2:12-cv-10038 #100

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

THERESA BASSETT and CAROL

KENNEDY, PETER WAYS and JOE

BREAKEY, JOLINDA JACH and

BARBARA RAMBER, DOAK BLOSS

and GERARDO ASCHERI, DENISE

MILLER and MICHELLE JOHNSON,

Plaintiffs,

RICHARD SNYDER, in his official

capacity as Governor of the State of

Michigan,

Defendant.

No. 2:12-cv-10038

HON. DAVID M. LAWSON

MAG. MICHAEL J.

HLUCHANIUK

DEFENDANT’S MOTION

TO HOLD CASE IN

ABEYANCE PENDING

FINAL DECISION IN

DEBOER, ET. AL. V.

SNYDER, ET. AL, SIXTH

CIRCUIT COURT OF

APPEALS NO. 14-1341

Michael J. Steinberg (P43085)

American Civil Liberties Union Fund of

Michigan

Attorney for Plaintiffs

2966 Woodward Avenue

Detroit, MI 48201

(313) 578-6814

Amanda C. Goad

American Civil Liberties Union

Foundation

Attorney for Plaintiffs 1313 West 8th Street

Los Angeles, CA 90017

Telephone: (213) 977-9500

Facsimile: (213) 977-5273

Margaret A. Nelson (P30342)

Mark E. Donnelly (P39281)

Rock A. Wood (P41181)

Michael F. Murphy (P29213)

Attorneys for Defendant

Michigan Dept. of Attorney General

Public Employment, Elections & Tort Division

P.O. Box 30736

Lansing, MI 48909

(517) 373-6434

John A. Knight

American Civil Liberties Union of

180 N. Michigan Ave, Ste. 2300

Chicago, IL 60601

(312) 201-9740

2:12-cv-10038-DML-MJH Doc # 100 Filed 04/11/14 Pg 1 of 17 Pg ID 4744

Defendant Governor Rick Snyder moves the Court to hold this

case in abeyance pending a final decision in the case of DeBoer v.

Snyder, et. al, U.S.D.C. E.D. Mich. Case No. 12-cv-10285, Sixth Circuit

Court of Appeals no. 14-1341, and says in support as follows:

1. On March 21, 2014, the United States District Court for the

Eastern District of Michigan, Judge Bernard Friedman, issued its

decision in DeBoer v. Snyder, U.S.D.C. E.D. Mich. Case No. 12-cv-

10285, declaring Michigan’s “marriage amendment,” Mich. Const. 1963,

art. I, § 25, and its implementing statutes, unconstitutional. The court

also enjoined the State from enforcing the law. DeBoer v. Snyder,

U.S.D.C. E.D. Mich. no. 12-cv-10285, Doc. #151, Findings of Fact and

Conclusions of Law, Pg. ID 3973. (Exhibit 1).

2. The State of Michigan appealed the judgment. On March

25, 2014, the Sixth Circuit stayed the District Court’s judgment pending

a final disposition of Michigan’s appeal. (Exhibit 2).

3. In an effort to expedite a ruling from the Sixth Circuit, the

State has filed a petition for initial hearing en banc. (Exhibit 3).

4. Plaintiffs’ equal protection challenge to Michigan’s “Public

Employee Domestic Partner Benefit Prohibition Restriction Act,” 2011

Public Act 297, Mich. Comp. Laws § 15.581, et. seq. (hereafter P.A. 297)

is grounded in Michigan’s “marriage amendment.” Plaintiffs’ equal-

protection sexual-orientation challenge presented in their complaint

and in their motion for summary judgment rests on the fact they cannot

legally marry in Michigan because of the State’s marriage amendment

and, thus, never qualify for benefits under P.A. 297.

5. If the Court believes that this case turns on the validity of

Michigan’s marriage amendment, then it should stay the case pending

the resolution of that issue by the Sixth Circuit in the DeBoer appeal.

This Court has already noted the relationship between Michigan’s

marriage amendment and Plaintiffs’ challenge to P.A. 297, which

informed its decision, in part, in granting a preliminary injunction in

this case. (Doc. #75, June 28, 2013 Opinion and Order, Pg. ID 3068-

3070.) Under this premise that the validity of the amendment matters

to the benefits law, proceeding with this case would be a waste of

resources for the Court, the State, and the Plaintiffs, because the

DeBoer appeal will definitively resolve that issue for courts in the Sixth

Circuit (at least until the Supreme Court reaches the issue).

6. This stay request is contingent on this premise, but, to be

clear, Michigan disagrees with that premise for a simple reason:

whatever the scope of marriage in Michigan, it is rational for the State

to extend benefits and to spend its limited resources on married couples

(be they opposite-sex or same-sex) while declining to provide benefits to

lesser relationships (such as boyfriends or girlfriends, be they opposite-

sex or same-sex). In other words, if DeBoer is upheld, Michigan’s

definition of marriage would change and Plaintiffs would be able to

legally marry; indeed, Plaintiffs might well dismiss this case because

they would qualify for medical benefits under P.A. 297 as a spouse if

they chose to get married, and therefore they would no longer suffer any

injury as a result of the statute. Conversely, if DeBoer is reversed and

Michigan’s definition of marriage in art. I, § 25 is upheld, Plaintiffs’

equal-protection claims fail because P. A. 297 rationally relates to that

constitutional expression of marriage. Under either definition of

marriage, it is rational to limit benefits to spouses and not to extend

them to mere boyfriends or girlfriends.

7. The decision to stay proceedings is entirely within the

Court’s discretion. Clinton v. Jones, 520 U.S. 681, 706-07 (1997). A

district court can, at its discretion, stay an action pending the

conclusion of an alternative proceeding which will impact the applicable

law and control the outcome of the case for which the stay is sought.

8. The State will be irreparably harmed if this case is not

stayed. If a permanent injunction were to issue here, the State would

have its constitutionally-valid statute enjoined from having effect,

thwarting its legitimate interest in promoting marriage, however it is

defined. Although the statute is preliminary enjoined, a permanent

injunction would be a final determination of unconstitutionality for this

statute, even though the law does not support such a conclusion.

A stay of proceedings in this case, until a final decision in DeBoer,

will not injure or adversely impact the Plaintiffs. This Court

preliminary enjoined the enforcement of P.A. 297 on June 28, 2014.

(Doc. #75.) No appeal of that preliminary injunction was taken, and it

will remain in effect during the pendency of this case. That means

Plaintiffs are receiving medical benefits from their public employers,

and those benefits will not be interrupted by P.A. 297.

Staying the case does not harm the public but rather advances its

interest in the State’s law and its constitutionality.

9. Plaintiffs’ counsel were contacted regarding concurrence in

this motion and they have denied concurrence.

CONCLUSION AND RELIEF REQUESTED

Defendant Governor Snyder, therefore, requests that if this Court

thinks the validity of Michigan’s marriage amendment affects this case,

then this Court enter a stay holding this case in abeyance pending a

final judgment in DeBoer, et. al. v. Snyder, et. al, Sixth Circuit Court of

Appeals no. 14-1341, including a decision by the United States Supreme

Court, if applicable. Judicial economy and avoiding the permanent

injunction of an otherwise constitutional state law each suggest that

granting a stay of proceedings is appropriate and a proper exercise of

the Court’s discretion.

Respectfully submitted,

BILL SCHUETTE

Attorney General

s/ Michael F. Murphy

Public Employment, Elections

& Tort Division

P.O. Box 30736

Lansing, MI 48909

(517) 373-6434

Dated: April 11, 2014 Email: MurphyM2@michigan.gov

SOUTHERN DIVISION

Plaintiffs,

Michigan,

Defendant.

No. 2:12-cv-10038

MAG. MICHAEL J.

HLUCHANIUK

DEFENDANT’S BRIEF IN

SUPPORT OF MOTION

TO HOLD IN ABEYANCE

Michael J. Steinberg (P43085)

American Civil Liberties Union Fund of

Michigan

2966 Woodward Avenue

Detroit, MI 48201

(313) 578-6814

Amanda C. Goad

American Civil Liberties Union

Foundation

Attorney for Plaintiffs 1313 West 8th Street

Los Angeles, CA 90017

Telephone: (213) 977-9500

Facsimile: (213) 977-5273

Public Employment, Elections & Tort Division

P.O. Box 30736

Lansing, MI 48909

(517) 373-6434

John A. Knight

American Civil Liberties Union of

180 N. Michigan Ave, Ste. 2300

Chicago, IL 60601

(312) 201-9740

Bill Schuette

Attorney General

Michael F. Murphy

Assistant Attorney General

and Tort Division

P.O. Box 30736

(517) 373-6434

murphym2@michigan.gov

(P29213)

Dated: April 11, 2014

CONCISE STATEMENT OF ISSUE PRESENTED

1. This Court should hold this case in abeyance pending the

Sixth Circuit Court of Appeals decision in DeBoer.

CONTROLLING OR MOST APPROPRIATE AUTHORITY

Authority:

Clinton v. Jones, 520 U.S. 681, 706-07 (1997).

Ohio Environmental Council v. United States District Ct. S.D. Ohio,

565 F.2d 393, 396 (6th Cir 1977).

ARGUMENT

I. To the extent the Court concludes Plaintiffs’ equal-

protection challenge to Mich. Pub. Act 297 of 2011 (P.A.

297) is governed by Michigan’s Marriage Amendment, this

Court should hold any decision in abeyance pending a

ruling by the Sixth Circuit in DeBoer v. Snyder.

A. It is within the Court’s discretion to hold case in

abeyance.

The decision to stay proceedings is entirely within the Court’s

discretion. Clinton v. Jones, 520 U.S. 681, 706-07 (1997). A district

court can, at its discretion, stay an action pending the conclusion of an

alternative proceeding which it believes will impact the applicable law

and control the outcome of the case for which the stay is sought. This is

part of a court’s traditional powers to issue injunctive relief or to stay

court orders. This includes staying cases for the Court’s own reasons to

control its docket and manage its own affairs. Gray v. Bush, 628 F.3d

779, 785 (6th Cir. 2010) (“‘[T]he power to stay proceedings is incidental

to the power inherent in every court to control the disposition of the

causes on its docket with economy of time and effort for itself, for

counsel, and for litigants.’”) (quoting Landis v. North American Co., 299

U.S. 248, 254 (1936)).

As this Court is aware, Judge Friedman has issued the recent

decision in DeBoer v. Snyder, U.S.D.C., E.D. Mich. Case No. 12-cv-

10285 (Ex. 1). That case has a direct bearing on any decision this Court

may reach regarding the constitutionality of P.A. 297. Judge Friedman

has ruled Michigan’s “Marriage Amendment,” Mich. Const. art. I, § 25,

as unconstitutional. By so holding, this ruling in effect affirms the

validity of P.A. 297, the purpose of which is to provide special status for

marriage and family relationships. If the DeBoer decision is affirmed

through the appellate process, Plaintiffs’ equal protection claim based

on sexual orientation and discriminatory animus is moot since they will,

if they choose, be able to marry and receive the benefits they seek under

P.A. 297. If reversed, P.A. 297 should be affirmed as rationally related

to the State’s legitimate purpose in supporting marriage and family

relationships.

Since this case turns on the validity of the marriage amendment

the resolution of that issue by the Sixth Circuit directly impacts this

case. The Court has already alluded to the relationship of the issue

before it regarding benefits and Michigan’s marriage amendment. This

relationship, in part, led to the preliminary injunction now in place.

Proceeding with this case does little but waste judicial time and effort

for both the Court and the parties, because the DeBoer appeal will settle

the law in the Sixth Circuit (pending any Supreme Court ruling).

Although the U.S. Sixth Circuit Court of Appeals has stayed the

DeBoer decision, (Ex. 2, Order Granting Stay, dated March 25, 2014),

this Court should exercise its discretion and hold this case in abeyance

pending the conclusion of the appellate process in DeBoer.

“The power to stay proceedings is inherent to the power in every

court to control the disposition of the causes on its docket with economy

of time and effort for itself, for counsel and for litigants. Ohio

Environmental Council v. United States District Ct. S.D. Ohio, 565 F.2d

393, 396 (6th Cir 1977) (quoting Landis, 299 U.S. at 254-255). It

ordinarily is within the sound discretion of the district court whether to

enter a stay. Id. The party seeking the stay bears the burden of

showing “that there is pressing need for delay, and that neither the

other party nor the public will suffer harm from entry of the order.” Id.

(citing Landis, 299 U.S. at 255). As set forth below, the burdens are

met here, and judicial economy for all leads to the conclusion that the

case should be held in abeyance.

B. The State has met its burdens justifying the case be

held in abeyance.

Staying this case harms no one. The Plaintiffs here would not be

harmed, because the preliminary injunction currently in place enjoins

enforcement of P.A. 297. (Doc. #75, Opinion and Order, Pg. ID 3087).

They are receiving their benefits as they always have. Without a stay

the public could be harmed by a permanent injunction and a

constitutional statute being found unconstitutional when such a

decision is not presently needed, a controlling case is before the Sixth

Circuit, and the issues here may be mooted by that decision.

If a permanent injunction were to issue by this Court, the State

would have its constitutionally-valid statute enjoined from having

effect, thus thwarting the State’s legitimate interest in promoting

marriage, regardless of how that is defined. The preliminary injunction

presently in effect offers Plaintiff’s any protection they need, while a

permanent injunction gives a finality of unconstitutionality to a statute

premised on a the legal concept of marriage, which is clearly a State law

matter.

Judicial economy and the public interest would be best served by

withholding any decision in this case until the appellate process is

complete. There is no need to decide an issue presently, when that

issue, or one controlling its outcome, is on appeal and will be decided

through the appellate process. The posture of this case presently before

the Court ensures that no one is harmed by taking that course of action.

Plaintiffs are receiving what they filed suit for; the State would still

have a constitutional statute, although presently unenforceable, and no

holding of unconstitutionality; and, if Judge Friedman is reversed on

appeal, the State’s rational basis and the public’s determination

through the Michigan constitutional amendment process will be upheld.

Should Judge Friedman’s decision be affirmed at the appellate level,

Plaintiffs’ claims are moot, and they would be entitled to marry and

receive the benefits they seek in this lawsuit.

Justiciability alone is sufficient reason to hold the case in

abeyance pending an outcome of the appeal in DeBoer.

CONCLUSION AND RELIEF REQUESTED

Based upon the Motion filed, Defendant Governor requests this

case be held in abeyance pending the appeal in DeBoer v. Governor.

Respectfully submitted,

Bill Schuette

Attorney General

/s/ Michael F. Murphy

and Tort Division

P.O. Box 30736

(517) 373-6434

(P29213)

Dated: April 11, 2014

CERTIFICATE OF SERVICE (E-FILE)

I hereby certify that on April 11, 2014, I electronically filed the

above document(s) with the Clerk of the Court using the ECF System,

which will provide electronic copies to counsel of record.

/s/ Michael F. Murphy

Attorney for Defendant

and Tort Division

P.O. Box 30736

(517) 373-6434

(P29213)

2012-0001512

SOUTHERN DIVISION

Plaintiffs,

Michigan,

Defendant.

No. 2:12-cv-10038

MAG. MICHAEL J.

HLUCHANIUK

INDEX OF EXHIBITS

To Defendant’s Motion & Brief to Hold Case in Abeyance

Exhibit 1 Findings of Fact and Conclusions of Law,

Judge Friedman, U.S.D.C. Mich. E.D. case no. 12-cv-

10285, Doc. #151

Exhibit 2 Order dated 3/25/14,

COA 6th Circuit case no. 14-1341, Doc. #22-1

Exhibit 3 Petition of the State of Michigan Defendant-Appellant,

COA 6th Circuit case no. 14-1341, Doc. #27

2:12-cv-10038-DML-MJH Doc # 100-1 Filed 04/11/14 Pg 1 of 1 Pg ID 4761

2:12-cv-10038 #100

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