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No. 14-2266
IN THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
Virginia Wolf, et al.
Plaintiffs-Appellees,
v.
Scott Walker, et al.
Defendants-Appellants.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT, WESTERN
DISTRICT OF WISCONSIN, CASE NO. 14-CV-64,
THE HONORABLE BARBARA B. CRABB, PRESIDING
STATE DEFENDANTS-APPELLANTSMEMORANDUM ADDRESSING JURISDICTION
This Court has jurisdiction over State Defendants appeal of the district
courts constructive denial of their Contingent Motion to Stay because their
appeal raises issues separate from the underlying merits that will be
effectively unreviewable on final review. As a result, this Court has
jurisdiction under the collateral order doctrine pursuant to 28 U.S.C. 1291.
Defendants-Appellants Scott Walker, J.B. Van Hollen, and Oskar Anderson
(collectively, State Defendants), pursuant to this Courts June 9, 2014 order
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(7th Circ. ECF 4), hereby submit this memorandum addressing whether this
Court has jurisdiction over this appeal.
In State Defendants Contingent Motion to Stay, filed on May 23, 2014
(ECF 114, 115, 116), State Defendants requested that any relief granted
[by the district court] be immediately stayed at the time it is ordered to
preserve the status quo for when an appeal is filed. (ECF 114:2.) The
district court, in its June 6, 2014, Opinion and Order, granted Plaintiffs
motion for summary judgment and entered an order declaring
unconstitutional certain provisions of the Wisconsin Constitution and
Wisconsin Statutes. (ECF 118:87, 3.) The district court, however, declined
to address the Contingent Motion to Stay until afterthe parties fully briefed
the scope of any injunction order. (Id., at 4.)
Following the June 6, 2014, Opinion and Order, hundreds of same-sex
couples have obtained marriage licenses and married notwithstanding
Wis. Const. art. XIII, 13 (the Marriage Amendment) that prohibits this.
Moreover, the laws are being applied in an uneven, haphazard manner.
Some counties are issuing marriage licenses to same-sex couples while others
are not. This uncertainty, confusion, and uneven application of state laws is
precisely what State Defendants sought to avoid in their Contingent Motion
to Stay.
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INTRODUCTION
The district courts June 6, 2014, Opinion and Order (ECF 118) is a
final adjudication of some, but not all, claims in this case. The district court
granted Plaintiffs motion for summary judgment and entered an order
declaring that the Marriage Amendment and certain provisions of the
Wisconsin Statutes restricting the legal status of marriage to opposite-sex
couples violate the substantive due process and equal protection rights of
same-sex couples under the Fourteenth Amendment to the United States
Constitution. (ECF 118:87, 2-3.) That declaration has the force and effect
of a final judgment as to the rights and legal relations of the parties
regarding the constitutionality of the challenged provisions of Wisconsin law.
28 U.S.C. 2201(a). Nonetheless, the district court expressly refrained from
issuing any of the injunctive relief Plaintiffs requested, instead issuing a
briefing schedule for further proceedings regarding the scope of proposed
injunctive relief. (ECF 118:87, 4.)
Immediately following the district courts June 6, 2014, Opinion and
Order, hundreds of same-sex couples began seeking marriage licenses and
were married.
On June 9, 2014, the district court held a motion hearing regarding
State Defendants Emergency Motion to Stay (ECF 119) and denied the
motion. (ECF 125). Among other things, the district court stated that if any
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county clerks issued marriage licenses to same-sex couples, they did not do so
at the courts behest:
They may have acted and they may have acted in response, but they
did not act because I told them they could. I never -- I never saidanything about whether any county clerk could go forward with issuing
a marriage license. That hasn't been decided.
(See Samuelson Declaration (Decl.) at 5, Ex. C, 11:19-23.)
The district court stated that it would likely stay the proceedings:
I think it would be remiss of me not to say that I anticipate that there
will be a stay in this case simply because that's what every federal
court has done in similar situations and similar rulings. And then withthe one exception of the Oregon case in which there was no opposition,
the Supreme Court has stepped in and issued stays. So I think that's
pretty much a fact of life.
(See Decl. at 5, Ex. C, 18:11-19:3)
The June 9, 2014 hearing resulted in even more uncertainty. (See Decl.
3-4, Ex. A, B.) After the hearing, for example, different media sources
reported opposite results. Compare Decl. 3, Ex. A (Judge . . . says she
didnt authorize weddings) with 4, Ex. B (Federal judge declines to stop
gay marriages in Wisconsin). The Wisconsin State Journal stated that:
Dane County Clerk Scott McDonell, who has been issuing marriage
licenses to same-sex couples since Friday, said it means that clerks can
continue to carry on as they are now, because Crabbs ruling on Friday
declaring the law to be unconstitutional means that it is no longer ineffect.
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(Decl. 3, Ex. A.) And some, but not all, counties continued to issue
marriage licenses to same-sex couples. The ability to obtain a marriage
license thus depends on ones residence.
Pursuant to the district courts June 6, 2014, opinion and order, Plaintiffs
submitted their proposed permanent injunction on June 9, 2014 (ECF 126,
126-1) and State Defendants filed their response on June 11, 2014 (ECF 128.)
As of this filing, the district court has not ordered injunctive relief, a
final judgment, or ruled on State Defendants Contingent Motion to Stay.
The district court has scheduled a hearing on the injunction for June 13, 2014
at 1:00 p.m.; it has not further addressed the status of State Defendants
Contingent Motion to Stay, which remains effectively denied.
JURISDICTIONAL ARGUMENT
I. This Court Has Jurisdiction Under 28 U.S.C. 1291 and theCollateral Order Doctrine.State Defendants Contingent Motion to Stay, which had been filed on
May 23, 2014, asked the district court to immediatelystay any order granting
Plaintiffs motion for summary judgment, in whole or in part, to preserve the
status quofor appeal. (ECF 114.) By declaring the rights and legal relations
of the parties as to the constitutionality of the challenged provisions of
Wisconsin law while indefinitely postponing a decision on State Defendants
Contingent Motion to Stay, the district court effectively denied State
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Defendants request for an immediate stay of any order granting Plaintiffs
motion for summary judgment.
The subject of the present appeal is that constructive denial of the State
Defendants request for an immediate stay that would effectively preserve the
legal status quo in Wisconsin and prevent the introduction of uncertainty,
inconsistency, and confusion into state marriage law. Plaintiffs request for
injunctive relief remains pending before the district court, as does that courts
further consideration of State Defendants Contingent Motion to Stay.
Although some claims remain for disposition in the district court, the
Seventh Circuit has jurisdiction over the present appeal under
28 U.S.C. 1291 and the collateral order doctrine. See Cohen v. Beneficial
Indus. Loan Corp., 337 U.S. 541, 546 (7th Cir. 1949). Collateral order review
is based on a practical construction of the final judgment requirement
embodied in 28 U.S.C. 1291. See Ott v. City of Milwaukee, 682 F.3d 552,
554 (7th Cir. 2012). The doctrine permits an immediate appeal under
28 U.S.C. 1291 of an interlocutory decision if: (1) the decision conclusively
determines an important issue; (2) that issue is collateral to the merits of the
action; (3) the issue would be effectively unreviewable if immediate appeal
were not available; and (4) the appellant is threatened with irreparable harm
if an appeal is not permitted. Midland Asphalt Corp. v. United States, 489
U.S. 794, 799 (1989); Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978);
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Cohen, 337 U.S. at 546; United States v. Michelles Lounge, 39 F.3d 684, 692-
93 (7th Cir. 1994).
The district courts constructive denial of State Defendants request for an
immediate stay of its order to preserve the status quo pending appeal
satisfies the four requirements of the collateral order doctrine.
First, the district courts action has conclusively determined the important
issue of whether the legal status quo in Wisconsin should be preserved
pending an appeal on the merits of the case. Although the district courts
Opinion and Order of June 6, 2014, purported to hold in abeyance a decision
on State Defendants Contingent Motion to Stay, the courts action of
declaring the challenged provisions of Wisconsin law unconstitutional while
postponing a decision on the State Defendants request to preserve the status
quohas opened the door for some county clerks to immediately begin issuing
marriage licenses to same-sex couples, thereby conclusively disrupting the
status quo that the State Defendants sought to preserve. Moreover, the
importance of the State of Wisconsins interest in avoiding confusion,
uncertainty, and inconsistency in the interpretation and enforcement of state
marriage law is indisputable.
Second, the issue of whether the legal status quo in Wisconsin should be
preserved pending an appeal is clearly collateral to the merits of the action.
The Seventh Circuit can resolve the present appeal simply by granting the
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stay pending appeal that the district court has refused to grant, without
having to reach the underlying merits of the case at this time.
Third, the issue of preserving the legal status quo would be effectively
unreviewable if an immediate appeal is not available. The district courts
action has already disrupted the status quo, and nothing that the district
court might do in the future could provide State Defendants with meaningful
relief or a meaningful opportunity for appellate review of a stay. If the
district court, at some point in the future, were to issue an order granting the
State Defendants Contingent Motion to Stay, neither that order nor any
order on appeal would sufficiently preserve the status quo that has already
been disrupted. Conversely, if the district court were in the future to deny
the Contingent Motion to Stay, any subsequent appellate review of that
denial would likewise be insufficient to preserve the already-disrupted status
quo. Meaningful and effective review of the State Defendants request to
preserve the status quo pending appeal is only possible if review is
immediate.
Fourth, State Defendants will be irreparably harmed if an immediate
appeal is not permitted. The declaratory relief already granted by the
district court prevents the State of Wisconsin from enforcing a state
constitutional provision overwhelmingly ratified by the people of this State as
well as numerous marriage statutes enacted by the duly elected
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representatives of the people. Any time a court prevents a State from giving
effect to its duly enacted laws, the State suffers a form of irreparable injury.
See Illinois Liberty PAC v. Madigan, 902 F. Supp. 2d 1113, 1127
(N.D. Ill. 2012) (citing Maryland v. King,133 S. Ct. 1, 3 (2012) (Roberts, C.J.,
in chambers) (quoting New Motor Vehicle Bd. v. Orrin W. Fox Co.,434 U.S.
1345, 1351 (1977) (Rehnquist, C.J., in chambers));Aid for Women v. Foulston,
441 F.3d 1101, 1119 (10th Cir. 2006) (same); Coalition for Econ. Equality v.
Wilson, 122 F.3d 718, 719 (9th Cir. 1997) (same)).
Therefore, the Seventh Circuit has jurisdiction over this appeal under
28 U.S.C. 1291 and the collateral order doctrine.
II. This Court Has Jurisdiction Under 28 U.S.C. 1291 and thePractical Finality Doctrine.
In the alternative, the Seventh Circuit has jurisdiction of this appeal
pursuant to 28 U.S.C. 1291 and the practical finality doctrine. See Travis v.
Sullivan, 985 F.2d 919, 922-23 (7th Cir. 1993). That doctrine, which is
closely related to the collateral order doctrine, permits an immediate appeal
of a district court order under 28 U.S.C. 1291 if that order would be
effectively unreviewable on a subsequent appeal following resolution of the
merits of the litigation. Id.; see also Richardson v. Penfold, 900 F.2d 116, 118
(7th Cir. 1990); Crowder v. Sullivan, 897 F.2d 252 (7th Cir. 1990)
(per curiam). Here, State Defendants have requested immediate action to
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preserve the status quopending appeal, and any meaningful consideration of
that request must likewise be immediate. Conversely, if consideration of that
request is delayed, the request is effectively denied. The district courts
failure to grant the State Defendants Contingent Motion to Stay thus would
be effectively unreviewable in a subsequent appeal on the merits. The
practical finality doctrine therefore applies, and the Seventh Circuit has
jurisdiction under 28 U.S.C. 1291.
III.
This Court Has Jurisdiction Under 28 U.S.C. 1292(a)(1).
In the second alternative, the Seventh Circuit has jurisdiction because
appellate review of an interlocutory order may be obtained under
28 U.S.C. 1292(a)(1) if the order has both the effect of granting or refusing
an injunction and if an appeal will further the statutory purpose of
permitting litigants to effectually challenge interlocutory orders of serious,
perhaps irreparable consequence. Carson v. American Brands, Inc., 450
U.S. 79, 84 (1980) (internal punctuation and citations omitted); see also
Matter of Forty-Eight Insulations, Inc., 115 F.3d 1294, 1300 (7th Circ. 1997).
Here, the district courts June 6, 2014, Opinion and Order declare[d] the
rights and other legal relations of the parties with regard to the
constitutionality of the challenged provisions of Wisconsin law.
28 U.S.C. 2201(a). Although such a declaratory judgment is not a true
injunction because it cannot be enforced by contempt proceedings, it has the
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same effect as an injunction in fixing the parties legal entitlements.
Badger Catholic, Inc. v. Walsh, 620 F.3d 775, 782 (7th Cir. 2010). Moreover,
by failing to grant an immediate stay of its order granting a declaration, the
district court has disrupted the legal status quo, thereby causing irreparable
harm to the States interest in the consistent and uniform enforcement of
duly enacted state laws. Under these circumstances, permitting an
immediate appeal of the district courts failure to preserve the status quowill
allow State Defendants to effectively challenge the district courts action,
thereby furthering the statutory purpose of 28 U.S.C. 1292(a)(1).
The doctrine set forth in Carson and in Matter of Forty-Eight
Insulations, Inc., thus applies here and, pursuant to it, the Seventh Circuit
has jurisdiction over this appeal under 28 U.S.C. 1292(a)(1).
IV. Cleaver v. Elias is Inapposite.On June 10, 2014, the Court entered an order (7th Circ. ECF 5) that
was ultimately vacated as erroneously issued (7th Circ. ECF 6). The vacated
order cited Cleaver v. Elias, 852 F.2d 266 (7th Cir. 1988), for the general
proposition that an appeal may not be taken in a civil case until a final
judgment disposing of all claims against all parties is entered on the district
courts civil docket pursuant to Fed. R. Civ. P. 58. (7th Circ. ECF 5.) In
Cleaver, the plaintiffs-appellees sought a declaration from the district court
but filed their appeal before the district court entered any declaratory relief.
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Cleaver, 852 F.2d at 267. The Cleaver plaintiffs-appellees invoked the
collateral order doctrine in an appeal on the merits. Id. Finally, the
plaintiffs-appellees act of filing an appeal delayed the district court
proceedings, resulting in the district court terminating a hearing literally in
mid-hearing because it lacked jurisdiction. Id.
None of the Cleaver facts are present here. First, State Defendants
appealed the district courts constructive denial of their Contingent Motion to
Stay, an issue that is completely separate from the merits of the action.
Cleaver, 852 F.2d at 267 (citing Coopers & Lybrand v. Livesay, 437 U.S. 468
(1978)); (ECF 121:3). Second, the district court entered an order granting
declaratory relief in the present case whereas, the Cleaver court had entered
no relief at all. Cleaver, 852 F.2d at 267; (ECF 118:87, 3). Third, the
present appeal has not divested the district court of jurisdiction over all
issues beyond the discrete issue appealed. This was confirmed by the parties
and the court at the June 9, 2014 hearing. (See Decl. at 5, Ex. C, 6:22-24,
9:4-7) (State Defendants are not asserting that [the district court] lacks
jurisdiction over the injunctive relief still at issue; the court stated that an
appeal from an interlocutory decision does not bar the District Court from
finishing the work that it still has to do.). Fourth, the district courts rulings
have created a chaotic circumstance where its order declaring Wisconsin laws
unconstitutionalbut not enjoinedleaves county clerks confused as to
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whether they can (or must) issue marriage licenses to same-sex couples to
comply with the district courts order. This, coupled with the uncertain
public perception of the orders, illustrates the unique and time sensitive
nature of this important case. (See Decl. 3-4, Ex. A, B.)
In sum, Cleaver involved an attorney who prematurely filed an appeal
before the district court granted any relief, effectively delaying the
proceedings and incorrectly asserting the collateral order doctrine on a merits
based appeal. It is factually distinguishable from the present case.
V. The Contingent Motion to Stay Seeks to Preserve the StatusQuo Ante.
The vacated order of June 10, 2014, also expressed the view that the
district court had not constructively denied defendants-appellants
Contingent Motion to Stay, primarily because an injunction has yet to be
entered. (7th Circ. ECF 5) That statement fails to grasp the essence of State
Defendants position. The district court issued a declaratory order
invalidating provisions of state law. That order changed the status of the
state law applicable to the official duties of the three defendant Wisconsin
county clerks. As a result of that change created by the district court, two of
those clerks have modified their behavior by ceasing to follow the laws
declared invalid, while the third has continued to observe the status quo ante,
pending a final judgment by the district court. Prior to the district courts
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action, the State Defendantsin their Contingent Motion to Staymoved
the district court to immediatelystay any order invalidating the challenged
state laws in order to preserve the status quo ante pending appeal. The
district courts action of changing the legal status quo while delaying a
decision on the Contingent Motion to Stay is a conclusive denial of the State
Defendants request for immediate relief and irreparably harms the State of
Wisconsins interest in preserving clarity and uniformity in the
administration of its laws. Contrary to the statement in the vacated order of
June 10, 2014, therefore, the district courtwhile purporting to delay a
decision on the Contingent Motion to Stayactually constructively denied
the heart of the relief requested in that motion.
VI. Defendant McDonell and Czarnezkis JurisdictionalMemoranda Ignores the Collateral Order Doctrine, Practical
Finality Doctrine, and 28 U.S.C. 1292(a)(1).
Defendant Scott McDonell, Dane County Clerk, submitted a
Supplemental Memorandum regarding appellate jurisdiction
(7th Circ. ECF 11) and Defendant Joseph Czarnezki, Milwaukee County
Clerk,submitted a Memorandum of Law in Opposition to Jurisdiction in this
Court (7th Circ. ECF 13-1). Neither McDonell nor Czarnezkis memoranda
addresses State Defendants reliance upon the collateral order doctrine, the
practical finality doctrine, or 28 U.S.C. 1292(a)(1) as to the district courts
constructive denial of the Contingent Stay Motion. Contrary to their
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memoranda, State Defendants are not appealing the merits of the district
courts June 6, 2014, Opinion and Order. State Defendants appeal the
narrow portion of the district courts order constructively denying their
Contingent Stay Motion. This was a proper assertion of the collateral order
doctrine because it presents an issue separate from the merits. Apostol v.
Gallion, 870 F.2d 1335, 1338 (7th Cir. 1989); see also I, supra.
CONCLUSION
State Defendants respectfully request this Court confer jurisdiction
over State Defendants appeal of the district courts constructive denial of
their Contingent Motion to Stay.
Dated this 11th day of June, 2014.
Respectfully submitted,
J.B. VAN HOLLEN
Attorney General
s/Timothy C. Samuelson
TIMOTHY C. SAMUELSON
Assistant Attorney General
State Bar #1089968
THOMAS C. BELLAVIAAssistant Attorney General
State Bar #1030182
CLAYTON P. KAWSKI
Assistant Attorney General
State Bar #1066228
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Attorneys for Defendants,
Scott Walker, J.B. Van Hollen,
and Oskar Anderson
Wisconsin Department of Justice
Post Office Box 7857
Madison, Wisconsin 53707-7857
(608) 266-3542 (Samuelson)(608) 266-8690 (Bellavia)
(608) 266-7477 (Kawski)
(608) 267-2223 (fax)
samuelsontc@doj.state.wi.us
bellaviatc@doj.state.wi.us
kawskicp@doj.state.wi.us
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No. 14-2266
IN THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
Virginia Wolf, et al.
Plaintiffs-Appellees,
v.
Scott Walker, et al.
Defendants-Appellants.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT, WESTERN
DISTRICT OF WISCONSIN, CASE NO. 14-CV-64,
THE HONORABLE BARBARA B. CRABB, PRESIDING
DECLARATION OF TIMOTHY C. SAMUELSONIN SUPPORT OF STATE DEFENDANTS-APPELLANTS
MEMORANDUM ADDRESSING JURISDICTION
I, Timothy C. Samuelson, pursuant to 28 U.S.C. 1746, hereby declare as
follows:
1. I am one of Defendants-Appellants Walker, Van Hollen, andAndersons (the State Defendants) attorneys in the above-captioned matter.
I make this Declaration based on my own personal knowledge and based
upon the sources described.
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- 2 -
2. I make this Declaration in support of State DefendantsMemorandum addressing jurisdiction.
3. Attached hereto as Exhibit Ais a true and correct copy of an articletitled, Judge Declines to Stay Marriage Ban Ruling, but Says She Didnt
Authorize Weddings, written by Ed Treleven, published by the Wisconsin
State Journal on June 9 2014.
4. Attached hereto as Exhibit B is a true and correct copy of anAssociated Press article titled Federal Judge Declines to Stop Gay Marriages
in Wisconsin, written by Jason Stein, Patrick Marley & Dana Ferguson,
published by the Milwaukee Journal Sentinel on June 9, 2014.
5. Attached hereto as Exhibit C is a true and correct copy of thetranscript from the motion hearing held before District Judge Barbara B.
Crabb on June 9, 2014.
6. Attached hereto as Exhibit D is a true and correct copy of thisCourts Order (ECF 125), denying State Defendants motion for an emergency
stay.
7. I declare under penalty of perjury that the foregoing is true andcorrect.
Dated this 11th day of June 2014.
s/Timothy C. Samuelson
TIMOTHY C. SAMUELSON
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Exhibit A
Case: 14-2266 Document: 14-3 Filed: 06/11/2014 Pages: 4 (19 of
http://host.madison.com/users/profile/Ed%20Trelevenhttp://host.madison.com/news/local/crime_and_courts/judge-declines-to-stay-marriage-ban-ruling-but-says-she/article_e3b7d56c-85ef-545b-9b06-9312ea677d77.html#commentshttp://host.madison.com/gallery/news/local/govt-and-politics/photos-first-same-sex-marriage-licenses-issued-in-dane-county/collection_f3ec8cdb-f395-53ef-b21c-cffefc9c3dc6.htmlhttp://host.madison.com/gallery/news/local/govt-and-politics/photos-first-same-sex-marriage-licenses-issued-in-dane-county/collection_f3ec8cdb-f395-53ef-b21c-cffefc9c3dc6.htmlhttp://host.madison.com/http://host.madison.com/wsj/http://host.madison.com/wsj/news/http://host.madison.com/gay-marriage-ban-struck-down/collection_88e62650-ede2-11e3-a491-001a4bcf887a.html#utm_source=host.madison.com&utm_campaign=hot-topics-2&utm_medium=directhttp://host.madison.com/news/slideshow-wisconsin-state-journal-coverage-of-d-day-from/article_0d977b1c-ec1f-11e3-bf4a-0019bb2963f4.html#utm_source=host.madison.com&utm_campaign=hot-topics-2&utm_medium=directhttp://host.madison.com/news/local/interactive/quiz-know-your-wisconsin-pests/html_1f8b0b14-e2b9-11e3-aecb-0019bb2963f4.html#utm_source=host.madison.com&utm_campaign=hot-topics-2&utm_medium=directhttp://host.madison.com/ct/news/local/writers/steven_elbow/report-looks-at-how-and-why-bicyclists-die/article_c511e8d2-b8a1-5eb2-89a0-c9fca2554435.html#utm_source=host.madison.com&utm_campaign=hot-topics-2&utm_medium=directhttp://host.madison.com/ct/news/local/writers/steven_elbow/report-looks-at-how-and-why-bicyclists-die/article_c511e8d2-b8a1-5eb2-89a0-c9fca2554435.html#utm_source=host.madison.com&utm_campaign=hot-topics-2&utm_medium=directhttp://host.madison.com/news/local/interactive/quiz-know-your-wisconsin-pests/html_1f8b0b14-e2b9-11e3-aecb-0019bb2963f4.html#utm_source=host.madison.com&utm_campaign=hot-topics-2&utm_medium=directhttp://host.madison.com/news/slideshow-wisconsin-state-journal-coverage-of-d-day-from/article_0d977b1c-ec1f-11e3-bf4a-0019bb2963f4.html#utm_source=host.madison.com&utm_campaign=hot-topics-2&utm_medium=directhttp://host.madison.com/gay-marriage-ban-struck-down/collection_88e62650-ede2-11e3-a491-001a4bcf887a.html#utm_source=host.madison.com&utm_campaign=hot-topics-2&utm_medium=directhttp://host.madison.com/wsj/news/http://host.madison.com/wsj/http://host.madison.com/http://host.madison.com/gallery/news/local/govt-and-politics/photos-first-same-sex-marriage-licenses-issued-in-dane-county/collection_f3ec8cdb-f395-53ef-b21c-cffefc9c3dc6.htmlhttp://host.madison.com/news/local/govt-and-politics/photos-first-same-sex-marriage-licenses-issued-in-dane-county/collection_f3ec8cdb-f395-53ef-b21c-cffefc9c3dc6.htmlhttp://host.madison.com/news/local/crime_and_courts/judge-declines-to-stay-marriage-ban-ruling-but-says-she/article_e3b7d56c-85ef-545b-9b06-9312ea677d77.html#commentshttp://host.madison.com/users/profile/Ed%20Trelevenhttp://host.madison.com/wsj8/12/2019 14-2266 #14
20/53
Some clerks choose not to issue
marriage licenses immediately
despite ruling
Many are
taking license
applications,
but they won't
waive the
state's 5-day waiting period. Read
more
Weddings continue after judge
declares ban unconstitutional
On the day
after a federal
judge s truck
down
Wisconsins ban on same-sex
marriage, 74 more couples had
received marriage licenses as of
noon S Read more
Meet the first ga y couple to
marry in Dane County
More than 60
gay couples
received
marriage
licenses in Dane County after a
federal judge struck down
Wisconsin's ban on same-sex
marriage. Read more
Gay couples line up to marry after
ruling striking down ban
A federal judge
has struck
down
Wisconsin's
same-s ex marriage ban, althoughthere was confusion over when
couples could begin getting
married. Read more
Related Links
Live chat replay: W ill same-sex
marriage ban survive?
its enforcement. Instead, she has ordered opponents of the
ban to prepare briefs on how an injunction should be
framed.
She stopped short, however, of saying that the marriages
conducted in Dane and Milwaukee counties over the
weekend, and in other counties Monday, should not be
going forward.
"I never said anything" about whether county clerks should
go forward with granting marriage licenses to same-sex
couples, Crabb said. "That hasn't been decided."
But interpretations differ about Crabb's words on Monday.
Crabb said the "status quo" should continue, but whether
that means the gay marriage ban remains in effect, as
Attorney General J.B. Van Hollen has said, or whether that
means marriages can continue as they have since Friday is
a question that Crabb did not answer explicitly at Monday's
hearing.
During the hearing, Crabb said the decision she issued
Friday was a declaratory ruling and did not contain any
injunction, because the plaintiffs in the case had not been
explicit about what they wanted Crabb to order the state to
do or not do.
"There is no relief that's been granted by the court," Crabb
said. "That hasn't been decided."
ACLU lawyer Laurence Dupuis said he would submit a
requested injunction on Monday, and Crabb gave the state
until next week to answer it. Dupuis said
Assistant Attorney General Timothy Samuelson said that in
terms of a stay, the state was seeking "something preserving
the status quo." Later, when he asked what the current
status of the law was, Crabb responded that it is the "status
quo." But she did not explain what that meant.
At today's hearing, Judge Crabb reiterated that Wisconsin
marriage law has not been enjoined.
In a statement issued after the hearing, Van Hollen said the
law remains in effect.
Wisconsin's marriage law is in full force and effect, and all
state and local officials are under a continuing duty to follow
Wisconsin's marriage law unless and until the court enjoins
that law, Van Hollen said.
Dane County Clerk Scott McDonell, who has been issuing
marriage licenses to same-sex couples since Friday, said it means that clerks can continue to
carry on as they are now, because Crabb's ruling on Friday declaring the law to be
unconstitutional means that it is no longer in effect.
Dane County Corporation Counsel David Gault agreed, adding that the "status quo to us is that
she declared the constitutional amendment unconstitutional."
"As it stands, we think the decision that Judge Crabb issued last Friday was unambiguous," Gault
said.
Case: 14-2266 Document: 14-3 Filed: 06/11/2014 Pages: 4 (20 of
http://host.madison.com/wsj/news/local/govt-and-politics/some-clerks-choose-not-to-issue-marriage-licenses-immediately-despite/article_43e275c7-7029-59c8-9c3a-31e2115f4504.htmlhttp://host.madison.com/wsj/news/local/govt-and-politics/live-chat-now-will-the-same-sex-marriage-ban-survive/html_56b36832-efef-11e3-9643-0019bb2963f4.htmlhttp://host.madison.com/wsj/news/local/govt-and-politics/live-chat-now-will-the-same-sex-marriage-ban-survive/html_56b36832-efef-11e3-9643-0019bb2963f4.htmlhttp://host.madison.com/news/local/govt-and-politics/gay-couples-line-up-to-marry-after-ruling-striking-down/article_d4b76da1-3fc7-5946-9cb2-dc7ea1d81f94.htmlhttp://host.madison.com/wsj/news/local/govt-and-politics/gay-couples-line-up-to-marry-after-ruling-striking-down/article_d4b76da1-3fc7-5946-9cb2-dc7ea1d81f94.htmlhttp://host.madison.com/news/local/govt-and-politics/meet-the-first-gay-couple-to-marry-in-dane-county/article_9fa5aedd-2f66-536a-b99f-cc1c36b5713c.htmlhttp://host.madison.com/wsj/news/local/govt-and-politics/meet-the-first-gay-couple-to-marry-in-dane-county/article_9fa5aedd-2f66-536a-b99f-cc1c36b5713c.htmlhttp://host.madison.com/news/local/weddings-continue-after-judge-declares-ban-unconstitutional/article_100865d0-c06e-5254-8cee-0d4733f17942.htmlhttp://host.madison.com/wsj/news/local/weddings-continue-after-judge-declares-ban-unconstitutional/article_100865d0-c06e-5254-8cee-0d4733f17942.htmlhttp://host.madison.com/news/local/govt-and-politics/some-clerks-choose-not-to-issue-marriage-licenses-immediately-despite/article_43e275c7-7029-59c8-9c3a-31e2115f4504.htmlhttp://host.madison.com/wsj/news/local/govt-and-politics/some-clerks-choose-not-to-issue-marriage-licenses-immediately-despite/article_43e275c7-7029-59c8-9c3a-31e2115f4504.htmlhttp://host.madison.com/wsj/news/local/govt-and-politics/gay-couples-line-up-to-marry-after-ruling-striking-down/article_d4b76da1-3fc7-5946-9cb2-dc7ea1d81f94.htmlhttp://host.madison.com/wsj/news/local/govt-and-politics/meet-the-first-gay-couple-to-marry-in-dane-county/article_9fa5aedd-2f66-536a-b99f-cc1c36b5713c.htmlhttp://host.madison.com/wsj/news/local/weddings-continue-after-judge-declares-ban-unconstitutional/article_100865d0-c06e-5254-8cee-0d4733f17942.htmlhttp://host.madison.com/wsj/news/local/govt-and-politics/some-clerks-choose-not-to-issue-marriage-licenses-immediately-despite/article_43e275c7-7029-59c8-9c3a-31e2115f4504.html8/12/2019 14-2266 #14
21/53
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Asked what the status quo meant to him, Dupuis said, "I don't really know," but added later that the
status quo means what Crabb had ordered before.
He said he does not know whether marriages should or should not have been performed, only that
it would be cruel at this point to deprive people of them now.
On Friday night, the state filed an emergency motion for a stay of Crabb's ruling. She said on
Monday that because she had not issued an injunction yet the state could not seek a stay of her
ruling.
On Monday, the state also filed a motion for a stay with the U.S. Court of Appeals for the 7thCircuit, based in Chicago. The appeals court has not yet ruled, but Crabb said that without a final
order the case cannot be heard by the appeals court.
The appeals court will have to decide, however, whether it can accept the case.
Within hours of Crabb's decision on Friday, the f irst same-sex couples were being married in Dane
and Milwaukee counties, with county clerks waiving the customary five-day waiting period for
issuance of marriage licenses. More than 280 same-sex couples were married in Dane and
Milwaukee counties on Friday night and Saturday.
By Monday clerks in 18 Wisconsin counties were issuing marriage licenses to same-sex couples,
McDonell said.
The state's lawyers said that in her ruling, Crabb did not issue an injunction blocking the law and
did not rule on the state's previous motion for an immediate stay on her ruling.
"The district court's opinion and order has thus created a legal environment in which Wisconsin's
county clerks are deciding on a county-by-county basis whether to issue marriage licenses to
same-sex couples immediately or wait for the district court to enter injunctive relief or rule on state
defendants' motion to stay," lawyers for the state wrote.
The state argued in its motion to the appeals court that given the importance of Crabb's decision,
"particularly amidst a vigorous and unsettled national debate on the issue," a stay should be
ordered immediately.
"Further a stay is necessary in this case to avoid confusion and to maintain the status quo while
the Seventh Circuit decides how Wisconsin, and other states, may define the civil institution of
marriage."
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Marriage Amendment, Gay Marriage, Barbara Crabb, U.s. District Court For The Western District
Of Wisconsin
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What Your Last Name Means(Ancestry.com)
Madison Catholic Diocese significantly alters plan
to convert headquarters into housing(The Capital
Times)
D-Day anniversary: Thousands pay homage to the
heroes of 'The Longest Day'(France 24)
The 10 Beer-Drinkingest States In America
(Mainstreet)
Construction frustration fuels traffic-themed parody
Twitter accounts(The Capital Times)
Police: Portage teens, 16, robbed at gunpoint
while trying to buy pot in Madison(The Capital
Times)
Comedian Tracy Morgan injured in fatal crash(The
Capital Times)
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Case: 14-2266 Document: 14-3 Filed: 06/11/2014 Pages: 4 (22 of
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Federal judge declines to stop gay marriages in Wisconsin
Michael SearsThe Rev. Suzelle Lynch of Unitarian Universalist Church West in Brookfield marries Karen Wells (right) and KristieErickson (left) of Waukesha in a ceremony Monday in the courtyard outside the Waukesha County Courthouse.
EMAIL PRINT (362) COMME NTS
Madison A federal judge here declined to press pause Monday ongay marriages in Wisconsin, leaving it for now to county o fficials, afederal appeals court and, possibly, state courts to decide w hethersame-sex unions continue around the state.
Three days after her historic ruling striking down the state's same-sexmarriage ban, U.S. District Judge Barbara Crabb indicated Mondayafternoon that in the coming days either she or a federal court is likelyto grant a sta y of her Friday ruling, which would block county officialsaround the state from issuing marriage licenses to gay and lesbiancouples while her decision from Friday is appea led.
But Crabb said she was leaving the "status quo" in place for nowbecause she w anted to hear more from the two sides in the case onthe implications of a stay before deciding on it. She set her nexthearing for June 19.
"I will consider a stay as to what's in the (final order,) but I'm notgoing to act today," Crabb said at the hastily called hearing.
Crabb's comments effectively mean that for now the state will remaindividedinto counties s uch as Dane, Milwaukee and Waukesha, whereclerks are issuing same-sex marriage licenses, and counties such asOzaukee, Washington and Racine, where they are not.
When asked by state attorneys Monday about that inconsistencyamong counties, Crabb said that was an issue for state courts todecide if needed, not he r. She said that, though she had struck downthe marriage ban, she had given no orders on it so far to state andlocal officials in Wisconsin, so she had nothing to halt.
"They did not act because I told them they could," Crabb said ofcounty officials. "That hasn't been decided."
The hearing in Madison was one of two actions that state AttorneyGeneral J.B. Van Hollen took in two d ifferent federal courts Monday
NewsWatch
Judge in Wisconsin Doe probe form ally orders
county to release records 3:03 p.m.
Federal judge declines to stop gay m arr iages in
Wisconsin Updated: 3:00 p.m.
N.C. company buy s Janesv ille supplier of
natural g as fueling systems 2:06 p.m.
Milwaukee police identify ma n in fatal shooting
Friday 1:47 p.m.
Fire that killed 81-y ear-old Milwauk ee man not
seen as suspicious 1:45 p.m.
Milwaukee woman claims fraud in purchase of
Chevy Cobalt with recalled ignition 1:44 p.m.
Count ies split on whether to issue marr iage
licenses to gay couples Updated: 1:10 p.m.
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ByJason Stein, Patrick Marleyand Dana Fergusonof the Journal Sentinel Updated: 3:00 p.m.
705Recommend
Exhibit B
Case: 14-2266 Document: 14-4 Filed: 06/11/2014 Pages: 4 (23 of
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14-2266 #14
24/53
Gay and lesbian couples at theMilwaukee C ounty Courthouse
vote
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Ruling: Read JudgeBarbara Crabb's ruling onsame-sex marriages inWisconsin
Appeal:Attorney GeneralJ.B. Van Hollen files for astay with the federalappeals court
Statement:AttorneyGeneral J.B. Van Hollenseeks stay on ruling
Reactions and Photos:Couples getting married inMilwaukee, Dane counties
Editorial: Court ruling is avictory for all Americans
Poll
Do you agree with U.S.
District Judge Barbara
Crabb's ruling
overturning Wisconsin's
ban on same-sex
marriages?
Yes
No
View Results
.case, the Republican attorney general asked Crabb for a stay onFriday evening and again in Monday's hearing and also filed a petitionMonday morning for a staywith the federal 7th Circuit Court ofAppeals in Chicago.
Dane County Clerk Scott McDonell, a Democrat, stepped out ofCrabb's hearing Monday and said he w ould continue to issuemarriage licenses to same-sex couples.
"The status quo is what w e're doing now and (19) other counties,which is issuing marriage licenses," McDonell told reporters.
Later, he acknowledged, "I'm sure that's not what the state meansby status quo."
Backing up McDonell was David Gault, an assistant corporationcounsel in Dane County, which is controlled by a Democratic countyexecutive and liberal county board. Gault said Crabb's decision Fridaywas "unambiguous" and that there is no prohibition on same-sexcouples getting married.
"We're not speculating," he said. "We're following the black letter ofher decision."
Attorneys for the state Department of Justice, which is defending thegay marriage ban, declined comment on Crabb's comment as they leftthe federal courtroom.
In a statement earlier Monday, Van Hollen said it made no sense tolet marriages go forward right away when the courts are likely to putthem back on hold, at least temporarily, and leave those couples inlegal limbo.
"The U.S. Supreme Court w ill almost certainly decide this importantissue once and for a ll during its next term. There is absolute ly noreason to allow Wisconsin's county clerks to decide for themselves, on
a county-by-county basis, who may and may not law fully get marriedin this state," he said.
In the meantime Monday, some county clerks and registers of deedsin Wisconsin are moving forward w ith issuing marriage license s andcertificates to more same-sex couples, wh ile o ther county o fficialswere wa iting for clarification from the sta te on Crabb's ruling.
Also Monday, Dane County Register of Deeds Kristi Chlebowskidelivered the first ba tch of finalized same-sex marriage certificates tostate officials. That led to unprecedented uncertainty about whetherGov. Scott Walker's administration would accept the certificates, asthe typically clerical elements o f a marriage contract be comepoliticized and fraught with controversy.
Chlebowski said that as of 12:30 p.m. she had received about 60marriage licenses that we re issued over the w eekend. She said shesent out five marriage certificates at that point and hand deliveredfive copies to the Wisconsin Department o f Health Services VitalRecords o ffice.
"We're just going to keep cranking them out until they tell us not to,"Chlebowski said.
Carl Tobias, a professor at the University of Richmond School of Law ,said that he was cautiously expecting either Crabb or the 7th circuitto issue a temporary stay of Crabb.
Tobias, who has followed the surge in lawsuits over gay marriagearound the country, pointed to an Idaho case in which the 9th CircuitCourt of Appeals issued a temporary stay of a decision striking downa gay marriage ban. That case cited another stay that was issued bythe U.S. Supreme Court in a s eparate but s imilar case in Utah.
"It's a reluctant yes," Tobias said of his hunch that a stay is coming."That's the way things have played out (elsewhere.)"
After couples get married, they submit marriage certificates to the county register of deeds, which thenfiles them with the vital records office of the state Department of Hea lth Services. Officials there a reseeking advice from the attorney gene ral on what to do with them, said department spokesw oman
Jennifer Miller.
Crabb's 88-page decisionwas different from the others around the country because although she ruledWisconsin's ban against same-sex marriage was unconstitutional, she did not issue an order instructingcounty and state officials on what to do about it.
That left county clerks and judges to decide for themselves.
From Friday to Saturday, 283 same-sex couples were issued marriage licenses in Dane and Milwaukeecounties, according to Van Hollen's filing. Other counties did not issue licenses those dates.
"The district court's Opinion and Order has thus created a legal environment in which Wisconsin's countyclerks are deciding on a county-by-county basis whether to issue marriage licenses to same-sex couplesimmediately or wait for the d istrict court to enter injunctive relief or rule on State Defendants' motions tostay," Department of Justice lawyers argued in a Monday filing.
In setting up a hearing on a stay by telephone for Monday afternoon, Crabb moved swiftly by thestandards of a federal court and judge. But in Monday's filing with the 7th Circuit, state Department ofJustice attorneys argued Crabb had effectively denied the stay request by not ruling on it Friday andasked the 7th Circuit to step in.
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Gay and lesbiancouples at theMilwaukee CountyCourthouse
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Case:14-2266 Document: 14-4 Filed: 06/11/2014 Pages: 4 (24 of
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"By failing to grant an immediate stay of its declaration, the district court has disrupted the lega l statusquo, thereby causing irreparable harm to the state's interest in the consistent and uniform enforcementof duly enacted state laws," Van Hollen's lawyers wrote.
Some same-sex couples felt an urgency to exchange their vows before any potential stay could behanded down.
Scrawled in colorful chalk on the Dane County courthouse landing the words "Love wins" served as areminder of the 137 same-sex marriages that took place there over the w eekend.
At the Dane County courthouse, the scene was emptier than Friday night and Saturday. But a fewcouples were still passing by the landing outside, past the words "Love wins" written there in colorfulchalk, signing marriage licenses inside, and then w alking back into the sunlight, one couple at a time, tobe married on the courthouse ste ps.
Kaylen York and Elyse Kleist, who have been together for about two years, proudly held a gold
envelope emblazoned w ith the w ords "Marriage License."
Both had to work Friday so they decided to wait until Monday morning to make the ir union official.
"We w eren't sure if there would be time for us to get it before a s tay came through or before (thedecision) was overruled," York said. "So we took a chance and sa id, 'We'll wait until Monday to makesure it's still official and, if it is, we 'll make it happen.'"
"And we got lucky," Kleist said.
York said she worried their new marriage would be nullified by a stay on the decision.
"We don't know if it will still be legal," York said. "But we thought we would take the chance."
A Dane County employee said there was no count on marriage licenses issued on Monday before 10a.m. But the county issued 61 marriage license s Friday night between 5 p.m. and 9 p .m. and 76 licensebetween 9 a.m. and 5 p.m. Saturday.
Other couples, including two of the original plaintiffs challenging the s tate ban, weren't moving soquickly Monday.
Garth Wangemann and Roy Badger said they have postponed the ir wedding at the recommendation ofthe American Civil Liberties Union of Wisconsin, which is representing the plaintiffs.
"I feel kind of torn. Part of me just wants to run down to the courthouse, but another part wants to wa ituntil we know we're in the clear," Badger said Monday morning. "I want to make sure it's not beingripped away from us again."
Dane County Circuit Court Judge Rhonda Lanford said Friday that she could not comment on anypossible stay, but said then that she planned to wed couples through the night and into the weekend.
"Marriage is legal in the state of Wisconsin," Lanford said. "We'll marry as many people as we can.
Julaine Appling, executive director of Wisconsin Family Action, said Crabb should have heeded VanHollen's advice to stay the decision. Appling's group helped promote the referendum that banned same-sex marriage in 2006 and more recently filed a friend-of-the-court brief in the case .
"Obviously some counties are issuing and obviously some counties are saying, 'No, we should wait forthe attorney general's ruling,'" Appling said. "It's exactly the ambiguous situation we all hoped toavoid."
In addition to sorting out the issue in an unambiguous way, Appling said she hopes the 7th Circuit willmake a decision promptly on Van Hollen's appeal.
"We need to get rid of the chaos and confusion going on with the county clerks," Appling said. "Thehorse has left the barn and now the legal minds are going to have to figure it out on this one."
Also Monday, a moderate GOP state senator renounced his previous support for the gay marriage ban.Sen. Dale Schultz (R-Richland Center) was the Senate Majority Leader in 2006 when the stateconstitutional amendment banning gay marriage and civil unions passed the Legislature and was thenapproved in a statew ide referendum with 59% of the vote.
In a column released Monday, he said he brought it forward and voted for it at the time because at thetime it represented both his personal views and those of a majority of state residents.
"I would like to think that we, as a society, possess a willingness and ability to evolve when presentedwith new facts and evidence," Schultz wrote in a column. "Whether we all agree in our personal worldsof faith, or even what's comfortable in our own eyes, a clear majority now feel people are entitled tobasic rights and privileges regardless of orientation because it most likely affects someone we know."
Ashley Luthern of the Journal Sentinel staff contributed to this report.
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