Case 2:14-cv-00055-DAK Document 35 Filed 04/17/14 Page 1 of 5

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 2 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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(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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In light of Defendants’ claims of ever-expanding power to flout the litigation process, it is imperative that this Court make clear that – regardless of how the Utah Supreme Court ultimately rules with respect to the state-law claims – stripping recognition from the legal marriages of Plaintiffs and other same-sex couples violates their vested rights and liberty interests under the federal Constitution. Like any other married couple, Plaintiffs and other legally married same-sex couples are now protected by the fundamental right to marry, and Defendants’ ongoing efforts to destroy those marriages in violation of the Fourteenth Amendment should be repudiated in clear and unequivocal terms. In addition to ruling on Plaintiffs’ federal constitutional claims, the Court may, of course, also exercise its discretion to certify state-law questions to the Utah Supreme Court to give that court a chance to definitively resolve those questions if it so chooses. But the Court should make clear that such certification does not detract from its preliminary injunction on the federal constitutional claims or relieve Utah and state officials, bound by the injunction in their official capacities, from their federal constitutional obligation to recognize the marriages of Plaintiffs and other same-sex couples, including any valid court orders concerning stepparent adoptions based on those marriages.

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DATED this 17th day of April 2014. STRINDBERG & SCHOLNICK, LLC

/s/ Lauren I. Scholnick Erik Strindberg Lauren I. Scholnick Kathryn Harstad

Attorneys for Plaintiffs

CERTIFICATE OF SERVICE
I hereby certify that the foregoing pleading was served upon the following via the CM/ECF electronic delivery system. JONI J. JONES KYLE K. KAISER Office of the Utah Attorney General 160 East 300 South Salt Lake City, UT 84114 jonijones@utah.gov kkaiser@utah.gov /s/ Lauren I. Scholnick

B:\CurrentClientsUT\Marriage Equality\Pleadings\Plaintiffs Response to Certification Motion Final.docx

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