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A few quick Wisconsin updates

LGBT Legal Cases Marriage equality Marriage Equality Trials

Wisconsin state sealUPDATE 3:03PM ET: The district court judge has said that she won’t issue an immediate stay, because there was no injunction. She says marriages should not have happened:

Judge Barbara Crabb, in her first remarks on her Friday ruling tossing out Wisconsin’s constitutional ban on same-sex marriage, declined to issue a stay of the decision Monday but said she does not condone the wave of marriages that followed.

Crabb said her ruling was a declaratory judgment, not an injunction. That means that she found the amendment unconstitutional but has not immediately barred its enforcement. Instead, she has ordered both sides to prepare briefs on how an injunction should be framed.

She said the marriages conducted in Dane and Milwaukee counties over the weekend, and in other counties Monday, should not be going forward.

UPDATE 2: The order denying the stay is here.
—-

– There is a hearing today on the state’s emergency motion for a stay of same-sex marriages, at 1PM. The hearing is at the district court judge’s courthouse in Wisconsin, though parties have the option to appear by telephone.

– The state has filed a notice of appeal in the case, noting they will appeal to the Seventh Circuit Court of Appeals. They also filed a statement explaining why they are appealing from the current order, even though the final injunction isn’t expected until at least the 16th.

– The state has asked the Seventh Circuit for an immediate stay.

Thanks to Kathleen Perrin for these filings

59 Comments

  • 1. Eric Koszyk  |  June 9, 2014 at 9:34 am

    Decent article on where cases are going and how some circuits look rough going forward:
    http://thinkprogress.org/justice/2014/06/09/34463

  • 2. Rose  |  June 9, 2014 at 10:12 am

    This is NOT a surprise and all it does is continues to show the animus some have against those who love differently than they do or just because of who they are…….and in reality all this stay will do is DELAY the right to marry….it WON'T prevent it from becoming a reality!!!

  • 3. Richard L  |  June 9, 2014 at 10:44 am

    Sean Reyes filed another request this morning. Will the 10th grant a stay on this?
    http://fox13now.com/2014/06/09/utah-vows-to-take-

  • 4. SWB1987  |  June 9, 2014 at 10:54 am

    I knew the Fifth Circuit was conservative but I never realized it was that heinous

  • 5. DrHeimlich  |  June 9, 2014 at 10:59 am

    I would bet on a stay being granted by the Tenth Circuit (if the District judge does not issue one). This is the very circuit for which SCOTUS first issued the stay that started it all in Kitchen, and I don't see them ignoring that directive in this similar circumstance.

    The one exception I could imagine is if the Tenth actually released the opinions for Kitchen and Bishop, ruling in favor of marriage equality, they might not then stay the Wisconsin case, as the SCOTUS stay was to be effective only until the Tenth Circuit issued its rulings.

    All that said, I would probably bet on the District Court judge issuing a stay anyway. Again, there's the fact that she's in the circuit SCOTUS granted the original stay for. But moreover, she never issued an order to go with her opinion on Friday, and had scheduled to have parties argue exactly what the order should be. I doubt she anticipated that marriages would take place so quickly in absence of an order.

    (Well… conspiracy theory ahead… unless, of course, she DID anticipate it, and intended this outcome in which she looked impartial on paper while still allowing a number of couples to marry before a stay could be ordered.)

  • 6. BenG1980  |  June 9, 2014 at 11:15 am

    DrHeimlich, I'm not really following this comment as it relates to Wolf v. Walker in Wisconsin (7th Circuit). Richard L referred to Utah's request for a stay in Evans v. Utah. On May 19, 2014, U.S. District Court judge Dale Kimball ruled that the state of Utah must respect the nearly 1,300 marriage licenses it issued to same-sex couples in December and January of this year. He wrote, "The court has already weighed and balanced the harms involved in issuing its preliminary injunction. Plaintiffs have demonstrated existing clear and irreparable harms if an injunction is not in place." However, he issued a 21-day temporary stay. Now Utah wants that stay to be extended while it appeals.

  • 7. Roulette00  |  June 9, 2014 at 11:33 am

    Wisconsin's arguments are interesting here. They reason that the opinion which declares the law unconstitutional has injunctive power, without providing an injunction against which an appeal can be lodged; they then declare that because it has the power of an injunction, they should be allowed to appeal it anyway.

    I didn't read where they argued that they meet the criteria for the stay which they claim they are entitled to: likelihood of success on the merits, irreparable harm, etc. (They did claim harm due to "confusion" but I don't think that's going to fly; confusion over the law is not unique to this case or this law and should not, in my view, be grounds for a stay.) Is it possible for the appellate court to say, "Yes, we grant you the ability to ask for a stay, but we deny you a stay because you don't meet the criteria"?

  • 8. Ragavendran  |  June 9, 2014 at 11:34 am

    It was pointed out to me by someone with more legal authority than me that the stay in Kitchen is to remain effective until "final disposition" by the Tenth Circuit, which means until a mandate is issued. It was also mentioned by that poster that If there is an appeal, a mandate will be stayed pending the appeal to SCOTUS. So the stay can remain in effect for a pretty long time.

  • 9. DrHeimlich  |  June 9, 2014 at 11:37 am

    You are right. I have my circuits miswired. (Ha!)

  • 10. Rose  |  June 9, 2014 at 12:16 pm

    So, according to Judge Crabb….the County Clerks should NOT have issued Marriage Licenses……..does that mean they WON'T be recognized as legal? Or did she simply state her opinion as she gave NO clear indication one way or the other regarding her ruling in the first place?

  • 11. Rose  |  June 9, 2014 at 12:20 pm

    I'm NOT sure how the State of Wisconsin thinks it will prevail on appeal……in the long run all they will do is delay the inevitability!!!

  • 12. RobW303  |  June 9, 2014 at 12:26 pm

    Ahem, I'm not disputing that this news is mistaken, but in future could you please link to a creditable news source? Fox rarely has an exclusive on real news, and has turned "factual reporting" into an oxymoron.

  • 13. Bruno71  |  June 9, 2014 at 12:37 pm

    Sounded like an opinion to me (not even the judicial kind). As far as recognition, I don't think she says anything about that. It's possible that the fact that a county clerk issued these couples licenses and they were married should be legal enough in her eyes, but who knows.

  • 14. ebohlman  |  June 9, 2014 at 12:46 pm

    In fact, it sounds like a reporter's interpretation, since we don't have her exact words; I suspect what she's really saying is that the clerks aren't acting under her court's authority and therefore her court doesn't have the power to stop them.

    I have no idea why Van Hollen is pursuing this strategy rather than asking the (extremely conservative) WI Supreme Court for an injunction to stop the clerks; this appears to be entirely a matter of state law at this point.

  • 15. debater7474  |  June 9, 2014 at 12:52 pm

    This is a really great article, thanks!

  • 16. RobW303  |  June 9, 2014 at 1:03 pm

    The fact that most counties still don't issue licenses argues against the "injunctive power" prior to an actual injunction. Besides, how can a stay be granted for an injunction that has not yet been issued? Technically, the state of Wisconsin (particularly the central marriage records office) can still refuse to record as valid any licenses mistakenly issued by clerks in anticipation of an injunction. There may be confusion, but that is an internal administrative issue that, sadly, may cause the current spate of couples a lot of grief. But by "marrying in haste" they did know they were probably wading into a legal quagmire. (I would probably have married in Iowa instead, so that at least certain federal, employment, medical and insurance benefits would be beyond dispute while this dog-and-pony show plays out.)

  • 17. RobW303  |  June 9, 2014 at 1:12 pm

    I should have said, I'm not disputing whether this news is true—pardon my infelicity of expression.

  • 18. Zack12  |  June 9, 2014 at 1:15 pm

    The longer they take to hear our case, the better.
    There is no way in hell they will ever rule in our favor.

  • 19. Michael Grabow  |  June 9, 2014 at 1:38 pm

    If there are two circuit and several more district rulings in our favor, it's going to be pretty difficult to be the one court to come up with a reason to say otherwise.

  • 20. Zack12  |  June 9, 2014 at 1:54 pm

    But they will come up with one, just like Scalia does.

  • 21. davep  |  June 9, 2014 at 2:00 pm

    The only way any court can now rule against us is to simply regurgitate the defendants idiotic "arguments" about "encouraging responsible procreation" and "a child needs a mommy and a daddy" and ignore the mountains of evidence and clear, simple logic that have already repeatedly debunked all of that bullshit and easily proven that denying a marriage license to a same sex couple doesn't do anything that advances any such interests one bit.

    They will have to look at all of the goals and purposes claimed for these bans, and then ignore the fact that the actual effect of the ban is not in any way rationally related to the stated goal for the ban, or that the stated goals are not even legitimate goals for a civil law in the first place.

    I'm not saying the fifth won't pull this stunt, I think there's a good chance they will. And if they do, it will backfire on them, resulting in a nation-wide ruling in our favor even sooner.

  • 22. StraightDave  |  June 9, 2014 at 2:19 pm

    Oh I definitely agree. I don't think the 5th can do any real damage at all. Ironically, they can only do good, as davep points out. Regardless of how the 5th rules, SCOTUS will almost certainly take up some case next Spring. All the others will be left on hold in the background until then, like with DOMA last year. The 5th's decision will be stayed, so it doesn't matter what they say.

    At worst, they will be tossed in the "also-ran" bucket and follow everyone else. At best, they will have their name engraved on the ultimate opinion as being reversed.

  • 23. RobW303  |  June 9, 2014 at 2:37 pm

    The AG is more concerned with helping his party mobilize its base in the upcoming elections (via knee-jerk emotionalism) than in respecting the currently prevailing and increasing will of the people or in sparing the state and its people fruitless litigation and waste of public funds. (Not that I think the "public funds" argument should matter, if this case were not so clearly unwinnable, even if the AG gets lucky in the appeals draw.)

    Also, if the marriage equality opponents can defer cases reaching SCOTUS until a new administration (Republican, they hope) is installed, a new appointment to SCOTUS would shift the bench to an unopposable far-right majority. Then forget about reason in American justice when it comes to political or ideological issues or the ability of (red) states to gerrymander. Ironically, the "tyranny of activist judges" meme, despite its factual absurdity in respect to the lower court rulings so far, is the sort of battle cry that can swing elections red and create in fact a tyranny of activist judges. From this standpoint, marriage equality isn't necessarily inevitable, either in Wisconsin or nationwide.

  • 24. grod  |  June 9, 2014 at 2:42 pm

    Wisconsin counties issuing same-sex marriage licenses:
    Milwaukee, Waukesha, Kenosha, Dane, Rock, Dodge, Outagamie, Brown, Green, Door,
    Jackson, La Crosse, Columbia, Buffalo, Douglas, Iowa, Fond du Lac, Juneau, Langlade,
    Manitowoc Monroe,. Pepin, Polk, Wood , Jefferson and Vilas Counties

  • 25. Bruno71  |  June 9, 2014 at 2:58 pm

    Wow. 26 counties out of 72 is much more than I'd have expected.

  • 26. Walter  |  June 9, 2014 at 3:10 pm

    I read somewhere that Judge Crabb told the state that they need to go to state court to control their clerks. I

  • 27. Guest  |  June 9, 2014 at 3:21 pm

    The AP is reporting the number as 41: http://www.seattlepi.com/news/us/article/Gay-coup

  • 28. FilbertB  |  June 9, 2014 at 3:32 pm

    That is an good point -I have been thinking about the 5th circuit, and the effect of an unfavorable ruling issued there. You have placed a potential negative ruling from the 5th upholding the bans in a broader context.

  • 29. Rev. Bill Markland  |  June 9, 2014 at 3:46 pm

    NOM's silence in Wisconsin is probably because they hope that Walker could be elected President and that they could then exert influence on him to roll back civil rights for BGLT families. We all know that Governor Walker is making the decisions about whether to appeal. He is in charge, isn't he? The voters, a majority of whom favor marriage equality, have a right for Walker to be transparent with his decisions in this matter.

  • 30. montezuma58  |  June 9, 2014 at 3:50 pm

    So if am tracking here. The amendment is dead. It's as if it never existed. So effectively there's nothing on the book preventing marriages while also nothing on the books specifically authorizing marriages. Analogous to the situation in New Mexico a while back.

    Are there other statutes on the book that have the same intent or effect that the defunct amendment had?

  • 31. Bruno71  |  June 9, 2014 at 4:00 pm

    The high numbers may have something to do with Wisconsin's residency requirement. If one of the couple is a state resident, they have to apply for the license in the county of residency. Thus, these counties may be accommodating same-sex couples who can't apply for a license elsewhere in the state.

  • 32. brandall  |  June 9, 2014 at 4:13 pm

    While we all grapple to understand those that generate worthless motions, there are some really good folks in government in WI:

    "Milwaukee County Executive Chris Abele said Monday that he will PERSONALLY [caps added] cover the cost of any overtime county employees may have racked up by staying open late on Friday, and during the day on Saturday to accommodate same sex couples getting married.

    Abele said it's the right thing to do and he didn't want to give people any reason to complain that tax dollars were being used for this.

    Abele also said he will aggressively defend the recent marriages if a stay is eventually put in place."
    http://www.cbs58.com/news/local-news/Milwaukee-Co

  • 33. Lymis  |  June 9, 2014 at 4:37 pm

    Quagmire anyway. Wisconsin has a law that criminalizes going out of state for a marriage that would be invalid in Wisconsin – so technically, marrying in Iowa would be a criminal act for a same-sex couple of Wisconsin residents. Shades of Loving.

  • 34. Lymis  |  June 9, 2014 at 4:49 pm

    Not a lawyer. SO not a lawyer.

    But her ruling that the amendment and associated laws are unconstitutional stands. Without an injunction, she hasn't told anyone what they are supposed to do about it. So any laws and the amendment have no force, but nothing has any force actually allowing it or telling anyone who has the authority to direct people to issue licenses nor who has the authority to do so.

    So right now, nobody is empowered to actually do what it's unconstitutional to ban. Since it IS unconstitutional to ban it, it would be hard to justify voiding any resulting marriages, but if someone wants to be vindictive – and someone will – they could make a valid case for penalizing the people who went ahead and issued the licenses without direction, or performed the marriages without authority.

    I could very well be wrong, and if so, I'd hope someone will explain why.

  • 35. Lymis  |  June 9, 2014 at 4:52 pm

    That wouldn't help, because the ruling explicitly invalidated any and all laws that also interfered with issuing licenses or treating same-sex married couples differently from opposite sex couples.

    Because of her wording, if the amendment is well and truly defunct, so are the laws. But yes, nothing actually authorizes anything, either.

  • 36. StraightDave  |  June 9, 2014 at 5:06 pm

    I rather doubt a clerk who was disinclined to issue a license would suddenly turn magnanimous simply because the couple had no other options. With the lack of any kind of order, and in the face of the AG's negative recommendation, if 41 counties are issuing licenses it surely must be because they really want to.
    And, yes, it's a very impressive number on the first full weekday.

  • 37. Ragavendran  |  June 9, 2014 at 5:06 pm

    Just checked the order denying the motion to stay by Judge Crabb. Boy, is she thorough! I love that she put "stay" in quotes because there is nothing to stay here! I wonder what the judges in the motions panel of the Seventh Circuit are thinking now – "what is it that we've been asked to stay? an opinion and declaratory judgment? where's the injunction?" I guess they could still stay her order granting summary judgment? Is that an option? Even if they do, what would that achieve? Would clerks then stop issuing licenses?

    Also, Judge Crabb's language in the denial indicates that what the county clerks are doing right now might well be in violation of current state law, since she hasn't issued an injunction yet. So the marriages performed have a good chance at being declared illegal by the conservative Wisconsin Supreme Court. Sigh.

  • 38. Bruno71  |  June 9, 2014 at 5:33 pm

    I think a hesitant clerk might be more moved to sway in the direction of immediate equality if a couple or some couples approached that couldn't get a license anywhere else in the state. Bigots obviously won't be moved by anything.

  • 39. KarlS  |  June 9, 2014 at 5:42 pm

    Lawyers take lots of courses on Straining at Gnats and Swallowing Camels. Colleges use different names, but the principle obtains. The judge is undoubtedly erudite yet has nevertheless failed to accomplish any practical resolution of the issue. It's a nondecision with no upside that I can see. Thanks a lot for not much, Madame Crabb.

  • 40. Alan948  |  June 9, 2014 at 6:06 pm

    Ragavendran: "It was also mentioned by that poster that If there is an appeal, a mandate will be stayed pending the appeal to SCOTUS"

    Well, such stays are not automatic. The federal appellate rules say you need to make a motion to get one, and the tenth circuit even has a local rule titled "Stay not routinely granted", which specifies that "A motion to stay the mandate in a civil case will not be granted unless the court finds there is a substantial possibility that a petition for writ of certiorari would be granted." See FRAP 41(d)(2) and 10th Cir. LR 41.1(B).

    On the other hand, I'd say it's quite likely that the Supreme Court's stay in January will be interpreted to mean that "there is a substantial possibility that a petition for writ of certiorari would be granted", and therefore the 10th circuit will grant a stay of the mandate.

  • 41. ebohlman  |  June 9, 2014 at 6:08 pm

    Let's just say that criticizing someone's work before it's complete touches on a personal sore spot of mine. I ask you not to do it. Judge Crabb is not responsible for how third parties interpret her yet-to-be-finished ruling, nor is her decision to have the prevailing parties offer a proposed injunction in anyway suspect (that's done all the time in civil cases).

  • 42. KarlS  |  June 9, 2014 at 6:33 pm

    Look, I am not responsible for the fact that the judge left the work "incomplete", but I sure as hell have the right to complain that she did. Who has she benefited by this non-decision? Not the plaintiffs and not the defendants…it has just left everything in legal limbo which no matter what side of the issue you happen to support and hardly a solution. Explain to me how the current situation is an improvement over the status quo from 2 weeks ago, I am merely an egg.

  • 43. davep  |  June 9, 2014 at 6:33 pm

    You bring up something that I had a question about (my apologies of it has been answered else where) – I don't remember ever seeing this done in any of the other ME trials/rulings before (asking the parties to submit their requests for injunction, rather than the court just issuing it with the ruling). How common is this process in a district court trial about the constitutional compliance of a law?

  • 44. KarlS  |  June 9, 2014 at 6:35 pm

    "…and hardly" –> "is hardly"

  • 45. Zack12  |  June 9, 2014 at 6:41 pm

    That's why some clerks are waiting, and wrongfully being labeled bigots for it IMO.

  • 46. DaveM  |  June 9, 2014 at 6:58 pm

    Appellee briefs were filed today in 3 of the 6th Circuit cases:
    14-1341 April DeBoer, et al. v. Richard Snyder, et al.
    14-5291 Gregory Bourke, et al. v. Steve Beshear, et al.
    14-5297 Valeria Tanco, et al. v. William Haslam, et al.
    In addition, Chris Sevier's attempt to intervene was denied in Tanco.
    (via http://www.ca6.uscourts.gov/daysheet/daysheet.htm

  • 47. BenG1980  |  June 9, 2014 at 7:00 pm

    Judge Crabb is providing an opportunity for both sides to provide input regarding her injunction to avoid exactly the issue that arose in Arkansas where Judge Piazza had to retroactively amend his because it was incomplete. http://www.latimes.com/nation/nationnow/la-na-nn-

    Judge Crabb cannot be blamed for any "legal limbo" that may result in Wisconsin. Again, that is a state issue for the county clerks and the attorney general to resolve in state court if necessary. Judge Crabb's opinion is probably the most comprehensive of any that have been written so far. Its purpose is not to benefit anyone immediately, but to provide the rationale for her forthcoming injunction.

  • 48. ebohlman  |  June 9, 2014 at 7:22 pm

    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 get this image of Van Hollen coaching his kid's basketball team: "get in there and bat some touchdowns!"

  • 49. skrekk44  |  June 9, 2014 at 8:32 pm

    As of tonight, only 13 of 72 counties aren't granting licenses. http://www.jsonline.com/blogs/news/262381311.html

  • 50. Pat  |  June 10, 2014 at 12:47 am

    Yeah, I'm wondering the same thing. The procedure (asking the parties to tell her their wishes) seems quite different from other rulings which were issued in a very top-down fashion.
    Why is that so?

  • 51. ebohlman  |  June 10, 2014 at 1:51 am

    It's probably because of what happened in Arkansas when the judge missed a couple of statutes in his injunction. Judge Crabb plainly wants everything to be as airtight as possible; her order denying the stay included an admonition to the plaintiffs to be as specific as possible, particularly with respect to Walker and Van Hollen.

  • 52. Sagesse  |  June 10, 2014 at 3:31 am

    Good catch. I'd forgotten Arkansas.

    Reminder, folks. This is why we read this site.

  • 53. renovacija&hellip  |  June 10, 2014 at 6:12 am

    renovacija

    Equality On TrialEquality On Trial ยป

  • 54. Guest  |  June 10, 2014 at 12:17 pm

    Just read that the 7th Circuit issued a decision saying they lacked jurisdiction to issue a stay, then retracted it: http://www.lgbtqnation.com/category/archive/newsf

  • 55. Guest  |  June 10, 2014 at 12:26 pm

    More here: http://www.jsonline.com/news/wisconsin/us-appeals

  • 56. Richard Weatherwax  |  June 10, 2014 at 9:51 pm

    It means more appeals and court decisions ahead.

  • 57. StraightDave  |  June 11, 2014 at 5:44 am

    Actually, WI is well ahead of where NM was last year. A federal judge has spoken loudly on the issue here. NM was merely silent.

  • 58. TxLawyer  |  June 12, 2014 at 4:40 am

    The 10th Circuit will not issue its mandate per the supreme court stay already in place until they have either denied cert or issue an opnion on the 10ths handling of the case.

    So kitchen is effectively stayed by the supreme court stay until any appeal to the supreme court is disposed and the 10th can issue its mandate.

  • 59. Equality On TrialMore Wis&hellip  |  August 7, 2014 at 1:20 am

    […] As we’ve previously reported, the state filed its notice of appeal and then state officials asked the Seventh Circuit for an […]

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