Case: 13-4429 EQCF Dkt #24

Document: 003111466447

Page: 1

Date Filed: 11/27/2013

State of New Jersey

CHRIS CHRISTIE
Governor

OFFICE OF THE ATTORNEY GENERAL DEPARTMENT OF LAW AND PUBLIC SAFETY DIVISION OF LAW
25 MARKET STREET
PO Box

JOHN J. HOFFMAN
Acting Attorney General

KIM GUADAGNO
Lt. Governor

CHRISTOPHER S. PORRINO
Director

TRENTON, NJ 08625-0

November 27, 2013 Via Electronic Filing Marcia M. Waldron, Clerk of the Court United States Court of Appeals for the Third Circuit 21400 United States Courthouse 601 Market Street Philadelphia, PA 19106-1790 Re: Tara King, Ed.D., et al., v. Chris Christie, et al. Case No.: 13-4429 District Court Case No.: 13-CV-05038 CORRECTED Appellees Reply to Appellants Response to the Courts November 25, 2013 Order Dear Ms. Waldron: Please accept this letter on behalf of Appellees in reply to Appellants response to the Courts November 25, 2013 Order requiring Appellants compliance with Fed. R. App. P 8(a)(1)(C). Simply because Appellants lost below does not erase their obligation to comply with Rule 8 and seek relief, first, from the District Court. Appellants argue that requesting another injunction from the lower court while this appeal is pending is impracticable and futile. Although Appellants assert that they seek the same relief previously denied by the district court, Apps. Response, 3, Appellants never sought an injunction pending appeal in the District Court. Moreover, the District Court never considered, much less denied, a request for injunctive relief. The opinion below explains why. See King v. Christie, 2013 U.S. Dist. LEXIS 160035, at *2-4 (D.N.J. Nov. 8, 2013) (District

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Case: 13-4429

Document: 003111466447

Page: 2

Date Filed: 11/27/2013

November 26, 2013 Page 2 of 3 Court Dkt. No. 57). Briefly, although Appellants initially filed a motion for a preliminary injunction in the District Court, during an initial telephone conference, Appellants requested that the motion be converted into a motion for summary judgment. Because the parties agreed, the District Court so converted Appellants motion. (District Court Dkt. No. 13). Thereafter, Appellees filed a cross-motion motion for summary judgment. (District Court Dkt. No. 29). Accordingly, the District Court did not address the factors relevant to an application for injunctive relief. Rather, the District Court considered the motions for summary judgment and ruled solely upon the merits of Appellants claims. Appellants aim to evade the clear requirements of Rule 8. Pursuant to Fed. R. App. P. 8(a)(1)(C), "[a] party must ordinarily move first in the district court" for an injunction pending appeal. This is the cardinal principle of stay applications. Baker v. Adams County/Ohio Valley Sch. Bd., 310 F.3d 927, 930 (6th Cir. 2002) (quoting 16A Charles Alan Wright, Arthur R. Miller, & Edward H. Cooper, Federal Practice and Procedure 3954 (3d ed. 1999)). A failure to do so is grounds for denial of the motion. See Baker, 310 F.3d at 930 (even if [the court] were inclined to stay the judgment, [granting the relief] would be ill-advised[,] in part, because movant failed to move first in the district court for the relief sought); Torres v. Davis, 506 Fed. Appx. 98, 102 (3d Cir. 2012) (motion for injunction pending appeal also denied for failure to comply with Fed. R. App. P. 8(a)(1)). In Baker, the defendant filed a motion to stay the district courts judgment in the district court, but did not seek the specific relief sought in their motion for an injunction filed in the Court of Appeals. 310 F.3d at 930. The Sixth Circuit recognized that the defendant failed to comply with Rule 8 and denied the request for a stay pending appeal because the defendant did not so move below and ha[d] not made any showing that such a motion would have been impracticable. Id. at 931. Here, Appellants have not requested an injunction pending appeal from the District Court. Therefore, that Court, which is now well versed on the statute and issues involved in this matter, was afforded no opportunity to consider the relief sought by Appellants. The District Court should be provided with the opportunity to consider and rule on the reasons and evidence presented in support of [an injunction] and render findings as to whether the balancing weighs in favor or against an injunction pending appeal. Ruiz v. Estelle, 650 F.2d 555, 567 (5th Cir. 1981) (denying relief

Case: 13-4429

Document: 003111466447

Page: 3

Date Filed: 11/27/2013

November 26, 2013 Page 3 of 3 sought that was not raised in motion before district court); see also Aurora Bancshares Corp. v. Weston, 777 F.2d 385, 387-388 (7th Cir. 1985). Moreover, just as in Chemical Weapons Working Group v. Dept of the Army, the procedural history of this case belies Appellants claim that this motion and the appeal should be expedited. 101 F.3d 1360, 1361 (10th Cir. 1996). Appellants filed their suit challenging the constitutionality of N.J. Stat. Ann. 45:1-54, -55 three days after the statute became effective.1 In addition, Appellants waited two weeks after receiving the District Court judgment and filing a notice of appeal to file this motion for an injunction pending appeal. Finally, Appellants unilaterally proposed an expedited briefing schedule that expands their time in which to file a brief on the merits by eleven days,2 while simultaneously reducing Appellees time to file. Therefore, Appellants claim that this motion and appeal should be expedited is not credible in light of Appellants actions in prosecuting this matter. Thank you for your kind consideration in this matter. Respectfully submitted, JOHN J. HOFFMAN ACTING ATTORNEY GENERAL OF NEW JERSEY By: s/Susan M. Scott Susan M. Scott Deputy Attorney General

c:

All Counsel of Record via electronic filing

1

Notably, the Association Plaintiffs and their counsel had previously challenged a virtually identical statute in California. Pursuant to Fed. R. App. P. 31(a)(1), Appellants brief is due forty days after the record is filed. The record was filed on November 18, 2013. Therefore, Appellants brief would be due by December 28, 2013, which is a Saturday. Accordingly, Appellants brief would be due on December 30, 2013. Appellants propose, without any discussion with Appellees, that their brief be due on January 10, 2014, giving them an extra eleven days. After extending their time to file a brief, Appellants propose reducing Appellees time by twenty days.
2