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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION

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COLLEEN THERESE CONDON and

ANNE NICHOLS BLECKLEY

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vs.
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NIMRATA (NIKKI) RANDHAWA HALEY, in :
her official capacity as Governor :
of South Carolina, et al.
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2:14 CV 4010

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Telephone conference in the above matter held on

Friday, October 24, 2014, commencing at 11:01 a.m., before
the Hon. Richard M. Gergel, in Courtroom III, United States
Courthouse, 81 Meeting Street, Charleston, South Carolina,
29401.

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APPEARANCES:
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MARY M. BURNETTE, ESQ. and NEKKI SHUTT, ESQ.,

P.O. Box 1390, Columbia, SC, appeared for
plaintiffs.
VICTORIA L. ESLINGER, ESQ., P.O. Drawer 2426,
Columbia, SC, appeared for plaintiffs.

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JAMES E. SMITH, JR., ESQ. and ROBERT D. COOK,

ESQ., P.O. Box 11549, Columbia, SC, appeared
for Governor Haley.

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RICHARD S. ROSEN, ESQ. and ELIZABETH PALMER,

ESQ., P.O. Box 893, Charleston, SC, appeared
for Irvin G. Condon.

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JOHN S. NICHOLS, ESQ., P.O. Box 7965, Columbia,

SC, appeared for Irvin G. Condon.

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REPORTED BY DEBRA LEE POTOCKI, RMR, RDR, CRR

Official Reporter for the U.S. District Court
P.O. Box 835
Charleston, SC 29402
843/723-2208

THE COURT:

I see Mr. Rosen trying to gain an

advantage by showing up in person.

represents, but he wins, right?

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MR. ROSEN:

Your Honor, we're here, Elizabeth Palmer

and Richard Rosen representing Judge Condon.

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I don't know who he

THE COURT:

Very good, thank you.

Let me go ahead

and begin, let's see who is not present.

This is the matter of Condon versus Haley, 2:14-4010.

Could counsel identify themselves, beginning with plaintiffs'

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counsel?

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MS. BURNETTE:

Your Honor, this is Malissa Burnette

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and Nekki Shutt, we are here in North Carolina attending a

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CLE.

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THE COURT:

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MS. ESLINGER:

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Good.
Your Honor, this is Vicki Eslinger,

I'm on the line in New York.

MS. LITTRELL:

This is Beth Littrell representing the

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plaintiffs, at the Legal Defense Fund Conference in Warrenton,

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Virginia.

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THE COURT:

Okay.

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MR. SMITH:

This is Emory Smith and Bob Cook from the

How about for defendants?

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Attorney General's office, for the defendant Attorney General

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and Governor, and we're in Columbia.

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THE COURT:

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MR. NICHOLS:

Very good.
This is John Nichols representing Judge

Irvin Condon, and I am in Columbia.

THE COURT:

And Mr. Rosen?

MR. ROSEN:

Richard Rosen and Elizabeth Palmer here

for Judge Condon.

THE COURT:

JUDGE CONDON:

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Judge, this is Irvin Condon; I am

across the street but on the phone.

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Okay.

THE COURT:
with us.

Good to have you, Judge, on the phone

You didn't have enough confidence in your lawyers;

you had to show up yourself, right?

Okay.

When I originally scheduled this matter I was

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anticipating, but didn't know we were going to get a

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preliminary injunction, I was trying to get my schedule

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straight.

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there's a preliminary injunction now filed, and I set a

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briefing schedule on that preliminary injunction.

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But y'all answered the first question, which was

But I have some additional questions.

First of all, do

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any of the parties desire to have an evidentiary hearing on

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the motion for preliminary injunction?

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plaintiff.

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MS. BURNETTE:

First for the

This is Malissa Burnette, and the

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plaintiffs do not believe that an evidentiary hearing is

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needed for -- we believe that all the information the Court

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needs is in the record, that the law is established, and we

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believe that the case can go forward.

THE COURT:

How about the state defendants?

MR. SMITH:

Your Honor, we do not believe that an

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evidentiary hearing is necessary.

THE COURT:

Mr. Smith, I recognize your voice, but

for my court reporter, would you just say -MR. SMITH:

I'm sorry, this is Emory Smith.

We do

not believe that an evidentiary hearing is necessary.

THE COURT:

will speak for him?

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MR. ROSEN:

How about on behalf of Judge Condon, who

Your Honor, I will, Mr. Rosen.

Judge

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Condon does not believe an evidentiary hearing is necessary.

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We'd like this matter resolved at the least expense to the

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taxpayers and the state as possible.

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THE COURT:

Of course, Rule 1 is ahead of you.

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speedy and inexpensive determination.

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before you did, Mr. Rosen.

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The Court thought of it

Secondly, do any of the parties desire oral argument on

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the motion for preliminary injunction?

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plaintiff.

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Just,

MS. BURNETTE:

First from the

Your Honor, this is Malissa Burnette

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again, and the plaintiffs do not believe that oral argument is

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necessary.

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we have provided the facts and the law that the judge would

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need, and believe that all of that is before the Court.

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Again, we have briefed the matter and believe that

THE COURT:

Okay.

MS. BURNETTE:

THE COURT:

State defendants?

MR. SMITH:

Emory Smith again, Your Honor.

I do not request oral argument.

The state

defendants do not believe that oral argument is necessary.

THE COURT:

Okay.

MR. ROSEN:

Your Honor, for Judge Condon, we do not

believe it is necessary.

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How about for Judge Condon?

THE COURT:
lawyers up.
argue.

You know, I usually can't shut the

I've never had it unanimous nobody wanted to

Okay.

Now, I have set a briefing schedule.

I obviously received

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the plaintiffs' motion for preliminary injunction and the

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memorandum in support, and I have set the defendants' response

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time and the reply time to that.

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And I wanted to alert everyone to some issues which I

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would like the response from the defendants and then the reply

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from the plaintiff, if it's necessary, to address.

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The first question I want addressed is the question of

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whether the Bostic decision, that is, a decision of the Fourth

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Circuit not overruled by the United States Supreme Court, is

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that binding on this Court.

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generic question, is a ruling by an appellate court of the

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circuit not overturned by the U.S. Supreme Court binding on

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this Court.

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Question one.

Just a straight up

The second question, to the extent Bostic is binding on

this Court, I want to identify, if they exist, the specific

differences in the statute or constitutional provisions

between the Virginia law and the South Carolina law, or any

other provision that would distinguish Bostic, the Bostic

decision from this case.

Third issue I'd like addressed, that if any party asserts

that Bostic is wrongly decided, I want that stated

forthrightly that you are arguing against precedent.

I'm not trying in any way to limit your ability to argue it,

And then

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but I want it clearly stated just where everybody stands.

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if you argue it's wrongly decided, fine, then you ought to

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feel free to make that argument about why you believe that.

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And

The next issue I want addressed is if this Court were to

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find preliminary injunctive relief is appropriate, does the

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state seek a stay of that order pending any appeal, and if so,

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it needs to state fully the basis of that entitlement to a

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stay.

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the contrary view of that.

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And, of course, any response from parties, if they take

Those issues, I would like to have addressed, and I think

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all of those are important.

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burdensome, and hardly surprising.

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these would be addressed even if I had not raised them.

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I don't think they're unduly

They may well have been

I also, today or late yesterday, received a motion to

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change summary judgment briefing date.

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for the same day the answer of the state defendants or

That is presently set

otherwise pleading is due.

change it, so docket number 19, the motion to change the

summary judgment briefing schedule, is denied.

And I think it's unnecessary to

As to the motion for an expedited ruling, I will take

that, which is, I believe, number 20, I will take that matter

under advisement.

Are there matters additionally that the parties need to

address with the Court at this time?

plaintiff.

First from the

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MS. BURNETTE:

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THE COURT:

From the state defendants?

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MR. SMITH:

Yes, Your Honor, this is Emory Smith with

No, Your Honor.

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the Attorney General's office again.

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set the deadline for responding to the preliminary injunction

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motion for November 3rd, and we respectfully request a

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three-day extension on that to November 6th.

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briefing deadlines in the Bradacs case, which is the other

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federal same sex marriage case, that are due that day.

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have got an administrative hearing and another brief due in an

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unrelated matter on the 5th.

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we would request.

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Childs as well, and her case is moving along, so we

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respectfully don't see an urgency, or -- in this case

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respectfully request three additional days.

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We note that Your Honor

We have got

And I

So just three days would be all

And the matter is pending before Judge

THE COURT:

Well, let me tell you my view, Mr. Smith.

You know, you practice in front of me enough to know that I'm

generally very accommodating to lawyers.

in this case have asserted an irreparable injury.

their marriage was stopped by the action of the defendants,

and I'm having a hearing because of that alleged irreparable

injury of what Bostic has found to be a fundamental right, and

I believe they're entitled to an expeditious review.

respectfully, that motion is denied.

MR. SMITH:

Yes, Your Honor.

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THE COURT:

Anything further?

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MS. BURNETTE:

But the plaintiffs

They assert

So

Your Honor, this is Malissa Burnette

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again.

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wanted to make sure, is this hearing being recorded by a court

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reporter?

I just wanted to confirm Your Honor's order.

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THE COURT:

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MS. BURNETTE:

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THE COURT:

I just

Yes.
Okay.

Thank you very much.

And you can request, through

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Miss Ravenel, the Clerk's office, and she will arrange with

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Miss Potocki to get you a copy of that transcript, if you

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would like it.

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MS. BURNETTE:

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THE COURT:

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MR. NICHOLS:

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Thank you.

Anything further?
Judge, this is John Nichols on behalf

of Judge Condon.
THE COURT:

Yes.

MR. NICHOLS:

I'm assuming you're asking for anything

further from Judge Condon, rather than -- I didn't know if

Mr. Smith and Mr. Cook were finished.

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THE COURT:

If you have anything further, I'd

be glad to hear from you, Mr. Nichols.

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Yes.

MR. NICHOLS:

Thank you, Judge.

For candor purposes, I know you know this, but I would

like to state for the record that I also represent the

plaintiffs in the Bradacs case.

I just want that on the

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record so that there's no belief that there's anything

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untoward.

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schedule that Judge Childs has in place, and we are proceeding

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along.

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And like Mr. Smith, we are under that briefing

But my primary concern on behalf of Judge Condon here is

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that the State Supreme Court in the related state matter

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issued their order.

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General, when Judge Condon took the application, the Attorney

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General asked the Supreme Court to intervene, to be plaintiffs

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in this case, then moved to intervene into that case, and that

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was granted.

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jurisdiction.

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any further action until Judge Childs rules in the Bradacs

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case.

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And by way of background, the Attorney

The Supreme Court accepted original

However, that court said it's not going to take

Now, it does say until the Federal Court, and of course it

had to be referring to the Bradacs case, because this case

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didn't exist then.

whipsaw of my clients, you know, if you rule -- grant the

injunction, the injunctive relief to the plaintiffs, and

there's no request for a stay or a period of time, then you,

I'm assuming, if you ruled in favor of the plaintiffs, you

would order Judge Condon to comply.

order from the State Supreme Court which tells him to do the

opposite.

ask that if you do rule for the plaintiff and you issue

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And so what I'm concerned about is a

And then he's got an

So I just want you to know that it's either I would

something, that you take that into account.

And furthermore, I'm going to let the folks know and you

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to know that I would go back to the State Supreme Court and

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ask them to modify their order.

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THE COURT:

Well, I will address that issue.

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understood that order, which I have reviewed, obviously this

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case had not yet been filed, so it's not possible they could

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have anticipated it.

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District Court.

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but a decision by my court would control here over the matter

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of constitutional law, because of the Supremacy Clause.

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if I were to grant a motion, I would promptly advise the

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Supreme Court of that.

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just know the effect of injunction, were I to issue one.

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But it does say a ruling by the Federal

I don't intend to get into this, Mr. Nichols,

MR. NICHOLS:

But

I can't control what they would do, I

Right, Judge, and I appreciate that,

and I agree with you completely, I just wanted to bring it to

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your attention and ask that you address that in your order.

THE COURT:

I appreciate you mentioning that.

And

it's a little bit of a step ahead of us right here, because we

have to reach these other issues of the Winter factors and so

forth, and we'll have to fully address and brief that.

understand the issue.

MR. NICHOLS:

MR. SMITH:

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Thank you.

Emory Smith for the state.

And we intend

to address the issue of the Supreme Court order in our

filings, so --

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THE COURT:

I would appreciate that, Mr. Smith, that

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you address that issue.

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to basically be a stopgap until the Federal District Court

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ruled, and was not -- I thought the Court was quite forthright

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in saying it was not attempting to interfere, or it could not

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interfere with the injunctive powers of the Federal District

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Court.

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Okay.

You know, I had understood that order

Other matters which the Court needs to address?

First from the plaintiff.

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MS. BURNETTE:

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THE COURT:

From the state defendants?

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MR. SMITH:

Nothing further, Your Honor.

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THE COURT:

And from Judge Condon's counsel?

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MR. ROSEN:

I'm going to defer to John.

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THE COURT:

Mr. Nichols, anything further?

Nothing here, Your Honor.

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MR. NICHOLS:

THE COURT:

Nothing further, Judge.

Very good.

Thank you very much.

Hearing's adjourned.

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(Court adjourned at 11:16 a.m.)

REPORTER'S CERTIFICATION

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I, Debra L. Potocki, RMR, RDR, CRR, Official Court

Reporter for the United States District Court for the District

of South Carolina, hereby certify that the foregoing is a true

and correct transcript of the stenographically recorded above

proceedings.

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S/Debra L. Potocki
_______________________________

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Debra L. Potocki, RMR, RDR, CRR

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