Rick Perry v. Charles Judd

Filing 11

RESPONSE/ANSWER by Rick Perry in 12-1042 to Motion to suspend [10], notice requesting response [8], Motion to suspend [3]. Nature of response: in opposition. [12-1042, 12-1047] Edward Bagnell

Record Nos. 12-1042 & 12-1047
____________________________________
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
THE HONORABLE RICK PERRY,
Plaintiff-Appellee-Respondent,
v.
CHARLES JUDD, KIMBERLY BOWERS, and DON PALMER, members of
the Virginia State Board of Elections, in their official capacities,
Defendants - Appellants - Movants.
RESPONDENT’S BRIEF IN OPPOSITION TO DEFENDANTSAPPELLANTS’ EMERGENCY MOTION TO SUSPEND PRELIMINARY
INJUNCTION WHILE AN APPEAL IS PENDING
Hugh M. Fain, III
(VSB No. 26494)
Email: [e-mail]
M. F. Connell Mullins, Jr.
(VSB No. 47213)
Email: [e-mail]
Edward Everett Bagnell, Jr.
(VSB No. 74647)
Email: [e-mail]
SPOTTS FAIN PC
411 East Franklin Street, Suite 600
Richmond, Virginia 23219
Telephone: [phone]
Facsimile: [phone]

Joseph M. Nixon
Email: [e-mail]
James E. (“Trey”) Trainor, III
BEIRNE, MAYNARD & PARSONS, L.L.P.
1300 Post Oak Boulevard, Suite 2500
Houston, TX 77056
Telephone: [phone]
Facsimile: [phone]
ATTORNEYS FOR PLAINTIFF
THE HONORABLE RICK PERRY

TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ............................................................................ iii
FACTS AND NATURE OF THE CASE ........................................................ 1
DEFENDANTS ARE NOT ENTITLED TO APPEAL ................................... 2
DEFENDANTS HAVE NOT SHOWN ABUSE OF DISCRETION .............. 5
No Incorrect Legal Standard was Applied ........................................................ 5
No Clear Error in Factual Findings................................................................... 6
DEFENDANTS HAVE NOT SHOWN AUTHORITY
TO VACATE THE ORDER ............................................................................. 8

CONCLUSION ................................................................................................. 8
CERTIFICATE OF SERVICE ......................................................................... 11

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TABLE OF AUTHORITIES
Cases

Page

Brown v. Nucor Corp., 576 F.3d 149 (4th Cir. 2009)....................................... 5
Buckley v. Am. Constitutional Law Foundation, 525 U.S. 182 (1999) ............ 6
Carson v. Am. Brands, Inc., 450 U.S. 79 (1981) .............................................. 3
Lux v. Rodriguez, 131 S. Ct. 5 (2010)............................................................... 5
Meyer v. Grant, 486 U.S. 414 (1988) ............................................................... 6
Muffley ex rel. N.L.R.B. v. Spartan Mining Co.,
570 F.3d 534 (4th Cir. 2009) ....................................................................... 5
Ohio Citizens for Responsible Energy, Inc. v. NRC,
479 U.S. 1312 (1986) ................................................................................... 6
Winters v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008)......................... 2, 8

Statutes
28 U.S.C. § 1292(a)(1) ...................................................................................... 3, 4
Rules
FED. R. APP. P. 8................................................................................................ 1
Treatises
Discretionary Review of Interlocutory Orders,
77 NOTRE DAME L. REV. 175 (2001) ................................................................ 3, 4
Robert J. Martineau, MODERN APPELLATE PRACTICE § 4.1 (1983) .................. 3

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FACTS AND NATURE OF THE CASE
Plaintiff, the Honorable Rick Perry, Governor of the State of Texas, and
Republican Candidate for the President of the United States, filed this lawsuit
because he believes he was unconstitutionally restricted from having his name
appear alongside others in the Republican primary for the Commonwealth of
Virginia. On January 10, 2012, the District Court entered an Order (Document
#54) directing the Defendants, members of the State Board of Elections, to send
instructions to the local electoral boards (which are not parties), directing them
not to order, print or mail ballots prior to the Court’s hearing on the requested
injunctive relief scheduled for January 13, 2012. The Court on page four of
Document #54 recognizes the local boards may choose to disregard the Court’s
order, but finds there is ample time for local boards to comply with State and
federal laws as well as a Consent Decree, after January 13, 2012.
On January 10, 2012, Defendants filed a Supplemental Emergency Motion
to Suspend Amended Preliminary Injunction pending Appeal. Without citing
any legal authority authorizing the Court to exercise jurisdiction over an appeal
of the District Court’s interlocutory Order, Defendants seek to suspend the
District Court’s Order under Federal Rule of Appellate Procedure 8(a)(2) by
contending the Order constitutes a Preliminary Injunction. Defendants contend
the Order (a) essentially grants all relief ultimately requested so the correct legal

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standard of review was not used; (b) was not based upon evidence as to the
balance of interests; and (c) improperly granted injunctive relief without finding
all four prongs of the Winters requirements.

Winters v. Natural Res. Def.

Council, Inc., 555 U.S. 7, 19 (2008).
Plaintiff would show this Court the District Court’s Order does not
constitute a granting of a preliminary injunction, so Defendants’ appeal would in
all respects be improper and suspending the Order pending an appeal should not
be permitted. Plaintiff further contends, even if Defendants were entitled to
appeal the Order as a grant of preliminary injunction, Defendants failed to show
an abuse of discretion. Plaintiff further contends the Court’s Order may not be
suspended as (a) the burden is on Defendants to show the statute in question is
constitutional; (b) there was no abuse of discretion since the correct legal
standard was used by the Court; and (c) the Court’s Order results in no harm to
Defendants but merely orders them to send a directive or instruct non-parties not
to incur costs for mailing, printing or ordering ballots pending the hearing on the
merits of Plaintiff’s request for injunctive relief.
DEFENDANTS ARE NOT ENTITLED TO APPEAL
The District Court’s Order is not a grant of preliminary injunctive relief
but rather is only an interim order prior to a hearing on the motion for injunctive
relief.

The order requires Defendants to notify and instruct local Virginia

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election boards of this Court’s Order not to print ballots, mail ballots or order
ballots. This same Order does not yet grant Plaintiff the right to be listed on the
Virginia Republican Primary ballots. Therefore, Defendants are incorrect in their
assertion the Order essentially grants all relief ultimately requested.
Under section 1292(a)(1) of the United States Code, courts of appeals are
given limited jurisdiction over appeals involving “[i]nterlocutory orders of the
district courts of the United States, . . . , or of the judges thereof, granting,
continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve
or modify injunctions . . . .” 28 U.S.C. § 1292(a)(1). Because section 1292(a)(1)
“was intended to carve out only a limited exception to the final-judgment rule,
[the Supreme Court] has construed the statute narrowly . . . .” Carson v. Am.
Brands, Inc., 450 U.S. 79, 84 (1981) (citations omitted).
“[T]here remain few disputes over which types of orders qualify as orders
‘granting, continuing, modifying, refusing or dissolving injunctions, or refusing
to dissolve or modify injunctions’ under [section] 1292(a)(1).”

Timothy P.

Glynn, Discontent and Indiscretion: Discretionary Review of Interlocutory
Orders, 77 NOTRE DAME L. REV. 175, 203 (2001).

“The Supreme Court has

construed this category strictly [and] temporary restraining orders are not
‘injunctions’ under this section.” Id. (citing Carson, 450 U.S. at 84; Robert J.
Martineau, MODERN APPELLATE PRACTICE § 4.1 (1983)).

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“In addition,

preliminary orders that are not expressly injunctive, but which produce
potentially injunctive effects, are appealable only if they relate to the merits of
the action and will inflict serious harm that is preventable only by immediate
appeal.” Id. (citations omitted).
By its own terms, the District Court’s Order “expires at 11:59 p.m. on
January 13, 2012, or upon the Court’s rendering of a decision on the Emergency
Motion for Temporary Restraining Order and Preliminary Injunction on January
13, 2012, whichever occurs first.” Its impact on Defendants is only to require
them to instruct local election boards not to print ballots, mail ballots, or order
ballots until the District Court hears oral arguments on Plaintiff’s application for
injunctive relief on Friday, January 13, 2012 (just three days after the District
Court issued its order).
While the District Court’s Order potentially has limited injunctive effects,
the Order in no way inflicts serious harm on Defendants that is preventable only
by an immediate appeal. Likewise, the District Court’s Order is clearly not an
injunction which impacts the merits of the case. Accordingly, section 1292(a)(1)
does not provide this Court with jurisdiction to hear an appeal of the District
Court’s Order, and the Defendants are not entitled to an Order suspending the
District Court’s ruling pending such a premature appeal.

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DEFENDANTS HAVE NOT SHOWN ABUSE OF DISCRETION
Even if Defendants correctly interpreted the District Court’s Order as an
order granting injunctive relief, they cannot meet the Abuse of Discretion
standard necessary to overturn such an order. Appellate Courts review an order
granting an injunction for abuse of discretion, reviewing factual findings for clear
error and legal conclusions de novo. Muffley ex rel. N.L.R.B. v. Spartan Mining
Co., 570 F.3d 534, 543 (4th Cir. 2009) (citing E. Tenn. Natural Gas Co. v. Sage,
361 F.3d 808, 828 (4th Cir. 2004)). A court “has abused its discretion if its
decision is guided by erroneous legal principles or rests upon a clearly erroneous
factual finding.” Brown v. Nucor Corp., 576 F.3d 149, 161 (4th Cir. 2009).
A.

No Incorrect Legal Standard Was Applied
Here, Defendants contend the District Court applied an incorrect legal

standard to the determination of a likelihood of success on the merits. In making
this argument, Defendants rely heavily on the Supreme Court decision in Lux v.
Rodriguez, 131 S. Ct. 5 (2010) (Roberts, C.J. Circuit Justice). Citing Lux
Defendants try to convince the Court the correct legal standard in this case is that
success is “indisputably clear.”

Such reliance is misguided. In that case,

Supreme Court Justice Roberts was sitting as a Circuit Judge for the Fourth
Court of Appeals to consider Lux’ request for injunctive relief. He held that a
Circuit Justice's issuance of an injunction "does not simply suspend judicial

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alteration of the status quo but grants judicial intervention that has been withheld
by lower courts," and therefore "demands a significantly higher justification"
than that required for a stay. Ohio Citizens for Responsible Energy, Inc. v. NRC,
479 U.S. 1312, 1313 (1986) (SCALIA, J., in chambers). Justice Roberts noted
that the District Court’s legal authority may well have been superseded by
Supreme Court cases of Buckley and Meyers but denied injunctive relief because
there was a split of authority in decisions by the Courts of Appeals on residency
requirements and the Supreme Court did not specifically address those so the
right to recover was not “indisputably clear”. Buckley v. Am. Constitutional Law
Foundation, 525 U.S. 182 (1999); Meyer v. Grant, 486 U.S. 414, 422, 428,
(1988) (invalidating a law criminalizing circulator compensation and describing
petition circulation as "core political speech"). Here, the District Court correctly
relied upon the Buckley and Meyers decisions and there is no requested
injunctive relief from a Circuit Judge.
As the District Court recognized, the Buckley v. Am. Constitutional Law
Foundation case mandates a “strict scrutiny” standard placing the burden on the
Commonwealth to justify a restriction on free speech. Buckley, 525 U.S. at 192
n.12 (1999). In this case, the Defendants have failed to provide any compelling
justification for the burden on Plaintiff’s constitutional rights.

Id.

Under

Buckley, the applicable standard, Plaintiff’s position is likely to succeed on the

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merits.
The District Court applied a correct legal standard so there is no abuse of
discretion. Defendants’ attempts to litigate the merits of their claims prior to the
actual hearing on Injunctive Relief is entirely improper and this Court need not
consider such arguments. There is simply no authority to suspend the District
Court’s Order. The Order directing Defendants to instruct non-parties not to
incur costs and to refrain from causing harm to Plaintiff by mailing ballots prior
to the scheduled hearing is merely protecting the District Court’s jurisdiction and
authority in the underlying dispute.
B.

No Clear Error in Factual Findings
Neither have Defendants shown an Abuse of Discretion due to Clear Error

in Factual Findings. Again, a preliminary injunction was not issued. Rather, the
District Court required Defendants to instruct non-parties to prevent harm to
either side before evidence could be heard. The District Court pointed out what
common sense tell us, that printing ballots without Plaintiff’s name would be
irreparable harm to Plaintiff and would deny members of the public a right to
vote for their chosen candidate; while a delay in mailing, printing or ordering
ballots would at most only cause minimal inconvenience to the Commonwealth,
or the local electoral boards. Defendants’ unsupported statement they intend to
produce evidence that such a delay will “violate the law and disrupt elections”

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does not provide any legal or factual basis to vacate the District Court’s Order at
this time. Defendants will still have the right to produce evidence on January 13,
2012. The ballots will still be printed and distributed in a timely, yet
constitutional manner.
DEFENDANTS HAVE NOT SHOWN AUTHORITY
TO VACATE THE ORDER
Lastly, Defendants assert the District Court’s Order should be vacated
pending Appeal because the District Court did not make a final determination on
all four prongs of the Winters requirements for injunctive relief. While this may
be true, this complaint is premature. The hearing to make such a determination is
scheduled for January 13, 2012. The only action taken by the District Court at
this point is to order Defendants to notify and instruct non-party local electoral
boards not to cause harm by mailing ballots or to incur harm by printing or
ordering ballots until the Court exercises its jurisdiction over Plaintiff’s request
for Injunctive Relief and issues a ruling. Defendants have cited no authority
allowing this Court to vacate the order in question before the January 13, 2012
hearing where no harm is alleged, no right to appeal is shown, and no final
decision has been made.
CONCLUSION
The District Court’s Order (Docket #54) does not constitute a granting of a
preliminary injunction, so Defendants’ appeal is improper and suspending the
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Order pending an appeal is not permitted. Even if Defendants were entitled to
appeal the Order as a grant of preliminary injunction, Defendants failed to show
an abuse of discretion by showing an improper legal standard was used or the
District Court relied upon clearly erroneous findings of fact. Defendants failed
to meet their burden to show the statute in question is constitutional.
Furthermore, the District Court’s Order results in no harm to Defendants but
merely orders them to instruct non-parties not to incur costs for mailing, printing
or ordering ballots pending the hearing on the merits of Plaintiff’s request for
injunctive relief.

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Respectfully Submitted,
THE HONORABLE RICK PERRY
/s/Edward Everett Bagnell, Jr.
Hugh M. Fain, III (VSB No. 26494)
Email: [e-mail]
M. F. Connell Mullins, Jr. (VSB No. 47213)
Email: [e-mail]
Edward Everett Bagnell, Jr. (VSB No. 74647)
Email: [e-mail]
SPOTTS FAIN PC
411 East Franklin Street, Suite 600
Richmond, Virginia 23219
Telephone: [phone]
Facsimile: [phone]
Joseph M. Nixon
Email: [e-mail]
James E. (“Trey”) Trainor, III
Martin D. Beirne
BEIRNE, MAYNARD & PARSONS, L.L.P.
1300 Post Oak Boulevard, Suite 2500
Houston, TX 77056
Telephone: [phone]
Facsimile: [phone]
ATTORNEYS FOR PLAINTIFF
THE HONORABLE RICK PERRY

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CERTIFICATE OF SERVICE
I hereby certify that on January 11, 2012, I will electronically file the
foregoing document with the Clerk of the Court using the CM/ECF System, which
will send a notification of such filing (NEF) to the following, who are registered
CM/ECF users.
E. Duncan Getchell, Jr.
Wesley G. Russell
Office of the Attorney General
900 East Main Street
Richmond, Virginia 23219
Telephone: [phone]
[e-mail]
[e-mail]
Counsel for Charles Judd, Kimberly Bowers
and Don Palmer, members of the Virginia
State Board of Elections, in their official
capacity

Lee Elton Goodman
LeClairRyan, A Professional Corporation
1701 Pennsylvania Ave NW
Suite 1045
Washington, DC 20006
[e-mail]
Counsel for Pat Mullins,
in his official capacity as
Chairman of the Republican Party of Virginia.

Charles M. Sims (VSB No. 35845)
LeClairRyan, A Professional Corporation
Riverfront Plaza, East Tower
951 East Byrd Street, Eighth Floor
Richmond, Virginia 23219
Telephone: [phone]
Facsimile: [phone]
[e-mail]
Counsel for Patrick Mullins,
Chairman of the Republican Party of Virginia

Stefan C. Passantino
J. Randolph Evans
Benjamin P. Keane
McKenna Long & Aldridge, LLP
1900 K St. NW
Washington, DC 20009
Telephone: [phone]
Facsimile: [phone]
Counsel for Newt Gingrich

I further certify that I have mailed, by first class U.S. mail, and e-mailed a
copy of the foregoing to the following:

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Craig Engle
Arnet Fox LLP
1050 Connecticut Avenue, NW
Washington, DC 20036-5339
Telephone: [phone]
Facsimile: [phone]
[e-mail]
Counsel for Jon Huntsman, Jr.

Cleta Mitchell
Foley & Lardner LLP
3000 K Street, N.W., Suite 600
Washington, DC 20007-5109
Telephone: [phone]
Facsimile: [phone]
[e-mail]
Counsel for Rick Santorum

J. Christian Adams (VSB No. 42543)
Election Law Center, PLLC
300 N. Washington St., Suite 405
Alexandria, VA 22314
Telephone: [phone]
Facsimile: [phone]
[e-mail]
Counsel for Newt Gingrich, Jon Huntsman, Jr.
and Rick Santorum

Joseph N. Lief
Virginia International Raceway
1245 Pinetree Road
Alton, Virginia 24520
Telephone: [phone]
[e-mail]
Counsel for Charles Judd, Kimberly Bowers
and Don Palmer, members of the Virginia
State Board of Elections, in their official
capacity

Stefan C. Passantino
J. Randolph Evans
Benjamin P. Keane
McKenna Long & Aldridge, LLP
1900 K St. NW
Washington, DC 20009
Telephone: [phone]
Facsimile: [phone]
[e-mail]
Counsel for Newt Gingrich

/s/Edward Everett Bagnell, Jr.
Edward Everett Bagnell, Jr. (VSB No. 74647)
Email: [e-mail]
SPOTTS FAIN PC
411 East Franklin Street, Suite 600
P.O. Box 1555
Richmond, Virginia 23218-1555
Telephone: [phone]
Facsimile: [phone]
Attorneys for The Honorable Rick Perry

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