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Appellate Case No. 14-2266




UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT


VIRGINIA WOLF, et al.,

Plaintiffs-Appellees,

v.

SCOTT WALKER, et al.

Defendants-Appellants.


ON APPEAL FROM THE UNITED STATES DISTRICT COURT,
WESTERN DISTRICT OF WISCONSIN
Case No. 14-CV-0064
The Honorable Barbara B. Crabb, Presiding


DEFENDANT-RESPONDENT JOSEPH CZARNEZKIS MEMORANDUM OF LAW
IN OPPOSITION TO JURISDICTION IN THIS COURT


Defendant Joseph Czarnezki was named by the plaintiffs in this action in his
official capacity as Milwaukee County Clerk. He submits this memorandum to
argue against jurisdiction in this Court. The district court has not yet issued
appealable orders capable of being stayed, certainly not orders that relate to Mr.
Czarnezki.
In its Opinion and Order of June 6, 2014, the district court granted the
Plaintiffs Motion for Summary Judgment and declared that provisions of Wisconsin
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law barring same-sex marriage are unconstitutional. However, the district court
did not issue any directives to Mr. Czarnezki or any other defendant. There is no
order to Mr. Czarnezki that the Court of Appeals can stay. The district court
expressly deferred until further proceedings any injunctive relief against the
Defendants, including Mr. Czarnezki.
Mr. Czarnezkis duties include issuing marriage licenses to qualified
applicants. See State Defendants-Appellants Emergency Motion for Temporary
Immediate Stay from the Relief Granted by the June 6, 2014 Opinion and Order of
the District Court (Motion) at 2-3, ECF No. 2. As the State Defendants note,
about 90 minutes after the district court issued its Opinion and Order, Mr.
Czarnezki began issuing marriage licenses to same-sex couples. Motion at 3 n.1.
His office continues to do so. More than 145 same-sex licenses were issued on June
6 and June 7, 2014, in Milwaukee County, and Milwaukee County Circuit Court
judges, court commissioners and other officiants performed marriages on the spot
for virtually all of those couples. See Motion at 7-8 and sources cited.
However, the district court did not order Mr. Czarnezki to issue those
licenses. There is no injunction or other enforceable order against him requiring
him to issue licenses or take any other steps. This is best illustrated by the fact
that two of the three county clerks named as defendants in the action decided to
issue licenses to same-sex couples following the Opinion and Order, but the third


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clerk named as a defendant, Wendy Christensen of Racine County, decided not to do
so. See Bargren Decl. Ex. A.
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As the State Defendants note, Wisconsins county clerks are deciding on a
county-by-county basis whether to issue marriage licenses. Motion at 4. They
are relying on their own interpretations of the Opinion and Order, and the statutes
and constitutional provisions, just as they must routinely rely upon their own
interpretations in myriad statutory matters as they go about their daily duties.
They are not subject to any final, appealable order, or they would be acting
uniformly, not on a county-by-county basis.
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An appeal in a civil case normally may not be taken until a final judgment
disposing of all claims against all parties is entered by the district court pursuant to
Fed. R. Civ. P. 58. See Cleaver v. Elias, 852 F.2d 266, 267 (7th Cir. 1988) (appeal
premature where no judgment drafted or entered). Federal appellate jurisdiction
generally depends on the existence of a decision by the District Court that ends the
litigation on the merits and leaves nothing for the court to do but execute the
judgment. Coopers & Lybrand v. Livesay, 437 U.S. 463, 467 (1978), as cited in
Orrego v. 833 W. Buena Joint Venture, 943 F.2d 730, 734 (7th Cir. 1991). In

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While named as a defendant, Mr. Czarnezkis interests are more closely aligned with the
Plaintiffs interests. He did not join the State Defendants in opposing the Plaintiffs Motion
for Summary Judgment, and has not joined the State Defendants in their Motion to
Dismiss or in their motions for stay or other oppositions now pending.

2
The press reported today: "The decisions are being made by individual county clerks,
suddenly left free by the courts to chart their own course on this issue." See Bargren Decl.
Ex. B p. 1.
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Orrego, similar to the proceedings in this case, a memorandum decision by the
district court did not create appellate jurisdiction where it specifically requested the
prevailing party to draft and submit a proposed order. Only the final order entered
two months later was subject to appeal. Id.
The district court has more to do here. Indeed, a stay at this point would be
premature. For one thing, because the district court has not issued a final order,
the Opinion and Order of June 6 is subject to modification, should the district court
wish to do so. See, e.g., Fed. R. Civ. P. 54(b) (any order or other decision, however
designated, that adjudicates fewer than all the claims or the rights and liabilities of
fewer than all the parties does not end the action as to any of the claims or parties
and may be revised at any time before the entry of a judgment adjudicating all the
claims and all the parties rights and liabilities) (emphasis added). Likewise, if the
Court of Appeals took jurisdiction now and stayed the declarations in the Opinion
and Order, the district court could still work on its injunction:
[A]n appeal taken from an interlocutory decision does not prevent the
district court from finishing its work and rendering a final decision.
This is so for appeals concerning preliminary injunctions.
Wisconsin Mut. Ins. Co. v. United States, 441 F.3d 502, 504 (7th Cir. 2006) (citing
Kusay v. United States, 62 F.3d 192, 194 (7th Cir. 1995); Chrysler Motors Corp. v.
Industrial Workers Union, 909 F.2d 248, 250 (7th Cir. 1990)). Nothing in 28
U.S.C.A. Section 1292(a), the interlocutory appeal statute, creates jurisdiction over

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a district courts declaration where the district court is still finishing its work.
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The findings of unconstitutionality in the district courts Opinion and Order
were a declaration, not a declaratory judgment. A declaratory judgment requires
someone to do something. See Comm. on Judiciary of U.S. House of
Representatives v. Miers, 542 F.3d 909, 910 (D.C. Cir. 2008) (declaratory judgment
required former White House counsel to appear and testify). The district courts
declaration in this action declared certain Wisconsin provisions unconstitutional,
but for now that leaves local officials such as Mr. Czarnezki free to act as they
believe appropriate. The district court has yet to enjoin anyone to do anything.
CONCLUSION
For the reasons stated herein, Mr. Czarnezki requests that the State
Defendant-Appellants Emergency Motion be denied.
Dated at Milwaukee, Wisconsin this 11
th
day of June, 2014.



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28 U.S.C.A. 1292(a) states:
(a) Except as provided in subsections (c) and (d) of this section, the courts of appeals shall
have jurisdiction of appeals from:
(1) Interlocutory orders of the district courts of the United States, the United States
District Court for the District of the Canal Zone, the District Court of Guam, and the
District Court of the Virgin Islands, or of the judges thereof, granting, continuing,
modifying, refusing or dissolving injunctions, or refusing to dissolve or modify
injunctions, except where a direct review may be had in the Supreme Court;
(2) Interlocutory orders appointing receivers, or refusing orders to wind up
receiverships or to take steps to accomplish the purposes thereof, such as directing
sales or other disposals of property;
(3) Interlocutory decrees of such district courts or the judges thereof determining the
rights and liabilities of the parties to admiralty cases in which appeals from final
decrees are allowed.
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Respectfully Submitted,
Milwaukee County Corporation Counsel



s/ Paul Bargren______________________
PAUL BARGREN
Corporation Counsel
State Bar No: 1023008



P.O. Mailing Address:
Milwaukee County Courthouse
901 North 9th Street, Room 303
Milwaukee, WI 53233
Telephone: (414) 278-4315
Facsimile: (414) 223-1249
Email: Paul.Bargren@milwaukeecountywi.gov

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Appellate Case No. 14-2266


UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT


VIRGINIA WOLF, et al.,

Plaintiffs-Appellees,

v.

SCOTT WALKER, et al.

Defendants-Appellants.


ON APPEAL FROM THE UNITED STATES DISTRICT COURT,
WESTERN DISTRICT OF WISCONSIN
Case No. 14-CV-0064
The Honorable Barbara B. Crabb, Presiding


DECLARATION OF PAUL BARGREN IN SUPPORT OF DEFENDANT-
RESPONDENT JOSEPH CZARNEZKIS MEMORANDUM OF LAW IN
OPPOSITION TO JURISDICTION IN THIS COURT


STATE OF WISCONSIN )
) SS
MILWAUKEE COUNTY )

I, Paul Bargren, declare pursuant to 28 U.S.C. Section 1746 and under
penalty of perjury that the following is true and correct:
1. I am the attorney representing Defendant-Respondent Joseph Czarnezki in
the above matter. I make this declaration on personal knowledge and in
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support of Defendant-Respondent Joseph Czarnezkis Memorandum of Law
in Opposition to Jurisdiction in this Court.
2. Attached hereto as Exhibit A is a true and correct copy of Sharif Durhams,
Which Wisconsin Counties Are Issuing Same-Sex Marriage Licenses?,
Milwaukee Journal Sentinel (Jun. 10, 2014),
http://www.jsonline.com/blogs/news/262381311.html.
3. Attached hereto as Exhibit B is a true and correct copy of Craig Gilbert,
County Decisions Reflect Shifting Politics of Gay Marriage, Milwaukee
Journal Sentinel (Jun. 11, 2014),
http://www.jsonline.com/news/statepolitics/county-decisions-reflect-shifting-
politics-of-gay-marriage-b99288588z1-262645421.html.

Dated at Milwaukee, Wisconsin this 11
th
day of June, 2014.

By: s/ Paul Bargren______________________
Paul Bargren
Milwaukee County Corporation Counsel
State Bar No. 1023008


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Appellate Case No. 14-2266


UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT


VIRGINIA WOLF, et al.,

Plaintiffs-Appellees,

v.

SCOTT WALKER, et al.

Defendants-Appellants.


ON APPEAL FROM THE UNITED STATES DISTRICT COURT,
WESTERN DISTRICT OF WISCONSIN
Case No. 14-CV-0064
The Honorable Barbara B. Crabb, Presiding


CERTIFICATE OF SERVICE


I hereby certify that on June 11, 2014, I electronically filed Defendant-
Respondent Joseph Czarnezkis Memorandum of Law in Opposition to Jurisdiction
in this Court and the Declaration of Paul Bargren in support of said memorandum
with the Clerk of the Court for the United States Court of Appeals for the Seventh
Circuit by using the CM/ECF system. I further certify that all participants in the
case are registered CM/ECF users and that service will be accomplished by the
CM/ECF system.

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Respectfully Submitted,
Milwaukee County Corporation Counsel


s/ Paul Bargren______________________
PAUL BARGREN
Corporation Counsel
State Bar No.: 1023008


P.O. Mailing Address:
Milwaukee County Courthouse
901 North 9th Street, Room 303
Milwaukee, WI 53233
Telephone: (414) 278-4315
Facsimile: (414) 223-1249
Email: Paul.Bargren@milwaukeecountywi.gov

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