4:14-cv-00107 #22

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

JAMES DOMER BRENNER, CHARLES ) DEAN JONES, STEPHEN SCHLAIRET ) and OZZIE RUSS, )Case No. 4:14-CV-00107-RH-CAS ) Plaintiffs, ) ) v. ) ) RICK SCOTT, in his official capacity as ) Governor of Florida, PAMELA BONDI, in her ) official capacity as Attorney General of Florida, ) JOHN H. ARMSTRONG, in his official capacity ) as Surgeon General and Secretary of Health for the ) State of Florida, CRAIG J. NICHOLS, in his ) official capacity as Agency Secretary for the ) Florida Department of Management Services, and ) HAROLD BAZZELL, in his official capacity as ) Clerk of Court and Comptroller for Washington ) County, Florida, ) ) Defendants, ) ) FLORIDA FAMILY ACTION, INC. ) ) Intervenor-Defendant.

___________________)

VERIFIED MOTION BY FLORIDA FAMILY ACTION, INC. FOR LEAVE TO INTERVENE AS A DEFENDANT AS OF RIGHT OR,

IN THE ALTERNATIVE, BY PERMISSION

(PARTIALLY CONSENTED)

PROPOSED INTERVENOR, Florida Family Action, Inc., (“FFAI”), by and

through counsel respectfully moves this Court for leave to intervene as of right pursuant

to Fed. R. Civ. P. 24(a), or, alternatively, by permission under Fed. R. Civ. P. 24(b), as a

Defendant, and in support thereof, states the following:

Case 4:14-cv-00107-RH-CAS Document 22 Filed 04/02/14 of 6

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1. Plaintiffs are asking this Court to superimpose Plaintiffs’ will onto the will

of the majority of Floridians, and to judicially repeal Amendment 2 of the Florida

Constitution, which was enacted by more than 60 percent of Florida voters on November

4, 2008, and was codified as Fla. Const. Art. I, §27: “Inasmuch as marriage is the legal

union of only one man and one woman as husband and wife, no other legal union that is

treated as marriage or the substantial equivalent thereof shall be valid or recognized.”

2. Plaintiffs claim that memorializing the definition of marriage in the

Florida Constitution, as well as in Florida Statutes §§741.212(1), (2), and (3), violates the

United States Constitution because Plaintiffs want their relationships with people of the

same sex, which, in the case of Plaintiffs Brenner and Jones was sanctioned in another

jurisdiction, to be validated by Florida laws. Plaintiffs expect Florida to reform its laws to

satisfy their desires to have marriage redefined so that they can obtain benefits and rights

that the people of Florida and the Florida Constitution require to be given only to the

union of one man and one woman. On that basis, Plaintiffs ask this Court to declare that

the Florida Constitution and Section 741.212 violate the United States Constitution.

3. Plaintiffs ask this Court to throw out and invalidate the votes of almost

five (5) million Floridians who voted to reaffirm the long-recognized definition of

marriage as the union between one man and one woman.1

1 The official results of the November 2008 General Election show that Amendment 2 received 4,890,883 “yes” votes (61.9 percent) and 3,008,026 “no” votes (38.1 percent). Florida Secretary of State, Division of Elections, November 8, 2008 General Election Results, available at http://election.dos.state.fl.us/elections/resultsarchive/Index.asp?ElectionDate=11/4/2008 (last visited February 20, 2014).


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4. FFAI is a non-profit 501(c)(4) cultural action organization with thousands

of members throughout Florida, including in Tallahassee.

5. FFAI’s mission is to inform, inspire and rally those who care deeply about

the family to greater involvement in the moral, cultural and political issues that face our

state. As part of this mission, FFAI works to preserve and protect marriage as a

foundational social institution, to educate Floridians on the underlying social goods

attendant to the institution of marriage, to strengthen marriages, and to promote a strong

foundational basis for raising children and ensuring the future of society.

6. FFAI’s members were instrumental in drafting Amendment 2, gathering

signatures to place it on the ballot, defending it against legal challenges in Florida courts,

including at the Florida Supreme Court, and educating and mobilizing voters to

ultimately approve Amendment 2.

7. After Amendment 2 was approved by the Florida Supreme Court and

enacted by the people of Florida, FFAI’s members continued to work throughout Florida,

including in Tallahassee, to preserve and protect marriage as an institution based upon

societal norms that teach, form and transform individuals, and that create stable and

optimal foundations for families and for the perpetuation of society. FFAI has worked for

years to strengthen the institution of marriage and to educate Floridians on the inherent

social goods which result from strong, natural marriages.

8. In qualifying Amendment 2 for the ballot and voting it into existence,

FFAI, its members, and the millions of Floridians who approved Amendment 2 exercised


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the right reserved to the people to amend the Constitution by initiative, under Article XI,

§3 of the Florida Constitution.

9. FFAI meets all requirements for intervention as of right, having a

recognized interest in the subject matter of the litigation that would be impaired by an

adverse ruling, and FFAI’s interest is not protected by the existing defendants.

Alternatively, FFAI meets all of the requirements for permissive intervention, as this

timely motion and the memorandum of law in support of this motion, filed

simultaneously herewith, show that FFAI has a defense that shares a common question of

law or fact and that intervention would not prejudice any parties or cause undue delay of

this case.

10. FFAI is ready and willing to file its Response to Plaintiff's Complaint,

which is attached hereto and incorporated by reference herein.

WHEREFORE, for good cause shown, FLORIDA FAMILY ACTION, INC.

respectfully requests that this Court grant its motion for leave to intervene as of right, or

alternatively, by permission, and that the Court provide all other further relief to which

FFAI may be entitled.

Respectfully Submitted,

Stephen M. Crampton LIBERTY COUNSEL P.O. Box 11108 Lynchburg, VA 24506 800-671-1776 [email protected] Attorneys for Proposed Intervenor FFAI

/s/ Horatio G. MihetMathew D. Staver

_____________

Anita L. Staver Horatio G. Mihet LIBERTY COUNSEL P.O. Box 540774 Orlando, FL 32854-0774 800-671-1776 [email protected]


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Pursuant to N.D. Fla. Local Rule 7.1(B), I certify that, prior to filing this motion, I

conferred with counsel for all served parties in a good faith attempt to resolve the matters

raised herein, with the following results:

CERTIFICATION OF CONFERRAL

1) Counsel for the State of Florida Defendants (Rick Scott, Pamela Bondi,

John H. Armstrong and Craig J. Nichols) indicated that they do not

oppose the relief requested herein;

2) The Clerk Defendant (Harold Bazzell) has not been served and has not

entered an appearance as of the filing of this Motion; and

3) Counsel for Plaintiffs indicated that they oppose this Motion.

/s/ Horatio G. Mihet HORATIO G. MIHET

__________

One of the Attorneys for FFAI

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was filed

electronically on April 2, 2014 via the Court’s CM/ECF system. Service will be

effectuated upon all parties and counsel of record via the Court’s electronic notification

system.

/s/ Horatio G. Mihet

HORATIO G. MIHET __________



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TALLAHASSEE DIVISION JAMES DOMER BRENNER, CHARLES ) DEAN JONES, STEPHEN SCHLAIRET ) and OZZIE RUSS, )Case No. 4:14-CV-00107-RH-CAS ) Plaintiffs, ) ) v. ) ) RICK SCOTT, in his official capacity as ) Governor of Florida, PAMELA BONDI, in her ) official capacity as Attorney General of Florida, ) JOHN H. ARMSTRONG, in his official capacity ) as Surgeon General and Secretary of Health for the ) State of Florida, CRAIG J. NICHOLS, in his ) official capacity as Agency Secretary for the ) Florida Department of Management Services, and ) HAROLD BAZZELL, in his official capacity as ) Clerk of Court and Comptroller for Washington ) County, Florida, ) ) Defendants, ) ) FLORIDA FAMILY ACTION, INC. ) ) Intervenor-Defendant )

MEMORANDUM OF LAW OF IN SUPPORT OF FLORIDA FAMILY ACTION, INC.’S MOTION TO INTERVENE

Proposed Intervenor, FLORIDA FAMILY ACTION, INC. ("FFAI"), by and

through counsel, respectfully submits the following Memorandum of Law in Support of

its concurrently-filed Verified Motion for Leave to Intervene as a Defendant, and

incorporates by reference the facts stated therein. FFAI respectfully requests that this

Court grant its motion to intervene as a matter of right under Fed. R. Civ. P. 24(a), or in

the alternative, grant it permissive intervention under Fed. R. Civ. P. 24(b).

Case 4:14-cv-00107-RH-CAS Document 22-1 Filed 04/02/14 Page 1 of 14

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INTRODUCTION

Plaintiffs’ attempt to judicially repeal a constitutional amendment initiated by

Florida citizens and overwhelmingly approved by nearly five (5) million Floridians seeks

to disenfranchise those voters, threatens fundamental constitutional rights, and attacks a

foundational societal institution – marriage – that FFAI and its members have fought long

and hard to preserve, strengthen, and protect. FFAI is a non-profit corporation that was

involved from the very beginning in the initiation, qualification, defense and passage of

Amendment 2. Its integral involvement in the development and passage of Amendment 2,

and its continuing efforts to preserve and protect the institution of marriage gives FFAI a

unique and substantial stake in the outcome of this constitutional challenge. FFAI’s

interests cannot be adequately protected unless it is permitted to intervene.

LEGAL ARGUMENT

FFAI is seeking intervention as of right under F. R. Civ. P. 24(a), or in the

alternative, permissive intervention under Rule 24(b). FFAI seeks to intervene as a

Defendant in order to protect the rights of its members and other Florida voters who face

disenfranchisement and loss of constitutional rights if Florida’s marriage amendment and

statutes are invalidated. FFAI easily satisfies the requirements of intervention as of right.

It has moved to intervene in a timely fashion, has a significant, legally protectable interest

in the outcome of this litigation, its interest will be substantially impaired by an adverse

decision, and its interests are not adequately represented by the existing parties.

Alternatively, FFAI should be granted permission to intervene as a Defendant to

safeguard its significant interests in protecting its constituents’ right to vote, as well as


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families, responsible procreation, and the optimal upbringing of children, currently

protected by Fla. Const. Art. I §27 and Fla. Stat. §741.212. FFAI satisfies the

requirements of permissive intervention because its motion is timely, it presents questions

of both law and fact in common with the underlying litigation, and its intervention will

not unduly delay, burden, or prejudice any existing party.

I. FFAI SATISFIES THE REQUIREMENTS FOR INTERVENTION AS OF RIGHT.

A party seeking to intervene as of right under Fed. R. Civ. P. 24(a) must

demonstrate that its petition is timely and that: 1) it has a recognized interest in the

subject matter of the litigation; 2) the interest is one that might be impaired by the

disposition of the case; and 3) the interest is not adequately protected by the existing

parties. Georgia v. United States Army Corps of Eng’rs, 302 F.3d 1242, 1250 (11th Cir.

2002). FFAI satisfies all of the requirements.

A. FFAI’s Motion is Timely.

Timeliness is a prerequisite for either intervention as of right or permissive

intervention. District courts must consider four factors in determining whether a motion

for intervention is timely: 1) the length of time that passed between when the proposed

intervenor became aware of its interest in the case and when it sought intervention; 2)

prejudice to the existing parties as a result of the proposed intervenor’s failure to apply as

soon as it was aware of its interest; 3) prejudice to the proposed intervenor if its petition

is denied; and (4) unusual circumstances militating either for or against a determination

that the application is timely. United States v. Jefferson Cnty., 720 F.2d 1511, 1516 (11th

Cir. 1983) (internal citation omitted). FFAI’s motion is timely under all of these factors.


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FFAI became aware that Plaintiffs had filed their Complaint on or about March 4,

2014, when summonses were issued for the Complaint that had been filed on February

28, 2014. Plaintiffs filed an Amended Complaint on March 18, 2014, only two weeks

before FFAI filed its motion to intervene, and the response deadline has not yet expired.

FFAI is prepared to file its response (submitted simultaneously with its Motion to

Intervene) to the Amended Complaint on or before the due date. FFAI is also ready and

able to respond to Defendants’ Amended Motion for Preliminary Injunction as directed

by the Court. Consequently, there will be no prejudice to the existing parties if FFAI is

permitted to intervene. Conversely, as discussed more fully below, FFAI will suffer

significant prejudice if it is not granted intervention at the early stages of this litigation,

when it can challenge Plaintiffs’ request for injunctive relief. Plaintiffs are asking this

Court to invalidate a state constitutional amendment adopted overwhelmingly by Florida

voters, due largely to FFAI’s efforts. FFAI therefore satisfies the timeliness prong for

both intervention as of right and permissive intervention.

B. FFAI has a Direct, Substantial and Legally Protectable Interest in Protecting Voters’ Rights to Amend the Constitution and Preserving the Definition of Marriage as the Union of one Man and one Woman.

FFAI’s integral involvement in every aspect of Amendment 2, and its continuing

work in preserving the definition of marriage give it the direct, substantial and legally

protectable interest necessary to intervene as a matter of right. Washington State Bldg.

and Construction Trades Council v. Spellman, 684 F.2d 627, 630 (9th Cir. 1982);

Georgia, 302 F.3d at 1249. Rule 24 traditionally has received a liberal construction in

favor of applicants for intervention. Spellman, 684 F.2d at 630. As a public interest group


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devoted to passage of Amendment 2, FFAI is entitled to intervention as a matter of right

under Rule 24(a), as was the public interest group in Spellman. Id. In another case

involving a challenge to a state definition of marriage as the union of one man and one

woman, the district court in Hawaii concluded that the Hawaii Family Foundation –

which like FFAI here, was instrumental in the passage of the state’s marriage amendment

and worked following its passage to continue to protect marriage – was entitled to

intervene as of right. Jackson v. Abercrombie, 282 F.R.D. 507, 513 (D. Haw. 2012). The

Jackson court found that “HFF through its actions aimed at getting the marriage

amendment ratified and ensuring that the definition of marriage as set forth in § 572–1 is

not changed, has ‘actively supported’ Hawaii's marriage laws such that it has a significant

protectable interest in this case.” Id. at 517. The same is true with FFAI here.

In Georgia, the state sought an order compelling the Corps to increase the supply

of water from Lake Lanier available for use by the city of Atlanta and to permit increased

wastewater discharges. Id. at 1250. The State of Florida sought to intervene, arguing that

Georgia’s requested relief would have a direct and adverse effect on its downstream

interests by hindering the continued existence of endangered or threatened species in

Florida and reducing the stock of fish and seafood available for harvest in the

Apalachicola River and Bay. Id. The Eleventh Circuit found that Florida had a legally

protectable interest in the quality and quantity of water in the Apalachicola River and

Bay, an interest that would be directly affected by Georgia’s request for increased

discharges from other water sources that fed in the Apalachicola River and Bay. Id. at

1251. This Court noted that, for purposes of intervention, Florida’s interest ‘“need not,


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however, be of a legal nature identical to that of the claims asserted in the main action.’”

Id. (quoting Chiles v. Thornburgh, 865 F.2d 1197, 1214 (11th Cir. 1989)). Therefore, the

fact that Georgia’s request involved only intrastate releases of water and increases in

discharges did not mean that Florida’s interest was not direct, substantial and legally

protectable. Id. Whenever the action of one state reaches into the territory of another, the

question of the extent and limitations of the respective rights of the states becomes a

matter of justiciable dispute between them. Id. Since the resolution of Georgia’s intrastate

water issues would affect Florida’s interest in related waterways, Florida satisfied the

direct, substantial and protectable interest requirement for intervention as of right. Id.

Similarly, in this case, FFAI satisfies the direct, substantial and protectable

interest requirement. FFAI’s interests in maintaining the integrity of the constitutional

amendment process in Florida, in protecting Floridians’ voting rights and the definition

of marriage as the union of one man and one woman for posterity, and in strengthening

intact biological families are directly at issue and will be substantially affected by

Plaintiffs’ challenge to Amendment 2. FFAI’s interests can be protected by its

participation as a Defendant. Therefore, as was true with the State of Florida in the

Georgia case and HFF in Jackson, FFAI has a significant interest in the subject matter of

this case and should be granted intervention as a matter of right.

C. FFAI’s Ability to Protect Its Interests will be Impaired by the Disposition of the Litigation.

FFAI will be utterly unable to protect its interests in the integrity of the

constitutional amendment process and preserving marriage as the union of one man and

one woman if this Court grants Plaintiffs’ request to invalidate Amendment 2. As is true


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here, where a party seeking to intervene in an action claims an interest in the very

property and very transaction that is the subject of the main action, the potential stare

decisis effect supplies the practical disadvantage which warrants intervention as of right.

Stone v. First Union Corp., 371 F.3d 1305, 1309-10 (11th Cir. 2004) (citing Chiles, 865

F.2d at 1214).

As was true with the proposed intervenors in Stone, the practical impairment

FFAI faces here is significant. If the Court judicially invalidates Amendment 2, then the

integrity of amendment process will be diminished and preservation of the definition of

marriage as the union of one man and one woman, with the concomitant efforts of

strengthening the institutions of marriage and the family, will be made all but impossible.

This Court’s decision will be cited as precedent for further attempts to repeal unpopular

constitutional amendments, which will diminish the right reserved to the people to amend

the state Constitution. FFAI’s efforts to preserve the definition of marriage and thereby

bolster the societal benefits of intact biological families will be significantly diminished,

if not eliminated, as proponents for re-defining marriage will point to this Court’s

decision as authority for further deconstructing the institution of marriage and its

attendant rights and obligations. As such, it is beyond question that Proposed Intervenor’s

interests will be impaired by the outcome of this litigation.

D. FFAI’s Interests are not Adequately Represented by Existing Parties.

While the proposed intervenor is required to show that his interests are not

represented by existing parties, this burden is “treated as minimal.” Georgia, 302 F.3d at

1255; Trbovich v. United Mine Workers, 404 U.S. 528, 538 n.10 (1972). The burden is


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satisfied if intervenors can demonstrate that the existing parties’ representation of their

interests “may be” inadequate. Trbovich, 404 U.S. at 538 n.10. As was true with Florida’s

interest in Georgia, FFAI’s interests here are independent of the interests of the parties.

While the governor and attorney general may defend the constitutionality of the marriage

amendment itself, FFAI, as an organization that assisted in the passage of the ballot

initiative, has an interest not only in the ballot process, but also in the validity of defining

marriage as the union of one man and one woman.

Intervention as of right should be granted when there is a difference in the

interests between the parties and the proposed intervenor. Stone v. First Union Corp., 371

F.3d 1305, 1312 (11th Cir. 2004). In Stone, the Eleventh Circuit reviewed the Southern

District of Florida's refusal to grant intervention to an intervening plaintiff in an

employment discrimination case. Id. The court reasoned that "[a]lthough all of the

plaintiffs allege to have been subject to the same plan of age discrimination, the manner

in which they were discriminated against may not be identical," and the court concluded

"the plaintiffs may wish to emphasize different aspects of First Union's employment

policies." Id. Thus, the court held "that the difference in interests is sufficient to

overcome the weak presumption of adequate representation." Id.

FFAI’s interest in the validity of defining marriage as the union of one man and

one woman as well as the integrity of the ballot process means that FFAI’s interests are

not identical to Defendants. Therefore, the presumption that Defendants, as governmental

agencies and officers will adequately represent FFAI’s interest does not apply. See

United States v. City of Miami, 278 F.3d 1174, 1179 (11th Cir. 2002). FFAI has a similar


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ultimate goal as the existing Defendants, i.e., ensuring that Amendment 2 and the

marriage statutes are upheld. However, FFAI’s interests reach beyond the state’s

ministerial interest in upholding duly enacted amendments and statutes, to the broader

issues of the societal benefits of preserving the definition of marriage as the union of one

man and one woman, the integrity of the electoral process, and the right of the voters to

amend the Constitution. Notably, Defendants in this case do not oppose FFAI’s

Intervention. (See Certificate of Conferral following Motion to Intervene).

Because FFAI’s interests reach beyond the government’s interest in merely

preventing the invalidation of the law, the presumption that the government adequately

represents its constituency when it is acting on its behalf is easily rebutted. Jackson, 282

F.R.D. at 517. In determining whether the proposed intervenor has rebutted the

presumption, courts consider several factors, including “(1) whether the interest of a

present party is such that it will undoubtedly make all of a proposed intervenor's

arguments; (2) whether the present party is capable and willing to make such arguments;

and (3) whether a proposed intervenor would offer any necessary elements to the

proceeding that other parties would neglect.” Id. at 517-18. Analysis of these factors in

this case shows that FFAI rebuts any presumption that the Defendants (who consent to

intervention) will adequately represent FFAI’s interest.

First, the government will not and cannot make all of FFAI’s proposed arguments.

Defendants are expected to argue that Amendment 2 and the challenged statutes are

validly enacted measures that do not violate the United States Constitution. However,

Defendants are not likely to make the further argument that invalidating the laws will


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threaten the reserved rights of the people of Florida (including FFAI’s members) to

amend the state Constitution. More importantly, Defendants are not well equipped to

make the public policy and social welfare arguments that underlie the memorialization of

the definition of marriage as the union of one man and one woman as part of the Florida

Constitution. After all, memorializing the definition of marriage in the state Constitution

was a citizen, not government, initiative. FFAI, which has been principally involved in

all aspects of that initiative, as well as continuing to preserve and protect the institution of

marriage since the passage of Amendment 2, is willing and capable of making these

arguments. In bringing these arguments to the case, FFAI will present elements that are

critical to this Court’s analysis of Plaintiffs’ challenge to the duly enacted laws of the

State of Florida. These arguments will enable the Court to have a comprehensive

perspective of the full ramifications of Plaintiffs’ claims.

Here, FFAI's interests are sufficiently different from those of the state to

overcome the weak presumption of adequate representation. FFAI’s interests reach

beyond the state’s general interest in validating duly enacted amendments and statutes.

FFAI's interests include: establishing the application of rational basis scrutiny and that

there are compelling interests for defining marriage as the union of one man and one

woman; arguing the broader issues of the societal benefits of preserving that definition of

marriage; and defending the integrity of the electoral process and the right of the voters to

amend the Constitution. As representatives of the State of Florida, the existing defendants

cannot adequately represent the unique and substantial interests of FFAI’s members, who


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assisted in developing and passing the amendment, and whose votes are threatened by

Plaintiffs’ challenge.

While the existing defendants will litigate this case with the best interests of the

state as a whole in mind, FFAI will provide further, more specific protection for the

interests of those who exercised their right to amend the Constitution. Because of this

divergence of interest, FFAI has rebutted the presumption of adequate representation by

the State and should be entitled to intervene as a matter of right.

II. FFAI SATISFIES THE STANDARDS FOR PERMISSIVE INTERVENTION.

Alternatively, this Court should find that FFAI meets the standards for permissive

intervention under Rule 24(b). Under Rule 24(b) “the court may permit anyone to

intervene who . . . has a claim or defense that shares with the main action a common

question of law or fact.” Fed. R. Civ. P. 24(b)(1)(B). “A court is given broad discretion to

allow a nonparty to intervene in a lawsuit where [1] the nonparty’s claim contains a

common question of law or fact and [2] intervention will not hinder the adjudication of

the original lawsuit.” Georgia 302 F.3d at 1250. When, as is true here, an issue involved

in the litigation is of critical importance to a proposed intervenor, its participation in the

litigation should not be discouraged. See Arizona v. California, 460 U.S. 605, 614 (1983)

(finding that Indian tribes should be granted permissive intervention in lawsuit involving

water rights).

As discussed more fully above, FFAI’s motion is timely. FFAI meets the other

standards for permissive intervention. Therefore its motion for permissive intervention

should be granted.


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A. FFAI’s Defense has Questions of Law and Fact in Common with Plaintiffs’ Claims.

After considering timeliness, the Court must determine whether the “applicant's

claim or defense and the main action have a question of law or fact in common.” Fed. R.

Civ. P. 24(b); see also Mitchell v. McCorstin, 728 F.2d 1422, 1423 (11th Cir. 1984).

“This determination is not discretionary.” Mitchell, 728 F.2d at 1423. In addition, courts

are to construe the interest requirement of section (b)(2) liberally. Stallworth v. Monsanto

Co., 558 F.2d 257, 269 (5th Cir. 1977).

FFAI’s interests in this litigation are wholly connected to, and the mirror image

of, Plaintiffs’ underlying claims and so are sufficiently intertwined to warrant permissive

intervention. Plaintiffs, Defendants and FFAI share an interest in determining the

constitutionality of the Florida marriage amendment and statutes. Defendants and FFAI

have related interests in defending these laws against Plaintiffs’ constitutional challenge,

and FFAI has additional private interests in asking this Court to uphold these laws. All of

those interests arise out of one common issue—whether the Florida amendment and

statutes defining marriage as the union of one man and one woman are constitutional.

Consequently, FFAI’s defense of the institution of marriage and of the people’s right to

amend the Constitution shares a common question of law and fact with Plaintiffs’

constitutional challenge. Therefore, FFAI should be granted permissive intervention.

B. FFAI’s Participation will not Unduly Delay or Prejudice any Party.

FFAI’s timely request for intervention, and its comprehensive perspective on the

validity of Amendment 2 and the statutes at issue, mean that its participation in the


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litigation will not unduly delay the proceedings nor prejudice any party. The question of

undue delay and prejudice of parties is discretionary. United States v. S. Florida Water

Mgmt. Dist., 922 F.2d 704, 712 (11th Cir. 1991). The consideration of delay is generally

heavily dependent on the timeliness question: “it is appropriate to consider the total

passage of time in determining the ultimate question of permissive intervention.” Worlds

v. Dep't of Health & Rehabilitative Servs., State of Fla., 929 F.2d 591, 595 (11th Cir.

1991).

Here, the Amended Complaint was filed only two weeks before FFAI filed the

instant motion, and the response deadline has not yet expired. Additionally, FFAI is not

adding to the issues in the litigation, but is merely seeking to provide a more

comprehensive perspective on the validity of the marriage amendment and statutes.

Consequently, allowing intervention would provide this Court with a more complete

record to enable it to make a just, speedy, and efficient determination of the critical

constitutional issues raised by Plaintiffs’ challenge. There will be little increased expense

or burden imposed on the parties. Therefore, FFAI will not unduly delay or prejudice any

party and should it be permitted to intervene.

CONCLUSION

FFAI meets the standards for intervention both as of right and by permission.

Therefore FFAI requests that this Court grant its motion to intervene as a matter of right,

or in the alternative, that it grant FFAI permissive intervention.


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Respectfully submitted,


/s/ Horatio G. Mihet_____________ Mathew D. Staver Anita L. Staver Horatio G. Mihet LIBERTY COUNSEL P.O. Box 540774 Orlando, FL 32854-0774 800-671-1776 [email protected]





system.

/s/ Horatio G. Mihet__________

HORATIO G. MIHET One of the Attorneys for FFAI


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TALLAHASSEE DIVISION JAMES DOMER BRENNER, CHARLES ) DEAN JONES, STEPHEN SCHLAIRET ) and OZZIE RUSS, )Case No. 4:14-CV-00107-RH-CAS ) Plaintiffs, ) ) v. ) ) RICK SCOTT, in his official capacity as ) Governor of Florida, PAMELA BONDI, in her ) official capacity as Attorney General of Florida, ) JOHN H. ARMSTRONG, in his official capacity ) as Surgeon General and Secretary of Health for the ) State of Florida, CRAIG J. NICHOLS, in his ) official capacity as Agency Secretary for the ) Florida Department of Management Services, and ) HAROLD BAZZELL, in his official capacity as ) Clerk of Court and Comptroller for Washington ) County, Florida, ) ) Defendants, ) ) FLORIDA FAMILY ACTION, INC., ) )

Intervenor Defendant. )

INTERVENOR DEFENDANT'S ANSWER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT

Intervenor-Defendant Florida Family Action, Inc., (“FFAI”) by and through

counsel, responds to Plaintiffs’ First Amended Complaint (dkt. 10) as follows:

INTRODUCTION

FFAI denies the facts alleged in the introductory paragraph of the Amended

Complaint and denies that Plaintiffs are entitled to any relief whatsoever, as stated further

below.


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1. FFAI does not have sufficient information to admit or to deny the

allegations in Paragraph 1, and therefore denies them.









6. FFAI admits that Plaintiffs’ same-sex relationship is not and cannot be

legally recognized as a marriage, which is defined as the union of one man and one

woman under the Florida Constitution and Florida statutes. FFAI does not have sufficient

information to admit or to deny the remaining allegations in Paragraph 6, and therefore

denies them.



8. FFAI admits that a same-sex couple cannot be recognized as legally

married under Florida law. As to the remaining allegations in Paragraph 8, FFAI does not

have sufficient information to admit or to deny the allegations and therefore denies them.




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4















28. FFAI admits the allegations of Paragraph 28.







34. FFAI denies each and every allegation of Paragraph 34.


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35. FFAI admits that Plaintiffs base their Complaint upon 42 U.S.C. §§1983

and 1988. FFAI denies each and every remaining allegation of Paragraph 35.



38. FFAI does not have sufficient information to admit or deny the allegations

in Paragraph 38 and on that basis denies each and every allegation.

39. FFAI admits that Paragraph 39 accurately states the text of Article I §27 of

the Florida Constitution.

40. FFAI admits that Paragraph 40 accurately states the text of the statute.

41. FFAI admits that Paragraph 41 accurately states the text of the statute.








49. FFAI incorporates by reference the averments and denials of Paragraphs

1-48 above.

50. FFAI admits that Paragraph 50 accurately states a portion of the text of the

Fourteenth Amendment to the United States Constitution.


6

51. FFAI admits that the right to marry—defined as the union of one man and

one woman—is a fundamental right under the United States Constitution and is protected

by the due process clause.










1-48 above.


Fourteenth Amendment of the United States Constitution.









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1-48 above.




1-48 above.

80. FFAI admits that Paragraph 80 accurately states the text of Article VI,

Section II of the United States Constitution.



83. Paragraph 83 consists entirely of legal conclusions to which no response is

required. To the extent a response is required, FFAI denies each and every allegation of

Paragraph 83.


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Paragraph 84.



Paragraph 85.



1-48 above.


First Amendment to the United States Constitution.

89. FFAI admits the allegation of Paragraph 89.





1-48 above.



96. FFAI denies each and every allegation of Paragraph 96, including the

allegations in subparagraphs a-r.



9





FFAI denies each and every allegation in the Complaint other than those

specifically admitted above.

RESIDUAL DENIAL

As a first defense, FFAI asserts that Plaintiffs fail to state a cause of action upon

which relief can be granted.

FIRST DEFENSE

As a second defense, FFAI asserts that Plaintiffs are not entitled to relief under

the doctrine of unclean hands.

SECOND DEFENSE

As a third defense, FFAI asserts that Plaintiffs are not entitled to relief because

they have failed to suffer any harm that can be attributed to the Defendants.

THIRD DEFENSE

As a fourth defense, FFAI asserts that Plaintiffs are not entitled to relief because

any injury that Plaintiffs might have suffered is attributable to their own actions.

FOURTH DEFENSE

As a fifth defense, FFAI asserts that in qualifying Amendment 2 for the ballot and

voting it into existence, FFAI, its members, and the millions of Floridians who approved

FIFTH DEFENSE


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Amendment 2 exercised the right reserved to the people to amend the Constitution by

initiative, under Article XI, §3 of the Florida Constitution, and to set the public policy of

their state. The relief sought by Plaintiffs in this action would require that those votes be

discarded, thereby violating the constitutional and statutory voting rights of millions of

Floridians, as well as their equal protection and due process rights.

As a sixth defense, FFAI asserts that Plaintiffs’ claims violate the separation of

powers doctrine and transgress the limits of the Tenth Amendment.

SIXTH DEFENSE

As a seventh defense, FFAI asserts that Article I §27 of the Florida Constitution

and Florida Stat. §741.212 serve the State’s compelling interest in protecting those

engaged in dangerous homosexual behaviors, children, and society’s cornerstone, the

family. These statutes are constitutional and similar statutes have been determined to be

constitutional in various other jurisdictions.

SEVENTH DEFENSE

WHEREFORE, Intervenor Defendant FFAI prays that Plaintiffs’ Complaint be

dismissed, with prejudice; that Plaintiffs take nothing by their Complaint; that Plaintiffs

be charged with the costs and expenses of this suit, including reasonable attorney’s fees;

and for such other and further relief as the Court shall deem just and proper.


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Respectfully submitted,


/s/ Horatio G. MihetMathew D. Staver

_____________

Anita L. Staver Horatio G. Mihet LIBERTY COUNSEL P.O. Box 540774 Orlando, FL 32854-0774 800-671-1776 [email protected]





system.

/s/ Horatio G. Mihet

HORATIO G. MIHET __________



4:14-cv-00107 #22

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