SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION APPLICATION FOR PERMISSION TO FILE EMERGENT MOTION

TO: Hon. Carmen Alvarez

DATE: 10/10/2013 TELEPHONE: (609)633-1309 ext.

FROM: Jean Reilly, Deputy Attorney General

The following questions are to be answered by the attorney or pro This se litigant requesting permission to file an emergent motion. questionnaire is designed to assist the court's determination respecting COMPLETION OF THIS APPLICATION DOES NOT IN its further instructions. There is no ANY SENSE CONSTITUTE THE FILING OF AN APPEAL OR MOTION. Further right to be heard orally on an emergency application. court. from the will come instructions Except by permission of the court, the only documents you may a copy of the decision being submit with this application are: given by the trial judge reasons of statement or opinion any appealed, granting a stay. A copy or denying or agency, and any order or decision of this application must be served simultaneously on both your adversary No answer shall be filed without and the trial judge or agency. permission of the court. If the court grants you permission to file an emergent motion and you have not previously filed a motion for leave to appeal or notice of appeal (whichever is applicable), you must simultaneously file one. You must also pay the applicable filing fee ($30 for a motion for leave to appeal; $200 for a notice of appeal), direct the charging of an account with the Superior Court, or file a motion to proceed as an indigent and supporting certification. CASE NAME: Garden State Equality et al. v. Paula Dow, et al. (i.e., what judge, in what What is the vicinage of the matter? decision?) the entered county or what agency The Hon. Mary C. Jacobson, A.J.S.C., Mercer County, Law Division a) What is your name, address, including any e-mail address, phone number and fax number? Jean P. Reilly, DAG; Division of Law; Hughes Justice Complex; 25 Market Street; Trenton, NJ 08625-0093 jean.reilly@dol.lps.state.nj.us; 609-633-1309(ph); 609-341-5030(fax)

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Whom do you represent? All Defendants(Dow et al.) List the names of all other parties and name, address, including any known e-mail address, phone number and fax number of attorney for each. Lawrence S. Lustberg, Esq.; GIBBONS P.C.; 1 Gateway Center; Newark, NJ 07102-5310; llustberg @gibbonslaw.com; 973-596-4500(ph); 973-639-8285(fax); Hayley J. Gorenberg, Esq.; LAMBDA LEGAL; 120 Wall Street, 19th floor; NY,NY 10005; hgorenberg@lambdalegal.org; 212-809-8585(ph); Attorneys for all Plaintiffs (Garden State Equality et al.) b)
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Do you have a written order or judgment entered by the judge or a written agency decision? You must attach a copy of the order, judgment or decision. Yes (attached).

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Are there any claims against any party below, either in this or a consolidated action, which have not been disposed of, including counterclaims, cross-claims, third-party claims and applications for counsel fees? If so, the decision is not final, but rather interlocutory, and leave to appeal must be sought. No.

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Have you filed for a stay before the trial court or agency? Yes. If so, do you have a court order or agency decision denying or Attach a copy of any such order or decision. granting same? Before you seek a stay from the Appellate Division, you must first apply to the trial court or agency for a stay and obtain a signed (Court Rules order or decision ruling on your stay application. 2:9-5 and 2:9-7) Yes (attached). If the order or agency decision is interlocutory, are you filing a motion for leave to appeal? n/a

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If interlocutory, are you filing a motion to stay the trial court or agency proceeding? n/a

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If the order, judgment or agency decision is final, have you filed a notice of appeal? Yes(copy attached) What is the essence of the order, judgment or agency decision? The Order declares the State statutory structure reserving the name of marriage for heterosexual couples unconstitutional and mandates that the State permit same-sex couples to marry beginning Oct. 21, 2013.

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Has any aspect of this matter been presented to or considered by another judge or part of the Appellate Division by emergent application or prior appeal proceedings? If so, which judge or part?

No.

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b)

Have the merits briefs been filed in this matter? so, has the matter been calendared to a part? No.

If

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What is the nature of the emergency? The Order below permits same-sex couples to marry in less than 3 weeks. In Lewis v. Harris, the Supreme Court recognized that the issue of how to define marriage has far-reaching social implications, and alteration of the traditional definition of marriage would render a profound change in the public consciousness of a social institution of ancient origin. What is the irreparable harm, and when do you expect this harm to occur? Irreparable harm results any time a lower court declares unconstitutional astatutory structure that democratically-elected representatives duly enacted. This is especially true where, as here, the Legislature acted in accord with an option the Lewis Court has already determined is presumptively constitutional, and the legislation addresses an issue of great social import. The harm is immediate. What relief do you seek? A stay pending resolution on appeal of the merits of the underlying constitutional issues.

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What citation is most important for the proposition that you are likely to prevail on appeal? , 133 S. Ct. 2675 (2013) (language, rationale, and holding United States v. Windsor, 570 U.S. mandating that federal government afford civil union couples federal marriage benefits and defer to State in matters of domestic relations); Lewis v. Harris, 188 N.J. 415 (2006)(civil unions permissible). Have you served simultaneously a copy of this application on both your adversary and the trial judge or agency? Yes.

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Have any transcripts been judge's challenged ruling)? Yes.

ordered

(particularly

of

the

trial

If so, when will the transcript be available? It is attached. 18. Please give a brief summary of the facts of your case. In Lewis v. Harris, the Court afforded the Legislature two equally constitutional options: amend the marriage statutes to include same-sex couples or, preserving the traditional definition of marriage, create a parallel statutory structure that would provide same-sex couples with all of the same rights and benefits that married couples enjoy under the State's laws. Id. at 423. Because altering the meaning of marriage "would render a profound change in the public consciousness of a social institution of ancient origin" and have "far-reaching social implications," the Court did "not presume that a difference in name alone is of constitutional magnitude." Id. at 456, 462. In response to Lewis, the Legislature adopted the Civil Union Act, N.J.S.A. 37:1-28 to -36, which provides that "[c]ivil union couples shall have all of the same benefits, protections and responsibilities under law .. , as are granted to spouses in a marriage." N.J.S.A. 37:1-31. Subsequently, the United States Supreme Court struck down the federal Defense of Marriage Act, holding that the federal government cannot treat unequally those whom the states treat equally. (2013). Plaintiffs then filed a summary judgment motion claiming, on equal Windsor, 570 U.S. protection grounds, that same-sex couples have a right to marry. The trial court granted the motion.
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SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION FOR PERMISSION TO FILE EMERGENT MOTION ON APPLICATION DISPOSITION Case Name :Garden State Equality et al. v. Paula Dow,et al. Trial Court or Agency Below: The Hon. MaryC. Jacobson, A.J.S.C., Mercer County, Law Division DO NOT FILL IN THIS SECTION FOR COURT USE ONLY I. The application for leave to file an emergent motion on short notice is Denied for the following reasons: The application does not concern a genuine emergency or otherwise does not warrant adjudication on short notice. Counsel may file a motion with the Clerk's Office in the ordinary course. The applicant did not apply to the trial court or agency for a stay, and obtain a signed order, before seeking a stay from the Appellate Division. The application concerns an order entered during trial as to which there is no prima facie showing that immediate interlocutory intervention is warranted. Other reasons:

II. The application for leave to file an emergent motion on short notice is Granted on the following terms: A. The applicant must file an original and two copies of the motion for emergent relief and a notice of appeal or motion for leave to appeal (plus all required fees or an indigency motion) with Judge On that same by no later than and to parties se counsel/pro all date, copies must be delivered to trial the to A copy must also be sent Judge judge or agency whose decision is being appealed. B. C. Opposition must be served and filed by no later than Other terms:

J.A.D.
6/ 1 o

Date
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Revised 06/2010, CN 10498-English