4:14-cv-00107 #22

Case 4:14-cv-00107-RH-CAS Document 22 Filed 04/02/14 Page 1 of 6
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA TALLAHASSEE DIVISION ) ) )Case No. 4:14-CV-00107-RH-CAS ) Plaintiffs, ) ) v. ) ) RICK SCOTT, in his official capacity as ) Governor of Florida, PAMELA BONDI, in her ) official capacity as Attorney General of Florida, ) JOHN H. ARMSTRONG, in his official capacity ) as Surgeon General and Secretary of Health for the ) State of Florida, CRAIG J. NICHOLS, in his ) official capacity as Agency Secretary for the ) Florida Department of Management Services, and ) HAROLD BAZZELL, in his official capacity as ) Clerk of Court and Comptroller for Washington ) County, Florida, ) ) Defendants, ) ) FLORIDA FAMILY ACTION, INC. ) ) Intervenor-Defendant.___________________) VERIFIED MOTION BY FLORIDA FAMILY ACTION, INC. FOR LEAVE TO INTERVENE AS A DEFENDANT AS OF RIGHT OR, IN THE ALTERNATIVE, BY PERMISSION (PARTIALLY CONSENTED) PROPOSED INTERVENOR, Florida Family Action, Inc., (FFAI), by and through counsel respectfully moves this Court for leave to intervene as of right pursuant to Fed. R. Civ. P. 24(a), or, alternatively, by permission under Fed. R. Civ. P. 24(b), as a Defendant, and in support thereof, states the following: JAMES DOMER BRENNER, CHARLES DEAN JONES, STEPHEN SCHLAIRET and OZZIE RUSS,
1.
Plaintiffs are asking this Court to superimpose Plaintiffs will onto the will
of the majority of Floridians, and to judicially repeal Amendment 2 of the Florida Constitution, which was enacted by more than 60 percent of Florida voters on November 4, 2008, and was codified as Fla. Const. Art. I, 27: Inasmuch as marriage is the legal union of only one man and one woman as husband and wife, no other legal union that is treated as marriage or the substantial equivalent thereof shall be valid or recognized. 2. Plaintiffs claim that memorializing the definition of marriage in the
Florida Constitution, as well as in Florida Statutes 741.212(1), (2), and (3), violates the United States Constitution because Plaintiffs want their relationships with people of the same sex, which, in the case of Plaintiffs Brenner and Jones was sanctioned in another jurisdiction, to be validated by Florida laws. Plaintiffs expect Florida to reform its laws to satisfy their desires to have marriage redefined so that they can obtain benefits and rights that the people of Florida and the Florida Constitution require to be given only to the union of one man and one woman. On that basis, Plaintiffs ask this Court to declare that the Florida Constitution and Section 741.212 violate the United States Constitution. 3. Plaintiffs ask this Court to throw out and invalidate the votes of almost
five (5) million Floridians who voted to reaffirm the long-recognized definition of marriage as the union between one man and one woman. 1
The official results of the November 2008 General Election show that Amendment 2 received 4,890,883 yes votes (61.9 percent) and 3,008,026 no votes (38.1 percent). Florida Secretary of State, Division of Elections, November 8, 2008 General Election Results, available at http://election.dos.state.fl.us/elections/resultsarchive/Index.asp?ElectionDate=11/4/2008 (last visited February 20, 2014). 2
4.
FFAI is a non-profit 501(c)(4) cultural action organization with thousands
of members throughout Florida, including in Tallahassee. 5. FFAIs mission is to inform, inspire and rally those who care deeply about
the family to greater involvement in the moral, cultural and political issues that face our state. As part of this mission, FFAI works to preserve and protect marriage as a foundational social institution, to educate Floridians on the underlying social goods attendant to the institution of marriage, to strengthen marriages, and to promote a strong foundational basis for raising children and ensuring the future of society. 6. FFAIs members were instrumental in drafting Amendment 2, gathering
signatures to place it on the ballot, defending it against legal challenges in Florida courts, including at the Florida Supreme Court, and educating and mobilizing voters to ultimately approve Amendment 2. 7. After Amendment 2 was approved by the Florida Supreme Court and
enacted by the people of Florida, FFAIs members continued to work throughout Florida, including in Tallahassee, to preserve and protect marriage as an institution based upon societal norms that teach, form and transform individuals, and that create stable and optimal foundations for families and for the perpetuation of society. FFAI has worked for years to strengthen the institution of marriage and to educate Floridians on the inherent social goods which result from strong, natural marriages. 8. In qualifying Amendment 2 for the ballot and voting it into existence,
FFAI, its members, and the millions of Floridians who approved Amendment 2 exercised
the right reserved to the people to amend the Constitution by initiative, under Article XI, 3 of the Florida Constitution. 9. FFAI meets all requirements for intervention as of right, having a
recognized interest in the subject matter of the litigation that would be impaired by an adverse ruling, and FFAIs interest is not protected by the existing defendants. Alternatively, FFAI meets all of the requirements for permissive intervention, as this timely motion and the memorandum of law in support of this motion, filed simultaneously herewith, show that FFAI has a defense that shares a common question of law or fact and that intervention would not prejudice any parties or cause undue delay of this case. 10. FFAI is ready and willing to file its Response to Plaintiff's Complaint,
which is attached hereto and incorporated by reference herein. WHEREFORE, for good cause shown, FLORIDA FAMILY ACTION, INC. respectfully requests that this Court grant its motion for leave to intervene as of right, or alternatively, by permission, and that the Court provide all other further relief to which FFAI may be entitled. Respectfully Submitted, Stephen M. Crampton LIBERTY COUNSEL P.O. Box 11108 Lynchburg, VA 24506 800-671-1776 court@lc.org /s/ Horatio G. Mihet_____________ Mathew D. Staver Anita L. Staver Horatio G. Mihet LIBERTY COUNSEL P.O. Box 540774 Orlando, FL 32854-0774 800-671-1776 court@lc.org
Attorneys for Proposed Intervenor FFAI
CERTIFICATION OF CONFERRAL Pursuant to N.D. Fla. Local Rule 7.1(B), I certify that, prior to filing this motion, I conferred with counsel for all served parties in a good faith attempt to resolve the matters raised herein, with the following results: 1) Counsel for the State of Florida Defendants (Rick Scott, Pamela Bondi, John H. Armstrong and Craig J. Nichols) indicated that they do not oppose the relief requested herein; 2) The Clerk Defendant (Harold Bazzell) has not been served and has not entered an appearance as of the filing of this Motion; and 3) Counsel for Plaintiffs indicated that they oppose this Motion. /s/ Horatio G. Mihet__________ HORATIO G. MIHET One of the Attorneys for FFAI
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was filed electronically on April 2, 2014 via the Courts CM/ECF system. Service will be effectuated upon all parties and counsel of record via the Courts electronic notification system.
/s/ Horatio G. Mihet__________ HORATIO G. MIHET One of the Attorneys for FFAI
Case 4:14-cv-00107-RH-CAS Document 22-1 Filed 04/02/14 Page 1 of 14
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA TALLAHASSEE DIVISION ) ) )Case No. 4:14-CV-00107-RH-CAS ) Plaintiffs, ) ) v. ) ) RICK SCOTT, in his official capacity as ) Governor of Florida, PAMELA BONDI, in her ) official capacity as Attorney General of Florida, ) JOHN H. ARMSTRONG, in his official capacity ) as Surgeon General and Secretary of Health for the ) State of Florida, CRAIG J. NICHOLS, in his ) official capacity as Agency Secretary for the ) Florida Department of Management Services, and ) HAROLD BAZZELL, in his official capacity as ) Clerk of Court and Comptroller for Washington ) County, Florida, ) ) Defendants, ) ) FLORIDA FAMILY ACTION, INC. ) ) Intervenor-Defendant ) MEMORANDUM OF LAW OF IN SUPPORT OF FLORIDA FAMILY ACTION, INC.S MOTION TO INTERVENE Proposed Intervenor, FLORIDA FAMILY ACTION, INC. ("FFAI"), by and through counsel, respectfully submits the following Memorandum of Law in Support of its concurrently-filed Verified Motion for Leave to Intervene as a Defendant, and incorporates by reference the facts stated therein. FFAI respectfully requests that this Court grant its motion to intervene as a matter of right under Fed. R. Civ. P. 24(a), or in the alternative, grant it permissive intervention under Fed. R. Civ. P. 24(b). JAMES DOMER BRENNER, CHARLES DEAN JONES, STEPHEN SCHLAIRET and OZZIE RUSS,
INTRODUCTION Plaintiffs attempt to judicially repeal a constitutional amendment initiated by Florida citizens and overwhelmingly approved by nearly five (5) million Floridians seeks to disenfranchise those voters, threatens fundamental constitutional rights, and attacks a foundational societal institution marriage that FFAI and its members have fought long and hard to preserve, strengthen, and protect. FFAI is a non-profit corporation that was involved from the very beginning in the initiation, qualification, defense and passage of Amendment 2. Its integral involvement in the development and passage of Amendment 2, and its continuing efforts to preserve and protect the institution of marriage gives FFAI a unique and substantial stake in the outcome of this constitutional challenge. FFAIs interests cannot be adequately protected unless it is permitted to intervene. LEGAL ARGUMENT FFAI is seeking intervention as of right under F. R. Civ. P. 24(a), or in the alternative, permissive intervention under Rule 24(b). FFAI seeks to intervene as a Defendant in order to protect the rights of its members and other Florida voters who face disenfranchisement and loss of constitutional rights if Floridas marriage amendment and statutes are invalidated. FFAI easily satisfies the requirements of intervention as of right. It has moved to intervene in a timely fashion, has a significant, legally protectable interest in the outcome of this litigation, its interest will be substantially impaired by an adverse decision, and its interests are not adequately represented by the existing parties. Alternatively, FFAI should be granted permission to intervene as a Defendant to safeguard its significant interests in protecting its constituents right to vote, as well as
families, responsible procreation, and the optimal upbringing of children, currently protected by Fla. Const. Art. I 27 and Fla. Stat. 741.212. FFAI satisfies the requirements of permissive intervention because its motion is timely, it presents questions of both law and fact in common with the underlying litigation, and its intervention will not unduly delay, burden, or prejudice any existing party. I. FFAI SATISFIES THE REQUIREMENTS FOR INTERVENTION AS OF RIGHT. A party seeking to intervene as of right under Fed. R. Civ. P. 24(a) must demonstrate that its petition is timely and that: 1) it has a recognized interest in the subject matter of the litigation; 2) the interest is one that might be impaired by the disposition of the case; and 3) the interest is not adequately protected by the existing parties. Georgia v. United States Army Corps of Engrs, 302 F.3d 1242, 1250 (11th Cir. 2002). FFAI satisfies all of the requirements. A. FFAIs Motion is Timely.
Timeliness is a prerequisite for either intervention as of right or permissive intervention. District courts must consider four factors in determining whether a motion for intervention is timely: 1) the length of time that passed between when the proposed intervenor became aware of its interest in the case and when it sought intervention; 2) prejudice to the existing parties as a result of the proposed intervenors failure to apply as soon as it was aware of its interest; 3) prejudice to the proposed intervenor if its petition is denied; and (4) unusual circumstances militating either for or against a determination that the application is timely. United States v. Jefferson Cnty., 720 F.2d 1511, 1516 (11th Cir. 1983) (internal citation omitted). FFAIs motion is timely under all of these factors.
FFAI became aware that Plaintiffs had filed their Complaint on or about March 4, 2014, when summonses were issued for the Complaint that had been filed on February 28, 2014. Plaintiffs filed an Amended Complaint on March 18, 2014, only two weeks before FFAI filed its motion to intervene, and the response deadline has not yet expired. FFAI is prepared to file its response (submitted simultaneously with its Motion to Intervene) to the Amended Complaint on or before the due date. FFAI is also ready and able to respond to Defendants Amended Motion for Preliminary Injunction as directed by the Court. Consequently, there will be no prejudice to the existing parties if FFAI is permitted to intervene. Conversely, as discussed more fully below, FFAI will suffer significant prejudice if it is not granted intervention at the early stages of this litigation, when it can challenge Plaintiffs request for injunctive relief. Plaintiffs are asking this Court to invalidate a state constitutional amendment adopted overwhelmingly by Florida voters, due largely to FFAIs efforts. FFAI therefore satisfies the timeliness prong for both intervention as of right and permissive intervention. B. FFAI has a Direct, Substantial and Legally Protectable Interest in Protecting Voters Rights to Amend the Constitution and Preserving the Definition of Marriage as the Union of one Man and one Woman.
FFAIs integral involvement in every aspect of Amendment 2, and its continuing work in preserving the definition of marriage give it the direct, substantial and legally protectable interest necessary to intervene as a matter of right. Washington State Bldg. and Construction Trades Council v. Spellman, 684 F.2d 627, 630 (9th Cir. 1982); Georgia, 302 F.3d at 1249. Rule 24 traditionally has received a liberal construction in favor of applicants for intervention. Spellman, 684 F.2d at 630. As a public interest group
devoted to passage of Amendment 2, FFAI is entitled to intervention as a matter of right under Rule 24(a), as was the public interest group in Spellman. Id. In another case involving a challenge to a state definition of marriage as the union of one man and one woman, the district court in Hawaii concluded that the Hawaii Family Foundation which like FFAI here, was instrumental in the passage of the states marriage amendment and worked following its passage to continue to protect marriage was entitled to intervene as of right. Jackson v. Abercrombie, 282 F.R.D. 507, 513 (D. Haw. 2012). The Jackson court found that HFF through its actions aimed at getting the marriage amendment ratified and ensuring that the definition of marriage as set forth in 5721 is not changed, has actively supported Hawaii's marriage laws such that it has a significant protectable interest in this case. Id. at 517. The same is true with FFAI here. In Georgia, the state sought an order compelling the Corps to increase the supply of water from Lake Lanier available for use by the city of Atlanta and to permit increased wastewater discharges. Id. at 1250. The State of Florida sought to intervene, arguing that Georgias requested relief would have a direct and adverse effect on its downstream interests by hindering the continued existence of endangered or threatened species in Florida and reducing the stock of fish and seafood available for harvest in the Apalachicola River and Bay. Id. The Eleventh Circuit found that Florida had a legally protectable interest in the quality and quantity of water in the Apalachicola River and Bay, an interest that would be directly affected by Georgias request for increased discharges from other water sources that fed in the Apalachicola River and Bay. Id. at 1251. This Court noted that, for purposes of intervention, Floridas interest need not,
however, be of a legal nature identical to that of the claims asserted in the main action. Id. (quoting Chiles v. Thornburgh, 865 F.2d 1197, 1214 (11th Cir. 1989)). Therefore, the fact that Georgias request involved only intrastate releases of water and increases in discharges did not mean that Floridas interest was not direct, substantial and legally protectable. Id. Whenever the action of one state reaches into the territory of another, the question of the extent and limitations of the respective rights of the states becomes a matter of justiciable dispute between them. Id. Since the resolution of Georgias intrastate water issues would affect Floridas interest in related waterways, Florida satisfied the direct, substantial and protectable interest requirement for intervention as of right. Id. Similarly, in this case, FFAI satisfies the direct, substantial and protectable interest requirement. FFAIs interests in maintaining the integrity of the constitutional amendment process in Florida, in protecting Floridians voting rights and the definition of marriage as the union of one man and one woman for posterity, and in strengthening intact biological families are directly at issue and will be substantially affected by Plaintiffs challenge to Amendment 2. FFAIs interests can be protected by its participation as a Defendant. Therefore, as was true with the State of Florida in the Georgia case and HFF in Jackson, FFAI has a significant interest in the subject matter of this case and should be granted intervention as a matter of right. C. FFAIs Ability to Protect Its Interests will be Impaired by the Disposition of the Litigation.
FFAI will be utterly unable to protect its interests in the integrity of the constitutional amendment process and preserving marriage as the union of one man and one woman if this Court grants Plaintiffs request to invalidate Amendment 2. As is true
here, where a party seeking to intervene in an action claims an interest in the very property and very transaction that is the subject of the main action, the potential stare decisis effect supplies the practical disadvantage which warrants intervention as of right. Stone v. First Union Corp., 371 F.3d 1305, 1309-10 (11th Cir. 2004) (citing Chiles, 865 F.2d at 1214). As was true with the proposed intervenors in Stone, the practical impairment FFAI faces here is significant. If the Court judicially invalidates Amendment 2, then the integrity of amendment process will be diminished and preservation of the definition of marriage as the union of one man and one woman, with the concomitant efforts of strengthening the institutions of marriage and the family, will be made all but impossible. This Courts decision will be cited as precedent for further attempts to repeal unpopular constitutional amendments, which will diminish the right reserved to the people to amend the state Constitution. FFAIs efforts to preserve the definition of marriage and thereby bolster the societal benefits of intact biological families will be significantly diminished, if not eliminated, as proponents for re-defining marriage will point to this Courts decision as authority for further deconstructing the institution of marriage and its attendant rights and obligations. As such, it is beyond question that Proposed Intervenors interests will be impaired by the outcome of this litigation. D. FFAIs Interests are not Adequately Represented by Existing Parties.
While the proposed intervenor is required to show that his interests are not represented by existing parties, this burden is treated as minimal. Georgia, 302 F.3d at 1255; Trbovich v. United Mine Workers, 404 U.S. 528, 538 n.10 (1972). The burden is
satisfied if intervenors can demonstrate that the existing parties representation of their interests may be inadequate. Trbovich, 404 U.S. at 538 n.10. As was true with Floridas interest in Georgia, FFAIs interests here are independent of the interests of the parties. While the governor and attorney general may defend the constitutionality of the marriage amendment itself, FFAI, as an organization that assisted in the passage of the ballot initiative, has an interest not only in the ballot process, but also in the validity of defining marriage as the union of one man and one woman. Intervention as of right should be granted when there is a difference in the interests between the parties and the proposed intervenor. Stone v. First Union Corp., 371 F.3d 1305, 1312 (11th Cir. 2004). In Stone, the Eleventh Circuit reviewed the Southern District of Florida's refusal to grant intervention to an intervening plaintiff in an employment discrimination case. Id. The court reasoned that "[a]lthough all of the plaintiffs allege to have been subject to the same plan of age discrimination, the manner in which they were discriminated against may not be identical," and the court concluded "the plaintiffs may wish to emphasize different aspects of First Union's employment policies." Id. Thus, the court held "that the difference in interests is sufficient to overcome the weak presumption of adequate representation." Id. FFAIs interest in the validity of defining marriage as the union of one man and one woman as well as the integrity of the ballot process means that FFAIs interests are not identical to Defendants. Therefore, the presumption that Defendants, as governmental agencies and officers will adequately represent FFAIs interest does not apply. See United States v. City of Miami, 278 F.3d 1174, 1179 (11th Cir. 2002). FFAI has a similar
ultimate goal as the existing Defendants, i.e., ensuring that Amendment 2 and the marriage statutes are upheld. However, FFAIs interests reach beyond the states ministerial interest in upholding duly enacted amendments and statutes, to the broader issues of the societal benefits of preserving the definition of marriage as the union of one man and one woman, the integrity of the electoral process, and the right of the voters to amend the Constitution. Notably, Defendants in this case do not oppose FFAIs Intervention. (See Certificate of Conferral following Motion to Intervene). Because FFAIs interests reach beyond the governments interest in merely preventing the invalidation of the law, the presumption that the government adequately represents its constituency when it is acting on its behalf is easily rebutted. Jackson, 282 F.R.D. at 517. In determining whether the proposed intervenor has rebutted the presumption, courts consider several factors, including (1) whether the interest of a present party is such that it will undoubtedly make all of a proposed intervenor's arguments; (2) whether the present party is capable and willing to make such arguments; and (3) whether a proposed intervenor would offer any necessary elements to the proceeding that other parties would neglect. Id. at 517-18. Analysis of these factors in this case shows that FFAI rebuts any presumption that the Defendants (who consent to intervention) will adequately represent FFAIs interest. First, the government will not and cannot make all of FFAIs proposed arguments. Defendants are expected to argue that Amendment 2 and the challenged statutes are validly enacted measures that do not violate the United States Constitution. However, Defendants are not likely to make the further argument that invalidating the laws will
threaten the reserved rights of the people of Florida (including FFAIs members) to amend the state Constitution. More importantly, Defendants are not well equipped to make the public policy and social welfare arguments that underlie the memorialization of the definition of marriage as the union of one man and one woman as part of the Florida Constitution. After all, memorializing the definition of marriage in the state Constitution was a citizen, not government, initiative. FFAI, which has been principally involved in all aspects of that initiative, as well as continuing to preserve and protect the institution of marriage since the passage of Amendment 2, is willing and capable of making these arguments. In bringing these arguments to the case, FFAI will present elements that are critical to this Courts analysis of Plaintiffs challenge to the duly enacted laws of the State of Florida. These arguments will enable the Court to have a comprehensive perspective of the full ramifications of Plaintiffs claims. Here, FFAI's interests are sufficiently different from those of the state to overcome the weak presumption of adequate representation. FFAIs interests reach beyond the states general interest in validating duly enacted amendments and statutes. FFAI's interests include: establishing the application of rational basis scrutiny and that there are compelling interests for defining marriage as the union of one man and one woman; arguing the broader issues of the societal benefits of preserving that definition of marriage; and defending the integrity of the electoral process and the right of the voters to amend the Constitution. As representatives of the State of Florida, the existing defendants cannot adequately represent the unique and substantial interests of FFAIs members, who
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assisted in developing and passing the amendment, and whose votes are threatened by Plaintiffs challenge. While the existing defendants will litigate this case with the best interests of the state as a whole in mind, FFAI will provide further, more specific protection for the interests of those who exercised their right to amend the Constitution. Because of this divergence of interest, FFAI has rebutted the presumption of adequate representation by the State and should be entitled to intervene as a matter of right. II. FFAI SATISFIES INTERVENTION. THE STANDARDS FOR PERMISSIVE
Alternatively, this Court should find that FFAI meets the standards for permissive intervention under Rule 24(b). Under Rule 24(b) the court may permit anyone to intervene who . . . has a claim or defense that shares with the main action a common question of law or fact. Fed. R. Civ. P. 24(b)(1)(B). A court is given broad discretion to allow a nonparty to intervene in a lawsuit where [1] the nonpartys claim contains a common question of law or fact and [2] intervention will not hinder the adjudication of the original lawsuit. Georgia 302 F.3d at 1250. When, as is true here, an issue involved in the litigation is of critical importance to a proposed intervenor, its participation in the litigation should not be discouraged. See Arizona v. California, 460 U.S. 605, 614 (1983) (finding that Indian tribes should be granted permissive intervention in lawsuit involving water rights). As discussed more fully above, FFAIs motion is timely. FFAI meets the other standards for permissive intervention. Therefore its motion for permissive intervention should be granted.
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A.
FFAIs Defense has Questions of Law and Fact in Common with Plaintiffs Claims.
After considering timeliness, the Court must determine whether the applicant's claim or defense and the main action have a question of law or fact in common. Fed. R. Civ. P. 24(b); see also Mitchell v. McCorstin, 728 F.2d 1422, 1423 (11th Cir. 1984). This determination is not discretionary. Mitchell, 728 F.2d at 1423. In addition, courts are to construe the interest requirement of section (b)(2) liberally. Stallworth v. Monsanto Co., 558 F.2d 257, 269 (5th Cir. 1977). FFAIs interests in this litigation are wholly connected to, and the mirror image of, Plaintiffs underlying claims and so are sufficiently intertwined to warrant permissive intervention. Plaintiffs, Defendants and FFAI share an interest in determining the constitutionality of the Florida marriage amendment and statutes. Defendants and FFAI have related interests in defending these laws against Plaintiffs constitutional challenge, and FFAI has additional private interests in asking this Court to uphold these laws. All of those interests arise out of one common issuewhether the Florida amendment and statutes defining marriage as the union of one man and one woman are constitutional. Consequently, FFAIs defense of the institution of marriage and of the peoples right to amend the Constitution shares a common question of law and fact with Plaintiffs constitutional challenge. Therefore, FFAI should be granted permissive intervention. B. FFAIs Participation will not Unduly Delay or Prejudice any Party.
FFAIs timely request for intervention, and its comprehensive perspective on the validity of Amendment 2 and the statutes at issue, mean that its participation in the
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litigation will not unduly delay the proceedings nor prejudice any party. The question of undue delay and prejudice of parties is discretionary. United States v. S. Florida Water Mgmt. Dist., 922 F.2d 704, 712 (11th Cir. 1991). The consideration of delay is generally heavily dependent on the timeliness question: it is appropriate to consider the total passage of time in determining the ultimate question of permissive intervention. Worlds v. Dep't of Health & Rehabilitative Servs., State of Fla., 929 F.2d 591, 595 (11th Cir. 1991). Here, the Amended Complaint was filed only two weeks before FFAI filed the instant motion, and the response deadline has not yet expired. Additionally, FFAI is not adding to the issues in the litigation, but is merely seeking to provide a more comprehensive perspective on the validity of the marriage amendment and statutes. Consequently, allowing intervention would provide this Court with a more complete record to enable it to make a just, speedy, and efficient determination of the critical constitutional issues raised by Plaintiffs challenge. There will be little increased expense or burden imposed on the parties. Therefore, FFAI will not unduly delay or prejudice any party and should it be permitted to intervene. CONCLUSION FFAI meets the standards for intervention both as of right and by permission. Therefore FFAI requests that this Court grant its motion to intervene as a matter of right, or in the alternative, that it grant FFAI permissive intervention.
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Respectfully submitted, Stephen M. Crampton LIBERTY COUNSEL P.O. Box 11108 Lynchburg, VA 24506 800-671-1776 court@lc.org /s/ Horatio G. Mihet_____________ Mathew D. Staver Anita L. Staver Horatio G. Mihet LIBERTY COUNSEL P.O. Box 540774 Orlando, FL 32854-0774 800-671-1776 court@lc.org
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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA TALLAHASSEE DIVISION ) ) )Case No. 4:14-CV-00107-RH-CAS ) Plaintiffs, ) ) v. ) ) RICK SCOTT, in his official capacity as ) Governor of Florida, PAMELA BONDI, in her ) official capacity as Attorney General of Florida, ) JOHN H. ARMSTRONG, in his official capacity ) as Surgeon General and Secretary of Health for the ) State of Florida, CRAIG J. NICHOLS, in his ) official capacity as Agency Secretary for the ) Florida Department of Management Services, and ) HAROLD BAZZELL, in his official capacity as ) Clerk of Court and Comptroller for Washington ) County, Florida, ) ) Defendants, ) ) FLORIDA FAMILY ACTION, INC., ) ) Intervenor Defendant. ) INTERVENOR DEFENDANT'S ANSWER TO PLAINTIFFS FIRST AMENDED COMPLAINT Intervenor-Defendant Florida Family Action, Inc., (FFAI) by and through counsel, responds to Plaintiffs First Amended Complaint (dkt. 10) as follows: INTRODUCTION FFAI denies the facts alleged in the introductory paragraph of the Amended Complaint and denies that Plaintiffs are entitled to any relief whatsoever, as stated further below. JAMES DOMER BRENNER, CHARLES DEAN JONES, STEPHEN SCHLAIRET and OZZIE RUSS,
1.
FFAI does not have sufficient information to admit or to deny the
allegations in Paragraph 1, and therefore denies them. 2. FFAI does not have sufficient information to admit or to deny the
allegations in Paragraph 5, and therefore denies them. 6. FFAI admits that Plaintiffs same-sex relationship is not and cannot be
legally recognized as a marriage, which is defined as the union of one man and one woman under the Florida Constitution and Florida statutes. FFAI does not have sufficient information to admit or to deny the remaining allegations in Paragraph 6, and therefore denies them. 7. FFAI does not have sufficient information to admit or to deny the
allegations in Paragraph 7, and therefore denies them. 8. FFAI admits that a same-sex couple cannot be recognized as legally
married under Florida law. As to the remaining allegations in Paragraph 8, FFAI does not have sufficient information to admit or to deny the allegations and therefore denies them. 9. FFAI does not have sufficient information to admit or to deny the
allegations in Paragraph 9, and therefore denies them.
10.
allegations in Paragraph 20, and therefore denies them.
21.
allegations in Paragraph 27, and therefore denies them. 28. 29. 30. 31. 32. 33. FFAI admits the allegations of Paragraph 28. FFAI admits the allegations of Paragraph 29. FFAI admits the allegations of Paragraph 30. FFAI admits the allegations of Paragraph 31. FFAI admits the allegations of Paragraph 32. FFAI does not have sufficient information to admit or to deny the
allegations in Paragraph 33, and therefore denies them. 34. FFAI denies each and every allegation of Paragraph 34.
35.
FFAI admits that Plaintiffs base their Complaint upon 42 U.S.C. 1983
and 1988. FFAI denies each and every remaining allegation of Paragraph 35. 36. 37. 38. FFAI admits the allegations of Paragraph 36. FFAI admits the allegations of Paragraph 37. FFAI does not have sufficient information to admit or deny the allegations
in Paragraph 38 and on that basis denies each and every allegation. 39. FFAI admits that Paragraph 39 accurately states the text of Article I 27 of
the Florida Constitution. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 1-48 above. 50. FFAI admits that Paragraph 50 accurately states a portion of the text of the FFAI admits that Paragraph 40 accurately states the text of the statute. FFAI admits that Paragraph 41 accurately states the text of the statute. FFAI denies each and every allegation of Paragraph 42. FFAI denies each and every allegation of Paragraph 43. FFAI denies each and every allegation of Paragraph 44. FFAI denies each and every allegation of Paragraph 45. FFAI denies each and every allegation of Paragraph 46. FFAI denies each and every allegation of Paragraph 47. FFAI denies each and every allegation of Paragraph 48. FFAI incorporates by reference the averments and denials of Paragraphs
Fourteenth Amendment to the United States Constitution.
51.
FFAI admits that the right to marrydefined as the union of one man and
one womanis a fundamental right under the United States Constitution and is protected by the due process clause. 52. 53. 54. 55. 56. 57. 58. 59. 60. 1-48 above. 61. FFAI admits that Paragraph 61 accurately states a portion of the text of the FFAI denies each and every allegation of Paragraph 52. FFAI denies each and every allegation of Paragraph 53. FFAI denies each and every allegation of Paragraph 54. FFAI denies each and every allegation of Paragraph 55. FFAI denies each and every allegation of Paragraph 56. FFAI denies each and every allegation of Paragraph 57. FFAI denies each and every allegation of Paragraph 58. FFAI denies each and every allegation of Paragraph 59. FFAI incorporates by reference the averments and denials of Paragraphs
Fourteenth Amendment of the United States Constitution. 62. 63. 64. 65. 66. 67. 68. FFAI denies each and every allegation of Paragraph 62. FFAI denies each and every allegation of Paragraph 63. FFAI denies each and every allegation of Paragraph 64. FFAI denies each and every allegation of Paragraph 65. FFAI denies each and every allegation of Paragraph 66. FFAI denies each and every allegation of Paragraph 67. FFAI denies each and every allegation of Paragraph 68.
69. 70. 71. 72. 73. 74. 75. 76. 1-48 above. 77. 78. 79. 1-48 above. 80.
FFAI denies each and every allegation of Paragraph 69. FFAI denies each and every allegation of Paragraph 70. FFAI denies each and every allegation of Paragraph 71. FFAI denies each and every allegation of Paragraph 72. FFAI denies each and every allegation of Paragraph 73. FFAI denies each and every allegation of Paragraph 74. FFAI denies each and every allegation of Paragraph 75. FFAI incorporates by reference the averments and denials of Paragraphs
FFAI admits the allegations of Paragraph 77. FFAI denies each and every allegation of Paragraph 78. FFAI incorporates by reference the averments and denials of Paragraphs
FFAI admits that Paragraph 80 accurately states the text of Article VI,
Section II of the United States Constitution. 81. 82. 83. FFAI admits the allegations of Paragraph 81. FFAI denies each and every allegation of Paragraph 82. Paragraph 83 consists entirely of legal conclusions to which no response is
required. To the extent a response is required, FFAI denies each and every allegation of Paragraph 83.
84.
Paragraph 84 consists entirely of legal conclusions to which no response is
required. To the extent a response is required, FFAI denies each and every allegation of Paragraph 84. 85. Paragraph 85 consists entirely of legal conclusions to which no response is
required. To the extent a response is required, FFAI denies each and every allegation of Paragraph 85. 86. 87. 1-48 above. 88. FFAI admits that Paragraph 88 accurately states a portion of the text of the FFAI denies each and every allegation of Paragraph 86. FFAI incorporates by reference the averments and denials of Paragraphs
First Amendment to the United States Constitution. 89. 90. 91. 92. 93. 1-48 above. 94. 95. 96. FFAI denies each and every allegation of Paragraph 94. FFAI denies each and every allegation of Paragraph 95. FFAI denies each and every allegation of Paragraph 96, including the FFAI admits the allegation of Paragraph 89. FFAI denies each and every allegation of Paragraph 90. FFAI denies each and every allegation of Paragraph 91. FFAI denies each and every allegation of Paragraph 92. FFAI incorporates by reference the averments and denials of Paragraphs
allegations in subparagraphs a-r. 97. FFAI denies each and every allegation of Paragraph 97.
98. 99. 100. 101.
FFAI denies each and every allegation of Paragraph 98. FFAI denies each and every allegation of Paragraph 99. FFAI denies each and every allegation of Paragraph 100. FFAI denies each and every allegation of Paragraph 101. RESIDUAL DENIAL
FFAI denies each and every allegation in the Complaint other than those specifically admitted above. FIRST DEFENSE As a first defense, FFAI asserts that Plaintiffs fail to state a cause of action upon which relief can be granted. SECOND DEFENSE As a second defense, FFAI asserts that Plaintiffs are not entitled to relief under the doctrine of unclean hands. THIRD DEFENSE As a third defense, FFAI asserts that Plaintiffs are not entitled to relief because they have failed to suffer any harm that can be attributed to the Defendants. FOURTH DEFENSE As a fourth defense, FFAI asserts that Plaintiffs are not entitled to relief because any injury that Plaintiffs might have suffered is attributable to their own actions. FIFTH DEFENSE As a fifth defense, FFAI asserts that in qualifying Amendment 2 for the ballot and voting it into existence, FFAI, its members, and the millions of Floridians who approved
Amendment 2 exercised the right reserved to the people to amend the Constitution by initiative, under Article XI, 3 of the Florida Constitution, and to set the public policy of their state. The relief sought by Plaintiffs in this action would require that those votes be discarded, thereby violating the constitutional and statutory voting rights of millions of Floridians, as well as their equal protection and due process rights. SIXTH DEFENSE As a sixth defense, FFAI asserts that Plaintiffs claims violate the separation of powers doctrine and transgress the limits of the Tenth Amendment. SEVENTH DEFENSE As a seventh defense, FFAI asserts that Article I 27 of the Florida Constitution and Florida Stat. 741.212 serve the States compelling interest in protecting those engaged in dangerous homosexual behaviors, children, and societys cornerstone, the family. These statutes are constitutional and similar statutes have been determined to be constitutional in various other jurisdictions. WHEREFORE, Intervenor Defendant FFAI prays that Plaintiffs Complaint be dismissed, with prejudice; that Plaintiffs take nothing by their Complaint; that Plaintiffs be charged with the costs and expenses of this suit, including reasonable attorneys fees; and for such other and further relief as the Court shall deem just and proper.
10
Respectfully submitted, Stephen M. Crampton LIBERTY COUNSEL P.O. Box 11108 Lynchburg, VA 24506 800-671-1776 court@lc.org /s/ Horatio G. Mihet_____________ Mathew D. Staver Anita L. Staver Horatio G. Mihet LIBERTY COUNSEL P.O. Box 540774 Orlando, FL 32854-0774 800-671-1776 court@lc.org
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4:14-cv-00107 #22

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Case 4:14-cv-00107-RH-CAS Document 22 Filed 04/02/14 Page 1 of 6

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FFAI is a non-profit 501(c)(4) cultural action organization with thousands

Case 4:14-cv-00107-RH-CAS Document 22 Filed 04/02/14 Page 4 of 6

Attorneys for Proposed Intervenor FFAI

Case 4:14-cv-00107-RH-CAS Document 22 Filed 04/02/14 Page 5 of 6

Case 4:14-cv-00107-RH-CAS Document 22 Filed 04/02/14 Page 6 of 6

Case 4:14-cv-00107-RH-CAS Document 22-1 Filed 04/02/14 Page 1 of 14

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Attorneys for Proposed Intervenor FFAI

Case 4:14-cv-00107-RH-CAS Document 22-2 Filed 04/02/14 Page 1 of 11

Case 4:14-cv-00107-RH-CAS Document 22-2 Filed 04/02/14 Page 2 of 11

FFAI does not have sufficient information to admit or to deny the

allegations in Paragraph 9, and therefore denies them.

Case 4:14-cv-00107-RH-CAS Document 22-2 Filed 04/02/14 Page 3 of 11

FFAI does not have sufficient information to admit or to deny the

allegations in Paragraph 20, and therefore denies them.

Case 4:14-cv-00107-RH-CAS Document 22-2 Filed 04/02/14 Page 4 of 11

FFAI does not have sufficient information to admit or to deny the

Case 4:14-cv-00107-RH-CAS Document 22-2 Filed 04/02/14 Page 5 of 11

Fourteenth Amendment to the United States Constitution.

Case 4:14-cv-00107-RH-CAS Document 22-2 Filed 04/02/14 Page 6 of 11

Case 4:14-cv-00107-RH-CAS Document 22-2 Filed 04/02/14 Page 7 of 11

Case 4:14-cv-00107-RH-CAS Document 22-2 Filed 04/02/14 Page 8 of 11

Paragraph 84 consists entirely of legal conclusions to which no response is

Case 4:14-cv-00107-RH-CAS Document 22-2 Filed 04/02/14 Page 9 of 11

98. 99. 100. 101.

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Case 4:14-cv-00107-RH-CAS Document 22-2 Filed 04/02/14 Page 11 of 11

Attorneys for Proposed Intervenor FFAI

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