Miller v. Lieutenant Governor Craig Campbell et al

Filing 73

RESPONSE in Opposition re 67 First MOTION to Amend/Correct 48 First MOTION to Stay LIFT STAY-- On Shortened Time filed by Joe Miller. (Van Flein, Thomas)

Miller v. Lieutenant Governor Craig Campbell et al

Doc. 73

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Thomas V. Van Flein

John Tiemessen
Clapp, Peterson, Van Flein, Tiemessen & Thorsness LLC 711 H St., Suite 620 Anchorage, Alaska 99501-3454 Phone: [phone] Facsimile: [phone] Attorneys for Plaintiff Joe Miller UNITED STATES DISTRICT COURT DISTRICT OF ALASKA ) ) ) Plaintiff, ) ) v. ) ) LIEUTENANT GOVERNOR CRAIG ) CAMPBELL, in his official capacity; ) and the STATE OF ALASKA, ) DIVISION OF ELECTIONS, ) ) Defendants. ) ___________________________________ ) JOE MILLER, Civil Action No: 3:10-cv-252 (RRB)

PLAINTIFF JOE MILLER'S OPPOSITION TO DEFENDANTS' AMENDED MOTION TO LIFT STAY AND ESTABLISH AN EXPEDITED SCHEDULE FOR BRIEFING ANY REMAINING FEDERAL ISSUES Plaintiff Joe Miller respectfully asks this Court to deny Defendants' Amended Motion to Lift Stay and Establish an Expedited Briefing Schedule. It would be inappropriate to lift the stay or impose a briefing schedule for Plaintiff Miller's federal case before the Alaska Supreme Court issues its ruling, for numerous reasons. First, the State's schedule pre-supposes that the Alaska Supreme Court will issue an oral ruling on Friday, something that the clerk's office did
Plaintiff Joe Miller's Opposition to Defendants' Amended Motion to Lift Stay Miller v. Campbell, Case No. 3:10-CV-252 (RRB) Page 1 of 4

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not suggest would occur. It is entirely possible that the court could take the weekend, or even possibly longer, to consider these issues. Attempting to draft dispositive briefs in this Court without the benefit of the Alaska Supreme Court's ruling, would be a pointless and timeconsuming endeavor, requiring the parties to speculate as to each conceivable ruling the Court could issue and address it. Second, entry of a briefing schedule in this Court would unfairly prejudice Plaintiff Miller by appearing, to both the Alaska Supreme Court itself and the general public, to suggest or assume that this Court believes the supreme court will rule against him on all counts. In

their Motion to Dismiss for Lack of Subject-Matter Jurisdiction or, In the Alternative, to Abstain (hereafter, "Abstention Motion"), Defendants argued, "The eventual outcome of an

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Alaska Supreme Court decision on whether [the] Division is properly interpreting Alaska Stat. § 15.15.010 and state election law is uncertain for abstention purposes." Abstention Motion at 13. Thus, this court should not consider a briefing schedule in this case unless and until the state court proceedings are concluded. Third, in its November 19 ruling, this Court held that state-law issues are integral to several of Plaintiff Miller's federal claims. See Order of Nov. 19, at 4. Imposing a briefing schedule in the instant case before the Alaska Supreme Court even rules on those state-law issues--particular a schedule that may require one or more of the parties to file their briefs before its ruling is available--would suggest a lack of comity and respect for the state judiciary. See Mun. of Anchorage v. Alaska, 393 F. Supp. 958, 963 (D. Ak. 2005) (discussing

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Plaintiff Joe Miller's Opposition to Defendants' Amended Motion to Lift Stay Miller v. Campbell, Case No. 3:10-CV-252 (RRB) Page 2 of 4

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the importance of comity and deference to state courts where the same state-law issues are pending concurrently in a state and federal court). CONCLUSION For these reasons, Plaintiff Miller respectfully requests that this Court deny Defendants' Amended Motion to Lift the Stay and Establish an Expedited Briefing Schedule. In the event the Alaska Supreme Court does issue a ruling adverse to Plaintiff Miller at some point, Plaintiff Miller respectfully requests a minimum of three full business days from the date that court's written opinion is available to make an appropriate filing in this Court.

Dated this 13th day of December, 2010. Respectfully submitted,
/s/ Thomas V. Van Flein

Thomas V. Van Flein John Tiemessen
CLAPP, PETERSON, VAN FLEIN TIEMESSEN & THORSNESS LL 711 H St., Suite 620 Anchorage, Alaska 99501-3454 Phone: [phone] Facsimile: [phone]

Plaintiff Joe Miller's Opposition to Defendants' Amended Motion to Lift Stay Miller v. Campbell, Case No. 3:10-CV-252 (RRB) Page 3 of 4

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Certificate of Service: The undersigned hereby certifies that a true and exact copy of the foregoing was served this 13th day of December 2010 via: ( ) First Class Mail ( ) Hand-Delivery ( ) Facsimile ( ) E-Mail (X) ECF to the following listed individual(s): Michael Barnhill Sarah Felix Margaret Paton-Walsh Timothy McKeever Scott Kendall

By: /s/ Thomas V. Van Flein__ Thomas V. Van Flein

Plaintiff Joe Miller's Opposition to Defendants' Amended Motion to Lift Stay Miller v. Campbell, Case No. 3:10-CV-252 (RRB) Page 4 of 4