FOR THE SEVENTH CIRCUIT SCOTT WALKER, J.B. VAN HOLLEN ) AND OSKAR ANDERSON, ) ) Defendants-Appellants, ) ) v. ) Case No. 14-2526 ) VIRGINIA WOLF, et al., ) ) Plaintiffs-Appellees. ) _________________________________________________________________ Plaintiffs-Appellees Motion To Expedite Appeal And Consolidate Cases For Argument _________________________________________________________________ Pursuant to Fed. R. App. P. 2 and 7th Cir. R. 2, appellees Virginia Wolf, et al., through their attorneys, respectfully ask this Court to grant expedited treatment to this appeal from a district court decision holding Wisconsins marriage ban unconstitutional but staying relief. Plaintiffs also request that this appeal be heard by the same panel as, and consolidated for oral argument with, Baskin v. Bogan, No. 14-2386 (7th Cir. 2014). Expedited review and consolidation will allow the court to promptly and efficiently resolve issues of pressing public concern, and will shorten the length of time that Plaintiffs will be burdened by the stay. In support of their motion, Plaintiffs state as follows: Case: 14-2526 Document: 3-1 Filed: 07/11/2014 Pages: 10 (1 of 12) 2 1. On June 6, 2014, the United States District Court for the Western District of Wisconsin entered an order declaring that art. XIII, 13 of the Wisconsin Constitution, which limits marriage in the State to different- sex couples and prohibits recognition of marriages entered into by same-sex couples elsewhere, violates plaintiffs fundamental right to marry and their right to equal protection of laws under the Fourteenth Amendment to the United States Constitution. ECF No. 118 at 87. 1 The court further declared that any Wisconsin statute limiting marriage to a husband and a wife is similarly unconstitutional as applied to same-sex couples. Id. 2. On June 13, 2014, the court issued an injunction in support of its June 6 decision. ECF No. 134 at 12-13. At the same time it issued this order ending enforcement of Wisconsins marriage ban, the court stayed all relief pending appeal. Id. at 13-14. 3. Fed. R. App. P. 2 recognizes that there may be extraordinary situations, involving either the public interest or the concerns of expeditious judicial administration, where it becomes inappropriate to follow the sometimes-leisurely pace established by the Rules for filing of a printed record (or appendix), the preparation and filing of regular briefs, and the submission with oral argument. 16A Charles A. Wright, Arthur R. Miller, 1 Unless otherwise noted, all ECF numbers refer to Wolf, et al., v. Walker, et al., No. 14-cv-64 (W.D. Wis. 2014). Case: 14-2526 Document: 3-1 Filed: 07/11/2014 Pages: 10 (2 of 12) 3 Edward H. Cooper & Catherine T. Struve, Federal Practice & Procedure 3948, at 28-30 (4th ed. 2008) (footnotes and internal quotation marks omitted). As the 1967 Advisory Committee Note to Fed. R. App. P. 2 states: The primary purpose of this rule is to make clear the power of the courts of appeals to expedite the determination of cases of pressing concern to the public or to the litigants by prescribing a time schedule other than that provided by the rules. 4. Expedited review is warranted in this case. Expedited treatment is necessary and proper . . . where important public policy issues are involved. Groendyke Transport, Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969). See also Wisconsin Right to Life State Political Action Comm. v. Barland, 664 F.3d 139, 146 (7th Cir. 2011) (expedited appeal granted in case involving First Amendment challenge to Wisconsins campaign finance laws); Second City Music, Inc. v. City of Chicago, 333 F.3d 846, 847 (7th Cir. 2003) (granting expedited appeal in preliminary injunction case challenging constitutionality of city ordinance). 5. To begin with, the district courts stay of its ruling prevents Plaintiffs and all same-sex couples from marrying in Wisconsin or having their out-of-state marriages recognized in the State. The stay thus continues the deprivation of constitutional rights that Wisconsins marriage ban inflicts, causing Plaintiffs and other same-sex couples to suffer irreparable Case: 14-2526 Document: 3-1 Filed: 07/11/2014 Pages: 10 (3 of 12) 4 harm for as long as the stay is in effect. See Elrod v. Burns, 427 U.S. 347, 373 (1976) (A deprivation of constitutional rights, for even minimal periods of time, unquestionably constitutes irreparable injury.). Moreover, all of Wisconsin has been left in limbo, not knowing when or whether thousands of its citizens will be allowed to enjoy the protections, obligations, benefits, andabove alldignity that marriage confers on a couple and a family. 6. This uncertainty has tangible consequences. For example, Plaintiff Karina Willes, who married Plaintiff Kami Young in Minnesota in December 2013, was not allowed to identify herself as a parent on her daughters birth certificate because she is denied the presumption of parenthood that marriage entails. Until Willes marriage to Kami Young is recognized, her legal relationship to her daughter remains uncertain. Similarly, Plaintiffs Hurtubise and Palmer are denied access to the step- parent adoption process for jointly adopting their children because of their inability to marry. The stay perpetuates Wisconsins marriage ban, and thereby continues the humiliat[ion of] tens of thousands of children now being raised by same-sex couples by plac[ing] same-sex couples in an unstable position of being in a second-tier marriage. Windsor v. United States, 133 S. Ct. 2675, 2694 (2013). 7. The importance of clarity with regard to marriage rights cannot be overstated. Recognizing the need for swift resolution of this issue, this Case: 14-2526 Document: 3-1 Filed: 07/11/2014 Pages: 10 (4 of 12) 5 Circuit last month granted expedited review of three Indiana cases involving that states marriage ban. See Baskin v. Bogan, No. 14-2386, ECF No. 14 (7th Cir. June 30, 2014). 8. Simultaneous review of these cases both involving marriage bans by the same panel would be advantageous for the Court for three reasons. 9. First, the two cases arise from states with different legal regimes related to marriage and to same-sex relationships. Indianas marriage ban is statutory, and prohibits only marriage for same-sex couples, not other legal arrangements such as civil unions. Wisconsins ban, by contrast, is rooted in an amendment to the state constitution, passed by a statewide vote, which prohibits not only marriage, but also any substantially similar legal relationship for same-sex couples. Wis. Const. art XIII, 13. At the same time, Wisconsin recognizes domestic partnerships, which confer a limited set of rights and benefits, while Indiana provides no alternative legal protections for the relationships of same-sex couples. Consideration of these background legal differences has the potential to inform the Courts conclusions regarding the constitutional issues raised. 10. Second, and relatedly, Defendants and Amici in this case have raised additional legal arguments in defense of Wisconsins ban that did not arise in Baskin. For example, both Defendants and Amici defend the ban on federalism grounds, emphasizing Wisconsins prerogative to regulate Case: 14-2526 Document: 3-1 Filed: 07/11/2014 Pages: 10 (5 of 12) 6 marriage by denying it to same-sex couples while offering them domestic partnerships instead, as well as the need to protect state democratic processes, including the process resulting in its constitutional amendment banning marriage for same-sex couples. ECF No. 102 at 14-25. In light of the federalism concerns raised in United States v. Windsor, 133 S. Ct. 2675 (2013), addressing and resolving those arguments is essential to a conclusive resolution of the constitutional issues. In addition, Defendants have raised the federal constitutional argument that the Due Process Clause does not confer any rights that require affirmative support or endorsement by the state (in Defendants parlance, positive rights). ECF No. 102 at 8-14. By consolidating the cases, the Court will gain the advantage of considering any of the broader range of arguments the Wisconsin state defendants may choose to make at the same time it addresses arguments from the State of Indiana. 11. Finally, given the importance of the issues involved and the need for thoughtful analysis, this Court should avail itself of the trial courts closely-reasoned, well-informed, and thorough 87-page opinion in this matter. 12. In addition to the reasons given above, this case should be heard as soon as possible because Wisconsin continues to have on its books a statute making it a crime to leave the state to enter into a marriage that would be void in Wisconsin. Wis. Stat. s. 765.30(1)(a). Although two previous Case: 14-2526 Document: 3-1 Filed: 07/11/2014 Pages: 10 (6 of 12) 7 district attorney defendants in this case declared that they did not believe the statute applied to marriages of same-sex couples (and therefore they would not prosecute married Plaintiffs), ECF No. 55-1, their interpretation is not binding on any of the other district attorneys in the state. 2 Resolution of the constitutional issues in this case will put to rest any fear on the part of same- sex couples that they could be prosecuted for marrying outside of Wisconsin. 13. Finally, other federal Courts of Appeals have entered accelerated briefing schedules in similar cases challenging state restrictions on the freedom to marry for same-sex couples. See Kitchen v. Herbert, No. 13-4178 (ECF No. 01019177155, at 2) (10th Cir. Dec. 24, 2013) (expediting briefing and argument); Bostic v. Schaefer No. 14-1167 (ECF No. 38) (4th Cir.) (expediting briefing and argument); Latta v. Otter, No. 14-35420, ECF No. 11 (9th Cir. May 20, 2014) (expediting briefing). And this Court issued an expedited briefing order in the Indiana marriage cases as well. Baskin, No. 14-2386, ECF No. 14 (7th Cir. June 30, 2014). The issues presented by the state of Wisconsin and Wisconsin couples in this case raise issues every bit as pressing as the other cases, and should be resolved as swiftly as practicable. 14. Expediting this appeal would not prejudice Defendants. As Defendants themselves have acknowledged, [r]ecognition of same-sex 2 Those district attorneys were dismissed from the case because of their stipulation. ECF No. 97 at 3-4. Case: 14-2526 Document: 3-1 Filed: 07/11/2014 Pages: 10 (7 of 12) 8 marriages is a hotly contested issue. State Defendants Memorandum in Support of Contingent Motion for Stay, ECF No. 116 at 10 (quoting Tanco v. Haslam, No. 14-5297 at 2 (6th Cir. Apr. 25, 2014)). Defendant Van Hollen has also stated his desire to ensure that Wisconsin is placed on equal footing with Indiana, and that our constitution and laws are given timely consideration by the appellate judges. July 10, 2014 News Release (attached hereto as Exhibit A). Further, this case was decided on a Motion for Summary Judgment, demonstrating that the contested issues are entirely legal. Both sides are well-versed in their arguments and could prepare briefs in a short time. Indeed, in the previously filed appeal in this case, Defendants were ready to present arguments to this Court on an emergency basis. See June 9, 2014 Emergency Motion for Stay, Wolf, et al., v. Walker, et al., No. 14- 2266 (7th Cir. June 9, 2014), ECF No. 2. 15. Accordingly, Plaintiffs respectfully request that this Court expedite review of this appeal and establish the following briefing schedule: Opening Brief to be filed by July 25, 2014. Response due by August 8, 2014. Reply due August 15, 2014. 3 Plaintiffs further request that this appeal be assigned to the same panel that is hearing Baskin, and that the matters be 3 The proposed schedule is consistent with the schedule ordered by the Seventh Circuit on June 30 in the Baskin case. See Baskin No. 14-2386, ECF No. 14 (7th Cir. June 30, 2014). Plaintiffs are willing to file their brief on an even more expedited schedule if necessary to consolidate oral argument. Case: 14-2526 Document: 3-1 Filed: 07/11/2014 Pages: 10 (8 of 12) 9 consolidated for oral argument, to be scheduled promptly following the deadline for the reply brief in this matter. Dated: July 11, 2014 Respectfully submitted, By: s/ John A. Knight Counsel for Plaintiffs JOHN A. KNIGHT American Civil Liberties Union Foundation Lesbian Gay Bisexual Transgender Project 180 North Michigan Ave., Ste. 2300 Chicago, IL 60601 (312) 201-9740 jaknight@aclu.org JAMES D. ESSEKS American Civil Liberties Union Foundation Lesbian Gay Bisexual Transgender Project 125 Broad Street New York, NY 10004 (212) 549-2623 jesseks@aclu.org LAURENCE J. DUPUIS American Civil Liberties Union of Wisconsin Foundation 207 E. Buffalo St., Ste. 325 Milwaukee, WI 53202 (414) 272-4032 ldupuis@aclu-wi.org HANS J. GERMANN GRETCHEN E. HELFRICH FRANK DICKERSON Mayer Brown LLP 71 S. Wacker Dr. Chicago, IL 60606 (312) 782-0600 hgermann@mayerbrown.com ghelfrich@mayerbrown.com fdickerson@mayerbrown.com Case: 14-2526 Document: 3-1 Filed: 07/11/2014 Pages: 10 (9 of 12) 10 CERTIFICATE OF SERVICE I certify that on July 11, 2014, I electronically filed the foregoing Plaintiffs-Appellees Motion To Expedite Appeal And Consolidate Cases For Argument with the Clerk of the Court using the CM/ECF system, which will accomplish electronic notice and service for the following participants in the case, who are registered CM/ECF users: Paul Bargren Thomas C. Bellavia Michael D. Dean Frank M. Dickerson Laurence J. Dupuis David Gault Gretchen E. Helfrich Clayton P. Kawski Timothy C. Samuelson I also certify that I sent via email the foregoing Plaintiffs-Appellees Motion To Expedite Appeal And Consolidate Cases For Argument to the following: James D. Esseks (jesseks@aclu.org) Hans Joseph Germann (hgermann@mayerbrown.com) John Paul Serketich (john.serketich@goracine.org) s/ John A. Knight Case: 14-2526 Document: 3-1 Filed: 07/11/2014 Pages: 10 (10 of 12) Case: 14-2526 Document: 3-2 Filed: 07/11/2014 Pages: 2 (11 of 12) Case: 14-2526 Document: 3-2 Filed: 07/11/2014 Pages: 2 (12 of 12)
Noonan South, Inc., A/K/A Noonan-Killos, Inc., A Pennsylvania Corporation v. The County of Volusia, A County in Florida, 841 F.2d 380, 11th Cir. (1988)
W. J. Estelle, JR., Director, Texas Department of Correstions v. William Wayne Justice, U. S. District Judge For The Eastern District of Texas, 426 U.S. 925 (1976)