CIVIL ACTION FILE NO. 1:12-CV-589-WO-JEP MARCIE FISHER-BORNE, et al.; Plaintiffs, vs. JOHN W. SMITH, et al.; Defendants. _______________________________________ ) ) ) ) ) ) ) ) ) ) STATE DEFENDANTS REPLY TO PLAINTIFFS OBJECTION TO MAGISTRATE JUDGES RECOMMENDATION DATED JUNE 2, 2014 Plaintiffs filed this action initially as a to challenge North Carolinas adoption laws. With the consent of the State Defendants, Plaintiffs amended their lawsuit by adding Equal Protection and Due Process challenges to North Carolinas marriage laws. [DE 40]. Approximately two years after the filing of the original complaint, Plaintiffs Shana Carignan and Megan Parker filed a motion for a preliminary injunction on April 9, 2014. [DE 75]. Defendants JOHN W. SMITH, in his official capacity as the Director of North Carolina Administrative Office of the Courts; THE HONORABLE DAVID L. CHURCHILL, in his official capacity as Clerk of the Superior Court for Guilford County; THE HONORABLE ARCHIE L. SMITH III, in his official capacity as Clerk of the Superior Court for Durham County; ROY A. COOPER, in his official capacity as the North Carolina Attorney General , (collectively 1 referred to as the State Defendants), moved to dismiss Plaintiffs Amended Complaint, filed a response in opposition to Plaintiffs motion for preliminary injunction, and filed a motion to stay the Pending before the court is the parties' proposed consent order that reflects the dismissal of the 1 Attorney General as a named party-defendant, and a contemporaneous agreement to amend the case caption to include the Attorney General as an Intervenor on behalf of the State of North Carolina. Case 1:12-cv-00589-WO-JEP Document 100 Filed 06/30/14 Page 1 of 9 proceedings pending an opinion of the Fourth Circuit Court of Appeals in the case of Bostic v. Schaefer. [DE 65, 66, 84, 85, 88]. Plaintiffs responded by opposing the State Defendants motion to stay. [DE 91]. On June 2, 2014, United States Magistrate Judge Joi Elizabeth Peake issued a Recommendation that the State Defendants Motion to Stay be granted. [DE 97]. Judge Peake emphasized two of the more compelling justifications for a recommended stay: (1) the decision of the Fourth Circuit in Bostic will provide the controlling legal principles for this Court to apply in evaluating the motions to dismiss and in determining whether Plaintiffs have demonstrated a likelihood of success on the merits in support of their request for preliminary injunctive relief, and (2) any decision by this Court to allow immediate injunctive relief would be stayed pending appellate review. See Herbert v. Kitchen, 134 S. Ct. 893 (2014) (staying a district courts injunction in similar case in Utah, pending an appeal to the Tenth Circuit). [DE 97 p 3] (emphasis added). See also, Kitchen v. Herbert, No. 13- 4178 (10th Cir. June 25, 2014) (Slip Op pp 64-65, fn 14, 15) (staying the Circuit Courts order that Utahs same-sex marriage ban is unconstitutional under strict scrutiny analysis pending the disposition of any subsequently filed petition for writ of certiorari). Plaintiffs objected to the Recommendation on June 13, 2014. [DE 99]. By and through the undersigned attorneys, the State Defendants now submit the following Reply, ask the Court to adopt the Magistrate Judges Recommendation, and stay all proceedings herein pending the Fourth Circuits opinion in Bostic. In addition to the argument infra, the State Defendants also rely on the arguments that have been propounded in their motion to dismiss and supporting brief, their response in opposition to Plaintiffs motion for preliminary injunction, their motion to stay proceedings and attendant supporting 2 Case 1:12-cv-00589-WO-JEP Document 100 Filed 06/30/14 Page 2 of 9 brief, which are incorporated herein by reference. [DE 65, 66, 84, 85, 88]. ARGUMENT Plaintiffs argue that this Court should reject the Magistrate Judges Recommendation because (1) the Judge erred by failing to order an immediate grant of the preliminary injunction requested by Plaintiffs, and (2) the Judge erred by failing to consider the balancing factors in ruling on a Motion to Stay . [DE 99 pp 15-27]. The Magistrate Judges Recommendation concluding that the stay be granted is correct, appropriate, and should be adopted by the Court. I. STANDARD OF REVIEW. A magistrate judges order on nondispositive matters is modified or set aside by the district judge only when it is clearly erroneous or contrary to law. Fed. R. Civ. P., Rule 72 (a). That standard is deferential, as the district court should overturn a recommended order when it is left with the definite and firm conviction that a mistake has been committed. Anderson v. Bessemer City, 470 U.S. 564, 573 (1985); Weeks v. Samsung Heavy Indus. Co., 126 F.3d 926, 943 (7th Cir. 1997). Ordinarily, orders on motions to stay would be deemed nondispositive, and are consequently reviewable by the district court judge for clear errors of law only. See Fed. R. Civ. P. 72(a); 28 U.S.C. 636(b)(1)(A); PowerShare, Inc. v. Syntel, Inc., 597 F.3d 10, 14 (1st Cir. 2010). State Defendants contend that clearly erroneous is the appropriate standard of review for Judge Peakes Recommendation to grant a stay dated June 2, 2014. On the other hand, with respect to dispositive motions, the district court reviews ,de novo, those portions of magistrate judges report to which a party has filed written objections. Fed. R. Civ. P. 72(b). 3 Case 1:12-cv-00589-WO-JEP Document 100 Filed 06/30/14 Page 3 of 9 Pursuant to 28 U.S.C.S. 636(b)(1), a magistrate judges recommended ruling to grant or deny a motion for preliminary injunction is subject to a de novo review by the district judge. II. THE MAGISTRATE JUDGES RECOMMENDATION GRANTING THE STATE DEFENDANTS MOTION TO STAY DOES NOT AMOUNT TO A DENIAL OF A PRELIMINARY INJUNCTION. Plaintiffs argue that Judge Peakes recommendation of a stay in this matter effectively denied the Preliminary Injunction Motion. [DE 99 p 15]. That argument is incorrect. Judge Peake appropriately started her review of the Motion to Stay by pointing out that Defendants contend that consideration of Plaintiffs claims, including consideration of the recent request for a preliminary injunction and the pending motions to dismiss, should be stayed pending the Fourth Circuits decision in Bostic. [DE 97 pp 2-3]. In her recommendation that the requested stay of proceedings should be granted, Judge Peake emphasized that the stay pending the imminent opinion in Bostic will guide the Court in determining whether Plaintiffs have demonstrated a likelihood of success on the merits in support of their request for preliminary injunctive relief. [DE 97 p 3]. The plain reading of Judge Peakes order reflects an understanding that the merits of the Plaintiffs motion for preliminary injunction should be determined by virtue of the appropriate legal standards that are likely to be announced by the Fourth Circuit in Bostic. Despite their objection, Plaintiffs offer no explanation as to why Judge Peakes recommendation to stay the proceedings constitutes a denial of their motion for preliminary injunction. Instead, Plaintiffs simply repeat and recast their previously posed arguments in favor of a preliminary injunction. [DE 99 pp 15-24]. Nevertheless, Plaintiffs motion for preliminary injunction has not been denied by the recommended stay, and the merits of Plaintiffs motion should not be addressed and decided through 4 Case 1:12-cv-00589-WO-JEP Document 100 Filed 06/30/14 Page 4 of 9 their objection to the stay. Moreover, Plaintiffs conclusion that a recommendation to stay amounts to 2 a denial of the motion for preliminary injunction is inconsistent with the letter and the spirit of Judge Peakes order which stressed the temporal nature of the stay, the fact that the Court continues to retain 3 jurisdiction of the matter, and intends to consider Plaintiffs motion for preliminary injunction in the light of any binding precedent to emerge from Bostic matter. Plaintiffs objections on that basis should be overruled. III. THE MAGISTRATE JUDGES REPORT RECOMMENDING A STAY IS FREE OF CLEAR ERRORS AND SHOULD BE ADOPTED. Plaintiffs next argue that Judge Peakes recommended stay is clearly erroneous because the Recommendation makes no mention of a clear case of hardship or inequity in being required to go forward. [DE 99 p 25]. That contention is likewise without merit. First, contrary to Plaintiffs argument [DE 99 p 25], Judge Peakes recommendation properly referenced the negative effects on judicial economy and the parties if this case were to proceed without the requested stay: [a]ny decision by this Court in this case prior to Bostic would need to be reconsidered in light of the decision ultimately issued in Bostic, which would result in significant inefficiency and uncertainty with regard to the effect of any decision rendered in the interim. [DE 97 p 3]. However, to the extent the Court will entertain the merits of that motion in lieu of or 2 contemporaneously with the stay, the State Defendants position on the Plaintiffs motion for preliminary injunction was fully briefed, and is incorporated herein by reference. [DE 88] Judge Peake recommended that the parties have 10 days following issuance of a decision by 3 the Court of Appeals for the Fourth Circuit in Bostic to notify the Court in writing of their position on the course of future proceedings. [DE 97 p 5]. 5 Case 1:12-cv-00589-WO-JEP Document 100 Filed 06/30/14 Page 5 of 9 Indeed, the State Defendants fully briefed that issue and other requisite factors which compel a stay in this matter. Those supporting briefs are incorporated herein by reference. [DE 85, 96]. In summary, the stay would: (1) promote judicial efficiency; (2) avoid overturning the legal status quo in North Carolina by prematurely voiding a provision of the State Constitution; (3) avoid the legal and practical consequences associated with a ruling from this Court that could be inconsistent with the Fourth Circuits opinion in Bostic, including the premature abdication or pursuit of marriage by Plaintiffs and those who are similarly situated, and possible emergency intervention by the United States Supreme Court; and, (4) conserve the resources of the parties and this tribunal. [DE 85 p 2]. Contrary to Plaintiffs contention, Judge Peake indicated that she balanced the competing interests in the present case, and concluded that there are clear and convincing circumstances that outweigh any potential harm caused by a stay, in light of the expedited review of the important issues raised in this case already underway in the Fourth Circuit in Bostic, and in light of the Supreme Courts intervention and stay of relief in Herbert v. Kitchen. [DE 97 p 4]. A number of cases referenced by 4 Judge Peake, and the most recent Kitchen v. Herbert decision from the Tenth Circuit, adopted a similar approach and granted stays pending appellate review. Judge Peake correctly recommended that the Plaintiffs reliance on Natl Org. For Marriage v. Geiger, No 13A1173, Order in Pending Case 4 (U.S. June 4, 2014), [DE 99 p 23], is misplaced. Unlike the scenario in the instant case and in Herbert v. Kitchen, 134 S. Ct. 893 (2014), where the named State officials sought a stay of proceedings, in Geiger the Supreme Court denied a stay requested by the third-party, who had no standing to seek a stay as its motion to intervene in the lawsuit was already denied. See Kitchen v. Herbert, No. 13-4178 (10th Cir. June 25, 2014) (Slip Op pp 65, fn 15). 6 Case 1:12-cv-00589-WO-JEP Document 100 Filed 06/30/14 Page 6 of 9 stay in this case should be granted. CONCLUSION For the foregoing reasons, this Court should overrule Plaintiffs objections to Judge Peakes Recommendation and order a stay of all proceedings pending the Fourth Circuits opinion in Bostic. Respectfully submitted, this the 30th day of June, 2014. ROY COOPER North Carolina Attorney General /s/ Amar Majmundar Amar Majmundar Special Deputy Attorney General North Carolina State Bar No. 24668 N.C. Department of Justice Post Office Box 629 Raleigh, NC 27602 Telephone: (919) 716-6821 Facsimile: (919) 716-6759 Email: amajmundar@ncdoj.gov /s/ Olga E. Vysotskaya de Brito Olga E. Vysotskaya de Brito Special Deputy Attorney General North Carolina State Bar No. 31846 N. C. Department of Justice Post Office Box 629 Raleigh, NC 27602 Telephone: (919) 716-0185 Facsimile: (919) 716-6759 Email: ovysotskaya@ncdoj.gov /s/ Charles Whitehead Charles G. Whitehead 7 Case 1:12-cv-00589-WO-JEP Document 100 Filed 06/30/14 Page 7 of 9 Special Deputy Attorney General North Carolina State Bar No. 39222 N.C. Department of Justice Post Office Box 629 Raleigh, North Carolina 27602 Telephone: (919) 716-6840 Facsimile: (919) 716-6758 Email: cwhitehead@ncdoj.gov 8 Case 1:12-cv-00589-WO-JEP Document 100 Filed 06/30/14 Page 8 of 9 CERTIFICATE OF SERVICE I hereby certify that on the 30th day of June, 2014, I electronically filed the foregoing STATE DEFENDANTS REPLY with the Clerk of the Court using the CM/ECF system which will send notification of such filing to all counsel of record. /s/ Olga E. Vysotskaya de Brito Olga E. Vysotskaya de Brito Special Deputy Attorney General 9 Case 1:12-cv-00589-WO-JEP Document 100 Filed 06/30/14 Page 9 of 9