3:14-cv-00064 #115

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WISCONSIN

VIRGINIA WOLF and CAROL

SCHUMACHER, KAMI YOUNG and

KARINA WILLES, ROY BADGER and

GARTH WANGEMANN, CHARVONNE

KEMP and MARIE CARLSON, JUDITH

TRAMPF and KATHARINA HEYNING,

SALUD GARCIA and PAM KLEISS,

WILLIAM HURTUBISE and LESLIE

PALMER, and JOHANNES

WALLMANN and KEITH BORDEN,

Plaintiffs,

v. Case No. 14-C-00064-SLC

SCOTT WALKER, J.B. VAN HOLLEN,

OSKAR ANDERSON, JOSEPH

CZARNEZKI, WENDY CHRISTENSEN,

and SCOTT MCDONELL,

Defendants.

DECLARATION OF TIMOTHY C. SAMUELSON

I, Timothy C. Samuelson, pursuant to 28 U.S.C. § 1746, hereby declare as

follows:

1. I am one of Defendants Walker, Van Hollen, and Anderson’s (the

“State Defendants”) attorneys in the above-captioned matter. I make this

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Declaration based on my own personal knowledge and based upon the

sources described.

2. I make this Declaration in support of State Defendants’ Contingent

Motion to Stay.

3. Attached hereto as Exhibit A is a true and correct copy of a stay

order entered by the Ninth Circuit Court of Appeals in Latta v. Otter,

No. 14-35420 (9th Cir. May 20, 2014).

4. Attached hereto as Exhibit B is a true and correct copy of a stay

order entered by the Sixth Circuit Court of Appeals in Tanco v. Haslam,

No. 14-5297 (6th Cir. Apr. 25, 2014).

5. Attached hereto as Exhibit C is a true and correct copy of a stay

order entered by the Sixth Circuit Court of Appeals in DeBoer v. Snyder,

No. 14-1341 (6th Cir. Mar. 25, 2014).

I declare under penalty of perjury that the foregoing is true and correct.

Dated this 23rd day of May, 2014.

s/Timothy C. Samuelson

TIMOTHY C. SAMUELSON

Case: 3:14-cv-00064-bbc Document #: 115 Filed: 05/23/14 Page 2 of 2

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SUSAN LATTA; et al.,

Plaintiffs - Appellees,

v.

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

Defendant - Appellant,

and

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

Defendant,

STATE OF IDAHO,

Intervenor-Defendant.

No. 14-35420

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

ORDER

SUSAN LATTA; et al.,

Plaintiffs - Appellees,

v.

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

No. 14-35421

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

FILEDMAY 20 2014

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

AT/MOATT

Case: 14-35420 05/20/2014 ID: 9103320 DktEntry: 11 Page: 1 of 5Case: 3:14-cv-00064-bbc Document #: 115-1 Filed: 05/23/14 Page 1 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, 143 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 brief(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 31-2.2(a) (pertaining to grants of time extensions) shall not

apply to these appeals.

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

James R. Browning Courthouse in San Francisco, California.

AT/MOATT 14-35420, 14-35421


HURWITZ, Circuit 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:

“(1) 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, 481 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 in 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 14-35420, 14-35421


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 justifying a stay must be posed to the

parties seeking a stay, not to others. Leiva-Perez v. Holder, 640 F.3d 962, 969 (9th

Cir. 2011). Any harm resulting from the possible invalidity of marriage licenses

issued pendente lite to 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. Burns, 427 U.S. 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.” Latta v. Otter, No. 1:13-CV-00482-CWD, 2014 WL 1909999, at *2 (D.

Idaho May 13, 2014).

AT/MOATT 14-35420, 14-35421


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

higher court, I would not find that it justified 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 marriage.

Kitchen v. Herbert, 961 F. Supp. 2d 1181 (D. Utah 2013). The district court denied

the State’s motion for a stay pending appeal, Kitchen v. Herbert, No. 2:13-CV-217,

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

Circuit did the same, Kitchen v. Herbert, No. 13-4178 (10th Cir. Dec. 24, 2013).

On January 6, 2014, 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). Although the Supreme Court’s terse two-sentence order did

not offer a statement of reasons, I cannot identify any relevant 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.

AT/MOATT 14-35420, 14-35421


NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

No. 14-5297


FOR THE SIXTH CIRCUIT

VALERIA TANCO, et al.,

Plaintiff-Appellees,

v.

WILLIAM HASLAM, et al.,

Defendants-Appellants.

ORDER

BEFORE: GUY and CLAY, Circuit Judges; BERTLESMAN, District Judge.

PER CURIAM. This matter is before the Court on Defendants’ motion to stay the district

court’s order preliminarily enjoining the enforcement of Tennessee Code Annotated § 36-3-113

and Article XI, § 18 of the Tennessee Constitution, which prohibit the recognition in Tennessee

of marriages legally consummated by same-sex couples in other states, against the six named

plaintiffs in this action. The district court denied Defendants’ previous motion for a stay pending

the outcome of their appeal, finding that “all four factors weigh against a stay and in favor of

continuing enforcement of the Preliminary Injunction.” Jesty v. Haslam, No. 3:13-CV-01159,

2014 WL 1117069, at *5 (M.D. Tenn. Mar. 20, 2014). For the reasons that follow, we find that a

stay of the district court’s order pending consideration of this matter by a merits panel of this

Court is warranted, and that this case should be assigned to a merits panel without delay.

The Honorable William O. Bertelsman, United States District Judge for the Eastern District of Kentucky,

sitting by designation.

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Administrator

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No. 14-5297

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In deciding whether to issue a stay, the Court balances four factors: 1) whether the

moving party “has a strong or substantial likelihood of success on the merits”; (2) whether the

moving party “will suffer irreparable harm” if the order is not stayed; (3) whether issuing a stay

“will substantially injure other interested parties”; and (4) “where the public interest lies.” Baker

v. Adams Cnty./Ohio Valley School Bd., 310 F.3d 927, 928 (6th Cir. 2002). Because the law in

this area is so unsettled, in our judgment the public interest and the interests of the parties would

be best served by this Court imposing a stay on the district court’s order until this case is

reviewed on appeal. As Judge Black observed in granting a stay of injunction pending appeal for

Henry v. Himes, No. 1:14-CV-129, 2014 WL 1512541, at *1 (S.D. Ohio Apr. 16, 2014):

[R]ecognition of same-sex marriages is a hotly contested issue in

the contemporary legal landscape, and, if [the state’s] appeal is

ultimately successful, the absence of a stay as to [the district

court’s] ruling of facial unconstitutionality is likely to lead to

confusion, potential inequity, and high costs. These considerations

lead the Court to conclude that the public interest would best be

served by granting of a stay. Premature celebration and confusion

do not serve anyone’s best interests. The federal appeals courts

need to rule, as does the United States Supreme Court.

In the present case, as in Henry, we find that the public interest requires granting a stay

and transferring this case to a merits panel for expedited consideration––so that the merits panel

can assess whether a stay should remain in effect, and address the substantive issues in this case.

Defendants’ motion to stay the district court’s order is GRANTED, and this case shall be

assigned to a merits panel without delay.

IT IS SO ORDERED.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk




rogersss

Deb Hunt signature stamp

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Deborah S. Hunt Clerk

100 EAST FIFTH STREET, ROOM 540 POTTER STEWART U.S. COURTHOUSE

CINCINNATI, OHIO 45202-3988 Tel. (513) 564-7000

www.ca6.uscourts.gov

Filed: April 25, 2014

Ms. Martha A. Campbell Mr. David C. Codell Mr. Phillip F. Cramer Mr. John Lee Farringer Mr. J. Scott Hickman Ms. Regina Marie Lambert Mr. Shannon Price Minter Mr. Asaf Orr Mr. Kevin Gene Steiling Mr. Christopher F. Stoll Ms. Amy Whelan

Re: Case No. 14-5297, Valeria Tanco, et al v. William Haslam, et al Originating Case No. : 3:13-cv-01159

Dear Sir or Madam,

The Court issued the enclosed Order today in this case.

Sincerely yours,

s/Jill Colyer Case Manager Direct Dial No. 513-564-7024

cc: Mr. Keith Throckmorton Enclosure




No. 14-1341


FOR THE SIXTH CIRCUIT

APRIL DEBOER; JANE ROWSE, individually

and as parents and next friend of N.D.-R, R.D.-R

and J.D.-R, minors,

Plaintiffs-Appellees,

v.

RICHARD SNYDER, in his official capacity as

Governor of the State of Michigan; BILL

SCHUETTE, in his official capacity as Michigan

Attorney General,

Defendants-Appellants.

)

)

)

)

)

)

)

)

)

)

)

)

)

)

O R D E R

Before: ROGERS and WHITE, Circuit Judges; CALDWELL, District Judge*

The district court in this case enjoined the enforcement of Article I, § 25 of the Michigan

Constitution, which provides that marriage is “the union of one man and one woman.” In light

of the Supreme Court’s issuance of a stay in a similar case, Herbert v. Kitchen, 134 S. Ct. 893

(2014), a stay of the district court’s order is warranted.

On March 21, 2014, the district enjoined the State of Michigan from enforcing the

constitutional provision and its implementing statutes because the court concluded that those

laws violate the Equal Protection Clause of the Fourteenth Amendment. DeBoer v. Snyder, No.

2:12-cv-10285, 2014 WL 1100794, at *17 (E.D. Mich. Mar. 21, 2014). Michigan filed a notice

* The Honorable Karen K. Caldwell, Chief United States District Judge for the Eastern District of

Kentucky, sitting by designation.

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of appeal and made an emergency motion to stay the district court’s order in this court the same

day. This court temporarily stayed the district court’s order so that it could more carefully

consider Michigan’s request and a response from the plaintiffs. The plaintiffs filed a response,

and defendant Lisa Brown in her capacity as Clerk of Oakland County moved for leave to file a

response to Michigan’s motion.

Counsel for Michigan assert that during closing argument in the district court, counsel

asked the district court to stay its order should the court rule in favor of the plaintiffs. The

district court did not grant a stay. Federal Rule of Appellate Procedure 8(a) requires that a stay

pending appeal be brought first in the district court. However, a court of appeals may grant a

stay pending appeal if “the district court denied the motion or failed to afford the relief

requested.” Fed. R. App. P. 8(a)(2)(A)(ii). In the context of this case, the requirements of Rule

8 have been substantially met.

In deciding whether to grant a stay of a district court’s grant of injunctive relief, “we

consider (1) whether the defendant has a strong or substantial likelihood of success on the merits;

(2) whether the defendant will suffer irreparable harm if the district court proceedings are not

stayed; (3) whether staying the district court proceedings will substantially injure other interested

parties; and (4) where the public interest lies.” Baker v. Adams Cnty./Ohio Valley School Bd.,

310 F.3d 927, 928 (6th Cir. 2002). In this case, these factors balance no differently than they did

in Kitchen v. Herbert. Kitchen involved a challenge to “provisions in the Utah Code and Utah

Constitution that prohibited same-sex marriage.” No. 2:13-cv-217, 2013 WL 6834634, at *1 (D.

Utah Dec. 23, 2013). Like the decision below, the Kitchen court’s order enjoined Utah from

enforcing laws that prohibit same-sex marriage. 961 F. Supp. 2d 1181, 1216 (D. Utah 2013).

And like the stay requested by Michigan before this court, the Supreme Court’s order delayed the


No. 14-1341

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applicability of the Kitchen court’s order pending resolution by the Tenth Circuit. 134 S. Ct. 893

(2014). There is no apparent basis to distinguish this case or to balance the equities any

differently than the Supreme Court did in Kitchen. Furthermore, several district courts that have

struck down laws prohibiting same-sex marriage similar to the Michigan amendment at issue

here have also granted requests for stays made by state defendants. See Bishop v. United States

ex rel. Holder, 962 F. Supp. 2d 1252 (N.D. Okla. 2014); Bostic v. Rainey, No. 2:13cv395, 2014

WL 561978 (E.D. Va. Feb. 13, 2014); De Leon v. Perry, No. SA-13-CA-00982-OLG, 2014 WL

715741 (W.D. Tex. Feb. 26, 2014); Love v. Beshear, No. 3:13-CV-750-H (W.D. Ky. Mar. 19,

2014) (order granting stay).

We GRANT Lisa Brown’s motion to respond to Michigan’s stay motion. We GRANT

Michigan’s motion to stay the district court’s order pending final disposition of Michigan’s

appeal by this court.

WHITE, J., dissenting.

I agree that this court balances the traditional factors governing injunctive relief in ruling

on a motion to stay a district court’s decision pending appeal: (1) whether the defendant has a

strong or substantial likelihood of success on the merits; (2) whether the defendant will suffer

irreparable harm if the district court proceedings are not stayed; (3) whether staying the district

court proceedings will substantially injure other interested parties; and (4) where the public

interest lies. “In order to justify a stay of the district court's ruling, the defendant must

demonstrate at least serious questions going to the merits and irreparable harm that decidedly

outweighs the harm that will be inflicted on others if a stay is granted.” Baker v Adams

County/Ohio Valley School Bd, 310 F3d. 927, 928 (6th

Cir. 2012). Michigan has not made the

requisite showing. Although the Supreme Court stayed the permanent injunction issued by the


No. 14-1341

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Utah District Court in Kitchen v. Herbert pending final disposition by the Tenth Circuit, 134

S.Ct. 893 (2014), it did so without a statement of reasons, and therefore the order provides little

guidance. I would therefore apply the traditional four-factor test, which leads me to conclude

that a stay is not warranted.

ENTERED BY ORDER OF THE COURT

Clerk


rogersss

Deb Hunt signature stamp

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Deborah S. Hunt Clerk

100 EAST FIFTH STREET, ROOM 540 POTTER STEWART U.S. COURTHOUSE

CINCINNATI, OHIO 45202-3988 Tel. (513) 564-7000

www.ca6.uscourts.gov

Filed: March 25, 2014

Ms. Kristin M Heyse Michigan Attorney General P.O. Box 30758 Lansinig, MI 48909 Ms. Andrea J. Johnson Pitt McGhee 117 W. Fourth Street Suite 200 Royal Oak, MI 48067 Mr. Aaron D. Lindstrom Office of the Michigan Attorney General P.O. Box 30212 Lansing, MI 48909 Mr. Kenneth Marc Mogill Mogill, Posner & Cohen 27 E. Flint Street Second Floor Lake Orion, MI 48362-0000 Ms. Dana Nessell Nessel Kessel 645 Griswold Street Detroit, MI 48226 Mr. Michael L Pitt Pitt, McGehee, Palmer, Rivers & Golden 117 W. Fourth Street Suite 200 Royal Oak, MI 48067


Ms. Beth M. Rivers Pitt, McGehee, Palmer, Rivers & Golden 117 W. Fourth Street Suite 200 Royal Oak, MI 48067 Ms. Carole Margaret Stanyar Law Offices of Deborah LaBelle 221 N. Main Street Suite 300 Ann Arbor, MI 48104

Re: Case No. 14-1341, April DeBoer, et al v. Richard Snyder, et al Originating Case No. : 2:12-cv-10285

Dear Sir or Madam,

The Court issued the enclosed Order today in this case.

Sincerely yours,

s/Cheryl Borkowski Case Manager

cc: Mr. David J. Weaver Enclosure


Documents

3:14-cv-00064 #115