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Appellate Case No. 14-2266

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

VIRGINIA WOLF, et al.,

Plaintiffs-Appellees,

v.

SCOTT WALKER, et al.

Defendants-Appellants.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT,WESTERN DISTRICT OF WISCONSIN

Case No. 14-CV-0064The Honorable Barbara B. Crabb, Presiding

DEFENDANT-RESPONDENT JOSEPH CZ RNEZKI’S MEMOR NDUM OF L W

IN OPPOSITION TO JURISDICTION IN THIS COURT

Defendant Joseph Czarnezki was named by the plaintiffs in this action in his

official capacity as Milwaukee County Clerk. He submits this memorandum to

argue against jurisdiction in this Court. The district court has not yet issued

appealable orders capable of being stayed, certainly not orders that relate to Mr.

Czarnezki.

In its Opinion and Order of June 6, 2014, the district court granted the

Plaintiffs’ Motion for Summary Judgment and declared that provisions of Wisconsin

Case: 14-2266 Document: 13-1 Filed: 06/11/2014 Pages: 6 (1 of

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law barring same-sex marriage are unconstitutional. However, the district court

did not issue any directives to Mr. Czarnezki or any other defendant. There is no

order to Mr. Czarnezki that the Court of Appeals can stay. The district court

expressly deferred until further proceedings any injunctive relief against the

Defendants, including Mr. Czarnezki.

Mr. Czarnezki’s duties include issuing marriage licenses to qualified

applicants. See State Defendants- Appellants’ Emergency Motion for Temporary

Immediate Stay from the Relief Granted by the June 6, 2014 Opinion and Order of

the District Court (“Motion”) at 2-3, ECF No. 2. As the State Defendants note,

about 90 minutes after the district court issued its Opinion and Order, Mr.

Czarnezki began issuing marriage licenses to same-sex couples. Motion at 3 n.1.

His office continues to do so. More than 145 same-sex licenses were issued on June

6 and June 7, 2014, in Milwaukee County, and Milwaukee County Circuit Court

judges, court commissioners and other officiants performed marriages on the spot

for virtually all of those couples. See Motion at 7-8 and sources cited.

However, the district court did not order Mr. Czarnezki to issue those

licenses. There is no injunction or other enforceable order against him requiring

him to issue licenses or take any other steps. This is best illustrated by the fact

that two of the three county clerks named as defendants in the action decided to

issue licenses to same-sex couples following the Opinion and Order, but the third


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clerk named as a defendant, Wendy Christensen of Racine County, decided not to do

so. See Bargren Decl. Ex. A.1

As the State Defendants note, “Wisconsin’s county clerks are deciding on a

county-by-county basis whether to issue marriage licenses….” Motion at 4. They

are relying on their own interpretations of the Opinion and Order, and the statutes

and constitutional provisions, just as they must routinely rely upon their own

interpretations in myriad statutory matters as they go about their daily duties.

They are not subject to any final, appealable order, or they would be acting

uniformly, not on a county-by-county basis.2

An appeal in a civil case normally may not be taken until a final judgment

disposing of all claims against all parties is entered by the district court pursuant to

Fed. R. Civ. P. 58. See Cleaver v. Elias , 852 F.2d 266, 267 (7th Cir. 1988) (appeal

premature where no judgment drafted or entered). “Federal appellate jurisdiction

generally depends on the existence of a decision by the District Court that ‘ends the

litigation on the merits and leaves nothing for the court to do but execute the

judgment.’ ” Coopers & Lybrand v. Livesay, 437 U.S. 463, 467 (1978), as cited in

Orrego v. 833 W. Buena Joint Venture , 943 F.2d 730, 734 (7th Cir. 1991). In

1 While named as a defendant, Mr. Czarnezki’s interests are more closely aligned with the

Plaintiffs’ interests. He did not join the State Defendants in opposing the Plaintiffs’ Motionfor Summary Judgment, and has not joined the State Defendants in their Motion toDismiss or in their motions for stay or other oppositions now pending.

2 The press reported today: "The decisions are being made by individual county clerks,

suddenly left free by the courts to chart their own course on this issue." See Bargren Decl.Ex. B p. 1.


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Orrego, similar to the proceedings in this case, a memorandum decision by the

district court did not create appellate jurisdiction where it specifically requested the

prevailing party to draft and submit a proposed order. Only the final order entered

two months later was subject to appeal. Id.

The district court has more to do here. Indeed, a stay at this point would be

premature. For one thing, because the district court has not issued a final order,

the Opinion and Order of June 6 is subject to modification, should the district court

wish to do so. See, e.g., Fed. R. Civ. P. 54(b) (“any order or other decision, however

designated, that adjudicates fewer than all the claims or the rights and liabilities of

fewer than all the parties does not end the action as to any of the claims or parties

and may be revised at any time before the entry of a judgment adjudicating all the

claims and all the parties’ rights and liabilities”) (emphasis added). Likewise, if the

Court of Appeals took jurisdiction now and “stayed” the declarations in the Opinion

and Order, the district court could still work on its injunction:

[A]n appeal taken from an interlocutory decision does not prevent thedistrict court from finishing its work and rendering a final decision.This is so for appeals concerning preliminary injunctions.

Wisconsin Mut. Ins. Co. v. United States , 441 F.3d 502, 504 (7th Cir. 2006) (citing

Kusay v. United States, 62 F.3d 192, 194 (7th Cir. 1995); Chrysler Motors Corp. v.

Industrial Workers Union, 909 F.2d 248, 250 (7th Cir. 1990)). Nothing in 28

U.S.C.A. Section 1292(a), the interlocutory appeal statute, creates jurisdiction over


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a district court’s declaration where the district court is still “finishing its work.”3

The findings of unconstitutionality in the district court’s Opinion and Order

were a declaration, not a declaratory judgment. A declaratory judgment requires

someone to do something. See Comm. on Judiciary of U.S. House of

Representatives v. Miers , 542 F.3d 909, 910 (D.C. Cir. 2008) (declaratory judgment

required former White House counsel to appear and testify). The district court’s

declaration in this action declared certain Wisconsin provisions unconstitutional,

but for now that leaves local officials such as Mr. Czarnezki free to act as they

believe appropriate. The district court has yet to enjoin anyone to do anything.

CONCLUSION

For the reasons stated herein, Mr. Czarnezki requests that the State

Defendant- Appellants’ Emergency Motion be denied.

Dated at Milwaukee, Wisconsin this 11th

day of June, 2014.

3 28 U.S.C.A. § 1292(a) states:

a) Except as provided in subsections (c) and (d) of this section, the courts of appeals shallhave jurisdiction of appeals from:

1) Interlocutory orders of the district courts of the United States, the United StatesDistrict Court for the District of the Canal Zone, the District Court of Guam, and theDistrict Court of the Virgin Islands, or of the judges thereof, granting, continuing,modifying, refusing or dissolving injunctions, or refusing to dissolve or modifyinjunctions, except where a direct review may be had in the Supreme Court;2) Interlocutory orders appointing receivers, or refusing orders to wind up

receiverships or to take steps to accomplish the purposes thereof, such as directingsales or other disposals of property;3) Interlocutory decrees of such district courts or the judges thereof determining the

rights and liabilities of the parties to admiralty cases in which appeals from finaldecrees are allowed.


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Respectfully Submitted,Milwaukee County Corporation Counsel

s/ Paul Bargren______________________PAUL BARGRENCorporation CounselState Bar No: 1023008

P.O. Mailing Address:Milwaukee County Courthouse

901 North 9th Street, Room 303Milwaukee, WI 53233Telephone: (414) 278-4315Facsimile: (414) 223-1249Email: [email protected]


mailto:[email protected]


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v.





DECLARATION OF PAUL BARGREN IN SUPPORT OF DEFENDANT

RESPONDENT JOSEPH CZ RNEZKI’S MEMOR NDUM OF L W IN

OPPOSITION TO JURISDICTION IN THIS COURT

STATE OF WISCONSIN )) SS

MILWAUKEE COUNTY )

I, Paul Bargren, declare pursuant to 28 U.S.C. Section 1746 and under

penalty of perjury that the following is true and correct:

1. I am the attorney representing Defendant-Respondent Joseph Czarnezki in

the above matter. I make this declaration on personal knowledge and in


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support of Defendant-Respondent Joseph Czarnezki’s Memorandum of Law

in Opposition to Jurisdiction in this Court.

2. Attached hereto as Exhibit A is a true and correct copy of Sharif Durhams,

Which Wisconsin Counties Are Issuing Same-Sex Marriage Licenses? ,

Milwaukee Journal Sentinel (Jun. 10, 2014),

http://www.jsonline.com/blogs/news/262381311.html.

3. Attached hereto as Exhibit B is a true and correct copy of Craig Gilbert,

County Decisions Reflect Shifting Politics of Gay Marriage , Milwaukee

Journal Sentinel (Jun. 11, 2014),

http://www.jsonline.com/news/statepolitics/county-decisions-reflect-shifting-

politics-of-gay-marriage-b99288588z1-262645421.html.

Dated at Milwaukee, Wisconsin this 11th day of June, 2014.

By: s/ Paul Bargren______________________Paul BargrenMilwaukee County Corporation CounselState Bar No. 1023008


http://www.jsonline.com/news/statepolitics/county-decisions-reflect-shifting-politics-of-gay-marriage-b99288588z1-262645421.html




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v.





CERTIFIC TE OF SERVICE

I hereby certify that on June 11, 2014, I electronically filed Defendant-

Respondent Joseph Czarnezki’s Memorandum of Law in Opposition to Jurisdiction

in this Court and the Declaration of Paul Bargren in support of said memorandum

with the Clerk of the Court for the United States Court of Appeals for the Seventh

Circuit by using the CM/ECF system. I further certify that all participants in the

case are registered CM/ECF users and that service will be accomplished by the

CM/ECF system.


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Respectfully Submitted,Milwaukee County Corporation Counsel

s/ Paul Bargren______________________PAUL BARGRENCorporation CounselState Bar No.: 1023008

P.O. Mailing Address:Milwaukee County Courthouse901 North 9th Street, Room 303

Milwaukee, WI 53233Telephone: (414) 278-4315Facsimile: (414) 223-1249Email: [email protected]




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