14-31037 - Motion to Expedite

8/11/2019 14-31037 - Motion to Expedite

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No. 14-31037

In the United States Court of Appeals for the Fifth Circuit

J ONATHAN P. ROBICHEAUX , et al.,

Appellants ,v.

J AMES D. C ALDWELL , et al. ,

Appellees ______________________

A PPELLEES U NOPPOSED M OTION

TO E XPEDITE B RIEFING AND O RAL A RGUMENT ______________________

Pursuant to Fifth Circuit Rule 34.5, Appellees ask the Court to set

an abbreviated briefing schedule in this appeal and to advance it for

argument at the same time and before the same panel as the pending

appeal in De Leon v. Perry , No. 14-50196. See 5TH C IR . R. 34.5

(providing the Court may for good cause on motion of either party

advance any case for argument, and prescribe an abbreviated briefing

schedule). There is extraordinary cause for this motion: unless briefing

and argument are expedited, the constitutional validity of Louisianas

marriage laws will be settled by the De Leon appeal, which involves the

validity of Texass marriage laws. Appellants do not oppose this motion.

Case: 14-31037 Document: 00512776076 Page: 1 Date Filed: 09/19/2014


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1. This appeal arises from Judge Martin L.C. Feldmans decision

upholding Louisianas marriage laws against constitutional challenge

under the Fourteenth Amendment. Robicheaux v. Caldwell , __

F.Supp.2d __, 2014 WL 4347099 (E.D. La. Sept. 3, 2014), appeals

docketed , No. 14-31037 (5th Cir. Sept. 3-4, 2014). That decision is the

mirror opposite of the De Leon decision from the Western District of

Texas, which enjoined Texass marriage laws under the Fourteenth

Amendment. De Leon v. Perry , 975 F.Supp.2d 632 (W.D. Tex. 2014),

appeal docketed , No. 14-50196 (5th Cir. Mar. 1, 2014). De Leon will be

fully briefed by October 10 but has not been set for argument. Because a

decision in De Leon will impact Louisianas marriage laws, Appellees

move to expedite briefing and argument in Robicheaux so that theCourt may hear argument by the same panel as De Leon and dispose of

the appeals at the same time. (Appellees do not, however, ask that this

appeal be consolidated with De Leon ).

2. The lower court decisions in Robicheaux and De Leon address

identical constitutional claims against substantively identical state

marriage laws. Compare Robicheaux , 2014 WL 4347099, at *1 (noting

Plaintiffs claims that Louisianas refusal to license or recognize same-



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sex marriages violates equal protection and due process), with De Leon ,

975 F.Supp.2d at 639 (noting identical claims against Texass marriage

laws). The two decisions reach opposite conclusions: Robicheaux ruled

that Louisianas retention of the man-woman definition of marriage in

2004 did not offend the Fourteenth Amendment; De Leon ruled that the

same policy decision by Texas in 2005 violated the Fourteenth

Amendment. Compare Robicheaux , 2014 WL 4347099, at *12

(concluding Louisianas marriage laws do not infringe the guarantees

of the Equal Protection and Due Process Clauses), with De Leon , 975

F.Supp.2d at 666 (concluding Texass marriage laws violate[ ]

Plaintiffs equal protection and due process rights). Both decisions

cannot be correct, and resolving one will effectively settle the other.3. Hearing the two appeals by the same panel is consistent with

recent practice in other Circuits. As this Court is well aware, the

constitutionality of state marriage laws is the subject of a remarkable

wave of national litigation. Since the Supreme Courts decision in

United States v. Windsor , 133 S. Ct. 2675 (2013), numerous federal

court decisions have invalidated state marriage laws, with Louisiana

the only exception. See Robicheaux , 2014 WL at 4347099, at *5 n.9



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(acknowledging its decision upholding Louisianas marriage laws runs

counter to 15 post- Windsor federal decisions) (and collecting cases).

Three Circuits (the Tenth, Fourth, and Seventh) have already rendered

decisions, 1 and two others (the Sixth and Ninth) have heard argument

but not yet rendered decisions. 2 The Tenth heard appeals from Utah

and Oklahoma within one week of each other on April 10 and 17, 2014. 3

The Sixth heard appeals from four States (Ohio, Michigan, Tennessee,

and Kentucky) on August 6, 2014. 4 The Seventh heard appeals from two

States (Indiana and Wisconsin) on August 26, 2014. 5 And the Ninth

heard appeals from three States (Nevada, Idaho, and Oregon) on

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See Kitchen v. Herbert , 755 F.3d 1193 (10th Cir. 2014), cert. filed Aug. 5, 2014(No. 14-124); Bishop v. Smith , __ F.3d __, 2014 WL 3537847 (10th Cir. July 18,2014), cert. filed Aug. 6, 2014 (No. 14-136); Schaefer v. Bostic , __ F.3d __, 20143702493 (4th Cir. July 28, 2014), cert. filed Aug. 8, 2014 (No. 14-153), Aug. 22, 2014(No. 14-225), Aug. 29, 2014 (No. 14-251); Baskin v. Bogan , __ F.3d __, 2014 WL4359059 (7th Cir. Sept. 4, 2014), cert. filed Sept. 9, 2014 (Nos. 14-277, 14-278).2 See DeBoer v. Snyder , No. 14-1341 (6th Cir.) (Michigan); Obergefell v. Himes , No.14-3057 (6th Cir.) (Ohio); Henry v. Himes , No. 14-3464 (6th Cir.) (Ohio); Bourke v.

Beshear , No. 14-5291 (6th Cir.) (Kentucky); Tanco v. Haslam , No. 14-5297 (6th Cir.)(Tennessee).3 See Order in Kitchen v. Herbert , No. 13-4178 (10th Cir.) (argued April 10, 2014);Order in Bishop v. Smith , No. 14-5003 (10th Cir.) (argued April 17, 2014).

4 See U.S. Court of Appeals for the Sixth Circuit, Courtroom Audio (Aug. 6, 2014listing consecutive arguments in Nos. 14-5297, 14-5291, 14-3057, and 14-1341),available at http://www.ca6.uscourts.gov/internet/court_audio/aud1 .php.5 See Dkt. Nos. 164, 165 in Wolf v. Walker , No. 14-2526 (argued Aug. 26, 2014);Dkt. Nos. 210, 211 in Baskin v. Bogan , No. 14-2386 (argued Aug. 26, 2014).



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September 9, 2014. 6 This Court should follow the example of these other

Circuits and schedule argument in the Louisiana and Texas cases

before the same panel and dispose of them at the same time.

4. Doing so will require the Court to expedite briefing and argument

in Robicheaux . The Court docketed the appeals in that case on

September 3 and 4, and has not yet set a briefing schedule, whereas the

De Leon appeal will complete briefing on October 10. To sync the two

appeals, Appellees urge the Court to set an abbreviated briefing

schedule as suggested below. See 7, infra.

5. Doing so is justified by the extraordinary stakes in this appeal.

Appellants press what they consider fundamental claims of individual

liberty under the Fourteenth Amendment. See, e.g., Robicheaux , 2014WL 4347099, at *2 (observing Plaintiffs vigorously submit if two people

wish to enter into a bond of commitment and care their choice should

be recognized by law as a marriage). Appellees press what they

consider fundamental claims of sovereignty and democratic legitimacy.

6 See U.S. Court of Appeals for the Ninth Circuit, Oral Argument Calendar forSept. 8-12, 2014 (scheduling for Sept. 9 session appeals in Latta v. Otter , Nos. 14-35420 and 14-35421; Sevcik v. Sandoval , No. 12-17668; and Jackson v. Abercrombie ,Nos. 12-16995 and 12-16998), available at http://www.ca9.uscourts.gov/calendar/view.php?hearing=September%20-%20San%20Francisco,%20California&dates=8-12,%2015-19&year=2014.



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See, e.g., id. (observing Defendants maintain that marriage is a

legitimate concern of state law and policy and may be rightly

regulated because of what for centuries has been understood to be its

role). Whoever is right, both sides deserve to have their arguments

determined on their own merits and not by another appeal. 7

6. In Appellees view, an abbreviated briefing schedule will not

prejudice either party. In the lower court, each side extensively briefed

the issues on summary judgment. Adapting those briefs for this Court

will not involve an extraordinary amount of effort. And whatever effort

is involved is surely justified in order to have issues of this magnitude

considered in a timely manner. Furthermore, the numerous amicus

briefs already filed in De Leon will be equally relevant to this appeal.7. In light of these considerations, Appellees propose the following

abbreviated briefing schedule:

Appellants Opening Brief: Friday, October 17, 2014

Appellees Brief: Friday, October 31, 2014

Appellants Reply Brief: Friday, November 7, 2014

7 Appellees acknowledge that the Court denied Appellees motion to expedite in DeLeon . See Order in No. 14-50196 (May 21, 2014). The circumstances here aredifferent, however. Unless this appeal is expedited, the validity of Louisianasmarriage laws will be determined by another pending appeal. That was not the casein De Leon .



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This abbreviated schedule is contingent on the district court record

being lodged in this Court by October 1, 2014. 8

8. The Court has already scheduled arguments in other cases for the

October 6-9 session, but has not yet set argument in De Leon .

Consequently, the proposed briefing schedule would allow briefing in

Robicheaux to be completed in time for the November argument

calendar, when the Court will presumably schedule De Leon .

9. Appellees do not lightly make a motion of this extraordinary

nature, nor do they wish to interfere with the usual order of the Courts

business. But the magnitude of the issues at staketo both sidesis

inescapable. Appellees therefore respectfully urge the Court to expedite

briefing and argument in this appeal so that the validity of Louisianasmarriage laws may stand or fall on their own merits.

10. Undersigned counsel for Appellees has consulted with

Appellants counsel and confirms that Appellants do not oppose this

motion. Appellants agree with the abbreviated briefing schedule set

8 The transcript of the June 25, 2014 summary judgment hearing has alreadybeen completed, and the parties are awaiting transcription only of the March 14,2014 status conference.



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forth herein and also agree that this appeal should be set at the same

time and heard by the same panel as De Leon .

Respectfully submitted,

s/ S. Kyle DuncanS. Kyle Duncan (La. Bar No. 25038)DUNCAN PLLC1629 K Street, N.W., Suite 300Washington, D.C. 20006Tel: [email protected]

J. Michael JohnsonLaw Offices of Mike Johnson, LLC2250 Hospital DriveBeene Office Park, Suite 248Bossier City, LA 71111Tel: 318-658-9456

Counsel for Appellees



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CERTIFICATE OF SERVICE

I certify that I filed this motion with the Courts CM/ECF system onSeptember 19, 2014, which will automatically send an electronic notice

of filing to Appellants counsel of record:

J. Dalton CoursonLesli D. HarrisS TONE P IGMAN W ALTHER W ITTMANN , L.L.C.546 Carondelet StreetNew Orleans, LA 70130Tel: 504-593-0812Fax: 504-596-0812

[email protected]

Richard G. Perque700 Camp StreetNew Orleans, LA 70130Tel: 504-681-2003Fax: [email protected]

Scott J. Spivey, Esq., General CounselH AMMERMAN & G AINER , I NC .1980 W. Main Street, Suite DLutcher, LA 70119-0000Tel: 504-684-4904Fax: [email protected]

Counsel for Appellants

s/ S. Kyle DuncanS. Kyle DuncanCounsel for Appellees


Documents

14-31037 - Motion to Expedite