ERIN DAWN BLANKENSHIP, individually and as parent and next friend of G.B. and S.B., minors, and SHAYLA BLANKENSHIP, individually and as parent and next friend of B.B. and S.B., minors,
Plaintiffs,
v
RICK SNYDER, in his official capacity as Governor of the State of Michigan; BILL SCHUETTE, in his official capacity as Attorney General for the State of Michigan; JOHN GLEASON, in his official capacity as Genesee County Clerk; and JAMES BAUER, in his official capacity as Administrator of the Probate Court for Genesee County;
Defendants.
No. 14-cv-12221
HON. ARTHUR J. TARNOW
MAG. MICHAEL J. HLUCHANIUK
DEFENDANT GOVERNOR RICK SNYDER AND ATTORNEY GENERAL BILL SCHUETTES REPLY BRIEF IN SUPPORT OF THE MOTION FOR ABEYANCE
Alec Scott Gibbs (P73593) Attorney for Plaintiffs Law Offices of Gregory T. Gibbs 717 S. Grand Traverse St. Flint, MI 48502 (810) 239-9470
Michael F. Murphy (P29213) Christina M. Grossi (P67482) Joshua O. Booth (P53847) Attorneys for State Defendants MI Dept of Attorney General State Operations Division P.O. Box 30754 Lansing, MI 489009 (517) 373-1162
2:14-cv-12221-AJT-MJH Doc # 23 Filed 08/28/14 Pg 1 of 10 Pg ID 283
H. William Reising (P19343) Attorney for County Defendants Plunkett Cooney 111 E. Court Street, Suite 1B Flint, MI 48502 (810) 342-7001 wreising@plunkettcooney.com
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Bill Schuette Attorney General
Michael F. Murphy Assistant Attorney General Attorneys for State Defendants State Operations Division P.O. Box 30754 Lansing, MI 48909 (517) 373-1162 murphym2@michigan.gov (P29213)
Dated: August 28, 2014 2:14-cv-12221-AJT-MJH Doc # 23 Filed 08/28/14 Pg 2 of 10 Pg ID 284
1 I. The Sixth Circuits denial of Plaintiffs motion to intervene does not preclude the Court from granting this motion. As Defendants asserted in the underlying motion, Plaintiffs attempt to intervene in DeBoer evidences a recognition that their claims in this case arise from, and are controlled by, DeBoer. In response, Plaintiffs contend DeBoer has nothing to do with the claims they have brought to this Court, and reference the Sixth Circuits denial of their motion to intervene (Doc #19-1, Pg ID 273). According to Plaintiffs, the denial conclusively establishes that their claims are independent of DeBoer, and forecloses this motion in its entirety (Doc #19-1, Pg ID 270). But the Sixth Circuits order denying intervention does not support such a conclusion. First, the Sixth Circuit found Plaintiffs motion to be untimely (Exhibit 1, Sixth Circuit Order). Second, although the Sixth Circuit also found that, despite the untimeliness, intervention was still improper; it offered no reasoning (Exhibit 1). For all we know, in denying intervention of right, the Sixth Circuit could have agreed with Defendants that Plaintiffs claims are indeed controlled by DeBoer, and opined that Plaintiffs interests are nonetheless adequately protected by the existing parties. See Fed. R. Civ. P 24(a). There is nothing in the 2:14-cv-12221-AJT-MJH Doc # 23 Filed 08/28/14 Pg 3 of 10 Pg ID 285
2 Sixth Circuits denial of Plaintiffs motion to intervene that expressly or implicitly forecloses this Court from granting Defendants motion to hold this case in abeyance. In any event, the Defendants point about the motion to intervene was not that the Sixth Circuit thought Plaintiffs claims were related to DeBoer, but that Plaintiffs themselves thought their claims were related enough to warrant intervention. II. The resolution of Plaintiffs claims will be guided by the binding precedent established by the Sixth Circuit in the pending same-sex marriage cases. Plaintiffs downplay the relevance of the same-sex marriage cases argued in the Sixth Circuit on August 6, 2014. According to Plaintiffs, there is no reason to believe that the Sixth Circuits decisions in those cases will be any more instructive than cases decided by sister circuits in recent months (Doc #19-1, Pg ID, 270). However, as opposed to the decisions of sister circuits, the decisions of the Sixth Circuit will establish precedent that is binding on this Court. In addition, even in the sister circuits (specifically the Tenth Circuit and the Fourth Circuit), the United States Supreme Court has stayed decisions invalidating amendments and laws similar to those in Michigan decisions of the type Plaintiffs are asking this 2:14-cv-12221-AJT-MJH Doc # 23 Filed 08/28/14 Pg 4 of 10 Pg ID 286
3 Court to make. See e.g., Herbert v. Kitchen, 134 S. Ct. 893 (2014); McQuigg v. Bostic, 573 U.S. __ (2014), 2014 WL 4096232. Further, Plaintiffs attempts to distinguish the out-of-state marriage recognition cases pending in the Sixth Circuit from this case are unconvincing. At its core, the issue in all of the cases is the same. The Sixth Circuit must determine the constitutionality of one state failing to recognize a marriage that was validly solemnized in another state. The minor language differences in the relevant amendments and legislation, and the varying procedural postures of the cases are of little, if any, consequence to the overriding constitutional principles and analysis. 1
It is difficult to envision a scenario wherein the Sixth Circuits decision in either DeBoer or the out-of-state marriage recognition cases will have no precedential impact on this Courts analysis of Plaintiffs claims. Defendants submit that this case is dependent upon DeBoer, but even if the Court disagrees and accepts Plaintiffs position, then this is at best (from Plaintiffs perspective) a recognition case that will be guided by the standards announced by the Sixth Circuit in the out-of-
1 The fact that the Sixth Circuit heard arguments in all of the cases at the same time supports this conclusion. 2:14-cv-12221-AJT-MJH Doc # 23 Filed 08/28/14 Pg 5 of 10 Pg ID 287
4 state same-sex marriage cases. (In fact, Plaintiffs situation is weaker than a recognition case, because unlike in a recognition case, Plaintiffs here are not able to rely on any states public policy allowing same-sex marriage; instead, Plaintiffs rely on a district-court decision overturning a states public policy.) In either situation, from an analytical standpoint, it would be prudent for the Court to refrain from determining Plaintiffs claims until the Sixth Circuit establishes the standards that will guide that determination. III. The Western District has granted a similar motion in a similar case. The relevance of the Sixth Circuits forthcoming decisions in the same-sex marriage cases to the issue of Michigan recognizing an out-of- state marriage was recently acknowledged by Judge Gordon J. Quist in a similar case, Morgan v. Snyder, No. 1:14-cv-00632 (W.D. Mich.). The Morgan Plaintiffs are a same-sex couple married in New York who claim that their marriage became legally recognizable in Michigan immediately upon the declaration in DeBoer that Michigans Marriage Amendment was unconstitutional (Exhibit 2, Morgan Complaint). In June 2014, the complaint in Morgan was filed. 2:14-cv-12221-AJT-MJH Doc # 23 Filed 08/28/14 Pg 6 of 10 Pg ID 288
5 As in the instant case, Defendant Governor Snyder moved the Court in Morgan for an abeyance pending the Sixth Circuits resolution of DeBoer and the same-sex marriage recognition cases arising out of Ohio, Kentucky, and Tennessee. And on August 11, 2014, the Court granted Governor Snyders motion and stayed the case pending a ruling from the Sixth Circuit in DeBoer v. Snyder, 973 F. Supp. 2d 757 (E.D. Mich. 2014) and Henry v. Himes, --- F. Supp. 2d ---, No. 1:14-cv- 129, 2014 WL 13183955 (S.D. Ohio April 14, 2014). (Exhibit 3, Morgan Stay Order, p. 3). In granting the motion, the Court stated, [t]here is a strong likelihood that one of the same-sex marriage cases before the Sixth Circuit will have a dispositive effect on the instant case (Exhibit 3, p. 2). The Court went on to reason: [s]taying the instant case will promote judicial economy and the public welfare. Deferring a ruling in the instant case will save the Court and the parties from guessing at how the Sixth Circuit will rule, and from expending the time and resources required to do so. Moreover, it will prevent needless confusion regarding the state of the law. [Exhibit 3, p. 2.] The Court also found that the Plaintiffs professed need for an immediate ruling is belied by their actions in this case, stating: 2:14-cv-12221-AJT-MJH Doc # 23 Filed 08/28/14 Pg 7 of 10 Pg ID 289
6 Plaintiffs did not file the instant action until almost 6 months after they were married, and almost three months after the district court issued its ruling in DeBoer. They never sought a preliminary injunction, and have requested an extension of time to respond to Defendants motion to dismiss. It short, Plaintiffs actions do not demonstrate a need for immediate relief. Moreover, it is likely that the Sixth Circuit will issue a ruling in a reasonable time, and thus a stay will not cause undue delay in this case. [Exhibit 3, p. 2.] The similarities between Morgan and the instant case are undeniable. The Plaintiffs in the case at bar are also a same-sex couple married in New York, who assert that the decision in DeBoer lifted any impediments to the recognition of their marriage in Michigan. This action was filed only five days before Morgan, nearly three months after the ruling in DeBoer, and several more months after Plaintiffs were married in New York. 2 Plaintiffs have not sought a preliminary injunction and have been granted an extension of time in which to respond to Defendants motion to dismiss. Defendants acknowledge that Morgan is persuasive, not binding, authority. But in light of the significant similarities between Morgan
2 The date on which Plaintiffs were married in New York is not stated in Plaintiffs complaint. However, presuming the allegations in the complaint are in chronological order, the marriage would have been between June 2013 and October 2013, before the December 2013 marriage in Morgan (Complaint, Doc #1, Pg ID 4-5, 18-20). 2:14-cv-12221-AJT-MJH Doc # 23 Filed 08/28/14 Pg 8 of 10 Pg ID 290
7 and the instant case, a similar analysis and conclusion is warranted here. CONCLUSION AND RELIEF REQUESTED This is an historic decision the Plaintiffs are asking this Court to make. But historical significance does not command a hasty resolution and should not overshadow the fact that in the very near future, the Sixth Circuit will provide this Court with the analytical framework necessary to determine these parties rights and responsibilities. Defendants request that this case be held in abeyance pending final appellate resolution of DeBoer, et al. v. Snyder, et al., and the same-sex marriage recognition cases heard by the United States Court of Appeals for the Sixth Circuit on August 6, 2014. Bill Schuette Attorney General
/s/ Michael F. Murphy Assistant Attorney General Attorney for State Defendants State Operations Division P.O. Box 30754 Lansing, MI 48909 (517) 373-1162 murphym2@michigan.gov Dated: August 28, 2014 (P29213)
2:14-cv-12221-AJT-MJH Doc # 23 Filed 08/28/14 Pg 9 of 10 Pg ID 291
8 PROOF OF SERVICE (E-FILE) I hereby certify that on August 28, 2014, I electronically filed the foregoing document(s) with the Clerk of the Court using the ECF System, which will provide electronic notice and copies of such filing of the following to the parties. A courtesy copy of the aforementioned document was placed in the mail directed to: Hon. Arthur J. Tarnow U.S. District Court, Eastern Mich. 231 W. Lafayette Blvd., Rm 124 Detroit, MI 48226
/s/ Michael F. Murphy Assistant Attorney General Attorneys for State Defendants State Operations Division P.O. Box 30754 Lansing, MI 48909 (517) 373-1162 murphym2@michigan.gov (P29213) 2014-0080883-A
2:14-cv-12221-AJT-MJH Doc # 23 Filed 08/28/14 Pg 10 of 10 Pg ID 292
1
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION - DETROIT
ERIN DAWN BLANKENSHIP, individually and as parent and next friend of G.B. and S.B., minors, and SHAYLA BLANKENSHIP, individually and as parent and next friend of B.B. and S.B., minors,
Plaintiffs,
v
RICK SNYDER, in his official capacity as Governor of the State of Michigan; BILL SCHUETTE, in his official capacity as Attorney General for the State of Michigan; JOHN GLEASON, in his official capacity as Genesee County Clerk; and JAMES BAUER, in his official capacity as Administrator of the Probate Court for Genesee County;
Defendants.
No. 14-cv-12221
HON. ARTHUR J. TARNOW
MAG. MICHAEL J. HLUCHANIUK
INDEX OF EXHIBITS TO DEFENDANTS GOVERNOR RICK SNYDER AND ATTORNEY GENERAL BILL SCHUETTES REPLY BRIEF IN SUPPORT OF MOTION FOR ABEYANCE
Alec Scott Gibbs (P73593) Attorney for Plaintiffs Law Offices of Gregory T. Gibbs 717 S. Grand Traverse St. Flint, MI 48502 (810) 239-9470
Michael F. Murphy (P29213) Christina M. Grossi (P67482) Joshua O. Booth (P53847) Attorneys for State Defendants MI Dept of Attorney General State Operations Division P.O. Box 30754 Lansing, MI 489009 (517) 373-1162
2:14-cv-12221-AJT-MJH Doc # 23-1 Filed 08/28/14 Pg 1 of 2 Pg ID 293
2
H. William Reising (P19343) Attorney for County Defendants Plunkett Cooney 111 E. Court Street, Suite 1B Flint, MI 48502 (810) 342-7001 wreising@plunkettcooney.com
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INDEX OF EXHIBITS
Exhibit 1: 6th Circuit COAs 6/16/14 Order Denying Blankenships Motion to Intervene, case #14-1341
Exhibit 2: Morgan Complaint, Mich. W.D. case # 14-cv-00632
Exhibit 3: Morgan, Order Granting Motion to Stay
AG#2014-0080883-A 2:14-cv-12221-AJT-MJH Doc # 23-1 Filed 08/28/14 Pg 2 of 2 Pg ID 294
Exhibit 1 2:14-cv-12221-AJT-MJH Doc # 23-2 Filed 08/28/14 Pg 1 of 3 Pg ID 295 2:14-cv-12221-AJT-MJH Doc # 23-2 Filed 08/28/14 Pg 2 of 3 Pg ID 296 2:14-cv-12221-AJT-MJH Doc # 23-2 Filed 08/28/14 Pg 3 of 3 Pg ID 297 2:14-cv-12221-AJT-MJH Doc # 23-3 Filed 08/28/14 Pg 1 of 15 Pg ID 298 2:14-cv-12221-AJT-MJH Doc # 23-3 Filed 08/28/14 Pg 2 of 15 Pg ID 299 2:14-cv-12221-AJT-MJH Doc # 23-3 Filed 08/28/14 Pg 3 of 15 Pg ID 300 2:14-cv-12221-AJT-MJH Doc # 23-3 Filed 08/28/14 Pg 4 of 15 Pg ID 301 2:14-cv-12221-AJT-MJH Doc # 23-3 Filed 08/28/14 Pg 5 of 15 Pg ID 302 2:14-cv-12221-AJT-MJH Doc # 23-3 Filed 08/28/14 Pg 6 of 15 Pg ID 303 2:14-cv-12221-AJT-MJH Doc # 23-3 Filed 08/28/14 Pg 7 of 15 Pg ID 304 2:14-cv-12221-AJT-MJH Doc # 23-3 Filed 08/28/14 Pg 8 of 15 Pg ID 305 2:14-cv-12221-AJT-MJH Doc # 23-3 Filed 08/28/14 Pg 9 of 15 Pg ID 306 2:14-cv-12221-AJT-MJH Doc # 23-3 Filed 08/28/14 Pg 10 of 15 Pg ID 307 2:14-cv-12221-AJT-MJH Doc # 23-3 Filed 08/28/14 Pg 11 of 15 Pg ID 308 2:14-cv-12221-AJT-MJH Doc # 23-3 Filed 08/28/14 Pg 12 of 15 Pg ID 309 2:14-cv-12221-AJT-MJH Doc # 23-3 Filed 08/28/14 Pg 13 of 15 Pg ID 310 2:14-cv-12221-AJT-MJH Doc # 23-3 Filed 08/28/14 Pg 14 of 15 Pg ID 311 2:14-cv-12221-AJT-MJH Doc # 23-3 Filed 08/28/14 Pg 15 of 15 Pg ID 312 2:14-cv-12221-AJT-MJH Doc # 23-4 Filed 08/28/14 Pg 1 of 4 Pg ID 313 2:14-cv-12221-AJT-MJH Doc # 23-4 Filed 08/28/14 Pg 2 of 4 Pg ID 314 2:14-cv-12221-AJT-MJH Doc # 23-4 Filed 08/28/14 Pg 3 of 4 Pg ID 315 2:14-cv-12221-AJT-MJH Doc # 23-4 Filed 08/28/14 Pg 4 of 4 Pg ID 316