Johnson and Valarie Joi Fiddmont, 3 Christine Kehoe and Julie Warren, Phyllis Lyon and Del Martin, and William Rogers and John Griffith Symons 4 Martha Matthews (SBN 130088) 5 ACLU Foundation of Southern California 1616 Beverly Boulevard 6 Los Angeles, California 90026 Telephone: (213) 977-5269 / Facsimile: (213) 250-3919 7 Tamara Lange (SBN 177949) 8 Alan L. Schlosser (SBN 49957) ACLU Foundation of Northern California 9 1663 Mission Street, Suite 460 San Francisco, California 94103 10 Telephone: (415) 621-2493 / Facsimile: (415) 255-1478 11 Jordan C. Budd (SBN 144288) ACLU of San Diego 12 110 West C. Street, Suite 901 San Diego, California 92101 13 Telephone: (619) 232-2121 / Facsimile: (619) 232-0036 14 James D. Esseks (SBN 159360) American Civil Liberties Union Foundation, Lesbian & Gay Rights Project 15 125 Broad Street, 18th Floor New York, New York, 10004 16 Telephone: (212) 549-2627 / Facsimile: (212) 549-2650 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANT-INTERVENORS’ MEMORANDUM IN SUPPORT OF MOTIONS FOR SUMMARY JUDGMENT OR ADJUDICATION 1 TABLE OF CONTENTS 2 TABLE OF AUTHORITIES ................................................................................................ iii 3 I. INTRODUCTION………………………………………………………………….. 1 4 II. PROCEDURAL HISTORY OF THIS LITIGATION……………………………... 4 5 III. STATUTORY BACKGROUND…………………………………………………… 5 6 A. Domestic Partnership Is A Distinct Legal Status Under California Law....... 5 7 1. Local Domestic Partnership Registries 8 (1985 Through The Present)………………………………................ 5 9 2. Assembly Bill 26 (1999).…………………………………................ 5 10 3. Assembly Bill 25 (2001).…………………………………................ 6 11 4. Assembly Bill 205 (2003).………………………………….............. 6 12 B. Enactment of Proposition 22 in March 2000..……………………………… 7 13 IV. LEGAL STANDARDS……....……………………..……………………………… 10 14 A. Summary Judgment Standard Under California Law…………………..…… 10 15 B. Initiative Preemption Analysis Under Article II, Section 10……………..... 11 16 1. Initiative Construction Follows Ordinary Interpretive Rules And Must Not Effectuate A Purpose As To Which The Text And Ballot 17 Materials Are Silent.. …………………..………………………….. 11 18 2. Preemption Analysis Must Guard The People’s Initiative Power, Yet Preserve The Legislature’s Power To Legislate In “Related 19 But Distinct Areas.”.…………………………………….................. 14 20 V. ARGUMENT: PROPOSITION 22 CONCERNS ONLY THE STATUS OF 21 MARRIAGE, NOT DOMESTIC PARTNERSHIP, AND NEITHER AB 25 NOR AB 205 AMENDS IT.………… ...……………………..……………. ...… 15 22 A. Proposition 22 Does Not Concern The Institution Of Domestic Partnership... 16 23 1. The Text Of Proposition 22 Is Silent As To Domestic Partnerships... 16 24 2. The Ballot Materials Did Not Mention Domestic Partnership And 25 Promised Voters That Proposition 22 Would Not “Take Away Anyone’s Rights.”.……………………………………….................. 18 26 a. Official Title And Summary Prepared By The Attorney 27 General.………………………………………....................... 18 28 b. Analysis By The Legislative Analyst………......................... 19 - i - DEFENDANT-INTERVENORS’ MEMORANDUM IN SUPPORT OF MOTIONS FOR SUMMARY JUDGMENT OR ADJUDICATION 1 c. Ballot Arguments…………………..……….......................... 20 2 d. The “Quick Reference Voter Guide”……….......................... 21 3 3. Public Policy Concerns Further Underscore That Proposition 22 4 Has No Impact on Domestic Partnerships or Domestic Partner Benefits..………………………………………................................. 22 5 4. Proposition 22 Must Be Construed To Avoid Constitutional 6 Difficulties Posed By Plaintiffs’ Proffered Constructions................... 24 7 B. Because Proposition 22 Does Not Concern Domestic Partnership And 8 Neither AB 25 Nor AB 205 Affects Marriage, Article II, Section 10(c) Is Not Implicated, Much Less Violated, By AB 25 Or AB 205………..…… 25 9 1. Because AB 25 Confers Only A Small Set Of Rights And 10 Protections, AB 25 Simply Cannot Be Deemed To “Amend” Proposition 22...………………………………………..................... 25 11 12 2. AB 205 Falls Far Short Of Giving Domestic Partners All The Rights and Responsibilities Of Marriage, And Would Not Amend 13 Proposition 22 If It Did………………………................................ 27 14 VI. CONCLUSION …………………………………………....……………………… 30 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - ii - DEFENDANT-INTERVENORS’ MEMORANDUM IN SUPPORT OF MOTIONS FOR SUMMARY JUDGMENT OR ADJUDICATION 1 TABLE OF AUTHORITIES 2 CASES 3 Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826………………………………………………………………. 10 4 Amwest Surety Ins. Co. v. Wilson 5 (1995) 11 Cal. 4th 1243…………………………………………………………….. 14 6 Baehr v. Lewin (Haw. 1993) 74 Haw. 530, 852 P.2d 44…………………………………………….. 8 7 Baker v. State 8 (Vt. 1999) 170 Vt. 194, 744 A.2d 864……………………………………………… 8 9 Center for Public Interest Law et al. v. Fair Political Practices Comm’n, et al. (1989) 210 Cal. App. 3d 1476………………………………………………………. 11 10 Day v. City of Fontana 11 (2001) 25 Cal. 4th 268…………………………………………………………… 11, 17 12 Hodges v. Superior Court (1999) 21 Cal. 4th 109……………………………………………………………... passim 13 Horwich v. Superior Court 14 (1991) 21 Cal. 4th 272……………………………………………………………..12, 16, 17 15 In re Bir’s Estate (1948) 83 Cal. App. 2d 256………………………………………………………… 18 16 In re Opinions of the Justices to the Senate 17 (Mass. 2004) 440 Mass. 1201, 802 N.E. 2d 565……………………………………. 3, 30 18 Marvin v. Marvin 19 (1976) 18 Cal. 3d 660…………..…………………………… …………….………. 22 20 Michael H. v. Gerald D. (1989) 491 U.S. 110 ………………………………………… ……………………. 23 21 Mobilepark West Homeowners Ass’n v. Escondido Mobilehomepark West 22 (1995) 35 Cal. App. 4th 32………………………………………………………… 14 23 People v. Amor (1974) 12 Cal. 3d 20………………………………………………………………… 12, 24 24 People v. Badgett 25 (1995) 10 Cal. 4th 330………………………………………………………………. 8 26 People v. Cooper (2002) 27 Cal. 4th 38……………………………………………………………….. 11, 14 27 People v. Rizo 28 (2000) 22 Cal. App. 4th 681………………………………………………………… 11 - iii - DEFENDANT-INTERVENORS’ MEMORANDUM IN SUPPORT OF MOTIONS FOR SUMMARY JUDGMENT OR ADJUDICATION 1 Proposition 103 Enforcement Project v. Quackenbush (1998) 64 Cal. App. 4th 1473………………………………………………………… 14 2 Romer v. Evans 3 (1996) 517 U.S. 620…………………………………………………………………. 24, 25 4 Rosales v. Battle (2003) 113 Cal. App. 4th 1178 ……………………………………………………..3, 27-28 5 Sharon S. v. Superior Court (Annette F.) 6 (2003) 31 Cal. 4th 417……………………………………………………………22, 23, 27 7 Timbridge Enters., Inc. v. City of Santa Rosa (1978) 86 Cal. App. 3d 873………………………………………………….………… 10 8 Trutalli v. Meraviglia 9 (1932) 215 Cal. 698…………………………………………………………………. 22 10 Whorton v. Dillingham (1988) 202 Cal. App. 3d 447................................................................................. … 22 11 12 CONSTITUTIONAL PROVISIONS, STATUTES, AND RULES 13 1 U.S.C. § 7 ..........................................................................................................................
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