Case 4:13-cv-00410-KGB Document 58 Filed 03/02/15 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
RITA and PAM JERNIGAN and BECCA
and TARA AUSTIN
v.

PLAINTIFFS

NO. 4:13-CV-410 KGB

LARRY CRANE, In His Official Capacity As

Circuit And County Clerk For Pulaski
County, Arkansas And His Successors In
Interest; RICHARD WEISS, In His Official
Capacity As Director of the Arkansas
Department of Finance and Administration
And His Successors in Interest; GEORGE
HOPKINS, In His Official Capacity as
Executive Director of the Arkansas Teacher
Retirement System And His Successors In
Interest; and DUSTIN MCDANIEL, In His
Official Capacity As Attorney General For
The State Of Arkansas and His Successors in
Interest

DEFENDANTS

SEPARATE DEFENDANTS RESPONSE TO PLAINTIFFS

AMENDED EXPEDITED MOTION TO VACATE STAY OF JUDGMENT
Plaintiffs have requested that this Court vacate its stay of the judgment entered on
November 25, 2014. Plaintiffs argue that this Courts stay was premised on a stay issued by the
United States Supreme Court in Herbert v. Kitchen, 134 S.Ct. 893 (2014), and that the Supreme
Court has subsequently refused to issue stays in cases where district courts have struck down
bans on same-sex marriages. Plaintiffs Amended Expedited Motion to Vacate should be denied
for four reasons.
First, [a]s a general rule, the filing of a timely and sufficient notice of appeal operates to
transfer jurisdiction of the case to the court of appeals, and after such filing the district court is
without jurisdiction to proceed further in the case, except in aid of the appeal or under Rule

Case 4:13-cv-00410-KGB Document 58 Filed 03/02/15 Page 2 of 5

60(a), Fed.R.Civ.P. Janousek v. Doyle, 313 F.2d 916, 920 (8th Cir. 1963) (citations omitted).
Therefore, this Court was divested of the jurisdiction necessary to lift the stay when the
Defendants filed their Notice of Appeal on December 23, 2014. Motion practice regarding the
propriety of a stay should take place in the U.S. Court of Appeals for the Eighth Circuit, not this
Court.
Plaintiffs rely on Betts v. Coltes, 449 F. Supp. 751 (D.C. Hawaii 1978), for the
proposition that this Court retains jurisdiction to modify its stay of judgment. However, aside
from the fact that an opinion from a district court sitting in the Ninth Circuit offers no controlling
authority in this matter, Plaintiffs reliance on Betts is misplaced.

Betts involved the

modification of an order staying the payment of attorneys fees pending appeal of that fee award.
The defendant/appellant in Betts had posted a cash bond as security pending the appeal. The
district court did not vacate its stay but merely permitted Betts to collect attorneys fees from the
defendants posted bond upon Betts own posting of a surety bond, which would ensure
repayment if the fee award was successful on appeal.

In other words, Betts involved a

modification of a stay order, not a vacation of one.

Furthermore, Plaintiffs position is inconsistent with controlling authority from the
Eighth Circuit, which has explicitly stated that [o]nce a notice of appeal is filed, the district
court is divested of jurisdiction over matters on appeal. State of Missouri ex rel. Nixon v. Coeur
D'Alene Tribe, 164 F.3d 1102, 1106 (8th Cir.1999), cert. denied, 527 U.S. 1039 (1999)(citing
Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982), and Liddell v. Board of
Educ., 73 F.3d 819, 822 (8th Cir. 1996)). For example, while an appeal is pending, the district
court may not reexamine or supplement the order being appealed. Id. at 1106 (citing 20

Case 4:13-cv-00410-KGB Document 58 Filed 03/02/15 Page 3 of 5

Moores Federal Practice 303.32[2][a][ii] & n.15). Despite these precedents, Plaintiffs are
asking this Court to modify an order which is at the heart of this appeal.
Second, the fact that the stay in Herbert is no longer in effect has no bearing on whether
the current stay should be lifted because (as Plaintiffs note in their supporting brief) the current
stay was imposed after the petition for certiorari in Herbert had already been denied. This Court
imposed a stay, despite the fact that the stay in Herbert had already dissolved at the time of this
Courts decision, presumably due to concerns over order, consistency, and judicial economy.
Therefore, the Herbert stay had no relevance to this Courts stay at the time it was entered, and it
should have none now.
Third, Defendants Notice of Appeal was filed on December 23, 2014, nearly a month
after the Court entered a stay of its judgment. Plaintiffs could have sought relief immediately
after this Court issued the stay, but instead chose to wait almost three months before asking that
it be lifted. In the meantime, Defendants have designated the record for appeal, notified the
Court of Appeals of the method of appendix preparation, and filed their opening brief, pursuant
to the briefing scheduled established by the Eighth Circuit. Moreover, the appellate court has
already scheduled this matter for oral arguments to be heard during the week of May 11-15,
stating its intention to hear the appeal of this case at the same time as two other same-sex
marriage cases. See Exhibit 1 (Order dated February 3, 2015). Contrary to what the title of
Plaintiffs motion to vacate suggests, there is no basis for expediting Plaintiffs request.
Plaintiffs claim of a need for expedited relief is belied by their own delay in seeking a lift of the
stay. And their delay weakens their argument that an irreparable injury is caused by the stays
continuation until the Eighth Circuit decides this matter.

Case 4:13-cv-00410-KGB Document 58 Filed 03/02/15 Page 4 of 5

Lastly, Plaintiffs have cited to a number of courts in other states and other appellate
jurisdictions which have declined to stay judgments for the plaintiffs during the pendency of
appeals. However, Plaintiffs have failed to mention that, in a similar appeal arising out of
Missouri and set for oral argument on the same day as that in the present appeal, the plaintiffs
request to vacate the stay of judgment in their favor was twice deniedfirst at the district court
level and then again by the Eighth Circuit. See Exhibit 2 (Order denying motion to vacate in
Lawson

v.

State

of

Missouri,

Eighth

Circuit

No.

14-3779).

The

Eighth

Circuits various procedural rulingsnamely, its refusal to vacate the stay imposed by the
district court in Missouri, its issuance of an expedited briefing schedule in one of the three samesex marriage cases before it, and the scheduling of oral arguments in those cases for the same
timeshows that the Eighth Circuit recognizes the significant legal issues presented in these
cases and the need for uniform treatment.

The significance of the legal issues involved, as

recognized by the Eighths Circuits scheduling orders thus far, favors a continuation of the stay.
See 11 Charles A. Wright et al., Federal Practice & Procedure 2904. In fact, just today, a
district court sitting in this Circuit denied a plaintiffs motion to lift a stay which had been
imposed in a nearly-identical case involving constitutional challenges to a states statutory ban
on same-sex marriages. See Rosenbrahn v. Daugaard, United States District Court of South
Dakota, Southern Division, Case No. 4:14-CV-04081-KES, DE 68.
For these reasons, the Court should deny Plaintiffs Amended Expedited Motion to
Vacate.

Case 4:13-cv-00410-KGB Document 58 Filed 03/02/15 Page 5 of 5

Respectfully Submitted,
RICHARD WEISS, In His Official Capacity
And His Successors in Interest; GEORGE
HOPKINS, In His Official Capacity And
His Successors In Interest; and DUSTIN
MCDANIEL, In His Official Capacity and
His Successors in Interest
By:

/s/ Nga Mahfouz

Nga Mahfouz AR Bar No. 96149
Assistant Attorney General
323 Center Street, Suite 200
Little Rock, Arkansas 72201
Telephone: (501) 682-5311
Facsimile: (501) 682-2591
E-mail: nga.mahfouz@arkansasag.gov

CERTIFICATE OF SERVICE
I, Nga Mahfouz, Assistant Attorney General, do hereby certify that on March 2, 2015, I
electronically filed the forgoing with the Clerk of the Court using the CM/ECF system.

/s/ Nga Mahfouz

Nga Mahfouz AR Bar No. 96149

Case 4:13-cv-00410-KGB Document 58-1 Filed 03/02/15 Page 1 of 1

Case 4:13-cv-00410-KGB Document 58-2 Filed 03/02/15 Page 1 of 2

Case 4:13-cv-00410-KGB Document 58-2 Filed 03/02/15 Page 2 of 2