DEFENDANTS' APPLICATION FOR STAY

ABORTION INDUSTRY IN MELBOURNE, FLORIDA
LAWSUITS
RANEY V AWARE WOMAN
DOCKET / CHRONOLOGICAL FILE
DEFENDANTS' APPLICATION FOR STAY

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
NO 97-1197-CIV-ORL- 19B

MEREDITH T RANEY, JR,
Plaintiff,
-versus-
AWARE WOMAN CENTER FOR CHOICE, INC, et al,
Defendants, Third Party Plaintiffs,

SPHERE DRAKE INSURANCE COMPANY PLC
[ aka ODYSSEY RE (LONDON)LTD ],
WESTCO CLAIMS MANAGEMENT SERVICES, INC,
Third Party Defendants

DEFENDANTS' APPLICATION FOR STAY

AWCC respectfully moves this Court for a stay of any further pretrial and trial-related proceedings, pending the decision of this Court on the sua sponte motion for summary judgment on agency grounds. AWCC further requests that the stay of trial and pretrial extend through the filing and disposition of any appeals by either party, including petitions for writ of certiorari to the Supreme Court, and the final determination thereof.

This case has a well-developed record, over 130 Documents. Underlying facts are almost entirely on the table, undisputed as to events and facts, disputed as to legal import, ripe for appeal.

AWCC noticed two appeals on December 29, 1998: One, under §1292, sought certification, for interlocutory review on issues with some fact mixture. This was denied February 1, 1999.

The second appeal, with a separate notice of appeal under §1291, is a collateral order doctrine appeal of right. This is based on qualified immunity and much additional controlling Eleventh Circuit case law concerning immunity, abstention, and collateral estoppel. It is pending before an appellate panel after complete briefing on jurisdiction. Such appeals appear to AWCC to be routinely allowed.

The right claimed by AWCC is to avoid trial as a matter of law, on federal statutory and constitutional grounds. At least three of the grounds asserted would merit review by the Supreme Court. That review should be facilitated by this Court, and not hindered by forcing AWCC through a lengthy trial that clearly is without merit, while appeals are also underway and both necessary and proper.

One core controlling jurisdictional case is Jones v Preuit & Mauldin, 808 F2d 1435 {11th Cir 1987) (private qualified immunity upheld in similar context - appeal of right).

Another is Gonzalez v Lee County Housing Authority, 161 F3d 1290 (11th Cir 1998) (qualified immunity appeal of right in Fair Housing case).

Other such decisions, cited to this Court earlier include Marx v Gumbinner, 905 F2d 1503, 1506-07 (11th Cir 1990) {probable cause a total defense to §1983 arrest action collateral order appeal). Marx was followed again in Rankin v Evans, 133 F3d 1425, 1435-36 (11th Cir 1998)(probable cause a total immunity defense - appeal of right).

If those cases by the Eleventh Circuit were ripe for appeal, this case is even moreso.

While the sua sponte summary judgment is appropriate as a separate yet-undecided issue, so too the appeal of right on other questions should stop any and all of the trial process. As Justice O'Connor stated in Marrese v AAOS, 470 US 373, 379 (1985):

"In general, filing of a notice of appeal confers jurisdiction on the court of appeals and divests the district court of control over those aspects of the case involved in the appeal."

AWCC is now in the awkward position of preparing both for trial and appeal. This Court should stay any further trial and trial proceedings to avoid duplicative and unnecessary effort. The issues of law should be allowed to go forward to the Supreme Court where certiorari jurisdiction is plenary.

The Supreme Court will have a special interest in this appeal. It presents several important undecided questions as to jurisdiction and the merits.

Most important is the fundamental underlying problem not yet addressed and discussed by this Court. Mr Raney claims a right under F.A.C.E., 18 USC §248, to ignore and violate the 36-foot buffer zone injunction upheld by Chief Justice Rehnquist and the Court in Madsen v WHC, 512 US 753 (1994). That injunction was validly applied to Mr Raney in full and fair proceedings where he had every opportunity to challenge its application and validity. He did so, and lost at every stage.

For the very same acts he asserts here, Mr Raney was convicted of contempt, lost on appeal, and certiorari was denied. Alf v Florida, 116 SCt 65, 133 LEd2d 27 (1995), denying cert to 651 So2d 691, 692, 1211 (Fla 5th DCA). The Alf papers are all in this Court file.

The importance of Madsen/Alf for a later F.A.C.E. action by one convicted of contempt for the very same conduct will surely be of interest to the Supreme Court. The Court is not likely to permit Mr Raney to disregard its authority from Madsen/Alf and invent a wholly unwarranted right under FACE to flout the Supreme Court and Florida appellate court decisions. Mr Raney has long since had his day in Court on every issue involved in this case. That must be understood, and no unnecessary trial will change the ultimate outcome.

RESPECTFULLY SUBMITTED:
Roy Lucas <signed>
C/o PO Box 1433
Melbourne, FL 32902-1433
and
Susan England
2805 Lakeview Drive
Fern Park, FL 32730-2007
ATTORNEYS FOR AWCC et al.

CERTIFICATE OF SERVICE AND RULE 3.01: This Application for Stay has been served by First Class Mail, postage prepaid, sent by the undersigned this 18th day of February 1999 to
Christopher Sapp, PO Box 1012, Lehigh Acres, FL 33970-1012, and Lawrence Sift, PO Box 14-9022, Coral Gables, FL 33134. Rule 3.01 was complied with before Magistrate Judge Baker at the postponed pretrial conference 2/16/99 in Orlando.

BY: Roy Lucas <signed>