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2:14-cv-12221 #23

2:14-cv-12221 #23

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Doc 23 - REPLY BRIEF of Defendants Snyder and Schuette in Support of the Motion to Stay
Doc 23 - REPLY BRIEF of Defendants Snyder and Schuette in Support of the Motion to Stay

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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




DEFENDANT GOVERNOR
RICK SNYDER AND
ATTORNEY GENERAL BILL
SCHUETTE’S 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 Dep’t 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

/


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 Circuit’s 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 Circuit’s 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 Circuit’s 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
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2
Sixth Circuit’s 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 Circuit’s 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 Circuit’s
decision in either DeBoer or the out-of-state marriage recognition cases
will have no precedential impact on this Court’s 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.
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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 state’s public policy allowing same-sex
marriage; instead, Plaintiffs rely on a district-court decision overturning
a state’s 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 Circuit’s 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 Michigan’s 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 Circuit’s 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 Snyder’s 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:
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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 Defendant’s 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
SCHUETTE’S 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 Dep’t 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

/

INDEX OF EXHIBITS

Exhibit 1: 6th Circuit COA’s 6/16/14 Order Denying
Blankenship’s 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
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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
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