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 Case: 14-2266 Document: 13-1 Filed: 06/11/2014 Pages: 6 (1 of 17) 2
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
clerk named as a defendant, Wendy Christensen of Racine County, decided not to do so. See Bargren Decl. Ex. A. 1
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. 2
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
1 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. Case: 14-2266 Document: 13-1 Filed: 06/11/2014 Pages: 6 (3 of 17) 4
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
a district courts declaration where the district court is still finishing its work. 3
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.
3 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. Case: 14-2266 Document: 13-1 Filed: 06/11/2014 Pages: 6 (5 of 17) 6
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
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 Case: 14-2266 Document: 13-2 Filed: 06/11/2014 Pages: 2 (7 of 17) 2
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
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.