Wednesday, January 27, 2010

Imperial County Tries to Intervene in Federal Marriage Case

Prop. 8 Supporters May Need a Government Plaintiff to Appeal

Last December 15, local marriage equality activist Fernando Lopez found himself involved in the marriage equality issue in an unexpected way when the Board of Supervisors in Imperial County voted 3-2 to intervene in Perry v. Schwarzenegger, the federal court challenge to California’s Proposition 8.

According to Lopez, the Alliance Defense Fund, one of the organizations involved first in passing Proposition 8 and then defending it in court, sought out Imperial County Board of Supervisors chair Wally Leimgruber and asked him to get the county involved in the case. Lopez said that the Alliance Defense Fund offered to pay all costs for the county if it agreed to intervene in the case on the side of upholding Proposition 8. Leimgruber told the Web site that the Board was acting in the interest of the more than 69% of country voters who supported Proposition 8, to “uphold what they voted on.”

“Wally’s up for re-election, and so with the conservative base there he took it up and brought it to the board,” Lopez recalled. “It actually wouldn’t have passed, but one of the seats there was just vacated by a progressive Democrat, and Governor Schwarzenegger appointed a Republican to fill his seat. So it passed on a 3-2 vote.”

One complaint from marriage equality supporters about Imperial County’s action was that it came without public notice. California’s landmark open meetings law, the Ralph M. Brown Act of 1959, prohibits elected officials and government agencies from acting in secret, with only a few narrow exceptions. According to officials of the American Civil Liberties Union (ACLU), “the Supervisors treated the item as an ‘emergency exception,’ but their petition to the court…shows the Board members have been discussing the issue for weeks.” The ACLU is investigating any possible Brown Act violations.

“The fact that they were doing that kind of back-door dealing, and we were able to expose what the opposition is doing and trying to do, shows that they know they have a really good chance that they’re going to lose and we’re going to win,” Lopez told Zenger’s.

Speaking as an Imperial County native as well as a national board member of Marriage Equality USA (MEUSA), Lopez said that just because Proposition 8 carried Imperial County with 69 percent of the vote, that doesn’t necessarily mean the voters still feel that way. “Having grown up in Imperial County and visiting my friends and neighbors there post-Proposition 8. I have witnessed an ongoing change of hearts towards supporting marriage equality,” Lopez said in a MEUSA press release. “If the Board of Supervisors truly wanted to support the will of the people of Imperial County, this decision would have been made in the light of day, with a fair and open process — not in a secret agenda item. It is clear that the public was not informed that this decision was pending, or given an opportunity to voice concerns about the issue.”

“I am outraged that the local elected officials paid with my tax dollars have secretly voted to attack our families with this mean-spirited intervention in co-hoots with anti-Gay organizations,” said Lopez’s father, Imperial County resident Fernando Lopez, Sr. “I plan to make them accountable for the misuse of our resources. There is no reason our county should be involved in this case.”

In the same release, Molly McKay, MEUSA media director, said that Imperial County had missed the deadline to insert itself into the litigation. “The time to intervene in this case is over,” McKay said. “We are disappointed in the Supervisors’ judgment and the way this secret vote was taken without a public hearing process. The counties stand to lose revenue if Proposition 8 stands and there is no county-based interest in supporting Proposition 8 other than prejudice and bias.”

Lopez later said that the court hearing Perry v. Schwarzenegger hasn’t actually ruled on Imperial County’s request to intervene. “It turns out they didn’t file the paperwork correctly,” Lopez told Zenger’s. “The judge still heard their request, but he didn’t make a ruling one way or another before the case started, so it’s doubtful that they’ll be allowed to intervene.”

In his Zenger’s interview, Lopez also explained (better than MEUSA had in their press release) just what the significance of Imperial County’s action is. “The state legislature is not going to appeal this case if we win in the lower courts,” Lopez said. “Governor Schwarzenegger is probably not going to appeal this. And there’s some question as to whether the Proposition 8 campaign and the other people who’ve intervened on behalf of Proposition 8 even have the legal standing to appeal. So they needed a municipality. The opposition needed a municipality to get involved so they could ‘protect the rights of the voters.’”