1:12-cv-00589 #96

UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

CIVIL ACTION FILE NO. 1:12-CV-589-WO-JEP

MARCIE FISHER-BORNE, et al.;

Plaintiffs,

vs.

JOHN W. SMITH, et al.;

Defendants.

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STATE DEFENDANTS’ REPLY

TO PLAINTIFFS’ CONSOLIDATED

RESPONSE

Plaintiffs filed this action initially to challenge North Carolina’s adoption laws. They later

amended the lawsuit by adding Equal Protection and Due Process challenges to North Carolina’s

marriage laws. [DE 40]. Approximately two years after the filing of the original complaint, Plaintiffs

Shana Carignan and Megan Parker filed a motion for a preliminary injunction on April 9, 2014. [DE 75].

Defendants JOHN W. SMITH, in his official capacity as the Director of North Carolina Administrative

Office of the Courts; THE HONORABLE DAVID L. CHURCHILL, in his official capacity as Clerk of the

Superior Court for Guilford County; THE HONORABLE ARCHIE L. SMITH III, in his official capacity

as Clerk of the Superior Court for Durham County; ROY A. COOPER, in his official capacity as the

North Carolina Attorney General , (collectively referred to as the “State Defendants”), moved to dismiss1

Plaintiffs’ Amended Complaint, filed a response in opposition to Plaintiffs’ motion for preliminary

injunction, and filed a motion to stay the proceedings pending an opinion of the Fourth Circuit Court

of Appeals in the case of Bostic v. Schaefer. [DE 65, 66, 84, 85, 88]. Plaintiffs responded by opposing

Pending before the court is the parties' proposed consent order that reflects the dismissal of the Attorney1

General as a named party-defendant, and a contemporaneous agreement to amend the case caption to include theAttorney General as an Intervenor on behalf of the State of North Carolina.

Case 1:12-cv-00589-WO-JEP Document 96 Filed 05/22/14 Page 1 of 10

the State Defendants’ motion to stay. [DE 91]. By and through the undersigned attorneys, the State

Defendants now submit the following Reply to Plaintiffs’ consolidated response . 2

In addition to the argument infra, the State Defendants also rely on arguments that have been

propounded in their motion to dismiss and supporting brief, their response in opposition to Plaintiffs’

motion for preliminary injunction, their motion to stay proceedings and attendant supporting brief, which

are incorporated herein by reference. [DE 65, 66, 84, 85, 88].

ARGUMENT

Plaintiffs argue that this Court should reject the State Defendants’ motion for stay because (1)

“Plaintiffs’ challenge to North Carolina’s adoption laws are [sic] not the issue in Bostic,” (2) “[w]hatever

merits there may be in staying relief ..., there is absolutely no merit or justification to stay this matter and

deprive Plaintiffs even of their ability to attempt to prove their claims,” and, (3) because Defendants have

purportedly failed to meet their burden of persuasion sufficient to warrant a stay. [DE 91 pp 7, 11-16].

Plaintiffs’ argument is inconsistent with pertinent issues and standards.

I. THE IMPENDING FOURTH CIRCUIT’S OPINION IN BOSTIC v. SCHAEFER WILL

SIGNIFICANTLY IMPACT THE JURISPRUDENCE APPLICABLE TO THE INSTANT

MATTER, MAKING IT AN APPROPRIATE CASE IN WHICH TO ORDER A STAY.

With their motion to stay and supporting brief, the State Defendants established that the

interests of judicial efficiency weigh heavily in favor of ordering a temporary stay. [DE 84, 85] However,

Plaintiffs claim that they “are not asking the Court to predict what the Fourth Circuit will do in Bostic.”

On April 29, 2014, State Defendants consented to Plaintiffs’ request to submit a single2

consolidated memorandum addressing their respective positions regarding the motion for preliminaryinjunction and motion for stay for the convenience of the court.

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[DE 91 p 13]. Instead, they ask the Court to apply “the law as it exists today” [Id.]. Plaintiffs further

argue that because second-parent adoption statutes are not at issue in Bostic, the Fourth Circuit “is

unlikely to resolve” the unique issues herein. [Id. p 13]. Those arguments are inaccurate.

With their response, Plaintiffs acknowledge the State Defendants’ argument that Bostic may

have significant precedential impact upon this matter. [DE 91 p 22]. While it is true that second-parent

adoption issues are not likely to be addressed with Bostic, if the Fourth Circuit concludes that the

definition of marriage as being a union between one man and one woman is irrational, or otherwise

unconstitutional, the adoption issue posed by the instant matter will be contemporaneously resolved:

married Plaintiffs will be able to apply for second-parent adoption. In other words, the second-parent

adoption challenge raised by the instant matter is derivative of the same-sex marriage issue, and no

further judicial action on the issue of adoption will be necessary.

If a plurality of the Fourth Circuit panel in Bostic concludes that the historic definition of marriage

employed by those Plaintiffs violates neither the Equal Protection Clause nor Due Process rights, this

Court’s and parties’ resources will be streamlined and focused on resolving the single, narrow issue of

whether North Carolina’s adoption laws limiting adoptions to married couples or to single individuals

feature a rational, Constitutional basis. Irrespective of the outcome in Bostic, judicial economy

(recognized as a valid factor by Plaintiffs [DE 91 pp 12-13]), is preserved only by the requested stay.

Moreover, the advanced appellate posture of Bostic is compelling, unique, and creates the ideal

environment for a stay. Unlike the three lower court cases from the Sixth Circuit, relied upon by

Plaintiffs in their response, [DE 91, p 16], the Fourth Circuit has expedited the appellate schedule, and

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has already heard oral arguments in Bostic. Because of this expedited schedule, it is expected that an

opinion will be soon rendered during the course of the next several weeks. For the reasons cited in the

State Defendants’ brief in support of their motion to stay, [DE 85], this Court should exercise its broad

discretion and stay the proceedings herein “for economy of time and effort for itself, for counsel, and for

litigants.” Landis v. N. Am. Co., 299 U.S. 248, 254 (1936).

II. THE STATE DEFENDANTS HAVE MET THEIR BURDEN TO WARRANT THE STAY.

Contrary to Plaintiffs’ argument, the State Defendants delineated the correct standard for the

evaluation of motions for preliminary injunction and motions to stay, and further proffered compelling

arguments as to why those motions should be decided in favor of the State Defendants. For the

reasons previously described in the State Defendants’ brief opposing Plaintiffs’ motion for preliminary

injunction, Plaintiffs have failed to meet their heavy burden of persuasion sufficient to satisfy the four

elements necessary to permit the grant of the extraordinary remedy of injunction. [DE 88 pp 2-4].

With their consolidated memorandum, Plaintiffs rely on their claim that irreparable harm will

occur if the injunction is not granted, yet fail to demonstrate how their individual circumstances present

exigencies such that a stay of several weeks or months (the likely time-frame for the Fourth Circuit’s

opinion in Bostic) will work a substantial harm that cannot be reversed. If the definition of marriage as

a union between a man and a woman is ultimately found to be unconstitutional, Plaintiffs will be able

to marry and address the harms they allege.

Predicated upon lower court opinions of other circuits, Plaintiffs argue that they are likely to

prevail even in the face of Fourth Circuit’s contrary precedent which provides that the deferential rational

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basis standard of review is applicable. Plaintiffs’ argument that a stricter level of review should apply3

and their opposition to a stay is inconsistent with the doctrine of stare decisis, and fails short of the

required proof that Plaintiffs are likely to succeed on the merits. See Veney v. Wyche, 293 F. 3d 726

(4th Cir. 2002); Thomasson v. Perry, 80 F.3d 915, 928 (4th Cir.), cert. denied, 519 U.S. 948 (1996); see

also Goulart v. Meadows, 345 F.3d 239, 260 (4th Cir. 2003). At the same time, the State Defendants

have outlined a number of reasons for the proposition that North Carolina’s definition of marriage is

rational. [DE 38 pp 16-17]. Absent a contrary ruling from the Court of Appeals for the Fourth Circuit,

or the Supreme Court of the United States, Plaintiffs have failed to carry their burden of persuasion

sufficient to warrant immediate injunctive relief.

As the State Defendants have previously noted, Bostic may also render this Court’s

determinations as moot, cause them to be overruled, or warrant remand for further (and different)

proceedings. Moreover, allowing the requested stay pending the opinion in Bostic will avoid the

complex practical ramifications flowing from the alteration of statewide status quo regarding marriage,

and preserve North Carolina’s ability to decide domestic issues without federal intervention. These

various reasons provide further grounds to order the temporary stay.

Contrary to Plaintiffs’ arguments [DE 91 p 10], neither Veney v. Wyche, 293 F. 3d 726 (4 Cir.3 th

2002), nor Thomasson v. Perry, 80 F.3d 915 (4th Cir. 1996), in any way relied upon or referred to theoverruled case, Bowers v. Hardwick, 478 U.S. 186 (1986). Opinions in Veney and Thomasson are goodlaw that is binding until overruled by the Fourth Circuit or the Supreme Court of the United States.

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III. OTHER FEDERAL COURTS, INCLUDING THE COURT IN THE WESTERN DISTRICT OF

NORTH CAROLINA, HAVE GRANTED STAYS IN SIMILAR CASES.

In support of the motion to stay,[DE 84, 85], the State Defendants rely upon a line of cases

where similar stays have been granted. Recently, in a same-sex marriage case pending in the

Asheville division, the federal court in the Western District of North Carolina issued a stay of all

proceedings pending the Fourth Circuit’s decision in Bostic. McCrory v. The State of North Carolina, No.

1:14-cv-65 (W.D.N.C. May 19, 2014). [Exh A]. However, the most significant stay in cases addressing

the issue of same-sex marriage was ordered by the Supreme Court of the United States, after the lower

court and the appellate court refused to stay proceedings as requested by the State of Utah. See

Herbert v. Kitchen, 134 S. Ct. 893 (2014). As has been noted by the State Defendants and other

federal courts, the interim lack of a stay in Utah created an uncertain legal environment in which neither

the Courts, the public officials, nor the various plaintiffs knew what rights, if any, had been permanently

afforded. A stay in the instant matter forestalls the complex ramifications that are likely to arise by virtue

of a premature decision on the issues, for which binding precedent is currently being contemplated by

the Fourth Circuit. In his concurring opinion to grant a stay pending the appeal in the Idaho same-sex

marriage case, Judge Hurwitz of the Ninth Circuit noted that, regardless of the perceived strength of the

plaintiffs’ argument on the merits: “...I believe that the Supreme Court, in Herbert v. Kitchen, 134 S. Ct.

893 (2014), has virtually instructed courts of appeals to grant stays in the circumstances before us

today.” Latta v. Otter, No. 14-35420 (9th Cir., May 20, 2014). [Exh B]. The stay requested by State

Defendants is clearly appropriate in the instant case.

Plaintiffs further contend that, while there may be merit in staying the relief afforded by a

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preliminary injunction, there is no reason the Court should refrain from actually offering its opinion that

such an injunction is warranted. [DE 91 pp 15-16]. That contention ignores the import of the opinion in

Herbert, and the main rationale behind the propriety of a stay - the preservation of judicial economy and

integrity. The issuance of an injunction, with a simultaneous stay of the judgment thereon, would offer

no practical effect upon or relief for the parties despite the expenditure of the Court’s and litigants’

resources, and will potentially create uncertainty in North Carolina as to the legal status of same-sex

couples. The stay is appropriate and prudent now, at this procedural juncture.

Finally, it should be noted that these two cases have been asserted roughly simultaneously to

two other same-sex marriage challenges in North Carolina. The possibility certainly exists that, if

decided prior to the Fourth Circuit’s opinion in Bostic, conflicting orders and opinions may be offered by

the various Courts. A stay of these cases serves the interests of uniformity of jurisprudence, and equal

application of the law, as described by Bostic, to all of North Carolina’s citizens. Given that a decision

in Bostic is forthcoming, a stay of all proceedings is the most prudential and considered course of action

in this matter.

CONCLUSION

For the foregoing reasons, this Court should deny Plaintiffs’ motion for preliminary injunction

and order a stay of all proceedings pending the Fourth Circuit’s opinion in Bostic. Alternatively, the

State Defendants respectfully request the Court to stay the judgment on any decision potentially

unfavorable to the State pending appeal of that decision to the Fourth Circuit.

Respectfully submitted, this the 22nd day of May, 2014.

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ROY COOPER

North Carolina Attorney General

/s/ Amar Majmundar

Amar Majmundar

Special Deputy Attorney General

North Carolina State Bar No. 24668

N.C. Department of Justice

Post Office Box 629

Raleigh, NC 27602

Telephone: (919) 716-6821

Facsimile: (919) 716-6759

Email: [email protected]

/s/ Olga E. Vysotskaya de Brito

Olga E. Vysotskaya de Brito



North Carolina Department of Justice

Post Office Box 629

Raleigh, NC 27602

Telephone: (919) 716-0185

Facsimile: (919) 716-6759


/s/ Charles Whitehead

Charles G. Whitehead



N.C. Department of Justice

Post Office Box 629

Raleigh, North Carolina 27602

Telephone: (919) 716-6840

Facsimile: (919) 716-6758


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mailto:[email protected]



CERTIFICATE OF SERVICE

I hereby certify that on the 22nd day of May, 2014, I electronically filed the foregoing STATE

DEFENDANTS’ REPLY with the Clerk of the Court using the CM/ECF system which will send

notification of such filing to all counsel of record.

/s/ Olga E. Vysotskaya de Brito

Olga E. Vysotskaya de Brito


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* Ef,[email protected]=u

IN THE UNITED STATES DISTRICT COURTFOR THE WESTERN DISTRICT OF NORTH CAROLINA

ASHEVILLE DIVISION1:14cv65

CAROL MCCRORY and BRENDACLARK,

Plaintiffs,

v.

THE STATB OF'NORTHCAROLINA, et al.,

Defendants.

ORDER

Pending before the Court is the Motion to Stay t# 8]. Defendants move to

stay this case pending a ruling from the United States Court of Appeals for the

Fourth Circuit in Bostic v. Rainey. Previously, the Court directed Plaintiffs to

respond to the Motion to Stay and granted Defendants an extension of time until

June 10, 2074, to answer or otherwise respond to the Complaint. Upon a review

of the record, the parties' briefs, and the relevant legal authority, the Court

GRANTS the motion [# 8].

I. Analysis

As the United States Supreme Court has explained, "the power to stay

proceedings is incidental to the power inherent in every court to control the

-1-

Case 1:14-cv-00065-MR-DLH Document 13 Filed 05/19/L4 Page 1 of 3

Case 1:12-cv-00589-WO-JEP Document 96-1 Filed 05/22/14 Page 1 of 3

disposition of the causes on its docket with economy of time and effort for itself

for counsel, and for litigants." Landis v. North American Co. ,299 U.S. 248,254-

55,57 S. Ct. 163,166 (1936). "The determination by a district judge in granting or

denying a motion to stay proceedings calls for an exercise ofjudgment to balance

the various factors relevant to the expeditious and comprehensive disposition of the

causes of action on the court's docket." United States v. Georgia Pacific Corp.,

562F.2d294,296 (4th Cir. 1977); see also Maryland v. Universal Elections. Inc.,

729F.3d370,375 (4th Cir. 2013).

The Court finds that staying this case pending the resolution of Bostic in the

Fourth Circuit is the most efficient means of managing these proceedings.

Although Bostic concerns the constitutionality of Virginia's legislated prohibition

on same-sex marriage, see Bostic v. Rainey, Civil No. 2:13cv395, 2014 WL

561978 (E.D.Va. Feb. 13,2014),the analysis of the constitutional issues before

the Fourth Circuit will be extremely pertinent, if not dispositive, of the issues in

this case - namely, whether North Carolina's marriage laws that define marriage as

between a man and a woman are constitutional. The Court finds that it would be

a waste ofjudicial resources, as well as the resources of the State and the Plaintiffs,

to move forward in this case prior to a decision in Bostic. Put simply, the outcome

in Bostic will in all likelihood shape the outcome of this litigation.

1'L-

Case 1:14-cv-00065-MR-DLH Document 13 Filed 05/19/14 Page 2 ot 3


Although the Court recognizes that a stay will delay these proceedings, the

stay will be minimal and will ultimately lead to the more efficient resolution of this

case. A panel for the Fourth Circuit has already heard oral argument in Bostic;

decision is forthcoming. Moreover, the stay is not indefinite as Plaintiffs fear.

Because this Court is bound to follow the law as set forth by the Fourth Circuit,

any decision in Bostig will be binding on this Court, regardless of whether the

Supreme Court ultimately addresses the issue. Thus, the Court will only stay these

proceedings pending a final decision by the Fourth Circuit in Bostic. Finally, the

Court notes that there is not a motion for preliminary injunction pending in this

case. Accordingly, the Court GRANTS the motion t# 81.

II. Conclusion

The Court GRANTS the Motion to Stay t# Sl. The Court STAYS this case

pending a ruling from the United States Court of Appeals for the Fourth Circuit in

Bostic v. Rainey. Either party may move to lift the stay in this case ten (10) days

after the entry of a decision by the Fourth Circuit.

Signed: May 19,2014

Dennis L. HowellUnited States Magistrate Judge

..,-,-4r{.. r,

r'?&::al3'.": *iu,;

a-J-

Case 1:14-cv-00065-MR-DLH Document 13 Filed 05/19/14 Page 3 of 3


Case: L4-3542A A5|2A!2AL4 lD: 9103320 DktEntry: 11

LINITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Page: 1 o

FI

g EXHIBITI5EB.2

-v--(,=Ud

MAY 20 2014

MOLLY C. DWYER, CLERKU.S. COURT OF APPEALS

SUSAN LATTA; et aI.,

Plaintiffs - Appellees,

V.

C. L. OTTER, "Butch"; Govemor of theState of Idahoo in his official capacrty,

Defendant - Appellant,

and

CHRISTOPHER RICH, Recorder of AdaCounty, Idaho, in his official capacity,

Defendant,

STATE OF IDAHO,

Intervenor-D efendant.

SUSAN LATTA; et aI.,

Plaintiffs - Appellees,

V.

C.L. OTTER, "Butch"; Governor of theState of Idaho, in his official capacity,

No. 14-35420

D.C. No. 1 : 13-cv-00482-CWDDistrict of Idaho,Boise

ORDER

No. l4-35421

D.C. No. I : 1 3-cv-00482-CWDDistrict of Idaho,Boise

ATA4OATT


L4-3542A AsftAlZAL4 lD: 91"03320 DktEntry: 1-1 Page: 2 of 5

Defendant,

and

CHRISTOPHER RICH, Recorder of AdaCounty, Idaho, in his official capacity,

Defendant - Appellant,

STATE OF IDAHO,

Intervenor-Defendant -

Appellant.

Before: LEAVY, CALLAHAN, and HURWITZ, Circuit Judges.

Appellants' motions to stay the district court's May 13, 2014 order pending

appeal are granted. See Herbert v. Kitchen,l43 S.Ct. 893 (2014).

The court sua sponte expedites the briefing and calendaring of these appeals.

The previously established briefing schedule is vacated. The opening brie(s) are due

June 19, 2014; the answering brief(s) are due July 18,2014; and the optional reply

brief(s) are due within 14 days after service of the answering brief(s). The provisions

of Ninth Circuit Rule 3l-2.2(a) (pertaining to grants of time extensions) shall not

apply to these appeals.

These appeals shall be calendared during the week of Septernb er 8,2014, at The

James R. Browning Courthouse in San Francisco, California.

AT/]VIOATT t4-35420, r4-35421


Case: L4-35420 O5l2Al2AL4 lD: 9103320 DktEntry: 11 Page: 3 of 5

HURWIT Z, Ctcurt Judge, concurring :

I concur in the order granting the stay pending appeal. But I do so solely

because I believe that the Supreme Court, in Herbert v. Kitchen, 134 S. Ct. 893

(2014), has virtually instructed courts of appeals to grant stays in the circumstances

before us today. If we were writing on a cleaner state, I would conclude that

application of the familiar factors in Nken v. Holder,556 U.S. 418,434 (2009),

counsels against the stay requested by the Idaho appellants.

Under Nken, we consider a stay application under a four-factor test:

"(l) whether the stay applicant has made a strong showing that he is likely to succeed

on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3)

whether issuance of the stay will substantially injure the other parties interested in the

proceeding; and (4) where the public interest lies." Id. at 434 (quoting Hilton v.

Braunskill,4Sl U.S. 770, 776 (1987)) (internal quotation marks omitted). I do not

think the Idaho appellants have made a strong case on any of these grounds.

It is almost certain that the Supreme Court will eventually resolve the merits of

this appeal, and I do not venture to predict the Court's ultimate conclusion. But, in

light of this court's recent decision h SmithKline Beecham Corp. v. Abbott

Laboratories, 740 F.3d 471 (9th Cir. 2014),I find it difficult to conclude that the

Idaho ban on same-sex marriage would survive interim Ninth Circuit review.

AT/MOATT t4-35420, 14-35421


Case: 14-3542A ASl2Ol2A1.4 lD: 9103320 DktEntry: 11 Page: 4 at 5

SmithKline applied "heightened scrutiny to classifications based on sexual orientation

for purposes of equal protection ." Id. at 484. Given that high burden, it is difficult

to see how the Idaho appellants can make a "strong showing" that they will prevail in

their defense of a measure that denies the individual appellees the right to marry

because of their sexual orientation.

Nor have the Idaho appellants demonstrated that they will be irreparably

harmed without a stay. The irreparable harm justif,zing a stay must be posed to the

parties seeking a stay, not to others. Leiva-Perez v. Holder,640 F.3d962,969 (gth

Cir. 20l l). Any harm resulting from the possible invalidity of marriage licenses

isstedpendente liteto same-sex couples would be primarily suffered by the plaintiffs,

not the State.

In contrast, the issuance of a stay undoubtedly poses harm to the plaintiffs.

Deprivation of constitutional rights, "for even minimal periods of time,

unquestionably constitutes irreparable injury." Elrod v. Blurns,427 U.5.347,373

(1976). And, as the district court noted, from "the deathbed to the tax form, property

rights to parental rights," marriage "provides unique and undeniably important

protections." Lattav. Otter,No. 1:13-CV-00482-CWD,20l4WL 1909999,at*z(D.

Idaho May 13,2014).

ATA4OATT 14-35420, l4-35421


Case: L4-35420 05120120L4 lD: 9103320 DktEntry: 11 Page: 5 of 5

The public interest question is somewhat closer, but without guidance from a

higher court, I would not find that itjustified a stay. But it seems evident that the

Supreme Court harbors a different view. Just five months ago, a district court

enjoined the State of Utah from enforcing its prohibition on same-sex maniage.

Kitchen v. Herbert, 96l F. Supp. 2d 1l8l (D. Utah 2013). The district court denied

the State's motion for a stay pending appeal, Kitchen v. Herberf, No. 2:13-CY-217,

2013 WL 6834634(D.Utah Dec.23,2013),andthe next day, two judges of the Tenth

Circuit did the same, Kitchen v. Herberf, No. 13-4178 (1Oth Cir. Dec. 24,2013).

On January 6,2}l4,the Supreme Court granted the State's application for a

stay pending the disposition of the appeal in the Tenth Circuit. Herbert v. Kitchen,

134 S. Ct. 893 (2014). Althoughthe Supreme Court's terse two-sentence order did

not offer a statement ofreasons, I cannot identify anyrelevant differences between the

situation before us today and Herbert. And, although the Supreme Court's order in

Herbert is not in the strictest sense precedential, it provides a clear message-the

Court (without noted dissent) decided that district court injunctions against the

application of laws forbidding same-sex unions should be stayed at the request of state

authorities pending court of appeals review.

For that reason, I concur in the court's order today granting a stay pending

resolution of this appeal.

ATA4OATT t4-35420,14-35421


Documents

1:12-cv-00589 #96