Rick Perry v. Charles Judd

Filing 18

MOTION by Appellant Rick Perry in 12-1067 to expedite decision. Date and method of service: 01/17/2012 ecf [998766242] [12-1067, 12-1042, 12-1047, 12-1068] Edward Bagnell

Record No. 12-1067
____________________________________

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
____________________________________

THE HONORABLE RICK PERRY,
Plaintiff – Appellant - Movant,
v.
THE HONORABLE NEWT GINGRICH, THE HONORABLE JON
HUNTSMAN, JR., AND THE HONORABLE RICK SANTORUM,
Intervenor - Plaintiffs,
v.
CHARLES JUDD, KIMBERLY BOWERS, and DON PALMER,
members of the Virginia State Board of Elections, in their official capacities,
Defendants - Appellants - Respondent.
____________________________________
Appeal from the United States District Court
For the Eastern District of Virginia
Richmond Division
____________________________________

RICK PERRY’S MOTION TO EXPEDITE APPEAL and REVIEW OF
EMERGENCY MOTION FOR INJUNCTION PENDING APPEAL
Hugh M. Fain, III
M. F. Connell Mullins, Jr.
Edward Everett Bagnell, Jr.
SPOTTS FAIN PC
411 East Franklin Street, Suite 600
Richmond, Virginia 23219
Telephone: [phone]
Facsimile: [phone]

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

Appellant and Movant, the Honorable Rick Perry, Governor of the State of
Texas, and Republican Candidate for the President of the United States, noticed
this appeal on January 14, 2012, and filed an Emergency Motion For Injunction
Pending Appeal [Docket No. 3-1] on January 15, 2012. Because Movant seeks
to have his name placed on the ballot for the Republican Party Primary election
currently scheduled for March 6, 2012, and because he believes he was
unconstitutionally restricted from having his name appear alongside others on the
ballot, Movant now seeks expedited review of Emergency Motion and this
Appeal. On January 13, 2012, the District Court entered an Order (Doc. #74)
and issued a Memorandum Opinion (Doc. #73) finding section 24.2-545 of the
Virginia Code, is “likely . . . unconstitutional” and that Movant is likely to
succeed on his claim.
In its analysis of the four Winter factors required for the granting of
injunctive relief, the District Court found in favor of Movant on each: 1) Movant
is likely to succeed on its claim as Virginia’s residency requirement for petition
circulators is “highly unlikely to withstand [Movant’s] First Amendment
Challenge”; 2) the harm to Movant resulting from Virginia’s unconstitutional
law “would obviously be irreparable”; 3) the “balance of the equities tip in favor
of [Movant]”; and 4) the “public interest weighs heavily in favor of [Movant].”
(Doc. #73 p. 14-21). The Court found the only adequate remedy available is for

Movant’s name to be placed on the Commonwealth’s Republican primary ballot.
The District Court determined, however, that “except for the doctrine of
laches, [Movant] would be entitled to the relief [he] seek[s] (Doc. #73 p. 22).
The equitable doctrine of laches essentially punishes a litigant for failing to assert
his rights in a timely manner which operates to prejudice a defendant. As
discussed herein, the Court abused its discretion in determining Movant rested on
his rights for such a period of time to allow the Commonwealth to trample on
Movant’s First Amendment rights.
Movant filed this lawsuit on December 27, 2011, the same date the names
of candidates qualified to appear on the ballot were scheduled to be certified and
just two business days1 after Defendant Mullins made a preliminary
determination and publicly announced Movant did not submit enough petition
signatures to qualify to be placed on the ballot. Prior to this date, Movant
reasonably expected to meet the requirements of Virginia’s “likely . . .
unconstitutional” election law, and Respondents could not have suffered any
injury, as they could not have begun the process of finalizing their ballot orders.
Movant moves this Court, pursuant to Rule 8(a) of the Federal Rules of
Appellate Procedure, for an order granting injunctive relief. Movant would show

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Defendant Mullins made a preliminary decision Movant did not submit enough petition signatures on December
23, 2011. The four days between Defendant Mullins’ preliminary decision and Movant’s filing of this lawsuit
included Christmas Eve, Christmas Day, and the generally recognized national holiday of December 26th, on which
the federal courthouse was closed.

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this Court should issue an injunction ordering Movant’s name to appear
alongside others on the ballot for the Republican primary for the Commonwealth
of Virginia, or in the alternative, that this Court issue an injunction ordering the
Respondents not to order, print, or mail ballots prior to the Court’s final
consideration of this appeal.
Expedited review of Movant’s Emergency Motion For Injunction Pending
Appeal and this appeal is necessary in order to protect Movant’s constitutional
rights and to afford the State Board of Elections ample time to print and mail
ballots, and otherwise prepare for the primary election, currently scheduled for
March 6, 2012.

Moreover, Movant’s Emergency Motion For Injunction

Pending Appeal is ripe for decision because Movant has waived the right to file a
reply to the State Board of Election’s opposition brief.

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Respectfully Submitted,
THE HONORABLE RICK PERRY
____
/s/ _________________ ___ _
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
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

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CERTIFICATE OF SERVICE
I hereby certify that on January 17, 2012, I electronically filed 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 counsel of record for Defendants and Intervenors:
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

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

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

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

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

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Craig Engle
Arnet Fox LLP
1050 Connecticut Avenue, NW
Washington, DC 20036-5339
Telephone: [phone]
Facsimile: [phone]
Counsel for Jon Huntsman, Jr.
I further certify that some of the participants in the case are not registered CM/ECF users.
I have mailed one copy of the foregoing document by First-Class Mail to the following nonCM/ECF participant:
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

/s/

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

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