UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Transcription

1 Case: Document: 31 Filed: 04/11/2014 Page: 1 APRIL DEBOER, et al., Plaintiffs-Appellees, UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT -vs- 6 Cir # ED Mi #12-civ RICHARD SNYDER, et al., Defendants-Appellants. PLAINTIFFS-APPELLEES RESPONSE TO STATE DEFENDANTS-APPELLANTS PETITION FOR INITIAL HEARING EN BANC Now come April DeBoer and Jayne Rowse and eir minor children, Plaintiffs- Appellees herein, by and rough eir undersigned attorneys, and in response to e State Defendants-Appellants petition for initial hearing en banc in is matter state as follows: 1. For e reasons articulated in eir motion to expedite e appeal, Plaintiffs- Appellees agree wi e State Defendants-Appellants assertion at e appeal in is matter should be expedited. Petition, p 4 [Document #15]. Each day e minor Plaintiffs-Appellees are left wi only one legally recognized parent is a day ey and all oer similarly situated children are left more vulnerable and deprived of e security to which ey are constitutionally entitled. Notably, e loss of a constitutional right even for minimal periods of time, unquestionably constitutes irreparable injury.

2 Case: Document: 31 Filed: 04/11/2014 Page: 2 Connection Distributing Co. v. Reno, 154 F.3d 281, 288 (6 Cir 1998), citing Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality opinion); Newsom v. Harris, 888 F. 2 nd 371, 378 (6 Cir 1989) (same). 2. Plaintiffs-Appellees disagree, however, wi e State Defendants-Appellants assertion at hearing en banc will result in more expeditious consideration. To e contrary, hearing before a 3-judge pane raer an hearing en banc will be most likely to expedite is Court s consideration of e case. 3. The State Defendants-Appellants oer reasons in support of hearing en banc are also seriously flawed: a. While e case presents issues of great public and jurisprudential significance, e State Defendants-Appellants now posture e central issue as one at does not exist. They assert at e case presents e question wheer one of our most fundamental rights e right to vote matters. Petition, p 5. The State Defendants-Appellants have not presented is desperate argument before; ey cite no law whatever to support e assertion at a judicial finding at a state constitutional provision is unconstitutional implicates e right to vote; and well-settled law makes clear at e argument is utterly wiout merit, since fundamental rights may not be submitted to vote; ey depend on e outcome of no elections. West Virginia St. Bd. of Educ. 2

3 Case: Document: 31 Filed: 04/11/2014 Page: 3 v. Barnette, 319 U.S. 624, 638 (1943). See also City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 448 (1985) ( e electorate as a whole, wheer by referendum or oerwise, could not order city action violative of e Equal Protection Clause ); b. En banc consideration of is case is not necessary to secure or maintain uniformity of e court s decisions. F. R. App. P. 35(a)(1). All of e marriage and marriage-recognition cases decided since e Supreme Court s decision in United States v. Windsor, 133 S. Ct (2013), have found state bans on same-sex marriage and/or state recognition of marriages lawfully entered into in anoer state to be unconstitutional. There is no split of auority whatever, eier among districts wiin is Circuit or among e various districts in different circuits; c. Similar appeals pending in e Four, Fif and Ten Circuits are 1 being heard by ree-judge panels. Bostic v. Rainey, 4 Cir. # ; 2 3 DeLeon v. Perry, 5 Cir. # ; Kitchen v. Herbert, 10 Cir # ; 1 District court decision reported at F.Supp.2d (E.D. Va. 2014) [2014 WL ]. 2 District court decision reported at F.Supp.2d (W.D. Tex. 2014) [2014 WL ]. 3 District court decision reported at 961 F.Supp.2d 1181 (D. Utah 2013). 3

4 Case: Document: 31 Filed: 04/11/2014 Page: 4 4 Bishop v. Smi, 10 Cir # and # ; d. Bo Windsor, supra, and Hollingswor v. Perry, 133 S.Ct (2013), were decided by ree-judge panels en route to e Supreme Court. Cf. nd Windsor v. United States, 699 F.3d 169 (2 Cir. 2012); Perry v. Brown, 671 F.3d 1052 (9 Cir. 2012); and e. A ree-judge panel will be able to give e case e full and prompt consideration to which it is entitled. WHEREFORE, Plaintiffs-Appellees request at is Court banc. (1) grant eir previously filed motion to expedite e appeal, and (2) deny e State Defendants-Appellants petition for initial hearing en Respectfully submitted, s/carole M. Stanyar s/ Kenne M. Mogill CAROLE M. STANYAR P34830 Kenne M. Mogill P N. Main Street, Suite 300 MOGILL, POSNER & COHEN Ann Arbor, MI nd 27 E. Flint St., 2 Floor (313) Lake Orion MI cstanyar@wowway.com (248) kmogill@bignet.net s/dana M. Nessel DANA M. NESSEL P District court decision reported sub nom. Bishop v. U. S. ex rel. Holder, 962 F.Supp.2d 1252 (N.D. Okla. 2014). 4

5 Case: Document: 31 Filed: 04/11/2014 Page: Griswold, Suite 4300 Detroit MI (313) dananessel@hotmail.com Attorneys for Plaintiffs-Appellees s/robert A. Sedler ROBERT A. SEDLER P31003 Wayne State University Law School 471 W. Palmer Street Detroit, MI (313) rsedler@wayne.edu Of Counsel for Plaintiffs-Appellees Dated: April 11,

6 Case: Document: 31 Filed: 04/11/2014 Page: 6 CERTIFICATE OF SERVICE I certify at on is date I served e foregoing document on all counsel of record rough e CM/ECF system. Dated: April 11, 2014 s/ Kenne M. Mogill Kenne M. Mogill P17865 MOGILL, POSNER & COHEN nd 27 E. Flint St., 2 Floor Lake Orion MI (248) kmogill@bignet.net