JONI J. JONES (7562) KYLE J. KAISER (13924) Assistant Utah Attorneys General OFFICE OF THE UTAH ATTORNEY GENERAL 160 East 300 South, Sixth Floor P.O. Box 140856 Salt Lake City, Utah 84114-0856 Telephone: (801) 366-0100 Facsimile: (801) 366-0101 E-mail: pdouglas@utah.gov jonijones@utah.gov kkaiser@utah.gov
IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
JONELL EVANS, STACIA IRELAND, MARINA GOMBERG, ELLENOR HEYBORNE, MATTHEW BARRAZA, TONY MILNER, DONALD JOHNSON, and CARL FRITZ SHULTZ,
Plaintiffs/Appellees, v.
STATE OF UTAH; GOVERNOR GARY HERBERT, in his official capacity; and ATTORNEY SEAN REYES, in his official capacity,
Defendants/Appellants.
Reply Brief in Support of Motion for Enlargement of Time to File Opening Brief
Case No. 14-4060
Appellate Case: 14-4060 Document: 01019297925 Date Filed: 08/20/2014 Page: 1 [Docket Reference Number 10199972]
2 Pursuant to Rule 26(b) of the Federal Rules of Appellate Procedure and Tenth Circuit Rule 27.4, counsel for Appellants Gary R. Herbert and Sean D. Reyes (Utah or Defendants) submit this reply brief in support of their motion to the Court for a 30-day enlargement of time, up to and including October 22, 2014, for Appellants to file their opening brief. INTRODUCTION Utah has never disputed that Plaintiffs genuinely feel subjected to hardship in this matter, and Defendants never would. However, as Utah pointed out in briefing before the Supreme Court, Plaintiffs themselves acknowledged no concrete or ongoing irreparable harm: They maintained no one knows what the next twelve months (or more) may bring Plaintiffs way, and Plaintiffs cannot assume irreparable harm as no deprivation of constitutional rights has yet been finally determined. Pets. Reply Mem. in Supp. of Emergency Application to Stay Prelim. Inj. Pending Appeal at 9-10, Herbert et al. v. Evans et al., 2014 WL 3557112, 83 U.S.L.W. 3073 (quoting Resps. Br. at 25). Uncertainty and what Plaintiffs have repeatedly referred to as legal limbo is the nature of all non-final litigation. Utah respects and recognizes that this state of affairs has an effect on Plaintiffs, and has repeatedly acknowledged that it seeks orderly dispositions of all issues in this case as they are of obvious importance to all Utahns. Appellate Case: 14-4060 Document: 01019297925 Date Filed: 08/20/2014 Page: 2
3 Nonetheless, it is a fact that opposing counsel has never addressed the equally true proposition in the balancing harms analysis: any time a State is enjoined by a court from effectuating statues enacted by the representatives of its people, it suffers a form of irreparable injury. New Motor Vehicle Bd. v. Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977) (Rehnquist, J., in chambers); accord Maryland v. King, 133 S. Ct. 1, 3 (Roberts, C.J., in chambers); Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 134 S. Ct. 506, 506 (2013) (Scalia, J., concurring in denial of application to vacate stay). The possible harms posed by the preliminary injunction the district court fashioned in this matter are wide ranging, as the district court did not limit its order to named Plaintiffs, but ordered that Utah officials immediately recognize all of the interim marriages entered into by same-sex couples between the district courts decision in Kitchen v. Herbert, 961 F. Supp. 2d 1181 (D. Utah 2013), on December 20, 2013 and the Supreme Courts stay of that decision on January 6, 2014. The issue of Whether the Fourteenth Amendment to the United States Constitution prohibits a state from defining or recognizing marriage only as the legal union between a man and a woman is the precise question Utah recently presented to the Supreme Court for certiorari in Kitchen v. Herbert, __ F.3d __, 2014 WL 2868044 (10th Cir. 2014), petition for cert. filed (Aug 05, 2014) (No. 14-124), and the recognition question is central here as it still is in Kitchen. Appellate Case: 14-4060 Document: 01019297925 Date Filed: 08/20/2014 Page: 3
4 While Plaintiffs counsel puts much emphasis on the district courts findingswhich Utah disputes on this appealopposing counsel completely neglect that the Supreme Court necessarily considered the equities in the full briefing regarding the stay pending appeal, which consisted of an opening brief of roughly thirty pages, Plaintiffs response of approximately the same length, and Utahs reply brief of twelve pages. After Justice Sotomayor referred the matter to the entire Court, the Supreme Court found on the questions posed to this Court by this appeal of the district courts application of a preliminary injunction in this matter: (1) a reasonable probability that four Justices will consider the issue sufficiently meritorious to grant certiorari; (2) a fair prospect that a majority of the Court will vote to reverse the judgment below; (3) a likelihood irreparable harm will result from denial of the stay. Hollingsworth v. Perry, 558 U.S. 190 (2010) (per curium). In close cases the Circuit Justice or the Court will balance the equities and weigh the relative harms to the applicant and to the respondent. Id. (citing Lucas v. Townsend, 486 U.S. 1301, 1304 (1988) (Kennedy, J., in chambers)). On application for stay, a Circuit Justice must try to predict whether four Justices would vote to grant certiorari should the Court of Appeals affirm the District Court order without modification; try to predict whether the Court would then set the order aside; and balance the so-called stay equities. San Diegans for Mt. Soledad Natl War Memorial v. Paulson, 548 U.S. 1301, 1302 (2006) (Kennedy, J., in Chambers) Appellate Case: 14-4060 Document: 01019297925 Date Filed: 08/20/2014 Page: 4
5 (quoting INS v. Legalization Assistance Project of Los Angeles Cnty Fedn of Labor, 510 U.S. 1301, 1304 (OConnor, J., in chambers). Thus, as Justice Sotomayor referred the stay on appeal in this matter to the entire Court, the Court considered the harms and found they weighed in favor of Utah, found that four justices would vote to grant certiorari should this Court simply affirm the district court, and found a fair prospect that a majority of justices would vote to reverse the district courts grant of preliminary injunction in this matter. ARGUMENT Defendants do not dispute that, under the applicable rule of this Court, extensions are generally disfavored. 10th Cir. R. 27.4(A). Notwithstanding, one-time, 30-day extensions are routinely granted by the Clerk of this Court. Such a modest extension is merited in this matter. Opposing counsel first argues the Motion to Extend did not state with specificity why other associated counsel cannot prepare the brief for timely filing or relieve movants counsel of the other litigation. Rule 27.4(D)(1)(d). In spite of opposing counsels speculation regarding the possible capacities of the Office of the Utah Attorney General, and their estimation that other counsel in that office could adequately prepare the brief, Defendants are nonetheless entitled to choose which counsel should represent them in this appeal. Undersigned counsel was present in briefing and in argument for all stages of this matter, from initial arguments through Appellate Case: 14-4060 Document: 01019297925 Date Filed: 08/20/2014 Page: 5
6 moving for the Supreme Court stay, and this Court recognizes the importance of continuity of counsel. cf. United States v. Banks, ___F.3d ___, 2014 WL 3805481, at *5 (noting general proposition under federal Speedy Trial Act that continuity of counsel is an appropriate consideration). As it is counsels practice to argue only briefs that counsel prepares himself, opposing counsels proposition that others draft the brief and undersigned counsel argue the case to the Court is not an acceptable or practicable alternative for Defendants. Regarding undersigned counsels ability to timely prepare the brief on the current schedule, the motion noted that counsel has a brief due in Ute Tribe v. Utah et al., 14-4028 &14-4031, that is complex and due to this Court September 3, 2014. This Court can take judicial notice of the fact that counsel of necessity requested and was granted a 30-day extension in that matter, as this Court can take judicial notice of its docket. During that time, counsel was one of the primary drafters and filing counsel in the petition for writ of certiorari in Kitchen v. Herbert, __ F.3d __, 2014 WL 2868044 (10th Cir. 2014), petition for cert. filed (Aug 05, 2014) (No. 14-124). As the dates suggest, during the time this Court allowed counsel for extension in Ute Tribe, counsel prepared the writ of certiorari in Kitchen, having just completed the briefing to the Supreme Court for a stay in the instant case, continued preparing the appeal in the Ute case, as well as handling other matters and performing everyday duties as Utah Federal Solicitor and Chief of Staff to the Utah Attorney General. In short, Appellate Case: 14-4060 Document: 01019297925 Date Filed: 08/20/2014 Page: 6
7 counsels instant request is not for sloth or dawdling, but motivated by a desire to provide this Court with the consistent standard of advocacy this important case merits. As for why a short extension in this matter should be granted limited priority, the same facts apply: counsel was already granted an extension by the Court in another case and the Court is well-aware of the September 3 deadline for briefing Ute Tribe v. Utah et al., 14-4028 &14-4031. Counsel has also noted that depositions in that matter are scheduled for September 5 and 8, and a trial brief is due as well immediately thereafter. Be that as it may, opposing counsel raises the fair question regarding time constraints after September 8, 2014. On that issue, the Court can also take judicial notice of the fact that because counsel filed the petition for writ of certiorari in Kitchen on August 5, 2014, the response to that petition will be filed by September 5, 2014 and counsel will then for the next two weeks be involved in drafting, editing and filing a reply in support of the petition for writ of certiorari in that matter. Thus, the time for that reply roughly coincides with the current date for the opening brief in this matter, September 22, 2014. Regarding the complexity of the case at hand justifying the requested extension, undersigned counsel submits that given the aforementioned scheduling, a 30-day extension, which is often given as a matter of course, is indeed a modest request. While opposing counsel may assume familiarity with the law and facts of Appellate Case: 14-4060 Document: 01019297925 Date Filed: 08/20/2014 Page: 7
8 the case, undersigned counsel would merely point to the fact that this case presents novel questions of both federal and state law, questions that are novel enough that in spite of this Courts denial of a longer stay request, and the district courts conclusions in its order for preliminary injunction, the Supreme Court nonetheless on its grant of the petition for stay disagreed with the analysis below to the extent that it found that should the district court be affirmed, four justices would likely vote to grant certiorari and there exists the potential that a majority of justices would vote to reverse the decision below. Given that conflict in judicial perspectives, opposing counsel cannot credibly and seriously maintain that this matter is not complex. The preliminary injunction at issue raises not only the issues previously mentioned, but as the district court did not limit its injunction to the named parties, and instead fashioned the injunction such that it is applicable to all interim same-sex marriages that took place between the district courts decision in Kitchen enjoining enforcement of Utah constitutional and statutory provisions and the Supreme Courts stay of that injunction, the present case also presents this Court with a complex question on the nature of a preliminary injunctions proper scope as well. Counsel submits the bare posture of the case as just outlined makes a sufficient showing of complexity such that a modest extension is warranted given the present conditions and posture of this case.
Appellate Case: 14-4060 Document: 01019297925 Date Filed: 08/20/2014 Page: 8
9 CONCLUSION For the above mentioned reasons, Utah requests that this Court grant the motion for a 30-day enlargement of time, to and including Wednesday, October 22, 2014, for Defendants to file their opening brief in this appeal. DATED this 20th day of August, 2014.
OFFICE OF THE UTAH ATTORNEY GENERAL
Parker Douglas PARKER DOUGLAS Utah Federal Solicitor Counsel for Defendants Appellate Case: 14-4060 Document: 01019297925 Date Filed: 08/20/2014 Page: 9
10 CERTIFICATE OF SERVICE
Pursuant to Section II(I) of the Court=s CM/ECF User=s Manual, the undersigned certifies that all required privacy redactions have been made and this document was scanned for viruses with the most recent version of Microsoft Security Essentials v. 2.1.111.6.0, and, according to the program, is free of viruses.
The undersigned also certifies that on August 20, 2014, a true, correct and complete copy of this document was filed with the Court and served on the following via the Court=s ECF system:
Erik Strindberg Lauren I Scholnick Kathryn K. Harstad Rachel E. Otto STRINDBERG & SCHOLNICK, LLC 675 East 2100 South, Ste. 350 Salt Lake City, UT 84106
John M. Mejia Leah M. Farrell ACLU of Utah 355 North 300 West Salt Lake City, Utah 84103
Peggy Wheeler-Estrada
Appellate Case: 14-4060 Document: 01019297925 Date Filed: 08/20/2014 Page: 10
Scott Allen Hain v. Mike Mullin, Warden, Oklahoma State Penitentiary, Federal Public Defender For The Western District of Oklahoma, Amicus Curiae, 327 F.3d 1177, 10th Cir. (2003)