Defendants-Appellants, )
v. ) Case No. 14-2266
VIRGINIA WOLF, et al., )
Plaintiffs-Appellees. )
Plaintiffs-Appellees’ Memorandum in Opposition to Jurisdiction
On June 6, 2014, the district court issued an opinion and order granting
Plaintiffs’ motion for summary judgment and denying Defendants’ Motion to
Dismiss. Case No. 14-cv-64, Doc. # 118 (“June 6 Order” or “the Order”), at 87.
court also declared that Wisconsin’s constitutional amendment and statutes
limiting marriage to different-sex couples violate the Fourteenth Amendment to the
United States Constitution. Id. The Order, however, did not provide any injunctive
relief to Plaintiffs, and therefore held in abeyance Defendants’ motion for a stay of
that relief. Id.
In the wake of the decision, some county clerks in Wisconsin began issuing
marriage licenses to same-sex couples. Other clerks have denied marriage licenses
to same-sex couples since the court’s ruling. The June 6 Order did not direct
Wisconsin county clerks to issue or refrain from issuing marriage licenses to same-
All docket references are to the proceedings in the district court.
Case: 14-2266 Document: 15-1 Filed: 06/11/2014 Pages: 14 (1 of 38)
sex couples; the clerks’ actions were not compelled by the declaratory relief granted
by the district court. See Perez v. Ledesma, 401 U.S. 82, 124 (1971) (“A declaratory
judgment . . . is merely a declaration of legal status and rights; it neither mandates
nor prohibits state action.”). Defendants have filed a notice of appeal from the June
6 Order. Doc. # 120.
This Court does not have jurisdiction to hear Defendants’ appeal. The Order
is not a final order within the meaning of 28 U.S.C. § 1291 and thus is not
appealable on that basis. Nor does the June 6 Order fall within the collateral order
or practical finality doctrines. Finally, the June 6 Order does not grant, deny,
modify or extend injunctive relief and therefore is not immediately appealable
under 28 U.S.C. § 1291(a)(2). Because this Court lacks jurisdiction under § 1291 or
any of the alternative bases proposed by Defendants, the appeal should be
I. The June 6 Order Was Not a Final, Appealable Order Under 28 U.S.C.
§ 1291.
This Court lacks jurisdiction over this appeal because the district court’s
order was not a final order. Under 28 U.S.C. § 1291, “[t]he courts of appeals . . .
shall have jurisdiction of appeals from all final decisions of the district courts of the
United States. . . .” See also Cobbledick v. United States, 309 U.S. 323, 324 (1940)
(“Finality as a condition of review is an historic characteristic of federal appellate
procedure,” and it is “final decisions in the district court which alone the circuit
courts of appeal are authorized to review.” (internal quotation marks omitted)).
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Generally, a decision of the district court becomes final when it has been “set
forth in a separate document and entered on the district court civil docket.” Rosser
v. Chrysler Corp., 864 F.2d 1299, 1305 (7th Cir. 1988) (citing Fed. R. Civ. P. 58 and
United States v. Indrelunas, 411 U.S. 216, 221 (1973)). “These requirements [of
Rule 58] must be met before there is a final appealable order.” Id. See also Cleaver
v. Elias, 852 F.2d 266, 267 (7th Cir. 1988) (order cannot be appealed until all claims
against all parties have been disposed of and Rule 58 judgment entered); Williams
v. Burlington Northern, Inc., 832 F.2d 100, 102 (7th Cir. 1987) (time for appeal
under Fed. R. App. P. 4(a) does not begin to run until the order is entered on the
docket). The district court has not entered a Rule 58 judgment in this case.
In the absence of a Rule 58 judgment, “[a]n appeal is possible . . . only if the
district court clearly has disposed of all pending matters.” Cleaver, 852 F.2d at 267
(emphasis added). But before a circuit court may treat an order as an appealable
final judgment in such circumstances, it is “essential that there be a clear signal
from the district court” that it “has finished its work on the case.” Luevano v. Wal-
Mart Stores, Inc., 722 F.3d 1014, 1021 (7th Cir. 2013) (finding dismissal of
complaint without Rule 58 judgment was not final where “[t]he district court’s order
not only contemplated but invited continuation of the suit via an amended
complaint”). See also Minnesota Life Ins. Co. v. Kagan, 724 F.3d 843, 847 (7th Cir.
2013) (“By ‘fully extinguishing all lingering claims’ before the district court,”
Plaintiff “has eliminated from the case any ‘remaining elements . . . apt to come
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back on a second appeal.’” (quoting First Health Grp. Corp. v. BCE Emergis Corp.,
269 F.3d 800, 801 (7th Cir. 2001)).
Here, as in Luevano, the district court’s “order made crystal clear that the
court was not finished with the case.” Id. The court postponed ruling on the
Plaintiffs’ request for injunctive relief and specifically instructed Plaintiffs to
“submit a proposed injunction that complies with the requirement in Fed. R. Civ. P.
65(d)(1)(C)” by June 16, 2014. June 6 Order at 87. The court further gave
Defendants one week to file any opposition to the proposed injunction, and Plaintiffs
an additional week to file a reply. Id. Plaintiffs filed their proposed injunction on
June 9, 2014, see Doc. # 126, Defendants responded with their opposition on June
11, 2014, see Doc. # 128, and on the same day the court reset the schedule so that all
briefing on the injunction will be concluded by June 12, 2014, and a hearing held on
June 13, 2014. See June 11 Text-only Order setting/resetting deadlines and hearing
date. Moreover, the court explicitly stated in the June 6 Order that it would
“address defendants’ pending motion to stay the injunction after the parties have
had an opportunity to file materials related to the proposed injunction.” June 6
Order at 87.
At a hearing on Defendants’ motion for an emergency stay on June 9, 2014,
the court further clarified that it was not finished with the case by reiterating that
it had not ordered defendants to do anything and signaling that it was likely to stay
whatever injunctive relief the court granted. Transcript of June 10, 2014 hearing
(attached hereto as Exhibit A), at 18: 21-25 (“I think it would be remiss of me not to
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say that I anticipate that there will be a stay in this case simply because that’s
what every federal court has done in similar situations and similar rulings.”). If the
June 6 Order were not clear enough on its own, the court’s statements at the
hearing and setting of an expedited briefing schedule confirm that the court was not
finished with the case on June 6, 2014. See Luevano, 722 F.3d at 1021 (“In
assessing the potential finality of an order, we may analyze not only the text of the
order but also the district court’s behavior.”).
Therefore, the June 6 Order was not a final, appealable order, and it was not
a stay order at all. Appropriately, the court intends to address the request for a
stay of the injunction concurrent with the issuance of the injunction. Defendants’
attempt to appeal any part of the June 6 order is thus premature, and this Court
lacks jurisdiction.
II. This Appeal Does Not Fall Within The Collateral Order Doctrine.
In their Docketing Statement, Doc. # 121 at 3, Defendants assert that the
June 6 Order constructively denied their motion for a stay and that this Court has
jurisdiction over this appeal under the collateral order doctrine. The collateral
order doctrine does not apply here.
To begin with, collateral order review is “not an exception to the final-
judgment rule.” Ott v. City of Milwaukee, 682 F.3d 552, 554 (7th Cir. 2012) (citing
Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949); Digital Equip.
Corp. v. Desktop Direct, Inc., 511 U.S. 863, 867 (1994)). Rather, it is “based on a
‘practical’ construction of 28 U.S.C. § 1291.” Id. The Supreme Court has warned
that “the class of collaterally appealable orders must remain narrow and selective in
Case: 14-2266 Document: 15-1 Filed: 06/11/2014 Pages: 14 (5 of 38)
its membership.” Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 113 (2009)
(internal quotation marks omitted).
This doctrine therefore applies only to orders “‘[1] that are conclusive, [2] that
resolve important questions completely separate from the merits, and [3] that would
render such important questions effectively unreviewable on appeal from final
judgment in the underlying action.’” Ott, 682 F.3d at 554 (quoting Digital Equip.,
511 U.S. at 867). Accord Midland Asphalt Corp. v. United States, 489 U.S. 794, 799
(1989). Furthermore, this Court has concluded that for the collateral order doctrine
to apply, “postponement of the appeal to the end of the case [must] cause irrevocable
harm to the appellant.” Richardson v. Penfold, 900 F.2d 116, 118 (7th Cir. 1990)
(citing Mulay Plastics, Inc. v. Grand Trunk Western R.R., 742 F.2d 369 (7th Cir.
1984); M.A. Mortenson Co. v. United States, 877 F.2d 50 (Fed. Cir. 1989)). None of
these criteria is met here.
A. The June 6 Order Is Not Conclusive.
As explained above, the June 6 Order specifically states that the district
court will “address defendants’ pending motion to stay the injunction after the
parties have had an opportunity to file materials related to the proposed
injunction.” June 6 Order at 87. Moreover, the court stated at the June 9 hearing
that it “anticipate[d]” granting a stay, but that it will “take up the request for an
injunction and the briefing and I will consider a stay as it relates to what is in the
injunction.” Exh. A at 18:18-25. The court then reiterated this position in its June
9 ruling on Defendants’ emergency motion for a stay. Doc. # 125 at 4. Because the
June 6 Order does not rule on the stay and the court has clearly stated orally and in
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writing her intention to rule on the stay when she decides the scope of injunctive
relief, there is no conclusive stay order as required by the collateral order doctrine.
B. The June 6 Order Did Not Resolve An Issue Separate From The
The June 6 order did not dispose of the motion for a stay, but even if it had,
the stay issue is not “completely separate from the merits,” Ott, 682 F.3d at 554, as
required for the application of the collateral order doctrine. Defendants themselves,
in their Emergency Motion in this Court, concede that a court deciding a motion for
a stay must “consider the moving party’s likelihood of success on the merits” of an
appeal. June 9, 2014 Emergency Motion at 9 (citing In re A & F Enters., Inc. II,
742 F.3d 763, 766 (7th Cir. 2014)). Because the merits of the underlying judgment
are necessarily intertwined with the request for a stay, such a request cannot
qualify as a collateral order. See Midland Asphalt, 489 U.S. at 800 (orders
involving “considerations enmeshed in the merits of the dispute” are not appealable
as collateral orders).
C. Any Ruling On A Stay Can Be Reviewed on Appeal From Final
The June 6 decision is not a collateral order for another reason: if the trial
court decides to deny a stay when it orders injunctive relief, that order is reviewable
on appeal. As explained, the district court is proceeding to decide both the request
for injunctive relief and the stay motion in a very short time. But because the June
6 Order did not resolve the stay, any appeal of the stay must come after the motion
is finally decided in the district court. At that point, Defendants could seek a stay
on an emergency basis, as they have attempted to do here. But there is no sense in
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which any future denial of the requested stay would be unreviewable by this Court.
Cf. United States v. Michelle’s Lounge, 39 F.3d 684, 693-94 (7th Cir. 1994)
(“procedural tangle of parallel criminal and civil forfeiture proceedings” meant any
effective review on appeal “must be had at once if it is to be had at all.”)
D. Defendants Will Not Suffer Irreparable Harm From
Postponement Of An Appeal.
Finally, the collateral order doctrine is inapplicable here because Defendants
will not be irreparably harmed by deferring review of any future denial of a stay
until the appeal of the final order granting injunctive relief. See Richardson, 900
F.2d at 118 (“[I]rrevocable harm to the appellant” is an “essential” element of the
collateral order doctrine.)
Defendants first assert that “[a]ny time a court prevents a State from giving
effect to its duly enacted laws, the State suffers a form of irreparable injury.” Doc. #
121 at 8. But the State of Wisconsin has no interest in enforcing laws that are
unconstitutional. See Preston v. Thompson, 589 F.2d 300, 303 n.3 (7th Cir. 1978)
(“The existence of a continuing constitutional violation constitutes proof of an
irreparable harm, and its remedy certainly would serve the public interest.”).
Under Preston, mere non-enforcement of a law that has been found unconstitutional
cannot be sufficient harm to trigger the collateral order doctrine.
Second, Defendants assert that an immediate appeal is necessary to “prevent
the introduction of uncertainty, inconsistency, and confusion into state marriage
law.” Doc. # 121 at 6. But experience in other states where same-sex couples have
married shows that any uncertainty, inconsistency, or confusion surrounding those
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marriages can be resolved in an orderly way. See, e.g., Evans v. Utah, 2014 WL
2048343 (D. Utah May 19, 2014) (concluding that approximately 1,000 marriages of
same-sex couples entered into under the District Court’s decision in Kitchen were
valid under Utah law)
; Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 928, 1003
(N.D. Cal. 2010) (finding that “California . . . has not suffered any demonstrated
harm as a result” of the issuance of 18,000 marriage licenses to same-sex couples
before reinstatement of that state’s marriage ban), aff’d 671 F.3d 1052 (9th Cir.
Moreover, any uncertainty, inconsistency, and confusion related to
Wisconsin’s marriage laws primarily harms not the State, but same-sex couples in
the event the State refuses to recognize their marriages.
The cases cited by Defendants finding collateral order jurisdiction are
distinguishable. Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949),
involved the application of a statute requiring a plaintiff to post security for
attorneys’ fees in a shareholder derivative action, an issue that did not require any
examination of the merits whatsoever. Id. at 543-45. United States v. Michelle’s
Lounge, 39 F.3d 684 (7th Cir. 1994), involved appeal of a denial of a motion for an
adversary hearing and the release of assets to pay attorneys’ fees in a forfeiture
case, issues unrelated to the question of forfeitability that involved a “procedural
This ruling was stayed by the clerk of the Tenth Circuit upon application for
a stay pending appeal. See Evans v. Utah, Case No. 14-4060, ECF # 01019260287
(10th Cir. 2104) (attached hereto as Exhibit B). There has been no determination of
irreparable harm or likelihood of success on the merits by any judge of Tenth
Case: 14-2266 Document: 15-1 Filed: 06/11/2014 Pages: 14 (9 of 38)
tangle” of parallel civil and criminal proceedings making it likely that review after
final judgment would be unavailable. Id. at 691, 693-94. Here, in contrast, the
purported collateral order “constructively” denying Defendants’ motion for a stay
requires consideration of the merits and will be reviewed after final judgment is
entered in the case.
Because the June 6 Order is not conclusive, is not collateral to the merits,
and will not result in irreparable harm to the Defendants absent immediate appeal,
the collateral order doctrine cannot apply here. That doctrine therefore cannot be
the basis of jurisdiction in this Court.
III. This Appeal Does Not Fall Within The Practical Finality Doctrine.
Similarly, Defendants cannot rely on the doctrine of practical finality as the
basis for this Court’s jurisdiction over this appeal. Under that doctrine, which is
“closely related” to the collateral order doctrine, Richardson, 900 F.2d at 117, an
interlocutory order can be appealed where “the district court’s resolution of a legal
issue [is], for all practical purposes, the dispositive order in the case.” Travis v.
In most of the cases Defendants cite, the reviewing court found that it did not
have jurisdiction. See Ott v. City of Milwaukee, 682 F.3d 552, 553-54 (7th Cir. 2012)
(no jurisdiction under the collateral order doctrine over an appeal of denial of a
motion to quash a non-party subpoena; under Mohawk Indus., Inc. v. Carpenter,
558 U.S. 100 (2009), “postjudgment appeal [is] sufficient to protect the interests” at
stake in discovery orders)); Midland Asphalt Corp. v. United States, 489 U.S. 794,
799-800 (1989) (no jurisdiction over refusal to dismiss an indictment for violations
of Fed. R. Crim. P. 6(e) (prohibiting disclosure by the government of matters
occurring before the grand jury) because such denials are intertwined with the
merits and either reviewable after a conviction or rendered harmless by the
conviction); Coopers & Lybrand v. Livesay, 437 U.S. 463, 465, 469 (1978) (no
collateral order jurisdiction over order denying class certification because order is
subject to revision in the district court, involves considerations that are enmeshed
in the merits, and is subject to effective review after final judgment).
Case: 14-2266 Document: 15-1 Filed: 06/11/2014 Pages: 14 (10 of 38)
Sullivan, 985 F.2d 919, 925 (7th Cir. 1993). The order must also be “effectively
unreviewable after a resolution of the merits of the litigation.” Id. at 922. As with
the collateral order doctrine, these criteria are not met here.
A. The June 6 Order Is Not The Dispositive Order In The Case.
As discussed above, the June 6 Order did not resolve the request for a stay.
Thus it is not even an order regarding Defendants’ request for a stay, much less the
dispositive one. Moreover, the district court clearly stated in the June 6 Order that
it would consider the stay motion at the same time it decides the issue of injunctive
relief. June 6 Order at 87. Whatever ruling the court issues then will be the
dispositive ruling with respect to a stay, and Defendants can appeal that ruling
(although the court “anticipate[s]” that a stay is forthcoming. Exh. A at 18:22.).
There is no finality, practical or otherwise, with regard to the stay as a result of the
June 6 Order.
B. The Stay Ruling Can Be Effectually Challenged On Appeal
From A Final Judgment.
The practical finality doctrine requires that an interlocutory order must be
“effectively unreviewable after a resolution of the merits of the litigation.” Travis,
985 F.2d at 922. Defendants have misconstrued what is meant by this requirement.
See Doc. # 121 at 9. In practical finality cases, the “[d]ifficulty of envisaging the
procedure by which an order sought to be reviewed before the end of the litigation
could be reviewed then” is what licenses early review. Richardson, 900 F.2d at 119
(emphasis added). In both Travis and Crowder v. Sullivan, 897 F.2d 252 (7th Cir.
1990), the orders at issue—remands to an administrative agency for adjudication—
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could only be brought before a reviewing court after the litigation on the merits if
the agency secretary violated the order and was held in contempt. See Travis, 985
F.2d at 923; Crowder, 897 F.2d at 253. In Richardson, an interim award of
attorney’s fees would be unreviewable at the end of the litigation because the
attorney whose fees were at issue was withdrawing from the case, and thus would
not be involved in the later appeal, making an independent suit necessary. See
Richardson, 900 F.2d at 118.
No such procedural obstacle exists here. Defendants’ claim of
unreviewability in this context is nothing more than a claim of irreparable harm.
Cf. Michelle’s Lounge, 39 F.3d at 693 (“‘Effectively unreviewable’ means something
more than that hardship will result from delay or that the course of the litigation
will be changed without an appeal.”). As shown above, the harm is not irreparable.
IV. The June 6 Order Cannot Be Appealed Under 28 U.S.C. § 1292(a)(1).
Defendants’ last proposed basis for jurisdiction is 28 U.S.C. § 1292(a)(1),
which gives appellate courts jurisdiction over “[i]nterlocutory orders of the District
Courts . . . granting, continuing, modifying, refusing or dissolving injunctions.”
That statute is inapplicable here.
A. The June 6 Order Is Not An Order Covered By § 1292(a)(1).
Section 1292(a)(1) does not apply here for the simple reason that the June 6
Order was not an order “granting, continuing, modifying, refusing or dissolving
injunctions.” The court did not award or refuse to award any injunctive relief in the
Order. Indeed, the district court expressly withheld ruling on injunctive relief and
any stay of such relief and set a schedule for determining the content of an
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injunction. To the extent that county clerks in Wisconsin responded to the Order by
issuing marriage licenses to same-sex couples, they did so on the basis of their
interpretation of the court’s declaration that Wisconsin’s marriage ban is
unconstitutional; they were not enjoined to do so by the district court.
Furthermore, Defendants’ assertion that declaratory relief “‘has the same
effect as an injunction in fixing the parties’ legal entitlements’” is beside the point.
Doc. # 121 at 10. The case Defendants cite, Badger Catholic, Inc. v. Walsh, 620 F.3d
775, 782 (7th Cir. 2010), does not say that declaratory judgments and injunctions
are interchangeable for purposes of 1292(a)(1).
It merely states that a court has
discretion to award declaratory relief instead of an injunction where an injunction
would be cumbersome. Id. Badger does not contradict other cases holding that
declaratory relief does not compel action. See, e.g., Perez v. Ledesma, 401 U.S. 82,
__ (1971) (“A declaratory judgment . . . is merely a declaration of legal status and
rights; it neither mandates nor prohibits state action.”); Kennedy v. Mendoza-
Martinez, 372 U.S. 144, 83 S.Ct. 554 (1963) (declaratory relief was “noncoercive,”
and without an injunction statute found unconstitutional could be enforced pending
Even if Defendants could somehow bring the declaration in the June 6 Order
within the scope of § 1292(a)(1), that provision still would not apply. “Unless a
litigant can show that an interlocutory order of the district court might have a
‘serious, perhaps irreparable, consequence,’ and that the order can be ‘effectually
challenged’ only by immediate appeal, the general congressional policy against
piecemeal review will preclude interlocutory appeal” under § 1292(a)(1). Carson v.
American Brands, Inc., 450 U.S. 79, 84 (1981) (internal citations omitted). These
criteria are not met here: as discussed above, Defendants will have a ruling on their
stay motion soon and the harm from postponement of review is not irreparable.
Case: 14-2266 Document: 15-1 Filed: 06/11/2014 Pages: 14 (13 of 38)
For these reasons, 28 U.S.C. § 1292(a)(1) may not be invoked as a basis for
interlocutory jurisdiction in this case.
The district court’s June 6 Order is not a final appealable order under § 1291.
In addition, none of the other proposed bases of jurisdiction are applicable to the
Order. This Court therefore lacks jurisdiction over this appeal.
Dated: June 11, 2014 Respectfully submitted,
By: s/ Gretchen E. Helfrich
Counsel for Plaintiffs
American Civil Liberties Union
Lesbian Gay Bisexual Transgender
180 North Michigan Ave., Ste. 2300
Chicago, IL 60601
(312) 201-9740
American Civil Liberties Union
Lesbian Gay Bisexual Transgender
125 Broad Street
New York, NY 10004
(212) 549-2623
American Civil Liberties Union of
Wisconsin Foundation
207 E. Buffalo St., Ste. 325
Milwaukee, WI 53202
(414) 272-4032
Mayer Brown LLP
71 S. Wacker Dr.
Chicago, IL 60606
(312) 782-0600
Case: 14-2266 Document: 15-1 Filed: 06/11/2014 Pages: 14 (14 of 38)
Case: 14-2266 Document: 15-2 Filed: 06/11/2014 Pages: 22 (15 of 38)
* * * * * * * * * * * * * * * * * * * * * * * * * * * *


- vs - Case No. 14-CV-64-BBC

SCOTT WALKER, in his official
capacity as Governor of Wisconsin,
J.B. VAN HOLLEN, in his official
capacity as Attorney General of Wisconsin,
OSKAR ANDERSON, in his official
capacity as State Registrar of Wisconsin,
JOSEPH CZARNEZKI, in his official
capacity as Milwaukee County Clerk,
WENDY CHRISTENSEN, in her official
capacity as Racine County Clerk, and
SCOTT MCDONELL, in his official
capacity as Dane County Clerk, Madison, Wisconsin
June 9, 2014
Defendants. 1:07 p.m.
* * * * * * * * * * * * * * * * * * * * * * * * * * * *

Lynette Swenson RMR, CRR, CBC
U.S. District Court Federal Reporter
120 North Henry Street, Rm. 520
Madison, Wisconsin 53703
Case: 14-2266 Document: 15-2 Filed: 06/11/2014 Pages: 22 (16 of 38)
2 For the Plaintiffs:
ACLU of Wisconsin Foundation, Inc.
207 East Buffalo Street, Ste. 325
4 Milwaukee, Wisconsin 53202
5 Roger Baldwin Foundation of ACLU
6 180 North Michigan Avenue, Ste. 2300
Chicago, Illinois 60606
7 (appearing telephonically)
8 Mayer Brown LLP
71 South Wacker Drive
10 Chicago, Illinois 60606
(appearing telephonically)
For Defendants Walker, Van Hollen and Anderson:
12 Department of Justice
14 Assistant Attorneys General
17 West Main Street
15 Madison, Wisconsin 53703

16 For Defendant Joseph Czarnezki:
Milwaukee County Corporation Counsel
901 North 9th Street, Rm. 303
18 Milwaukee, Wisconsin 53233

19 For Defendant Wendy Christensen:
Racine County Corporation Counsel
21 730 Wisconsin Avenue, 10th Floor
Racine, Wisconsin 53403
22 (appearing telephonically)

23 For Defendant Scott McDonell:
Dane County Corporation Counsel
210 MLK Jr. Blvd., Rm. 419
25 Madison, Wisconsin 53703
Case: 14-2266 Document: 15-2 Filed: 06/11/2014 Pages: 22 (17 of 38)
1 THE CLERK: Case Number 14-CV-64-BBC. Virginia
2 Wolf v. Scott Walker is called for a motion hearing.
3 May we have the appearances, please.
4 MR. DUPUIS: For the plaintiffs, Laurence
5 Dupuis, in person. And on the phone: John Knight,
6 Gretchen Helfrich, and Frank Dickerson.
7 THE COURT: Thank you.
8 MR. GAULT: Your Honor, the Dane County Clerk
9 Scott McDonell appears personally and by Assistant
10 Corporation Counsel David Gault. We're actually
11 defendants in this lawsuit or he's a defendant in this
12 lawsuit, but I believe our interests are aligned with
13 the plaintiff. So the clerk put us at this table today.
14 THE COURT: All right.
15 MR. BARGREN: Your Honor, Paul Bargren,
16 Milwaukee County Corporation Counsel appearing for
17 Milwaukee County Clerk Joseph Czarnezki, also a
18 defendant, also aligned in interest with the plaintiffs
19 essentially.
20 THE COURT: Thank you.
21 MR. SAMUELSON: Good afternoon, Your Honor.
22 Timothy Samuelson appearing on behalf of the State
23 defendants Governor Walker, Attorney General Van Hollen,
24 and Registrar Anderson. I'm appearing about my
25 colleagues Thomas Bellavia and Clayton Kawski.
Case: 14-2266 Document: 15-2 Filed: 06/11/2014 Pages: 22 (18 of 38)
1 K-a-w-s-k-i.
2 THE COURT: Thank you. And on the telephone?
3 MR. LEHMAN: Good afternoon, Your Honor.
4 Attorney John Lehman appears on behalf of Racine County
5 Clerk Wendy Christensen and on behalf of John Serketich,
6 the attorney of record on this case.
7 THE COURT: Thank you.
8 MR. LEHMAN: Also on this call on the
9 conference is my Assistant Corporation Counsel Michael
10 Langsdorf. Thank you.
11 THE COURT: Thank you. Anyone else on the
12 phone? We heard --
13 MS. HELFRICH: Yes, Your Honor. This is
14 Gretchen Helfrich with Mayer Brown, LLP appearing on
15 behalf of the plaintiffs.
16 THE COURT: Did we hear from Mr. Knight?
17 MR. KNIGHT: Yes. I'm sorry, Your Honor. John
18 Knight also appearing for the plaintiffs.
19 THE COURT: Thank you.
20 MR. DICKERSON: Frank Dickerson from Mayer
21 Brown, LLP also appearing for the plaintiffs.
22 THE COURT: Thank you. So who is going to be
23 lead counsel for defendants?
24 MR. SAMUELSON: I am, Your Honor.
25 THE COURT: Mr. Lehman?
Case: 14-2266 Document: 15-2 Filed: 06/11/2014 Pages: 22 (19 of 38)
1 MR. SAMUELSON: Timothy Samuelson.
2 THE COURT: I'm sorry. One of the things that
3 I wondered about is I understand that we have a record
4 that you have gone to the Court of Appeals to ask for a
5 stay, but I don't have any idea what your motion said.
6 MR. SAMUELSON: Which motion, Your Honor?
7 THE COURT: The -- well, the motion that you
8 filed this morning.
9 MR. SAMUELSON: The motion that we filed with
10 the Seventh Circuit --
11 THE COURT: Right.
12 MR. SAMUELSON: -- is seeking an emergency stay
13 to preserve the status quo pending appeal.
14 THE COURT: Did you say anything in support of
15 that motion?
16 MR. SAMUELSON: Yes, we did, Your Honor;
17 similar grounds to that which we asserted in our
18 contingent motion to stay, it was filed on May 23rd, and
19 also similar bases as stated in our emergency motion
20 that we filed last Friday, June 6th.
21 In addition to that, there are other additional
22 factual grounds that have developed over the weekend,
23 namely that Dane County and Milwaukee County clerks
24 issued I believe 283 marriage licenses to same-sex
25 couples. And in addition, the fact that we now have
Case: 14-2266 Document: 15-2 Filed: 06/11/2014 Pages: 22 (20 of 38)
1 inconsistencies among the counties with I believe Rock
2 County agreeing to issue licenses to same-sex couples,
3 but Brown County on the other hand saying no, we're not
4 going to issue licenses to same-sex couples. That is
5 all asserted in our motion before the Seventh Circuit.
6 THE COURT: Okay. The first issue that I'd
7 like to hear from both sides on is whether this Court
8 retains jurisdiction over the case despite the appeal
9 because the Court has not -- this Court has not yet
10 entered a judgment or a final order.
11 Do you wish to go ahead, Mr. Samuelson, on that?
12 MR. SAMUELSON: Yes, Your Honor. It's the
13 State defendants' position that respectfully this Court
14 lacks jurisdiction over the emergency motion to stay and
15 the contingent motion to stay that was filed on May 23
16 by virtue of us filing our notice of appeal and
17 emergency motion with the Seventh Circuit. It's our
18 position that the District Court and the Court of
19 Appeals cannot assert jurisdiction simultaneously.
20 THE COURT: Well, that's true as a general
21 rule.
22 MR. SAMUELSON: Yes. However, we are not
23 asserting that Your Honor lacks jurisdiction over the
24 injunctive relief still at issue. It's --
25 THE COURT: I thought that was what I asked
Case: 14-2266 Document: 15-2 Filed: 06/11/2014 Pages: 22 (21 of 38)
1 you.
2 MR. SAMUELSON: Oh, I'm sorry. I misunderstood
3 the question, Your Honor.
4 THE COURT: I'm asking, and I probably didn't
5 phrase it particularly well, but the point that I'm
6 getting at is do I have any jurisdiction to do anything
7 in this case now that you've filed a motion, a notice of
8 appeal?
9 MR. SAMUELSON: It's our position that yes, you
10 do --
11 THE COURT: Okay.
12 MR. SAMUELSON: -- with respect to the
13 injunctive relief.
14 THE COURT: And who will be speaking on behalf
15 of plaintiffs on this point?
16 MR. DUPUIS: This is Laurence Dupuis. I will
17 be speaking on behalf of plaintiffs. The -- our
18 position is that this Court has jurisdiction over both
19 the pending questions about the injunctive relief, but
20 also with regard to a stay. And our position is based
21 on the fact that we believe that the Seventh Circuit
22 does not have jurisdiction over the appeal, and when the
23 jurisdiction -- when the Court does not have
24 jurisdiction over the appeal, if there is not a final
25 order, the District Court may disregard the purported
Case: 14-2266 Document: 15-2 Filed: 06/11/2014 Pages: 22 (22 of 38)
1 notice of appeal and proceed with the case, knowing that
2 it was not deprived of jurisdiction. The last part of
3 that is a quote from Ruby v. Secretary of the Navy, 365
4 F2d. 385 at 389. It's a Ninth Circuit decision from
5 1966.
6 THE COURT: You don't have any Seventh Circuit
7 opinion?
8 MR. DUPUIS: We did not have time to find
9 Seventh Circuit law on this, unless my co-counsel have
10 found it while I was in the car. But I don't believe
11 so.
12 MR. DICKERSON: I think Ms. Helfrich found a
13 Seventh Circuit case which addresses this point. Is
14 that correct, Ms. Helfrich?
15 MS. HELFRICH: Well, on the Seventh Circuit, a
16 notice of appeal doesn't become -- it's only treated as
17 valid after entry of a final judgment. So Friday's
18 opinion was not an appealable order until the notice of
19 appeal signature.
20 MR. DICKERSON: What's the citation for that?
21 MS. HELFRICH: I'm sorry. United States v.
22 Edith Woods Products, 916 F2d. 1211 at 1217. Seventh
23 Circuit 1990.
24 THE COURT: Could you say that again? 916
25 F2d. --
Case: 14-2266 Document: 15-2 Filed: 06/11/2014 Pages: 22 (23 of 38)
1 MS. HELFRICH: 1211.
2 THE COURT: Thank you.
3 MS. HELFRICH: At 1217.
4 THE COURT: Well, my understanding is that an
5 appeal from an interlocutory decision does not bar the
6 District Court from finishing the work that it still has
7 to do, which is another way of looking at it, I suppose.
8 But it seems to me that there are at least two major
9 unresolved questions in this case and that until those
10 are resolved, that there's really nothing -- no reason
11 for the Court of Appeals to take it and I doubt that it
12 would take it.
13 Those are the questions of an injunction, which
14 I've asked the parties to brief and I think the
15 plaintiffs said they could have something in today, I
16 don't know that's still true, and then there would be a
17 week for the defendants to respond. And then of course
18 there is the question of the stay. And I assume,
19 Mr. Samuelson, that you would want that -- the stay and
20 the injunction to be briefed at the same time or
21 similarly so that if the injunction is entered, then the
22 stay would be either -- would at least be acted upon at
23 that point.
24 MR. SAMUELSON: Well, first of all, and again
25 respectfully, Your Honor, it's State defendants'
Case: 14-2266 Document: 15-2 Filed: 06/11/2014 Pages: 22 (24 of 38)
1 position that only the Seventh Circuit can decide
2 jurisdiction when a question of jurisdiction has been
3 posed to it as a general rule. I don't have a citation
4 to authority for that.
5 But with respect to additional briefing, on either
6 the injunctive relief or the motion to stay, with
7 respect to the motion to stay it's been briefed. We
8 filed our opening motion on May 23rd and plaintiffs
9 responded to that and our request was for immediate
10 relief in the event of the Court ruling in this matter.
11 So it's our position that no additional briefing is due
12 at this time with respect to the stay.
13 But it remains our position that the Seventh
14 Circuit has jurisdiction over the stay issue. It
15 remains our position that the immediate request for stay
16 has been effectively denied by the Court when it ruled
17 on Friday without addressing the State defendants'
18 motion for stay.
19 THE COURT: But at that point there was nothing
20 to stay. There was just a declaration. There was no
21 injunction. The injunction was waiting for briefing.
22 What exactly are you asking the Court to stay --
23 MR. SAMUELSON: We ask --
24 THE COURT: -- when there's no injunction?
25 MR. SAMUELSON: I believe our stay requested or
Case: 14-2266 Document: 15-2 Filed: 06/11/2014 Pages: 22 (25 of 38)
1 stay motion requested the Court stay any proceedings in
2 the event the Court granted plaintiffs' motion for
3 summary judgment, and the reason we requested that was
4 in order to preserve the status quo, and that's what we
5 requested the Court enter.
6 THE COURT: And what proceeding did you want
7 stayed?
8 MR. SAMUELSON: Any relief by the Court.
9 THE COURT: Well, that's being briefed. That's
10 the injunction issue that's being briefed. There is no
11 relief that has been granted by the Court. That's a
12 matter of determining what the proper injunctive relief
13 should be. That hasn't been decided.
14 MR. SAMUELSON: Well, the Court's declaratory
15 relief is tantamount to injunctive relief, particularly
16 to the extent that parties to this case, including the
17 two -- two of the three clerk party defendants acted in
18 response to the declaratory relief and immediately --
19 THE COURT: They may have acted and they may
20 have acted in response, but they did not act because I
21 told them they could. I never -- I never said anything
22 about whether any county clerk could go forward with
23 issuing a marriage license. That hasn't been decided.
24 MR. SAMUELSON: And it's the State defendants'
25 position that that was the effect of the Court's ruling
Case: 14-2266 Document: 15-2 Filed: 06/11/2014 Pages: 22 (26 of 38)
1 and we requested the Court do -- enter a stay to
2 preserve the status quo in order to prevent the public
3 confusion that's presently ensuing.
4 THE COURT: Do you have any authority for the
5 proposition that you can -- that this Court could stay a
6 declaration? I have not been able to find any.
7 MR. SAMUELSON: I can't respond to that
8 particular point right now, Your Honor. It's our
9 position that the other -- strike that. It's our
10 position that the Court's declaration that the law was
11 invalid could have been stayed. The Supreme Court in
12 Herbert v. Kitchen stayed the District of Utah's
13 injunctive relief.
14 THE COURT: Isn't that different?
15 MR. SAMUELSON: Yes, I see what you're saying.
16 But the point remains that other circuit Courts of
17 Appeals, when faced with a similar situation, have
18 similarly granted stays to preserve the status quo, and
19 that's what State defendants are requesting this Court
20 do.
21 THE COURT: And that's maybe what the Court of
22 Appeals may do, but I could not find any authority for a
23 stay of a declaration.
24 MR. SAMUELSON: Your Honor, my colleague,
25 Mr. Bellavia, would like to respond to this point, if
Case: 14-2266 Document: 15-2 Filed: 06/11/2014 Pages: 22 (27 of 38)
1 the Court allows.
2 THE COURT: All right.
3 MR. BELLAVIA: With regard to authority that
4 might support our position, unfortunately I did not pick
5 up the case and bring it with me so I do not have the
6 citation. I can provide it immediately after the
7 hearing. It is one of the district court decisions in
8 the Bondy case out of the District Court in Florida,
9 which is one of the cases involving the
10 constitutionality of the Affordable Care Act. If I
11 remember correctly as I understood that case, the Court
12 had issued declaratory relief declaring the Act
13 unconstitutional, but had not issued -- and had not
14 issued an injunction.
15 The federal government continued to enforce the
16 Act, believing that the declaration didn't have any
17 effect until some -- until after an appeal was completed
18 because no injunctive order had been issued. Questions
19 about that arose. The federal government then went back
20 to court and asked the district court for clarification.
21 The district court held that the declaration declares
22 the legal rights and legal relationship of the parties
23 as to the subject of the -- as to the subject of the
24 declaration and, citing a Seventh Circuit decision by
25 Judge Easterbrook, has -- has the effect of an
Case: 14-2266 Document: 15-2 Filed: 06/11/2014 Pages: 22 (28 of 38)
1 injunction on the parties.
2 The Court then went on to issue a stay of its
3 previous order, which I think must have been a stay of
4 the declaratory order, although I'd have to -- I wasn't
5 scrutinizing the case for that particular point when I
6 looked at it. It was my understanding that only a
7 declaration and no injunction had been issued and that
8 the district court then, when asked for clarification,
9 converted it into a request for a stay and granted the
10 stay.
11 So I believe it supports the position that a
12 declaration -- that a stay of a declaratory judgment can
13 be granted because the declaratory judgment is in some
14 respects equivalent to an injunction.
15 THE COURT: Well, pretty much from the outset
16 certainly I've been trying to get the plaintiffs to
17 identify the injunctive relief that they are seeking and
18 we're still here without that having been identified,
19 and that was the point of the briefing that I set up as
20 part of the order. And I would like -- I think it makes
21 sense to find out what it is that the plaintiffs are
22 seeking in the form of specific injunctive relief and
23 let the defendants argue that point. Then we know what
24 we're working with.
25 MR. DUPUIS: Your Honor, if I --
Case: 14-2266 Document: 15-2 Filed: 06/11/2014 Pages: 22 (29 of 38)
1 THE COURT: What am I supposed to enjoin?
2 MR. DUPUIS: Your Honor, if I may, we will be
3 submitting the proposed injunction today. But I would
4 also just like to respond I have not also read this
5 Florida decision, but my sense of what's being said is
6 that in that case there was only a declaration issued
7 and there wasn't the contemplation of further
8 proceedings to reduce it to an injunctive relief. Here
9 there is. So I think that it would distinguish the
10 case, to the extent that that's what happened.
11 THE COURT: Without looking at it --
12 MR. DUPUIS: Right.
13 THE COURT: -- it's hard to know what was going
14 on. When do the defendants anticipate being able to
15 respond, assuming that the -- your proposal gets filed
16 today? Would you need more than a week to respond to
17 that?
18 MR. SAMUELSON: I don't anticipate that, Your
19 Honor. The Court ordered or provided State defendants a
20 week to respond. I think that's reasonable. However,
21 we haven't seen plaintiffs' proposed injunction. We
22 will try to respond as soon as practicable.
23 THE COURT: So defendants, what were you
24 anticipating in the way of a stay? What would you
25 just -- say that this Court says -- nothing I said on
Case: 14-2266 Document: 15-2 Filed: 06/11/2014 Pages: 22 (30 of 38)
1 Friday counts for anything?
2 MR. SAMUELSON: No, what we would request the
3 Court would do is grant whatever relief it was going to
4 grant; however, stay enforcement of that.
5 THE COURT: I won't know what relief I'm going
6 to grant.
7 MR. SAMUELSON: Well, there was a declaration
8 by Your Honor that at least Wisconsin Constitutional
9 Amendment Article 13, Section 13 was unconstitutional,
10 and other provisions of the Wisconsin state law, to the
11 extent that they serve to prevent same-sex couples from
12 marrying, is unconstitutional as applied. And that's
13 what we would like to have stayed, something to preserve
14 the status quo so we're not faced with inconsistent
15 application of the law that we're presently faced with.
16 THE COURT: Isn't the inconsistent application
17 of the law a state court problem? If county clerks are
18 doing something that the State believes is improper,
19 wouldn't you go to state court to tell those people to
20 stop?
21 MR. SAMUELSON: Respectfully, Your Honor, this
22 Court entered the declaratory relief and that's why
23 we're asking that this Court enter the stay of that
24 relief.
25 MR. DUPUIS: Your Honor, if I may, it appears
Case: 14-2266 Document: 15-2 Filed: 06/11/2014 Pages: 22 (31 of 38)
1 to me that the defendants are asking you to enjoin
2 parties that are not before the Court. They're asking
3 for an injunction that they've never before requested,
4 in effect, to try to stop the county clerks from issuing
5 licenses.
6 THE COURT: Well, as I said before, what I want
7 from you is --
8 MR. DUPUIS: Right.
9 THE COURT: -- an idea of what it is
10 specifically that you want enjoined and then the
11 defendants will have something that they can respond to.
12 MR. KAWSKI: Your Honor, if I may point out
13 also, one of the defendants is Racine County's Clerk and
14 we have a report, at least in the Journal Sentinel this
15 morning, that Racine County is one of the counties that
16 is not issuing licenses, whereas the other two defendant
17 clerks are. So we have inconsistency between the two
18 sets of clerks in this case, making it more than just a
19 state court problem. I mean that's a problem before
20 this Court.
21 THE COURT: I don't think so.
22 MR. KAWSKI: It's a problem because they're
23 misinterpreting your ruling, at least one side is.
24 THE COURT: That may be, but --
25 MR. KAWSKI: So which side is? I guess the
Case: 14-2266 Document: 15-2 Filed: 06/11/2014 Pages: 22 (32 of 38)
1 question is what side is.
2 THE COURT: They're not parties to this
3 lawsuit.
4 MR. KAWSKI: They are parties to this lawsuit.
5 Racine County's Clerk is not issuing licenses.
6 Milwaukee County and Dane County are issuing licenses.
7 They are parties to this lawsuit.
8 THE COURT: Racine County's Clerk?
9 MR. KAWSKI: Correct.
10 THE COURT: Oh, okay.
11 MR. KAWSKI: So one of those sets of parties is
12 not following your ruling.
13 MR. DUPUIS: Your Honor, they're not following
14 anything because you haven't ordered any of them to do
15 anything one way or the other.
16 THE COURT: Or not to do anything.
17 MR. DUPUIS: Right.
18 THE COURT: I will take up the request for an
19 injunction and the briefing and I will consider a stay
20 as it relates to what is in the injunction. But I'm not
21 going to act today. I think it would be remiss of me
22 not to say that I anticipate that there will be a stay
23 in this case simply because that's what every federal
24 court has done in similar situations and similar
25 rulings. And then with the one exception of the Oregon
Case: 14-2266 Document: 15-2 Filed: 06/11/2014 Pages: 22 (33 of 38)
1 case in which there was no opposition, the Supreme Court
2 has stepped in and issued stays. So I think that's
3 pretty much a fact of life.
4 MR. KNIGHT: Your Honor, this is John Knight.
5 We have, as Mr. DuPuis already mentioned, we have draft
6 language which, as I said, we could propose in the next
7 hour or so to Your Honor. I do think that it is --
8 there's no magic to this. We think that the defendants
9 should be enjoined from continuing to enforce the bans
10 on marriage for same-sex couples. That's sort of the
11 meat of the injunctive order.
12 I guess I am wondering -- and there's more
13 specifics to it, but I'm wondering whether it would be
14 helpful to actually set a time to discuss this issue
15 when you have competing injunctive language about the
16 injunction to be entered here.
17 THE COURT: Assuming that it can be in by -- we
18 could set something for a week from Thursday. I don't
19 know offhand what my schedule is, but I'll get notice
20 out to you for some time on Thursday. Would that work
21 out?
22 MR. SAMUELSON: We'll make ourselves available,
23 Your Honor.
24 THE COURT: Okay. I think that's the 19th.
25 MR. DUPUIS: I will be out of town, but I'm
Case: 14-2266 Document: 15-2 Filed: 06/11/2014 Pages: 22 (34 of 38)
1 sure my co-counsel can --
2 THE COURT: I think you have ample co-counsel.
3 You don't have that problem.
4 MR. SAMUELSON: Your Honor, respectfully in the
5 meantime between now and next Thursday, what is the
6 state of affairs?
7 THE COURT: The status quo.
8 MR. SAMUELSON: The status quo. Okay.
9 THE COURT: Anything further at this time?
10 MR. DUPUIS: No, Your Honor.
11 MR. SAMUELSON: Not from State defendants.
12 THE COURT: Thank you. And thank you for
13 making yourselves available on such short notice.
14 (Proceedings concluded at 1:32 p.m.)
16 * * * * *
Case: 14-2266 Document: 15-2 Filed: 06/11/2014 Pages: 22 (35 of 38)
1 I, LYNETTE SWENSON, Certified Realtime
2 and Merit Reporter in and for the State of Wisconsin,
3 certify that the foregoing is a true and accurate record
4 of the proceedings held on the 9th day of June 2014
5 before the Honorable Barbara B. Crabb, District Judge
6 for the Western District of Wisconsin, in my presence
7 and reduced to writing in accordance with my
8 stenographic notes made at said time and place.
9 Dated this 9th day of June 2014.
13 /s/________________________
14 Lynette Swenson, RMR, CRR
Federal Court Reporter
19 The foregoing certification of this transcript does not
apply to any reproduction of the same by any means
20 unless under the direct control and/or direction of the
certifying court reporter.
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