Case 6:14-cv-01959-CEM-DAB Document 27 Filed 01/09/15 Page 1 of 11 PageID 122

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
DANIEL WALL-DESOUSA and
SCOTT WALL-DESOUSA,

Case No. 6:14-cv-1959-Orl-41DAB

Plaintiffs,
v.
FLORIDA DEPARTMENT OF
HIGHWAY SAFETY AND MOTOR
VEHICLES, TERRY L. RHODES, in her
official capacity as Director of the
Florida Department of Highway Safety
and Motor Vehicles, DIANNE
BOWMAN, in her individual capacity as
Supervisor of the Brevard County Tax
Collector's Office in Indian Harbour
Beach, and RICK SCOTT, in his official
capacity as Governor of Florida,
Defendant.
____________________________/
DEFENDANT DIANNE BOWMANS BRIEF IN RESPONSE TO THE COURTS
DECEMBER 5, 2014 ORDER
COMES NOW, Defendant Dianne Bowman (Bowman), by and through her
undersigned counsel, hereby files and serves her Brief in Response to the Courts December 5,
2014 Order, and in support thereof, states as follows:
A. Background
In this case, Plaintiff Daniel Wall-DeSousa (Daniel) and Plaintiff Scott Wall-DeSousa
(Scott) (collectively Plaintiffs) challenge, on multiple constitutional grounds, the Florida
statute that prohibits Florida from recognizing same-sex marriages entered into by persons
outside of Florida and defines marriage as only a legal union between one man and one
woman as husband and wife[.] Fla. Stat. 741.212 (2014). Plaintiffs are each adult, male
1

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residents of Brevard County, Florida. (Doc. 1 6.) Plaintiffs married in New York City, New
York on December 6, 2013. (Id. 21.) Plaintiffs marriage certificate reflects their new
surname, Wall-DeSousa. (Id. 22.) Their marriage certificate is not stamped same sex. (Id.)
On December 27, 2013, Plaintiffs visited the Social Security Administrations office in
Melbourne, Florida and changed their legal names from Daniel Antonio DeSousa to Daniel
Antonio Wall-DeSousa and Scott Anthony Wall to Scott Anthony Wall-DeSousa. (Id. 23.)
Sometime thereafter, Daniel visited the Brevard County Tax Collectors Office in Palm Bay,
Florida to change his drivers license to reflect the change in his legal name. (Id. 25.) Daniel
presented his marriage certificate and new social security card. (Id. 26.) The Brevard County
Tax Collectors Office issued a drivers license reflecting Daniels new name and also changed
his motor vehicle registration to reflect his new surname. (Id.)
Scott visited the Brevard County Tax Collectors Office in Indian Harbour Beach, Florida
to change his drivers license to reflect the change in his surname. (Id. 28.) Once there, Scott
presented his New York marriage certificate and new social security card. (Id.) Bowman
allegedly returned Scotts marriage certificate to Scott, indicating that it could not be used to
support a name change on a Florida drivers license. (Id.) Scott then traveled to the Brevard
County Tax Collectors Office in Palm Bay. (Id. 29.) However, Scott was apparently unable
to obtain a drivers license reflecting his new name there. (See id.)
An unspecified employee of the Brevard County Tax Collector informed Scott to take his
documentation to another county to change his drivers license. (Id.) This was allegedly due to
the fact that the Brevard County Tax Collector could not issue the license due to her knowledge
that Scott and Daniel are same-sex spouses that had entered into a marriage outside of Florida.
(See id.) However, Plaintiffs marriage certificate did not clearly indicate that Plaintiffs are

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same-sex spouses and employees of an agency or office authorized to issue drivers licenses in
another county would not ask if Plaintiffs are same-sex spouses. (Id.) Therefore, the unspecified
employee of the Brevard County Tax Collector advised Scott to visit another county to have his
drivers license changed. (Id.) On October 15, 2014, Scott traveled to the Orange County Tax
Collector/DHSMV office on 8110 West Colonial Drive and presented his social security card,
New York marriage certificate, and a bill from USAA for automobile insurance. (Id. 33.)
Thereafter, the office issued Scott a drivers license reflecting his new name. (Id.)
On October 30, 2014, Plaintiffs spoke to news anchor Jorge Estevez from WFTV
Channel 9 on a televised broadcast about the DMVs policy. (Id. 34.) On November 7, 2014,
Plaintiffs received a letter dated November 5, 2014 from the Florida Department of Highway
Safety and Motor Vehicles (DHSMV) in Tallahassee that indicated that their drivers licenses
would be cancelled indefinitely as of November 25, 2014. (Id. 35.) On November 11, 2014,
Plaintiffs reached back out to WFTV Channel 9, which aired a follow-up story. (Id. 36.)
Plaintiffs allege that at all times relevant, they possessed valid Florida drivers licenses
that were not suspended or revoked. (Id. 38.) Additionally, Plaintiffs allege that the sole
reason stated by DHSMV for refusing to issue drivers licenses to Plaintiffs is section 741.212,
Florida Statutes (2014), which mandates that Plaintiffs not be treated under Florida law as
though they were married. (Id. 40.) Section, 741.212, Florida Statutes (2014), states:
Marriages between persons of the same sex.
(1) Marriages between persons of the same sex entered into in any jurisdiction,
whether within or outside the State of Florida, the United States, or any other
jurisdiction, either domestic or foreign, or any other place or location, or
relationships between persons of the same sex which are treated as marriages in
any jurisdiction, whether within or outside the State of Florida, the United States,
or any other jurisdiction, either domestic or foreign, or any other place or location,
are not recognized for any purpose in this state.

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(2) The state, its agencies, and its political subdivisions may not give effect to
any public act, record, or judicial proceeding of any state, territory, possession, or
tribe of the United States or of any other jurisdiction, either domestic or foreign,
or any other place or location respecting either a marriage or relationship not
recognized under subsection (1) or a claim arising from such a marriage or
relationship.
(3) For purposes of interpreting any state statute or rule, the term marriage
means only a legal union between one man and one woman as husband and wife,
and the term spouse applies only to a member of such a union.
On November 25, 2014, Plaintiffs filed their Verified Complaint with the Court. In their
complaint, Plaintiffs bring the following claims, each against all named defendants: a 42 U.S.C.
1983 claim for alleged deprivation of Plaintiffs right to substantive due process (Count I); a
1983 claim for alleged deprivation of Plaintiffs right to equal protection (Count II); a 1983
claim for alleged deprivation of Plaintiffs right to freedom of speech (Count III); a 1983 claim
for First Amendment retaliation (Count IV); a 1983 claim under the Full Faith and Credit
Clause (Count V); and a state-law claim for equitable estoppel (Count VI mislabeled as Count
V). As relief, Plaintiffs seek to have the Court enter a declaratory judgment, enter a permanent
injunction, award Plaintiffs actual, general, special, compensatory, and punitive damages, and
award Plaintiffs costs and reasonable attorneys fees. With their Complaint, Plaintiffs also filed
a Motion for Preliminary Injunction. (Doc. 2.)
On December 5, 2014, the Court entered an Order (Doc. 10) directing the parties to brief
the Court regarding (1) whether the preliminary injunction entered in Brenner v. Scott, 999 F.
Supp. 2d 1278 (N.D. Fla. 2014), will render moot Plaintiffs Motion for Preliminary Injunction
(Doc. 2) and (2) whether this case should be stayed pending the United States Court of Appeals
for the Eleventh Circuits resolution of Brenner. Plaintiffs filed their brief on December 9, 2014.

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B. Plaintiffs Motion for Preliminary Injunction Was Rendered Moot After January 5th
Upon lifting of the stay on enforcement of United States District Judge Hinkles order in
Brenner, which occurred on January 6, 2015, Plaintiffs Motion for Preliminary Injunction was
rendered moot. Article III of the Constitution limits the jurisdiction of federal courts to cases
and controversies. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 559 (1992). [T]he core
component of standing is an essential and unchanging part of the case-or-controversy
requirement of Article III. Id. at 560. The irreducible constitutional minimum of standing
contains three elements. Id. First, a plaintiff must have suffered an injury in factan invasion
of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent
and not conjectural or hypothetical. Id. Second, there must be a causal connection between the
injury and the conduct complained of. Id. That is, the injury has to be fairly traceable to the
challenged action of the defendant.

Id.

Third, it must be likely, as opposed to merely

speculative, that the injury will be redressed by a favorable decision. Id. at 561. In order to
demonstrate that a case or controversy exists to meet the Article III standing requirement when a
plaintiff is seeking injunctive or declaratory relief, a plaintiff must allege facts from which it
appears there is a substantial likelihood that he will suffer injury in the future. Malowney v.
Fed. Collection Deposit Grp., 193 F.3d 1342, 1346 (11th Cir. 1999).
An action that is moot is not an active case or controversy. Al Najjar v. Ashcroft, 273
F.3d 1330, 1335 (11th Cir. 2001). Whether the parties have a legally cognizable interest depends
upon what relief the court may grant. Aquamar, S.A. v. Del Monte Fresh Produce N.A., Inc., 179
F.3d 1279, 1287 (11th Cir. 1999). If events that occur subsequent to the filing of a lawsuit or an
appeal deprive the court of the ability to give the plaintiff or appellant meaningful relief, then the
case is moot and must be dismissed. Al Najjar v. Ashcroft, 273 F.3d 1330, 1336 (11th Cir.

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2001). Any decision on the merits of a moot case or issue would be an impermissible advisory
opinion. Al Najjar, 273 F.3d at 1337.
In this case, Plaintiffs Motion for Preliminary Injunction has been rendered moot by
intervening events, namely the lifting of the stay on Judge Hinkles order granting the plaintiffs
motion for preliminary injunction in Brenner. In Brenner, Judge Hinkle unequivocally held that
section 741.212, Florida Statutes, is unconstitutional on its face. 999 F. Supp. 2d at 1290-91. On
January 1, 2015, Judge Hinkle entered an order clarifying his prior ruling, explaining that it
applies beyond the parties to the Brenner case. See Order on the Scope of the Preliminary
Injunction, Brenner v. Scott, No. 14-cv-107-RH/CAS (N.D. Fla. Jan. 1, 2015), Doc. 109. In the
order, the court stated, [t]here should be no debate, however, on the question or whether a clerk
of court may follow the courts prior ruling, explaining that the obligation to follow the law
arises from the Constitution and not only the preliminary injunction. Id. at 3-4.
An unconstitutional statute is void. Coral Springs St. Sys., Inc. v. City of Sunrise, 371
F.3d 1320, 1334 (11th Cir. 2004); Penn v. Attorney General of State of Ala., 930 F.2d 838, 841
(11th Cir. 1991) (quoting Ex Parte Siebold, 100 U.S. 371, 376-77 (1879)) (An unconstitutional
law is void, and is as no law.); see also Cooper v. Aaron, 358 U.S. 1, 18 (1958) (explaining that
the federal courts interpretation of the constitution is the supreme law of the land that must be
followed by every state official who has undertaken an oath to support the constitution); Doe v.
City of Albuquerque, 667 F.3d 1111, 1127 (10th Cir. 2012) ([A] successful facial attack means
the statute is wholly invalid and cannot be applied to anyone.). Where a court holds that a
statute is facially unconstitutional, it can be assumed . . . the responsible government officials
will discontinue the statutes enforcement. Alliance to End Repression v. Rochford, 565 F.3d

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975, 980 (7th Cir. 1977); see also Chamber of Commerce of the United States v. Edmondson,
594 F.3d 742, 758 n.16 (10th Cir. 2010).
In Brenner, Judge Hinkle held that section 741.212, Florida Statutes, was facially
unconstitutional for violation of the Equal Protection Clause and substantive component of the
Due Process Clause of the Fourteenth Amendment. See Brenner, 999 F. Supp. 2d at 1290.
Therefore, section 741.212, Florida Statutes, is void and unenforceable. Section 741.212(2),
Florida Statutes, prevented officials in Florida from accepting Plaintiffs New York marriage
certificate as documentation in support of their request for changes to their names on their
Florida drivers licenses. Upon the lifting of the stay on Judge Hinkles order in Brenner, section
741.212(2), Florida Statutes, no longer impedes an official in Florida from accepting an out-ofstate marriage certificate that reflects a same-sex marriage from being used to support a
requested name change on an individuals Florida drivers license. If this Court were to grant the
preliminary injunction that Plaintiffs have sought, it would serve only to needlessly duplicate
Judge Hinkles ruling that section 741.212, Florida Statutes, is unconstitutional.
Additionally, on January 5, 2015, DHSMV issued Technical Advisory DL15-002. A
copy of is advisory is attached to this brief as Exhibit 1. This advisory provided for a change in
policy regarding acceptance of documents in support of issuance of drivers licenses in light of
the lifting of the stay on Judge Hinkles order in Brenner. The advisory provides that DHSMV
will recognize all marriage certificates as sufficient proof for a driver license or identification
card name change. (Ex. 1 (emphasis added.)) As a result of the change in the law and this
change in DHSMVs policy, there exists no impediment created by either Florida law or
defendants policies to Plaintiffs obtaining Florida drivers licenses reflecting their new, married
surname using their New York marriage certificate as supporting documentation. These changes

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in circumstances have rendered moot Plaintiffs claims for prospective relief.

Ultimately,

Plaintiffs Motion for Preliminary Injunction is moot and should therefore be denied.
C. The Court Should Stay This Case
Additionally, the Court should stay this case pending the United States Court of Appeals
for the Eleventh Circuits resolution of Brenner. A district court has broad discretion to stay
proceedings as an incident to its power to control its own docket. Clinton v. Jones, 520 U.S.
681, 706 (1997). [E]specially in cases of extraordinary public moment, [a plaintiff] may be
required to submit to delay not immoderate in extent and not oppressive in its consequences if
the public welfare or convenience will thereby be promoted. Id. (quoting Landis v. N. Am. Co.,
299 U.S. 248, 256 (1936)). When a district court exercises its discretion to stay a case pending
the resolution of related proceedings in another forum, the district court must limit properly the
scope of the stay. Ortega Trujillo v. Conover & Co. Commc'ns, 221 F.3d 1262, 1264 (11th Cir.
2000). A stay must not be immoderatethat is it must be, from its inception, subject to
reasonable limits that are susceptible of prevision and description. Id.
The stay suggested by the Court would not be immoderate, as its force would be spent at
a pre-determined time that is not purely indefiniteupon resolution of the Brenner case by the
Eleventh Circuit.

See Danner Const. Co., Inc. v. Hillsborough Cnty., No. 8:09-cv-650-T-

17TBM, 2009 WL 3055315, at *2 (M.D. Fla. Sept. 24, 2009) (promotion of judicial economy
and avoidance of unnecessary litigation expenses favored staying proceedings in district court
pending resolution of an appeal by the Eleventh Circuit). Also, Brenner and the instant case
each involve constitutional challenges to section 741.212, Florida Statutes. The fact that each
case involves a constitutional challenge to the same statute supports staying the instant case
pending resolution of the appeal in Brenner. See Myron v. Rodriguez, No. 3:06-cv-1051-J-TEM,

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2008 WL 516753, at *3 (M.D. Fla. Feb. 22, 2008) (existence of a separate case that tested the
constitutionality of a statute directly applicable to the instant action supported staying the
case). Additionally, because Brenner and the instant case raise overlapping issues of public
importance, the interest in avoiding inconsistent results and confusion favors staying this case, as
does the interest in promoting judicial efficiency. See Postel Indus., Inc. v. Abrams Group
Const., L.L.C., No. 6:11-cv-1179-Orl-28DAB, 2013 WL 1881560, at *7 (M.D. Fla. Mar. 29,
2013), adopted, 2013 WL 1881556 (M.D. Fla. May 3, 2013) (staying case pending resolution of
arbitration proceedings in order to promote judicial efficiency and avoid inconsistent results and
confusion).

This is particularly relevant in cases that present constitutional challenges to

restrictions or prohibitions upon same-sex marriage, the recognition of out-of-state same-sex

marriages, or both, imposed through state laws. See, e.g., Evans v. Utah, 21 F. Supp. 3d 1192,
1196-99 (D. Utah 2014) (noting confusion and changing positions regarding the status and
recognition of same-sex marriages following litigation regarding state statutory and
constitutional bans on same-sex marriage).
Staying this case in order to allow the Eleventh Circuit to resolve the constitutionality of
the Florida laws implicated in Brenner (which includes section 741.212, Florida Statutes) would
promote judicial efficiency, assist in avoiding inconsistent results, and assist in avoiding
confusion. Additionally, as discussed above, Plaintiffs claims for prospective relief have been
rendered moot by intervening events. Therefore, Plaintiffs will not suffer any continuing harm
as a result of the conduct of any named defendant. Accordingly, this Court should stay this case
until the Eleventh Circuit decides Brenner.

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D. Conclusion
For the reasons stated above, Defendant Dianne Bowman respectfully maintains that (1)
Plaintiffs Motion for Preliminary Injunction has been rendered moot following the lifting of the
stay on Judge Hinkles order in Brenner and (2) the Court should stay this case pending the
United States Court of Appeals for the Eleventh Circuits resolution of Brenner.
Respectfully submitted on this 9th day of January, 2015 by:
/s/ Frank Mari
Michael J. Roper, Esquire
Florida Bar No.: 0473227
mroper@bellroperlaw.com
Frank M. Mari, Esquire
Florida Bar No.: 93243
fmari@bellroperlaw.com
Bell & Roper, P.A.
2707 E. Jefferson Street
Orlando, FL 32803
(407) 897-5150
(407) 897-3332 (fax)
Secondary: phermosa@bellroperlaw.com
Attorneys for Defendant Dianne Bowman
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished
via the Courts CM/ECF system on this 9th day of January, 2015, to: Wm. J. Sheppard, Esquire,
Elizabeth L. White, Esquire, Matthew R. Kachergus, Esquire, Bryan E. DeMaggio, Esquire,
Sheppard, White, Kachergus & DeMaggio, P.A., 215 Washington Street, Jacksonville, FL
32202 at sheplaw@att.net (counsel for Plaintiffs); Adam S. Tanenbaum, Esquire, Office of the
Attorney General, The Capitol - PL01, Tallahassee, FL 32399-1050 at
adam.tanenbaum@myfloridalegal.com (counsel for Defendants DHSMV, Director Terry L.
Rhodes, and Governor Rick Scott).
/s/ Frank Mari
Michael J. Roper, Esquire
Florida Bar No.: 0473227
mroper@bellroperlaw.com
Frank M. Mari, Esquire
Florida Bar No.: 93243
fmari@bellroperlaw.com
10

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Bell & Roper, P.A.

2707 E. Jefferson Street
Orlando, FL 32803
(407) 897-5150
(407) 897-3332 (fax)
Secondary: phermosa@bellroperlaw.com
Attorneys for Defendant Dianne Bowman

11

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TECHNICAL ADVISORY
DIVISION OF MOTORIST SERVICES
Technical Advisory (TA) Number
DATE: 01/05/2015
DL15-002
SUBJECT: Marriage Certificates

Overview:
Based on court order related to marriages, the Department will recognize all marriage
certificates as sufficient proof for a driver license or identification card name change.

Details:
Effective January 6, 2015, all offices are to accept all marriage certificates as sufficient proof to
complete a name change on a driver license or identification card.

Conclusion:
If you have questions, please contact your next level of management, the Tax Collector Liaison
or the Field Support Help Desk.