PLAINTIFFS’ RESPONSE TO DEFENDANT HARVEY RUVIN’S MOTION FOR CLARIFICATION AND MOTION TO EXPEDITE

Filing # 22132827 E-Filed 01/03/2015 12:04:05 PM

IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA

CATHERINA PARETO and KARLA ARGUELLO; JUAN CARLOS RODRIGUEZ and DAVID PRICE; VANESSA ALENIER and MELANIE ALENIER; TODD DELMAY and JEFFREY DELMAY; SUMMER GREENE and PAMELA FAERBER; DON PRICE JOHNSTON and JORGE DIAZ; and EQUALITY FLORIDA INSTITUTE, INC.,

CASE NO. 2014-1661-CA-01

Plaintiffs, v.

HARVEY RUVIN, as Clerk of the Courts of Miami-Dade County, Florida, in his official capacity, Defendant. ____________________________________/ PLAINTIFFS’ RESPONSE TO DEFENDANT HARVEY RUVIN’S MOTION FOR CLARIFICATION AND MOTION TO EXPEDITE

INTRODUCTION Plaintiffs Catherina Pareto and Karla Arguello; Juan Carlos Rodriguez and David Price; Vanessa and Melanie Alenier; Todd and Jeffrey Delmay; Summer Greene and Pamela Faerber; Don Price Johnston and Jorge Diaz; and Equality Florida Institute, Inc. (“Plaintiffs”) respectfully submit this Memorandum in response to Defendant Harvey Ruvin’s Motion for Clarification and Motion to Expedite. As explained below, Plaintiffs request that this Court vacate the stay of its July 25, 2014 ruling immediately in light of the imminent expiration of the stay in Brenner v. Scott (N.D. Fla. , Case Nos. 4:14cv107–RH/CAS and 4:14cv138– RH/CAS).

DISCUSSION On July 25, 2014, this Court held that Plaintiffs have the right to marry the person of their choice, regardless of gender or sexual orientation, and directed the Miami-Dade County Clerk of Court to issue marriage licenses to Plaintiffs, whose applications previously had been denied.

Based on the circumstances then

existing, this Court stayed its order pending the final resolution of the case on appeal.

Defendant Ruvin now seeks clarification regarding the status of that stay in light of the August 21, 2014 ruling by Judge Robert L. Hinkle of the United States District Court for the Northern District of Florida, declaring that Florida’s laws 1

barring same-sex couples from marriage violate the federal Constitution and enjoining their enforcement. See Brenner v. Scott, 999 F. Supp. 2d 1278, 1284 (N.D. Fla. 2014). Judge Hinkle issued a temporary stay of his ruling through January 5, 2015. Id. Both the U.S. Court of Appeals for the Eleventh Circuit and the U.S. Supreme Court declined requests by the defendants in that case (including state officials represented by Florida’s Attorney General) to stay Judge Hinkle’s ruling beyond January 5, 2015. As a result, Judge Hinkle’s ruling will go into effect following the expiration of the stay on January 5, 2015.

On January 1, 2015, Judge Hinkle issued an additional order confirming that all Florida county clerks may rely on his August 21, 2014 ruling to issue marriage licenses to same-sex couples beginning on January 6, 2015 and that the federal Constitution requires them to do so. See Order attached to Clerk’s Notice of Filing of Supplemental Authority (Jan. 2, 2015) (Filing # 22111114) at 3-4 (“Order”).

Judge Hinkle further explained: And a clerk who chooses not to follow the ruling should take note: the governing statutes and rules of procedure allow individuals to intervene as plaintiffs in pending actions, allow certification of plaintiff and defendant classes, allow issuance of successive preliminary objections, and allow issuance of successive preliminary injunctions, and allow successful plaintiffs to recover costs and attorney’s fees.

Id. at 3.

2

Following that ruling, counsel for the Florida Association of Court Clerks and Comptrollers advised the Association and its member county clerks “that clerks should follow the judge’s ruling for all marriage license applications or face the consequences identified by Judge Hinkle.”

See Sean Rossman, Update:

Wakulla County to offer same-sex marriage licenses on Tuesday, Tallahassee Democrat, http://www.tallahassee.com/story/news/local/2015/01/02/clerks-urgedissue-sex-marriage-licenses/21191535/ (last visited Jan. 2, 2015).

Moreover,

Florida’s Attorney General issued the following statement regarding Judge Hinkle’s January 1, 2015 order: This office has sought to minimize confusion and uncertainty, and we are glad [Judge Hinkle] has provided additional guidance. My office will not stand in the way as clerks of court determine how to proceed.

Attorney General Pam Bondi’s Statement Regarding Judge Hinkle’s Order, Jan. 1, 2015,

available

at

http://www.myfloridalegal.com/newsrel.nsf/newsreleases/

891D80F35B6D0B6985257DC0007E5358 (last visited Jan. 2, 2015).

In light of these developments, Plaintiffs request that this Court lift its stay of its July 25, 2014 ruling immediately. Lifting the stay would be consistent with the actions of the U.S. Supreme Court and federal circuit and district courts in similar cases in which orders striking down state marriage bans have been permitted to go into effect while appeals are pending.

3

For example, following the U.S. Supreme Court’s denial of certiorari petitions on October 6, 2014 in cases in which the marriage bans in Utah, Oklahoma, Virginia, Indiana, and Wisconsin had been ruled unconstitutional by federal appeals courts, see October 6, 2014 Order List, available at http://www.supremecourt.gov/orders/courtorders/100614zor.pdf (denying review in Case Nos. 14-124 (Utah); 14-136 (Oklahoma); 14-153, 14-225, and 14-251 (Virginia); 14-277 (Indiana); and 14-278 (Wisconsin)), numerous federal district courts, as well as the Fourth, Ninth, Tenth, and Eleventh Circuits and the U.S. Supreme Court, have denied or lifted stays in pending litigation in which district courts have invalidated marriage laws excluding same-sex couples in South Carolina, Idaho, Nevada, Alaska, Kansas, and even Florida.

See Marriage

Litigation, Freedom to Marry, http://www.freedomtomarry.org/litigation/ (last visited Jan. 2, 2015).

In light of these developments, and especially now that the stay in Brenner will expire on January 5, 2015, maintaining the stay in this case is no longer warranted and would have no practical effect other than to cause potential confusion. In determining whether to vacate a stay, this Court considers two principal factors: (1) “the likelihood of irreparable harm if the stay is not lifted”; and (2) “the likelihood of success on the merits by the entity seeking to maintain the stay.” Tampa Sports Auth. v. Johnston, 914 So. 2d 1076, 1079 (Fla. 2d DCA

4

2005). Both of these factors weigh heavily in favor of vacating the stay in this case.

First, the defendants will not suffer irreparable harm in the absence of a stay, particularly given that same-sex couples will be marrying in counties throughout Florida beginning January 6, 2015 in light of Judge Hinkle’s order declaring Florida’s exclusion of same-sex couples from marriage to be unenforceable for the same reasons this Court declared it unenforceable.

Second, the State cannot establish a likelihood of success on appeal. This Court’s decision that Florida’s marriage ban is unconstitutional is consistent with Judge Hinkle’s order, the judgments of three Florida circuit courts in addition to this Court, and the recent holdings of four federal appellate courts regarding other state’s laws excluding same-sex couples from marriage. In light of that state-wide consensus and overwhelming authority from other jurisdictions, the State of Florida cannot show that is likely to succeed in obtaining a reversal of this Court’s order on appeal.

CONCLUSION For the foregoing reasons, Plaintiffs respectfully ask this Court to vacate the stay of its July 25, 2014 ruling immediately in light of the imminent expiration of ///// /////

5

the stay in Brenner and the potential for confusion caused by permitting that stay to remain in effect.

DATED: January 3, 2015

Respectfully submitted,

Shannon P. Minter Christopher F. Stoll David C. Codell Asaf Orr NATIONAL CENTER FOR LESBIAN RIGHTS 870 Market Street, Suite 370 San Francisco, CA 94102 Telephone: (415) 365-1335 Facsimile: (415) 392-8442 E-mail: sminter@nclrights.org cstoll@nclrights.org dcodell@nclrights.org aorr@nclrights.org

s/Nancy J. Faggianelli________________ Sylvia H. Walbolt (Fla. Bar No. 33604) Luis Prats (Fla. Bar No. 329096) Nancy J. Faggianelli (Fla. Bar No. 347590) CARLTON FIELDS JORDEN BURT, P.A. 4221 W. Boy Scout Blvd., Ste. 1000 Tampa, FL 33601 Telephone: (813) 223-7000 Facsimile: (813) 229-4133 Email: swalbolt@cfjblaw.com lprats@cfjblaw.com nfaggianelli@cfjblaw.com

Jeffrey Michael Cohen (Fla. Bar. No. 91495) Cristina Alonso (Fla. Bar. No. 327580) Elizabeth Schwartz (Fla. Bar No. CARLTON FIELDS JORDEN BURT, 114855) P.A. ELIZABETH F. SCHWARTZ, PA Miami Tower 690 Lincoln Road, Suite 304 100 Southeast 2nd Street Miami Beach, FL 33139 Suite 4200 Telephone: (305) 674-9222 Miami, Florida 33131 Facsimile: (305) 674-9002 Telephone: (305) 530-0050 E-mail: eschwartz@sobelaw.com Facsimile: (305) 530-0055 Email: jmcohen@cfjblaw.com Mary B. Meeks (Fla. Bar No. 769533) calonso@cfjblaw.com Mary Meeks, P.A. P.O. Box 536758 Orlando, Florida 32853 Telephone: (407) 362-7879 Email: marybmeeks@aol.com Counsel for Plaintiffs

6

CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was electronically filed with the Clerk of Court through the Florida Courts eFiling Portal to be served this 3rd day of January 2015, on counsel of record listed below to: Luis G. Montaldo P.O. Box 13267 Miami, FL 33101 E-mail: cocgencounsel@miamidade.gov Sec. E-mail: larruza@miamidade.gov Eileen Ball Mehta BILZIN SUMBERG BAENA PRICE & AXELROD LLP 1450 Brickell Avenue Suite 2300 Miami, FL 33131 E-mail: emehta@bilzin.com Sec. E-mail: eservice@bilzin.com

Allen Winsor Email: allen.winsor<@mvfloridalegal.com Adam S. Tanenbaum Email:adam.tanenbaumadam@myfloridalegal.com Office of the Attorney General The Capitol - PL 01 Tallahassee, FL 32399-1050

Counsel for Defendant

7

SYLVIA H. WALBOLT E-mail: swalbolt@CFJBlaw.com Sec. E-mail: rosborne@CFJBlaw.com Sec. E-mail: tpaecf@cfdom.net LUIS PRATS E-mail: lprats@CFJBlaw.com Sec. E-mail: lcoffey@CFJBlaw.com NANCY J. FAGGIANELLI E-mail: nfaggianelli@CFJBlaw.com Sec. E-mail: pparrey@CFJBlaw.com CARLTON FIELDS JORDEN BURT, P.A. Corporate Center Three at International Plaza 4221 W. Boy Scout Boulevard Tampa, Florida 33607-5780 Telephone: (813) 223-7000 Facsimile: (813) 229-4133 JEFFREY MICHAEL COHEN E-mail: jmcohen@CFJBlaw.com Sec. E-mail: pwatson@CFJBlaw.com Sec. E-mail: miaecf@cfdom.net CRISTINA ALONSO E-mail: calonso@CFJBlaw.com Sec. E-mail: cschmidle@CFJBlaw.com CARLTON FIELDS JORDEN BURT, P.A. Miami Tower 100 Southeast Second Street Suite 4200 Miami, Florida 33131 Telephone (305) 530-0050 Facsimile (305) 530-0055

Shannon P. Minter Christopher F. Stoll David C. Codell Asaf Orr NATIONAL CENTER FOR LESBIAN RIGHTS 870 Market Street, Suite 370 San Francisco, CA 94102 E-mail: sminter@nclrights.org E-mail: cstoll@nclrights.org E-mail: dcodell@nclrights.org E-mail: aorr@nclrights.org Elizabeth F. Schwartz ELIZABETH F. SCHWARTZ, P.A. 690 Lincoln Road, Suite 304 Miami Beach, FL 33139 E-mail: eschwartz@sobelaw.com Mary B. Meeks MARY MEEKS, P.A. P.O. Box 536758 Orlando, FL 32853 E-mail: marybmeeks@aol.com

Counsel for Plaintiffs s/Elizabeth Schwartz _________________

8