Plaintiffs in Nevada same-sex marriage case ask Ninth Circuit for hearing
May 23, 2014
LGBT Legal Cases Marriage equality Marriage Equality Trials
Since the Ninth Circuit said back in early February of this year that they’d schedule arguments in the case “as soon as possible”, no other order has been issued.
The plaintiffs have now filed a request, supported by the Coalition, to hold arguments “no later than the week of September 8,” which is the week that a challenge to Idaho’s same-sex marriage ban is scheduled to be argued in the appeals court.
The challenge Nevada’s ban “warrants the swiftest possible review,” they write, because of “the daily irreparable harm inflicted on same-sex couples and their children” by the state’s refusal to allow same-sex couples to marry.
“More than one and a half years have passed since the docketing of this appeal, and more than three months have already passed since argument was ordered to be expedited and calendared “as soon as possible,” the filing notes.
It’s not clear why the Nevada case hasn’t been scheduled for arguments. The case was put on the calendar for a short time, but it was removed later without explanation. It has been assumed that there was no action in this case because the Ninth Circuit has called for its judges to vote on whether to rehear SmithKline Beecham v. Abbott Laboratories en banc – with a larger panel of Ninth Circuit judges. That precedent requires more scrutiny for sexual orientation discrimination claims in the Ninth Circuit, and although no party to the case wanted it reheard, a Ninth Circuit judge has called for a vote. If it were to be heard again, the three-judge panel’s decision would be wiped out, and the process would start over. This would effectively change the legal landscape for cases like the challenge to Nevada’s marriage ban.
But that doesn’t seem to be the reason arguments are stalled in the case: as noted above, the Ninth Circuit is hearing a challenge to Idaho’s similar ban in September. That case was only docketed in the Ninth Circuit weeks ago, though no decision has been formally announced on the vote to rehear the SmithKline case.
The filing suggests the case should be argued at least as early as Latta v. Otter, the Idaho challenge.
Thanks to Kathleen Perrin for these filings
For more information on Sevcik v. Sandoval from The Civil Rights Litigation Clearinghouse, click here.
47 Comments
1.
Lee | May 23, 2014 at 8:15 am
Can the judges stall their decision on whether or not to rehear the mithKline Beecham v. Abbott Laboratories en banc ?
2.
Scottie Thomaston | May 23, 2014 at 8:25 am
No, they just take a vote among the judges. Since it's been quite awhile, I'm assuming that it will be denied and someone is writing a dissent from denial. Otherwise it's hard to see why the announcement is taking so long.
3.
Walter | May 23, 2014 at 8:59 am
"Writing a dissent" probably is a good way to stall when one has no other options.
4.
Ragavendran | May 23, 2014 at 8:31 am
No, they can't. There is a provision for judges to ask for an extension of time to make up their mind, but assuming that hasn't happened, the voting period ended yesterday and the outcome should be released soon. Ninth Circuit rules provide that:
"The en banc coordinator will record the en banc votes and circulate the final tally to the court. Orders rejecting or accepting cases for en banc consideration shall not specify the vote tally. Any judge eligible to vote may direct that his or her dissent from a failure to accept a case for en banc consideration be incorporated in the order."
http://cdn.ca9.uscourts.gov/datastore/uploads/rul…
5.
Pat | May 23, 2014 at 9:16 am
Oh… So all we know is that they voted by yesterday. Now they can still take their sweet time to communicate the result publicly.
6.
Ragavendran | May 23, 2014 at 8:20 am
About time too! Hear hear! The last straw for these Plaintiffs was that Latta, a brand new appeal has been expedited and ordered to be calendared during the week of September 8, but Sevcik which is a 1.5 year old appeal and which the court agreed to expedite, still hasn't been calendared yet.
7.
ebohlman | May 23, 2014 at 8:27 am
Although there was no official explanation issued for why oral arguments were removed from the calendar, the defendant/appellees had previously asked that they not be scheduled for that particular week because some of their counsel was involved in Kitchen (Utah) and oral arguments in the Tenth Circuit were also scheduled for that week (Kitchen was April 10, and the Ninth had scheduled Sevcik for April 9). Regardless of what you think of Monte Neil Stewart, expecting him to appear in oral arguments before two different appellate courts on two consecutive days wouldn't be fair to him.
8.
Ragavendran | May 23, 2014 at 8:42 am
Right, but as far as I know, he didn't actually appear before the Tenth Circuit in Kitchen, and even if he was consulting or was other involved as part of the legal team with that case, there were plenty of opportunities to schedule oral argument after that particular week. It has been three months since that schedule was erased.
9.
Eric | May 23, 2014 at 11:42 am
Why wouldn't it be fair? The rest of us have overlapping deadlines in our lines of work that we must meet and our work doesn't even involve the denial of fundamental rights.
10.
ABC | May 23, 2014 at 12:36 pm
As an unreliable anonymous tipster, let me say that it wasn't Mr. Stewart's conflict that led to rescheduling.
11.
Ragavendran | May 23, 2014 at 8:27 am
While it may be that SmithKline is not the actual cause of the delay in Sevcik, I wouldn't say that one can deduce that it isn't so due to an order by a merits panel of the Ninth Circuit that Latta should be calendared during the week of September 8. Because we will know for sure whether SmithKline will be reheard very soon, and so the briefing in Latta can proceed without any confusion. I was hoping to test the theory by seeing how fast after the decision to rehear or not in SmithKline is Sevcik going to be calendared, but this motion by the Plaintiffs makes it harder to test the theory. Regardless, I'm happy to see the two sides of the case unite in their chiding of the Ninth Circuit's unprofessional behavior in handling their case.
12.
Stefan | May 23, 2014 at 2:43 pm
I was just about to post roughly the same words. I have no doubt at all that SmithKline is what delayed Sevik. The bright side will be that since it appears an en banc ruling will not happen, Sevik will likely be resolved very quickly, since heightened scrutiny will now be applied throughout the 9th Circuit. I expect to save face, the court will schedule a special day to hear the case in June or July since briefing is already completed.
13.
Ragavendran | May 23, 2014 at 2:55 pm
Typo: I should have said motions panel and not merits panel in my comment above.
14.
Retired_Lawyer | May 23, 2014 at 8:27 am
Good for Lamda Legal. Everyone has been wondering what happened to Sevcik v. Sandoval.
15.
Tinman | May 23, 2014 at 8:30 am
This reminds me of what happened in Connecticut. The CT Supreme Court heard oral arguments on May 2007 and then the case disappeared into the ether. The court didn't issue its decision until almost a year and a half later, in October 2008. But at least in that case the court actually heard oral arguments, unlike here. https://en.wikipedia.org/wiki/Kerrigan_v._Commiss…
16.
Michael Grabow | May 23, 2014 at 8:58 am
Anyone hear this rumor??
http://joemygod.blogspot.com/2014/05/twitter-ligh…
17.
Kevin | May 23, 2014 at 9:20 am
That would be amazing.
18.
Pat | May 23, 2014 at 9:22 am
Wow indeed ("Twitter Lights Up With Claim That The Tenth Circuit Court Will Rule Today")
If true, that would be an exciting way to end an already amazing week!
19.
Rose | May 23, 2014 at 9:23 am
I guess if one reads on it's just a rumor……though if one does come, we will know shortly!!!
20.
Rose | May 23, 2014 at 9:28 am
A listing of what was released today…..no Kitchen or Bishop ruling!!
https://www.ca10.uscourts.gov/#more-news
21.
Larry | May 23, 2014 at 9:32 am
If you go to that link and click on opinions, "Today's opinions" are actually from Thursday. So they haven't announced opinions yet for today.
Still, this is all just speculation. 1 month seems quick for an appelate decision. That's about how long the 2nd Circuit DOMA decision took, but people thought that was lightning speed. Maybe we'll be pleasantly surprised.
22.
Kevin | May 23, 2014 at 9:29 am
Here is the source of the rumor – the Diane Rehm show.
http://thedianerehmshow.org/shows/2014-05-23/frid…
At 14:40
23.
Scottie Thomaston | May 23, 2014 at 9:36 am
The rumor is just a rumor. Several people have confirmed that it isn't going to happen.
https://twitter.com/NinaTotenberg/status/46987328…
24.
Barf | May 24, 2014 at 10:30 am
Just so everyone knows Scottie is a loose bottom
25.
Scottie Thomaston | May 23, 2014 at 9:37 am
I've spoken to a few people who have sources who would know, and there's nothing to this, unfortunately. Really weird that it would show up on NPR.
26.
Joe | May 23, 2014 at 10:17 am
I can't believe people are still responding to that troll . Guess people just can't resist.
27.
Michael Grabow | May 23, 2014 at 10:32 am
+100
28.
Eric | May 23, 2014 at 11:45 am
Sorry, I don't abide those that bear false witness.
29.
Bruno71 | May 23, 2014 at 11:57 am
I deleted my previous comment to him/her/it and won't be making any more, since it's getting people around here so up in arms to see her/him/it engaged. But I'm pretty sure they'll be saying "don't feed the troll" in this case til their faces turn blue, because s/he's obviously sticking around, and there's always someone that's gonna want to respond to the fallacies of her/him/it.
30.
Eric | May 23, 2014 at 12:02 pm
There's a difference between responding to a post containing nothing but animus, and a post trying to use apologetics as legal reasoning.
31.
Bruno71 | May 23, 2014 at 12:09 pm
I agree, but do keep in mind that that poster consistently uses scare quotes around the word marriage when it comes to same-sex marriages, and has claimed that homosexuals are mentally ill. Perhaps s/he doesn't show their animus in every post, but it's there bubbling under the surface of each and every one of them.
Oh, also, look at her/his/its avatar.
32.
Eric | May 23, 2014 at 12:12 pm
Well, I can't comment on that, I routinely use "Christian" or True Christian™ and refer to fundamentalists as mentally ill. 🙂
33.
Christian | May 23, 2014 at 12:17 pm
If nothing else I'd agree with you that there is something *fundamentally* wrong with fundamentalists mentally :p
And further many people do make a profit off of "Christianity" so 'Christian tm' would be an accurate way to describe the fundie war machine.
34.
Eric | May 23, 2014 at 1:21 pm
I prefer the term Christian Industrial Complex.
35.
Lynn E | May 23, 2014 at 12:32 pm
Talking points rarely make well reasoned arguments. And those who rely on them will not see the light no matter the number of negative votes or logical replies. The only thing worse than "preaching to the choir" is "arguing with a wall."
36.
CowboyPhD. | May 23, 2014 at 12:49 pm
I am on "the list" of those that will not respond to the troll.
37.
Quest | May 23, 2014 at 12:54 pm
Yet people continue to give their attention to the Christian hick from South Cackalacka, like you are right now. Your comment is a response to the inbred Christian hick.
38.
Shaun | May 23, 2014 at 11:08 am
The Lambda Legal folks are funny! In one part, they say, "Hey, 9th, you might be waiting to schedule this alongside Jackson [Hawaii case], but you shouldn't be. You told us these two cases were to be heard separately and Jackson just now got briefed." No malarkey, the argument in Jackson is now about whether the case is moot because Hawaii passed a law allowing marriage.
39.
Bruno71 | May 23, 2014 at 12:29 pm
Is it taking so long to moot the Hawaii case because of that crackpot GOP House guy's continuing frivolous lawsuits? I hadn't heard the status on those recently.
40.
Eric | May 23, 2014 at 11:44 am
When has she not done her job of upholding the Constitution?
41.
Mike in Baltimore | May 23, 2014 at 12:09 pm
She still is doing her job by upholding the US Constitution.
(See US Constitution, Article VI, Section 2. When Nevada was admitted to the union [as ALL states did, including the original 13], the state agreed to abide with EVERY provision of the US Constitution.)
42.
Rik | May 23, 2014 at 12:37 pm
Hey Mike,
Thanks for the reference. I love re-reading parts of the Constitution and affirming for myself that the wording could not be more crystal clear. We are in the right, and we will definitely prevail!
43.
Matt N | May 23, 2014 at 1:20 pm
Question I've been thinking about lately: Could those of us whose marriages were not recognized under State or Federal laws, which have since been found to be unconstitutional sue the federal and state governments for damages?
44.
Eric | May 23, 2014 at 4:17 pm
The government typically has sovereign immunity and you can't sue them for damages. There are exceptions, a takings is one example. The government can also waive immunity in certain cases.
What you will see in most of the federal marriage cases are what are referred to as 1983 claims, referring to:
42 U.S. Code § 1983 – Civil action for deprivation of rights
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.
The answer really depends on the kind of damages you are talking about.
45. Equality On TrialNevada m&hellip | May 23, 2014 at 5:26 pm
[…] night, the plaintiffs filed a request with the appeals court to schedule their case no later than a separate challenge to Idaho’s […]
46.
Deeelaaach | May 24, 2014 at 3:46 pm
We may have had this discussion already, so I apologize if the near perpetual fog in my brain has caused me to forget:
Why does CPM even have standing at the 9th? Has this been addressed at all at the 9th, or was standing granted to them by the voters? Or do they have standing only because the 9th thinks they should (Arizona English case, Prop 8)?
My apologies for being less precise than I usually try to be.
47. livres gratuit&hellip | May 25, 2014 at 6:31 pm
livres gratuit
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