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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WISCONSIN


VIRGINIA WOLF, et al.,

Plaintiffs,

v. Case No. 14-CV-00064-BCC

SCOTT WALKER, et al.,

Defendants.



PLAINTIFFS BRIEF IN OPPOSITION TO MOTION FOR LEAVE TO FILE
AMICUS CURIAE BRIEF BY JULAINE K. APPLING ET AL.


Plaintiffs Virginia Wolf, et al. oppose the Motion of Julaine K. Appling, Jo Egelhoff,
Jaren E. Hill, Richard Kessenich and Edmund L. Webster (collectively, Amici) for leave to file
a brief amicus curiae in this case. Amicis requested filing deadline of May 14, 2014 threatens to
disrupt the expedited briefing schedule on Plaintiffs Motion for Summary Judgment. Because
of the lateness of Amicis request to file a brief and the very limited utility to the Court of the
proposed brief, its filing should not be permitted to delay that schedule. For that reason, Amicis
motion should be denied.
Whether to permit a nonparty to submit a brief, as amicus curiae, is, with immaterial
exceptions, a matter of judicial grace. Nat'l Org. for Women, Inc. v. Scheidler, 223 F.3d 615,
616 (7th Cir. 2000). The policy of the Seventh Circuit is not to grant rote permission to file an
amicus curiae brief. Id. at 617. Instead, [t]he privilege of being heard amicus rests in the
discretion of the court which may grant or refuse leave according as it deems the proffered
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information timely, useful, or otherwise. Leigh v. Engle, 535 F. Supp. 418, 420 (N.D. Ill. 1982)
(emphasis added).
This case was filed three months ago (see Dkt. #1). At the suggestion of this Court (see
Dkt. # 58), and on the condition that Plaintiffs withdraw their request for preliminary injunctive
relief, an expedited schedule for briefing on Plaintiffs summary judgment motion was set on
March 21, 2014. See Dkt. #53, #68. Under that schedule, Plaintiffs have until May 19, 2014 to
file their Reply in Support of Their Motion for Summary Judgment. The filing schedule
proposed by Amici would allow Plaintiffs only 5 days to analyze and respond to any arguments
raised in their brief. Plaintiffs only alternative to this limited response time would be to request
more time to file their reply, creating a delay that would undermine this Courts effort to provide
speedy resolution of this matter. Furthermore, Plaintiffs counsel have been informed by counsel
for the Intervenors in Appling that they will seek leave to respond if these proposed Amici are
allowed to file an amicus brief. Should the Appling Intervenors seek to file a brief, that could
further delay decision on the Plaintiffs summary judgment motion.
No such delay is justifiable because Amicis proposed brief will be of very limited value
to the Court. No matter who a would-be amicus curiae is . . . the criterion for deciding whether
to permit the filing of an amicus brief should be the same: whether the brief will assist the judges
by presenting ideas, arguments, theories, insights, facts, or data that are not to be found in the
parties' briefs. Voices for Choices v. Illinois Bell Tel. Co., 339 F.3d 542, 545 (7th Cir. 2003)
(Posner, J., in chambers). Under these criteria, Amicis proposed brief would at best offer a
repeat of arguments already made by the State in its Motion to Dismiss, or which the State is
perfectly capable of making in its opposition to Plaintiffs Motion for Summary Judgment.
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First, the fact that Amici are litigants in Appling v. Walker, Case No. 2011 AP 157, does
not give them any greater ability to enlighten the Court on the federal constitutional questions it
must address than the parties themselves already possess. Those federal constitutional questions
are not at issue in Appling. That is why this Court, having read the Court of Appeals decision in
Appling, concluded that Appling reveals nothing that would help resolve the issues raised in this
case. See Dkt. # 92 at 7. Thus, even though Amicis interest in Appling could be affected by
the Courts ruling here, their experience in litigating that case does not confer on them any
special knowledge or insight that would benefit the Court in resolving the questions before it in
this matter. And without something to offer this Court beyond what the parties can offer,
Amicis interest in Appling alone is not a sufficient basis for their participation as amici.
Second, Amici suggest that their experience in litigation and their principal roles in
drafting, passage and ratification of the [marriage ban] furnish them with a unique perspective
on the marriage bans history, meaning and effect. Motion at 3. But nothing that Amici could
say will alter the undisputed fact that Art. XIII, 13 prohibits marriage between two people of
the same sex, as well as recognition of such a marriage by the State of Wisconsin. The only
question in this case is whether those prohibitions violate the U.S. Constitution, and Amici have
no unique perspective on that matter.
Finally, Amicis implicit suggestion (at 4) that the State of Wisconsin needs help from
private parties to make arguments about federalism or the prerogatives of the states vis--vis the
federal government is not only dubious in principle, it is rebutted by the Defendants filings in
this case. The State made precisely this argument in its Motion to Dismiss (see Dkt. # 67 at 23),
and will undoubtedly do so again in its opposition to summary judgment if it determines that
such an argument is warranted. Moreover, Appling does not even involve any issues of
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federalism, so Amici have developed no expertise on that topic in the course of litigating that
case. Even if they had, [s]tate laws defining and regulating marriage, of course, must respect
the constitutional rights of persons. United States v. Windsor, 133 S. Ct. 2675, 2691 (2013).
Federalism is thus not even a relevant consideration in this case, and certainly not one on which
the Court needs any special guidance from Amici.
In short, Amici have little or nothing in the way of ideas, arguments, theories, insights,
facts, or data, Voices for Choices, 339 F.3d at 545, to offer this Court beyond what the parties
themselves will furnish. The Seventh Circuits policy is not to grant rote permission to file an
amicus curiae brief and never to grant permission to file an amicus curiae brief that essentially
merely duplicates the brief of one of the parties. Scheidler, 223 F.3d at 617. In light of these
policies, and of the obvious overlap between Amicis proposed brief and the arguments that the
State will assuredly make for itself, Amicis minimally useful brief should not be allowed to
disrupt the expedited briefing schedule.
CONCLUSION
For the foregoing reasons, Plaintiffs request that this Court deny Amici leave to file a
brief.
Dated: May 7, 2014 By: /s Laurence J. Dupuis
Counsel for Plaintiffs


JOHN A. KNIGHT JAMES D. ESSEKS*
American Civil Liberties Union Foundation American Civil Liberties Union Foundation
Lesbian Gay Bisexual Transgender Project Lesbian Gay Bisexual Transgender Project
180 North Michigan Avenue 125 Broad Street
Suite 2300 New York, New York 10004
Chicago, Illinois 60601 (212) 549-2623
(312) 201-9740 jesseks@aclu.org
jaknight@aclu.org
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LAURENCE J. DUPUIS HANS J. GERMANN*
SBN: 1029261 GRETCHEN E. HELFRICH*
American Civil Liberties Union of FRANK DICKERSON*
Wisconsin Foundation Mayer Brown LLP
207 E. Buffalo Street, Suite 325 71 South Wacker Drive
Milwaukee, Wisconsin 53202 Chicago, Illinois 60606-4637
(414) 272-4032 (312) 782-0600
ldupuis@aclu-wi.org hgermann@mayerbrown.com
ghelfrich@mayerbrown.com
* admitted pro hac vice fdickerson@mayerbrown.com

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