BREAKING: Alan Wilson Files Motion for Emergency Stay
November 13, 2014
MOTION FOR EMERGENCY STAY
Appellant Attorney General Alan Wilson hereby moves pursuant to Rule 8, FRAP and Local Rule 27(e), for an emergency stay pending appeal in this case as to the Order of the United States District Court of the District Court for the District of South Carolina dated November 12, 2014 granting summary judgment to the Plaintiffs in this case, issuing injunctions and denying the Attorney General's Motion to Dismiss. Should this Court, arguendo, deny a request for a stay, he also includes an alternative request for a temporary stay to allow time for him to seek a stay from a Justice of the United States Supreme Court.
APPEAL STATUS AND PRIOR MOTIONS FOR STAY
The Attorney General filed a Notice of Appeal on November 13, 2014 date from the above Order of November 12, 2014 (Document No. 37) of the Honorable Richard M. Gergel, United States District Court Judge. Attachment 1. That Order granted summary judgment to Plaintiffs against South Carolina laws banning same-sex marriage, dismissed the Governor but not the Attorney General on grounds of Eleventh Amendment immunity issued injunctions and denied as moot the Attorney General's Motion to Dismiss. S.C. Code Ann §§20-1-10 and 20- 1-15; S.C. Const art. XVII, §15. Judge Gergel's Order also denied the request for a stay of his ruling pending an appeal finding that the Attorney General did not show a likelihood of success on appeal or meaningful evidence of irreparable injury if a stay were denied. He found that Plaintiffs had put forward evidence of irreparable injury if a stay were granted and that the public interest was best served by the denial of a stay. Order at pp. 22 and 23; however, the Court granted a temporary stay to last until Noon on November 20, 2014 to allow time for the Court of Appeals to consider a motion for a stay on appeal, and possibly for the United States Supreme Court to address the matter. Order at pp. 24 & 25. Respectfully, the Defendant Attorney General believes that he does meet the standards for granting a stay pending appeal as discussed below.
The Attorney General's Motion for a Stay is at page 54 of its Memorandum in Opposition to the Motion for a Preliminary Injunction in this case which is attached hereto as a single document (Attachment 2) including the three short attachments referenced therein. Condon v. Haley, 2:14-cv-04010-RMG, Date Filed 11/03/14, USDC Document Number 29. The Amended Motion for Stay is also attached (Attachment 3). USDC Document No. 36, filed November 11, 2014.
REASONS FOR GRANTING RELIEF
Under standards for a stay pending appeal "a court considers four factors: "(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies." Nken v. Holder, 556 U.S. 418, 426 (2009). The Attorney General meets these standards.
This Court should grant a stay of the decision of the District Court of South Carolina until this Court decides this appeal. Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014), respectfully, was applied by the District Court to invalidate South Carolina law, but that decision should not govern this case. Under prior precedent of the Fourth Circuit regarding summary decisions of the Supreme Court, Baker v. Nelson, 409 U.S. 810 (1972) is controlling precedent instead of Bostic on the constitutional issues. as is prior precedent of this Circuit.3
To the extent that, arguendo, Bostic is controlling (United States v. Collins, 415 F.3d 304, 311 (4th Cir. 2005)), the Attorney General also, respectfully, plans to argue against precedent as to the issues decided by Bostic and to request that the initial hearing on appeal be en banc. Among other errors, Bostic misapplied Loving v. Virginia, 388 U.S. 1 (1967). As more fully discussed below, Loving removed a racial restriction superimposed on marriage without changing its elements whereas Bostic, altered the inherent, defining element of marriage – a union of a man and a woman. That error as to Loving and others in the case, place Bostic in conflict with DeBoer v. Snyder, No. 14-1341, 2014 WL 5748990 (6th Cir. Nov. 6, 2014), which upheld same-sex marriage bans of four states,
Our position in this case is not one of advocacy on the question of whether same-sex marriage should be permitted – that decision has been made by the legislature and voters of the State of South Carolina- it is the defense of what the law is. If the law is to be changed, it should be through the voters and the legislature, as it has in many other states, rather than through the Court.