1} PHILLIPS &

The Law Offices of

BORDALLO

A Professional Corporation

410West O'Brien Drive, Suite 102Hagfttna, Guam96910-5044

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Tel: (671) 477-ABCD (2223) Fax: (671) 477-2FAX (2329)

"I Erensia, Lina'Ia', Espiritu-ta"

DISTRICT COURT OF GUAM

^IAY04 2015^
JEANNE G. QUINATA
CLHRK OF COURT

Attorneys for Defendants

UNITED S T A T E S

DISTRICT COURT OF GUAM

KATHLEEN M. AGUERO and

CIVIL CASE NO. 15-00009

LORETTA M. PANGELINAN

Plaintiffs,

EDDIE BAZA CALVO in his official

MEMORANDUM OF POINTS
AND AUTHORITIES IN
SUPPORT OF MOTION TO
HOLD CASE IN ABEYANCE

Capacity as Governor of Guam; and

CAROLYN GARRIDO in here official

Capacity as Registrar in the Office of Vital

Statistics, Departmentof Public Health
and Social Services,
Defendants.

I.

INTRODUCTION.

Defendants EDDIE BAZA CALVO, Governor of Guam, and CAROLYN GARRIDO,

Registrar in the Office of Vital Statistics DHPSS, in their official capacities, respectfully
move this Court for an Order staying further proceedings in this matter pending a decision

Case 1:15-cv-00009 Document 17 Filed 05/04/15 Page 1 of 10

from the United States Supreme Court in the case of DeBoer v. Snyder, 112 F.3d 388 (6th Cir.

2014), cert, granted, - S.Ct. - Nos. 14-556, 14-562, 14-571, 14-574 , 2015 WL 213650 (Jan.

16,2015). Defendants do not take a position regarding any of Plaintiffs' legal arguments. 10
GCA Section3207(h), until changed by the Legislature or struck down by the courts, removes

any discretion byofficers of the executive branch of the government of Guam.

In the alternative, and pursuant to CVLR 7(g), Defendants respectfully request for an
extension of time of no less than 14 days from May 4 (or at least May 18, 2015) to file a

response to the Plaintiffs' Complaint, motion for summary judgment, and request for
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preliminary injunction.
II.

BACKGROUND.

On October 7,2014, the Ninth Circuit Court ofAppeals issued an opinion holding that

the laws of Idaho and Nevada which limited marriage to opposite-sex couples

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unconstitutionally violated the Equal Protection Clause of the Fourteenth Amendment. Latta

v. Otter, 111 F.3d 496 (9th Cir. 2014). Based upon the Ninth Circuit's opinion in Latta, the
Plaintiffs in this action have asked this Court to declare the laws of Guam which prohibit the

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licensure of same-sex marriages as being similarly violative of the Equal Protection clause of

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the Fourteenth Amendment. The Plaintiffs have also asked the Court to declare that Guam's

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marriage laws are violative of the Due Process clause of the Fourteenth Amendment

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On January 16, 2015, the Supreme Court granted certiorari to hear four same-sex

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marriage cases from the Sixth Circuit Court of Appeals which challenge either a state's

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refusal to recognize same-sex marriages from other jurisdictions or astate's refusal to license
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same-sex marriages, or both.1 The Supreme Court has consolidated the four cases and

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1 The four consolidated cases are Obergefell v. Hodges, 14-556 (Ohio); Taco v. Haslam, 14-562
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(Tennessee); DeBoer v. Snyder, 14-571 (Michigan); and Bottrke v. Beshear, 14-574 (Kentucky).

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Case 1:15-cv-00009 Document 17 Filed 05/04/15 Page 2 of 10

identifies them as Obergefell v. Hodges, although popular reference identifies the

consolidated cases as DeBoer v. Snyder. Oral argument was heard by the Supreme Court on

April 28, 2015, in Washington D.C., and the issues were limited to the following two

questions: (1) Does the Fourteenth Amendment require a state to license a marriage between
two people of the same sex?; and (2) Does the Fourteenth Amendment require a state to

recognize a marriage between two people of the same sex when their marriage was lawfully

licensed and performed out-of-state? The Supreme Court is expected to issue its decision
before its current Term ends in late June 2015.
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III.

LEGAL DISCUSSION.

A.

The Court is Authorized to Issue a Stay of Proceedings Pending

Resolution ofaSeparate Action that will have aDispositive Impact on the
Issues.

Afederal district court has the authority and discretion to issue a stay of proceedings

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and hold acase in abeyance pending the outcome of another case in an alternative proceeding
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that it believes will impact the applicable law, and control the outcome of the case for which

the stay is sought. "[A] court may, with propriety, find it is efficient for its own docket and the
fairest course for the parties to enter a stay of an action before it, pending resolution of

independent proceedings which bear upon the case." Mediterranean Enterprises, Inc. v.
Ssangyong Corp., 708 F.2d 1458, 1465 (9th Cir. 1983), citing Leyva v. Certified Grocers of

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California, Ltd., 593 F.2d 857,864 (9th Cir 1979).

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The decision to stay proceedings is inherent and entirely within the Court's discretion.
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"[T]he power to stay proceedings is incidental to the power inherent in every court to control
the disposition of the causes on its docket with economy of time and effort for itself, for

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counsel, and for litigants." Landis v. North Am. Co., 299 U.S. 248, 254-255 (1936)

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Case 1:15-cv-00009 Document 17 Filed 05/04/15 Page 3 of 10

(recognizing a court's inherent power to slay proceedings pending a decision by the Supreme
Court in another case).

B.

Good Cause Exists to Grant a Stay.

1.

Same issues as DeBoer.

The primary theory upon which the Plaintiffs seek relief is identical to the first

question posed in the DeBoer petition.2 That is, whether the Fourteenth Amendment requires
a state to license a marriage between two people ofthe same sex. Because the Supreme Court

is already considering this question, it is prudent and reasonable to temporarily stay the instant

proceedings until the Supreme Court ends the legal debate and issues adecision.
The Plaintiffs will likely argue that the licensure of same-sex marriages is permitted in
all of the U.S. States covered by the Ninth Circuit. This is true. On October 13, 2014, the

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Ninth Circuit dissolved a stay ofproceedings that it had earlier imposed in the Latta case to

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enjoin the states of Idaho and Nevada from enforcing laws which banned same-sex marriage.

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Latta v. Otter, 14-3520& 14-3521, DktEntry No. 196 (9th Cir. Oct. 13, 2014). Upon

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dissolving the Latta stay, the Ninth Circuit stated that its decision to impose the stay in the

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first place was "based upon the Supreme Court's stay in Herbert v. Kitchen, 143 S.Ct. 893

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(2014), the Utah same-sex marriage case. However, on Monday, October 6, the Supreme

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Court denied certiorari and vacated stays in all seven of the same-sex marriage cases that

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were pending before, including Herbert." Latta v. Otter, 14-3520& 14-3521, DktEntry No.

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197 at 6 (9th Cir. Oct. 15,2014).

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2The Plaintiffs are not seeking relief on the second question in DeBoer concerning whether astate must
recognize a same-sex marriage performed out-of-state. This is because in Guam, same-sex marriages
licensed out-of-state are already recognized as legal. 19 G.C.A 3107 ("All marriages contracted outside
of the territory of Guam, which would be valid by the laws of the country in which the same were
contracted, are valid in the territory of Guam.")

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Case 1:15-cv-00009 Document 17 Filed 05/04/15 Page 4 of 10

In other words, the Ninth Circuit believed that the Supreme Court's denial of certiorari
in the Herbert case on October 6, 2014, was a legal development that "militates strongly in

favor of dissolution of the stay." Id. The Ninth Circuit noted that the denial of certiorari in

Herbert paved the way for same-sex marriage in fourteen states to proceed. Id. at pp. 8-9, and
fn. 1.

When it dissolved the stay in Latta on October 13, 2014, the Ninth Circuit

essentially permitted same-sex marriages to be licensed in those states which had litigations

pending before it. At the time of this decision, neither the Ninth Circuit nor anyone else could

have predicted that just three weeks later on November 6, 2014, the Sixth Circuit Court of

Appeals would issue adecision in DeBoer that was very different from Latta, thus causing a
federal circuit court split. After the Sixth Circuit's decision in DeBoer on November 6, 2014,

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however, the Ninth Circuit decided to put on hold the appellate proceedings pending before it

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from three different states, with no action to be taken until after the Supreme Court rules in

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DeBoer.

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On December 2, 2014, and again on April 3, 2015, the Ninth Circuit agreed to order a

stay of Arizona's same-sex marriage law appeal until the Supreme Court ruled on the DeBoer
petition. Majors v. Jeanes, 14-17276, DktEntry No. 4(9lh Cir. Dec. 2, 2014); DktEntry No.

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11 (9th Cir. Apr. 3,2015).

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In addition to the Arizona appeal, the Ninth Circuit also ordered that appellate
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proceedings from the states of Alaska and Montana be stayed until DeBoer is resolved. In

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Alaska, the Ninth Circuit ordered that appellate proceedings be stayed "until 14 days after the

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decision issues in DeBoer or until June 30, 2015, whichever occurs first." See, Hamby v.

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Walker, 14-35856, DktEntry No. 20 (9th Cir. Alaska Feb. 27, 2015). In Montana, the Ninth

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Case 1:15-cv-00009 Document 17 Filed 05/04/15 Page 5 of 10

Circuit ordered a stay of appellate proceedings until August 28, 2015. See, Rolando v. Fox,
14-35987, DktEntry 8 (9th Cir. Mont. Feb. 9,2015).

Thus, even though the Ninth Circuit has not yet decided the appeals from the states of

Arizona, Alaska, and Montana, it still took the position that it is appropriate to hold in

abeyance any further action until after DeBoer is decided. Once the timeline is carefully
examined, it is not an unreasonable stretch to conclude that had the Sixth Circuit's decision in
DeBoer come out before October 15,2014 when the Ninth Circuit dissolved the stay in Latta,

it is possible that the Ninth Circuit would not have dissolved the stay at all. In any event, the

Ninth Circuit has made it more than clear that it does not want to entertain any further

litigation or appeals about same-sex marriage until after the Supreme Court has had a chance

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to rule inDeBoer and thus end any debate on the matter once and for all.

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Bolstering this is the fact that in anticipation of a ruling from the Supreme Court, other

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circuit courts have also issued orders holding their appeals in abeyance. The Fourth Circuit

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Court of Appeals has stayed appeals from North Carolina and South Carolina, and the
Eleventh Circuit has stayed appeals from Alabama, Florida, and Georgia. See, Bleckley v

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Wilson, 14-2241, Doc. No. 24 (4lh Cir. S.C. Jan. 6, 2015); General Synod of the United

Church ofChrist v. Tillis, 14-2225, Doc No. 35 (4th Cir. N.C. Feb. 10, 2015); Searcy v. Atty.

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Gen., State ofAlabama, 15-10295 (11th Cir. Ala. Feb. 4, 2015); Brenner v. Armstrong, 14-

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14061 (11th Cir. Fla. Feb. 4, 2015); Inniss v. Aderhold, 15-90002 (11th Cir. Ga. Feb. 17,
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2015).

2.

A ShortStav is Appropriate to Promote Judicial Efficiency and Economy.

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Astay of proceedings in this case would not be indefinite, but rather would last only

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until the DeBoer opinion is rendered no later than the end of June 2015, which will be in

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Case 1:15-cv-00009 Document 17 Filed 05/04/15 Page 6 of 10

about eight weeks at the most. As of date of this filing, the time for filing a responsive
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pleading to the Plaintiffs' Complaint has not yet passed, and oral arguments before the
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Supreme Court have just concluded. Proceeding with litigation, including summary judgment
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and/or a preliminary injunction when the highest court in the entire nation is only weeks away

from a decision that will put finality to the issues and theories raised before the Court will not

serve the interests of justice or judicial economy.

Rule 5.1 of the Federal Rules of Civil Procedure allows the attorney general to

intervene within 60 days after the notice drawing into question the constitutionality of a

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federal or state statute is filed or after the court certifies the constitutional challenge to the

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statute.

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History is on the verge of being significantly shaped once more, and proceeding with
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this case before the Supreme Court has had achance to opine would be awaste of judicial and

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party resources. It appears virtually certain the Supreme Court's rulings will bring closure to

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this case and all related cases.

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C.

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Federal Rule of Civil Procedure 6(b)(1)(A) provides that when an act must be done

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within aspecified time, the court, with or without motion, may for good cause extend the time if

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arequest is made before the original time extension expires. Rule 6(b), like all of the FRCP, is

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In the Alternative, an Extension of Time is Appropriate.

intended to be liberally construed. Rodgers v. Watt, 722 F.2d 456, 459 (9th Cir.1983).

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Consequently, requests for extensions of time made before the applicable deadline has passed
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should normally be granted in the absence of bad faith. 4B Charles Alan Wright &Arthur
R. Miller, Federal Practice and Procedure 1165 (3d ed.2004).

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Case 1:15-cv-00009 Document 17 Filed 05/04/15 Page 7 of 10

In this case, Defendant Carolyn Garrido wasserved with the Plaintiffs' opening pleadings

on April 13, 2015. Defendant Governor Eddie Calvo was served the following day on April 14,
2015. Under Rule 12(a) and CVLR 7(f), the time for Defendants to file a response to the

Complaint and the motions for summary judgment and preliminary injunction is 21 days after
service, or May 4 and 5, respectively.

During the most of the time since April 13, Defendant Governor Calvo has been offisland. Concurrently, the Office ofthe Attorney General advised the Defendants that itwould not

be able to represent them in these proceedings. As aresult of these factors, as well as the press of

y 10 business, Defendants have only recently been able to retain independent legal counsel in this
highly complex and public case. On May 1,2015, Elizabeth Barrett-Anderson, Attorney General
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of Guam, appointed myself as a Special Assistant Attorney General for the purpose of
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representing Eddie Baza Calvo, Governor of Guam and Carolyn Garrido, Registrar in the Office

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Defendants submit that the circumstances presented here demonstrate and meet the "good

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cause" requirement of FRCP 6(b)(1). Defendants request that if the Court denies astay of these

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proceedings, then in the alternative, and pursuant to CVLR 7(g), that it grant Defendants an

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extension of time of not less than 14 days from May 4 (or at least until May 18, 2014) to file a

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of Vital Statistics in this matter.

response to the Plaintiffs' Complaint and motions. This request is not being made to delay these

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proceedings, but to serve the interests ofjustice.

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IV.

CONCLUSION.

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Regardless of the outcome of this motion to stay or anything else that may happen

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here, in the end it will be the United States Supreme Court who will have the last say on the

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issues raised by the Plaintiffs in their Complaint. Staying this case will promote judicial

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Case 1:15-cv-00009 Document 17 Filed 05/04/15 Page 8 of 10

economy because there is no need for the Court to decide a question that is already under

consideration by the Supreme Court, and which will very shortly become controlling, binding
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authority on the Court, the parties, and the entire nation. Defendants will follow the orders of
this Court and those of the United States Supreme Court.

For all of the foregoing reasons, Defendants respectfully request that the Court

exercise its discretion to stay the instant proceedings and hold them in abeyance. In the

alternative the Defendants request an extension of time of at least up until May 18, 2015, to

file a response to the Plaintiffs' Complaint and its accompanying motions for summary

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judgment and preliminary injunction.

Respectfully submitted this 4th day of May, 2015.

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PHILLIPS & BORDALLO, P.C.

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Case 1:15-cv-00009 Document 17 Filed 05/04/15 Page 9 of 10

CERTIFICATE OF SERVICE
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I, MICHAEL F. PHILLIPS, hereby certify that on May 4, 2015,1 caused to be served

personally atrue and correct copy of the foregoing Entry ofAppearance, Ex Parte Notice and

Motion to Hold Case in Abeyance, Memorandum ofPoints and Authorities in Support of

Motion to Hold Case in Abeyance and the Declaration ofMichael F. Phillips in Support of

Motion toHold Case in Abeyance to the following counsel:

Plaintiffs Kathleen M. Aguero and Loretta M. Pangelinan

Mitchell F. Thompson, Esq.
R. Todd Thompson, Esq.

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Thompson Gutierrez &Alcantara, P.C.

238 Archbishop Flores Street, Suite 801
Hagatna, Guam 96910
Tel: (671) 472-2089

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Fax: (671) 477-5206744-6476

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William D. Pesch, Esq.

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173 Aspinall Avenue, Suite 203

Guam Family Law Office

Hagatna, Guam 96910

Tel: (671) 472-8472
Fax:(671)477-5873

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Dated this 4,h day of May, 2015.

PHILLIPS & BORDALLO, P.C.

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By:

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Case 1:15-cv-00009 Document 17 Filed 05/04/15 Page 10 of 10