Smelt v. Superior Court
Filed 5/2/06 Smelt v. Superior Court CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
| ARTHUR B. SMELT et al., Petitioners, v. THE SUPERIOR COURT OF ORANGE COUNTY, Respondent; BRUCE McPHERSON, as Secretary of State, etc., Real Party in Interest. | G036304 (Super. Ct. No. 05FL001087) O P I N I O N |
Original proceedings; petition for a writ of mandate to challenge an order of the Superior Court of Orange County, Nancy Pollard, Judge. Petition granted.
Law Offices of Gilbert & Marlowe, Richard C. Gilbert and Diane J. Marlowe for Petitioners.
Bill Lockyer, Attorney General, and Hiren Patel, Deputy Attorney General, for Real Party in Interest.
Petitioners Arthur Smelt and Christopher Hammer seek extraordinary relief from an order denying their motion to set aside the termination of their domestic partnership and dismissing their complaint. The trial court dismissed the action because it mistakenly assumed it lacked subject matter jurisdiction. We issue a peremptory writ of mandate in the first instance directing the trial court to decide the case on the merits.
I
Background
Petitioners are two males who are involved in federal court litigation testing the constitutionality of California's man-woman marriage laws and the federal Defense of Marriage Act. In 2000, they applied for and received a Declaration of Domestic Partnership from the State of California. In 2004, petitioners tried to obtain a marriage license in Orange County and, failing that, filed suit against the county, and others, in federal court.
On December 16, 2004, petitioners filed a â€
