The 9th Circuit gave notice today that it received a motion to intervene in the pending appeal in Perry v. Schwarzenegger by Chuck Storey, who was elected Imperial County Clerk last year and recently took office. Last fall, the Imperial County Deputy Clerk unsuccessfully sought to intervene as an Appellant in order to lend the standing of a governmental office so that the district court's decision striking down Prop 8 could be appealed. The question whether the Proponents of Prop 8 had standing to appeal is pending before the California Supreme Court and, ultimately, the 9th Circuit, and is the subject of some doubt in light of US Supreme Court precedents under Article III. Neither the governor nor the attorney general nor any other named defendant in the case had sought to appeal, and the lawyers for American Foundation for Equal Rights (AFER), the sponsor of the lawsuit attacking Prop 8, argued that the Proponents do not have standing to appeal in the absence of an appeal by a California public official.
In its January decision rejecting the Deputy Clerk's attempt to intervene, the court suggested that if anybody had standing, it might be the actual elected County Clerk, but surely not the clerk's appointed deputy. "Where is the County Clerk?" rang out from the bench during oral argument. Well, now the County Clerk wants to participate. Is he too late? Will the court reject his motion as untimely? Or will it re-open and schedule a new hearing to determine whether the actual County Clerk has standing, in which case there would be no need to wait for the California Supreme Court to answer the certified question on whether Proponents have standing as a matter of California law, which threatens to delay the case by as much as a year or more.
Postscript added March 2: This week, the newly elected Governor and Attorney General of California were substituted as named respondents in the Prop 8 case appeal, so now the case is known as Perry v. Brown (even more ironic than its original title, seeing as how Brown, when Attorney General, opined that Prop 8 is unconstitutional). Also, briefing was submitted on behalf of Brown and A.G. Harris in support of respondent's petition to lift the stay.
News reports today suggest that Mr. Storey did this on his own without going back to the County Board for authorization. Presumably he relied on their original expression of interest last fall when the Deputy Clerk moved unsuccessfully to intervene. A newspaper report suggests that the Board may not be behind him on this. What that means, I do not know.