on Friday the San Diego county clerk, Ernest Dronenburg, filed a 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.
The fate of the petition 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 question 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. 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 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.
If, the state court holds 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.In light of Windsor(DOMA), it is highly unlikely that the Court would allow Dronenburg’s petition to succeed.
(Virtually all of this is their writing, not mine. I thought it would be good to provide their insight here though).