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Transcript of 4:14-cv-00138 #13
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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION
SLOAN GRIMSLEY and JOYCE ALBU; )Case No. 4:14-CV-00138-RH-CAS BOB COLLIER and CHUCK HUNZIKER; ) LINDSAY MYERS and SARAH HUMLIE; ) ROBERT LOUPO and JOHN FITZGERALD; ) DENISE HUESO and SANDRA NEWSON; ) JUAN DEL HIERRO and THOMAS GANTT, ) JR.; CHRISTIAN ULVERT and CARLOS ) ANDRADE; RICHARD MILSTEIN and ) ERIC HANKIN; and SAVE FOUNDATION, ) INC., ) ) Plaintiffs, ) v. ) ) RICK SCOTT, in his official capacity as ) Governor of Florida, and PAMELA BONDI, in ) her official capacity as Attorney General of ) Florida, JOHN H. ARMSTRONG, in his official ) capacity as Surgeon General and Secretary of ) Health for the State of Florida; and ) CRAIG J. NICHOLS, in his official capacity ) as the Agency Secretary for the Florida ) Department of Management Services, ) ) Defendants. ) ) FLORIDA FAMILY ACTION, INC. ) )
VERIFIED MOTION BY FLORIDA FAMILY ACTION, INC. FOR LEAVE TO INTERVENE AS A DEFENDANT AS OF RIGHT OR,
Intervenor-Defendant. )
IN THE ALTERNATIVE, BY PERMISSION
(PARTIALLY CONSENTED)
Florida Family Action, Inc., (“FFAI”), by and through counsel, respectfully
moves this Court for leave to intervene as of right, pursuant to Fed. R. Civ. P. 24(a), or,
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alternatively, by permission under Fed. R. Civ. P. 24(b), as a Defendant, and in support
thereof, states the following:
1. Plaintiffs include same-sex couples who left Florida to obtain “marriages”
under the laws of other states. Plaintiffs then returned to Florida and now expect Florida
to reform its laws and redefine marriage so that they can obtain benefits and rights that
the people of Florida and the Florida Constitution require to be given only to the union of
one man and one woman.
2. Plaintiffs are asking this Court to superimpose Plaintiffs’ will onto the will
of the majority of Floridians and to judicially repeal Amendment 2 of the Florida
Constitution, which was enacted by more than 60 percent of Florida voters on November
4, 2008, and was codified as Fla. Const. Art. I, §27: “Inasmuch as marriage is the legal
union of only one man and one woman as husband and wife, no other legal union that is
treated as marriage or the substantial equivalent thereof shall be valid or recognized.”
3. Plaintiffs claim that memorializing the definition of marriage in the
Florida Constitution, as well as in Florida Statutes §§741.212(1), (2), and (3), violates the
United States Constitution because Plaintiffs want their relationships (or in the case of
SAVE, the relationships of its members) to people of the same sex, which were
sanctioned in other jurisdictions, to be validated in Florida. On that basis, Plaintiffs ask
this Court to declare that the Florida Constitution and Section 741.212 violate the United
States Constitution.
4. Plaintiffs ask this Court to cast aside and invalidate the votes of almost
five (5) million Floridians who by a large majority voted to reaffirm the definition of
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marriage as the union of one man and one woman,1
5. FFAI is a non-profit 501(c)(4) cultural action organization with thousands
of members throughout Florida, including in Tallahassee.
and to redefine marriage to include at
least same-sex unions that other states have recognized.
6. FFAI’s mission is to inform, inspire and rally those who care deeply about
the family to greater involvement in the moral, cultural and political issues that face our
state. As part of this mission, FFAI works to preserve and protect marriage as a
foundational social institution, to educate Floridians on the underlying social goods
attendant to the institution of marriage, to strengthen marriages, and to promote a strong
foundational basis for raising children and ensuring the future of society.
7. FFAI’s members were instrumental in drafting Amendment 2, gathering
signatures to place it on the ballot, defending it against legal challenges in Florida courts,
including at the Florida Supreme Court, and educating and mobilizing voters to
ultimately approve Amendment 2.
8. After Amendment 2 was approved by the Florida Supreme Court and
enacted by the people of Florida, FFAI’s members continued to work throughout Florida,
including in Tallahassee, to preserve and protect marriage as an institution based upon
societal norms that teach, form and transform individuals, and that create stable and
optimal foundations for families and for the perpetuation of society. FFAI has worked to 1 The official results of the November 2008 General Election show that Amendment 2 received 4,890,883 “yes” votes (61.9 percent) and 3,008,026 “no” votes (38.1 percent). Florida Secretary of State, Division of Elections, November 8, 2008 General Election Results, available at http://election.dos.state.fl.us/elections/resultsarchive/Index.asp?ElectionDate=11/4/2008 (last visited February 20, 2014).
Case 4:14-cv-00138-RH-CAS Document 13 Filed 04/02/14 Page 3 of 7
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strengthen the institution of marriage and to educate Floridians on the inherent social
goods which result from strong, natural marriages.
9. In qualifying Amendment 2 for the ballot and voting it into existence,
FFAI, its members, and the millions of Floridians who approved Amendment 2 exercised
the right reserved to the people to amend the Constitution by initiative, under Article XI,
§3 of the Florida Constitution.
10. FFAI meets all requirements for intervention as of right, having a
recognized interest in the subject matter of the litigation that would be impaired by an
adverse ruling, and that interest is not protected by the existing defendants. Alternatively,
FFAI meets all of the requirements for permissive intervention, as this timely motion and
the memorandum of law in support of this motion, filed simultaneously herewith, shows
FFAI has a defense that shares a common question of law or fact and intervention would
not prejudice any parties or cause undue delay of this case.
11. FFAI is ready and willing to file its Response to Plaintiffs’ Complaint,
which is attached hereto and incorporated by reference herein.
WHEREFORE, for good cause shown, FLORIDA FAMILY ACTION, INC.
respectfully requests that this Court grant its motion for leave to intervene as of right, or
alternatively, by permission, and that the Court provide all other further relief to which
FFAI may be entitled.
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Respectfully Submitted,
/s/ Horatio G. Mihet Mathew D. Staver
______________
Anita L. Staver Horatio G. Mihet LIBERTY COUNSEL P.O. Box 540774 Orlando, FL 32854-0774 800-671-1776 Telephone 407-875-0770 Facsimile [email protected]
Stephen M. Crampton Liberty Counsel P.O. Box 11108 Lynchburg, VA 24506 800-671-1776 Telephone [email protected]
Attorneys for Proposed Intervenor FFAI
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Pursuant to N.D. Fla. Local Rule 7.1(B), I certify that, prior to filing this motion, I
conferred with counsel for Plaintiffs and Defendants in a good faith attempt to resolve the
matters raised herein. Defendants’ counsel advised that Defendants do not oppose the
relief requested herein. Plaintiffs’ counsel advised that Plaintiffs oppose this Motion.
CERTIFICATION OF CONFERRAL
/s/ Horatio G. Mihet HORATIO G. MIHET
__________
One of the Attorneys for FFAI
I HEREBY CERTIFY that a true and correct copy of the foregoing was filed
electronically on April 2, 2014 via the Court’s CM/ECF system. Service will be
effectuated upon all parties and counsel of record via the Court’s electronic notification
system.
CERTIFICATE OF SERVICE
/s/ Horatio G. Mihet HORATIO G. MIHET
__________
One of the Attorneys for FFAI
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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION SLOAN GRIMSLEY and JOYCE ALBU; )Case No. 4:14-CV-00138-RH-CAS BOB COLLIER and CHUCK HUNZIKER; ) LINDSAY MYERS and SARAH HUMLIE; ) ROBERT LOUPO and JOHN FITZGERALD; ) DENISE HUESO and SANDRA NEWSON; ) JUAN DEL HIERRO and THOMAS GANTT, ) JR.; CHRISTIAN ULVERT and CARLOS ) ANDRADE; RICHARD MILSTEIN and ) ERIC HANKIN; and SAVE FOUNDATION, ) INC., ) ) Plaintiffs, ) v. ) ) RICK SCOTT, in his official capacity as ) Governor of Florida, and PAMELA BONDI, in ) her official capacity as Attorney General of ) Florida, JOHN H. ARMSTRONG, in his official ) capacity as Surgeon General and Secretary of ) Health for the State of Florida; and ) CRAIG J. NICHOLS, in his official capacity ) as the Agency Secretary for the Florida ) Department of Management Services, HAROLD ) BAZZELL, in his official capacity as ) ) Defendants. ) ) FLORIDA FAMILY ACTION, INC. )
Intervenor-Defendant. )
MEMORANDUM OF LAW IN SUPPORT OF FLORIDA FAMILY ACTION, INC.’S MOTION TO INTERVENE
Proposed Intervenor, FLORIDA FAMILY ACTION, INC. ("FFAI"), by and
through counsel, respectfully submits the following Memorandum of Law in Support of
its concurrently-filed Verified Motion for Leave to Intervene as a Defendant, and
incorporates by reference the facts stated therein. FFAI respectfully requests that this
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Court grant its motion to intervene as a matter of right under Fed. R. Civ. P. 24(a), or in
the alternative, grant it permissive intervention under Fed. R. Civ. P. 24(b).
INTRODUCTION
Plaintiffs’ attempt to judicially repeal a constitutional amendment initiated by
Florida citizens and overwhelmingly approved by nearly five (5) million Floridians seeks
to disenfranchise those voters, threatens fundamental constitutional rights, and attacks a
foundational societal institution – marriage – that FFAI and its members have fought long
and hard to preserve, strengthen, and protect. FFAI is a non-profit corporation that was
involved from the very beginning in the initiation, qualification, defense and passage of
Amendment 2. Its integral involvement in the development and passage of Amendment 2,
and its continuing efforts to preserve and protect the institution of marriage gives FFAI a
unique and substantial stake in the outcome of this constitutional challenge. FFAI’s
interests cannot be adequately protected unless it is permitted to intervene.
LEGAL ARGUMENT
FFAI is seeking intervention as of right under F. R. Civ. P. 24(a), or in the
alternative, permissive intervention under Rule 24(b). FFAI seeks to intervene as a
Defendant in order to protect the rights of its members and other Florida voters who face
disenfranchisement and loss of constitutional rights if Florida’s marriage amendment and
statutes are invalidated. FFAI easily satisfies the requirements of intervention as of right.
It has moved to intervene in a timely fashion, has a significant, legally protectable interest
in the outcome of this litigation, its interest will be substantially impaired by an adverse
decision, and its interests are not adequately represented by the existing parties.
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Alternatively, FFAI should be granted permission to intervene as a Defendant to
safeguard its significant interests in protecting its constituents’ right to vote, as well as
families, responsible procreation, and the optimal upbringing of children, currently
protected by Fla. Const. Art. I §27 and Fla. Stat. §741.212. FFAI satisfies the
requirements of permissive intervention because its motion is timely, it presents questions
of both law and fact in common with the underlying litigation, and its intervention will
not unduly delay, burden, or prejudice any existing party.
I. FFAI SATISFIES THE REQUIREMENTS FOR INTERVENTION AS OF RIGHT.
A party seeking to intervene as of right under Fed. R. Civ. P. 24(a) must
demonstrate that its petition is timely and that: 1) it has a recognized interest in the
subject matter of the litigation; 2) the interest is one that might be impaired by the
disposition of the case; and 3) the interest is not adequately protected by the existing
parties. Georgia v. United States Army Corps of Eng’rs, 302 F.3d 1242, 1250 (11th Cir.
2002). FFAI satisfies all of the requirements.
A. FFAI’s Motion is Timely.
Timeliness is a prerequisite for either intervention as of right or permissive
intervention. District courts must consider four factors in determining whether a motion
for intervention is timely: 1) the length of time that passed between when the proposed
intervenor became aware of its interest in the case and when it sought intervention; 2)
prejudice to the existing parties as a result of the proposed intervenor’s failure to apply as
soon as it was aware of its interest; 3) prejudice to the proposed intervenor if its petition
is denied; and (4) unusual circumstances militating either for or against a determination
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that the application is timely. United States v. Jefferson Cnty., 720 F.2d 1511, 1516 (11th
Cir. 1983) (internal citation omitted). FFAI’s motion is timely under all of these factors.
FFAI became aware that Plaintiffs had filed their Complaint on or about March
13, 2014, a day after it was filed on March 12, 2014, and immediately began gathering
information and working on the present motion. The deadline for responding to the
Complaint has not yet expired. FFAI is prepared to file its response to the Complaint
(submitted simultaneously with FFAI’s Motion to Intervene) on or before the current due
date. Consequently, there will be no prejudice to the existing parties if FFAI is permitted
to intervene. Conversely, as discussed more fully below, FFAI will suffer significant
prejudice if it is not granted intervention at the early stages of this litigation, when it can
provide a more comprehensive perspective on the issues involved in and arising from
redefining marriage. Plaintiffs are asking this Court to invalidate a state constitutional
amendment adopted overwhelmingly by Florida voters, due largely to FFAI’s efforts.
FFAI therefore satisfies the timeliness prong for both intervention as of right and
permissive intervention.
B. FFAI has a Direct, Substantial and Legally Protectable Interest in Protecting Voters’ Rights to Amend the Constitution and Preserving the Definition of Marriage as the Union of One Man and One Woman.
FFAI’s integral involvement in every aspect of Amendment 2, and its continuing
work in preserving the definition of marriage give it the direct, substantial and legally
protectable interest necessary to intervene as a matter of right. Washington State Bldg.
and Construction Trades Council v. Spellman, 684 F.2d 627, 630 (9th Cir. 1982);
Georgia, 302 F.3d at 1249. Rule 24 traditionally has received a liberal construction in
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favor of applicants for intervention. Spellman, 684 F.2d at 630. As a public interest group
devoted to passage of Amendment 2, FFAI is entitled to intervention as a matter of right
under Rule 24(a), as was the public interest group in Spellman. Id. In another case
involving a challenge to a state definition of marriage as the union of one man and one
woman, the district court in Hawaii concluded that the Hawaii Family Foundation –
which like FFAI here, was instrumental in the passage of the state’s marriage amendment
and worked following its passage to continue to protect marriage – was entitled to
intervene as of right. Jackson v. Abercrombie, 282 F.R.D. 507, 513 (D. Haw. 2012). The
Jackson court found that “HFF through its actions aimed at getting the marriage
amendment ratified and ensuring that the definition of marriage as set forth in § 572–1 is
not changed, has ‘actively supported’ Hawaii's marriage laws such that it has a significant
protectable interest in this case.” Id. at 517. The same is true with FFAI here.
In Georgia, the state sought an order compelling the Corps to increase the supply
of water from Lake Lanier available for use by the city of Atlanta and to permit increased
wastewater discharges. Id. at 1250. The State of Florida sought to intervene, arguing that
Georgia’s requested relief would have a direct and adverse effect on its downstream
interests by hindering the continued existence of endangered or threatened species in
Florida and reducing the stock of fish and seafood available for harvest in the
Apalachicola River and Bay. Id. The Eleventh Circuit found that Florida had a legally
protectable interest in the quality and quantity of water in the Apalachicola River and
Bay, an interest that would be directly affected by Georgia’s request for increased
discharges from other water sources that fed in the Apalachicola River and Bay. Id. at
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1251. This Court noted that, for purposes of intervention, Florida’s interest ‘“need not,
however, be of a legal nature identical to that of the claims asserted in the main action.’”
Id. (quoting Chiles v. Thornburgh, 865 F.2d 1197, 1214 (11th Cir.1989)). Therefore, the
fact that Georgia’s request involved only intrastate releases of water and increases in
discharges did not mean that Florida’s interest was not direct, substantial and legally
protectable. Id. Whenever the action of one state reaches into the territory of another, the
question of the extent and limitations of the respective rights of the states becomes a
matter of justiciable dispute between them. Id. Since the resolution of Georgia’s intrastate
water issues would affect Florida’s interest in related waterways, Florida satisfied the
direct, substantial and protectable interest requirement for intervention as of right. Id.
Similarly, in this case, FFAI satisfies the direct, substantial and protectable
interest requirement. FFAI’s interests in maintaining the integrity of the constitutional
amendment process in Florida, in protecting Floridians’ voting rights and the definition
of marriage as the union of one man and one woman for posterity, and in strengthening
intact biological families are directly at issue and will be substantially affected by
Plaintiffs’ challenge to Amendment 2. FFAI’s interests can be protected by its
participation as a Defendant. Therefore, as was true with the State of Florida in the
Georgia case and HFF in Jackson, FFAI has a significant interest in the subject matter of
this case and should be granted intervention as a matter of right.
C. FFAI’s Ability to Protect Its Interests will be Impaired by the Disposition of the Litigation.
FFAI will be utterly unable to protect its interests in the integrity of the
constitutional amendment process and preserving marriage as the union of one man and
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one woman if this Court grants Plaintiffs’ request to invalidate Amendment 2. As is true
here, where a party seeking to intervene in an action claims an interest in the very
property and very transaction that is the subject of the main action, the potential stare
decisis effect supplies the practical disadvantage which warrants intervention as of right.
Stone v. First Union Corp., 371 F.3d 1305, 1309-10 (11th Cir. 2004) (citing Chiles, 865
F.2d at 1214).
As was true with the proposed intervenors in Stone, the practical impairment
FFAI faces here is significant. If the Court judicially invalidates Amendment 2, then the
integrity of amendment process will be diminished and preservation of the definition of
marriage as the union of one man and one woman, with the concomitant efforts of
strengthening the institutions of marriage and the family, will be made all but impossible.
This Court’s decision will be cited as precedent for further attempts to repeal unpopular
constitutional amendments, which will diminish the right reserved to the people to amend
the state Constitution. FFAI’s efforts to preserve the definition of marriage and thereby
bolster the societal benefits of intact biological families will be significantly diminished,
if not eliminated, as proponents for re-defining marriage will point to this Court’s
decision as authority for further deconstructing the institution of marriage and its
attendant rights and obligations. As such, it is beyond question that FFAI’s interests will
be impaired by the outcome of this litigation.
D. FFAI’s Interests are not Adequately Represented by Existing Parties.
While the proposed intervenor is required to show that his interests are not
represented by existing parties, this burden is “treated as minimal.” Georgia, 302 F.3d at
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1255; Trbovich v. United Mine Workers, 404 U.S. 528, 538 n.10 (1972). The burden is
satisfied if intervenors can demonstrate that the existing parties’ representation of their
interests “may be” inadequate. Trbovich, 404 U.S. at 538 n.10. As was true with Florida’s
interest in Georgia, FFAI’s interests here are independent of the interests of the parties.
While the governor and attorney general may defend the constitutionality of the marriage
amendment itself, FFAI, as an organization that assisted in the passage of the ballot
initiative, has an interest not only in the ballot process, but also in the validity of defining
marriage as the union of one man and one woman.
Intervention as of right should be granted when there is a difference in the
interests between the parties and the proposed intervenor. Stone v. First Union Corp., 371
F.3d 1305, 1312 (11th Cir. 2004). In Stone, the Eleventh Circuit reviewed the Southern
District of Florida's refusal to grant intervention to an intervening plaintiff in an
employment discrimination case. Id. The court reasoned that "[a]lthough all of the
plaintiffs allege to have been subject to the same plan of age discrimination, the manner
in which they were discriminated against may not be identical," and the court concluded
"the plaintiffs may wish to emphasize different aspects of First Union's employment
policies." Id. Thus, the court held "that the difference in interests is sufficient to
overcome the weak presumption of adequate representation." Id.
FFAI’s interest in the validity of defining marriage as the union of one man and
one woman as well as the integrity of the ballot process means that FFAI’s interests are
not identical to Defendants. Therefore, the presumption that Defendants, as governmental
agencies and officers will adequately represent FFAI’s interest does not apply. See
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United States v. City of Miami, 278 F.3d 1174, 1179 (11th Cir. 2002). FFAI has a similar
ultimate goal as the existing Defendants, i.e., ensuring that Amendment 2 and the
marriage statutes are upheld. However, FFAI’s interests reach beyond the state’s
ministerial interest in upholding duly enacted amendments and statutes, to the broader
issues of the societal benefits of preserving the definition of marriage as the union of one
man and one woman, the integrity of the electoral process, and the right of the voters to
amend the Constitution. Notably, Defendants in this case do not oppose FFAI’s
Intervention. (See Certificate of Conferral following Motion to Intervene).
Because FFAI’s interests reach beyond the government’s interest in merely
preventing the invalidation of the law, the presumption that the government adequately
represents its constituency when it is acting on its behalf is easily rebutted. Jackson, 282
F.R.D. at 517. In determining whether the proposed intervenor has rebutted the
presumption, courts consider several factors, including “(1) whether the interest of a
present party is such that it will undoubtedly make all of a proposed intervenor's
arguments; (2) whether the present party is capable and willing to make such arguments;
and (3) whether a proposed intervenor would offer any necessary elements to the
proceeding that other parties would neglect.” Id. at 517-18. Analysis of these factors in
this case shows that FFAI rebuts any presumption that the Defendants (who consent to
intervention) will adequately represent FFAI’s interest.
First, the government will not and cannot make all of FFAI’s proposed arguments.
Defendants are expected to argue that Amendment 2 and the challenged statutes are
validly enacted measures that do not violate the United States Constitution. However,
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Defendants are not likely to make the further argument that invalidating the laws will
threaten the reserved rights of the people of Florida (including FFAI’s members) to
amend the state Constitution. More importantly, Defendants are not well equipped make
the public policy and social welfare arguments that underlie the memorialization of the
definition of marriage as the union of one man and one woman as part of the Florida
Constitution. After all, memorializing the definition of marriage in the state Constitution
was a citizen, not government, initiative. FFAI, which has been principally involved in
all aspects of that initiative, as well as continuing to preserve and protect the institution of
marriage since the passage of Amendment 2, is willing and capable of making these
arguments. In bringing these arguments to the case, FFAI will present elements that are
critical to this Court’s analysis of Plaintiffs’ challenge to the duly enacted laws of the
State of Florida. These arguments will enable the Court to have a comprehensive
perspective of the full ramifications of Plaintiffs’ claims.
Here, FFAI's interests are sufficiently different from those of the state to
overcome the weak presumption of adequate representation. FFAI’s interests reach
beyond the state’s general interest in validating duly enacted amendments and statutes.
FFAI's interests include: establishing the application of rational basis scrutiny and that
there are compelling interests for defining marriage as the union of one man and one
woman; arguing the broader issues of the societal benefits of preserving that definition of
marriage; and defending the integrity of the electoral process and the right of the voters to
amend the Constitution. As representatives of the State of Florida, the existing defendants
cannot adequately represent the unique and substantial interests of FFAI’s members, who
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assisted in developing and passing the amendment, and whose votes are threatened by
Plaintiffs’ challenge.
While the existing defendants will litigate this case with the best interests of the
state as a whole in mind, FFAI will provide further, more specific protection for the
interests of those who exercised their right to amend the Constitution. Because of this
divergence of interest, FFAI has rebutted the presumption of adequate representation by
the State and should be entitled to intervene as a matter of right.
II. FFAI SATISFIES THE STANDARDS FOR PERMISSIVE INTERVENTION.
Alternatively, this Court should find that FFAI meets the standards for permissive
intervention under Rule 24(b). Under Rule 24(b) “the court may permit anyone to
intervene who . . . has a claim or defense that shares with the main action a common
question of law or fact.” Fed. R. Civ. P. 24(b)(1)(B). “A court is given broad discretion to
allow a nonparty to intervene in a lawsuit where [1] the nonparty’s claim contains a
common question of law or fact and [2] intervention will not hinder the adjudication of
the original lawsuit.” Georgia 302 F.3d at 1250. When, as is true here, an issue involved
in the litigation is of critical importance to a proposed intervenor, its participation in the
litigation should not be discouraged. See Arizona v. California, 460 U.S. 605, 614 (1983)
(finding that Indian tribes should be granted permissive intervention in lawsuit involving
water rights).
As discussed more fully above, FFAI’s motion is timely. FFAI meets the other
standards for permissive intervention. Therefore its motion for permissive intervention
should be granted.
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A. FFAI’s Defense has Questions of Law and Fact in Common with Plaintiffs’ Claims.
After considering timeliness, the Court must determine whether the “applicant's
claim or defense and the main action have a question of law or fact in common.” Fed. R.
Civ. P. 24(b); see also Mitchell v. McCorstin, 728 F.2d 1422, 1423 (11th Cir. 1984).
“This determination is not discretionary.” Mitchell, 728 F.2d at 1423. In addition, courts
are to construe the interest requirement of section (b)(2) liberally. Stallworth v. Monsanto
Co., 558 F.2d 257, 269 (5th Cir. 1977).
FFAI’s interests in this litigation are wholly connected to and the mirror image of
Plaintiffs’ underlying claims and so are sufficiently intertwined to warrant permissive
intervention. Plaintiffs, Defendants and FFAI share an interest in determining the
constitutionality of the Florida marriage amendment and statutes. Defendants and FFAI
have related interests in defending these laws against Plaintiffs’ constitutional challenge,
and FFAI has additional private interests in asking this Court to uphold these laws. All of
those interests arise out of one common issue—whether the Florida amendment and
statutes defining marriage as the union of one man and one woman are constitutional.
Consequently, FFAI’s defense of the institution of marriage and of the people’s right to
amend the Constitution shares a common question of law and fact with Plaintiffs’
constitutional challenge. Therefore, FFAI should be granted permissive intervention.
B. FFAI’s Participation will not Unduly Delay or Prejudice any Party.
FFAI’s timely request for intervention, and its comprehensive perspective on the
validity of Amendment 2 and the statutes at issue, mean that its participation in the
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litigation will not unduly delay the proceedings nor prejudice any party. The question of
undue delay and prejudice of parties is discretionary. United States v. S. Florida Water
Mgmt. Dist., 922 F.2d 704, 712 (11th Cir. 1991). The consideration of delay is generally
heavily dependent on the timeliness question: “it is appropriate to consider the total
passage of time in determining the ultimate question of permissive intervention.” Worlds
v. Dep't of Health & Rehabilitative Servs., State of Fla., 929 F.2d 591, 595 (11th Cir.
1991).
Here, the Complaint was filed on March 12, 2014, only three weeks before FFAI
filed the instant motion, and the response deadline has not yet expired. Additionally,
FFAI is not adding to the issues in the litigation, but is merely seeking to provide a more
comprehensive perspective on the validity of the marriage amendment and statutes.
Consequently, allowing intervention would provide this Court with a more complete
record to enable it to make a just, speedy, and efficient determination of the critical
constitutional issues raised by Plaintiffs’ challenge. There will be little increased expense
or burden imposed on the parties. Therefore, FFAI will not unduly delay or prejudice any
party and should it be permitted to intervene.
CONCLUSION
FFAI meets the standards for intervention both as of right and by permission.
Therefore FFAI requests that this Court grant its motion to intervene as a matter of right,
or in the alternative, that it grant FFAI permissive intervention.
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Respectfully submitted,
Stephen M. Crampton LIBERTY COUNSEL P.O. Box 11108 Lynchburg, VA 24506 800-671-1776 [email protected] Attorneys for Proposed Intervenor FFAI
/s/ Horatio G. MihetMathew D. Staver
_____________
Anita L. Staver Horatio G. Mihet LIBERTY COUNSEL P.O. Box 540774 Orlando, FL 32854-0774 800-671-1776 [email protected]
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was filed
electronically on April 2, 2014 via the Court’s CM/ECF system. Service will be
effectuated upon all parties and counsel of record via the Court’s electronic notification
system.
/s/ Horatio G. Mihet
HORATIO G. MIHET __________
One of the Attorneys for FFAI
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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION
SLOAN GRIMSLEY and JOYCE ALBU; )Case No. 4:14-CV-00138-RH-CAS BOB COLLIER and CHUCK HUNZIKER; ) LINDSAY MYERS and SARAH HUMLIE; ) ROBERT LOUPO and JOHN FITZGERALD; ) DENISE HUESO and SANDRA NEWSON; ) JUAN DEL HIERRO and THOMAS GANTT, ) JR.; CHRISTIAN ULVERT and CARLOS ) ANDRADE; RICHARD MILSTEIN and ) ERIC HANKIN; and SAVE FOUNDATION, ) INC., ) ) Plaintiffs, ) v. ) ) RICK SCOTT, in his official capacity as ) Governor of Florida, and PAMELA BONDI, in ) her official capacity as Attorney General of ) Florida, JOHN H. ARMSTRONG, in his official ) capacity as Surgeon General and Secretary of ) Health for the State of Florida; and ) CRAIG J. NICHOLS, in his official capacity ) as the Agency Secretary for the Florida ) Department of Management Services, ) ) Defendants. ) ) FLORIDA FAMILY ACTION, INC., ) )
Intervenor-Defendant. )
INTERVENOR DEFENDANT'S ANSWER TO PLAINTIFFS’ COMPLAINT
Intervenor-Defendant Florida Family Action, Inc. (“FFAI”), by and through
counsel, responds to Plaintiffs’ Complaint as follows:
1. FFAI admits that “Florida, like other states, encourages and regulates
marriage through hundreds of laws that provide benefits to and impose obligations on
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married couples. In exchange, Florida receives the well-established benefits that marriage
brings: stable, supportive families that contribute to both the social and economic well-
being of the State. It is because of the well-recognized benefits of marriage that Florida
has traditionally recognized lawful marriages performed in other states.” FFAI denies
each and every other allegation in Paragraph 1.
2. FFAI denies each and every allegation of Paragraph 2.
3. FFAI denies each and every allegation of Paragraph 3.
4. FFAI denies each and every allegation of Paragraph 4.
5. FFAI denies each and every allegation of Paragraph 5.
6. FFAI denies each and every allegation of Paragraph 6.
7. FFAI admits that Paragraph 7 states the relief sought by Plaintiffs, but
denies that Plaintiffs are entitled to any relief.
8. FFAI admits that Plaintiffs purport to bring this action under 42 U.S.C. §
1983, but denies that Plaintiffs have stated a cause of action or that Plaintiffs are entitled
to any relief.
9. FFAI admits the allegations of Paragraph 9.
10. FFAI admits the allegations of Paragraph 10.
11. FFAI lacks sufficient information and belief to admit or deny the
allegations of Paragraph 11 and on that basis denies each and every allegation therein.
12. FFAI lacks sufficient information and belief to admit or deny the
allegations of Paragraph 12 and on that basis denies each and every allegation therein.
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13. FFAI lacks sufficient information and belief to admit or deny the
allegations of Paragraph 13 and on that basis denies each and every allegation therein.
14. FFAI lacks sufficient information and belief to admit or deny the
allegations of Paragraph 14 and on that basis denies each and every allegation therein.
15. FFAI lacks sufficient information and belief to admit or deny the
allegations of Paragraph 15 and on that basis denies each and every allegation therein.
16. FFAI lacks sufficient information and belief to admit or deny the
allegations of Paragraph 16 and on that basis denies each and every allegation therein.
17. FFAI lacks sufficient information and belief to admit or deny the
allegations of Paragraph 17 and on that basis denies each and every allegation therein.
18. FFAI lacks sufficient information and belief to admit or deny the
allegations of Paragraph 18 and on that basis denies each and every allegation therein.
19. FFAI lacks sufficient information and belief to admit or deny the
allegations of Paragraph 19 and on that basis denies each and every allegation therein.
20. FFAI admits the allegations of Paragraph 20.
21. FFAI admits the allegations of Paragraph 21.
22. FFAI admits the allegations of Paragraph 22.
23. FFAI admits the allegations of Paragraph 23.
24. FFAI admits that marriage is governed by Chapter 741 of the Florida
Statutes, captioned “Marriage; Domestic Violence” and admits that the quoted citation to
§741.212 accurately states the words in the law. FFAI denies each and every remaining
allegation of Paragraph 24.
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25. FFAI admits that the Florida Constitution was amended in 2008 and that
the text cited in Paragraph 25 accurately quotes the words of Article I §27. FFAI denies
each and every remaining allegation of Paragraph 25.
26. FFAI admits that marriage is defined as the union of one man and one
woman in the State of Florida and that same-sex couples do not meet the definition of
marriage. FFAI denies the remaining allegations of Paragraph 26.
27. FFAI denies each and every allegation of Paragraph 27, including the
allegations contained in subparagraphs a-o.
28. FFAI admits that “The Supreme Court has called marriage ‘the most
important relation in life,’ Zablocki v. Redhail, 434 U.S. 374, 384 (1978) (internal
quotation marks omitted), and an ‘expression[] of emotional support and public
commitment,’ Turner v. Safley, 482 U.S. 78, 95(1987); see also Loving v. Virginia, 388
U.S. 1, 12 (1967) (‘The freedom to marry has long been recognized as one of the vital
personal rights essential to the orderly pursuit of happiness by free [people].’).” FFAI
denies each and every remaining allegation in Paragraph 28.
29. FFAI denies the allegations of Paragraph 29.
30. FFAI denies the allegations of Paragraph 30.
31. FFAI denies the allegations of Paragraph 31.
32. FFAI lacks sufficient information to admit or deny the allegations of
Paragraph 32 and on that basis denies the allegations.
33. FFAI lacks sufficient information to admit or deny the allegations of
Paragraph 33 and on that basis denies the allegations.
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34. FFAI denies the allegations of Paragraph 34.
35. FFAI denies the allegations of Paragraph 35.
36. FFAI denies the allegations of Paragraph 36.
37. FFAI incorporates by reference its responses in the preceding paragraphs.
38. FFAI admits the allegations of Paragraph 38.
39. FFAI admits the allegations of Paragraph 39.
40. FFAI admits the allegations of Paragraph 40.
41. FFAI admits the allegations of Paragraph 41.
42. FFAI admits that marriage, as the union of one man and one woman, is a
fundamental right, and denies all remaining allegations of Paragraph 42.
43. FFAI denies the allegations of Paragraph 43.
44. FFAI denies the allegations of Paragraph 44.
45. FFAI denies the allegations of Paragraph 45.
46. FFAI denies the allegations of Paragraph 46.
47. FFAI denies the allegations of Paragraph 47.
48. FFAI incorporates by reference its responses in the preceding paragraphs.
49. FFAI admits the allegations of Paragraph 49.
50. FFAI admits the allegations of Paragraph 50.
51. FFAI admits the allegations of Paragraph 51.
52. FFAI admits the allegations of Paragraph 52.
53. FFAI denies the allegations of Paragraph 53.
54. FFAI denies the allegations of Paragraph 54.
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55. FFAI denies the allegations of Paragraph 55.
56. FFAI denies the allegations of Paragraph 56.
57. FFAI denies the allegations of Paragraph 57.
58. FFAI denies the allegations of Paragraph 58.
59. FFAI denies the allegations of Paragraph 59.
60. FFAI denies the allegations of Paragraph 60.
61. FFAI denies the allegations of Paragraph 61.
62. FFAI denies the allegations of Paragraph 62.
63. FFAI denies the allegations of Paragraph 63.
64. FFAI denies the allegations of Paragraph 64.
65. FFAI denies the allegations of Paragraph 65.
66. FFAI incorporates by reference its responses in the preceding paragraphs.
67. FFAI admits the allegations of Paragraph 67.
68. FFAI admits the allegations of Paragraph 68.
69. FFAI admits the allegations of Paragraph 69.
70. FFAI admits the allegations of Paragraph 70.
71. FFAI admits that couples consisting of one man and one woman are
granted the rights and benefits of marriage under Florida law, and denies all remaining
allegations of Paragraph 71.
72. FFAI denies the allegations of Paragraph 72.
73. FFAI denies the allegations of Paragraph 73.
74. FFAI denies the allegations of Paragraph 74.
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75. FFAI denies the allegations of Paragraph 75.
RESIDUAL DENIAL
FFAI denies each and every allegation in the Complaint other than those
specifically admitted above.
FIRST DEFENSE
As a first defense, FFAI asserts that Plaintiffs fail to state a cause of action upon
which relief can be granted.
SECOND DEFENSE
As a second defense, FFAI asserts that Plaintiffs are not entitled to relief under
the doctrine of unclean hands.
THIRD DEFENSE
As a third defense, FFAI asserts that Plaintiffs are not entitled to relief because
they have failed to suffer any harm that can be attributed to the Defendants.
FOURTH DEFENSE
As a fourth defense, FFAI asserts that Plaintiffs are not entitled to relief because
any injury that Plaintiffs might have suffered is attributable to their own actions.
FIFTH DEFENSE
As a fifth defense, FFAI asserts that in qualifying Amendment 2 for the ballot and
voting it into existence, FFAI, its members, and the millions of Floridians who approved
Amendment 2 exercised the right reserved to the people to amend the Constitution by
initiative, under Article XI, §3 of the Florida Constitution, and to set the public policy of
their state. The relief sought by Plaintiffs in this action would require that those votes be
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discarded, thereby violating the constitutional and statutory voting rights of millions of
Floridians, as well as their equal protection and due process rights.
SIXTH DEFENSE
As a sixth defense, FFAI asserts that Plaintiffs’ claims violate the separation of
powers doctrine and transgress the limits of the Tenth Amendment.
SEVENTH DEFENSE
As a seventh defense, FFAI asserts that Article I §27 of the Florida Constitution
and Florida Stat. §741.212 serve the State’s compelling interest in protecting those
engaged in dangerous homosexual behaviors, children, and society’s cornerstone, the
family. These statutes are constitutional and similar statutes have been determined to be
constitutional in various other jurisdictions.
WHEREFORE, Intervenor-Defendant FFAI prays that Plaintiffs’ Complaint be
dismissed, with prejudice; that Plaintiffs take nothing by their Complaint; that Plaintiffs
be charged with the costs and expenses of this suit, including reasonable attorney’s fees;
and for such other and further relief as the Court shall deem just and proper.
Respectfully submitted,
Stephen M. Crampton LIBERTY COUNSEL P.O. Box 11108 Lynchburg, VA 24506 800-671-1776 [email protected] Attorneys for Proposed Intervenor FFAI
/s/ Horatio G. MihetMathew D. Staver
_____________
Anita L. Staver Horatio G. Mihet LIBERTY COUNSEL P.O. Box 540774 Orlando, FL 32854-0774 800-671-1776 [email protected]
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was filed
electronically on April 2, 2014 via the Court’s CM/ECF system. Service will be
effectuated upon all parties and counsel of record via the Court’s electronic notification
system.
/s/ Horatio G. Mihet
HORATIO G. MIHET __________
One of the Attorneys for FFAI
Case 4:14-cv-00138-RH-CAS Document 13-2 Filed 04/02/14 Page 9 of 9