NEWDOW et al v. ROBERTS et al

Filing 64

Joint MOTION for Entry of Stipulated Briefing Schedule and to Stay Defendants' Obligation to Respond to Complaint by ROBERT SHERMAN, MARGARET DOWNEY, AUGUST BERKSHIRE, MARIE CASTLE, STUART BECHMAN, MICHAEL NEWDOW, HERB SILVERMAN, JASON TORPY, HARRY GREENBERGER, KIRK HORNBECK, JIM CORBETT, CATHERINE LAMM, RICHARD WINGROVE, CHRISTOPHER ARNTZEN, JOHN STOLTENBERG, KATHERINE LACLAIR, ELLERY SCHEMPP, LOUIS ALTMAN, PAUL CASE, JERRY SCHIFFELBEIN, ANNE PHILIP, JAY RICHARDSON, DAN DUGAN, ANNA MAE ANDREWS, ELIZA SUTTON, RICHARD RESSMAN, AMERICAN HUMANIST ASSOCIATION, MEL LIPMAN, FREEDOM FROM RELIGION FOUNDATION, MILITARY ASSOICAITON OF ATHEISTS & FREETHINKERS, MINESOTA ATHEISTS, ATHEISTS FOR HUMAN RIGHTS, ATHEIST ALLIANCE INTERNATIONAL, ATHEISTS UNITED, NEW ORLEANS SECULAR HUMANIST ASSN, UNIVERSITY OF WASHINGTON SECULAR STUDENT UNION, SEATTLE ATHEISTS, ATHEISTS OF FLORIDA, DAN BARKER, JOHN ROBERTS, JR, PRESIDENTIAL INAUGURAL COMMITTEE, EMMETT BELIVEAU, JOINT CONGRESSIONAL COMMITTEE ON INAUGURAL CEREMONIES, DIANNE FEINSTEIN, ARMED FORCES INAUGURAL COMMITTEE, RICHARD J. ROWE, RICK WARREN, JOE LOWERY, ANNIE-LAURIE GAYLOR (Attachments: # 1 Text of Proposed Order)(Rosenberg, Brad)

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NEWDOW et al v. ROBERTS et al Doc. 64 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA __________________________________________ ) MICHAEL NEWDOW, et al., ) ) Plaintiffs, ) ) v. ) Civil Action No. 08-2248 (RBW) ) HON. JOHN ROBERTS, JR., et al., ) ) Defendants. ) __________________________________________) JOINT MOTION FOR ENTRY OF STIPULATED BRIEFING SCHEDULE AND TO STAY DEFENDANTS' OBLIGATION TO RESPOND TO COMPLAINT Plaintiffs and all defendants, through undersigned counsel, hereby move the Court to enter a stipulated briefing schedule that the parties believe will streamline the briefing of outstanding issues in this case, and to stay defendants' obligation to answer or otherwise respond to the Complaint until 30 days after the Court's orders to show cause are discharged. In support of this motion, the parties state as follows: 1. 2. Plaintiffs filed their Complaint on December 30, 2008. The Court held a hearing on plaintiffs' motion for a preliminary injunction on January 15, 2009. In denying plaintiffs' motion, the Court ordered plaintiffs to show cause by February 23, 2009, why the Court should not dismiss the case based on plaintiffs' lack of standing and issue preclusion as to plaintiff Newdow. See Order, Docket No. 42 (01/16/2009). In a subsequent Order, the Court directed plaintiffs to show cause why the case should not be dismissed as moot by February 27, 2009. See Order, Docket No. 50 (02/10/2009). 3. On February 23, 2009, plaintiffs filed a response to the Court's show-cause order regarding standing and issue preclusion. See Plaintiffs' Response to Order to Show Cause # 1, Dockets.Justia.com Docket No. 51 (02/23/2009). The Court then ordered the defendants to file any response to plaintiffs' response by March 11, 2009. See Minute Order (02/24/2009). 4. On February 27, 2009, plaintiffs moved for an extension of time until March 10, 2009, to respond to the Court's show-cause order regarding mootness. See Docket No. 62 (02/27/2009). The federal defendants1 did not oppose that motion. Plaintiffs indicated that they wished to file an Amended Complaint in conjunction with their response to the Court's showcause order regarding mootness, and that the Amended Complaint would add additional plaintiffs, including minor children. Accordingly, plaintiffs also indicated that they would seek to file the names and addresses of those additional minor plaintiffs (and their parents) under seal. While the federal defendants do not oppose the filing of the names and addresses of minor plaintiffs (or their parents) under seal, the federal defendants did want an opportunity to derive, in conjunction with plaintiffs, mutually agreeable language for a proposed protective order. Because plaintiffs intended, in their response to the Court's show-cause order regarding mootness, to reference certain allegations contained in the Amended Complaint, the parties agreed that the plaintiffs would move for an extension of time to respond to the Court's showcause order regarding mootness. That motion remains pending. 5. In an effort to streamline the briefing in this case, and because issues of standing and mootness are often interrelated, the defendants wish to address both of these issues together (as well as issue preclusion) within their respective briefs. To that end, the parties have agreed, subject to the Court's approval, to the following schedule: 1 Federal defendants are the Hon. John Roberts, Jr.; the Joint Congressional Committee on Inaugural Ceremonies and its Chairperson, Senator Dianne Feinstein; and the Armed Forces Inaugural Committee ("AFIC") and its Chairperson, Major General Richard J. Rowe, Jr. 2 a. Plaintiffs shall move for leave to file an Amended Complaint no later than March 10, 2009. b. Plaintiffs shall file their response to the Court's show-cause order regarding mootness no later than March 10, 2009. That response shall include any additional arguments regarding standing or issue preclusion that plaintiffs wish to make in view of their proposed Amended Complaint. c. Any defendant who wishes to file a response to plaintiffs' responses to the Court's show-cause orders shall do so no later than April 17, 2009.2 6. Moreover, because resolution of the Court's show-cause orders may result in dismissal of the case, to conserve judicial resources and minimize litigation costs, and particularly to avoid the prospect of duplicative briefing, the parties further agree that there is good cause to stay the defendants' obligation to answer or otherwise respond to the Complaint (or the proposed Amended Complaint) until 30 days following the Court's discharge of its showcause orders, should the Court not dismiss the case. For the foregoing reasons, plaintiffs and all defendants respectfully request that the Court approve and enter the briefing schedule set forth above, and stay defendants' obligation to answer or otherwise respond to the Complaint until 30 days after the Court's orders to show cause are discharged. A proposed order is attached. The timing for the defendants' responses is based in part on undersigned counsel Rosenberg's plans to take paternity leave in mid-March. 3 2 Dated: March 6, 2009 /s/ Michael Newdow MICHAEL NEWDOW In pro per and pro hac vice PO Box 233345 Sacramento, CA 95823 (916) 427-6669 NewdowLaw@gmail.com ROBERT V. RITTER DC Bar # 414030 AHA 1777 T Street, N.W. Washington, DC 20009 (202) 238-9088 BRitter@americanhumanist.org Counsel for Plaintiffs Respectfully submitted, MICHAEL F. HERTZ Acting Assistant Attorney General JAMES J. GILLIGAN Assistant Director /s/ Brad P. Rosenberg BRAD P. ROSENBERG (DC Bar 467513) ERIC B. BECKENHAUER (Cal. Bar 237526) Trial Attorneys United States Department of Justice Civil Division Federal Programs Branch 20 Massachusetts Avenue, N.W. Washington, D.C. 20001 Tel: (202) 514-3374 Fax: (202) 616-8460 brad.rosenberg@usdoj.gov Counsel for the Federal Defendants /s/ Kevin T. Snider KEVIN T. SNIDER PACIFIC JUSTICE INSTITUTE P.O. Box 276600 9851 Horn Road Suite 115 Sacramento, CA 95827 (916) 857-6900 Fax: (916) 857-6902 Email: kevinsnider@pacificjustice.org J STEPHEN SIMMS SIMMS & SHOWERS LLP 20 South Charles Street Suite 702 Baltimore, MD 21201 (410) 783-5795 Fax: (410) 510-1789 Email: jssimms@simmsshowers.com Counsel for Defendants Rick Warren and Joseph Lowery /s/ E. Desmond Hogan E. DESMOND HOGAN CRAIG ALAN HOOVER DOMINIC F. PERELLA HOGAN & HARTSON, L.L.P. 555 13th Street, NW Columbia Square Washington , DC 20004-1161 (202) 637-5493 Fax: (202) 647-5910 Email: edhogan@hhlaw.com Counsel for Defendants the Presidential Inaugural Committee and its Executive Director, Emmett Beliveau 4

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