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2:14-cv-00055 #35

2:14-cv-00055 #35

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Published by Equality Case Files
Doc 35 - Plaintiffs' Response to state's motion to certify questions to Utah Supreme Court
Doc 35 - Plaintiffs' Response to state's motion to certify questions to Utah Supreme Court

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Published by: Equality Case Files on Apr 20, 2014
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05/14/2014

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Erik Strindberg (Bar No. 4154) Lauren I. Scholnick (Bar No. 7776) Kathryn Harstad (Bar No. 11012) STRINDBERG & SCHOLNICK, LLC 675 East 2100 South, Ste. 350 Salt Lake City, UT 84106 Telephone: (801) 359-4169 Facsimile: (801) 359-4313 erik@utahjobjustice.com lauren@utahjobjustice.com kass@utahjobjustice.com rachel@utahjobjustice.com John Mejia (Bar No. 13965) Leah Farrell (Bar No. 13696) AMERICAN CIVIL LIBERTIES UNION OF UTAH FOUNDATION, INC. 355 N. 300 W. Salt Lake City, Utah 84103 Telephone: 801.521.9862 Facsimile: 801.532.2850 aclu@acluutah.org Joshua A. Block* ACLU LGBT Project 125 Broad Street, Floor 18  New York, New York, 10004 Telephone: (212) 549-2593 Facsimile: (212) 549-2650  jblock@aclu.org *Admitted pro hac vice Attorneys for Plaintiffs
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH CENTRAL DIVISION
JONELL EVANS, et al. Plaintiffs v. STATE OF UTAH, et al., Defendants.
PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION FOR CERTIFICATION
Case No. 2:14-cv-55 DAK
Case 2:14-cv-00055-DAK Document 35 Filed 04/17/14 Page 1 of 5
 
 
Although they previously objected to certification, Defendants now seek to use certification as a means of manufacturing standing to challenge several families’ adoption  petitions at the Utah Supreme Court. It is time for the Court to issue a preliminary injunction based Plaintiffs’ federal claims, putting an end to Defendants’ use of this litigation to support its legal claims in other courts. Nothing short of a ruling based on the federal Constitutional claims will bring a prompt end to Defendants’ ongoing and  brazen violation the rights of Plaintiffs and other legally married same-sex couples under the federal Constitution.
I.
 
DEFENDANTS SEEK CERTIFICATION TO COLLATERALLY ATTACK COMPLETED ADOPTIONS THEY ARE OTHERWISE BARRED FROM CHALLENGING
Defendants were offered an opportunity to intervene in the adoption proceedings of Mr. Barraza and Mr. Milner and other same-sex couples but declined to do so. Having failed to intervene at the appropriate time, Defendants are absolutely barred from collaterally attacking the completed adoption proceedings and attendant orders requiring amended birth certifications. Utah law unambiguously provides that parties “may not contest an adoption after the final decree of adoption is entered, if that person . . . was served with notice of the adoption proceeding." Utah Code§ 78B-6-133(7)(a). “The limitations on contesting an adoption action . . . apply to all attempts to contest and adoption (i) regardless of whether the adoption is contested directly or collaterally; and
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Case 2:14-cv-00055-DAK Document 35 Filed 04/17/14 Page 2 of 5
 
(ii) regardless of the basis for contesting the adoption, including claims of ... mistake of law, or lack of jurisdiction.”
 Id.
 § 78B-6-133(7)(c). Defendants are aware that Utah Code§ 78B-6-133(7) bars their petition to the Utah Supreme Court. Because they lack authority to challenge the completed adoption  proceedings – and the attendant orders requiring for amended birth certifications that accompany any lawful adoption – Defendants now seek to manipulate this court’s certification procedures to transfer jurisdiction to the Utah Supreme Court. This would  provide Defendants standing to challenge the adoption proceedings that they now lack. This Court should not permit Defendants’ attempt to game the certification  process.
II.
 
THE COURT SHOULD ISSUE A PRELIMINARY INJUNCTION BASED ON PLAINTIFFS’ FEDERAL CONSTITUTIONAL CLAIMS
In light of Defendants’ recent litigation conduct, Plaintiffs respectfully submit that the Court should put the issue to rest by issuing a preliminary injunction based on Plaintiffs’ federal claims requiring that Defendants restore recognition to their legally valid marriages. Until recently, it appeared that Defendants refused only to recognize Plaintiffs’ marriages, but – as noted in Plaintiffs’ proposed supplement – Defendants now claim the right to examine the factual predicate of court orders and refuse to comply with those orders if the judgment was based on a court’s determination that Plaintiffs were married. Defendants newly claimed power to ignore not only valid marriage licenses, but also any other judicial determinations based upon those licenses, dramatically expands the cloud of uncertainty that now hangs over Plaintiffs’ lives.
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Case 2:14-cv-00055-DAK Document 35 Filed 04/17/14 Page 3 of 5

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