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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION THERESA BASSETT and CAROL KENNEDY, PETER WAYS and JOE BREAKEY, JOLINDA JACH and BARBARA RAMBER, DOAK BLOSS and GERARDO ASCHERI, DENISE MILLER and MICHELLE JOHNSON, Plaintiffs, v RICHARD SNYDER, in his official capacity as Governor of the State of Michigan, Defendant.
Michael J. Steinberg (P43085) American Civil Liberties Union Fund of Michigan Attorney for Plaintiffs 2966 Woodward Avenue Detroit, MI 48201 (313) 578-6814 Margaret A. Nelson (P30342) Mark E. Donnelly (P39281) Rock A. Wood (P41181) Michael F. Murphy (P29213) Attorneys for Defendant Michigan Dept. of Attorney General Public Employment, Elections & Tort Division P.O. Box 30736 Lansing, MI 48909 (517) 373-6434

No. 2:12-cv-10038 HON. DAVID M. LAWSON MAG. MICHAEL J. HLUCHANIUK DEFENDANT’S MOTION TO HOLD CASE IN ABEYANCE PENDING FINAL DECISION IN DEBOER, ET. AL. V. SNYDER, ET. AL, SIXTH CIRCUIT COURT OF APPEALS NO. 14-1341
Amanda C. Goad American Civil Liberties Union Foundation Attorney for Plaintiffs
1313 West 8th Street

Los Angeles, CA 90017 Telephone: (213) 977-9500 Facsimile: (213) 977-5273 John A. Knight American Civil Liberties Union of IL Attorney for Plaintiffs 180 N. Michigan Ave, Ste. 2300 Chicago, IL 60601 (312) 201-9740

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Defendant Governor Rick Snyder moves the Court to hold this case in abeyance pending a final decision in the case of DeBoer v. Snyder, et. al, U.S.D.C. E.D. Mich. Case No. 12-cv-10285, Sixth Circuit Court of Appeals no. 14-1341, and says in support as follows: 1. On March 21, 2014, the United States District Court for the

Eastern District of Michigan, Judge Bernard Friedman, issued its decision in DeBoer v. Snyder, U.S.D.C. E.D. Mich. Case No. 12-cv10285, declaring Michigan’s “marriage amendment,” Mich. Const. 1963, art. I, § 25, and its implementing statutes, unconstitutional. The court also enjoined the State from enforcing the law. DeBoer v. Snyder, U.S.D.C. E.D. Mich. no. 12-cv-10285, Doc. #151, Findings of Fact and Conclusions of Law, Pg. ID 3973. (Exhibit 1). 2. The State of Michigan appealed the judgment. On March

25, 2014, the Sixth Circuit stayed the District Court’s judgment pending a final disposition of Michigan’s appeal. (Exhibit 2). 3. In an effort to expedite a ruling from the Sixth Circuit, the

State has filed a petition for initial hearing en banc. (Exhibit 3). 4. Plaintiffs’ equal protection challenge to Michigan’s “Public

Employee Domestic Partner Benefit Prohibition Restriction Act,” 2011 2

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Public Act 297, Mich. Comp. Laws § 15.581, et. seq. (hereafter P.A. 297) is grounded in Michigan’s “marriage amendment.” Plaintiffs’ equalprotection sexual-orientation challenge presented in their complaint and in their motion for summary judgment rests on the fact they cannot legally marry in Michigan because of the State’s marriage amendment and, thus, never qualify for benefits under P.A. 297. 5. If the Court believes that this case turns on the validity of

Michigan’s marriage amendment, then it should stay the case pending the resolution of that issue by the Sixth Circuit in the DeBoer appeal. This Court has already noted the relationship between Michigan’s marriage amendment and Plaintiffs’ challenge to P.A. 297, which informed its decision, in part, in granting a preliminary injunction in this case. (Doc. #75, June 28, 2013 Opinion and Order, Pg. ID 30683070.) Under this premise that the validity of the amendment matters to the benefits law, proceeding with this case would be a waste of resources for the Court, the State, and the Plaintiffs, because the DeBoer appeal will definitively resolve that issue for courts in the Sixth Circuit (at least until the Supreme Court reaches the issue).

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6.

This stay request is contingent on this premise, but, to be

clear, Michigan disagrees with that premise for a simple reason: whatever the scope of marriage in Michigan, it is rational for the State to extend benefits and to spend its limited resources on married couples (be they opposite-sex or same-sex) while declining to provide benefits to lesser relationships (such as boyfriends or girlfriends, be they oppositesex or same-sex). In other words, if DeBoer is upheld, Michigan’s definition of marriage would change and Plaintiffs would be able to legally marry; indeed, Plaintiffs might well dismiss this case because they would qualify for medical benefits under P.A. 297 as a spouse if they chose to get married, and therefore they would no longer suffer any injury as a result of the statute. Conversely, if DeBoer is reversed and Michigan’s definition of marriage in art. I, § 25 is upheld, Plaintiffs’ equal-protection claims fail because P. A. 297 rationally relates to that constitutional expression of marriage. Under either definition of marriage, it is rational to limit benefits to spouses and not to extend them to mere boyfriends or girlfriends. 7. The decision to stay proceedings is entirely within the

Court’s discretion. Clinton v. Jones, 520 U.S. 681, 706-07 (1997). A 4

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district court can, at its discretion, stay an action pending the conclusion of an alternative proceeding which will impact the applicable law and control the outcome of the case for which the stay is sought. 8. The State will be irreparably harmed if this case is not

stayed. If a permanent injunction were to issue here, the State would have its constitutionally-valid statute enjoined from having effect, thwarting its legitimate interest in promoting marriage, however it is defined. Although the statute is preliminary enjoined, a permanent injunction would be a final determination of unconstitutionality for this statute, even though the law does not support such a conclusion. A stay of proceedings in this case, until a final decision in DeBoer, will not injure or adversely impact the Plaintiffs. This Court preliminary enjoined the enforcement of P.A. 297 on June 28, 2014. (Doc. #75.) No appeal of that preliminary injunction was taken, and it will remain in effect during the pendency of this case. That means Plaintiffs are receiving medical benefits from their public employers, and those benefits will not be interrupted by P.A. 297. Staying the case does not harm the public but rather advances its interest in the State’s law and its constitutionality. 5

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9.

Plaintiffs’ counsel were contacted regarding concurrence in

this motion and they have denied concurrence. CONCLUSION AND RELIEF REQUESTED Defendant Governor Snyder, therefore, requests that if this Court thinks the validity of Michigan’s marriage amendment affects this case, then this Court enter a stay holding this case in abeyance pending a final judgment in DeBoer, et. al. v. Snyder, et. al, Sixth Circuit Court of Appeals no. 14-1341, including a decision by the United States Supreme Court, if applicable. Judicial economy and avoiding the permanent injunction of an otherwise constitutional state law each suggest that granting a stay of proceedings is appropriate and a proper exercise of the Court’s discretion. Respectfully submitted, BILL SCHUETTE Attorney General s/ Michael F. Murphy Michael F. Murphy (P29213) Margaret A. Nelson (P30342) Mark E. Donnelly (P39281) Rock A. Wood (P41181) Attorneys for Defendant Michigan Dept. of Attorney General 6

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Dated: April 11, 2014

Public Employment, Elections & Tort Division P.O. Box 30736 Lansing, MI 48909 (517) 373-6434 Email: MurphyM2@michigan.gov

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION THERESA BASSETT and CAROL KENNEDY, PETER WAYS and JOE BREAKEY, JOLINDA JACH and BARBARA RAMBER, DOAK BLOSS and GERARDO ASCHERI, DENISE MILLER and MICHELLE JOHNSON, Plaintiffs, v RICHARD SNYDER, in his official capacity as Governor of the State of Michigan, Defendant.
Michael J. Steinberg (P43085) American Civil Liberties Union Fund of Michigan Attorney for Plaintiffs 2966 Woodward Avenue Detroit, MI 48201 (313) 578-6814 Margaret A. Nelson (P30342) Mark E. Donnelly (P39281) Rock A. Wood (P41181) Michael F. Murphy (P29213) Attorneys for Defendant Michigan Dept. of Attorney General Public Employment, Elections & Tort Division P.O. Box 30736 Lansing, MI 48909 (517) 373-6434 Amanda C. Goad American Civil Liberties Union Foundation Attorney for Plaintiffs
1313 West 8th Street

No. 2:12-cv-10038 HON. DAVID M. LAWSON MAG. MICHAEL J. HLUCHANIUK

DEFENDANT’S BRIEF IN SUPPORT OF MOTION TO HOLD IN ABEYANCE

Los Angeles, CA 90017 Telephone: (213) 977-9500 Facsimile: (213) 977-5273 John A. Knight American Civil Liberties Union of IL Attorney for Plaintiffs 180 N. Michigan Ave, Ste. 2300 Chicago, IL 60601 (312) 201-9740

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Bill Schuette Attorney General Michael F. Murphy Assistant Attorney General Attorneys for Defendant Public Employment, Elections and Tort Division P.O. Box 30736 (517) 373-6434 murphym2@michigan.gov (P29213) Dated: April 11, 2014

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CONCISE STATEMENT OF ISSUE PRESENTED 1. This Court should hold this case in abeyance pending the Sixth Circuit Court of Appeals decision in DeBoer.

CONTROLLING OR MOST APPROPRIATE AUTHORITY Authority: Clinton v. Jones, 520 U.S. 681, 706-07 (1997). Ohio Environmental Council v. United States District Ct. S.D. Ohio, 565 F.2d 393, 396 (6th Cir 1977).

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ARGUMENT I. To the extent the Court concludes Plaintiffs’ equalprotection challenge to Mich. Pub. Act 297 of 2011 (P.A. 297) is governed by Michigan’s Marriage Amendment, this Court should hold any decision in abeyance pending a ruling by the Sixth Circuit in DeBoer v. Snyder. A. It is within the Court’s discretion to hold case in abeyance.

The decision to stay proceedings is entirely within the Court’s discretion. Clinton v. Jones, 520 U.S. 681, 706-07 (1997). A district court can, at its discretion, stay an action pending the conclusion of an alternative proceeding which it believes will impact the applicable law and control the outcome of the case for which the stay is sought. This is part of a court’s traditional powers to issue injunctive relief or to stay court orders. This includes staying cases for the Court’s own reasons to control its docket and manage its own affairs. Gray v. Bush, 628 F.3d 779, 785 (6th Cir. 2010) (“‘[T]he 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.’”) (quoting Landis v. North American Co., 299 U.S. 248, 254 (1936)).

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As this Court is aware, Judge Friedman has issued the recent decision in DeBoer v. Snyder, U.S.D.C., E.D. Mich. Case No. 12-cv10285 (Ex. 1). That case has a direct bearing on any decision this Court may reach regarding the constitutionality of P.A. 297. Judge Friedman has ruled Michigan’s “Marriage Amendment,” Mich. Const. art. I, § 25, as unconstitutional. By so holding, this ruling in effect affirms the validity of P.A. 297, the purpose of which is to provide special status for marriage and family relationships. If the DeBoer decision is affirmed through the appellate process, Plaintiffs’ equal protection claim based on sexual orientation and discriminatory animus is moot since they will, if they choose, be able to marry and receive the benefits they seek under P.A. 297. If reversed, P.A. 297 should be affirmed as rationally related to the State’s legitimate purpose in supporting marriage and family relationships. Since this case turns on the validity of the marriage amendment the resolution of that issue by the Sixth Circuit directly impacts this case. The Court has already alluded to the relationship of the issue before it regarding benefits and Michigan’s marriage amendment. This relationship, in part, led to the preliminary injunction now in place.

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Proceeding with this case does little but waste judicial time and effort for both the Court and the parties, because the DeBoer appeal will settle the law in the Sixth Circuit (pending any Supreme Court ruling). Although the U.S. Sixth Circuit Court of Appeals has stayed the DeBoer decision, (Ex. 2, Order Granting Stay, dated March 25, 2014), this Court should exercise its discretion and hold this case in abeyance pending the conclusion of the appellate process in DeBoer. “The power to stay proceedings is inherent to the power 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. Ohio Environmental Council v. United States District Ct. S.D. Ohio, 565 F.2d 393, 396 (6th Cir 1977) (quoting Landis, 299 U.S. at 254-255). It ordinarily is within the sound discretion of the district court whether to enter a stay. Id. The party seeking the stay bears the burden of showing “that there is pressing need for delay, and that neither the other party nor the public will suffer harm from entry of the order.” Id. (citing Landis, 299 U.S. at 255). As set forth below, the burdens are met here, and judicial economy for all leads to the conclusion that the case should be held in abeyance.

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B.

The State has met its burdens justifying the case be held in abeyance.

Staying this case harms no one. The Plaintiffs here would not be harmed, because the preliminary injunction currently in place enjoins enforcement of P.A. 297. (Doc. #75, Opinion and Order, Pg. ID 3087). They are receiving their benefits as they always have. Without a stay the public could be harmed by a permanent injunction and a constitutional statute being found unconstitutional when such a decision is not presently needed, a controlling case is before the Sixth Circuit, and the issues here may be mooted by that decision. If a permanent injunction were to issue by this Court, the State would have its constitutionally-valid statute enjoined from having effect, thus thwarting the State’s legitimate interest in promoting marriage, regardless of how that is defined. The preliminary injunction presently in effect offers Plaintiff’s any protection they need, while a permanent injunction gives a finality of unconstitutionality to a statute premised on a the legal concept of marriage, which is clearly a State law matter. Judicial economy and the public interest would be best served by withholding any decision in this case until the appellate process is 4

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complete. There is no need to decide an issue presently, when that issue, or one controlling its outcome, is on appeal and will be decided through the appellate process. The posture of this case presently before the Court ensures that no one is harmed by taking that course of action. Plaintiffs are receiving what they filed suit for; the State would still have a constitutional statute, although presently unenforceable, and no holding of unconstitutionality; and, if Judge Friedman is reversed on appeal, the State’s rational basis and the public’s determination through the Michigan constitutional amendment process will be upheld. Should Judge Friedman’s decision be affirmed at the appellate level, Plaintiffs’ claims are moot, and they would be entitled to marry and receive the benefits they seek in this lawsuit. Justiciability alone is sufficient reason to hold the case in abeyance pending an outcome of the appeal in DeBoer. CONCLUSION AND RELIEF REQUESTED Based upon the Motion filed, Defendant Governor requests this case be held in abeyance pending the appeal in DeBoer v. Governor. Respectfully submitted, Bill Schuette 5

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Attorney General /s/ Michael F. Murphy Assistant Attorney General Attorneys for Defendant Public Employment, Elections and Tort Division P.O. Box 30736 (517) 373-6434 murphym2@michigan.gov (P29213) Dated: April 11, 2014

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CERTIFICATE OF SERVICE (E-FILE) I hereby certify that on April 11, 2014, I electronically filed the above document(s) with the Clerk of the Court using the ECF System, which will provide electronic copies to counsel of record. /s/ Michael F. Murphy Assistant Attorney General Attorney for Defendant Public Employment, Elections and Tort Division P.O. Box 30736 (517) 373-6434 murphym2@michigan.gov (P29213)
2012-0001512

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION THERESA BASSETT and CAROL KENNEDY, PETER WAYS and JOE BREAKEY, JOLINDA JACH and BARBARA RAMBER, DOAK BLOSS and GERARDO ASCHERI, DENISE MILLER and MICHELLE JOHNSON, Plaintiffs, v RICHARD SNYDER, in his official capacity as Governor of the State of Michigan, Defendant. INDEX OF EXHIBITS To Defendant’s Motion & Brief to Hold Case in Abeyance Exhibit 1 Findings of Fact and Conclusions of Law, Judge Friedman, U.S.D.C. Mich. E.D. case no. 12-cv10285, Doc. #151 Order dated 3/25/14, COA 6th Circuit case no. 14-1341, Doc. #22-1 Petition of the State of Michigan Defendant-Appellant, COA 6th Circuit case no. 14-1341, Doc. #27 No. 2:12-cv-10038 HON. DAVID M. LAWSON MAG. MICHAEL J. HLUCHANIUK

Exhibit 2 Exhibit 3

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