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UNITED STATES COURT OFAPPEALS

FOR THE SEVENTHCIRCUIT

SCOTT WALKER, J.B. VAN HOLLEN )

AND OSKAR ANDERSON, )

)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 87.1 The

court also declared that Wisconsins 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 courts ruling. The June 6 Order did not direct

Wisconsin county clerks to issue or refrain from issuing marriage licenses to same-

1 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

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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

dismissed.

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 courts

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 ofall 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 courts 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 courts 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. SeeJune 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 thats

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 courts 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 courts 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


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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

Merits.

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 partys 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

Judgment.

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 staymust 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. Michelles 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.).

UnderPreston, 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 Courts decision in Kitchen were

valid under Utah law)2; 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 states marriage ban), affd 671 F.3d 1052 (9th Cir.

2012).

Moreover, any uncertainty, inconsistency, and confusion related to

Wisconsins 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. Michelles

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

2 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

Circuit.


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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.3

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 Courts 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 courts resolution of a legal

issue [is], for all practical purposes, the dispositive order in the case. Travis v.

3 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 mattersoccurring 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).


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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 AppealFrom 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 bothTravis and Crowder v. Sullivan, 897 F.2d 252 (7th Cir.

1990), the orders at issueremands 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

attorneys 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. Michelles 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 courts declaration that Wisconsins 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).4 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

appeal).

4 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 alitigant 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.


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For these reasons, 28 U.S.C. 1292(a)(1) may not be invoked as a basis for

interlocutory jurisdiction in this case.

Conclusion

The district courts 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. HelfrichCounsel for Plaintiffs

JOHN A. KNIGHT

American Civil Liberties Union

Foundation

Lesbian Gay Bisexual Transgender

Project

180 North Michigan Ave., Ste. 2300

Chicago, IL 60601(312) 201-9740

[email protected]

JAMES D. ESSEKS

American Civil Liberties Union

Foundation

Lesbian Gay Bisexual Transgender

Project

125 Broad Street

New York, NY 10004(212) 549-2623

[email protected]

LAURENCE J. DUPUIS

American Civil Liberties Union of

Wisconsin Foundation

207 E. Buffalo St., Ste. 325

Milwaukee, WI 53202

(414) 272-4032

[email protected]

HANS J. GERMANN

GRETCHEN E. HELFRICH

FRANK DICKERSON

Mayer Brown LLP

71 S. Wacker Dr.

Chicago, IL 60606

(312) 782-0600

[email protected]@mayerbrown.com

[email protected]


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EXHIBIT A


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UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WISCONSIN

* * * * * * * * * * * * * * * * * * * * * * * * * * * *

VIRGINIA WOLF and CAROL SCHUMACHER,KAMI YOUNG and KARINA WILLES, ROYBADGER and GARTH WANGEMANN, MARIECARLSON and CHARVONNE KEMP, JUDITHTRAMPF and KATHARINA HEYNING, SALUDGARCIA and PAM KLEISS, LESLIE PALMERand WILLIAM HURTUBISE and JOHANNESWALLMAN and KEITH BORDEN,

Plaintiffs,

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

SCOTT WALKER, in his officialcapacity as Governor of Wisconsin,J.B. VAN HOLLEN, in his officialcapacity as Attorney General of Wisconsin,OSKAR ANDERSON, in his officialcapacity as State Registrar of Wisconsin,JOSEPH CZARNEZKI, in his officialcapacity as Milwaukee County Clerk,WENDY CHRISTENSEN, in her officialcapacity as Racine County Clerk, andSCOTT MCDONELL, in his official

capacity as Dane County Clerk, Madison, WisconsinJune 9, 2014

Defendants. 1:07 p.m.

* * * * * * * * * * * * * * * * * * * * * * * * * * * *

STENOGRAPHIC TRANSCRIPT OF MOTION HEARINGHELD BEFORE DISTRICT JUDGE BARBARA B. CRABB,

Lynette Swenson RMR, CRR, CBCU.S. District Court Federal Reporter

120 North Henry Street, Rm. 520Madison, Wisconsin 53703

(608)255-3821


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1 APPEARANCES:

2 For the Plaintiffs:ACLU of Wisconsin Foundation, Inc.

3 BY: LAURENCE DUPUIS

207 East Buffalo Street, Ste. 3254 Milwaukee, Wisconsin 53202

5 Roger Baldwin Foundation of ACLUBY: JOHN KNIGHT

6 180 North Michigan Avenue, Ste. 2300Chicago, Illinois 60606

7 (appearing telephonically)

8 Mayer Brown LLPBY: FRANK DICKERSON

9 GRETCHEN HELFRICH71 South Wacker Drive

10 Chicago, Illinois 60606(appearing telephonically)

11For Defendants Walker, Van Hollen and Anderson:

12 Department of JusticeBY: TIMOTHY SAMUELSON

13 THOMAS BELLAVIACLAYTON KAWSKI

14 Assistant Attorneys General17 West Main Street

15 Madison, Wisconsin 53703

16 For Defendant Joseph Czarnezki:Milwaukee County Corporation Counsel

17 BY: PAUL BARGREN901 North 9th Street, Rm. 303

18 Milwaukee, Wisconsin 53233

19 For Defendant Wendy Christensen:Racine County Corporation Counsel

20 BY: JOHN LEHMANMICHAEL LANGSDORF

21 730 Wisconsin Avenue, 10th FloorRacine, Wisconsin 53403

22 (appearing telephonically)

23 For Defendant Scott McDonell:Dane County Corporation Counsel

24 BY: DAVID GAULT210 MLK Jr. Blvd., Rm. 419

25 Madison, Wisconsin 53703


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1 THE CLERK: Case Number 14-CV-64-BBC. Virginia

2 Wolf v. Scott Walkeris 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.


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.


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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.


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.


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?


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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


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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


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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


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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. --


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1 MS. HELFRICH: 1211.


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'


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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


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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


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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. Kitchenstayed 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


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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 Bondycase 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


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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 --


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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


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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


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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 --


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


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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.


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


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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


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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.)

15

16 * * * * *

17

18

19

20

21

22

23

24

25


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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.

10

11

12

13 /s/________________________

14 Lynette Swenson, RMR, CRRFederal Court Reporter

15

16

17

18

19 The foregoing certification of this transcript does notapply to any reproduction of the same by any means

20 unless under the direct control and/or direction of thecertifying court reporter.

21

22

23

24

25


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