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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 Facsimile: (801) 366-0101 E-mail: jonijones@utah.gov kkaiser@utah.gov pdouglas@utah.gov 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. Case No. 2:14-cv-00055-DAK STATE OF UTAH, GOVERNOR GARY HERBERT, in his official capacity; and ATTORNEY SEAN REYES, in his official capacity, Defendants. Judge Dale A. Kimball DEFENDANTS MOTION TO CERTIFY QUESTIONS OF UTAH STATE LAW TO THE UTAH SUPREME COURT AND MEMORANDUM IN SUPPORT

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MOTION Pursuant to DUCivR 7-1 and Utah Rule of Appellate Procedure 41(a), 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, move the Court to certify a question of Utah state law to the Utah Supreme Court.

PROPOSED CERTIFIED QUESTION: 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?

MEMORANDUM INTRODUCTION Defendants previously opposed Plaintiffs Motion to Certify Questions of Utah State Law to the Utah Supreme Court (doc. 10) on the grounds that: (1) the answer to Plaintiffs proposed certified questions were clear from the plain text of the Utah Constitution, and (2) the proposed questions were vague and unhelpful to the Court. (See Defs. Opp. to Pls. Mot. to Certify (doc. 21 at 611.) Defendants original arguments and conclusions remain sound, considering the Plaintiffs originally proffered questions. But circumstances following the completion of

briefing and argument on Plaintiffs motion have changed. To ensure consistency and in the interests of judicial efficiency, a certification of a question involving the rights vested in state law is now warranted. 2

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ADDITIONAL FACTS1 At the same time Plaintiffs were litigating this case in federal court, at least one pair of the named plaintiffs in this action, Mr. Barraza and Mr. Milner, filed a petition in Utah state court to allow Mr. Milner to adopt J., Mr. Barrazas son. (See [Proposed] Supplement to Mot. for Prelim. Inj. (doc. 32-1 at 2 1, 5.) Other same-sex couples similarly filed adoption petitions. At the request of the judge presiding over Mr. Barraza and Mr. Milners adoption case, and in a number of other similar proceedings in which one party to a same-sex marriage sought to adopt the other partys child, the Attorney General filed a position statement. In those proceedings, the Attorney General noted that the adoptions should be stayed until the Kitchen v. Herbert case was decided. (See Add. C. to Ex. 1 of Decl. of Shane Marx, doc. 32-2.) Before oral argument in this case, at least one Utah District Court judge ruled that samesex parents were not entitled to a temporary restraining order requiring Utah to recognize their marriage licenses and grant adoptions. (See Tr. of Hrg on Mot. for TRO, Ex. 1 to Defs. Resp. to Pls. Proposed Supp. to Mot. for Prelim. Inj. (doc. 33-1).) Some number of other Utah District Court judges, however, granted the adoptions by the same-sex couples and, among other things, ordered the Department of Health, Office of Vital Statistics, to amend the adopted childrens birth certificates to recognize the same-sex adoptive parents.2 (See, e.g., Decree of Step-Parent

Defendants incorporate by reference the Factual Supplement included Plaintiffs [Proposed] Supplement to Motion for Preliminary Injunction (doc. 32-1), and the Defendants Response to Plaintiffs Factual Supplement included in their Response to Plaintiffs Proposed Supplement to Motion for Preliminary Injunction (doc. 33.) 2 There may be other cases in which Utah District Court judges have (a) refused to grant an adoption by same-sex parents, (b) stayed the proceedings pending the outcome of the Kitchen litigation, (c) granted the adoptions, but did not include in their order a command for a state agency to take any action, or (d) taken other actions or made other rulings regarding the adoptions. But because adoption proceedings are private, and there has not been a uniform 3

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Adoption, Add. A to Ex. 1 of Decl. of Shane Marx, doc. 32-2). In consultation with the Attorney General, the Department of Health sought relief from those orders via Petitions for Emergency Relief pursuant to Utah Rule of Appellate Procedure 8A and Petitions for Extraordinary Writ pursuant to Utah Rule of Appellate Procedure 19. (See id.; see also DOH v. Stone, Case No. 20140272 (Utah filed April 7, 2014); DOH v. Hruby-Mills, Case No. 20140280 (Utah filed April 8, 2014); DOH v. Dever, Case No. 20140281 (Utah filed April 8, 2014); DOH v. Stone, Case No. 20140292 (Utah filed April 10, 2014).)3 In those petitions, the Department argued that the district courts abused their discretion in ruling that the same-sex marriages could be recognized for purposes of the adoptions, and that the same-sex couples did not have vested rights under Utah law to their marriages. (See, e.g., Mem. of P. & A. in Supp. of Pet. for Extraordinary Relief, attached hereto as Exhibit 2, at 5, 810.) The petitions were referred to the Utah Court of Appeals, but have since been taken up by the Utah Supreme Court, which will hear the petitions and rule on them. (See Docket Sheets, Ex. 1.) LEGAL ARGUMENT Utah Rule of Appellate Procedure 41 provides that a court of the United States may request the Utah Supreme Court to answer a certified question where there is a controlling issue of law in a proceeding pending before the certifying court in which there appears to be no controlling Utah law. Utah R. App. P. 41(c)(1)(B)(C); see also id. 41(a) (permitting

certification where the state of the law is uncertain). Certification protects the interests of

requirement that the parties notify the Attorney General of the final judgments in each adoption, Defendants cannot say for certain what has happened, or even how many petitions are pending. 3 Copies of the dockets of these cases, as retrieved on April 16, 2014 from the Utah Supreme Courts Appellate Docket Search website, https://www.utcourts.gov/courts/appell/appellatesearch.htm, are attached hereto as Exhibit 1. 4

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comity and federalism, Ohio Cas. Ins. Co. v. Unigard Ins. Co., 564 F.3d 1192, 1198 (10th Cir. 2009), and is appropriate when it will conserve time, energy, and resources of the parties as well as of the court itself. Walker v. BuildDirect.com Techs., Inc., 733 F.3d 1001, 1005 (10th Cir. 2013). In their original Opposition, Defendants opposed certification to the Utah Supreme Court to Plaintiffs two questions. Plaintiffs questions remain ineligible for certification. As noted by counsel at argument on that motion before this Court, the answers to them are obvious (Article I, Section 29 of the Utah Constitution precludes any state due process rights), the questions as formulated are vague (Utah has not withdrawn recognition of marriages), and such answers would be unhelpful (as it is this Courts responsibility to determine a due process violation, not the Utah Supreme Courts). However, the threshold inquiry in this Courts analysis to determine whether Plaintiffs are entitled to relief on their federal due process claim is the determination of whether Plaintiffs in this case have an interest protected by state law. Teigen v. Renfrom, 511 F.3d 1072, 107980 (10th Cir. 2007). The question of whether the petitioners in the adoption proceedings had vested rights in their marriages, such that the stay imposed by the United States Supreme Court could not affect their rights to benefits from the marriage, has been squarely presented to the Utah Supreme Court. (See, e.g., Mem. of P. & A. in Supp. of Pet. for Extraordinary Relief, Ex. 2, at 5, 810.) Because the jurisdiction of the Utah Supreme Court has been invoked, judicial economy now favors certification of the single question framed above. Similarly, considerations of comity and respect for state court expertise over state law, in the reformulated questions presented by the

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Defendants, now weigh in favor of certification. E.g., Lehman Bros. v. Schein, 416 U.S. 386, 391 (1974). 4 Though the Court could decide the issue itself, doing so under the new circumstances now runs the risk of increasing the chance of conflicting rulings, an especially problematic risk because at least one of the petitions before the Utah Supreme Court involves two of the Plaintiffs in this case. Relief under Rule 19 of the Utah Rules of Civil Procedure is discretionary, even if a lower court committed an abuse of discretion. State v. Barrett, 2005 UT 88, 2426, 127 P.3d 682. However, if the Utah Supreme Court refuses to exercise its discretion to hear the writ, and this Court does not certify the question to the Utah Supreme Court, an even larger risk of conflict exists. The conflicting district court orders regarding the adoptions would remain in place, and this Court would make a separate, independent determination of the federal constitutional rights at issue. Requesting an answer to the certified question framed above to the Utah Supreme Court would be the most efficient mechanism to ensure that one, and only one, court would make a consistent rule for all those possibly affected. CONCLUSION Plaintiffs and other same-sex couples, continue to litigate the discrete adoption issue in Utah state courts, arguing that vested rights in their marriage licenses allowed adoptions to move forward, notwithstanding the pendency of this lawsuit. Utah state courts have taken action on the adoption petitions and have demanded state action to comply with orders in furtherance of

The same considerations that warrant application of the Colorado River doctrine, to abstain or stay federal court litigation when there is a parallel state action, see Colo. River Water Conserv. Dist. v. United States, 424 U.S. 800 (1976), apply in this case. See also Fox v. Maulding, 16 F.3d 1079, 108283 (10th Cir. 1994) (describing the Colorado River doctrine and its application in exceptional cases). 6

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those adoptions. As a result, the state agency whose compliance has been ordered has sought review with the Utah Supreme Court, and has raised the issue of whether the same-sex couples who were married and whose marriages were solemnized between December 20, 2013 and January 6, 2014 have vested rights in those marriages. While this Court could have determined the state law issues enmeshed with the federal Due Process challenges brought by Plaintiffs in this case, particularly in light of the questions framed by Plaintiffs, circumstances have now changed which make certification more judicially economical and desirable due to the need for a need for a uniform answer on Utah law. In the interest of comity and judicial efficiency, and to ensure consistency for all of the same-sex couples in Utah whose partners seek to the other partners children, Utah requests that this Court certify the question above, solely on the issue of vested rights, and should stay the case pending the Utah Supreme Courts determination of the certified question.5 DATED this 16th day of April, 2014. OFFICE OF THE UTAH ATTORNEY GENERAL

/s/ Kyle J. Kaiser JONI J. JONES KYLE J. KAISER Assistant Utah Attorneys General PARKER DOUGLAS General Counsel and Chief of Staff Attorneys for Defendants

Counsel for Defendants have sought the stipulation of Counsel for Plaintiffs in the request for certification. Counsel for Plaintiffs indicated that they do not stipulate to the motion. 7