SUPERIOR COURT
OF
NEW
JERSEYAPPELLATE
DIVISIONAPPLICATION FOR
PERMISSION
TO FILE EMERGENT
MOTION
TO:
Hon
Carmen
Alvarez
DATE
0/10/2013
FROM:
Jean
Reilly
Deputy
Attorney
General
ELEPHONE
609)
33-1309
ext.
The
following
questions are
to
be
answered by
the
attorney or pro
se litigant requesting
permission
to
file
an
emergent
motion. Thisquestionnaire
is
designed
to
assist
the court's
determination respecting
its
further
instructions.
COMPLETION
O
THIS
APPLICATION
DOES
NOT IN
ANY SENSE CONSTITUTE THE FILING OF
AN
APPEAL OR MOTION.
There is no
right
to
be
heard
orally
on an
emergency
application. Furtherinstructions
will come from
the
court.Except
by permission
of the court, the only
documents
you
may
submit
with
this
application are: a
copy of
the decision
being
appealed, any
opinion or statement
of reasons
given by
the trial
judge
or
agency, and any
order
or decision
denying
or granting
a
stay. A copy
of this
application
must
be
served simultaneously on
both your
adversaryand
the trial
judge or agency. No answer shall
be
filed withoutpermission
of the court.
If
the court
grants
you
permission
to
file
an
emergent motion and
you
have
not
previously filed
a
motion
for
leave
to
appeal or
notice
of
appeal
(whichever
is
applicable),
you
must
simultaneously file
one.
You
must
also pay the applicable filing fee
( 30
for
a
motion
for
leave
to
appeal;
200 for
a
notice
of
appeal),
direct the
charging
of
an
accountwith the Superior
Court,
or file
a
motion
to
proceed as an indigent andsupporting
certification.
CASE NAME
arden
State
Equality
et
al.
v.
Paula
Dow,
t
al.
1.
What is the
vicinage
of the
matter?
(i.e., what
judge,
in
whatcounty
or
what agency
entered
the decision?)
The
Hon.
Mary
C.
Jacobson,
.J.S.C.
Mercer County,
Law
ivision
2.
a)
What is
your
name,
address,
including any e-mail
address,phone number and
fax
number?
Jean
P.
eilly
DAG;
ivision
of
Law
Hughes
ustice
Complex; 5
Market
treet;
Trenton,
NJ
8625-0093
jean.reilly@dol.lps.state.nj.us;
609-633-1309 ph); 609-341-5030 fax)
b) Whom do
you
represent?
All
Defendants
(Dow
t
al.
3. List the
names
of all
other parties and name, address, includingany known
e-mail
address, phone number and fax number
of
attorneyfor
each.
Lawrence
S. Lustberg,
sq.;
GIBBONS
.C.;
1
Gateway
Center;
Newark,
NJ
7102-5310;
llustberg
@gibbonslaw.com;
973-596-4500 ph);
973-639-8285 fax);
Hayley
.
Gorenberg,
sq.;
LAMBDA
LEGAL;
20 Wall
treet
19th
floor;
NY,
NY
0005; hgorenberg@lambdalegal.org;
212-809-8585 ph);Attorneys
or
all
Plaintiffs
Garden
State
Equality
et
al.
Revised
02/2009,
CN
0498
-English
page
1
of
4
4. Do
you
have a
written order
or
judgment entered by
the
judge or
a
written
agency
decision? You
must
attach a
copy
of
the order,judgment
or
decision.
Yes
attached).
5.
Are
there
any
claims
against any party below, either in this or consolidated
action,
which
have
not
been disposed
of,
including
counterclaims, cross-claims,
third
-party claims
and applications
for counsel fees? If so, the
decision
is not final,
but rather
interlocutory,
and leave
to
appeal must
be sought.
No.
6.
Have you
filed for
a
stay before
the trial court
or agency?
Yes.
If
so, do
you
have
a
court
order or agency decision denying orgranting same? Attach a
copy
of
any such
order or
decision.Before you seek a stay from
the
Appellate Division, you
must firstapply
to
the trial court or agency for
a
stay
and obtain a signed
order
or
decision ruling
on
your
stay
application.
Court
Rules
2:9-5
and
2:9-7)
Yes
attached).
7. If
the
order or agency decision
is
interlocutory, are
you
filing
motion
for
leave
to
appeal?
n/a
8.
If
interlocutory,
are
you
filing
a
motion
to
stay the trialcourt or
agency proceeding?
n/a
9.
If
the order,
judgment or agency decision
is final,
have you
fileda notice
of
appeal?
Yes
copy
ttached
10.
What is the essence
of the
order,
judgment or agency decision?
The
Order
eclares
the
State
statutory structure
reserving
the
name
of
arriage
for
heterosexual
couples
unconstitutional
and mandates
hat
the
State
permit
same
-sex
couples
to
marry
beginning Oct.
21,
013.
11.
a)
Has any aspect of this
matter been presented
to
orconsidered by another judge or part
of
the AppellateDivision by emergent application
or
prior appealproceedings? If
so,
which judge
or
part?
No.
Revised
02/2009,
CN
0498
-English
page
2
f
4
b)
Have
the
merits briefs been filed in
this
matter? If
so,
has
the
matter been calendared
to
a part?
No.
12.
What is the
nature of the emergency?
The
Order below
permits
same
-sex
couples
to
marry
n less
than
eeks.
n
Lewis
.
Harris,
the
Supreme
Court
ecognized
that
the
issue
of
how
o
define
marriage
has
ar-reaching
social
implications,
and
alteration
of
he
traditional definition
of
arriage
would
render
a
profound
change
n the
public
consciousness
of
ocial
institution
of
ncient
origin.
13.
What is the
irreparable harm, and when
do
you
expect this
harm
to
occur?
Irreparable
harm
esults
any
time
a
lower
ourt
declares unconstitutional
astatutory
structure that
democratically
-elected
representatives
duly
enacted.
This
s
especially
true
where,
s here, the
Legislature
acted
in
accord
with
an
option the
Lewis
Court has
lready
determined
is
presumptively
constitutional,
and
the
legislation
addresses
an
issue
of
reat social
import.
The
harm
s
immediate.
14.
What
relief
do
you
seek?
A
tay
pending
resolution
on
appeal
of
he
merits
of
he
underlying
constitutional issues.
15.
What
citation
is most
important for
the
proposition
that
you
are
likely to
prevail on appeal?
United
States
v.
Windsor,
570
U.S.
,
133
S.
t.
2675 2013)
language,
ationale,
and
holding
mandating
hat
federal
government
fford
civil
union couples
federal
marriage
benefits
and
defer
to
Statein
matters
of
omestic
elations);
Lewis
. Harris,
188
.J.
415
2006)
civil
unions
permissible).
16. Have
you
served simultaneously
a
copy of this
application on
both
your adversary and
the trial
judge
or
agency?
Yes.
17. Have any transcripts been ordered (particularly of the trialjudge s challenged ruling)?
Yes.
If
so,
when
will the transcript
be
available?
It
is
attached.
18.
Please
give
a
brief summary
of
the
facts
of
your
case.
In
Lewis
. Harris,
the
Court
fforded the
Legislature
two
qually
constitutional
options:
amend
he
marriage
statutes to
include
same
-sex
couples
or,
preserving the
traditional
definition
of
arriage,
reate
a
parallel statutory structure that
would
provide
same
-sex
couples
with
all
of
he
same
ights
and
benefits
that
married couples enjoy
under
he
State's
laws.
Id. at
423. Because
ltering
the
meaning
of
arriage
would
render
a
profound
change
n
the public
consciousness
of a
ocial
institution
of
ncient
origin
andhave
far-reaching
social implications,
the
Court
id
not presume
hat
a
difference
in
name
lone
is
of
constitutional
magnitude.
Id.
at
456, 62.
In
response
to
Lewis,
he Legislature
adopted
the
Civil
Union
Act,
.J.S.A.
37:1-28
to
-36,
which
provides
that
[c]ivil
union
couples
shall
have
ll
of
he
same
benefits,
protections
and
esponsibilities
under
law
..
as
are
granted
to
spouses
in
a
marriage. N.J.S.A.
37:1-31.
Subsequently,
he
United
States
Supreme
Court
truck
own
he
federal
Defense
of
arriageAct,
olding
that
the
federal
government
cannot
reat
unequally
those
whom
he
states treat
equally.
Windsor,
570
U.S.
(2013).
Plaintiffs
then
filed
a
summary
udgment
motion
claiming,
on
equal
protection
grounds,
hat
same
-sex
couples
have
a
ight
to
marry.
The
rial
court granted the
motion.
Revised 02/2009,
CN
0498
-English
page
3
f
4
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