Thursday, November 19, 2009

Perry v. Proposition 8 Official Proponents (9th Cir. - Nov. 19, 2009)Nov.

I teach it to my first-year students in civil procedure. But apparently the lesson hasn't filtered down to lawyers for the Liberty Counsel in Lynchburg, Virginia.

Here's the scoop: You can't intervene in a lawsuit if your only beef with an existing party is over litigation strategy. Especially when, as here, your strategic beefs are totally minor.

(And, I might unnecessarily add, completely stupid. Yeah, maybe the Liberty Counsel wouldn't stipulate to the fact that homosexuals have had a history of discrimination -- which is exactly one of their beefs here. But counsel for the Proposition 8 Official Proponents are willing to do so, even as part of a spirited defense of Proposition 8, because they're smart. Particularly when that stipulation (1) is not only indisputably true, but (2) there's already a Ninth Circuit case directly so holding.)

We say that intervention as a matter of right in such settings is unavailable because you are "adequately represented" by the existing parties. Which is clearly the case here.

Judge McKeown crushes on this one. It's not even close.