14-3246 - Plaintiffs' Opposition to Stay

[Document: 01019336947] Plaintiff-Appellees' Opposition to stay of preliminary Injunction
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  UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT Kail Marie, et al ., Plaintiffs/Appellees, v. Robert Moser, M.D., et al . Defendants/Appellants. Case No. 14-3246 APPELLEES’ RESPONSE IN OPPOSITION TO APPELLANTS’ EMERGENCY MOTION FOR STAY OF PRELIMINARY INJUNCTION INTRODUCTION Defendants have not come close to satisfying the requirements for a stay  pending appeal. A stay pending appeal “is an intrusion into the ordinary processes of administration and judicial review” and “[t]he parties and the public, while entitled to both careful review and a meaningful decision, are also generally entitled to the prompt execution of orders.”  Nken v. Holder  , 556 U.S. 418, 427 (2009) (internal quotation marks and citations omitted). Accordingly, a stay  pending appeal “is an extraordinary remedy that should not be granted in the ordinary case, much less awarded as of right.”  Id.  at 437 (Kennedy, J., concurring). The four factors considered by this Court when determining whether to grant a stay are: Appellate Case: 14-3246 Document: 01019336947 Date Filed: 11/07/2014 Page: 1  2 “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether the issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” KSTU, LLC v. Aereo, Inc. , No. 14-4020, 2014 WL 1687749, at *1 (10th Cir. Mar. 7, 2014 (quoting  Nken , 556 U.S. at 434). “The first two factors ‘are the most critical.’”  Id.  (quoting  Nken , 556 U.S. at 434). “When considering success on the merits and irreparable harm, courts cannot dispense with the required showing of one simply because there is a strong likelihood of the other.”  Nken , 556 U.S. at 438 (Kennedy, J., concurring). “The party requesting a stay bears the burden of showing that the circumstances justify an exercise of that discretion.”  Id.  at 433-34. I.   Defendants Cannot Show They Are Likely to Prevail on the Merits. Kansas’s marriage bans are virtually identical to the marriage bans struck down in Kitchen v. Herbert  , 755 F.3d 1193, 1199 (10th Cir.), cert. denied  , 83 USLW 3102 (2014) and  Bishop v. Smith , 760 F.3d 1070 (10th Cir.), cert denied, 83 USLW 3102 (2014). In those cases, this Court held that “[a] state may not deny the issuance of a marriage license to two persons, or refuse to recognize their marriage,  based solely upon the sex of the persons in the marriage union.” Kitchen , 755 F.3d at 1199; accord Bishop , 760 F.3d at 1079-80. In light of that controlling Appellate Case: 14-3246 Document: 01019336947 Date Filed: 11/07/2014 Page: 2  3  precedent, Defendants have zero chance of prevailing on the merits before this Court. Defendants also have no likelihood of success on the merits on their arguments that they are improper defendants or that the claims against them are somehow barred by judicial immunity. Court clerks in Kansas and Oklahoma have virtually identical responsibilities with respect to issuing marriage licenses, and this Court already held in  Bishop  that district court clerks are proper defendants in an  Ex  parte Young  lawsuit seeking the issuance of marriage licenses.  Bishop , 760 F.3d at 1079 n.3. And, as Judge Crabtree noted, numerous courts have already held that state officials with the same job duties as Secretary Moses are proper defendants for claims seeking marriage licenses. 1  The Defendants’ remaining arguments are based on a hodgepodge of irrelevant jurisprudential doctrines that they have thrown at the wall to see which ones will stick. The district court thoroughly and patiently explained why each of those arguments is meritless, and Defendants have offered no meaningful response to the court’s careful analysis. 1  Defendants incorrectly assert that Plaintiffs have “conceded that the licenses required by the preliminary injunction would not be recognized, absent further  judicial action.” (Stay Mot. 6.) Not so. As Plaintiffs stated in their preliminary injunction papers, Plaintiffs expect that any Kansas official in privity with Defendants – who are sued in their official capacities – would obey a federal court ruling that Kansas’s marriage bans are unconstitutional. Appellate Case: 14-3246 Document: 01019336947 Date Filed: 11/07/2014 Page: 3  4 II.   Defendants Cannot Show They Will Suffer Irreparable Harm, That the Balance of Hardships Tips in Their Favor, or That a Stay Would Be in the Public Interest. In cases involving the deprivation of constitutional rights, establishing – or failing to establish – likelihood of success on the merits usually resolves the other stay and preliminary injunction factors as well. See Hobby Lobby Stores, Inc v. Sebelius , 723 F.3d 1114, 1145 (10th Cir. 2013) (en banc) (plurality). That is  because, the denial of constitutional rights always causes irreparable harm, the government suffers no injury when it is enjoined from enforcing an unconstitutional law, and it is always in the public interest to vindicate constitutional rights.  Id. ; accord Awad v. Ziriax , 670 F.3d 1111, 1131-32 (10th Cir. 2012). Defendants assert they will be irreparably harmed by complying with the federal injunction because it conflicts with Kansas law and Kansas state court orders based on state law. But that is true whenever a state law is declared unconstitutional. “While the public has an interest in the will of the voters being carried out . . . the public has a more profound and long-term interest in upholding an individual’s constitutional rights.”  Awad  , 670 F.3d at 1132. Finally, the Supreme Court itself has indicated that a stay pending appeal is inappropriate in these circumstances in Parnell v. Hamby , 14A413, 2014 WL 5311581 (U.S. Oct. 17, 2014). Just as the district court followed binding Tenth Appellate Case: 14-3246 Document: 01019336947 Date Filed: 11/07/2014 Page: 4


Jul 23, 2017
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