Since this is an appellate law blog, its “anniversary” posts (as well as all or virtually all others) deal with appellate decisions. Today’s post is an exception, in that it is the anniversary of Garden State Equality v. Dow, 433 N.J. Super. 347 (Law Div. 2013), decided six years ago today. The opinion, authored by Judge Jacobson, is an extremely useful discussion of stays pending appeal, the criteria for such stays, and the relevant prior decisions.
The underlying case involved same-sex couples who sued for the right to marry. Judge Jacobson granted summary judgment to plaintiffs and directed the State to permit same-sex couples who otherwise satisfy the requirements for entering into a civil marriage to marry. The State sought a stay pending appeal. Judge Jacobson denied the stay, ruling that the State had not carried its burden of justifying a stay.
Judge Jacobson noted that stays pending appeal are governed by the same multi-pronged test that applies to requests for “injunctive relief, for the simple reason that a stay is a type of injunctive relief.” That test is exemplified by Crowe v. DeGioia, 90 N.J. 126 (1982), discussed here.
In summary, the Crowe test requires the party seeking relief to show (a) immediate, irreparable harm if relief is not granted, (b) “a settled underlying claim and reasonable probability of success on the merits,” and (c) that a balancing of the relative hardships to the parties counsels in favor of granting relief. In cases involving a public interest, which Judge Jacobson rightly found included this case, “the public interest forms a critical element of the stay analysis” beyond the normal Crowe criteria.
The State failed to show irreparable harm. The State argued that “enjoining a statute amounts to irreparable harm,” but there was no statute that plaintiffs sought to enjoin. The summary judgment order did not strike down any statute either, but “simply directs the State to allow same-sex couples to marry, and until any change in the parallel civil union/civil marriage structures enacted by the New Jersey Legislature is made, same-sex couples will have the choice of obtaining civil marriages, entering into civil unions, or maintaining existing civil unions.”
In any event, Judge Jacobson found no case said that striking down a statute (had that occurred here) constitutes irreparable harm. She cited authority that denied a stay pending appeal where a statute had been struck down.
The State also failed to show a settled legal right. Its position was contrary to that of the Supreme Court of the United States in United States v. Windsor, 133 S.Ct. 2675 (2013), regarding same-sex marriage, Judge Jacobson said. She also rebuffed the State’s claimed likelihood of success on the merits, noting that the State’s arguments were the same ones that had not availed on plaintiffs’ motion for summary judgment.
The balance of hardships also tilted away from the State. Judge Jacobson cited many hardships that plaintiffs would continue to suffer if her ruling in favor of same-sex marriage were stayed. In contrast, the State argued “some sort of incorporeal harm to its sovereignty based on the need to maintain the current status of civil union couples pending appellate review, even as that status disadvantages those couples when compared to legally married New Jersey couples.” Even when viewed against other arguments advanced by the State, none of which Judge Jacobson found compelling, “it [was] clear that the equities favor enforcing the order so that the civil rights of same-sex couples can be protected against further deprivations pending appeal.
Finally, the public interest did not support a stay. Judge Jacobson found unpersuasive and distinguishable the State’s cited cases in that regard. Again, “the fact that plaintiffs would continue to suffer violations of their constitutional rights and irreparable injury through ongoing ineligibility for federal marital benefits while the stay is effective is a key distinguishing factor from the cases relied upon by the State and weighs heavily in favor of rejecting the State’s motion for a stay.”
Judge Jacobson’s opinion was studded with citations to other stay or injunctive relief cases. For the last six years, her decision has been a go-to source for parties and judges in the context of stays pending appeal. That is likely to continue to be so going forward.