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2:14-cv-00055 #38

2:14-cv-00055 #38

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Published by Equality Case Files
Doc 38 - Reply in support of certification of question to Utah Supreme Court
Doc 38 - Reply in support of certification of question to Utah Supreme Court

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Published by: Equality Case Files on Apr 26, 2014
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04/29/2014

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JONI J. JONES (7562) KYLE J. KAISER (13924)
 
Assistant Utah Attorneys General PARKER DOUGLAS (8924) General Counsel and Chief of Staff 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
 
 Attorneys for State Defendants
IN THE UNITED STATES DISTRICT COURT IN AND FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
 
JONELL EVANS, STACIA IRELAND, MARINA GOMBERG, ELLENOR HEYBORNE, MATTHEW BARRAZA, TONY MILNER, DONALD JOHNSON, and CARL FRITZ SHULTZ,
 
Plaintiffs,
 
v.
 
STATE OF UTAH, GOVERNOR GARY HERBERT, in his official capacity; and ATTORNEY SEAN REYES, in his official capacity, Defendants.
 
DEFENDANTS’
REPLY MEMORANDUM IN SUPPORT OF THEIR MOTION TO CERTIFY QUESTIONS OF UTAH STATE LAW TO THE UTAH SUPREME COURT
Case No. 2:14-cv-00055-DAK Judge Dale A. Kimball
Case 2:14-cv-00055-DAK Document 38 Filed 04/25/14 Page 1 of 5
 
2 Pursuant to DUCivR 7-1 Defendants the State of Utah, Governor Gary Herbert, and
Attorney General Sean Reyes, (“Defendants” or the “State” or the “Utah”) by and through
counsel, Joni J. Jones and Kyle J. Kaiser, Assistant Utah Attorneys General, and Parker Douglas, General Counsel and Chief of Staff, provide the following Reply Memorandum in Support of
Defendants’ Motion to Cer 
tify Questions of Utah State Law to the Utah Supreme Court (doc. 34).
Plaintiffs’ Response to Defendants’
 Motion to Certify (doc. 35) provides no relevant
legal basis for the Court to deny certification on Defendants’ Proposed Certified Question.
1
 Rather, Plaintiffs cast
Defendants’ Motion as strategic, alleging that Defendants are “manufacturing standing” before the Utah Supreme Court and are “
manipulat
[ing] this court’s certification procedures, “attempt[ing] to game the certification process,” and even “flout[ing]
the litigation process.
.)
As is apparent from Defendants’ Motion as well as Defendants’ Response to Plaintiffs’ Proposed Supplement to Motion for Preliminary
Injunction (doc. 33), nothing could be further from the truth.
The heart of Plaintiffs’ claims
is
that the State’s failure to
grant marriage benefits to those marriages performed pre-stay violates the Due Process Clause of the Fourteenth Amendment. (
See
Pl.’s Compl. (
doc. 1) at  ¶¶ 1, 104
121.) Defendants therefore
removed Plaintiffs’ case to
federal court, the appropriate forum to make such a determination. (
See
 Not. of Removal (doc. 1) at 1.) With this action pending, at least two Plaintiffs
 — 
along with other same-sex couples who are not parties here, but who would certainly benefit from any injunction entered by
1
 
Defendants’ Proposed Certified Question is: Do same
-sex couples who received marriage licenses, and whose marriages were solemnized, between December 20, 2013 and January 6, 2014, have vested property rights in their marriages which now require recognition under present Utah law?
Case 2:14-cv-00055-DAK Document 38 Filed 04/25/14 Page 2 of 5
 
3 this Court
 — 
moved forward with adoption petitions in state court. Adoption proceedings are essentially private, and the Attorney General was made aware of a few such petitions by when the court notified by the trial court.
See 
Utah Code § 78B-6-141(1) (requiring that a petition for
adoption, written reports and “all other documents filed” with an adoption be sealed);
 see also
(Add. C. to Ex. 1 of Decl. of Shane Marx, doc. 32-2). Despite the pendency of the federal case, and also the pendency of the preliminary injunction motion that would provide those state court  petitioners the relief they desired, at least some of the adoption petitioners moved forward in state court. In some of those instances
 — 
though the State understands, not in all
 — 
state trial court judges granted same-sex petitioners (including Plaintiffs Barraza and Milner) their requested relief and entered orders of adoption. (
See
[Proposed] Supplement to Mot. for Prelim. Inj. (doc. 32-1) at 2 ¶ 1, 5.) The orders of adoption required the Department of Health, Office of Vital Statistics, a state agency,
to take action perceived to be contrary to the plain language of Utah’s laws. The
Department of Health was not a party to, and did not have notice of, any adoptions, and took the only reasonable course of action it could: It sought guidance from the Utah Supreme Court to clarify its responsibilities vis-à-vis these orders. (
See, e.g.,
Mem. of P. & A. in Supp. of Pet. for Extraordinary Relief, Ex. 2
to Def.’s Mot. to Certify (
10.) This was not a litigation strategy, but the only reasonable course of action the Department could take, being caught between contempt sanctions on one hand, and the apparent violation of the plain text of Utah law on the other.
Case 2:14-cv-00055-DAK Document 38 Filed 04/25/14 Page 3 of 5

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