Case 5:13-cv-00982-OLG Document 48 Filed 01/17/14 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION

CLEOPATRA DE LEON, NICOLE DIMETMAN, VICTOR HOLMES, and MARK PHARISS

Plaintiffs, v. RICK PERRY, in his official capacity as Governor of the State of Texas, GREG ABBOTT, in his official capacity as Texas Attorney General, GERARD RICKHOFF, in his official capacity as Bexar County Clerk, and DAVID LAKEY, in his official capacity as Commissioner of the Texas Department of State Health Services Defendants.

CIVIL ACTION NO. 5:13-cv-982-OLG

PLAINTIFFS RESPONSE TO STATE DEFENDANTS OPPOSED MOTION TO TRANSFER VENUE

Preliminary Statement Defendants represent that they seek transfer of this case to the Honorable Sam Sparks court so that it may be consolidated with other pending lawsuits, but Judge Sparks has already denied Defendants motion to consolidate the suits. The real purpose of the motion to transfer can only be to prevent this Court from deciding whether Plaintiffs have a constitutional right to marry their partners. It also appears that Defendants may be engaged in impermissible forumshopping based on observations Judge Sparks made at the hearing on their failed motion to

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consolidate. The Court should deny the motion and proceed with the scheduled hearing on Plaintiffs motion for preliminary injunction. FACTUAL BACKGROUND Three lawsuits contesting the constitutionality of Defendants refusal to allow same-sex couples to marry are currently pending in the Western District of Texas. See McNosky v. Perry, No. 1:13-cv-00631, (W. D. Tex. filed July 29, 2013); De Leon v. Perry, No. 5:13-cv-00982 (W.D. Tex. filed October 28, 2013); Zahrn v. Perry, No. 1:13-CV-00955 (W.D. Tex. filed October 31, 2013). While each of the lawsuits seeks to rectify the plaintiffs constitutional rights to marry their partners and two of the lawsuits challenge Texas voidance of lawful out-of-state marriages, they differ in important respects from this proceeding. The McNosky case was filed pro se by a same-sex couple who wants to marry in Texas, and challenges the constitutionality of Texas restrictions on same-sex marriage solely on the basis of gender (as opposed to sexual orientation) discrimination. See Exh. A, Transcript of January 9, 2014 Hearing, at 8:23-9:8, McNosky. The named plaintiffs in the Zahrn case seek to marry in Texas and recognition of a lawful out-of-state marriage, but through a different procedural vehicle, as they seek certification of a class under Fed. R. Civ. P. 23. This case has advanced farther and more quickly than either of the other pending cases. Plaintiffs have long since filed and briefed their preliminary injunction, and the Defendants have filed their opposition brief. Briefing will be complete on January 24, 2014, when Plaintiffs file their reply in support of the motion for preliminary injunction. The Court has set a hearing on the motion for February 12, 2014.

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ARGUMENT A. The Court Should Deny Plaintiffs Second Attempt To Transfer This Case To Austin. Defendants motion to transfer focuses on what they hope to accomplish after this Court consents to transfer this case to the Austin Division: namely, the consolidation of the DeLeon case with the McNosky and Zahrn cases. After full briefing on Defendants motion to

consolidate, the Honorable Sam Sparks denied without prejudice Defendants motion to consolidate in a hearing on January 9, 2014. As a result, the three lawsuits presently remain in their original stateunconsolidated and going forward. Following Judge Sparks ruling, and facing the impending hearing date on the De Leon plaintiffs motion for a preliminary injunction, Defendants filed their motion to transfer in this Court, seeking again to obtain much the same relief Judge Sparks previously denied them. Defendants stall tactic should fail, and the Court should hear the pending motion for preliminary injunction as scheduled. Defendants motion to transfer does little more than restate (often verbatim) the arguments raised by Defendants in their motion to consolidatethe same arguments that failed to persuade Judge Sparks. See Defendants Opposed Motion to Consolidate Trial and Scheduling Deadlines, McNosky, Docket No. 17, at 1. The plaintiffs in all three lawsuits opposed

consolidation. See, e.g., Notice of Plaintiffs Response, De Leon, Docket No. 19. The plaintiffs explained that consolidation was imprudent because of substantive and procedural differences among the lawsuits. Substantively, the McNosky case involves just one couple that wishes to marry in Texas, whereas the Zahrn and De Leon cases involve not only plaintiffs who wish to marry in Texas but also plaintiffs who are already married under the Laws of another state. Response to Defendants Motion to Consolidate, Zahrn, Docket No. 11, at 2. Thus,

consolidation in McNosky made little sense because McNosky would not provide complete relief to all the plaintiffs. Moreover, as the plaintiffs also explained, the McNosky case was filed pro se 3
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by two plaintiffs with no litigation experience whatsoever. Pro se plaintiffs are not suited to prosecute a lawsuit that has the potential to determine the rights of other similarly-situated parties. See, e.g., Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975) (refusing to allow pro se plaintiff to assert claims under 42 U.S.C. 1983 for himself and similarly situated persons where an adverse judgment could prevent other persons from later raising the same claims and pro se plaintiff could not fairly and adequately protect the interests of others); Russell v. United States, 308 F.2d 78 (9th Cir. 1962) (A litigant appearing in propria persona has no authority to represent anyone other than himself).1 Procedurally, it would be inequitable to consolidate the De Leon case with the Zahrn case. The Zahrn case, a putative class action, was filed after De Leon, and the class certification process necessary in the Zahrn case would impose further delay on the recognition of the De Leon plaintiffs constitutional rights. The plaintiffs in this case have already submitted

voluminous evidence to the court and are prepared to proceed with the hearing scheduled for February 12, 2014, while the Zahrn plaintiffs stated that they will not be ready for trial until at least late summer or early fall. See Exh. A, Transcript of January 9, 2014 Hearing, at 15:1-6, McNosky (Zahrn plaintiffs explaining that they dont think the case will be ready for trial until late summer or early fall of 2014). The circumstances of the Defendants motion to transfer also create the impression of impermissible forum-shopping by the Defendants, further justifying denial of the motion. In the course of the January 9, 2014 hearing, Judge Sparks made several preliminary observations

These cases arose in the context of a pro se plaintiff seeking relief for himself and all others similarly situated via class certification under Fed. R. Civ. 23. The De Leon plaintiffs submit that where, as here, the relief they seek would by its nature extend to other similarly situated persons, pro se plaintiffs are equally unequipped to protect the interests of others. 4
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concerning Plaintiffs burden in seeking relief. Possibly viewing Judge Sparks as providing a more favorable forum to hear their defense, the Defendants filed their motion to transfer soon after the hearing. B. The Court Should Deny The Motion To Transfer Because Austin Is Not More Convenient Than San Antonio. [D]istrict courts have broad discretion in deciding whether to order a transfer. In re Volkswagen of America, Inc., 545 F.3d 304, 311 (5th Cir. 2008) (quoting Balawajder v. Scott, 160 F.3d 1066, 1067 (5th Cir.1998)). [W]hen the transferee venue is not clearly more convenient than the venue chosen by the plaintiff, the plaintiffs choice should be respected. Id. at 315. Beyond the deference inherently shown to a plaintiffs proper choice of venue, the Fifth Circuit has identified various other factorsdivided between private interest and public interestas relevant to whether a case should be transferred to another district or division. Id. (citing In re Volkswagen AG, 371 F.3d 201, 203 (5th Cir. 2004)). The private interest factors include (1) the relative ease of access to sources of proof; (2) the availability of compulsory process to secure the attendance of witnesses; (3) the cost of attendance for willing witnesses; and (4) all other practical problems that make trial of a case easy, expeditious and inexpensive. Id. The public interest factors include (1) the administrative difficulties flowing from court congestion; (2) the local interest in having localized interests decided at home; (3) the familiarity of the forum with the law that will govern the case; and (4) the avoidance of unnecessary problems of conflict of laws [or in] the application of foreign law. Id. These factors do not weigh in favor of transfer. To start, the private interest factors do not weigh in favor of transfer. There is no greater ease of access to sources of proof in Austin than in San Antonio. There is no greater availability of service of process in Austin than San Antonio. Nor is Austin more economical for willing witnesses. Plaintiffs expert witnesses hale from 5
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California, Massachusetts, and the United Kingdom, among other destinations. Transferring this case to Austin will not render their attendance easier or more economical. The DeLeon plaintiffs themselves all reside in Texas, and can travel just as easily to hearings in either Austin or San Antonio. Thus, the private interest factors do not weigh in favor of transfer. The public interest factors also do not reveal the Austin Division to be clearly more convenient than than the venue selected by Plaintiffs. The issues to be tried in this lawsuit are not unique to one locality. To the contrary, the statutory and constitutional provisions at issue in this case apply with equal force in Austin, San Antonio, and across the State of Texas, and the resolution of this case will have state-wideindeed, potentially nationalsignificance. Accordingly, there are no localized interests here, nor does it appear that either forum is any more familiar with the constitutional issues that law that will govern this case. Finally,

Defendants argue that the motion to transfer should be granted because of administrative difficulties, such as the potential for inconsistent judgments. These claims are unfounded. The courts are well-equipped to handle this litigation. If one case successfully obtains judicial recognition of Plaintiffs constitutional rights, the remaining cases likely will be stayed during the appeal of the first-decided decision, thus neutralizing all risk of potentially inconsistent outcomes. Alternatively, Defendants could move to stay the McNosky and Zahrn lawsuits while this case is decided. Indeed, Plaintiffs in this case are ready to proceed at the upcoming preliminary injunction hearing and would agree to an expedited trial date.

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Conclusion For the foregoing reasons, the De Leon plaintiffs respectfully request entry of an order denying Defendants request to transfer this case to the Austin Division of this district. Respectfully submitted, AKIN GUMP STRAUSS HAUER & FELD LLP

By: /s/ Daniel McNeel Lane, Jr._______ Barry A. Chasnoff (SBN 04153500) bchasnoff@akingump.com Daniel McNeel Lane, Jr. (SBN 00784441) nlane@akingump.com Frank Stenger-Castro (SBN 19143500) fscastro@akingump.com Jessica Weisel (PHV pending) jweisel@akingump.com Michael P. Cooley (SBN 24034388) mcooley@akingump.com Matthew E. Pepping (SBN 24065894) mpepping@akingump.com 300 Convent Street, Suite 1600 San Antonio, Texas 78205 Phone: (210) 281-7000 Fax: (210) 224-2035 Attorneys for Plaintiffs

CERTIFICATE OF SERVICE I hereby certify that, on January 17, 2014, I sent a copy of the foregoing document via the courts electronic filing service to all attorneys of record.

___/s/ Daniel McNeel Lane, Jr.___ Daniel McNeel Lane, Jr.

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Case 5:13-cv-00982-OLG Document 48-1 Filed 01/17/14 Page 1 of 21

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION

CLEOPATRA DE LEON, NICOLE DIMETMAN, VICTOR HOLMES, and MARK PHARISS

Plaintiffs, v. RICK PERRY, in his official capacity as Governor of the State of Texas, GREG ABBOTT, in his official capacity as Texas Attorney General, GERARD RICKHOFF, in his official capacity as Bexar County Clerk, and DAVID LAKEY, in his official capacity as Commissioner of the Texas Department of State Health Services Defendants.

CIVIL ACTION NO. 5:13-cv-982-OLG

PLAINTIFFS RESPONSE TO STATE DEFENDANTS OPPOSED MOTION TO TRANSFER VENUE EXHIBIT A

Case 5:13-cv-00982-OLG Document 48-1 Filed 01/17/14 Page 2 of 21

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 APPEARANCES:

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS AUSTIN DIVISION CHRISTOPHER DANIEL MCNOSKY SVEN STRICKER, ET AL vs. THE STATE OF TEXAS, TEXAS GOVERNOR RICK PERRY, ET AL ) Docket No. A 13-CA-631 SS ) A 13-CA-955 SS ) ) Austin, Texas ) ) ) January 9, 2014

TRANSCRIPT OF ALL PENDING MATTERS BEFORE THE HONORABLE SAM SPARKS

For the Plaintiff:

Mr. Christopher D. McNosky Pro Se 5108 Pleasant Run Colleyville, Texas 76034 Mr. Sven Stricker Pro Se 3047 Bent Tree Court Bedford, Texas 76021

For Zharn Plaintiffs:

Mr. James J. Scheske James J. Scheske, PLLC 5501-A Balcones #109 78731 Mr. Daniel McNeel Lane, Jr. Akin, Gump, Strauss, Hauer & Feld 1500 NationsBank 300 Convent San Antonio, Texas 78205 Mr. Russell A. Friemel Tarrant County Justice Center 9th Floor 401 West Belknap Street Fort Worth, Texas 76196

For DeLeon Plaintiffs:

For Mary Louise Garcia:

LILY I. REZNIK, OFFICIAL COURT REPORTER U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

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(Appearances Continued:) For Ricky Perry, et al: Mr. William T. Deane Mr. Michael P. Murphy Office of the Attorney General P.O. Box 12548 Austin, Texas 78711-2548 Ms. Elaine A. Casas Ms. Jennifer Kraber Travis County Attornye's Office P.O. Box 1748 Austin, Texas 78767-1748 Ms. Lily Iva Reznik, CRR, RMR 501 West 5th Street, Suite 4153 Austin, Texas 78701 (512)391-8792

For Dana DeBeauvoir:

Court Reporter:

Proceedings reported by computerized stenography, transcript produced by computer. LILY I. REZNIK, OFFICIAL COURT REPORTER U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

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14:28:12 14:28:18 14:28:25 14:28:31 14:28:36 14:28:57 14:28:58 14:29:06 14:29:07 14:29:17 14:29:19 14:29:21 14:29:23 14:29:27 14:29:31 14:29:33 14:29:36 14:29:39 14:29:42 14:29:46 14:29:51 14:29:56 14:30:02 14:30:05 14:30:08

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Stricker. please.

THE COURT:

I'm going to call 13-CA-631, McNosky, et al

vs. The State of Texas, and 13-CA-955, Zahrn, et al vs. Perry, jointly for a few comments, and then, we will see how we are going to proceed. First, where is Christopher Daniel McNosky? MR. MCNOSKY: THE COURT: Right here, your Honor. Okay. Yes. So I've identified McNosky and And Sven Stricker?

MR. STRICKER: THE COURT:

Okay.

And I'll have the defendants make their announcements,

MR. MURPHY:

Your Honor, Mike Murphy for the state

defendants from the Texas Attorney General's Office. MR. DEANE: MR. FRIEMEL: And Bill Deane, co-counsel, your Honor. Your Honor, Rus Friemel from Tarrant

County, representing the Tarrant County County Clerk. MS. CASAS: Your Honor, Elaine Casas from the Travis

County Attorney's Office representing the Travis County Clerk. MS. KRABER: And Jennifer Kraber from the Travis County

Attorney's Office, counsel for Dana DeBeauvoir. THE COURT: All right. And then, the Zahrn case, we've So

already had a Ms. Casas and Ms. Kraber announce from that. who is going to be the spokesperson for the plaintiffs? MR. SCHESKE:

Your Honor, Jodie Scheske for the Zahrn And with me is from my

Plaintiffs and the proposed class.

LILY I. REZNIK, OFFICIAL COURT REPORTER U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

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co-counsel, Jason Steed, Leigh Jorgeson and Ian Pittman. THE COURT: Mr. Murphy and Mr. Deane are already there.

The first thing that got my attention is the -- either my lack of procedural law or the lawyers' lack of procedural law for the state's motion to consolidate two cases here and one case in San Antonio, unless the judges desire to transfer that case, or those cases, as the case may be. I'll let you speak on it,

but I don't know how you can consolidate it. The second is, I've got a motion to intervene from San Antonio lawyers, but they don't want to intervene. They just So

want to be able to speak today against the consolidation. I'll hear on that motion first. MR. MURPHY: The motion for consolidation?

Your Honor,

the motion for consolidation should be granted because there are common questions of law and fact. THE COURT: Garcia's arm and say: So do I just ride up there and twist Judge I'm bigger than you are, I'm older than Do I do that?

you are, give me a transfer? MR. MURPHY:

No, your Honor.

It's my understanding that because all three cases are in the same district court, even though they're in different divisions, consolidation is the proper method for that. Transfer

of the cases is required if the cases are outside -- or in a different district. THE COURT: Well, I don't know who gave you that

LILY I. REZNIK, OFFICIAL COURT REPORTER U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

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understanding.

You think I can go upstairs and tell Judge

Yeakel, I want one of his cases? MR. MURPHY: Well, it was our understanding that there

would be, obviously, some agreement among the judges or between the judges with respect to -THE COURT: is. Well, that would certainly be true if there

I've simply talked to Judge Garcia this morning simply to

advise him that he had been advised by pleadings that this hearing was going to go. And he didn't even know there was a

motion to consolidate, so there wasn't much point in talking about that. All right. I understand we've got three points of view

that are different and not in agreement, although it appears that there are common issues in these cases. to say on the consolidation? MR. MURPHY: Well, just that this is a classic case for I mean, we have three sets of Anything else you want

consolidation, your Honor.

plaintiffs who essentially argued -- make the same arguments against the same law, against the same defendants. THE COURT: litigated. MR. MURPHY: plaintiffs. THE COURT: issue. But one set of plaintiffs just has one I understand. The three sets of Actually, there are two issues to be

LILY I. REZNIK, OFFICIAL COURT REPORTER U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

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14:33:46 14:33:47 14:33:50 14:33:52 14:33:55 14:33:57 14:33:59 14:34:04 14:34:12 14:34:19 14:34:19 14:34:21 14:34:27 14:34:31 14:34:32 14:34:35 14:34:37 14:34:38 14:34:41 14:34:45 14:34:48 14:34:57 14:34:59 14:35:04 14:35:10

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MR. MURPHY: THE COURT: issues each. MR. MURPHY:

Uh-huh. The other two are class actions with two

Zahrn technically is the only one that's DeLeon has not.

asked for class certification. THE COURT:

Well, but the others have multiple

plaintiffs that embrace the same issues as the Zahrn case, and that is prohibition against marriage, and marriage in a separate state, and not receiving the benefits of marriage, people in this state. MR. MURPHY: Right. But the recognition of the

marriage and the granting of the marriage license in Texas, the legal issues are nearly identical in those two -- in those two points. THE COURT: Well, that's the point I'm trying to make.

There's only going to be one trial. MR. MURPHY: THE COURT: Right. You know, the Western District is the -- we

have more cases than any other district in the United States. There's just going to be one trial. It just depends on which

trial as to whether or not all of the issues will be determined. If the San Antonio case or the Zahrn case is not the one that's going to be tried, well, then, there's an incidental issue that can be litigated or maybe even gone off with on motions. know. I don't

LILY I. REZNIK, OFFICIAL COURT REPORTER U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

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14:35:11 14:35:13 14:35:17 14:35:18 14:35:21 14:35:21 14:35:25 14:35:29 14:35:30 14:35:34 14:35:38 14:35:44 14:35:48 14:35:52 14:35:55 14:35:59 14:36:03 14:36:07 14:36:11 14:36:15 14:36:19 14:36:23 14:36:28 14:36:29 14:36:30

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 opposed. counsel?

MR. MURPHY:

Well, we think that they could all be

litigated as a single unit with -- you know, to promote both, as you mentioned, judicial efficiency. THE COURT: Well, have you talked with opposing

MR. MURPHY: THE COURT:

Well, they oppose consolidation. So this isn't any good, is it? Y'all are

All right. MR. SCHESKE:

Let me hear the opposition. Your Honor, we oppose consolidation,

first, because we're unaware of any basis to consolidate, unless you and Judge Garcia decide who wants to handle all the cases among the two of you. Second of all, I'm the lawyer that filed

the class action, and a class action is going to work at a different speed than the other two cases will. And if there is

to be any consolidation, we think it should be into our case because if class is certified, that will, of course, subsume the other two plaintiffs, because they'll be members of the class. The legal issues between an unmarried couple who wishes to marry here and Texas residents who are married out of state are not exactly the same as you just heard, that there are different legal harms that are occurring. THE COURT: MR. SCHESKE: THE COURT: Alleged. Alleged. Legal harm. And --

LILY I. REZNIK, OFFICIAL COURT REPORTER U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 cases?

MR. SCHESKE:

Alleged at this point. We've

So that's our basis for opposing consolidation. got a class action and we think it stands on its own.

We filed

it here in front of you, and this is where we're happy to be. THE COURT: Well, I don't know about happy.

And so, Mr. McNosky and Stricker, who filed their lawsuit first, they just get swept under? Is that your -- that

they're opposed to it, also, as I understand. MR. SCHESKE: they're opposed to it. THE COURT: like to say anything? MR. MCNOSKY: THE COURT: MR. MCNOSKY: THE COURT: MR. MCNOSKY: THE COURT: MR. MCNOSKY: If y'all will -- one of you, both of you You need to come up here. Do you want me to address the podium? Yeah. Just play like you're a lawyer. Or yes, your Honor. That's my understanding, too, that

Yes, sir.

So you're opposed to the consolidation? Yes, your Honor. Why? Because our cases don't share a similar

question of law since we are seeking -THE COURT: Have you read the pleadings of the other

MR. MCNOSKY:

Yes, your Honor.

We are -- our idea is

that we are claiming sex discrimination, rather than sexual orientation discrimination. Specifically, discrimination based

LILY I. REZNIK, OFFICIAL COURT REPORTER U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

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on gender or biological gender, rather than sexual orientation, which the other plaintiffs are not claiming. THE COURT: So you're not claiming in any way, shape or

form sexual orientation discrimination. MR. MCNOSKY: THE COURT: discrimination. MR. MCNOSKY: THE COURT: may sit down. plaintiffs. Yes, your Honor. May not take long to try your case. No, no, no. We've got two You No, your Honor. Your case is limited simply to sex

Anything else?

Anything else you want to add? No, your Honor. Thank you. Thank you.

MR. STRICKER: THE COURT: MR. MCNOSKY: THE COURT: MR. LANE:

All right. All right.

So what say our friends from San Antonio? Your Honor, Neel Lane, counsel for the With me is my co-counsel, Frank

plaintiffs in the DeLeon case.

Stenger-Castro, and also, two of our clients, Nicole Dimetman and, also, Cleo DeLeon. And we oppose consolidation, as well. We aren't

presenting class issues, certification issues that will require some time from the Court to determine whether under Rule 23, a class is the appropriate procedure -THE COURT: counsel? How long do you think that's going to take,

LILY I. REZNIK, OFFICIAL COURT REPORTER U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

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MR. LANE: THE COURT:

Well, your Honor, before I -I have security cases all the time. As a

matter of fact, I had two this morning.

Rule 23 is very complex

with complex lawyers and not real complex on social issues. MR. LANE: Well, your Honor, let me say that we have a

hearing on February 12th in San Antonio on a motion for preliminary injunction, which I understand in this court would not be possible until the end of 2015, if I heard correctly before. THE COURT: jury calendar. MR. LANE: THE COURT: Oh, okay. I could have had the temporary injunction No, no. That's if I was setting on the

hearing as you're standing here. MR. LANE: Your Honor, let me go on to say, the DeLeon

case is fully briefed on the motion for preliminary injunction. We do have one reply that's due on January 24th. hearing set on February 12th. We have a

Presumably the consolidation would So we would We

upset that schedule, which Judge Garcia has set. oppose consolidation.

We feel that we're moving forward.

have submitted affidavits of experts. we're ready to go there. THE COURT:

We're fully briefed and

Well, my information with Judge Garcia is

that he's like I, and that is, really don't have any individual urgency to try the lawsuit, but we don't see any reason to have

LILY I. REZNIK, OFFICIAL COURT REPORTER U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

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it tried twice.

Anything else? No, your Honor. All right. Okay. Well, I'll grant the

MR. LANE: THE COURT:

motion to intervene that legitimizes your statements and make the order clear that you are not a party to this lawsuit, at this point in time, although it would have been a little trickery to say you were. MR. LANE: THE COURT: Thank you. And it would have eliminated that argument.

I never had a pending motion to consolidate, I've got to -- at this point in time, doesn't appear practical from the standpoint that no one wants to consolidate except, of course, the state. So I'm going to overrule that motion without prejudice to reconsidering at a different time. These issues are pretty much the same. I've got, also,

motion for summary judgment in the -- in the McNosky and Stricker case that was filed in the latter part of December, motion for extension of time to file the response. extensions. I don't grant indefinite I've never

So how long does the state want?

actually had anybody ask for an indefinite extension before. MR. DEANE: Yes, your Honor. We were hoping it was

I think we need about 20 days.

going to be part of a scheduling order following the consolidation. That was the idea. Well, I have no problem with the 20-day

THE COURT:

LILY I. REZNIK, OFFICIAL COURT REPORTER U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

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period. MR. DEANE: THE COURT: Thank you. You know, we've gotten -- we've received

the blessings of a great many requests for injunctive relief in issue cases of the day, and we get the TRO or immediate injunction post a hearing and then, a temporary injunction in the federal court, and it goes to the Fifth Circuit, unless the Fifth Circuit sometimes gets them out before I can get it there. In

fact, I've had the experience of seeing an opinion the day after the notice of appeal that was written before the appeal. And then, Judge Yeakel started a procedure that I like and I'm going to implement in this case, and that is, I'm going to have one hearing. I'll decide which one it is. And I'm going

to write an injunction or deny an injunction on that hearing, with the parties having the opportunity to put in the record what they want. up. And then, I'll enter judgment and then, it will go

Because, you know, we're just district judges. But one of the things that concerns me considerably is

all of the graveling between lawyers and non-lawyers on the same issues for the same results. The other side of the coin is, I'm

concerned about all of the writings and statements because the parties here are anticipating -- part of the parties here are anticipating that one judge, a district judge, or two circuit judges, or five Supreme Court judges, will tell the majority of the people that live in this state that the legal institution of

LILY I. REZNIK, OFFICIAL COURT REPORTER U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

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marriage, which was formed by the state in the powers given to them by the Constitution because they're reserve powers, can be changed by two people. correct. But I do want to find out about how long it's going to take, and then, I can deny certification and put you to trial at the same time as the other case. But I intend to have one And I'm not so sure that's going to be

judgment on these issues so that you could take them up in an orderly fashion to New Orleans. Now, if Judge Garcia wants to try the case or if the San Antonio case wants to participate in that, the clerk's office is open every weekday, and I will look at it. So let me ask, Mr. McNosky, and, Mr. Stricker, how long do you think it would take for you to be ready? MR. MCNOSKY: THE COURT: MR. MCNOSKY: THE COURT: MR. SCHESKE: Ready for what, your Honor? Ready for a trial. Two weeks. All right. And how about you, counsel?

You're speaking of the one injunction

hearing that you just described? THE COURT: issues. same. MR. SCHESKE: If we would have the standard motion Yes, sir, I am, because you have more

In a way, you have more issues, but the principle is the

response reply, sort of briefing schedule and then, a hearing?

LILY I. REZNIK, OFFICIAL COURT REPORTER U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

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Is that what you're asking? THE COURT: themselves. Well, these two gentlemen are representing

They're thinking all they're going to do is testify. Right. Apparently, yes.

MR. SCHESKE: THE COURT:

You're going to have witnesses, probably.

I need to know about how much time you think you're going to need in discovery so that I can put a date on that you can rest assured that you will go. booked. And I need to do that because I am

But I will -- I figure this case can't take more than And I'll work in that. I don't

three to three-and-a-half days, at most.

Because there may be experts, there may not be experts. know how you anticipate trying the case.

But how you do it with

the state, you're going to have to have some discovery and some rules and that type of thing. So I want to know how long you think it would take you to, one, know who you want to put on as witnesses and how long the discovery would take. MR. SCHESKE: certification? And this would be after we decide

Because, really, the -This will be a time after today. Okay. Well, the reason I ask is the

THE COURT: MR. SCHESKE:

trial may vary, depending on whether it's a class or not in terms of experts, and so forth. THE COURT: issues. Well, let's just say you'd have the same

LILY I. REZNIK, OFFICIAL COURT REPORTER U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

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MR. SCHESKE:

Okay.

I agree with your three to That sounds fine to me. I

three-and-a-half day time period.

would say we would need probably till late summer in order to -late summer or early fall in order to have discovery end, have motions, response, reply briefing, expert affidavits, and so forth. THE COURT: Well, I'm not going to hold anybody to what

they say today because this is new, but that gives me a good idea. MR. SCHESKE: THE COURT: MR. MURPHY: Something like that. All right. How about the state?

Your Honor, we agree it would take -- if

we're going to have discovery with depositions in the normal briefing schedule, it will -- it would have to be at least, you know, late summer, early fall, I think would be appropriate. We

also think that because this is a rational basis case, there's no need for -- necessarily for discovery. want to seek that. But one question, just for clarification so we can understand how these cases will proceed together and, yet, not be consolidated, how do you anticipate that to work? THE COURT: Well, I can anticipate it by me putting But if the plaintiffs

y'all to trial at the same day and issuing an order of the issues that will be tried. MR. MURPHY: Okay.

LILY I. REZNIK, OFFICIAL COURT REPORTER U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

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THE COURT: MR. MURPHY:

Be pretty easy.

Even I can do that.

Do you suggest that we move to transfer

the DeLeon case to this -THE COURT: MR. MURPHY: You've already heard my statement. Just to avoid any danger of inconsistent And also, just for the efficiency of

rulings at different times.

the state being defendants in all three cases. THE COURT: I don't know. I don't know that there's a

rush to this trial because I don't know that Judge Garcia is going to handle it any differently. But it's America; you can

file a motion to transfer, any motion that you want one way or the other. I want to make sure that every party for their own

interest has sufficient time to be ready and to put something on the record so that this case gets tried once and it gets tried well. Whether you call it a class-action case or you call it a

pro se-action case, it's really immaterial. There's one guiding thing and that is -- well, there are two, really, issues, and that is, one, will the courts amend the state law to include same-sex marriages either by discrimination, as one case says, or by alleged constitutional rights? I'm sure they're going to be in the pleadings, due And then, two, if that is so, or if

process or equal protection.

that is not so, how must Texas constitutionally react to marriages in other states that residents come here? But I've been thinking about this ever since these

LILY I. REZNIK, OFFICIAL COURT REPORTER U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

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cases came in, and there are a multitude of issues involved, a lot of issues, and that's the reason. get through. I'm not in any hurry to

Now, Judge Garcia might go on a motion for I mean, I don't know what he's going to But I don't want to try this case

temporary injunction. do.

I honestly do not know.

twice.

I want to give everybody the option of putting anything

in the evidence that you want because I'm concerned with the allegations that the plaintiffs have made. I'm also concerned

with whether or not the courts have any basis in this. You know, hopefully by the end of the summer, maybe we'll know something about the Supreme Court, but they stopped the Utah case. flip of a coin. No indication as to why. Who knows. Maybe they lost the

But the truth of the matter is,

these cases are asking for a change in the law that has been here for centuries. And discrimination against one or discrimination

against the majority, I know of no referendum in any state that supports the contentions of these lawsuits. On the other hand,

they are certainly legitimate contentions of the day. And that's the reason I intend to have y'all send a letter within the next ten days. telephone. You need to get on the And if you're going to

Y'all are all good lawyers.

have expert witnesses, give yourself some time to depose them. If you're not going to have expert witnesses, tell the other side. If you're going to have other than parties -- I don't know

that you need to take the deposition of the parties one way or

LILY I. REZNIK, OFFICIAL COURT REPORTER U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

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the other.

You know what the contentions are. But I could envision if I was on either side of this

case as a trial lawyer, a lot of things that I would be thinking about in the trial. But I want you to decide that within ten

days and give me a letter as to if you need discovery, if you don't need discovery, and if you do need discovery, how you want to handle it; then I'll give a rapid order, scheduling order and a definite date that you'll know how to go. proceed that way. MS. CASAS: Your Honor, if I may. And then, we'll

This may have some bearing on which case you choose to go on. You said you want to figure out the complications. We've

sought to make it a little less complicated.

In the Zahrn case, Prior to

Dana DeBeauvoir was served and named as a defendant.

answering, we contacted plaintiffs' attorney and -- the plaintiffs' attorney in the Zahrn case and reached an agreement prior to answering that they would not seek damages, fees or costs from Mrs. DeBeauvoir. THE COURT: That was charitable of you since you

couldn't get them, anyway. MS. CASAS: And we are just going to allow the AG to

defend the statute and don't anticipate engaging her. THE COURT: I didn't anticipate any lawyers

representing the clerks to be on the ship. MS. CASAS: I just wanted to take the opportunity to

LILY I. REZNIK, OFFICIAL COURT REPORTER U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

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let you know. THE COURT: All right. Okay. Well, we'll miss you.

Any questions or anybody have anything else Now, the ten days is going to be

that they would like to state?

important, counsel, and include these two gentlemen back here. Y'all give them the appropriate addresses so that you'll know how to address your letter. And then, oh -- then give me your And I will get you an

estimates, please, by the 28th in writing. order out as to when I can fit you in. Okay.

If there's not anything else, I'm in recess

until 9:00 in the morning. (End of proceedings.)

LILY I. REZNIK, OFFICIAL COURT REPORTER U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)

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* * * * * *

UNITED STATES DISTRICT COURT ) WESTERN DISTRICT OF TEXAS )

I, LILY I. REZNIK, Official Court Reporter, United States District Court, Western District of Texas, do certify that the foregoing is a correct transcript from the record of proceedings in the above-entitled matter. I certify that the transcript fees and format comply with those prescribed by the Court and Judicial Conference of the United States. WITNESS MY OFFICIAL HAND this the 16th day of January, 2014.

/s/Lily I. Reznik LILY I. REZNIK, CRR, RMR Official Court Reporter United States District Court Austin Division 501 W. 5th Street, Suite 4153 Austin, Texas 78701 (512)391-8792 Certification No. 4481 Expires: 12-31-14

LILY I. REZNIK, OFFICIAL COURT REPORTER U.S. DISTRICT COURT, WESTERN DISTRICT OF TEXAS (AUSTIN)