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Wisconsin state sealEqualityOnTrial is scrambling to keep up with all the updates from Wisconsin in Wolf v. Walker, the challenge to the state’s same-sex marriage ban; the case is currently on different tracks in a federal district court and the Seventh Circuit Court of Appeals. Here’s the latest on both fronts.

District Court

– The same-sex couples’ proposed injunction can be read here. The district court has previously declared Wisconsin’s ban unconstitutional, but in its initial opinion, it held off on issuing an injunction against enforcing the ban until the plaintiffs proposed an injunction, listing specifically to whom the order should apply and what conduct should be barred or required for those officials. The proposed injunction is just that: the plaintiffs’ proposal; the judge has to formally sign and issue an order.

– The state officials have filed a response opposing the proposed injunction. Their main objection is that the proposed injunction isn’t specific enough.

– The hearing on the proposed injunction has been moved up: it will take place Friday, June 13. The docket text notes that the proposed injunction and response were submitted quickly, allowing the hearing to go forward this week instead of next.

– The judge has said (in the transcript linked below) that she’s inclined to grant a stay of any injunction, because of other court rulings on stays in marriage cases. It’s unclear what this would mean for marriages in Wisconsin going forward: the marriages happening now are not occurring pursuant to an injunction, so it’s unknown what effect issuing an injunction and then staying it might have on this situation.

Seventh Circuit Court of Appeals

– As we’ve previously reported, the state filed its notice of appeal and then state officials asked the Seventh Circuit for an emergency stay. This was prior to the district court’s denial of the stay – though the district court eventually denied it, pointing out that no injunction had been issued yet, so there was nothing to stay.

– A three-judge panel of the Seventh Circuit then asked all parties to the case to file briefs addressing whether they have jurisdiction over the case. The district court has yet to issue an injunction, meaning that arguably, the order that was appealed is not considered final – a requirement for appeal. If the district court’s order is not final until an injunction is issued, the Seventh Circuit may decide it lacks jurisdiction to issue a stay.

– Separately yesterday, there were some erroneous and confusing reports (see here) on two other filings issued by the Seventh Circuit, although not by the same three-judge panel as that first order. Those two orders asked for briefing on the jurisdictional question, pointing out in its text that the Seventh Circuit believes there are jurisdictional problems with the case; the second order vacated that one, leaving only the initial one filed by the three-judge panel. Because reports on this have been incorrect, there’s been some confusion over what this means. Essentially it means only that the parties had been required to file briefs under the proposed order that was filed by the actual panel. The second order was likely issued by Seventh Circuit staff, because that appeals court screens all cases for potential jurisdictional issues before taking action, in order to preserve judicial economy. They probably didn’t know the panel would have already ordered briefs.

– All parties have now filed their briefs in the Seventh Circuit on the question of jurisdiction. The plaintiffs’ brief is here. The state’s brief is here. Dane County Clerk McDonell’s brief is here. Milwaukee County Clerk Joseph Czarnezki’s brief is here. There is a transcript of the hearing in district court on the request for a stay attached to the plaintiffs’ brief and the state’s brief.

The Seventh Circuit could decide the jurisdictional question at any time. The district court hearing on the injunction is Friday.

Thanks to Kathleen Perrin for these filings

69 Comments

  • 1. TomPHL  |  June 12, 2014 at 8:27 am

    Again the actions of the AG mystify me. If he wants to stop the marriages and appeal, challenging the proposed injunction just slows down the process of getting a stay, which will probably be granted with the injunction. Any faults in the injunction might give him some room to maneuver and delay. So is he "without a clue" or waffling while he considers the political implications of various actions?

  • 2. Bose_in_SP_MN  |  June 12, 2014 at 8:30 am

    And, the nuttiest WI whirlwind was the Vital Records Office initially refusing to file marriage licenses, eh?

  • 3. SeattleRobin  |  June 12, 2014 at 8:46 am

    This is the first time I've read any court docs that are wrangling over an injunction, so I don't know how typical this is. But to me the State's response reads like they're trying to make it next to impossible to write a workable injunction, and also like they're hoping plaintiffs will forget to include something important, which will only necessitate further litigation. In other injunctions hasn't it been okay to make broad statements about marriage-related statutes so they make sure not to forget some little used law?

  • 4. RnL2008  |  June 12, 2014 at 9:13 am

    Hi folks
    Just to let everyone know…it's me Rose now using RnL2008

  • 5. Dann3377  |  June 12, 2014 at 9:23 am

    I was born and raised in Appleton WIsconsin. I just saw a video of the first same sex wedding in little Appleton. So beautiful!

  • 6. FilbertB  |  June 12, 2014 at 9:27 am

    Hi Rose!

  • 7. RnL2008  |  June 12, 2014 at 9:37 am

    Hi……..just so everyone knows, my username is a combo of my first initial, my wife's first initial and the year we were married here in California:-)

    And just to comment on this topic……what a mess in Wisconsin…..more so than what happen here in California…..frankly, ANY marriages that has taken place, should be legal, valid and recognized eventually!!!

  • 8. StraightDave  |  June 12, 2014 at 9:46 am

    I vote for the latter. All of his actions seem to have done nothing but redirect the courts and the parties down blind alleys that don't lead to a resolution. Just churning the system and stalling for time, it seems. If he was hoping for strong public reaction to guide his actions, I think he was disappointed.

  • 9. BenG1980  |  June 12, 2014 at 10:21 am

    I agree. The current RealClearPolitics average shows Scott Walker up by only two points over Mary Burke, a supporter of marriage equality. It may just be wishful thinking, but I think there's at least a small chance that Walker could pressure J.B. Van Hollen, who is not running for reelection, into somehow moderating his position (e.g., appealing but not seeking a stay, or not appealing). At least two other Republican governors up for reelection this fall, Brian Sandoval and Tom Corbett, have already given up defense of their states' bans.

  • 10. Roulette00  |  June 12, 2014 at 10:28 am

    The proposed injunction is "not specific enough?" That has to be a standard response to this kind of thing, because adding specificity only serves to create loopholes.

  • 11. ebohlman  |  June 12, 2014 at 10:43 am

    The brief opposing the injunction is just a routine response brief requested by Judge Crabb last Friday; Van Hollen had until Monday to file it, so for once he wasn't delaying (it was due a week after the proposed injunction was filed).

  • 12. Bruno71  |  June 12, 2014 at 10:45 am

    Van Hollen says clerks can be charged for issuing licenses: http://www.jsonline.com/news/statepolitics/van-ho

    He says it's up to the District Attorneys. That gives a bit more insight into how Wisconsin is or isn't structured when it comes to clerks and marriage licenses. And also into what a moron Van Hollen is.

  • 13. ebohlman  |  June 12, 2014 at 10:47 am

    Judge Crabb very specifically said she wasn't going to accept broad statements, and the civil-procedure rules for proposed injunctions seem to support this. In Monday's decision denying the "stay" she quite specifically admonished the plaintiffs to be specific.

  • 14. RnL2008  |  June 12, 2014 at 10:48 am

    I'd like to see them charge a County Clerk for issuing Marriage license………though it would end up with ANOTHER lawsuit and help our side…..I don't believe the AG will do it nor any DA…..they know the consequences of this action!!!

  • 15. Roulette00  |  June 12, 2014 at 10:56 am

    Charged with what, pray?

  • 16. Bruno71  |  June 12, 2014 at 10:57 am

    But I find it interesting that the AG is not even suggesting he can charge the clerks, but the DA's can. How is Wisconsin structured that they can and he can't?

  • 17. StraightDave  |  June 12, 2014 at 11:00 am

    OK, the AG is now officially a clown. From his response to the injunction:

    "Paragraph 2 purports to enjoin the clerk defendants to issue marriage licenses to couples who, but for their sex , satisfy all the requirements to marry under Wisconsin law.” … What this actually means is unknown. "
    [what part don't you understand?]

    (paraphrasing the argument intro): "Defendants object to the injunction because no relief is warranted because the laws are not unconstitutional."
    [ Dude, did you not notice that you just lost that argument?]

    (paraphrasing a long section): "The WI laws mention husband and wife in a lot of places. To comply with the injunction, all these laws would need to be rewritten. But this court has no authority to write laws. Therefore this injunction is invalid."
    [not that the injunction actually says that at all]

    Last but not least: "Defendants respectfully request that the Court expedite its ruling".
    [despite all the lack of specificity and law rewriting they think needs to be corrected first.]

    I don't imagine Crabb will be much impressed.

  • 18. ebohlman  |  June 12, 2014 at 11:00 am

    I love the initial "threshold" objection to the injunction: no injunction should be issued because we think Judge Crabb's decision to strike down the ban is wrong. Wow, just wow.

    This is just speculation, but Van Hollen's refusal to ask State courts to stop the clerks now makes a little more sense: he's trying to establish that the injunction shouldn't apply to him or Walker because they don't actually have any authority over licensing. If he were to get a State court order to stop the clerks, that would be evidence that he does have such authority.

  • 19. BenG1980  |  June 12, 2014 at 11:01 am

    And, aside from any criminal charges, why can't the AG file a civil case in state court to stop the clerks from issuing the licenses he claims are illegal?

  • 20. JamesInCA  |  June 12, 2014 at 11:11 am

    It's telling that the other two Republican governors of blue(ish) states are standing down. I think Walker would be inclined to do so as well, and for the same reason, with one exception: He may still want to be in the running for President. I'm sort of expecting an appeal for that reason; and if there is one, I'd read it as a strong signal Walker is running.

  • 21. davepCA  |  June 12, 2014 at 11:22 am

    I was curious about this – The injunctions in other trials have been pretty broadly worded, yet also very clear. They instruct the defendants to stop enforcing the law and to allow same sex couples to legally marry, and sometimes include a blanket statement that any other laws which refer to husband/wife/etc. shall not be construed to deny civil marriage to same sex couples. And they seem to work just fine, so how much more specific would the judge want the proposed injunction to be, and more to the point, why?

  • 22. JayJonson  |  June 12, 2014 at 11:22 am

    Considering the thoroughness and erudition of her opinion, Judge Crabb will find this filing at once hilarious and ludicrous. Yes, she will not be impressed.

  • 23. ebohlman  |  June 12, 2014 at 11:28 am

    Because he's claiming that any injunction shouldn't apply to him because he doesn't have any authority over licensing.

  • 24. StraightDave  |  June 12, 2014 at 11:33 am

    The AG wants to keep his hands clean, while surreptitiously doing all this subversive shit to create the chaos and uncertainty he keeps complaining about.

  • 25. ebohlman  |  June 12, 2014 at 11:36 am

    Violation of Wisc. Stat. ch 765.30(2)(b):

    Penalty for unlawful issuance of marriage license. Any
    county clerk who knowingly issues a marriage license contrary to
    or in violation of this chapter.

    Up to $10,000 fine or 9 months imprisonment.

  • 26. scream4ever  |  June 12, 2014 at 11:36 am

    Then again Christie didn't appeal…

  • 27. JayJonson  |  June 12, 2014 at 11:38 am

    Here is a link to an Associated Press story about Scott Walker's trying to duck the question of same-sex marriage despite his ugly history of opposing any benefits for gay couples, whether in domestic partnerships or in marriages. He used to boast that he voted for the ban on gay marriage in the state; now he pretends he can't hear the question.

    Here is the link.

  • 28. scream4ever  |  June 12, 2014 at 11:38 am

    Does anyone know what the 3 new counties to issue licenses today were? I know Marathon plans to start tomorrow.

  • 29. Roulette00  |  June 12, 2014 at 11:40 am

    And what law will they point to, to explain why the license is unlawful?

  • 30. brandall  |  June 12, 2014 at 11:46 am

    Here is an inverted answer to your question:

    The only counties not issuing licenses are Barron, Lafayette, Ozaukee, Portage, Racine, Richland, Vernon, Washburn, Washington
    http://www.timesunion.com/news/article/63-Wis-cou

  • 31. StraightDave  |  June 12, 2014 at 11:49 am

    But why the hell would he do that? (even though I do buy your argument)
    If he has no authority over the clerks, then he can't order them to stop what they're doing. Then when the injunction happens, he can claim that has nothing to do with him. Then when the stay happens, he is powerless (again) to order the clerks to stop issuing licenses.

    Is this his bizarro way of allowing marriages without getting blamed for it? Yes, weirder things have happened, but not many

  • 32. StraightDave  |  June 12, 2014 at 11:55 am

    The one that Crabb just red-lined. They do have a good-faith defense.
    And this isn't just one random guy like Bruce Hanes. Are they gonna throw all the clerks in jail? Can you imagine the national blowback!?!?!
    On the upside, the media descending on Madison would probably revive the WI economy.

  • 33. cpnlsn88  |  June 12, 2014 at 11:58 am

    I am bemused. I do not understand the logic or motivations behind what is going on. It is very complex to understand. I think this will run and run.

  • 34. ebohlman  |  June 12, 2014 at 12:03 pm

    That's plausible; the only other explanation I can come up with is that being named on the injunction would hurt his feelings.

  • 35. StraightDave  |  June 12, 2014 at 12:08 pm

    Wow. 63 out of 72?

    Berlin Wall :)

  • 36. JamesInCA  |  June 12, 2014 at 12:14 pm

    I'm not suggesting it need be a universally obligatory pattern. I also suspect Christie thought he could just start running in the general.

    Edit: Also, Christie already had a clear indication from the NJ Supreme Court about how an appeal would go. Remember, there was no federal issue there, and the state Supreme Court had already ruled against "separate but equal."

  • 37. StraightDave  |  June 12, 2014 at 12:21 pm

    Yeah, but it might also improve his chances of winning a GOP primary somewhere.

  • 38. Mike_Baltimore  |  June 12, 2014 at 12:42 pm

    I think what Van Hollen is trying to do is smoke out all DAs who won't charge the clerks, then use the incidents as fodder for political purposes for getting Walker reelected, and also take down any and all DAs who aren't 'playing ball' with the Walker administration.

    I wish him luck (bad luck, that is) if he thinks he can go after the DAs in Milwaukee and Madison.

  • 39. sfbob  |  June 12, 2014 at 12:49 pm

    I also find this odd. In none of the other federal cases thus far have there been concerns about specificity (well, I believe the Arkansas ruling had to be amended to reference some additional state statute). Yet somehow it seems as though there is all kinds of confusion as to what is required in Wisconsin. I was traveling and off the net when the Wisconsin decision was rendered so I may not have all the details. Are there complexities to Wisconsin's statutes and administrative procedures that don't obtain in other states or is this just some sort of made-up drama concocted by the state officials?

  • 40. Bruno71  |  June 12, 2014 at 1:01 pm

    Why are Van Hollen & Walker named defendants in this case if they have no authority over licensing? Isn't that why the gov & AG were removed as defendants in the Oklahoma case?

  • 41. Bruno71  |  June 12, 2014 at 1:02 pm

    Racine being stubborn, sandwiched there in between Milwaukee & Kenosha/Chicagoland.

  • 42. Bruno71  |  June 12, 2014 at 1:06 pm

    I can't say I know for sure, but I think at least part of it is due to Judge Crabb's meticulous nature. I assume she didn't need to ask the plaintiffs for input on how to write an injunction, but she did so to be comprehensive. If there's another reason in addition, I don't know what it would be.

  • 43. Roulette00  |  June 12, 2014 at 1:36 pm

    I just don't see those charges sticking. The DA might say, "Well, we were trying to appeal" and the court might simply say, "Meh, coulda woulda shoulda. Case dismissed."

  • 44. StraightDave  |  June 12, 2014 at 2:14 pm

    The NJ SC had denied the stay and had already pre-ruled by setting the standard of equality.. So it really was over with at that point. Christie gets no points for that other than "not-a-complete-moron".

  • 45. Roulette00  |  June 12, 2014 at 2:38 pm

    Good question. Why, if they were not the proper defendants, did they not say as much during the proceedings?

  • 46. sfbob  |  June 12, 2014 at 2:58 pm

    Certainly Judge Crabb would have noted such an error early on in the proceedings. While that would be a function of state law, no doubt a federal judge is more than capable of researching state law and determining that the wrong people are being sued. It happened in other cases and it didn't happen here. Van Hollen and Walker are just blowing smoke here and they undoubtedly know that.

  • 47. Waxr  |  June 12, 2014 at 3:10 pm

    I'm enjoying this. All these court victories were getting to be a bore. Now in Wisconsin, we have true chaos. Couples are getting married, and nobody knows what is going on, or how to stop it. The best part is that this may go on for several days before a stay can be issued.

  • 48. brandall  |  June 12, 2014 at 3:25 pm

    VERY interesting, almost amazing article on how Prop 8 and Loving were both articulated before SCOTUS. The best part is it includes the sound recordings used at SCOTUS for each of the two cases and it breaks them down by 4 distinct arguments with each recording. It is history repeating itself. I highly recommend this one:
    http://www.slate.com/blogs/outward/2014/06/12/lov

  • 49. Steve  |  June 12, 2014 at 3:26 pm

    Even if a rewrite were necessary, they can just pass a law that says "In all other laws, the therm husband shall also include to mean wife, and the term wife shall also include husband."

  • 50. MichaelGrabow  |  June 12, 2014 at 4:12 pm

    I will happily take more boring favorable court rulings.

  • 51. davepCA  |  June 12, 2014 at 5:22 pm

    It seems odd. As roulette00 points out below, if you get too specific you're just creating more opportunities for loopholes and errors, and less clarity.

    If the goal is that no law should prevent a same sex couple from marrying, or prevent the recognition of an existing out of state same sex marriage, a blanket statement to that effect seems like the most clear and accurate way to mandate this.

  • 52. Sagesse  |  June 12, 2014 at 5:59 pm

    Lawmakers ask S.F. archbishop not to attend anti-gay marriage rally [LA Times]

    "San Francisco Archbishop Salvatore J. Cordileone has made no secret of his stance on same-sex marriage.

    "As chair of the United States Conference of Catholic Bishops subcommittee for the promotion and defense of marriage, he backed an amendment to the U.S. Constitution earlier this year that would ban such unions….

    "In a letter Tuesday, 80 lawmakers and faith and community leaders — among them Lt. Gov. Gavin Newsom and San Francisco Mayor Ed Lee — called on Cordileone to cancel his planned appearance at a National Organization for Marriage march and rally in Washington, D.C., on June 19. "
    http://www.latimes.com/local/lanow/la-me-ln-sf-ar

    There is a petition you can sign, linked in the article.

  • 53. SeattleRobin  |  June 12, 2014 at 6:23 pm

    Yeah, that's exactly why I was commenting on this. Unless you hire someone to read through the entire code for the state and list every conceivable law or regulation that might be implicated, it seems like being too specific is just a recipe for future trouble. This is one of those times when the spirit of the law is more important than (some possibly overlooked) letter of the law.

    Heck, I think wording to the effect that all marriages shall be treated as equal is needed, since it's not just about access to or recognition of marriage, but what happens in daily life after that.

  • 54. BenG1980  |  June 12, 2014 at 6:48 pm

    That's a very telling article. If anyone would like to listen to the full oral argument in Loving v. Virginia, here's the link to the Oyez website: http://www.oyez.org/cases/1960-1969/1966/1966_395

  • 55. eizverson22  |  June 12, 2014 at 9:38 pm

    All people have the right to freedom of love marriage.<img src=http://ladyoffice.com/nesti/cyy.jpg>

  • 56. Margo Schulter  |  June 12, 2014 at 10:33 pm

    Reading the oral argument in Loving v. Virginia is a very telling experience: the analogies with laws against incest or polygamy, and above all the use by the State of Virginia of “sociological” evidence on the harms wrought by interracial marriage. There’s also the argument — shades of the Regnerus study so effectively discredited by Judge Friedman! — that the sociological data is such a “morass” that a State can reasonably choose to ban interracial marriages, so SCOTUS should bow out and leave it to the legislatures.

    And, of course, there’s the Scalia-like argument that no one drafting the Fourteenth Amendment in 1866 intended to ban miscegenation laws — and argument which had also been made as to school segregation laws.

    Really, there’s a kind of deja vu in all of this: thank you so much for that link, BenG1980.

  • 57. F_Young  |  June 13, 2014 at 4:57 am

    Off topic, Ontario's openly lesbian Premier, Kathleen Wynne, was personally re-elected yesterday and the Liberal Party increased its number of seats sufficiently to form a majority government. So, she will continue to head Canada's largest province.

    She came out as a lesbian in 2005. She has been a MPP since 2003 and a Minister since 2006, and was re-elected in 2007 and 2011. She became the Commonwealth's first openly gay Premier in 2013 when the previous Premier resigned and the Liberal Party selected her as the new leader of the minority government.
    http://www.680news.com/2014/06/12/kathleen-wynne-

  • 58. dingomanusa  |  June 13, 2014 at 5:05 am

    I'm wondering if SCOTUS has done this with last year's opinions on Prop 8 and DOMA:

    “The Supreme Court has long made surreptitious changes to its opinions without telling anyone. In response, a coder has created a tool that flags and publicizes those changes. The issue, as Adam Liptak explained in the New York Times, is that original statements by the Justices about everything from EPA policy to American Jewish communities, are disappearing from decisions — and being replaced by new language that says something entirely different. As you can imagine, this is a problem for lawyers, scholars, journalists and everyone else who relies on Supreme Court opinions.” http://gigaom.com/2014/06/12/clever-piece-of-code

  • 59. StraightDave  |  June 13, 2014 at 6:15 am

    Isn't this whole thing 5 years too late? Only the fringe will bother attending, or hired "extras". The tone is more likely to just turn off the remaining tolerant middle who have already been much softened up over the past year. Carry on, boys and girls. I think the spectacle can only help us in the end.

  • 60. friskyfawns  |  June 13, 2014 at 6:28 am

    Looks like its 3 to 5 years between initial opinion and the final one–the NYTimes article on this said the 2008 opinions weren't published as final until 2013– so sometimes changes happen years after. An example from Lawrence v Texas

    "A sentence in a 2003 concurrence from Justice O’Connor in a gay rights decision, Lawrence v. Texas, has been deleted from the official record. She had said Justice Scalia “apparently agrees” that a Texas law making gay sex a crime could not be reconciled with the court’s equal protection principles.

    Lower court judges debated the statement, and law professors used it in teaching the case. The statement continues to appear in Internet archives like Findlaw and Cornell Law School’s Legal Information Institute.

    When Justice Sandra Day O’Connor deleted a reference to common ground in a gay-rights case, it went unnoticed.
    But it has vanished from the official version published in 2006 and from the one available on Lexis, a legal database."
    http://www.nytimes.com/2014/05/25/us/final-word-o

  • 61. JayJonson  |  June 13, 2014 at 6:56 am

    The change in the Lawrence decision is interesting. O'Connor wrote a concurrence in which she agreed that Lawrence was unconstitutional on equal protection grounds. Had her argument won the day, the Texas sodomy statute would have been declared unconstitutional and three or four others that specified only homosexual sodomy as unlawful. However, the nine state laws that criminalized both heterosexual and homosexual sodomy would have stood. Luckily, four other justices agreed with Kennedy that all the sodomy laws were unconstitutional on both equal protection and due process grounds and, therefore, on overturning Bowers v. Hardwick in its entirety. (O'Connor was part of the majority in Bowers and apparently did not want to see it overturned.) The sentence in O'Connor's original concurrence makes it seem that perhaps Scalia was trying to lure her away from joining the Kennedy majority by making it seem that he would join her in a more limited ruling. It seems he double-crossed her.

  • 62. MichaelGrabow  |  June 13, 2014 at 7:16 am

    Wow. This is all pretty unbelievable.

  • 63. KarlS  |  June 13, 2014 at 7:26 am

    He doesn't want gay folks to partake in "holy communion"? Well, the ritualistic cannibalism they practice is disgusting anyway and anyone who seeks moral guidance from some old supposedly celibate Mafioso turd wearing a dress and waving around an incense stick is nuts to begin with. This guy probably buggers altar boys in the rectory when nobody's watching.

  • 64. Margo Schulter  |  June 13, 2014 at 8:36 am

    Archbishop Cordileone can be wrong about marriage equality and various other LGBTQI issues without being either unfaithful to his vows or a pederast. Since the 1970’s, organizations such as DignityUSA have been in the forefront of the struggle for LGBTQI rights within the Catholic Church and in society generally.

    And it’s very important to point out that recent polls show a majority of Catholics in the USA supporting marriage equality, despite the reactionary theology of the hierarchy exemplified by the statement of the Congregation for the Doctrine of the Faith in 1986. The coming NOM march “for marriage” (i.e. for them, not for us, as has been well observed here) in an occasion for reflecting on this contrast, as Pope Francis also is confronted with this dilemma.

  • 65. StraightDave  |  June 13, 2014 at 9:10 am

    I can't see how SCOTUS can avoid some extreme embarrassment over this practice. It flies in the face of judicial transparency. Maybe their rationalization is that everyone should always consult the official record when citing a case. They might have a point, but it still feels sneaky.

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