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Judge William Bertelsman is provided five reasons to dismiss the case, including a law preventing federal judges from interfering in state court cases.
“Federal courts are not to act as courts of appeal over the decisions of state courts,” lawyer Aaron Glasgow wrote in the motion filed on Friday in U.S. District Court. That was in reference to the one case on which Kirby has already ruled and is on appeal in the Ohio 12th District Court of Appeals in Middletown.
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In reference to the claim made by one family in a case Kirby has yet to rule on, Glasgow said, “By seeking a declaration that Judge Kirby’s anticipated decision would be unlawful, plaintiffs are essentially asking this court to intervene in that proceeding, as well as dictate to Judge Kirby what his decision must be on that pending application,” Glasgow added.
The third family has yet to file for a name change.
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The motion also includes cases in which Kirby has granted transgender name changes.
In addition, Glasgow said, “Kirby is entitled to absolute immunity from civil liability” and “had a rational basis for his decision rejecting the name change.”
The case already on appeal came after Kirby rejected a name change request from a Mason teen, 15.
Stephanie and Kylen Whitaker filed for the name change on April 24 in Warren County Juvenile Court on behalf of their 15-year-old child.
The judge said the change was not “reasonable and proper and in the child’s best interest at this time.”
The second case involves a pending case, while the third, by a defendant identified only as Jane Doe, has not filed for a name change in the probate court in Warren County.
Joshua Engel and Anne Tamashasky, two lawyers representing the families, have withdrawn from the case.
Engel predicted the case would turn on the issue of federal judges ruling on state court judges’ cases.
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The other lawyer, Joshua Langdon, could not be reached.
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