8:14-cv-00356-JFB-TDT Doc # 42 Filed: 01/21/15 Page 1 of 8 - Page ID # 223

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEBRASKA
SUSAN WATERS and SALLY
WATERS, et al.,

Case No. 8:14-CV-356

Plaintiffs,
v.
STATE DEFENDANTS
BRIEF IN SUPPORT OF
MOTION TO STAY PROCEEDINGS

PETE RICKETTS in his official

capacity as Governor of Nebraska,
DOUG PETERSON in his official
capacity as Attorney General of
Nebraska, LEONARD J. SLOUP in
his official capacity as Acting Tax
Commissioner of the Nebraska
Department of Revenue, JOSEPH
ACIERNO in his official capacity as
Acting CEO of the Nebraska
Department of Health and Human
Services, and DAN NOLTE in his
official capacity as the Lancaster
County Clerk,
Defendants.

INTRODUCTION
The State Defendants submit this brief in support of their motion to stay
proceedings. Because the United States Supreme Court will, by the end of its
current term in June, bring ultimate clarification to the same Fourteenth
Amendment questions presented in this case, this Court should stay its proceedings
pending the Supreme Courts decision.

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LEGAL STANDARD
The power to stay proceedings is incidental to the power inherent in every
court to control the disposition of the causes on its docket with economy of time
and effort for itself, for counsel, and for litigants. Cottrell v. Duke, 737 F.3d
1238, 1248 (8th Cir. 2013) (quoting Landis v. N. Am. Co., 299 U.S. 248, 254
(1936). This necessarily includes the authority to stay a case pending the outcome
of superior court litigation which should resolve or clarify the issues in the instant
case.
The Supreme Court has held that the power to stay one case pending another
does not require identical parties or even identical issues. [W]e find ourselves
unable to assent to the suggestion that before proceedings in one suit may be
stayed to abide the proceedings in another, the parties to the two causes must be
shown to be the same and the issues identical. Landis, 299 U.S. at 254. The
efficiency and accuracy of resolving the current case with clarifying superior
authority need not take a backseat to brief delay in deciding the current proceeding.
True, a decision in the [unrelated case] may not settle every question of fact and
law in [the] suits [sought to be stayed], but in all likelihood it will settle many and
simplify them all. Id. at 253.

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ARGUMENT
On January 16th, the United States Supreme Court granted certiorari in four
consolidated cases in Obergefell v. Hodges, et.al, Case Nos. 14-556, 14-562, 14571, and 14-574, on the following questions:
1.

Does the Fourteenth Amendment require a state to license a marriage

between two people of the same sex?

2.

Does the Fourteenth Amendment require a state to recognize a

marriage between two people of the same sex when their marriage
was lawfully licensed and performed out-of-state?

See, http://www.supremecourt.gov/search.aspx?filename=/docketfiles/14-556.htm
The Fourteenth Amendment questions upon which certiorari was granted in
Obergefell are the same as the Fourteenth Amendment claims alleged by the three
counts of the Plaintiffs Amended Complaint. See, CM/ECF No. 9,pp23-27. The
Supreme Courts decision on these Fourteenth Amendment issues should be issued
by the end of the Courts current term in June.

Thus, in approximately five

months, this Court and the parties will have the benefit of a decision that should
greatly clarify, if not decide, the constitutional issues that are the subject of the
litigation in this case. In short, this case is on the path to being resolved by the
Supreme Courts decision in Obergefell.
warranted.

A stay of further proceedings is

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Yesterday, Chief Judge Ralph R. Erickson of the United States District

Court for the District of North Dakota, on that courts own motion, stayed further
proceedings in two same-sex marriage cases also raising the Fourteenth
Amendment issues which are presented in the Supreme Courts decision in the
Obergefell cases. See Ramsay v. Dalrymple, Case No. 3:14-CV-57, ECF Filing
No. 57 (D.N.D. Jan. 20, 2015); Jorgensen v. Montplaisir, Case No. 3:14-CV-58,
ECF Filing No. 53 (D.N.D. Jan. 20, 2015) (Text orders Staying Case[s] pending a
decision by the United States Supreme Court in four consolidated cases (14-556,
14-562, 14-571, 14-574). Ramsay is a declaratory judgment and injunctive suit
filed in June of 2014 by fourteen plaintiffs challenging, on Fourteenth Amendment
grounds, North Dakotas constitutional provision on the definition of marriage and
non-recognition of same-sex marriages. North Dakotas Constitution Article XI,
28 has essentially the same effective constitutional language concerning the
definition of marriage and non-recognition of same-sex marriages as Neb. Const.
Art. I, 29. North Dakotas Constitution states:
Marriage consists only of the legal union between a man and a
woman.

No other domestic union, however denominated, may be

recognized as a marriage or given the same or substantially equivalent legal

effect.
Nebraskas Constitution states:

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Only marriage between a man and a woman shall be valid or

recognized in Nebraska. The uniting of two persons of the same sex in a
civil union, domestic partnership, or other similar same-sex relationship
shall not be valid or recognized in Nebraska.
Even if a preliminary injunction were granted by this Court, the State
Defendants would necessarily appeal and raise the issue of granting a stay pending
a final decision by the Eighth Circuit. In Rosenbrahn v. Daugaard, 2015 U.S.
Dist. LEXIS 4018, 34-35 (D.S.D. Jan. 12, 2015), the District Court of South
Dakota enjoined Article 21, 9 of the South Dakota Constitution, and any other
provision of state law that precludes people from marrying, or refuses to recognize
an existing marriage, solely because the individuals are of the same gender are
unconstitutional because they violate the Due Process Clause and the Equal
Protection Clause of the Fourteenth Amendment.

South Dakotas Constitution

has the same effective language as the Constitutions of North Dakota and
Nebraska. The South Dakota federal court, on its own, stayed its decision on the
following rationale:
Nonetheless, cases raising substantial difficult or novel legal issues
may merit a stay.

Because the Eighth Circuit has not ruled on this issue,

this case presents novel and substantial legal questions, which weighs in
favor of a stay. . . . There is a public interest in requiring state officials to

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comply with the Constitution. In this case, however, an additional public

interest is present. There is a substantial public interest in having stable
marriage laws and avoiding uncertainty produced by a decision that is issued
and subsequently stayed by an appellate court or overturned. Encouraging
a rush to the marriage officiant, in an effort to get in before an appellate
court enters a stay, serves the interests of nobody. Brenner, 999 F. Supp. 2d
at 1292. Both district courts in the Eighth Circuit to rule on same-sex
marriage bans have stayed their decisions.

Because this case presents

substantial and novel legal questions, and because there is a substantial

public interest in uniformity and stability of the law, this court stays its
judgment pending appeal.
Id.
Assuming, for the sake of argument, that this Court issues a preliminary
injunction and denies a stay, the State Defendants would need to seek an
emergency stay from the Eighth Circuit Court of Appeals. There should be a high
likelihood that the Eighth Circuit would grant a stay of any preliminary injunction
in view of the pending Supreme Court decision in Obergefell. The anticipated
briefing schedule for an interlocutory appeal in the Eighth Circuit would overlap
the end of the Supreme Courts term, further warranting a stay to await clarity from
the Supreme Court.

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In summary, the likelihood that clarity is imminent from the Supreme Court
and that a stay of any preliminary injunction should be granted favors a stay of
further proceedings in this case pending the outcome of the Obergefell cases.
CONCLUSION
For the foregoing reasons, State Defendants respectfully request the Court
grant their Motion to Stay Proceedings.
Submitted January 21, 2015.
PETE RICKETTS, DOUG PETERSON,
LEONARD J. SLOUP, and JOSEPH ACIERNO,
State Defendants.
By:

DOUG PETERSON, NE #18146

Attorney General of Nebraska

By:

s/ David A. Lopez
David A. Lopez, NE #24947
Assistant Attorney General
James D. Smith, NE #15476
Solicitor General
David T. Bydalek, NE #19675
Chief Deputy Attorney General
Ryan S. Post, NE #24714
Danielle L. Jones, NE #25505
Assistant Attorneys General
OFFICE OF THE ATTORNEY GENERAL
2115 State Capitol
Lincoln, Nebraska 68509
(402) 471-2682
James.Smith@nebraska.gov
7

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Dave.Bydalek@nebraska.gov
Dave.Lopez@nebraska.gov
Ryan.Post@nebraska.gov
Danielle.Jones@nebraska.gov
Attorneys for State Defendants

CERTIFICATE OF SERVICE
I hereby certify that on January 21, 2015, I electronically filed the foregoing
document with the Clerk of the United States District Court for the District of
Nebraska, using the CM/ECF system, causing notice of such filing to be served
upon all parties counsel of record.
By:

s/ David A. Lopez