14-2266 #14

1
No. 14-2266

IN THE 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-64,
THE HONORABLE BARBARA B. CRABB, PRESIDING

STATE DEFENDANTS-APPELLANTS
MEMORANDUM ADDRESSING JURISDICTION

This Court has jurisdiction over State Defendants appeal of the district
courts constructive denial of their Contingent Motion to Stay because their
appeal raises issues separate from the underlying merits that will be
effectively unreviewable on final review. As a result, this Court has
jurisdiction under the collateral order doctrine pursuant to 28 U.S.C. 1291.
Defendants-Appellants Scott Walker, J.B. Van Hollen, and Oskar Anderson
(collectively, State Defendants), pursuant to this Courts June 9, 2014 order
Case: 14-2266 Document: 14-1 Filed: 06/11/2014 Pages: 16 (1 of 53)
2

(7th Circ. ECF 4), hereby submit this memorandum addressing whether this
Court has jurisdiction over this appeal.
In State Defendants Contingent Motion to Stay, filed on May 23, 2014
(ECF 114, 115, 116), State Defendants requested that any relief granted
[by the district court] be immediately stayed at the time it is ordered to
preserve the status quo for when an appeal is filed. (ECF 114:2.) The
district court, in its June 6, 2014, Opinion and Order, granted Plaintiffs
motion for summary judgment and entered an order declaring
unconstitutional certain provisions of the Wisconsin Constitution and
Wisconsin Statutes. (ECF 118:87, 3.) The district court, however, declined
to address the Contingent Motion to Stay until after the parties fully briefed
the scope of any injunction order. (Id., at 4.)
Following the June 6, 2014, Opinion and Order, hundreds of same-sex
couples have obtained marriage licenses and married notwithstanding
Wis. Const. art. XIII, 13 (the Marriage Amendment) that prohibits this.
Moreover, the laws are being applied in an uneven, haphazard manner.
Some counties are issuing marriage licenses to same-sex couples while others
are not. This uncertainty, confusion, and uneven application of state laws is
precisely what State Defendants sought to avoid in their Contingent Motion
to Stay.

3

INTRODUCTION
The district courts June 6, 2014, Opinion and Order (ECF 118) is a
final adjudication of some, but not all, claims in this case. The district court
granted Plaintiffs motion for summary judgment and entered an order
declaring that the Marriage Amendment and certain provisions of the
Wisconsin Statutes restricting the legal status of marriage to opposite-sex
couples violate the substantive due process and equal protection rights of
same-sex couples under the Fourteenth Amendment to the United States
Constitution. (ECF 118:87, 2-3.) That declaration has the force and effect
of a final judgment as to the rights and legal relations of the parties
regarding the constitutionality of the challenged provisions of Wisconsin law.
28 U.S.C. 2201(a). Nonetheless, the district court expressly refrained from
issuing any of the injunctive relief Plaintiffs requested, instead issuing a
briefing schedule for further proceedings regarding the scope of proposed
injunctive relief. (ECF 118:87, 4.)
Immediately following the district courts June 6, 2014, Opinion and
Order, hundreds of same-sex couples began seeking marriage licenses and
were married.
On June 9, 2014, the district court held a motion hearing regarding
State Defendants Emergency Motion to Stay (ECF 119) and denied the
motion. (ECF 125). Among other things, the district court stated that if any
4

county clerks issued marriage licenses to same-sex couples, they did not do so
at the courts behest:
They may have acted and they may have acted in response, but they
did not act because I told them they could. I never -- I never said
anything about whether any county clerk could go forward with issuing
a marriage license. That hasn't been decided.

(See Samuelson Declaration (Decl.) at 5, Ex. C, 11:19-23.)
The district court stated that it would likely stay the proceedings:
I think it would be remiss of me not to 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. And then with
the one exception of the Oregon case in which there was no opposition,
the Supreme Court has stepped in and issued stays. So I think that's
pretty much a fact of life.
(See Decl. at 5, Ex. C, 18:11-19:3)
The June 9, 2014 hearing resulted in even more uncertainty. (See Decl.
3-4, Ex. A, B.) After the hearing, for example, different media sources
reported opposite results. Compare Decl. 3, Ex. A (Judge . . . says she
didnt authorize weddings) with 4, Ex. B (Federal judge declines to stop
gay marriages in Wisconsin). The Wisconsin State Journal stated that:
Dane County Clerk Scott McDonell, who has been issuing marriage
licenses to same-sex couples since Friday, said it means that clerks can
continue to carry on as they are now, because Crabbs ruling on Friday
declaring the law to be unconstitutional means that it is no longer in
effect.

5

(Decl. 3, Ex. A.) And some, but not all, counties continued to issue
marriage licenses to same-sex couples. The ability to obtain a marriage
license thus depends on ones residence.
Pursuant to the district courts June 6, 2014, opinion and order, Plaintiffs
submitted their proposed permanent injunction on June 9, 2014 (ECF 126,
126-1) and State Defendants filed their response on June 11, 2014 (ECF 128.)
As of this filing, the district court has not ordered injunctive relief, a
final judgment, or ruled on State Defendants Contingent Motion to Stay.
The district court has scheduled a hearing on the injunction for June 13, 2014
at 1:00 p.m.; it has not further addressed the status of State Defendants
Contingent Motion to Stay, which remains effectively denied.
JURISDICTIONAL ARGUMENT
I. This Court Has Jurisdiction Under 28 U.S.C. 1291 and the
Collateral Order Doctrine.
State Defendants Contingent Motion to Stay, which had been filed on
May 23, 2014, asked the district court to immediately stay any order granting
Plaintiffs motion for summary judgment, in whole or in part, to preserve the
status quo for appeal. (ECF 114.) By declaring the rights and legal relations
of the parties as to the constitutionality of the challenged provisions of
Wisconsin law while indefinitely postponing a decision on State Defendants
Contingent Motion to Stay, the district court effectively denied State
6

Defendants request for an immediate stay of any order granting Plaintiffs
motion for summary judgment.
The subject of the present appeal is that constructive denial of the State
Defendants request for an immediate stay that would effectively preserve the
legal status quo in Wisconsin and prevent the introduction of uncertainty,
inconsistency, and confusion into state marriage law. Plaintiffs request for
injunctive relief remains pending before the district court, as does that courts
further consideration of State Defendants Contingent Motion to Stay.
Although some claims remain for disposition in the district court, the
Seventh Circuit has jurisdiction over the present appeal under
28 U.S.C. 1291 and the collateral order doctrine. See Cohen v. Beneficial
Indus. Loan Corp., 337 U.S. 541, 546 (7th Cir. 1949). Collateral order review
is based on a practical construction of the final judgment requirement
embodied in 28 U.S.C. 1291. See Ott v. City of Milwaukee, 682 F.3d 552,
554 (7th Cir. 2012). The doctrine permits an immediate appeal under
28 U.S.C. 1291 of an interlocutory decision if: (1) the decision conclusively
determines an important issue; (2) that issue is collateral to the merits of the
action; (3) the issue would be effectively unreviewable if immediate appeal
were not available; and (4) the appellant is threatened with irreparable harm
if an appeal is not permitted. Midland Asphalt Corp. v. United States, 489
U.S. 794, 799 (1989); Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978);
7

Cohen, 337 U.S. at 546; United States v. Michelles Lounge, 39 F.3d 684, 692-
93 (7th Cir. 1994).
The district courts constructive denial of State Defendants request for an
immediate stay of its order to preserve the status quo pending appeal
satisfies the four requirements of the collateral order doctrine.
First, the district courts action has conclusively determined the important
issue of whether the legal status quo in Wisconsin should be preserved
pending an appeal on the merits of the case. Although the district courts
Opinion and Order of June 6, 2014, purported to hold in abeyance a decision
on State Defendants Contingent Motion to Stay, the courts action of
declaring the challenged provisions of Wisconsin law unconstitutional while
postponing a decision on the State Defendants request to preserve the status
quo has opened the door for some county clerks to immediately begin issuing
marriage licenses to same-sex couples, thereby conclusively disrupting the
status quo that the State Defendants sought to preserve. Moreover, the
importance of the State of Wisconsins interest in avoiding confusion,
uncertainty, and inconsistency in the interpretation and enforcement of state
marriage law is indisputable.
Second, the issue of whether the legal status quo in Wisconsin should be
preserved pending an appeal is clearly collateral to the merits of the action.
The Seventh Circuit can resolve the present appeal simply by granting the
8

stay pending appeal that the district court has refused to grant, without
having to reach the underlying merits of the case at this time.
Third, the issue of preserving the legal status quo would be effectively
unreviewable if an immediate appeal is not available. The district courts
action has already disrupted the status quo, and nothing that the district
court might do in the future could provide State Defendants with meaningful
relief or a meaningful opportunity for appellate review of a stay. If the
district court, at some point in the future, were to issue an order granting the
State Defendants Contingent Motion to Stay, neither that order nor any
order on appeal would sufficiently preserve the status quo that has already
been disrupted. Conversely, if the district court were in the future to deny
the Contingent Motion to Stay, any subsequent appellate review of that
denial would likewise be insufficient to preserve the already-disrupted status
quo. Meaningful and effective review of the State Defendants request to
preserve the status quo pending appeal is only possible if review is
immediate.
Fourth, State Defendants will be irreparably harmed if an immediate
appeal is not permitted. The declaratory relief already granted by the
district court prevents the State of Wisconsin from enforcing a state
constitutional provision overwhelmingly ratified by the people of this State as
well as numerous marriage statutes enacted by the duly elected
9

representatives of the people. Any time a court prevents a State from giving
effect to its duly enacted laws, the State suffers a form of irreparable injury.
See Illinois Liberty PAC v. Madigan, 902 F. Supp. 2d 1113, 1127
(N.D. Ill. 2012) (citing Maryland v. King, 133 S. Ct. 1, 3 (2012) (Roberts, C.J.,
in chambers) (quoting New Motor Vehicle Bd. v. Orrin W. Fox Co., 434 U.S.
1345, 1351 (1977) (Rehnquist, C.J., in chambers)); Aid for Women v. Foulston,
441 F.3d 1101, 1119 (10th Cir. 2006) (same); Coalition for Econ. Equality v.
Wilson, 122 F.3d 718, 719 (9th Cir. 1997) (same)).
Therefore, the Seventh Circuit has jurisdiction over this appeal under
28 U.S.C. 1291 and the collateral order doctrine.
II. This Court Has Jurisdiction Under 28 U.S.C. 1291 and the
Practical Finality Doctrine.
In the alternative, the Seventh Circuit has jurisdiction of this appeal
pursuant to 28 U.S.C. 1291 and the practical finality doctrine. See Travis v.
Sullivan, 985 F.2d 919, 922-23 (7th Cir. 1993). That doctrine, which is
closely related to the collateral order doctrine, permits an immediate appeal
of a district court order under 28 U.S.C. 1291 if that order would be
effectively unreviewable on a subsequent appeal following resolution of the
merits of the litigation. Id.; see also Richardson v. Penfold, 900 F.2d 116, 118
(7th Cir. 1990); Crowder v. Sullivan, 897 F.2d 252 (7th Cir. 1990)
(per curiam). Here, State Defendants have requested immediate action to
10

preserve the status quo pending appeal, and any meaningful consideration of
that request must likewise be immediate. Conversely, if consideration of that
request is delayed, the request is effectively denied. The district courts
failure to grant the State Defendants Contingent Motion to Stay thus would
be effectively unreviewable in a subsequent appeal on the merits. The
practical finality doctrine therefore applies, and the Seventh Circuit has
jurisdiction under 28 U.S.C. 1291.
III. This Court Has Jurisdiction Under 28 U.S.C. 1292(a)(1).
In the second alternative, the Seventh Circuit has jurisdiction because
appellate review of an interlocutory order may be obtained under
28 U.S.C. 1292(a)(1) if the order has both the effect of granting or refusing
an injunction and if an appeal will further the statutory purpose of
permitting litigants to effectually challenge interlocutory orders of serious,
perhaps irreparable consequence. Carson v. American Brands, Inc., 450
U.S. 79, 84 (1980) (internal punctuation and citations omitted); see also
Matter of Forty-Eight Insulations, Inc., 115 F.3d 1294, 1300 (7th Circ. 1997).
Here, the district courts June 6, 2014, Opinion and Order declare[d] the
rights and other legal relations of the parties with regard to the
constitutionality of the challenged provisions of Wisconsin law.
28 U.S.C. 2201(a). Although such a declaratory judgment is not a true
injunction because it cannot be enforced by contempt proceedings, it has the
11

same effect as an injunction in fixing the parties legal entitlements.
Badger Catholic, Inc. v. Walsh, 620 F.3d 775, 782 (7th Cir. 2010). Moreover,
by failing to grant an immediate stay of its order granting a declaration, the
district court has disrupted the legal status quo, thereby causing irreparable
harm to the States interest in the consistent and uniform enforcement of
duly enacted state laws. Under these circumstances, permitting an
immediate appeal of the district courts failure to preserve the status quo will
allow State Defendants to effectively challenge the district courts action,
thereby furthering the statutory purpose of 28 U.S.C. 1292(a)(1).
The doctrine set forth in Carson and in Matter of Forty-Eight
Insulations, Inc., thus applies here and, pursuant to it, the Seventh Circuit
has jurisdiction over this appeal under 28 U.S.C. 1292(a)(1).
IV. Cleaver v. Elias is Inapposite.
On June 10, 2014, the Court entered an order (7th Circ. ECF 5) that
was ultimately vacated as erroneously issued (7th Circ. ECF 6). The vacated
order cited Cleaver v. Elias, 852 F.2d 266 (7th Cir. 1988), for the general
proposition that an appeal may not be taken in a civil case until a final
judgment disposing of all claims against all parties is entered on the district
courts civil docket pursuant to Fed. R. Civ. P. 58. (7th Circ. ECF 5.) In
Cleaver, the plaintiffs-appellees sought a declaration from the district court
but filed their appeal before the district court entered any declaratory relief.
12

Cleaver, 852 F.2d at 267. The Cleaver plaintiffs-appellees invoked the
collateral order doctrine in an appeal on the merits. Id. Finally, the
plaintiffs-appellees act of filing an appeal delayed the district court
proceedings, resulting in the district court terminating a hearing literally in
mid-hearing because it lacked jurisdiction. Id.
None of the Cleaver facts are present here. First, State Defendants
appealed the district courts constructive denial of their Contingent Motion to
Stay, an issue that is completely separate from the merits of the action.
Cleaver, 852 F.2d at 267 (citing Coopers & Lybrand v. Livesay, 437 U.S. 468
(1978)); (ECF 121:3). Second, the district court entered an order granting
declaratory relief in the present case whereas, the Cleaver court had entered
no relief at all. Cleaver, 852 F.2d at 267; (ECF 118:87, 3). Third, the
present appeal has not divested the district court of jurisdiction over all
issues beyond the discrete issue appealed. This was confirmed by the parties
and the court at the June 9, 2014 hearing. (See Decl. at 5, Ex. C, 6:22-24,
9:4-7) (State Defendants are not asserting that [the district court] lacks
jurisdiction over the injunctive relief still at issue; the court stated that an
appeal from an interlocutory decision does not bar the District Court from
finishing the work that it still has to do.). Fourth, the district courts rulings
have created a chaotic circumstance where its order declaring Wisconsin laws
unconstitutionalbut not enjoinedleaves county clerks confused as to
13

whether they can (or must) issue marriage licenses to same-sex couples to
comply with the district courts order. This, coupled with the uncertain
public perception of the orders, illustrates the unique and time sensitive
nature of this important case. (See Decl. 3-4, Ex. A, B.)
In sum, Cleaver involved an attorney who prematurely filed an appeal
before the district court granted any relief, effectively delaying the
proceedings and incorrectly asserting the collateral order doctrine on a merits
based appeal. It is factually distinguishable from the present case.
V. The Contingent Motion to Stay Seeks to Preserve the Status
Quo Ante.
The vacated order of June 10, 2014, also expressed the view that the
district court had not constructively denied defendants-appellants
Contingent Motion to Stay, primarily because an injunction has yet to be
entered. (7th Circ. ECF 5) That statement fails to grasp the essence of State
Defendants position. The district court issued a declaratory order
invalidating provisions of state law. That order changed the status of the
state law applicable to the official duties of the three defendant Wisconsin
county clerks. As a result of that change created by the district court, two of
those clerks have modified their behavior by ceasing to follow the laws
declared invalid, while the third has continued to observe the status quo ante,
pending a final judgment by the district court. Prior to the district courts
14

action, the State Defendantsin their Contingent Motion to Staymoved
the district court to immediately stay any order invalidating the challenged
state laws in order to preserve the status quo ante pending appeal. The
district courts action of changing the legal status quo while delaying a
decision on the Contingent Motion to Stay is a conclusive denial of the State
Defendants request for immediate relief and irreparably harms the State of
Wisconsins interest in preserving clarity and uniformity in the
administration of its laws. Contrary to the statement in the vacated order of
June 10, 2014, therefore, the district courtwhile purporting to delay a
decision on the Contingent Motion to Stayactually constructively denied
the heart of the relief requested in that motion.
VI. Defendant McDonell and Czarnezkis Jurisdictional
Memoranda Ignores the Collateral Order Doctrine, Practical
Finality Doctrine, and 28 U.S.C. 1292(a)(1).
Defendant Scott McDonell, Dane County Clerk, submitted a
Supplemental Memorandum regarding appellate jurisdiction
(7th Circ. ECF 11) and Defendant Joseph Czarnezki, Milwaukee County
Clerk,submitted a Memorandum of Law in Opposition to Jurisdiction in this
Court (7th Circ. ECF 13-1). Neither McDonell nor Czarnezkis memoranda
addresses State Defendants reliance upon the collateral order doctrine, the
practical finality doctrine, or 28 U.S.C. 1292(a)(1) as to the district courts
constructive denial of the Contingent Stay Motion. Contrary to their
15

memoranda, State Defendants are not appealing the merits of the district
courts June 6, 2014, Opinion and Order. State Defendants appeal the
narrow portion of the district courts order constructively denying their
Contingent Stay Motion. This was a proper assertion of the collateral order
doctrine because it presents an issue separate from the merits. Apostol v.
Gallion, 870 F.2d 1335, 1338 (7th Cir. 1989); see also I, supra.
CONCLUSION
State Defendants respectfully request this Court confer jurisdiction
over State Defendants appeal of the district courts constructive denial of
their Contingent Motion to Stay.
Dated this 11th day of June, 2014.
Respectfully submitted,

J.B. VAN HOLLEN
Attorney General

s/Timothy C. Samuelson
TIMOTHY C. SAMUELSON
Assistant Attorney General
State Bar #1089968

THOMAS C. BELLAVIA
State Bar #1030182

CLAYTON P. KAWSKI
State Bar #1066228
16

Attorneys for Defendants,
Scott Walker, J.B. Van Hollen,
and Oskar Anderson

Wisconsin Department of Justice
Post Office Box 7857
Madison, Wisconsin 53707-7857
(608) 266-3542 (Samuelson)
(608) 266-8690 (Bellavia)
(608) 266-7477 (Kawski)
(608) 267-2223 (fax)
samuelsontc@doj.state.wi.us
bellaviatc@doj.state.wi.us
kawskicp@doj.state.wi.us
No. 14-2266





v.




DECLARATION OF TIMOTHY C. SAMUELSON
IN SUPPORT OF STATE DEFENDANTS-APPELLANTS
MEMORANDUM ADDRESSING JURISDICTION

I, Timothy C. Samuelson, pursuant to 28 U.S.C. 1746, hereby declare as
follows:
1. I am one of Defendants-Appellants Walker, Van Hollen, and
Andersons (the State Defendants) attorneys in the above-captioned matter.
I make this Declaration based on my own personal knowledge and based
upon the sources described.

- 2 -
2. I make this Declaration in support of State Defendants
Memorandum addressing jurisdiction.
3. Attached hereto as Exhibit A is a true and correct copy of an article
titled, Judge Declines to Stay Marriage Ban Ruling, but Says She Didnt
Authorize Weddings, written by Ed Treleven, published by the Wisconsin
State Journal on June 9 2014.
4. Attached hereto as Exhibit B is a true and correct copy of an
Associated Press article titled Federal Judge Declines to Stop Gay Marriages
in Wisconsin, written by Jason Stein, Patrick Marley & Dana Ferguson,
published by the Milwaukee Journal Sentinel on June 9, 2014.
5. Attached hereto as Exhibit C is a true and correct copy of the
transcript from the motion hearing held before District Judge Barbara B.
Crabb on June 9, 2014.
6. Attached hereto as Exhibit D is a true and correct copy of this
Courts Order (ECF 125), denying State Defendants motion for an emergency
stay.
7. I declare under penalty of perjury that the foregoing is true and
correct.
Dated this 11th day of June 2014.

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its enforcement. Instead, she has ordered opponents of the
ban to prepare briefs on how an injunction should be
framed.
She stopped short, however, of saying that the marriages
conducted in Dane and Milwaukee counties over the
weekend, and in other counties Monday, should not be
going forward.
"I never said anything" about whether county clerks should
go forward with granting marriage licenses to same-sex
couples, Crabb said. "That hasn't been decided."
But interpretations differ about Crabb's words on Monday.
Crabb said the "status quo" should continue, but whether
that means the gay marriage ban remains in effect, as
Attorney General J.B. Van Hollen has said, or whether that
means marriages can continue as they have since Friday is
a question that Crabb did not answer explicitly at Monday's
hearing.
During the hearing, Crabb said the decision she issued
Friday was a declaratory ruling and did not contain any
injunction, because the plaintiffs in the case had not been
explicit about what they wanted Crabb to order the state to
do or not do.
"There is no relief that's been granted by the court," Crabb
said. "That hasn't been decided."
ACLU lawyer Laurence Dupuis said he would submit a
requested injunction on Monday, and Crabb gave the state
until next week to answer it. Dupuis said
Assistant Attorney General Timothy Samuelson said that in
terms of a stay, the state was seeking "something preserving
the status quo." Later, when he asked what the current
status of the law was, Crabb responded that it is the "status
quo." But she did not explain what that meant.
At today's hearing, Judge Crabb reiterated that Wisconsin
marriage law has not been enjoined.
In a statement issued after the hearing, Van Hollen said the
law remains in effect.
Wisconsin's marriage law is in full force and effect, and all
state and local officials are under a continuing duty to follow
Wisconsin's marriage law unless and until the court enjoins
that law, Van Hollen said.
Dane County Clerk Scott McDonell, who has been issuing
marriage licenses to same-sex couples since Friday, said it means that clerks can continue to
carry on as they are now, because Crabb's ruling on Friday declaring the law to be
unconstitutional means that it is no longer in effect.
Dane County Corporation Counsel David Gault agreed, adding that the "status quo to us is that
she declared the constitutional amendment unconstitutional."
"As it stands, we think the decision that Judge Crabb issued last Friday was unambiguous," Gault
said.
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Asked what the status quo meant to him, Dupuis said, "I don't really know," but added later that the
status quo means what Crabb had ordered before.
He said he does not know whether marriages should or should not have been performed, only that
it would be cruel at this point to deprive people of them now.
On Friday night, the state filed an emergency motion for a stay of Crabb's ruling. She said on
Monday that because she had not issued an injunction yet the state could not seek a stay of her
ruling.
On Monday, the state also filed a motion for a stay with the U.S. Court of Appeals for the 7th
Circuit, based in Chicago. The appeals court has not yet ruled, but Crabb said that without a final
order the case cannot be heard by the appeals court.
The appeals court will have to decide, however, whether it can accept the case.
Within hours of Crabb's decision on Friday, the first same-sex couples were being married in Dane
and Milwaukee counties, with county clerks waiving the customary five-day waiting period for
issuance of marriage licenses. More than 280 same-sex couples were married in Dane and
Milwaukee counties on Friday night and Saturday.
By Monday clerks in 18 Wisconsin counties were issuing marriage licenses to same-sex couples,
McDonell said.
The state's lawyers said that in her ruling, Crabb did not issue an injunction blocking the law and
did not rule on the state's previous motion for an immediate stay on her ruling.
"The district court's opinion and order has thus created a legal environment in which Wisconsin's
county clerks are deciding on a county-by-county basis whether to issue marriage licenses to
same-sex couples immediately or wait for the district court to enter injunctive relief or rule on state
defendants' motion to stay," lawyers for the state wrote.
The state argued in its motion to the appeals court that given the importance of Crabb's decision,
"particularly amidst a vigorous and unsettled national debate on the issue," a stay should be
ordered immediately.
"Further a stay is necessary in this case to avoid confusion and to maintain the status quo while
the Seventh Circuit decides how Wisconsin, and other states, may define the civil institution of
marriage."
Copyright 2014 madison.com. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.
Marriage Amendment, Gay Marriage, Barbara Crabb, U.s. District Court For The Western District
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Federal judge declines to stop gay marriages in Wisconsin
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The Rev. Suzelle Lynch of Unitarian Universalist Church West in Brookfield marries Karen Wells (right) and Kristie
Erickson (left) of Waukesha in a ceremony Monday in the courtyard outside the Waukesha County Courthouse.
EMAIL PRINT (362) COMMENTS
Madison A federal judge here declined to press pause Monday on
gay marriages in Wisconsin, leaving it for now to county officials, a
federal appeals court and, possibly, state courts to decide whether
same-sex unions continue around the state.
Three days after her historic ruling striking down the state's same-sex
marriage ban, U.S. District Judge Barbara Crabb indicated Monday
afternoon that in the coming days either she or a federal court is likely
to grant a stay of her Friday ruling, which would block county officials
around the state from issuing marriage licenses to gay and lesbian
couples while her decision from Friday is appealed.
But Crabb said she was leaving the "status quo" in place for now
because she wanted to hear more from the two sides in the case on
the implications of a stay before deciding on it. She set her next
hearing for June 19.
"I will consider a stay as to what's in the (final order,) but I'm not
going to act today," Crabb said at the hastily called hearing.
Crabb's comments effectively mean that for now the state will remain
divided into counties such as Dane, Milwaukee and Waukesha, where
clerks are issuing same-sex marriage licenses, and counties such as
Ozaukee, Washington and Racine, where they are not.
When asked by state attorneys Monday about that inconsistency
among counties, Crabb said that was an issue for state courts to
decide if needed, not her. She said that, though she had struck down
the marriage ban, she had given no orders on it so far to state and
local officials in Wisconsin, so she had nothing to halt.
"They did not act because I told them they could," Crabb said of
county officials. "That hasn't been decided."
The hearing in Madison was one of two actions that state Attorney
General J.B. Van Hollen took in two different federal courts Monday
seeking an emergency halt to gay weddings. In the rapidly unfolding
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705 Recommend
Exhibit B
Gay and lesbian couples at the
Milwaukee County Courthouse
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seeking an emergency halt to gay weddings. In the rapidly unfolding
case, the Republican attorney general asked Crabb for a stay on
Friday evening and again in Monday's hearing and also filed a petition
Monday morning for a stay with the federal 7th Circuit Court of
Appeals in Chicago.
Dane County Clerk Scott McDonell, a Democrat, stepped out of
Crabb's hearing Monday and said he would continue to issue
marriage licenses to same-sex couples.
"The status quo is what we're doing now and (19) other counties,
which is issuing marriage licenses," McDonell told reporters.
Later, he acknowledged, "I'm sure that's not what the state means
by status quo."
Backing up McDonell was David Gault, an assistant corporation
counsel in Dane County, which is controlled by a Democratic county
executive and liberal county board. Gault said Crabb's decision Friday
was "unambiguous" and that there is no prohibition on same-sex
couples getting married.
"We're not speculating," he said. "We're following the black letter of
her decision."
Attorneys for the state Department of Justice, which is defending the
gay marriage ban, declined comment on Crabb's comment as they left
the federal courtroom.
In a statement earlier Monday, Van Hollen said it made no sense to
let marriages go forward right away when the courts are likely to put
them back on hold, at least temporarily, and leave those couples in
legal limbo.
"The U.S. Supreme Court will almost certainly decide this important
issue once and for all during its next term. There is absolutely no
reason to allow Wisconsin's county clerks to decide for themselves, on
a county-by-county basis, who may and may not lawfully get married
in this state," he said.
In the meantime Monday, some county clerks and registers of deeds
in Wisconsin are moving forward with issuing marriage licenses and
certificates to more same-sex couples, while other county officials
were waiting for clarification from the state on Crabb's ruling.
Also Monday, Dane County Register of Deeds Kristi Chlebowski
delivered the first batch of finalized same-sex marriage certificates to
state officials. That led to unprecedented uncertainty about whether
Gov. Scott Walker's administration would accept the certificates, as
the typically clerical elements of a marriage contract become
politicized and fraught with controversy.
Chlebowski said that as of 12:30 p.m. she had received about 60
marriage licenses that were issued over the weekend. She said she
sent out five marriage certificates at that point and hand delivered
five copies to the Wisconsin Department of Health Services Vital
Records office.
"We're just going to keep cranking them out until they tell us not to,"
Chlebowski said.
Carl Tobias, a professor at the University of Richmond School of Law,
said that he was cautiously expecting either Crabb or the 7th circuit
to issue a temporary stay of Crabb.
Tobias, who has followed the surge in lawsuits over gay marriage
around the country, pointed to an Idaho case in which the 9th Circuit
Court of Appeals issued a temporary stay of a decision striking down
a gay marriage ban. That case cited another stay that was issued by
the U.S. Supreme Court in a separate but similar case in Utah.
"It's a reluctant yes," Tobias said of his hunch that a stay is coming.
"That's the way things have played out (elsewhere.)"
After couples get married, they submit marriage certificates to the county register of deeds, which then
files them with the vital records office of the state Department of Health Services. Officials there are
seeking advice from the attorney general on what to do with them, said department spokeswoman
Jennifer Miller.
Crabb's 88-page decision was different from the others around the country because although she ruled
Wisconsin's ban against same-sex marriage was unconstitutional, she did not issue an order instructing
county and state officials on what to do about it.
That left county clerks and judges to decide for themselves.
From Friday to Saturday, 283 same-sex couples were issued marriage licenses in Dane and Milwaukee
counties, according to Van Hollen's filing. Other counties did not issue licenses those dates.
"The district court's Opinion and Order has thus created a legal environment in which Wisconsin's county
clerks are deciding on a county-by-county basis whether to issue marriage licenses to same-sex couples
immediately or wait for the district court to enter injunctive relief or rule on State Defendants' motions to
stay," Department of Justice lawyers argued in a Monday filing.
In setting up a hearing on a stay by telephone for Monday afternoon, Crabb moved swiftly by the
standards of a federal court and judge. But in Monday's filing with the 7th Circuit, state Department of
Justice attorneys argued Crabb had effectively denied the stay request by not ruling on it Friday and
asked the 7th Circuit to step in.
"By failing to grant an immediate stay of its declaration, the district court has disrupted the legal status
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"By failing to grant an immediate stay of its declaration, the district court has disrupted the legal status
quo, thereby causing irreparable harm to the state's interest in the consistent and uniform enforcement
of duly enacted state laws," Van Hollen's lawyers wrote.
Some same-sex couples felt an urgency to exchange their vows before any potential stay could be
handed down.
Scrawled in colorful chalk on the Dane County courthouse landing the words "Love wins" served as a
reminder of the 137 same-sex marriages that took place there over the weekend.
At the Dane County courthouse, the scene was emptier than Friday night and Saturday. But a few
couples were still passing by the landing outside, past the words "Love wins" written there in colorful
chalk, signing marriage licenses inside, and then walking back into the sunlight, one couple at a time, to
be married on the courthouse steps.
Kaylen York and Elyse Kleist, who have been together for about two years, proudly held a gold
envelope emblazoned with the words "Marriage License."
Both had to work Friday so they decided to wait until Monday morning to make their union official.
"We weren't sure if there would be time for us to get it before a stay came through or before (the
decision) was overruled," York said. "So we took a chance and said, 'We'll wait until Monday to make
sure it's still official and, if it is, we'll make it happen.'"
"And we got lucky," Kleist said.
York said she worried their new marriage would be nullified by a stay on the decision.
"We don't know if it will still be legal," York said. "But we thought we would take the chance."
A Dane County employee said there was no count on marriage licenses issued on Monday before 10
a.m. But the county issued 61 marriage licenses Friday night between 5 p.m. and 9 p.m. and 76 license
between 9 a.m. and 5 p.m. Saturday.
Other couples, including two of the original plaintiffs challenging the state ban, weren't moving so
quickly Monday.
Garth Wangemann and Roy Badger said they have postponed their wedding at the recommendation of
the American Civil Liberties Union of Wisconsin, which is representing the plaintiffs.
"I feel kind of torn. Part of me just wants to run down to the courthouse, but another part wants to wait
until we know we're in the clear," Badger said Monday morning. "I want to make sure it's not being
ripped away from us again."
Dane County Circuit Court Judge Rhonda Lanford said Friday that she could not comment on any
possible stay, but said then that she planned to wed couples through the night and into the weekend.
"Marriage is legal in the state of Wisconsin," Lanford said. "We'll marry as many people as we can.
Julaine Appling, executive director of Wisconsin Family Action, said Crabb should have heeded Van
Hollen's advice to stay the decision. Appling's group helped promote the referendum that banned same-
sex marriage in 2006 and more recently filed a friend-of-the-court brief in the case.
"Obviously some counties are issuing and obviously some counties are saying, 'No, we should wait for
the attorney general's ruling,'" Appling said. "It's exactly the ambiguous situation we all hoped to
avoid."
In addition to sorting out the issue in an unambiguous way, Appling said she hopes the 7th Circuit will
make a decision promptly on Van Hollen's appeal.
"We need to get rid of the chaos and confusion going on with the county clerks," Appling said. "The
horse has left the barn and now the legal minds are going to have to figure it out on this one."
Also Monday, a moderate GOP state senator renounced his previous support for the gay marriage ban.
Sen. Dale Schultz (R-Richland Center) was the Senate Majority Leader in 2006 when the state
constitutional amendment banning gay marriage and civil unions passed the Legislature and was then
approved in a statewide referendum with 59% of the vote.
In a column released Monday, he said he brought it forward and voted for it at the time because at the
time it represented both his personal views and those of a majority of state residents.
"I would like to think that we, as a society, possess a willingness and ability to evolve when presented
with new facts and evidence," Schultz wrote in a column. "Whether we all agree in our personal worlds
of faith, or even what's comfortable in our own eyes, a clear majority now feel people are entitled to
basic rights and privileges regardless of orientation because it most likely affects someone we know."
Ashley Luthern of the Journal Sentinel staff contributed to this report.
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UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
* * * * * * * * * * * * * * * * * * * * * * * * * * * *
VIRGINIA WOLF and CAROL SCHUMACHER,
KAMI YOUNG and KARINA WILLES, ROY
BADGER and GARTH WANGEMANN, MARIE
CARLSON and CHARVONNE KEMP, JUDITH
TRAMPF and KATHARINA HEYNING, SALUD
GARCIA and PAM KLEISS, LESLIE PALMER
and WILLIAM HURTUBISE and JOHANNES
WALLMAN and KEITH BORDEN,

Plaintiffs,

- 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.
* * * * * * * * * * * * * * * * * * * * * * * * * * * *
STENOGRAPHIC TRANSCRIPT OF MOTION HEARING
HELD BEFORE DISTRICT JUDGE BARBARA B. CRABB,

Lynette Swenson RMR, CRR, CBC
U.S. District Court Federal Reporter
120 North Henry Street, Rm. 520
Madison, Wisconsin 53703
(608)255-3821
Exhibit C
2
1 APPEARANCES:
2 For the Plaintiffs:
ACLU of Wisconsin Foundation, Inc.
3 BY: LAURENCE DUPUIS
207 East Buffalo Street, Ste. 325
4 Milwaukee, Wisconsin 53202
5 Roger Baldwin Foundation of ACLU
BY: JOHN KNIGHT
6 180 North Michigan Avenue, Ste. 2300
Chicago, Illinois 60606
7 (appearing telephonically)
8 Mayer Brown LLP
BY: FRANK DICKERSON
9 GRETCHEN HELFRICH
71 South Wacker Drive
10 Chicago, Illinois 60606
(appearing telephonically)
11
For Defendants Walker, Van Hollen and Anderson:
12 Department of Justice
BY: TIMOTHY SAMUELSON
13 THOMAS BELLAVIA
CLAYTON KAWSKI
14 Assistant Attorneys General
17 West Main Street
15 Madison, Wisconsin 53703

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

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

23 For Defendant Scott McDonell:
Dane County Corporation Counsel
24 BY: DAVID GAULT
210 MLK Jr. Blvd., Rm. 419
25 Madison, Wisconsin 53703
3
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.
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.
4
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?
5
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
6
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
7
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
8
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. --
9
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'
10
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
11
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
12
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
13
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
14
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 --
15
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
16
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
17
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
18
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
19
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
20
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
21
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, CRR
Federal Court Reporter
15
16
17
18
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.
21
22
23
24
25
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
VIRGINIA WOLF and CAROL SCHUMACHER,
KAMI YOUNG and KARINA WILLES,
ROY BADGER and GARTH WANGEMANN,
CHARVONNE KEMP and MARIE CARLSON,
JUDITH TRAMPF and KATHARINA HEYNING,
SALUD GARCIA and PAMELA KLEISS,
WILLIAM HURTUBISE and LESLIE PALMER,
JOHANNES WALLMANN and KEITH BORDEN,
ORDER
Plaintiffs,
14-cv-64-bbc
v.
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,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
A motion hearing was held in this case on June 9, 2014 before United States District
Judge Barbara B. Crabb. Plaintiffs appeared by Laurence Dupuis, John Knight, Gretchen
Helfrich and Frank Dickerson. Defendants Scott Walker, J.B. Van Hollen and Oskar
1
Case: 3:14-cv-00064-bbc Document #: 125 Filed: 06/09/14 Page 1 of 4
Exhibit D
Anderson appeared by Timothy Samuelson, Clayton Kawski and Thomas Bellavia.
Defendant Joseph Czarnezki appeared by Paul Bargren. Defendant Scott McDonell
appeared personally and by David Gault. Defendant Wendy Christensen appeared by
Johnathan Lehman.
In their motion, defendants Walker, Van Hollen and Anderson request that the court
clarify its June 6, 2014, Opinion and Order (Dkt.118) to preserve the status quo and also
immediately issue a temporary stay to preserve the status quo until its final decision on the
scope of injunctive relief. For the reasons stated below, I am denying the motion.
Because defendants filed a notice of appeal this morning, dkt. #120, the threshold
question is whether this court retains jurisdiction over the case. The general rule is that a
district court is divested of jurisdiction once a notice of appeal is filed. Ameritech Corp. v.
International Brotherhood of Electrical Workers, Local 21, 543 F.3d 414, 418 (7th Cir.
2008). However, one of the exceptions to this rule is that an appeal taken from an
interlocutory decision does not prevent the district court from finishing its work and
rendering a final decision. Wisconsin Mutual Insurance Co. v. United States, 441 F.3d
502, 504-05 (7th Cir. 2006). The June 6 order is not a final order because it left
unresolved [plaintiffs] demand for injunctive relief. Riley v. Kennedy, 553 U.S. 406, 419
(2008) (We have long held that an order resolving liability without addressing a plaintiff's
requests for relief is not final.). See also Sims v. EGA Products, Inc., 475 F.3d 865, 870
(7th Cir. 2007) (Orders are not final unless they leave nothing for the district court to
do.). Accordingly, I conclude that I have jurisdiction to resolve defendants motion and to
2
continue to a resolution of the case.
With respect to the merits of the motion, defendants have not shown that they are
entitled to relief at this time. The authority defendants cite in their briefs relate to stays of
injunctions, Fed. R. Civ. P. 62(c); Herbert v. Kitchen, 134 S. Ct. 893 (Jan. 6, 2014); Latta
v. Otter, No. 14-35420, at 5 (9th Cir. May 20, 2014); Tanco v. Haslam, No. 14-5297, at
1-2 (6th Cir. Apr. 25, 2014); DeBoer v. Snyder, No. 14-1341 (6th Cir. Mar. 25, 2014), but,
as defendants know, I have not issued an injunction in this case. Rather, I deferred a ruling
on that issue until plaintiffs could propose more specific language about the injunction they
were requesting. Although I included a declaration in the order, defendants were unable to
cite any authority for the proposition that a court may stay a declaration.
I understand defendants concern that some county clerks have been issuing marriage
licenses to same-sex couples since I issued the June 6 decision, but that is not a result of an
injunction by this court. Thus, if defendants believe that a particular county clerk is issuing
a marriage license in violation of state law, that is an issue outside the scope of this case.
Plaintiffs have represented to the court that they will provide language for a proposed
injunction today. In doing so, plaintiffs should take care to identify what they want each
defendant to do. Under Fed. R. Civ. 65, plaintiffs must identify the particular acts they
want defendants to perform or refrain from performing. Nuxoll ex rel. Nuxoll v. Indian
Prairie School Dist. #204, 523 F.3d 668, 675 (7th Cir. 2008) (under Rule 65, injunction
must contain a detailed and specific statement of its terms).
It is clear enough what plaintiffs want the county clerks to do, which is issue marriage
3
licenses. From previous briefs, it is also relatively clear what plaintiffs want defendant
Anderson (the state registrar) to do, which is to amend the state marriage forms in
accordance with his authority under Wis. Stat. 765.20(1) so that the forms are inclusive
of same-sex couples. However, it is still unclear what specific acts plaintiffs want defendants
Walker and Van Hollen to perform or refrain from performing. It is not enough to say that
defendants should be enjoined from enforcing unconstitutional laws without identifying the
particular acts involved in that enforcement.
Once both sides have had an opportunity to weigh in on the appropriate scope of the
injunction, I may enter judgment and determine whether the injunction should be stayed
pending appeal.
ORDER
IT IS ORDERED that the motion for an emergency stay filed by Scott Walker, J.B.
Van Hollen and Oskar Anderson, dkt. #119, is DENIED.
Entered this 9th day of June, 2014.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

4
1

No. 14-2266





v.




CERTIFICATE OF SERVICE RULE 25

I hereby certify that on May 7, 2014, I electronically filed the Response
Brief Defendants-Appellees with the Clerk of the Court for the United States
Court of Appeals for the Seventh Circuit by using the CM/ECF system.
All parties are registered CM/ECF users and are being served by the
CM/ECF system.

2

J.B. VAN HOLLEN
Attorney General

State Bar #1089968

THOMAS C. BELLAVIA
State Bar #1030182

CLAYTON P. KAWSKI
State Bar #1066228

Attorneys for Defendants,
Scott Walker, J.B. Van Hollen,
and Oskar Anderson

Wisconsin Department of Justice
Post Office Box 7857
Madison, Wisconsin 53707-7857
(608) 266-3542 (Samuelson)
(608) 266-8690 (Bellavia)
(608) 266-7477 (Kawski)
(608) 267-2223 (fax)
samuelsontc@doj.state.wi.us
bellaviatc@doj.state.wi.us
kawskicp@doj.state.wi.us


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