1:14-cv-01817 #16

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-1817 KATHERINE BURNS, et al. Plaintiffs, v. JOHN W. HICKENLOOPER, JR., in his official capacity as the Governor of Colorado, et al. Defendants.

DEFENDANTS’ MOTION TO STAY PROCEEDINGS AND NON-OPPOSITION TO PROPOSED PRELIMINARY INJUCNTION

Plaintiffs have filed a motion for preliminary injunction in this case. [Doc. #8.] In light

of the ruling by a merits panel of the Tenth Circuit in Kitchen v. Herbert, No. 13-4178

(10th Cir. June 25, 2014), affirming a district court injunction against the State of Utah

enforcing its marriage laws that limit marriage to one-man and one-woman, and thus

exclude couples of the same-sex, stayed pending final disposition of certiorari,

Defendants inform the Court that they do not oppose the attached agreed injunction,

stayed pending a final mandate in the Kitchen case. The Governor, the Attorney

General and the Jefferson County Clerk hereby move to stay all proceedings in this

case until such time as the Kitchen case becomes final.1 The Denver Clerk does not

1 The Attorney General has waived service filed an entry of appearance. The other three Defendants agree to this filing and anticipate waiving service and entering appearances in the near future.

Case 1:14-cv-01817-REB Document 16 Filed 07/02/14 USDC Colorado of 7

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oppose this motion agrees a stay is appropriate in this case due to the Kitchen decision,

but will file a separate motion to clarify her position. D.C.COLO.L.CivR 7.1.

I. NON-OPPOSITION TO STAYED, STIPULATED PRELIMINARY INJUNCTION.

On account of the Kitchen decision, the Defendants do not oppose the entry of a

preliminary injunctive relief in favor of the Plaintiffs based on their constitutional claims

at this time, to be stayed pending until all final appeals in the Kitchen case are resolved.

Defendants suggest that the preliminary injunction be stayed until 14 days after the

mandate issued from the Tenth Circuit in Kitchen, to give the Court and the parties

sufficient time to assess the impact of the Tenth Circuit’s final ruling as it applies to this

case. A form stipulated and stayed preliminary injunction is attached as Exhibit A to

this motion. The Plaintiffs have indicated they do not oppose the entry of a preliminary

injunction. D.C.COLO.L.CivR 7.1.

To provide a clear record - the Attorney General – speaking alone as Defendant,

representing the interests of the State of Colorado, believes the majority in the Tenth

Circuit’s 2-1 decision in Kitchen is incorrect for the reasons stated in his motion for

summary judgment and reply in support thereof in the pending state case, (Brinkman et

al. v. Long, et al. No. 13CV32572 (D. Ct. Adams Cnty Colo.)), and for the reasons

stated in the amicus brief Colorado joined in the Kitchen case (Amicus Br. of Indiana et

al., Case Nos. 13-4178, 14-5006 (10th Cir. 2014)).

To further clarify the record – the Governor and Denver Clerk – speaking alone as

Defendants, believe the majority decision in Kitchen was correctly decided.


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II. REASONS TO STAY THIS CASE.

Just as the Tenth Circuit stayed its decision in Kitchen, any order from this Court

must likewise be immediately stayed. Plaintiffs have indicated that they oppose the

request for a stay. D.C.COLO.L.CivR 7.1. The orderly administration of justice and the

rule of law strongly favor a stay. Quite simply, the Tenth Circuit’s decision staying the

Utah case is equally as authoritative as the merits of the decision (which Plaintiffs make

much of), and must be followed in this case. See Kitchen, slip op. 64-65 (staying case

pending final appeals); see also Order, Herbert v. Kitchen, No. 13A687 (U.S. Jan. 6,

2014) (granting stay of injunction pending appeal).2 These cases in the Tenth Circuit

and U.S. Supreme Court are definitive.

Consistent with the Tenth Circuit’s recent decision, the U.S. Supreme Court and

all four Federal Courts of Appeals (including one Circuit twice) that have reached this

precise issue have all issued stays in cases where State marriage laws were struck

down by a federal district court.3 There is no jurisprudential reason for orders striking

2 The text of the Supreme Court’s order reads as follows: “The application for stay

presented to Justice Sotomayor and by her referred to the Court is granted. The permanent injunction issued by the United States District Court for the District of Utah, No. 2:13-cv-217, on December 20, 2013, is stayed pending final disposition of the appeal by the United States Court of Appeals for the Tenth Circuit.”

3 Herbert v. Kitchen, 134 S.Ct. 893 (U.S. Jan. 6, 2014) (stay pending appeal granted); Kitchen v. Herbert, No. 13-4178, slip op. 64-65 (10th Cir. June 25, 2014) (same); Latta v. Otter, No. 14-35420 (9th Cir. May 20, 2014) (Idaho case - same) attached as Exhibit B; DeBoer v. Snyder, No. 14-1341 (6th Cir. Mar. 25, 2014) (Michigan case - same) attached as Exhibit C; see also Tanco v. Haslam, No.14-5297 *2 (6th Cir. April 25, 2014) (Tennessee case) (per curium) (“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


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down traditional marriage laws to be stayed in Oklahoma, Virginia, Utah, Kentucky,

Texas, Tennessee, Michigan, Indiana, Ohio, Idaho, and Wisconsin, but not in

Colorado.4 The purely procedural issue of staying the judgment so the parties can seek

an expedited review is simply the right thing to do. The message of all these decisions

is clear: rulings against traditional marriage laws in favor of same-sex marriage must be

stayed pending final appeals.

The alternative, an injunction allowing Colorado clerks to issue same-sex marriage

licenses for a day, or a few days, while the Tenth Circuit considers a request for a stay

pending appeal (which the Attorney General would immediately seek), would not

preserve the status quo, but instead would invite a race to the clerks’ office, result in

irreparable injury to the State, licenses issued under a legal cloud of uncertainty, and

undermine the predictable and standard judicial process for testing the constitutionality

of state laws.

appeal.”), attached as Exhibit D; Baskin v. Bogan, No. 14-2386 (7th Cir. June 27, 2014) (Indiana case - granting stay pending appeal), attached as Exhibit E.

4 District Court decisions granting stay: 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); Bourke v. Beshear, No.3:13-CV-750-H, 2014 WL 556729, at *14 (W.D. Ky. Feb. 12, 2014) (stay granted, noting “[i]t is best that these momentous changes occur upon full review, rather than risk premature implementation or confusing changes. That does not serve anyone well”); Henry v. Himes, No. 14-cv-129, 2014 WL 1512541, *1-2 (S.D. Ohio April 16, 2014) (stay pending appeal granted); Wolf v. Walker, No. 14-cv-64-bbc, 2014 WL 2693963 *12 (W.D. Wis. June 13, 2014) (“I do not interpret Geiger as undermining the Court’s order in Herbert...Because I see no way to distinguish this case from Herbert, I conclude that I must stay any injunctive relief pending appeal.”); see also n.5 infra.


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Plaintiffs evidently will ask this Court to disregard the legal conclusion of every

(not overturned) federal court to reach the issue. Plaintiffs may point to the three states

where marriage laws have been struck down and the State (or any named defendant)

has declined to appeal the decision. These decisions say nothing about a stay, as

Oregon, Illinois, and Pennsylvania never sought a stay.5 In no marriage case where the

State or a party defendant has requested a stay has a stay been ultimately denied.

The result in the many federal marriage cases being stayed is unsurprising given

the black letter law that a state suffers irreparable harm from its laws being enjoined.

“[I]t is clear that a state suffers irreparable injury whenever an enactment of its people . .

. is enjoined.” Coalition for Econ. Equity v. Wilson, 122 F.3d 718, 719 (9th Cir. 1997)

(citing New Motor Vehicle Bd. v. Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977)

(Rehnquist, J., in chambers) (“It also seems to me that any time a State is enjoined by a

court from effectuating statutes enacted by representatives of its people, it suffers a

form of irreparable injury.”)); see also O Centro Espirita Beneficiente Uniao De Vegetal

v. Ashcroft, 314 F.3d 463, 467 (10th Cir. 2002) (granting a stay of an injunction because

the state suffers irreparable harm when its statutes are enjoined); see also Planned

Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 134 S.Ct. 506, 506 (U.S.

5 The State of Oregon declined to defend its marriage law, making the lack of a stay unremarkable. Lee v. Orr, 2014 WL 683630 (N.D. Ill. Feb. 21, 2014). The State of Illinois likewise declined to defend its marriage law. Geiger v. Kitzhaber, No. 6:13-CV-01834-MC, 2014 WL 2054264 (D. Or. May 19, 2014). The State of Pennsylvania has not defended its marriage law since the decision was issued. Whitewood v. Wolf, No. 1:13-CV-1861, 2014 WL 2058105, at *1 (M.D. Pa. May 20, 2014). Also in Oregon, a non-party attempted to ask for a stay, but was ultimately unsuccessful as it was not a defendant in the case. See Nat’l Org. for Marriage, Inc. v. Geiger, No. 13A1173, 2014 WL 2514491 (U.S. June 4, 2014).


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2013) (same). Enjoining a state law as unconstitutional clearly creates an irreparable

injury.

More practically, the Utah situation serves as an example of the real world harms

that may occur absent a stay in this case. In Utah, the District Court and Circuit Court

declined to issue a stay; creating a race to the clerk’s office whereby many same-sex

couples hurried to obtain marriage licenses that were issued as a result of the district

court’s injunction. Days later, however, the Supreme Court granted a stay of the

injunction, and Utah’s laws that recognize marriage as a man-woman union went back

into effect and the state did not recognize the licenses that were issued prior to the

Supreme Court’s grant of the stay. That decision precipitated additional litigation

regarding the validity of the licenses issued in the gap time.

CONCLUSION

For the foregoing reasons, the Defendants ask that the Court to a stay, and the

proposed preliminary injunction subject to stay, pending a final mandate in the Kitchen

case in the Tenth Circuit. An proposed preliminary injunction is attached.

Respectfully submitted this 2nd day of July, 2014.

JOHN W. SUTHERS Attorney General _/s Michael Francisco______________ MICHAEL FRANCISCO* Assistant Solicitor General KATHRYN A. STARNELLA* Assistant Attorney General Attorneys for the Attorney General * Counsel of Record


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CERTIFICATE OF SERVICE I certify that on July 2, 2014, I served a true and complete copy of the foregoing motion on all counsel of record listed at CM/ECF:

Danielle C. Jefferis Darren M. Jankord David Arthur Lane Mari Anne Newman Killmer, Lane & Newman, LLP 1543 Champa Street, Ste 400 Denver, CO 80202 303-571-1000 Email: [email protected] [email protected] [email protected] [email protected] Attorneys for Plaintiffs

I certify that the following counsel were served a true and complete copy of the foregoing motion via email: Counsel for Governor John Hickenlooper Jack Finlaw ([email protected]) Ben Figa ([email protected]) Counsel for Denver County Clerk Wendy J. Shea ([email protected]) Counsel for Jefferson County Clerk Ellen Wakeman ([email protected]) Writer Mott ([email protected])


mailto:[email protected]






IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO Civil Action No. 14-cv-1817 KATHERINE BURNS, et al. Plaintiffs, v. JOHN W. HICKENLOOPER, JR., in his official capacity as the Governor of Colorado, et al Defendants.

[PROPOSED] STAY AND PRELIMINARY INJUNCTION

The Court preliminarily enjoins defendants from enforcing Colo. Const. art II, § 31; C.R.S. § 14-2-104(1)(b); and C.R.S. § 14-2-104(2) which defines marriage in Colorado as limited to one man and one woman and excludes same-sex couples from obtaining marriage licenses or having otherwise valid same-sex marriages recognized, pending the Tenth Circuit’s decision in the appeal in Kitchen v. Herbert, No. 13-4178 (10th Cir. June 25, 2014). In consideration of the Supreme Court’s decision to stay the district court’s injunction pending the appeal to the Tenth Circuit, and the Tenth Circuit’s stay of its mandate in the Kitchen decision, pending the disposition of a certiorari petition, in this case a stay is ordered and preliminary injunction ordered and stayed pending the final disposition of the Kitchen appeal and an issuance of a mandate in that case. This stay and preliminary injunction will remain in effect until 14 days after the Tenth Circuit issues the mandate in the Kitchen appeal at which time the Parties are directed to file a status update with this Court. SO ORDERED. ENTERED: July ___, 2014 HON. Robert E. Blackburn United States District Judge

Case 1:14-cv-01817-REB Document 16-1 Filed 07/02/14 USDC Colorado Page 1 of 1

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


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


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.

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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.

Case: 14-1341 Document: 22-1 Filed: 03/25/2014 Page: 1 (1 of 6)Case 1:14-cv-01817-REB Document 16-3 Filed 07/02/14 USDC Colorado Page 1 of 6

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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


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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


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.


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


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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


UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

Everett McKinley Dirksen United States Courthouse Room 2722 -‐‑ 219 S. Dearborn Street

Chicago, Illinois 60604

Office of the ClerkPhone: (312) 435-‐‑5850www.ca7.uscourts.gov

ORDER

June 27, 2014

Before

RICHARD A. POSNER, Circuit Judge

ANN CLAIRE WILLIAMS, Circuit Judge

DAVID F. HAMILTON, Circuit Judge

No.: 14-‐‑2386

MARILYN RAE BASKIN, et al.,Plaintiffs -‐‑ Appellees

v.

PENNY BOGAN, et al.,Defendants -‐‑ Appellants

No.: 14-‐‑2387

MIDORI FUJII, et al., Plaintiffs -‐‑ Appellees

v.

COMMISSIONER OF THE INDIANA STATE DEPARTMENT OFREVENUE, in his official capacity, et al., Defendants -‐‑ Appellants

No.: 14-‐‑2388

PAMELA LEE, et al.,Plaintiffs -‐‑ Appellees

v.

BRIAN ABBOTT, et al.,Defendants -‐‑ Appellants

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Nos. 14-‐‑2386, et al.

Originating Case Information:

District Court No: 1:14-‐‑cv-‐‑00355-‐‑RLY-‐‑TABSouthern District of Indiana, Indianapolis DivisionDistrict Judge Richard L. Young


District Court No: 1:14-‐‑cv-‐‑00404-‐‑RLY-‐‑TABSouthern District of Indiana, Indianapolis DivisionDistrict Judge Richard L. Young


District Court No: 1:14-‐‑cv-‐‑00406-‐‑RLY-‐‑MJDSouthern District of Indiana, Indianapolis DivisionDistrict Judge Richard L. Young

Upon consideration of the EMERGENCY MOTION FOR STAY PENDINGAPPEAL, filed on June 27, 2014, by counsel for the appellants,

IT IS ORDERED that the motion is GRANTED. The district court'ʹs order dated6/25/14 is STAYED pending resolution of this appeal.

form name: c7_Order_3J(form ID: 177)

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1:14-cv-01817 #16

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