Case 4:05-cv-00201-HLM Document 60-2 Filed 11/10/2005 Page 1 of 8 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ROME DIVISION COMMON CAUSE / GEORGIA, et al., Plaintiffs, CIVIL ACTION NO. v. 4:05-CV-201-HLM MS. EVON BILLUPS, Superintendent of Elections for the Board of Elections and Voter Registration for Floyd County and the City of Rome, Georgia, et al., Defendants, and STATE ELECTION BOARD, Defendant-Intervenor. BRIEF IN SUPPORT OF STATE DEFENDANTS MOTION TO STAY PROCEEDINGS PENDING RESOLUTION OF EXPEDITED APPEAL TO THE ELEVENTH CIRCUIT I. BACKGROUND On September 19, 2005, Plaintiffs filed their Complaint against a group of county election officials and Cathy Cox, in her individual and official capacities as Georgia s Secretary of State and Chair of the State Election Board. Plaintiffs sought the following relief in this Court: (1 a declaratory judgment that the photo
Case 4:05-cv-00201-HLM Document 60-2 Filed 11/10/2005 Page 2 of 8 identification ( photo ID requirement for in-person voting is unconstitutional; (2 preliminary and permanent injunctions to restrain Defendants from enforcing the photo ID requirement; and (3 reasonable attorneys fees and costs for bringing the action. On October 5, 2005, the State Election Board moved to intervene as a party defendant, which motion was granted by this Court that same day. On October 6, 2005, Plaintiffs filed their motion for preliminary injunction, brief, and supporting materials, with an additional declaration filed on October 12, 2005. On October 11, 2005, State Defendants filed their brief in opposition to the motion and supporting materials, with an amended declaration filed on October 13, 2005. A hearing was held on Plaintiffs motion for preliminary injunction on October 12, 2005. On October 18, 2005, this Court entered its order granting Plaintiffs motion for preliminary injunction and enjoining the enforcement of the 2005 amendment to O.C.G.A. 21-2-417 (Act No. 53, Section 59, which requires registered voters to present a photo ID in order to vote in person. The Court determined that Plaintiffs were not likely to succeed on the merits of their state constitutional claim as the Eleventh Amendment precludes this Court from considering that claim, and that there was insufficient evidence to determine whether Plaintiffs could succeed on either their Civil Rights Act or Voting Rights - 2 -
Case 4:05-cv-00201-HLM Document 60-2 Filed 11/10/2005 Page 3 of 8 Act claims. However, the Court determined that Plaintiffs were likely to succeed on the merits of their federal constitutional claims. On October 19, 2005, State Defendants moved to stay this Court s preliminary injunction pending appeal to this Court. On October 20, 2005, the Court denied the motion for a stay. On October 21, 2005, State Defendants filed a Notice of Appeal of the District Court s October 18, 2005 order granting a preliminary injunction. The Eleventh Circuit denied State Defendants motion for a stay of this Court s October 18, 2005 Order, but granted a motion to expedite the appeal and scheduled expedited briefing and oral argument. II. ARGUMENT AND CITATION OF AUTHORITY A district court s power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants. Landis v. North Am. Co., 299 U.S. 248, 254-55 (1936; see also Clinton v. Jones, 520 U.S. 681, 706 (1997 (discussing the district court s broad discretion to stay proceedings as an incident to its power to control its own docket. A variety of circumstances may justify staying all proceedings in the district court, provided that the stay is not immoderate in time and scope. Trujillo v. Conover & Co. Comms., Inc., 221 F.3d 1262, 1264 (11th Cir. 2000; see, e.g., Blinco v. Green - 3 -
Case 4:05-cv-00201-HLM Document 60-2 Filed 11/10/2005 Page 4 of 8 Tree Servicing LLC, 366 F.3d 1249, 1252-53 (11th Cir. 2004 (granting a motion to stay litigation in the district court pending an appeal from the denial of a motion to compel arbitration; Lisa, S.A. v. Mayorga, 232 F. Supp. 2d 1325 (S.D. Fla. 2002 (granting a motion to stay proceedings on judicial economy and abstention grounds pending resolution of a related case in Florida state court, vacated, 2005 U.S. App. LEXIS 19545 (11th Cir. Sept. 8, 2005; Summit Med. Assoc. v. James, 998 F. Supp. 1339, 1342-43 (M.D. Ala. 1998 (concluding that a stay of all proceedings in the district court pending resolution of an interlocutory appeal based on Eleventh Amendment immunity is appropriate, unless the appeal is frivolous or brought solely for purposes of delay. Here, a stay of proceedings is warranted in the interests of judicial economy and efficiency. State Defendants are seeking a stay for only as long as the appeal of this Court s order granting preliminary injunction is pending. The Eleventh Circuit has granted State Defendants motion to expedite the appeal. State Defendants and Plaintiffs briefs are due on December 5, 2005 and January 9, 2006, respectively, and the parties have received notice that argument will be set the week of February 27, 2006. The Eleventh Circuit will likely issue its decision shortly thereafter. If the Eleventh Circuit affirms this Court s decision, it will greatly affect the efforts of both parties to bring the case to a conclusion in this - 4 -
Case 4:05-cv-00201-HLM Document 60-2 Filed 11/10/2005 Page 5 of 8 Court, and will undoubtedly impact State Defendants continuing defense of this case. If the Eleventh Circuit reverses this Court s injunction order, it would also alter the manner in which the case is litigated. Equally as important, if this Court does not stay these proceedings, the parties will be compelled to engage in lengthy and expensive discovery on Plaintiffs claims under Section 2 of the Voting Rights Act, 42 U.S.C. 1973(a, as well as their claims based upon the Civil Rights Act, 42 U.S.C. 1971(a(2(A and (a(2(b. Discovery on these fact-intensive issues most likely will be a waste of this Court s and the parties resources should the Eleventh Circuit affirm this Court s October 18, 2005 Order. Accordingly, a stay of all proceedings in this Court pending resolution of the expedited appeal is justified and properly limited in duration. A stay at this juncture will not unduly prolong the litigation, and Plaintiffs will not be prejudiced by the stay. The preliminary injunction prevents the State of Georgia from enforcing or applying the 2005 amendment to O.C.G.A. 21-2-417 relating to the presentation of photo IDs as a pre-condition to in-person voting. If the Eleventh Circuit affirms this Court s decision, the preliminary injunction will continue to be in effect. If the Eleventh Circuit reverses that decision, Plaintiffs will have a sufficient opportunity to litigate the remainder of their claims in this Court. - 5 -
Case 4:05-cv-00201-HLM Document 60-2 Filed 11/10/2005 Page 6 of 8 III. CONCLUSION For the reasons set forth above, State Defendants respectfully request that this Court stay all proceedings in this case, including the filing of responsive pleadings and discovery, until the Eleventh Circuit resolves State Defendants pending appeal of this Court s October 18, 2005 Order granting Plaintiffs motion for preliminary injunction. This 10th day of November, 2005. Respectfully submitted, THURBERT E. BAKER Attorney General Georgia Bar No. 033887 Department of Law DENNIS R. DUNN State of Georgia Deputy Attorney General 40 Capitol Square, S.W. Georgia Bar No. 234098 Atlanta, GA 30334-1300 Telephone: 404/656-7298 STEFAN E. RITTER Facsimile: 404/657-9932 Senior Assistant Attorney General dennis.dunn@law.state.ga.us Georgia Bar No. 606950 Troutman Sanders LLP /s/ Mark H. Cohen 5200 Bank of America Plaza MARK H. COHEN 600 Peachtree Street, N.E. Special Assistant Attorney General Atlanta, GA 30308 Georgia Bar No. 174567 Telephone: 404/885-3597 Facsimile: 404/962-6753 mark.cohen@troutmansanders.com (signatures continued on following page - 6 -
Case 4:05-cv-00201-HLM Document 60-2 Filed 11/10/2005 Page 7 of 8 Strickland Brockington Lewis LLP /s/ Anne W. Lewis Midtown Proscenium, Suite 2000 ANNE W. LEWIS 1170 Peachtree Street, N.E. Special Assistant Attorney General Atlanta, GA 30309 Georgia Bar No. 737490 Telephone: 678/347-2200 Facsimile: 678-347-2210 awl@sbllaw.net Local Rule 7.1D Certification By signature below, counsel certifies that the foregoing document was prepared in Times New Roman, 14-point font in compliance with Local Rule 5.1C. /s/ Mark H. Cohen MARK H. COHEN - 7 -
Case 4:05-cv-00201-HLM Document 60-2 Filed 11/10/2005 Page 8 of 8 CERTIFICATE OF SERVICE The undersigned hereby certifies that the within and foregoing Brief in Support of State Defendants Motion To Stay Proceedings Pending Resolution of Expedited Appeal to the Eleventh Circuit was electronically filed with the Clerk of Court using the CM/ECF system, which sends email notification to counsel of record for Plaintiffs. The undersigned also certifies that the foregoing document was delivered via email to the following non-cm/ecf participants: H. Boyd Pettit, III P. O. Box 1178 Cartersville, GA 30120 hboyd@innerx.net Robert H. Smalley, III McCamy, Phillips, Tuggle & Fordham LLP P. O. Box 1105 Dalton, GA 30722 rsmalley@mccamylaw.com M. Suzanne Hutchinson P. O. Box 580 Calhoun, GA 30703 shutchinson@gordoncounty.org Thomas H. Manning Smith, Shaw & Maddox LLP P. O. Box 29 Rome, GA 30161 tmanning@smithshaw.com This 10th day of November, 2005. L. Branch Connelly Cook & Connelly P. O. Box 370 Summerville, GA 30747 bconn6@wavegate.com Brad J. McFall Gammon, Anderson & McFall P. O. Box 292 Cedartown, GA 30125 bjm@gammonanderson.com Clifton M. Patty, Jr. P. O. Box 727 Ringgold, GA 30736 pattylaw@catt.com /s/ Mark H. Cohen MARK H. COHEN