Appellate Case: 13-4178

Document: 01019188274

Date Filed: 01/17/2014

Page: 1

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT DEREK KITCHEN, individually; MOUDI SBEITY, individually; KAREN ARCHER, individually; KATE CALL, individually; LAURIE WOOD, individually; and KODY PARTRIDGE, individually, No. 13-4178 Plaintiffs - Appellees, v. GARY R. HERBERT, in his official capacity as Governor of Utah, and SEAN D. REYES, in his official capacity as Attorney General of Utah, Defendants Appellants, and SHERRIE SWENSEN, in her official capacity as Clerk of Salt Lake County. Defendant. MOTION FOR EXTENSION OF TIME TO FILE DEFENDANTS-APPELLANTS OPENING BRIEF

EQCF#31 Docket Reference [10142016]

Appellate Case: 13-4178

Document: 01019188274

Date Filed: 01/17/2014

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Pursuant to 10th Cir. R. 27.4, Defendants-Appellants Gary R. Herbert, in his official capacity as Governor of Utah, and Sean D. Reyes, in his official capacity as Attorney General of Utah, hereby request a 10-day extension of time to file their opening brief in this matter. Plaintiffs oppose the relief requested herein. GROUNDS FOR AN EXTENSION A short extension of time is necessary to allow State Defendants to complete a fulsome, detailed and quality brief on the significant constitutional questions surrounding a States definition of marriage as only between a man and a woman. These issues are important to not only the parties, but to virtually all of the citizens of Utah, the state governments and citizens within the jurisdiction of the Tenth Circuit and state governments and citizens throughout the country. On December 30, 2013, the Court ordered an expedited briefing schedule requiring State Defendants to file an opening brief and appendix by January 27, 2014; Plaintiffs to file a response brief by February 18, 2014; and State Defendants to file any reply brief by February 25, 2014. However, circumstances have changed significantly since the 2

Appellate Case: 13-4178

Document: 01019188274

Date Filed: 01/17/2014

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expedited schedule was set and a short extension is now warranted. After the district court and this Court denied State Defendants request for a stay pending appeal, the United States Supreme Court entered a stay of the district courts injunction pending appeal on January 6, 2014. The relatively rare stay from the Supreme Court indicates at least two points: (1) an interest by the Supreme Court in this appeal and/or the issues raised in this appeal, and (2) a desire by the Supreme Court that the appeal (and the effects of any court decisions) be handled in an orderly way befitting the important issues being addressed. Additionally, given the importance of the issues presented by this appeal and the possibility that the Supreme Court will review this Courts decision, the State of Utah has hired outside counsel to help prepare the briefs and present argument. Due to requirements of State procurement law and the desire to obtain the most qualified representation possible to aid the Court in its consideration of the case, outside counsel was only selected on January 16, 2014. The lead outside counsel will be Gene Schaerr, who is withdrawing from his firm to represent State Defendants in this Court and the Supreme Court as 3

Appellate Case: 13-4178

Document: 01019188274

Date Filed: 01/17/2014

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needed. State Defendants have worked diligently towards timely completion of a brief but still require a modest amount of additional time with Mr. Schaerrs assistance to adequately prepare and file the brief. Moreover, the Clerk of the Court indicated to Plaintiffs and State Defendants that the Court is considering extending each of the existing briefing deadlines by 2 or 3 days. State Defendants informed the Clerk of their willingness to accept the additional time for their opening and reply briefs, and that the State was in the process of obtaining outside counsel and may need to request additional time to complete the briefing. Assuming the Court is going to extend the deadlines by a few days, the 10-day extension requested herein would in reality only add an extra 7 or 8 days to the briefing schedule, a rather modest amount under the circumstances. Finally, the Court soon may be presented with a nearly identical appeal from a federal district court decision that very recently concluded Oklahomas definition of marriage as only the union of a man and a woman violates the Equal Protection Clause. Bishop v. U.S. ex rel. Holder, No. 04-cv-848-TCK-TLW, 2014 WL 116013 (N.D. Okla. Jan. 4

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14, 2014). The district court stayed its injunction of the Oklahoma constitutional provision at issue pending appeal. Id. at *33. Assuming the defendant in that case does appeal, as seems likely, the Court may want to place the Utah and Oklahoma appeals on similar briefing and argument tracks to conserve judicial resources and the resources of amici who will have the same interests in both matters. Allowing State Defendants a short 10-day extension will afford the Court and the parties time to assess the benefits of placing the nearly identical appeals on the same decisional track. CONCLUSION For the foregoing reasons, State Defendants respectfully request a 10-day extension to file their opening brief. Respectfully submitted,

s/ Stanford E. Purser STANFORD E. PURSER PHILIP S. LOTT Assistant Utah Attorneys General P.O. Box 140856 160 East 300 South Salt Lake City, Utah 84114-0856 801-366-0100 (phone) spurser@utah.gov 5

Appellate Case: 13-4178

Document: 01019188274

Date Filed: 01/17/2014

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ECF CERTIFICATIONS Pursuant to Section II(I) of the Courts CM/ECF Users Manual, the undersigned certifies that: 1. all required privacy redactions have been made;

2. hard copies of the foregoing motion required to be submitted to the clerks office are exact copies of the brief as filed via ECF; and 3. the document filed via ECF 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. s/ Stanford E. Purser

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Date Filed: 01/17/2014

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CERTIFICATE OF SERVICE I hereby certify that on the 17th of January, 2014, a true, correct and complete copy of the foregoing Motion for Extension of Time was filed with the Court and served on the following via the Courts ECF system: Peggy A. Tomsic tomsic@mgplaw.com James E. Magleby magleby@mgplaw.com Jennifer Fraser Parrish parrish@mgplaw.com MAGLEBY & GREENWOOD, P.C. 170 South Main Street, Suite 850 Salt Lake City, UT 84101 Kathryn D. Kendell kkendall@nclrights.org Shannon P. Minter sminter@nclrights.org David C. Codell dcodell@nclrights.org National Center for Lesbian Rights 870 Market St., Ste. 370 San Francisco, CA 94102 Ralph Chamness rchamness@slco.org Darcy M. Goddard dgoddard@slco.org Salt Lake County District Attorneys 2001 South State, S3700 Salt Lake City, UT 84190 s/ Stanford E. Purser