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UNITED STATES DISTRICT COURTMIDDLE DISTRICT OF NORTH CAROLINA

MARCIE FISHER-BORNE, et al.,

Plaintiffs,v.

JOHN W. SMITH, et al.,

Defendants.

Civil Action No. 1:12-cv-00589

ELLEN W. GERBER, et al.,

Plaintiffs,v.

ROY COOPER, et al.,

Defendants.

Civil Action No. 1:14-cv-00299

PLAINTIFFS RESPONSE TO THE COURTS OCTOBER 10 ORDER ANDPROPOSED DEFENDANT-INTERVENORS MOTION TO INTERVENE

Case 1:12-cv-00589-WO-JEP Document 131 Filed 10/13/14 Pa e 1 of 25

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TABLE OF CONTENTS

Page

PRELIMINARY STATEMENT ......................................................................................... 1

RELEVANT BACKGROUND ........................................................................................... 3

A. The Fisher-Borne and Gerber Actions ......................................................... 3

B. The Bostic Decision ....................................................................................... 4

C. The Putative Intervenors ............................................................................... 6

LEGAL STANDARDS ....................................................................................................... 6

ARGUMENT ...................................................................................................................... 7

I. THE ATTORNEY GENERAL HAS REASONABLY CHOSEN NOT TOPURSUE A FUTILE APPEAL, AND PUTATIVE INTERVENORSCANNOT THEREFORE SHOW THE STATE IS BEINGINADEQUATELY REPRESENTED. ..................................................................... 7

A. The Attorney General Has Not Waived His Right To Appeal; HeHas Chosen Not To Pursue a Futile Appeal. ................................................. 7

B. The Putative Intervenors Cannot Rebut the Presumption of AdequateRepresentation. ............................................................................................ 11

II. THE MOTION TO INTERVENE SHOULD FURTHER BE DENIED ASUNTIMELY, FUTILE, AND PREJUDICIAL. ..................................................... 14

A. The Motion To Intervene Is Untimely. ....................................................... 14

B. Intervention Is Futile Because Bostic Determines the Outcome ofThese Actions, and the United States Supreme Court Has AlreadyChosen To Deny Review. ............................................................................ 17

C. The Plaintiffs Would Be Prejudiced by the Delay. ..................................... 17

CONCLUSION ................................................................................................................. 18


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TABLE OF AUTHORITIES

Page(s)C ASES

Atkins v. Gen. Motors Corp .,701 F.2d 1124 (5th Cir.1983) ....................................................................................... 17

Baker v. Nelson ,409 U.S. 810 (1972) ..................................................................................................... 10

Baskin v. Bogan ,2014 WL 4359059 (7th Cir. Sept. 4, 2014) ................................................................... 9

Baskin v. Bogan ,983 F. Supp. 2d 1021 (S.D. Ind. 2014) .......................................................................... 9

Bishop v. United States ,962 F. Supp. 2d 1252 (N.D. Okla. 2014) ................................................................. 9, 10

Booker, Jr. v. Dominion Virginia Power ,2010 WL 1286698 (E.D. Va. Mar. 26, 2010) .............................................................. 17

Bostic v. Rainey ,970 F. Supp. 2d 456 (E.D. Va. 2014) ............................................................................. 9

Bostic v. Schaefer ,

No. 14-1167 (4th Cir. Mar. 28, 2014) ............................................................................ 5

Bostic v. Schaefer ,760 F.3d 352 (4th Cir. July 28, 2014) ................................................................... passim

Bourke v. Beshear ,2014 WL 556729 (W.D. Ky. Feb. 12, 2014) ................................................................. 9

Brenner v. Scott, 2014 WL 4113100 (N.D. Fla. Aug. 21, 2014) ............................................................... 9

De Leon v. Perry ,975 F. Supp. 2d 632 (W.D. Tex. 2014) .......................................................................... 9

DeBoer v. Snyder ,973 F. Supp. 2d 757 (E.D. Mich. 2014) ......................................................................... 9

Donnelly v. Glickman ,159 F.3d 405 (9th Cir. 1998) .......................................................................................... 7


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Educ. Credit Mgmt. Corp . v. Bradco, Inc .,2008 WL 2066993 (D. Kan. May 14, 2008) ................................................................ 17

Geiger v. Kitzhaber ,994 F. Supp. 2d 1128 (D. Or. 2014) .............................................................................. 9

General Synod of the United Church of Christ v. Resinger , No. 14-cv-00213 (W.D. N.C. Oct. 10, 2014) ........................................................ passim

Gould v. Alleco ,883 F.2d 281 (4th Cir. 1989) .................................................................................. 14, 15

Henry v. Himes ,2014 WL 1418395 (S.D. Ohio Apr. 14, 2014) .............................................................. 9

Houey v. Carolina First Bank ,

890 F. Supp. 2d 611 (W.D.N.C. 2012) ........................................................................ 17

Houston General Ins. Co. v. Moore ,193 F.3d 838 (4th Cir. 1999) ........................................................................................ 14

In re Fine Paper Antitrust Litig ,695 F.2d 494 (3d Cir.1982) .......................................................................................... 17

Kirby v. Coastal Sales Assoc .,199 F.R.D. 111 (S.D.N.Y. 2001) ................................................................................. 17

Kitchen v. Herbert ,2014 WL 2868044 (10th Cir. June 25, 2014) .............................................................. 10

Kitchen v. Herbert ,961 F. Supp. 2d 1181 (D. Utah 2013) ............................................................................ 9

Latta v. Otter ,2014 WL 1909999 (D. Idaho May 13, 2014) ................................................................ 9

Lee v. Orr ,2014 WL 683680 (N.D. Ill. Feb. 21, 2014) ................................................................... 9

Little Rock Sch. Dist. v. N. Little Rock Sch. Dist .,378 F.3d 774 (8th Cir. 2004) ........................................................................................ 13

NAACP v. New York ,413 U.S. 35 (1973) ....................................................................................................... 14


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Obergefell v. Wymyslo ,962 F. Supp. 2d 968 (S.D. Ohio 2013) ........................................................................ 10

Orange Envt, Inc. v. Cnty. of Orange ,817 F. Supp. 1051 (S.D.N.Y. 1993) ............................................................................. 13

Otter v. Latta ,2014 WL 5025970 (U.S. Oct. 8, 2014) ........................................................................ 10

Saldano v. Roach ,363 F.3d 545 (5th Cir. 2004) ........................................................................................ 13

Smith v. Robbins ,528 U.S. 259 (2000) ..................................................................................................... 12

Stuart v. Huff ,

706 F.3d 345 (4th Cir. 2013) ............................................................................ 11, 13, 17

Stupak-Thrall v. Glickman ,226 F.3d 467 (6th Cir. 2000) ........................................................................................ 14

Teague v. Bakker ,931 F.2d 259 (4th Cir. 1991) .......................................................................................... 6

Tanco v. Haslam ,2014 WL 997525 (M.D. Tenn. Mar. 14, 2014) ............................................................. 9

United Airlines, Inc. v. McDonald ,432 U.S. 385 (1988) ..................................................................................................... 14

United States v. Evans ,404 F.3d 227 (4th Cir. 2005) .......................................................................................... 8

United States v. N. Carolina ,2014 WL 494911 (M.D.N.C. Feb. 6, 2014) ................................................................. 18

United States v. Windsor ,133 S. Ct. 2675 (2013) ............................................................................................. 9, 10

Wells v. Shriners Hosp. ,109 F.3d 198 (4th Cir. 1997) .......................................................................................... 8

Whitewood v. Wolf ,992 F. Supp. 2d 410 (M.D. Pa. 2014) ............................................................................ 9


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Wolf v. Walker ,986 F. Supp. 2d 982 (W.D. Wis. 2014) ......................................................................... 9

STATUTES AND O THER AUTHORITIES

N.C. Gen. Stat. 1-72.2 ...................................................................................................... 6Fed. R. Civ. P. 11 .............................................................................................................. 12

Fed. R. Civ. P. 24 .................................................................................................. 2, 6, 7, 14

BLACK S LAW DICTIONARY (9th ed. 2009) ......................................................................... 8

E-mail from Charles A. Szypszak to Christopher Brook (Oct. 13, 2014 11:34 AM) ........ 1

Sen. Phil Berger, Release, Dec. 20, 2013, http://www.philberger.com/news/entry/ berger-tillis-take-prudent-step-to-defend-will-of-n-c-voters ....................................... 16

Michael Bieseker & Mitch Weiss, Couples rush to wed as NC gay marriage bandumped , A SSOCIATED PRESS , Oct. 11, 2014, http://news.yahoo.com/couples-rush-wed-nc-gay-marriage-ban-dumped-053230632.html .......................................................... 1

Anne Blythe & Andrew Kenney, AG Roy Cooper says federal ruling may allow gay marriage in N.C ., T HE COURIER -TRIBUNE , July 29, 2014 .................................... 16

Rob Christensen & David Bracken, McCrory signs regulatory overhaul plan , 32more bills , THE NEWS & OBSERVER , Aug. 23, 2013 ................................................... 15

Travis Fain, McCrory clears desk of bills , N EWS & R ECORD ED., Aug. 24, 2013 ............ 15

Chris Fitzsimon, Progress, despite objections , THE LAURINBURG EXCHANGE , July30, 2014 ........................................................................................................................ 16


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Couples rush to wed as NC gay marriage ban dumped , A SSOCIATED PRESS , Oct. 11,

2014, http://news.yahoo.com/couples-rush-wed-nc-gay-marriage-ban-dumped-

053230632.html.

Intervenor-Defendant Attorney General has stated that he currently does not

intend to appeal the application of Bostic to North Carolinas marriage laws. Given the

history of the Bostic decision and the United States Supreme Courts decision to deny

certiorari , this is a more than reasonable litigation decision, and is not in any respect an

indication of inadequate representation. Nonetheless, putative intervenor-defendants

Thom Tillis, in his capacity as North Carolina Speaker of the House of Representatives,

and Phil Berger, in his capacity as President Pro Tempore of the North Carolina Senate

(the Putative Intervenors), on behalf of themselves, and their members and

constituents, have moved to intervene in this action so that they may seek a different

outcome on appeal. Proposed Def.-Intervenors Mot. for Intervention Pursuant to Fed. R.

Civ. P. 24, No. 12-cv-589, ECF No. 119 (Oct. 9, 2014) (the Intervention Motion). As

described below, the Intervention Motion should be denied because it is untimely, futile,

and prejudicial, each of which independent ground is sufficient to deny intervention.

More specifically and in response to the Courts questions regarding the

Intervention Motion, the Attorney General has not waived his rights to appeal to the

Fourth Circuit or to the United States Supreme Court. Instead, in the reasonable exercise

of litigation judgment (presumably based, at least in part, on the unanimous view of each

of the four courts of appeals which have found discriminatory marriage laws to be

unconstitutional), the Attorney General presently has chosen not to waste the states


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limited resources on pursuing what would ultimately be a futile appeal. Putative

Intervenors cannot demonstrate that such an exercise of litigation judgment constitutes

inadequate representation, especially given the high degree of deference afforded in

particular to the litigation judgment of states attorneys general.

The Court should therefore deny the Intervention Motion and enter

judgment on the pleadings for Plaintiffs, in the form submitted by Plaintiffs and agreed to

by all parties.

RELEVANT BACKGROUND

A. The Fisher-Borne and Gerber Actions

The Plaintiffs in Fisher - Borne brought their action on June 13, 2012,

alleging that North Carolinas adoption laws violated their rights to due process and equal

protection under the United States Constitution. Complaint, No. 12-cv-589, ECF No. 1

(June 13, 1012). On July 19, 2013, they amended their complaint to include a marriage

claim, and by November 15, 2013, the Defendants motion to dismiss on both complaints

had been fully briefed. On April 9, 2014, Plaintiffs Megan Parker and Shana Carignan

and their son J.C. filed a motion for a preliminary injunction asking this Court to order

the State to recognize these Plaintiffs marriage and parental relationships, in order to

prevent further irreparable harm. Mot. for Prelim. Inj. and Mem. in Supp., No. 12-cv-

589, ECF Nos. 75, 76 (Apr. 9, 2014) ( Fisher-Borne PI Mot.). By May 5, 2014, this

motion was fully briefed. The Plaintiffs in Gerber brought their action on April 9, 2014,

Compl., No. 14-cv-299, ECF No. 1 (Apr. 9, 2014), and along with the Complaint, filed a

motion for a preliminary injunction asking this Court to order the State to recognize these


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Plaintiffs marriages and parental relationships, to prevent further irreparable harm. Mot.

for Prelim. Inj. and Mem. in Supp., No. 14-cv-299, ECF Nos. 3, 4 (Apr. 9, 2014)

(Gerber PI Mot.). By May 5, 2014 this motion had been fully briefed.

As demonstrated in their Complaints and in the Motions for Preliminary

Injunctions, all the Plaintiffs have suffered from daily, ongoing harm because of the

denial of their rights. In particular, for Plaintiffs Parker and Carignan, the continued

denial of recognition of their marriage not only impacts their emotional and financial

wellbeing, it has a direct and immediate impact on the medical condition of their son, J.C.

(See Fisher-Borne PI Mot. at 6-9, 17-19.) J.C. would be eligible for far superior medical

treatment of his cerebral palsy if he were covered by Ms. Carignans insurance and at this

critical stage of his development, any harm caused by (or benefits lost because of)

inferior treatment will be permanent and irreparable. Likewise, Dr. Berlin, Ms.

Blackburn, and Ms. Mejia have serious, life-threatening medical issues that make it likely

that they and their families will suffer irreparable harm unless their motion for

preliminary relief is granted. ( See Gerber PI Mot. at 2, 6-8.) Although the Attorney

General has now been enjoined from discriminating against same-sex couples with

respect to marriage, plaintiffs require relief in these Actions to avoid ambiguity or

confusion regarding the relief to which they are entitled. See note 1, supra .

B. The Bostic Decision

In Bostic v. Schaefer , 760 F.3d 352 (4th Cir. July 28, 2014), cert. denied

sub nom . McQuigg v. Bostic , ___ S.Ct. ____, 2014 WL 4354536 (Oct. 6, 2014), the

Fourth Circuit held that Virginias laws prohibiting same-sex marriage in Virginia, or the


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recognition of such marriages legally performed in other states, violates the Due Process

and Equal Protection Clauses of the Fourteenth Amendment of the United States

Constitution. The Bostic litigation was filed in 2013. Compl. for Declaratory, Injunctive

and Other Relief, Bostic v. Schaefer , No. 2:13-cv-00395, ECF No. 1 (E.D. Va. July 18,

2013). The original defendants in Bostic were George E. Schaefer, III, Clerk of the

Circuit Court for the City of Norfolk; and Janet M. Rainey, State Registrar of Vital

Records. Id. While the Attorney General represented Ms. Rainey, Mr. Schaefer was

represented by independent counsel. Later, Prince William County Circuit Court Clerk

Michele McQuigg intervened, represented by lawyers from the Alliance Defending

Freedom, an organization opposed to marriage for same-sex couples with extensive

experience on these issues. Mot. to Intervene, Bostic , No. 2:13-cv-00395, ECF No. 72

(E.D. Va. Dec. 20, 2013). In both the district court and the Fourth Circuit, counsel for

Mr. Schaefer and Ms. McQuigg (together, the Virginia Clerks) presented exhaustive

arguments to support their position that exclusion of same-sex couples from marriage did

not offend the Constitution. 2 Those arguments were considered, and ultimately rejected,

2 See, e.g. , Answer and Affirmative Def., Bostic , No. 2:13-cv-00395, ECF No. 23(E.D. Va. Sept. 20, 2013); Br. in Supp. of Mot. for Summ. J., Bostic , No. 2:13-cv-00395,ECF No. 41 (E.D. Va. Sept. 30, 2013); Def. Schaefers Br. in Resp. to Pls. Mot. forSumm. J., Bostic , No. 2:13-cv-00395, ECF No. 58 (Oct. 24, 2013); Mem. of Law inSupp. of Mot. to Intervene, Bostic , No. 2:13-cv-00395, ECF No. 73 (E.D. Va. Dec. 20,2013); Answer and Affirmative Def. of Intervenor-Def. Michele B. McQuigg, Bostic , No.2:13-cv-00395, ECF No. 92 (E.D. Va. Jan 20, 2014); Hrg Tr., Bostic , No. 2:13-cv-00395, ECF No. 132 (E.D. Va. Feb. 2, 2014); Opening Br. of Appellant George E.Schaefer, III, Bostic v. Schaefer , No. 14-1167 (4th Cir. Mar. 28, 2014); Opening Br. ofAppellant McQuigg, Bostic , No. 14-1167 (4th Cir. Mar. 28, 2014); Reply Br. ofAppellant George E. Schaefer, III, Bostic , No. 14-1167 (4th Cir. Apr. 30, 2014); ReplyBr. of Appellant McQuigg, Bostic , No. 14-1167 (4th Cir. Apr. 30, 2014).


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by both the district court and the Fourth Circuit. The Clerks in Bostic sought review by

the Supreme Court, which was denied on October 6, 2014.

C. The Putative Intervenors

The Putative Intervenors, Thom Tillis and Phil Berger, are both members of

North Carolinas General Assembly. On July 25, 2013, North Carolinas General

Assembly passed Senate Bill 473, codified as N.C. Gen. Stat. 1-72.2, which provides:

The Speaker of the House of Representatives and thePresident Pro Tempore of the Senate, as agents of the State,shall jointly have standing to intervene on behalf of the

General Assembly as a party in any judicial proceedingchallenging a North Carolina statute or provision of the NorthCarolina Constitution.

S. 473, 2013 Gen. Assemb., Reg. Sess. (N.C. 2013). The passage of this provision was

accompanied more than a year ago by public statements citing a lack of faith in the

Attorney Generals defense of lawsuits challenging North Carolina statutes and

constitutional provisions, including the Fisher-Borne action.

LEGAL STANDARDS

In order to intervene as of right under Federal Rule of Civil Procedure

24(a)(2), the Putative Intervenors must establish: (1) that their motion was timely; (2)

they have an interest relating to the subject matter of the action; (3) a potential for

impairment of that interest without intervention; and (4) the identified interest is not

adequately represented by the other parties already present in the litigation. Teague v.

Bakker , 931 F.2d 259, 26061 (4th Cir. 1991). Permissive intervention is subject to a

courts sound discretion, and the applicant bears the burden of demonstrating that it meets


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the requirements for intervention under Fed. R. Civ. P. 24(a) or (b). In determining

whether intervention is appropriate, the court is guided primarily by practical and

equitable considerations. Donnelly v. Glickman , 159 F.3d 405, 408 (9th Cir. 1998).

ARGUMENT

I. THE ATTORNEY GENERAL HAS REASONABLY CHOSEN NOT TOPURSUE A FUTILE APPEAL, AND PUTATIVE INTERVENORSCANNOT THEREFORE SHOW THE STATE IS BEING INADEQUATELYREPRESENTED.

A. The Attorney General Has Not Waived His Right To Appeal; He HasChosen Not To Pursue a Futile Appeal.

In its Order of October 10, 2014, the Court asks the parties to address

whether the State of North Carolina, through concessions and admissions made in its

Answer, waived or otherwise abandoned any right to appeal to the Court of Appeals for

the Fourth Circuit for en banc review or to the Supreme Court of the United States? 12-

CV-589, ECF No. 127, at 4-5 (Oct. 10, 2014). The answer is no. The State, as

represented by Defendant-Intervenor Attorney General Roy Cooper, has not waived any

right of appeal in these cases, but sensibly has chosen not to make such an appeal.

The State Defendants Answers recognize that Bostic constitutes binding

precedent on this Court. E.g. State Defs. Answer to Amended Compl., No. 12-CV-589,

ECF No. 115 (Oct. 8, 2014). The Answers therefore state that [a]s a consequence, and

in accordance with Bostic v. Schaefer , the legal conclusions of [certain paragraphs], as

they pertain to Plaintiffs 14 th Amendment rights, are admitted. Id. Admitting that a

legal precedent applies and determines the outcome of a given case is not a waiver of the

right to appeal the decision; indeed, it would be a misrepresentation to this Court if the


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Attorney General denied the plain precedential effect of Bostic under the mandate rule.

Yet, if he so chose, the Attorney General could seek appellate review of a judgment in

these cases, arguing that Bostic was wrongly decided.

The general principles of waiver dictate that there is no waiver here . A

waiver is [t]he voluntary relinquishment or abandonment express or implied of a

legal right or advantage. W AIVER , B LACK S LAW DICTIONARY (9th ed. 2009). It is

well-established that, to waive the right to appeal an issue, a party must intend to forgo

argument on the specific issue in the lower court. See United States v. Evans , 404 F.3d

227, 236 (4th Cir. 2005) (waiver of the right to appeal an issue may occur when a party

fails to raise that issue in the district court); Wells v. Shriners Hosp. , 109 F.3d 198, 199

(4th Cir. 1997) (waiver may occur when a party fails to file an objection to a ruling on

that issue). The Defendants have shown no such intention with regard to the merits of the

opinion in Bostic. Nowhere in their Answer do they concede, or even address, the merits

of the Fourth Circuits decision in Bostic , and they have vigorously contested the legal

conclusions reached in Bostic in their briefing in these actions. See, e.g ., Mem. of Law in

Supp. of the State Defs. Mot. To Dismiss Pls. First Amended Compl., No. 12-CV-589,

ECF No. 67, at 8-19 (Sept. 11, 2013); State Defs. Response In Opp. to Movants Mot.

for Prelim. Inj., No. 12-CV-589, ECF No. 88, at 6-10 (Apr. 28, 2014); State Defs.

Response in Opp. to Movants Mot. for Prelim. Inj., No. 14-CV-299, ECF No. 33, at 6-11

(Apr. 28, 2014). There therefore is no basis for a finding that the Attorney General

waived the right to appeal this Courts judgment.


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The Attorney General has stated that he presently intends not to seek

appellate review of a judgment applying Bostic in these or other cases; this simply

represents sound litigation judgment, as an appeal of a judgment applying Bostic in these

or other cases would be futile.

First , as this Court and all the parties in these cases have recognized, there

is no relevant difference between the constitutional and statutory provisions excluding

same-sex couples from marriage in North Carolina and the Virginia laws accomplishing

the same end. Bostic unequivocally held that Virginias constitutional and statutory

prohibition of same-sex marriage in Virginia, and failure to recognize marriages of same-

sex couples legally performed in other states, violates the Due Process and Equal

Protection Clauses of the Fourteenth Amendment of the United States Constitution; there

is no argument that this analysis would not apply to North Carolinas constitutional and

statutory prohibition of same-sex marriage. Bostic , 760 F.3d at 384. 3 Notably, the

Western District of North Carolina has reached the same conclusion:

3 Bostic follows 18 federal district and circuit courts that have ruled on same-sexmarriage bans following the Supreme Courts decision in United States v. Windsor , 133S. Ct. 2675 (2013). See Baskin v. Bogan , 2014 WL 4359059 (7th Cir. Sept. 4, 2014);

Kitchen v. Herbert , 2014 WL 2868044 (10th Cir. June 25, 2014); Brenner v. Scott, 2014WL 4113100 (N.D. Fla. Aug. 21, 2014); Wolf v. Walker, 986 F. Supp. 2d 982 (W.D. Wis.

2014); Whitewood v. Wolf , 992 F. Supp. 2d 410 (M.D. Pa. 2014); Geiger v. Kitzhaber ,994 F. Supp. 2d 1128 (D. Or. 2014); Latta v. Otter , 2014 WL 1909999 (D. Idaho May13, 2014); Baskin v. Bogan , 983 F. Supp. 2d 1021 (S.D. Ind. 2014); Henry v. Himes ,2014 WL 1418395 (S.D. Ohio Apr. 14, 2014); DeBoer v. Snyder , 973 F. Supp. 2d 757(E.D. Mich. 2014); Tanco v. Haslam , 2014 WL 997525 (M.D. Tenn. Mar. 14, 2014);

De Leon v. Perry , 975 F. Supp. 2d 632 (W.D. Tex. 2014); Lee v. Orr , 2014 WL 683680(N.D. Ill. Feb. 21, 2014); Bostic v. Rainey , 970 F. Supp. 2d 456 (E.D. Va. 2014);

Bourke v. Beshear , 2014 WL 556729 (W.D. Ky. Feb. 12, 2014); Bishop v. United States ,


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Finally, the court has considered proposed intervenors argumentthat the Attorney General has improperly given up the right toappeal this courts final decision; however, the court does not readthe pleadings that broadly. While the state certainly cannot argueissues on appeal it does not believe have merit, if the state believes

this court errs when it enters its judgment in this case, it iswelcome and encouraged to file an appeal.

Order Denying Motion to Intervene, General Synod of the United Church of Christ , No.

14-cv-00213, ECF No. 120 (W.D.N.C. Oct. 10, 2014) (Intervention Order).

Second , the Putative Intervenors argument that there was a failure to

defend in Bostic resulting in a ruling by the Fourth Circuit based on outcome

determinative concessions is factually wrong. As the procedural history of the Bostic

case set forth above makes clear, the Virginia Clerks vigorously defended Virginias

parallel laws excluding same-sex couples from marriage, and, in fact, McQuigg was

represented by the same counsel that Putative Intervenors retained in December 2013 to

advise them on their intervention in this case. The only concessions invoked by the

Putative Intervenors that the Supreme Courts summary disposition in Baker v.

Nelson , 409 U.S. 810 (1972) lacks resonance today and the Attorney Generals

arguments in favor of heightened scrutiny were vigorously contested by the Virginia

Clerks in Bostic , and were not relied upon by the Fourth Circuit as concessions.

Rather, the Fourth Circuit conducted an independent analysis of these issues. 4 The

962 F. Supp. 2d 1252 (N.D. Okla. 2014); Obergefell v. Wymyslo , 962 F. Supp. 2d 968(S.D. Ohio 2013); Kitchen v. Herbert , 961 F. Supp. 2d 1181 (D. Utah 2013).

4 Moreover, the Virginia Attorney Generals observation that Baker v. Nelson lacksresonance today is manifestly obvious from the fact that the Supreme Court itselfdeclined to distinguish Baker in its landmark Windsor decision. See also Otter v. Latta ,


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defendants in Bostic aggressively pursued their defense, including a petition for certiorari

that was denied by the United States Supreme Court.

Finally, presumably the Attorney General has not just relied on the analysis

of the Fourth Circuit on this issue in stating that he has no present intention to appeal

application of Bostic , but also on the three other courts of appeals and more than a dozen

district courts that have reached the same decision: discriminatory marriage laws are

unconstitutional.

B. The Putative Intervenors Cannot Rebut the Presumption of Adequate

Representation.

[W]here a proposed intervenors ultimate objective is the same as that of

an existing party, the partys representation is presumptively adequate, rebuttable only by

a showing of adverse interests, collusion, or nonfeasance. Stuart v. Huff , 706 F.3d 345,

350 (4th Cir. 2013). Moreover, where a party to the litigation is a government agency,

particularly the Attorney General, putative intervenors must put forth a very strong

showing of inadequacy of representation. Id . at 351. Here, the Attorney General shares

the same interest as the Putative Intervenorsnamely, protecting the interest of the State

of North Carolina. In its decision denying a nearly identical intervention motion in

General Synod of the United Church of Christ , the Western District of North Carolina

concluded:

[T]he interests of the proposed intervenors and the state defendants areidenticalto uphold and defend the laws of the State of North Carolina

No. 14A374, 2014 WL 5025970 (U.S. Oct. 8, 2014) (rescinding the stay for Idaho and Nevada).


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and that those interests have been adequately represented by the AttorneyGeneral throughout this litigation. While the proposed intervenors maywell not agree with admissions and concessions made by the statedefendants in their Answer (#104) and subsequent pleadings, thoseadmissions are clearly mandated by prevailing law in light of Bostic and theAttorney Generals obligations under Rule 11(b)(2).

Intervention Order, General Synod , No. 14-cv-00213, ECF No. 120 (W.D.N.C. Oct. 10,

2014).

Throughout the Fisher-Borne and Gerber litigations, the Attorney General

has vigorously defended North Carolinas laws excluding same-sex couples from

marriage. This defense included efforts to:

Dismiss both the complaint and amended complaint in Fisher-Borne (See Mot.to Dismiss Compl., 1:12-cv-589, ECF No. 27; Mot. to Dismiss Pls. AmendedCompl., 1:12-cv-589, ECF No 63; State Defs. Mot. to Dismiss Pls. FirstAmended Compl., 1:12-cv-589, ECF No. 65);

Oppose the Gerber plaintiffs motion for a preliminary injunction ( See StateDefs. Response in Opp. to Movants Mot. for Prelim. Inj., 1:12-cv-589, ECF

No. 88; Mem. of Law in Opp. to Pl.s Mot. for a Prelim. Inj., 1:12-cv-589, ECF

No. 89); and Stay both actions pending the outcome of the Fourth Circuits decision in

Bostic and the appeal of that decision to the Supreme Court ( See State Defs.Mot. to Stay Proceedings, 1:12-cv-589, ECF No. 84; State Defs. Reply to Pls.Objection to Magistrate Judges Recommendation Dated June 2, 2014, 1:12-cv-589, ECF No. 100; Def. Willie Covingtons Reply to Pl.s Objection toRecommendation of Magistrate Judge, 1:12-cv-589, ECF No. 101).

The Attorney Generals present determination that it would be a waste of state resources

to proceed in the face of binding and directly applicable circuit precedent does not

invalidate his two-and-a-half years of defense of these actions. Counsel is not required to

make clearly erroneous arguments inconsistent with Rule 11 of the Federal Rules of Civil

Procedure simply to keep fighting a lost battle, in contravention of clear constitutional


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precedent. 5 The Putative Intervenors argument that the Attorney Generals decision not

to pursue a wasteful and futile appeal amounts to mere disagreement over how to

approach the conduct of the litigation is not enough to rebut the presumption of

adequacy. Stuart , 706 F.3d at 353; see also id. at 354.

Indeed, the presumption of adequate representation would apply even if the

Attorney General had conceded that he was wrong to defend North Carolinas laws

excluding same-sex couples from marriage. The Attorney Generals job is to uphold the

constitution and to see that justice is done. See Saldano , 363 F.3d at 555 (criminal

context). The Fifth Circuit has held, for example, that an Attorney General did not

inadequately represent the interests of a state and putative intervenor (the district

attorney) by confessing error and waiving [the criminal defendants] procedural

default and choosing not to appeal the decision of the court, because the Attorney

Generals decision further[ed] the States goal of ensuring that capital sentencing is

untainted by racial prejudice. Id. at 554. Likewise, in the Actions before this Court,

even a concession by the Attorney General, after years of hard-fought litigation, that

binding and directly applicable circuit precedent calls the constitutionality of a statute

5 See Saldano v. Roach , 363 F.3d 545, 553-54 (5th Cir. 2004) (holding AttorneyGenerals decision not to appeal in order to avoid running afoul of clear constitutional

precedent did not render Attorney Generals representation inadequate); Little Rock Sch.

Dist. v. N. Little Rock Sch. Dist ., 378 F.3d 774, 781 (8th Cir. 2004) (findingrepresentation by government defendant to be adequate even though it declined to appealan adverse district court order); Orange Envt, Inc. v. Cnty. of Orange , 817 F. Supp.1051, 1060 (S.D.N.Y. 1993) (rejecting legislatures argument that the executives failureto appeal demonstrates that the representation by existing parties is inadequate); cf .Smith v. Robbins , 528 U.S. 259, 281 (2000) (noting counsels ethical duty as an officerof the court (which requires him not to present frivolous arguments)).


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into doubt would only further the States interest in ensuring the constitutionality of its

laws and the fair treatment of its citizens.

II. THE MOTION TO INTERVENE SHOULD FURTHER BE DENIED ASUNTIMELY, FUTILE, AND PREJUDICIAL.

A. The Motion To Intervene Is Untimely.

Both intervention of right and permissive intervention require the

application to be timely. Fed. R. Civ. P. 24(a)-(b); see also United Airlines, Inc. v.

McDonald , 432 U.S. 385, 387 (1988). In deciding a motion for intervention, timeliness is

a cardinal consideration, Houston General Ins. Co. v. Moore , 193 F.3d 838, 839 (4th

Cir. 1999), and where a proposed party fails to protect [its] interest in a timely fashion,

its motion to intervene should be denied. NAACP v. New York , 413 U.S. 35, 367-68

(1973); see also Gould v. Alleco , 883 F.2d 281, 286 (4th Cir. 1989). The timeliness of a

motion to intervene is determined by reference to the date when the movants learned

that intervention was needed to protect their interests. NAACP , 413 U.S. at 374. In

evaluating timeliness, one of the key considerations is the prejudice to the original

parties, particularly prejudice to the original parties due to the proposed intervenors

failure to promptly intervene after they knew or reasonably should have known of their

interest in the case. Stupak-Thrall v. Glickman , 226 F.3d 467, 473 (6th Cir. 2000).

The Putative Intervenors Intervention Motions are plainly untimely, and

they elected to sit by and failed to exercise whatever rights they may have had until the

Actions effectively had been resolved. Taken together, these actions have been ongoing

for more than two years. Fisher-Borne was filed in 2012, and amended six months ago.


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Gerber was filed six months ago. The Bostic action was appealed to the Fourth Circuit,

and affirmed on July 28, 2014. 6 The Putative Intervenors made no effort to intervene in

the Actions hereor even file amicus briefsduring this time, despite the fact that

dispositive motions were filed and fully briefed. 7 Instead, here, as in Gould , the Putative

Intervenors waited until the last possible momentafter two years of litigationto file

their petition. Id. , 883 F. 2d at 286.

The Putative Intervenors delayed even as they publicly expressed concerns

months earlier, during 2013 and 2014, that the Attorney General would not adequately

defend the statethe grounds they now give for seeking intervention. In August 2013,

the legislature passed a bill attempting to grant legislative leaders such as the Putative

Intervenors the ability to intervene in these actions, prompted by concerns that the

Attorney General would not fully defend one of these actions. Travis Fain, McCrory

clears desk of bills , N EWS & R ECORD ED., Aug. 24, 2013; Rob Christensen & David

6 It was clear from the outset that the Bostic case presented the same issues as thislitigation. Bostic included challenges to both the exclusion of same-sex couples frommarriage, and to the refusal by Virginia to recognize those marriages. As in this case,

Bostic involved challenges to both the statutory and state constitutional bans on marriagefor same-sex couples. Amicus briefs were also filed by over 50 other organizationssupporting opposing marriage for same-sex couples, including amici from other states.

Notably, the Putative Intervenors did not file anything before the Fourth Circuit, despitethe opportunity to do so.

7 The district court in General Synod of the United Church of Christ concluded thatintervention motion was timely. Order Denying Motion to Intervene at 2, General Synod of theUnited Church of Christ , No. 14-cv-00213, ECF No. 120 (W.D.N.C. Oct. 10, 2014). However,that case had only been pending for several months at the time of the intervention motion, seeid.; in contrast, Plaintiffs filed their complaint in Fisher-Borne over two years prior to the instantmotion. Additionally, as shown below, Putative Intervenors had vocally questioned the AttorneyGenerals handling of the Fisher-Borne Action since 2013. See infra.


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Bracken, McCrory signs regulatory overhaul plan , 32 more bills , THE NEWS &

OBSERVER , Aug. 23, 2013. And in December 2013, the Putative Intervenors issued a

public statement announcing that they ha[d] retained pro bono outside legal counsel to

advise them on the defense of North Carolinas constitutional amendment because

public political comments . . . by Attorney General Roy Cooper . . . have called into

question his willingness to defend broadly-supported North Carolina laws, and the

Attorney Generals actions have raised legitimate concerns about his ability to uphold

his oath of office. Sen. Phil Berger, Release, Dec. 20, 2013, http://www.philberger.com/

news/entry/berger-tillis-take-prudent-step-to-defend-will-of-n-c-voters.

Nor did the Putative Intervenors act when North Carolinas Attorney

General announced, on July 28, 2014, that his office no longer would oppose challenges

to Amendment One. Indeed, on July 30, 2014, in response to this announcement, the

Putative Intervenors personally expressed concern about the Attorney Generals actions,

stating that he was violating his oath of office. See, e.g ., Chris Fitzsimon, Progress,

despite objections , T HE LAURINBURG EXCHANGE , July 30, 2014; Anne Blythe & Andrew

Kenney, AG Roy Cooper says federal ruling may allow gay marriage in N.C ., T HE

COURIER -TRIBUNE , July 29, 2014.

The Putative Intervenors belated attempt to intervene now only would

compound the considerable injury that the Plaintiffs already have suffered as a result of

the States failure to recognize their constitutional rights. These cases have been pending

for years, and, as shown in Section II.C, the Plaintiffs have been suffering ongoing and

serious harm throughout this time. Given the Putative Intervenors regular public


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expressions of skepticism about the adequacy of the Attorney Generals representation,

there is no reason why they were unable to move prior to October 9, 2014. Their efforts

to intervene in an attempt to further delay the prejudice Plaintiffs already have suffered.

B. Intervention Is Futile Because Bostic Determines the Outcome of TheseActions, and the United States Supreme Court Has Already Chosen ToDeny Review.

Futility of the proposed claim or defense in intervention may be considered

in determining whether intervention is proper. See, e.g. , Houey v. Carolina First Bank ,

890 F. Supp. 2d 611, 623 (W.D.N.C. 2012), appeal dismissed (Nov. 28, 2012)

(considering futility in in denying intervention as of right and permissive intervention);

see also In re Fine Paper Antitrust Litig , 695 F.2d 494, 501 (3d Cir. 1982); Booker, Jr. v.

Dominion Virginia Power , 2010 WL 1286698 (E.D. Va. Mar. 26, 2010) (denying

intervention where it would be futile); Educ. Credit Mgmt. Corp . v. Bradco, Inc ., 2008

WL 2066993 (D. Kan. May 14, 2008) (citing Atkins v. Gen. Motors Corp ., 701 F.2d

1124, 1130 n. 5 (5th Cir. 1983)); Kirby v. Coastal Sales Assoc ., 199 F.R.D. 111, 118

(S.D.N.Y. 2001) (noting that legal futility is a basis for rejecting a proposed intervention

under Rule 24). As described above, the Putative Intervenors have no additional, non-

futile arguments to propose.

C. The Plaintiffs Would Be Prejudiced by the Delay.

Where intervention will result in undue delay in adjudication of the merits,

without a corresponding benefit to existing litigants, the courts, or the process,

permissive intervention should be denied. Stuart , 706 F.3d at 355 (affirming denial of

permissive intervention where adding intervenors would complicate the discovery


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process result in undue delays); see also United States v. N. Carolina , 2014 WL 494911

(M.D.N.C. Feb. 6, 2014) (denying permissive intervention where the participation of the

Putative Intervenors as two additional parties would consume additional and unnecessary

judicial resources, further complicate the discovery process, potentially unduly delay the

adjudication of the case on the merits, and generate little, if any, corresponding benefit to

the existing parties).

Where motions for preliminary injunction have been pending for six

months, with Plaintiffs suffering substantial and irreparable harm with each day that

passes, further delay in resolving these motions is not justified.

CONCLUSION

For the foregoing reasons, Plaintiffs respectfully request that the Putative

Intervenors motion to intervene be denied and the Court enter Plaintiffs proposed

judgment so there can be no question about Plaintiffs right to relief.

Dated: October 13, 2014

Of Counsel: /s/ Amy E. RichardsonAmy E. Richardson

N.C. State Bar No. 287682009 Fairview Road#6220Raleigh, NC 27628

Telephone: (919) 429-7386Facsimile: (202) [email protected]

Jonathan D. Sasser N.C. State Bar No. 10028Jeremy M. Falcone

Rose A. SaxeJames D. EsseksAmerican Civil Liberties Union Foundation125 Broad Street

New York, New York 10004-2400

Telephone: (212) 549-2500Facsimile: (212) [email protected]

[email protected]

Elizabeth O. GillAmerican Civil Liberties Union Foundation


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39 Drumm StreetSan Francisco, California 94111-4805Telephone: (415) 343-1237Facsimile: (415) [email protected]

Christopher Brook N.C. State Bar No. 33838ACLU of North CarolinaP.O. Box 28004Raleigh, North Carolina 27611-8004Telephone: (919) 834-3466Facsimile: (866) [email protected]

N.C. State Bar No. 36182P.O. Box 33550Raleigh, North Carolina 27636Telephone Number: (919) 865-7000Facsimile Number: (919) 865-7010

[email protected] [email protected]

Garrard R. BeeneyC. Megan BradleyWilliam R.A. KleysteuberSULLIVAN & CROMWELL LLP125 Broad Street

New York, New York 10004-2498Telephone: (212) 558-4000

Facsimile: (212) 558-3588 [email protected] [email protected] [email protected]

Attorneys for the Plaintiffs


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1

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF NORTH CAROLINA

MARCIE FISHER-BORNE, et al.,

Plaintiffs,v.

JOHN W. SMITH, et al.,

Defendants.

CIVIL ACTION NO. 1:12-cv-00589

ELLEN W. GERBER, et al.,

Plaintiffs,v.

ROY COOPER, et al.,

Defendants.

CIVIL ACTION NO. 1:14-cv-00299

DECLARATION OF CHRISTOPHER BROOK

CHRISTOPHER BROOK declares as follows:

1. I am admitted to the Bar of this Court and the Bar of the State of North Carolina

and am associated with the ACLU of North Carolina, counsel for the Plaintiffs in

the above-captioned action. I submit this Declaration in support of the Plaintiffs

Response to the Courts October 10 Order and Proposed Defendant-Intervenors

Motions to Intervene.

2. Attached as Exhibit 1 is a true and correct copy of an e-mail from Prof. Charles A.

Szypszak, Professor of Public Law and Government at the School of Government

of the University of North Carolina at Chapel Hill, sent to me on October 13,

2014 at 11:34 AM. The message forwards the contents of a message that, on

Case 1:12-cv-00589-WO-JEP Document 131-1 Filed 10/13/14 Pa e 1 of 2

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2

information and belief, Prof. Szypszak sent by e-mail to the Registers of Deeds

for all counties in North Carolina on or about October 6, 2014.

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

Dated: Raleigh, North CarolinaOctober 13, 2014.

/s/ Christopher Brook________Christopher Brook


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!"#$%'(#)* ,'-$

.)/01 !"#$%&'(")# +#'', -./#'',01.23'45.6'#782#3&1 9'5:1;< =.&'/)# >?< @A>B >>CBB D94/1 E2);%&)3/)#< F3:;G +#1:2);< 9)7152'(5#6&1 HI:C JK1$2 &' F)7$%&)#%

---------- Forwarded message ----------From: Szypszak, Charles A Date: Mon, Oct 13, 2014 at 11:34 AMSubject: RE: Email to RegistersTo: Christopher Brook < [email protected] >

!"#$ %&$ $'() *( +,)*-'. /0

Registers,

The U.S. Supreme Court has declined to hear the appeals of several same-sex marriage casesincluding the decision of the U.S. Court of Appeals for the Fourth Circuit, which held thatVirginias prohibitions on same-sex marriages are unconstitutional.

North Carolina is not a party to the Fourth Circuit case and the Supreme Courts decision doesnot have any immediate binding effect on you. This e-mail is a reminder of what may happennext.

There are several pending cases in North Carolina and some of you are parties to them. A NorthCarolina court may apply the Fourth Circuits decision and issue a ruling that North Carolinas

same-sex marriage ban is unconstitutional. If the court in which you are appearing issues anorder, you must comply with it and you should consult your legal counsel about what the ordermeans. It could order you as a party to start issuing marriage licenses regardless of gender, and ifyou did not want to comply with that order your counsel would have to ask the court or theFourth Circuit to put the order on hold. You would decide with your counsel whether you wantto do anything other than comply without challenge.


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You are not bound to follow a trial courts decision in a case in which you are not a party. It isappropriate for you to consider whether in carrying out your duties you should continue to applya restriction in a North Carolina state law if a court declares it to be unconstitutional. You mightconsider, for example, that a same-sex couple who wants a marriage license could file a legalaction against a register who refuses to issue one. You would have the right to appeal anydecision directly involving you through the courts. You should consider what is best for yourcounty, and consult with your county leadership and attorney.

As I explained at the conference, if by court order or otherwise you issue a license to a same-sexcouple you will have to alter the license form in a reasonable way with respect to gender. Thereis presently no legal direction about how specifically to do this. However, if a same-sex couple

becomes entitled to a license you could not insist that an applicant describe himself or herselfonly as a husband or wife. Someone could choose to be a spouse, for example.

Charles Szypszak

Professor of Public Law and Government

School of Government

University of North Carolina at Chapel Hill

E-mails sent to or from this e-mail address that relate to the School of Government's work are public records andmay be subject to public access under the North Carolina public records law.

From: Christopher Brook [mailto: [email protected] ]Sent: Monday, October 13, 2014 11:28 AMTo: Szypszak, Charles ASubject: Email to Registers

Professor Szypszak,


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I was hoping I could get a copy of the email you sent to Registers earlier this month about theimpact of a district court ruling. I received a copy of the thread from Bert Guiterrez last week butI was hoping to get one that has been passed here and there so much.

Thanks,

Chris

--

Christopher Brook

Legal Director

ACLU of North CarolinaP. O. Box 28004Raleigh, NC 27611-8004Phone: (919) 834-3466 Fax: (866) 511-1344 E-mail: [email protected] Website: www.acluofnc.org

========================================================================This communication is for use by the intended recipient and contains information that may be

privileged, confidential or copyrighted under applicable law. If you are not the intendedrecipient, you are hereby formally notified that any use, copying or distribution of thiscommunication, in whole or in part, is strictly prohibited. Please advise the sender immediately

by reply e-mail and delete this message and any attachments without retaining a copy. Thiscommunication does not constitute consent to the use of sender's contact information for directmarketing purposes or for transfers of data to third parties.

The views and opinions expressed in this communication do not necessarily reflect the official positions of the staff, management and directors of the American Civil Liberties Union, theAmerican Civil Liberties Union Foundation, its affiliates, or its chapters.


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--Christopher BrookLegal DirectorACLU of North CarolinaP. O. Box 28004Raleigh, NC 27611-8004Phone: (919) 834-3466Fax: (866) 511-1344E-mail: [email protected] Website: www.acluofnc.org

========================================================================This communication is for use by the intended recipient and contains information that may be

privileged, confidential or copyrighted under applicable law. If you are not the intendedrecipient, you are hereby formally notified that any use, copying or distribution of thiscommunication, in whole or in part, is strictly prohibited. Please advise the sender immediately

by reply e-mail and delete this message and any attachments without retaining a copy. This

communication does not constitute consent to the use of sender's contact information for directmarketing purposes or for transfers of data to third parties.

The views and opinions expressed in this communication do not necessarily reflect the official positions of the staff, management and directors of the American Civil Liberties Union, theAmerican Civil Liberties Union Foundation, its affiliates, or its chapters.

1:12-cv-00589 #131

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