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Case 2:13-cv-00217-RJS Document 25 Filed 09/05/13 Page 1 of 52

1 2 3 4 5 6 7 8 9 10 PLAINTIFFS, 11 VS. 12 13 14 15 16 DEFENDANTS. 17 GARY R. HERBERT, IN HIS OFFICIAL CAPACITY AS GOVERNOR OF UTAH; JOHN SWALLOW, IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL OF UTAH; AND SHERRIE SWENSEN, IN HER OFFICIAL CAPACITY AS CLERK OF SALT LAKE COUNTY,

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH CENTRAL DIVISION ______________________________________________________________ DEREK KITCHEN, INDIVIDUALLY; MOUDI SBEITY, INDIVIDUALLY; KAREN ARCHER, INDIVIDUALLY; KATE CALL, INDIVIDUALLY; LAURIE WOOD, INDIVIDUALLY; AND KODY PARTRIDGE, INDIVIDUALLY,

CASE NO. 2:13-CV-217

SALT LAKE CITY, UTAH AUGUST 27, 2013

______________________________________________________________ 18 19 20 21 22 23 24 25 STATUS CONFERENCE BEFORE THE HONORABLE ROBERT J. SHELBY UNITED STATES DISTRICT COURT JUDGE

1 2 3 4 APPEARANCES: 5 6 7 8 9 10 11 FOR DEFENDANTS HERBERT AND SWALLOW: 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COURT REPORTER: RAYMOND P. FENLON 350 SOUTH MAIN STREET, #242 SALT LAKE CITY, UTAH 84101 (801) 809-4634 SALT LAKE COUNTY DISTRICT ATTORNEY BY: RALPH E. CHAMNESS, ESQ. DARCY M. GODDARD, ESQ. 2001 SOUTH STATE STREET, ROOM S3700 SALT LAKE CITY, UTAH 84190 (385) 468-7700 OFFICE OF THE UTAH ATTORNEY GENERAL BY: PHILIP S. LOTT, ESQ. STANFORD E. PURSER, ESQ. 160 EAST 300 SOUTH, SIXTH FLOOR P.O. BOX 140856 SALT LAKE CITY, UTAH 84114 (801) 366-0100 FOR THE PLAINTIFFS: MAGLEBY & GREENWOOD BY: JAMES E. MAGLEBY, ESQ. JENNIFER F. PARRISH, ESQ. PEGGY A. TOMSIC, ESQ. 170 SOUTH MAIN STREET, SUITE 850 SALT LAKE CITY, UTAH 84101 (801) 359-9000

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT:

P-R-O-C-E-E-D-I-N-G-S (1:51 P.M.) GOOD AFTERNOON. WE'LL GO ON THE RECORD

IN CASE NUMBER 2:13-CV-217. GARY HERBERT, ET AL.

THIS IS KITCHEN, ET AL. VERSUS

MY APOLOGIES TO ALL OF YOU TO KEEP YOU

WAITING FOR A FEW MOMENTS. COUNSEL, I HAVE YOUR NAMES, BUT WHY DON'T YOU TAKE A MOMENT AND ENTER YOUR APPEARANCES, IF YOU WOULD, PLEASE. MR. MAGLEBY: YOUR HONOR, JIM MAGLEBY, PEGGY TOMSIC

AND JENNIFER PARRISH ON BEHALF OF THE PLAINTIFFS. THE COURT: MR. LOTT: THE STATE DEFENDANTS. THE COURT: MS. GODDARD: THANK YOU. AND DARCY GODDARD, SALT LAKE COUNTY, THANK YOU. PHIL LOTT AND STAN PURSER ON BEHALF OF

ON BEHALF OF SALT LAKE COUNTY, SHERRIE SWENSEN. MR. CHAMNESS: COUNTY (INAUDIBLE). THE COURT: ON BEHALF OF SALT LAKE COUNTY -SHERRIE SWENSEN, THE CLERK. THANK YOU VERY MUCH. ALL RIGHT. AND RALPH CHAMNESS ON BEHALF OF SALT LAKE

MR. CHAMNESS: THE COURT: WELCOME ALL OF YOU.

RIGHT.

THANK YOU.

THANKS FOR BEING HERE.

THANK YOU ALSO FOR YOUR SUBMISSIONS.

IT WAS ACTUALLY QUITE

HELPFUL TO GET A SENSE FOR WHERE YOU ALL ARE AND WHERE YOU THINK WE'RE HEADED BEFORE WE MET TODAY. THOUGH I WILL ADMIT

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THAT I WAS AT LEAST A LITTLE INTRIGUED, IF NOT PUZZLED, THAT YOUR RESPECTIVE POSITIONS SEEMED TO BE OPPOSITE OF WHAT I INITIALLY EXPECTED I MIGHT HEAR FROM ALL OF YOU. WE HAVE UNDERTAKEN A GOOD BIT OF RESEARCH SINCE WE RECEIVED YOUR SUBMISSIONS. AND AS YOU ALL KNOW, AT LEAST AS

WELL AS WE DO AND PROBABLY BETTER, WE'RE NOT ALONE ON THIS TRAIL. THERE ARE A NUMBER OF COURTS IN DIFFERENT

JURISDICTIONS THROUGHOUT THE COUNTRY AT DIFFERENT STAGES ALL RIDING HERD IN THE SAME DIRECTION TRYING TO RESOLVE I THINK THIS QUESTION AND QUESTIONS PRESENTED BY THIS SUIT. WE'VE SEEN IN OUR VIEW WHAT SEEMS TO BE A FAIRLY UNIFORM PRACTICE BY COURTS IN TERMS OF MANAGING THESE PROCEEDINGS. THE STATE POINTED US, OF COURSE, TO NEVADA AND HAWAII AS EXAMPLES THAT THE STATE URGES US TO FOLLOW. IN OTHER JURISDICTIONS AS WELL. WE FOUND EXAMPLES

AND IT WAS INTERESTING TO SEE

THE PRACTICE SEEMS TO BE IN MOST OF THESE CASES THAT THE COURTS, IN FACT AND THE PARTIES ARE URGING THIS IN MOST EVERY CASE THAT WE SAW, SOME INITIAL MOTION PRACTICE TO RESOLVE AND NARROW THE SCOPE OF THE LEGAL ISSUES THAT REMAIN TO BE RESOLVED AND TO DO THAT AT THE -- NEAR THE OUTSET OF THE LITIGATION IN LIEU OF FACT DISCOVERY AT THE OUTSET. IN FACT

THAT SEEMS TO BE THE CLEAR TREND AND ESPECIALLY AFTER THE WINDSOR DECISION FROM THE SUPREME COURT. AND AS I REVIEWED THE PLAINTIFFS' SUBMISSION IN ADVANCE OF THIS HEARING AND BEGAN TO THINK ABOUT WHAT THEY WERE

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ASKING -- WHAT THE PLAINTIFFS WERE SEEKING BY WAY OF DISCOVERY, I BECAME MORE AND MORE CONVINCED IN ADVANCE OF OUR HEARING TODAY OF A PATH THAT I THINK MAKES SENSE AND WHAT I'LL PROPOSE, AND THEN OF COURSE WE'LL HEAR FROM ALL OF YOU. BUT I'LL JUST NOTE THAT THE DISCOVERY THAT THE PLAINTIFFS IDENTIFY IN THEIR SUBMISSION I THINK FOCUSES LARGELY ON A NUMBER OF LEGAL ISSUES, INCLUDING FOR EXAMPLE THE LEVEL OF SCRUTINY THAT WILL APPLY TO OUR REVIEW, WHETHER ANY OF THESE PLAINTIFFS ARE MEMBERS OF A PROTECTED CLASS AND THE LIKE. THOSE ARE LEGAL QUESTIONS THAT WILL BE ADDRESSED AND ARGUED OF COURSE UNDER EXISTING PRECEDENT FROM THE TENTH CIRCUIT AND THE SUPREME COURT. TO THE EXTENT THAT THERE ARE REMAINING FACTUAL QUESTIONS, AND THERE ARE A NUMBER OF ISSUES WHERE THERE ARE FACTUAL QUESTIONS, INCLUDING WHETHER MARRIAGE HAS HAD A STABLE DEFINITION ACROSS GENERATIONS, WHETHER ONLY OPPOSITE SEX MARRIAGE CAN FURTHER INTERESTS IN PROCREATION AND THE LIKE, THOSE ARE FACTS THAT ARE IN MY VIEW NOT NECESSARILY IN THE POSSESSION OF THE STATE OF UTAH OR THE DEFENDANTS. I THINK

THAT IT SEEMS TO ME AT LEAST AT THE OUTSET THAT THE PLAINTIFFS ARE LIKELY TO MAKE FEW, IF ANY, OF THEIR ARGUMENTS BASED ON DEPOSITIONS OR INTERROGATORIES OR DISCOVERY RESPONSES THAT THEY WOULD RECEIVE FROM THE DEFENDANTS. IT SEEMS FAR MORE LIKELY TO ME THAT THIS COURSE WOULD FOLLOW -- THIS CASE WOULD FOLLOW THE TRAJECTORY WE'VE SEEN IN

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SO MANY OTHERS WHERE THE PLAINTIFFS WOULD BE CITING TO EVIDENCE PROVIDED BY SOCIOLOGISTS OR PSYCHOLOGISTS OR OTHER EXPERTS, THINGS THAT I THINK ARE EXPERTS AND SUBJECTS THAT ARE AVAILABLE TO THE PLAINTIFFS WHOLLY INDEPENDENT OF TRADITIONAL DISCOVERY IN LITIGATION. AND I DON'T -- I DON'T SEE A NEED,

AT LEAST AT THE OUTSET, FOR DISCOVERY FROM THE DEFENDANTS ON THOSE SUBJECTS. MY VIEW IS THAT WE SHOULD CONSIDER A SCHEDULE FOR HEARING ON CROSS-MOTIONS FOR SUMMARY JUDGMENT OR JUST -- JUST THE STATE'S MOTION FOR SUMMARY JUDGMENT, IF THE STATE INTENDS TO FILE AN EARLY MOTION. AND I DON'T SEE THAT THE PLAINTIFFS

WOULD SUFFER ANY PREJUDICE FROM RESOLVING THOSE MOTIONS EARLY BECAUSE THOSE MOTIONS I THINK WILL DEFINE THE AREAS AND ISSUES OF DISPUTE BETWEEN THE PARTIES AND WILL ASSIST US IN IDENTIFYING WHAT FACTUAL AREAS, IF ANY, EXIST WHERE THERE IS IN FACT A NEED FOR DISCOVERY FROM THE DEFENDANTS. AND THE

RESOLUTION OF THOSE MOTIONS WILL I THINK NARROW -- IT WILL EITHER RESOLVE THE CASE OR NARROW THE ISSUES ON WHICH WE NEED TO CONDUCT FACT DISCOVERY. SO ON THE WHOLE, ON BALANCE, I THINK I'M QUITE INCLINED TO FOLLOW THE OTHER JURISDICTIONS THAT ARE PROCEEDING ALONG THIS PATH IN THIS CASE AND THEN GO FROM THERE. LET ME SAY

BEFORE I HEAR FROM THE PARTIES THAT IN NO WAY MEANS TO SUGGEST THAT I'VE REACHED ANY SORT OF CONCLUSION ABOUT THE OUTCOME OF THE ISSUES ON THE MERITS OR WHETHER THERE WILL BE A NEED FOR

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FACT DISCOVERY IN THIS CASE OR NOT FROM THE DEFENDANTS. AND LET ME SAY THIS. THIS CASE WAS FILED IN MARCH, AND

I'M CERTAIN FROM THE PLAINTIFFS' PERSPECTIVE IT'S AN ISSUE THAT THEY'VE BEEN WAITING TO HAVE THEIR DAY IN COURT ON FOR YEARS. AND SO IF WE DO PROCEED IN THE MANNER THAT I'VE JUST

SUGGESTED, WE'LL DO SO EXPEDITIOUSLY SO THAT WE CAN GET THESE ISSUES RESOLVED, GET THE MOTIONS RESOLVED. AND IN THE EVENT

WE ARE GOING TO HAVE DISCOVERY AND MOVE FORWARD TOWARDS A TRIAL, WE CAN DO THAT ON A TIMELY BASIS. AND WHEN I SAY EXPEDITIOUSLY, I DON'T EXACTLY MEAN WHAT SOME OF THE OTHER COURTS HAVE DONE. I THINK IN THE HAWAII

COURT THE JUDGE THERE IMPOSED A TWO MONTH PERIOD FOR BRIEFING SUMMARY JUDGMENT AND GETTING IN AND HAVING A HEARING. I DON'T

HAVE ANYTHING QUITE THAT CRAZY IN MIND, BUT I THINK WE SHOULD MOVE BRISKLY. SO THOSE ARE MY THOUGHTS. MR. MAGLEBY, THOSE THOUGHTS

LARGELY RUN COUNTER TO WHAT YOU'RE PROPOSING, SO LET ME INVITE YOU TO ADDRESS THOSE IDEAS FIRST. MR. MAGLEBY: WHERE I WANT TO START. THANK YOU, YOUR HONOR. SO LET ME SEE

I DON'T -- WE DON'T HAVE AN ISSUE WITH IF THE STATE

THE STATE FILING A MOTION FOR SUMMARY JUDGMENT.

WANTS TO FILE A MOTION FOR SUMMARY JUDGMENT, THEY CAN DO THAT. IF THE STATE DETERMINES THAT IT WANTS TO FOREGO DISCOVERY VIS-A-VIS OUR CLIENTS, IT CAN DO THAT. IF THE STATE IS SO

CONFIDENT THAT THE RATIONAL BASIS STANDARD OF REVIEW IS GOING

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TO APPLY FOR EXAMPLE ON THE EQUAL PROTECTION CLAIM AND IT DOES NOT WANT TO SET FORTH ANY EXPERT TESTIMONY OR CONDUCT DISCOVERY, IT CAN DO THAT. HOWEVER, AS WE LOOK AT THESE ISSUES, WE ARE CERTAIN THAT THERE ARE SOME ISSUES WHICH ARE GOING TO NEED TO BE RESOLVED AS A MATTER OF FACT, AND THEY'RE GOING TO BE MATTERS FOR THE COURT TO RESOLVE. AND WHAT WE DON'T WANT TO DO, AND THIS GOES

BACK TO WHAT YOU SAID ABOUT DOING THIS EXPEDITIOUSLY, DOING THIS BRISKLY, IS HAVE A TWO TO THREE MONTH DELAY WHILE WE BRIEF MOTIONS AND THE STATE AND THE COUNTY -- AND I THINK THE COUNTY IS PROBABLY MORE ON THE SIDELINES SAYING, WELL, LOOK, YOU DON'T GET TO DO ANY DISCOVERY. IN RESPONSE TO THOSE MOTIONS, YOUR HONOR, THERE IS A GOOD CHANCE, DEPENDING ON WHAT THE STATE SAYS, THAT WE MAY AGREE THAT SOME OF THE ISSUES -- FOR EXAMPLE, IF THEY CONCEDE CERTAIN THINGS, AS THEY HINT AT IN THEIR PAPERS BUT THEY DON'T ACTUALLY COME RIGHT OUT AND SAY THAT THEY'RE GOING TO STIPULATE OR AGREE TO CERTAIN OF THESE ISSUES, IF THEY STIPULATE AND AGREE TO CERTAIN ISSUES, THEN OF COURSE WE COULD FOREGO DISCOVERY ON THIS. HAVE THIS DELAY. AND SO WHAT WE'RE SAYING IS NOT, YOUR HONOR, THAT WE SHOULDN'T DO BRIEFS WHENEVER THE STATE WANTS TO FILE THEM, AND THEN WE'LL ASSESS WHETHER OR NOT, GIVEN WHAT THEY MAY OR MAY NOT HAVE CONCEDED, FILE CROSS-MOTIONS. WHAT WE'RE SAYING IS BUT WHAT WE DON'T WANT TO DO IS

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THERE IS NO REASON TO DELAY DISCOVERY, AND WHAT WE OUGHT TO DO IS TO PUT IN PLACE A SCHEDULE THAT ACCOMMODATES THE OUTCOME IF THE STATE IS WRONG. BECAUSE, YOUR HONOR, I RECOGNIZE THAT AND

THEY'VE GOT THEIR POSITIONS, BUT WE'VE GOT OURS AS WELL. WE HAVE CLIENTS, HUMAN BEINGS. RIGHTS. THESE ARE VERY IMPORTANT

AS YOU HAVE INDICATED, THEY'VE BEEN WAITING FOR A ONE OF OUR CLIENTS HAS

LONG TIME TO HAVE THEIR DAY IN COURT.

SOME HEALTH ISSUES WHICH DIRECTLY RELATE TO THE ISSUES IN THIS CASE. AND SO WHAT WE WOULD LIKE THE COURT TO DO IS SET A SCHEDULE, AND THE STATE CAN FILE ITS BRIEF WHEN IT WANTS TO FILE ITS BRIEF. I WOULD ACTUALLY PREFER IF THE STATE WOULD --

EXCUSE ME -- THE COURT WOULD MAKE THEM DO IT BY SAY OCTOBER 1ST, BUT I WASN'T GOING TO ASK FOR THAT TODAY. I WAS JUST

GOING TO SAY THEY CAN FILE THEIR BRIEF WHEN THEY FILE THEIR BRIEF AND WE'RE ALLOWED TO DO DISCOVERY. LET ME GIVE YOU SOME EXAMPLES OF SOME OF THE THINGS THAT I THINK ARE NOT GOING TO BE A GIVEN IN THIS CASE, AND THEY COME RIGHT OUT OF THE STATE'S BRIEF. THE STATE REFERS TO

QUOTE EXISTING AND READILY AVAILABLE HISTORICAL FACTS AS ONE OF THE THINGS THAT THE COURT WILL LOOK AT. MY QUESTION FOR THE STATE IS WILL YOU ACCEPT MY VIEW AND MY CLIENTS' VIEW OF HISTORICAL FACTS OR ARE YOU GOING TO DISAGREE WITH US? THE STATE SAYS THERE'S A SMALL NUMBER OF

MATERIAL ADJUDICATED FACTS WHICH ARE PROBABLY NOT DISPUTED.

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SO THEY'VE COME IN HERE AND ASKED THE COURT TO DENY MY CLIENTS THE RIGHT TO MOVE THEIR CASE FORWARD BY HINTING THAT THEY MIGHT STIPULATE TO CERTAIN FACTS BUT NOT TELLING US WHAT THEY ARE. THEY'VE SAID THAT A LEGISLATIVE FACT IS A QUESTION OF SOCIAL FACTORS AND HAPPENINGS. AGAIN, WILL THE STATE AGREE TO

JIM MAGLEBY'S VIEW OF SOCIAL FACTORS AND HAPPENINGS OR THE VIEW OF DEREK KITCHEN AND MY OTHER CLIENTS? I SUSPECT THEY

WILL NOT, AND I OUGHT NOT TO HAVE TO WAIT 90 DAYS TO FIGURE THAT OUT. LET ME GIVE ANOTHER EXAMPLE. LET'S TALK ABOUT DUE PERHAPS WE CAN

PROCESS AND THE STRICT SCRUTINY ANALYSIS.

RESOLVE ON MOTIONS WHETHER OR NOT SAME SEX MARRIAGE IS A FUNDAMENTAL RIGHT. WHAT I DO KNOW IS THAT MARRIAGE IS A

FUNDAMENTAL RIGHT AND THE UNITED STATES SUPREME COURT HAS SAID IT. I THINK THAT WILL BE EASILY RESOLVED IN OUR FAVOR. BUT

THEN THE STATE HAS TO COME FORWARD WITH A COMPELLING STATE INTEREST. WHAT IS THAT STATE INTEREST? I THINK I'M ALLOWED

TO SERVE AN INTERROGATORY THAT SAYS TELL ME WHAT YOUR STATE INTEREST IS SO THAT I KNOW WHAT IT IS FROM THE BEGINNING OF THE CASE, AND IF AND WHEN I DEFEAT THE SUMMARY JUDGMENT MOTION I KNOW WHETHER OR NOT I NEED TO DO DISCOVERY INTO THAT. I'LL GIVE YOU AN EXAMPLE. ONE OF THE THINGS WE ALLEGED

IN OUR COMPLAINT IS THE VOTER PAMPHLET, THE BROCHURE THAT WAS PASSED OUT WHEN AMENDMENT 3 WAS PROPOSED, HAD A LIST OF

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THINGS, AND ALBEIT IT WAS A BRIEF LIST, AND I WOULD SUGGEST TO THE COURT A WHOLLY INADEQUATE LIST BUT A LIST NONETHELESS OF THE REASONS WHY THE PROPONENTS OF THE AMENDMENT THOUGHT THAT IT WAS A GOOD IDEA. THAT'S THE CLOSEST WE'VE COME TO SEEING AND YOU KNOW WHAT THEY SAID

THE STATE ARTICULATE AN INTEREST.

IN RESPONSE TO OUR COMPLAINT, THIS IS PARAGRAPH 29, THEY SAID WE DISAGREE. THERE'S OTHER STUFF OUT THERE THAT MIGHT BE OUR

STATE COMPELLING STATE INTEREST. THE OTHER THING I DON'T WANT TO HAVE HAPPEN IS THEY FILE THEY ADVANCE WHAT THEY SAY IS THE THEY SUDDENLY COME UP WITH

A SUMMARY JUDGMENT MOTION. STATE INTEREST.

I DEFEAT THEM.

SEVEN DIFFERENT NEW ONES.

I SHOULD BE ABLE TO SERVE AN

INTERROGATORY THIS WEEK AND HAVE THEM ANSWER THAT SO THAT I CAN WORK ON IT WHILE THEY WORK ON THEIR SUMMARY JUDGMENT MOTION. ANOTHER SET OF EXAMPLES UNDER THE EQUAL PROTECTION HEIGHTENED SCRUTINY ANALYSIS, THERE'S FOUR FACTORS THE COURT IS GOING TO ANALYZE: WHETHER THE GROUP THAT MY CLIENTS ARE A

PART OF HAVE SUFFERED A SIGNIFICANT HISTORY OF DISCRIMINATION; WHETHER THE BASIS FOR THE DISCRIMINATION BEARS NO RELATION TO THEIR ABILITY TO PERFORM OR CONTRIBUTE TO SOCIETY; WHETHER THE BASIS FOR DISCRIMINATION IS BASED ON AN IMMUTABLE OR DISTINGUISHING CHARACTERISTIC. NOW, I WILL SAY THIS. THIS WILL GO A LOT FASTER. IF THE STATE WILL CONCEDE THOSE, BUT, YOU KNOW, MY QUESTION TO

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MR. LOTT OR MR. PURSER WHEN THEY STAND UP HERE IS TELL ME ARE YOU GOING TO CONCEDE THOSE THINGS? BECAUSE IF YOU'RE NOT

GOING TO CONCEDE THOSE THINGS, THEN THERE'S NO REASON THAT I SHOULDN'T BE ALLOWED TO SERVE DISCOVERY TO FIND OUT WHAT THEY ARE SO THAT I CAN GO DO WHAT YOUR HONOR HAS CORRECTLY FORECAST AS WHAT IS LIKELY, WHICH IS THERE'S GOING TO BE SOME EXPERT TESTIMONY ON THIS. AND I WOULD LIKE TO KNOW WHICH EXPERTS I

HAVE TO GET AND WHICH ONES I DON'T HAVE TO GET, WHETHER OR NOT THE STATE IS GOING TO GET ITS OWN EXPERTS. THE COURT: SO WHICH WAY DOES THAT CUT, MR. MAGLEBY? UNLIKE A TITLE VII CASE FOR

THIS IS WHAT I'VE THOUGHT ABOUT.

EXAMPLE THAT WE MIGHT SEE OR AN ERISA CASE OR A 1983 ACTION WHERE WE HAVE DEFINED LEGAL PARAMETERS FOR OUR ANALYSIS THAT ARE ESTABLISHED AND LONG RECOGNIZED, IT SEEMS TO ME WE HAVE SOME QUESTIONS TO ANSWER IN THIS CASE BEFORE WE CAN BEGIN TO ADDRESS WHAT DISCOVERY IS GOING TO BE RELEVANT. AND WHAT I'M

FEARFUL OF IS SENDING THE PARTIES OUT TO SEA TO GO CONDUCT DISCOVERY AND BE COLUMBUS WHEN WE CAN DO SOMETHING FAR MORE NARROW AND SURGICAL IF NECESSARY TO ADDRESS THOSE ISSUES THAT REALLY ARE IN DISPUTE IN THIS CASE AND ONCE WE'VE DEFINED THE RULES. AND SOME OF THOSE RULES ARE NOT DEFINED ANYWHERE YET.

SOME OF THEM ARE AND SOME OF THEM MAY BE FOR THE FIRST TIME BY US OR OUR SISTER COURTS. DON'T WE WANT TO DEFINE THE RULES

THAT WE'RE GOING TO PLAY THIS GAME BY BEFORE WE START SENDING EVERYBODY OUT TO START DISCOVERY IN THE WORLD?

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MR. MAGLEBY:

I THINK WE ABSOLUTELY DO WANT TO

DEFINE THOSE RULES, YOUR HONOR, AND I THINK WE'RE ACTUALLY TALKING ABOUT THE SAME THING. THE COURT: MAYBE WE ARE, BUT WON'T THE

GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT TAKE US HALFWAY DOWN THAT PATH, AND THEN WON'T YOUR RESPONSE TO THAT MOTION GET US ABOUT THE REST OF THE WAY DOWN THAT PATH IN -MR. MAGLEBY: THE COURT: NO. -- DEFINING WHAT ISSUES ARE OUT THERE IN

DISPUTE, AND ON WHICH ISSUES DO WE NEED FACTUAL DISCOVERY, AND FOR WHICH ISSUES ARE IN THE POSSESSION OF THE STATE? MR. MAGLEBY: THE COURT: MR. MAGLEBY: SAME PAGE HERE. YES AND NO, YOUR HONOR. OKAY. YOUR HONOR, AND I THINK WE'RE ON THE

BELIEVE ME, I DON'T WANT TO SPEND EXTRA TIME

OR MONEY IN THIS CASE THAT I DON'T HAVE TO SPEND, AND MY CLIENTS DON'T WANT TO SPEND THE HEARTACHE INVESTMENT THAT THEY DON'T HAVE TO SPEND. I THINK IT'S IRONIC THAT ONE OF THE

REASONS THE STATE SAID WE OUGHT TO DO THIS SCHEDULE IS BECAUSE THEY DON'T WANT TO WASTE TIME AND MONEY. POUND GORILLA. I'M FIGHTING THE 800

THEY'VE GOT ALL THE RESOURCES IN THE WORLD. SO LET ME ASSURE YOU MY GOAL IS BUT MY

MINE ARE NOT SO UNLIMITED.

NOT TO MAKE THIS MORE COMPLICATED THAN IT NEEDS TO BE.

THOUGHT IS DOING WHAT WE PROPOSE WILL ACTUALLY GET US THERE QUICKER.

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SO LET ME EXPLAIN TO YOU WHY I THINK THAT WOULD BE THE WE WOULD SERVE A LIMITED SET OF DISCOVERY, POINTED

QUESTIONS TO THE ISSUES THAT WILL ALSO BE ADDRESSED BY THE SUMMARY JUDGMENT, BUT THEY WILL SAY FOR EXAMPLE TELL US ALL THE BASES FOR THE COMPELLING STATE INTEREST. THE COURT: MR. MAGLEBY: THE COURT: TODAY. WELL, DO THEY HAVE TO DO THAT? I THINK THEY DO. I'M UNCERTAIN ABOUT THAT AS WE SIT HERE

I THINK THIS IS ONE OF THE LEGAL QUESTIONS THAT WE WHAT LEVEL OF THAT IS GOING TO DO

NEED TO RESOLVE FOR EXAMPLE AT THE OUTSET. SCRUTINY ARE WE GOING TO APPLY IN THIS CASE?

BE A STRICTLY LEGAL QUESTION THAT WE'RE GOING TO RESOLVE. YOU AGREE? MR. MAGLEBY: MAYBE.

I THINK THE ANSWER IS MAYBE.

FOR EXAMPLE, A HEIGHTENED LEVEL OF SCRUTINY UNDER THE EQUAL PROTECTION ANALYSIS HAS FOUR SUBCOMPONENTS TO IT THAT I TALKED ABOUT A MINUTE AGO. I DON'T THINK THAT'S A LEGAL ANALYSIS,

UNLESS THE STATE IS WILLING TO CONCEDE THAT MY CLIENTS FALL INTO A GROUP THAT CALLS FOR HEIGHTENED SCRUTINY. NOW, IF THEY

WILL CONCEDE THAT, THEN WE CAN GO ON AND ARGUE ABOUT WHETHER THERE'S A COMPELLING GOVERNMENTAL INTEREST, ETCETERA. WHAT I'M SUGGESTING IS IF WE SERVE LIMITED DISCOVERY SAYING TELL US WHAT THINGS YOU CONCEDE AND WHAT THINGS YOU DON'T CONCEDE, AND TELL US THE BASES UPON WHICH YOU ARE GOING TO SAY THERE'S A COMPELLING GOVERNMENT INTEREST --

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ARGUMENTS.

THE COURT: MR. MAGLEBY: THE COURT:

CONTENTION INTERROGATORIES? YEAH, CONTENTION INTERROGATORIES. AND WHAT HAPPENS WHEN WE GET THE

RESPONSE BACK POINTING US TO THE ESTABLISHED CASE LAW THAT CONTENTION INTERROGATORIES ARE GREAT BUT A PARTY IS ENTITLED TO ALLOW THE LITIGATION TO RUN ITS COURSE A GOOD BIT BEFORE THEY HAVE TO COMMIT TO LEGAL POSITIONS? MR. MAGLEBY: THAT WOULD BE AN EFFECTIVE ARGUMENT.

IT'S ONE I'VE MADE IN CIVIL CASES, BUT THE STATE HAS COME BEFORE YOU, YOUR HONOR, AND SAID THEY DON'T NEED ANY OF THAT. THE COURT: MR. MAGLEBY: RIGHT. BECAUSE IT'S GOING TO BE LEGAL

AND IF THE RESPONSE IS HERE ARE THE FIVE CASES AND

HERE ARE THE FIVE BASES, THEN I KNOW WHAT THEY ARE AND THEY'RE NOT GOING TO CHANGE. BUT WHAT I DON'T WANT TO HAVE HAPPEN IS I COME BACK. I DEFEAT IT.

THEY FILE THEIR SUMMARY JUDGMENT.

AND THEN THEY SUDDENLY SAY HERE ARE MORE ARGUMENTS. SO IF THE COURT WERE INCLINED FOR EXAMPLE TO RESTRICT OUR DISCOVERY, AND I IN WAY THINK THE COURT SHOULD DO THAT, THEN THEIR SUMMARY JUDGMENT HAS GOT TO HAVE EVERYTHING IN IT SO THAT I'M NOT SANDBAGGED AND I'M NOT SUFFERING FROM DELAY WHEN WE COME BACK AND I WIN THE SUMMARY JUDGMENT AND THEN THEY GO, AH, YOU KNOW WHAT, I JUST THOUGHT OF SOMETHING NEW. MY NEW SUMMARY JUDGMENT. DISCOVERY. HERE IS

AND YOU STILL DON'T GET TO DO

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YOUR HONOR, IF I WAS IN ANY OTHER CASE, ANY OTHER CIVIL CASE, AND THE OTHER SIDE CAME IN AND SAID I WANT TO STAY DISCOVERY BASED ON A SUMMARY JUDGMENT MOTION, THE FIRST THING THEY'D HAVE TO DO IS FILE IT. THEY HAVEN'T EVEN FILED THAT THEY ARE TWO MOTIONS

MOTION OR A MOTION TO STAY DISCOVERY.

BEHIND WHAT THEY WOULD HAVE TO DO IN ANOTHER CASE, AND I DON'T THINK THE STATE OUGHT TO GET -THE COURT: IS FOR THIS REASON. WELL, I MEAN THE REASON WE'RE HERE TODAY WE'RE GOING TO TRY TO CUT THROUGH SOME OF

THE RED TAPE THAT WE OFTEN HAVE IN THESE CASES, ESPECIALLY IN THIS COURT WHERE PEOPLE ARE FILING MOTIONS, AND THEN THEY'RE FULLY BRIEFED, AND THEN WE SET A HEARING DATE OUT, AND WE -WE'RE GOING TO TRY TO CHART A COURSE TODAY SO WE CAN DO THIS, AS I SAID, EXPEDITIOUSLY. MR. MAGLEBY: AND WE WELCOME THAT, YOUR HONOR. WHAT

I'M SUGGESTING IS THE MINOR ADDITIONAL BURDEN, AND I THINK THAT'S A GENEROUS WORD, FOR THE STATE TO PUT ON DISCOVERY, BECAUSE IT'S REALLY A RIGHT THAT WE HAVE, BUT WHATEVER BURDEN THAT IS OF THEM HAVING TO TELL US WHAT THEY'RE GOING TO CONTEST AND WHAT THEY'RE GOING TO STIPULATE TO, AND TELL US WHAT ARGUMENTS THEY'RE GOING TO ADVANCE FOR EXAMPLE IN THE COMPELLING STATE INTERESTS ON THE FOUR ELEMENTS FOR HEIGHTENED SCRUTINY, IT'S GOING TO BE TIME WELL SERVED. THE COURT: PRELIMINARY QUESTIONS. I THINK YOU KEEP JUMPING PAST THE LET ME TRY TO GET MY ARMS AROUND WHAT

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YOU'RE SAYING SO I MAKE SURE I'M NOT JUST DISCOUNTING SOMETHING THAT YOU'RE SAYING. HEIGHTENED SCRUTINY YET. MIGHT NOT. BUT I'M NOT -- I'M NOT TO

THAT MAY APPLY IN THIS CASE AND IT

BUT I'D LIKE TO KNOW THE ANSWER TO THAT QUESTION

BEFORE WE START SENDING DISCOVERY AROUND IDENTIFYING ALL THE FACTS THAT -- YOU KNOW, CONTENTION INTERROGATORY, IDENTIFY ALL THE FACTS IN YOUR POSSESSION THAT YOU THINK PROVE THIS POINT AND THIS POINT AND THIS POINT. DON'T I NEED TO KNOW THAT WE DO

THAT'S A RELEVANT INQUIRY BEFORE -- I DON'T NEED TO. THIS OFTENTIMES IN CIVIL LITIGATION. MR. MAGLEBY: THE COURT: SURE.

BUT THEN IT JUST SEEMS TO ME WE'RE

ALLOWING OURSELVES TO GET ON A CIRCUITOUS PATH THAT WE SEE IN SO MANY CIVIL CASES HERE IN THIS COURT WHERE WE'RE AT TRIAL THREE YEARS FROM NOW. MR. MAGLEBY: OH, WE'RE NOT GOING TO -- NO. WE DO

NOT WANT A TRIAL IN THREE YEARS. ACTUALLY.

WE WANT A TRIAL IN MAY

WE PUSHED THE DATE OUT BECAUSE WE THOUGHT OUR

WORTHY OPPONENTS WOULD WANT MORE TIME. BUT LET ME GIVE YOU ANOTHER EXAMPLE, YOUR HONOR. FILE THEIR SUMMARY JUDGMENT MOTION. THEY

THEY HAVEN'T TOLD US IN

ADVANCE WHAT ISSUES THEY'RE GOING TO CONTEST AND WHAT ISSUES THEY'RE GOING TO STIPULATE TO. THAT MEANS I HAVE TO WAIT. IF

I'M GOING TO OPPOSE THAT MOTION WITH EXPERT TESTIMONY, AS I FULLY EXPECT TO DO, I HAVE TO WAIT UNTIL I GET THEIR MOTION.

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THEN I HAVE TO COME DOWN AND SAY TO THE COURT I NEED ACTUALLY ANOTHER 60 DAYS. I'VE GOT TO GO FIND EXPERTS. THEY'RE

LOCATED ACROSS THE LAND.

THEIR TIME IS PRECIOUS TO THEM. I'VE GOT TO PREPARE MY RESPONSIVE

I'VE GOT TO MEET WITH THEM. AFFIDAVITS.

NOW, I WANT TO GET THIS THING DONE, SO MAYBE I GO GET MY EXPERTS TOMORROW AND I JUST CROSS MY FINGERS THAT I'M ABLE TO FORECAST WHAT THE STATE WILL AND WILL NOT CONCEDE. MAYBE I'VE

SPENT TENS OF THOUSANDS OF DOLLARS HIRING EXPERTS THAT I DON'T NEED. SO, YOU KNOW, IF WE'RE GOING TO CUT THROUGH IT, YOUR

HONOR, ONE OF THE THINGS WE NEED TO CUT THROUGH IS TAKE THE STATE UP ON THEIR VEILED OFFER IN THEIR PAPERS THAT, GEE, MAYBE WE WON'T CONTEST SOME OF THESE THINGS, SUCH AS THE PLAINTIFFS ARE IN COMMITTED RELATIONSHIPS. CONTEST SOME OF THESE THINGS. MAYBE WE WON'T

YOU KNOW, MAYBE THAT MY CLIENTS

AND THE GROUP THEY'RE IN HAS BEEN HISTORICALLY DISCRIMINATED AGAINST. I'D LIKE TO KNOW THAT, OTHERWISE I'M GOING TO GET AN

EXPERT THAT TALKS ABOUT WHETHER OR NOT THEY'VE BEEN HISTORICALLY DISCRIMINATED AGAINST. IT ACTUALLY WOULD SAVE ME A LOT OF TIME AND MONEY IF THE COURT WOULD MAKE THEM DO THAT. THE PROBLEM I SEE IS I DON'T

THINK THE COURT WANTS TO DRAFT SOMETHING THAT SAYS TELL ME WHAT THE ELEMENTS ARE THAT YOU'RE GOING TO CONCEDE AND NOT CONCEDE. AND I DON'T THINK WE WANT THE STATE TO DO IT. I

THINK WE WANT TO SERVE DISCOVERY TO DO IT AND WE'LL GET THEIR

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ANSWERS.

AND, YOUR HONOR, IF THEY DON'T PROVIDE EVIDENCE OR

GIVE SUFFICIENT ANSWERS, THEN, YOU KNOW, UNDER RULE 26, RULES 37, THEY'RE PRECLUDED FROM COMING BACK WITH ADDITIONAL INFORMATION AT TRIAL. WHAT I WANT TO AVOID IS EXACTLY WHAT YOU'RE TALKING ABOUT, WHICH IS GOING AROUND AND AROUND IN CIRCLES AS THE STATE CHANGES ITS POSITION. THEY WANT TO FILE A SUMMARY

JUDGMENT MOTION, THEY DON'T WANT TO DO DISCOVERY, THEY DON'T WANT TO GET THEIR OWN EXPERTS, GREAT, BUT THEY NEED TO COMMIT TO WHERE THEY ARE SO THAT WE CAN FIGURE OUT WHERE THEY ARE SO THAT WE CAN MOVE THIS CASE FORWARD. SAYING. THE COURT: CASE. OKAY. OF COURSE THEY'RE THE DEFENDANTS IN THE YOU FILED YOUR CLAIMS. MAYBE I'M ACTING ON AN SO THAT'S WHAT I'M

I MEAN YOU'RE THE PLAINTIFF.

WELL, LET'S HEAR FROM MR. LOTT.

INCORRECT ASSUMPTION THAT THE SUMMARY JUDGMENT MOTIONS WOULD HELP US NARROW THE LEGAL AND FACTUAL ISSUES BEFORE US, BUT LET'S SEE WHAT THE STATE SAYS. MR. LOTT, AM I MISTAKEN ABOUT ALL OF THAT? MR. LOTT: YOU'RE NOT. THANK YOU, YOUR HONOR. WE

VIEW THIS AS A CASE THAT WOULD BE MORE EXPEDITIOUSLY DECIDED THROUGH SUMMARY JUDGMENT. THE COURT: MR. LOTT: COURT. WHY IS THAT? WELL, BY BRINGING THE LEGAL ISSUES TO THE

AGAIN, WE DON'T VIEW THIS AS A FACTUAL ISSUE CASE.

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AND WE TRIED TO DISTINGUISH IN THE SUBMISSION THAT WE FILED YESTERDAY BETWEEN ADJUDICATIVE FACTS AND LEGISLATIVE FACTS. THE FACTS THAT THE STATE PROBABLY WOULD STIPULATE TO WOULD BE ADJUDICATIVE FACTS REGARDING THE PARTIES, THEIR SEXUAL ORIENTATION, THE FACT THAT THEY'RE COUPLES, THAT THEY -- THAT THEY WISH TO BE MARRIED. MARRIED IN IOWA. FACTS. THE DISPUTED FACTS ARE THE LEGISLATIVE FACTS, WHAT ARE TERMED LEGISLATIVE FACTS, HISTORY, PHILOSOPHICAL QUESTIONS. THE PARTIES ARE GOING TO HAVE DIFFERENT VIEWS ON THOSE TYPE OF ISSUES. AND DOING DISCOVERY, I DON'T REALLY SEE HOW THAT'S EVEN THAT ONE OF THE COUPLES HAS BEEN

WE DON'T SEE THOSE AS BEING HIGHLY DISPUTED

GOING TO PROVIDE ANY ASSISTANCE IN ADVANCING THE CASE. HAVING A HEARING WHERE WE HAVE A WITNESS TESTIFY ABOUT A

PHILOSOPHICAL QUESTION OR A SOCIAL ISSUE, THE COURT IS IN THE IN THE ROLE OF MAKING THOSE DECISIONS. THE PARTIES CAN

PRESENT THEIR OWN VIEW ON THOSE ISSUES, BUT THE COURT HAS TO DECIDE THOSE ISSUES. AND IT WOULD BE INAPPROPRIATE FOR A THAT'S THE COURT'S

WITNESS TO TELL THE JUDGE WHAT THE LAW IS.

ROLE TO DECIDE WHAT THE APPROPRIATE RULE OF LAW IS. AS FAR AS DISCOVERY -THE COURT: FOR US? MR. LOTT: THE COURT: EXCUSE ME? DOES THE WINDSOR DECISION, DOES IT JUST DOES WINDSOR JUST ANSWER THAT QUESTION

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TELL US THE ANSWER TO THESE QUESTIONS? MR. LOTT: THE COURT: I THINK -IS IT A PURELY LEGAL SET OF QUESTIONS

THAT ARE IN FRONT OF US IN THIS LAWSUIT? MR. LOTT: I BELIEVE IT'S PRIMARILY LEGAL ISSUES, THE OTHER THING THAT

AND IT MAY BE EXCLUSIVELY LEGAL ISSUES.

MAY OCCUR, IF THERE IS A FACTUAL ISSUE THAT COMES UP AFTER PLEADINGS ARE SUBMITTED, THE COURT CAN MAKE A DECISION THAT I NEED SOME ADDITIONAL WORK ON A FACTUAL ISSUE THAT'S SEPARATE AND APART FROM DECIDING THE LEGAL ISSUE. THROUGH THE PLEADINGS. ON THE DISCOVERY DESCRIPTION THAT MR. MAGLEBY HAS MADE, WHAT I FORESEE IS IF WE RECEIVE A SET OF INTERROGATORIES ASKING US TO SET FORTH THE COMPELLING STATE INTEREST, WE'RE GOING TO OBJECT TO THAT. WILL BE AN OBJECTION. ON IT. IT'S GOING TO BE AN ISSUE THAT THERE THAT CAN BE DONE

WE'RE GOING TO HAVE TO HAVE A HEARING AND BY GOING THE

THE COURT'S GOING TO HAVE TO DECIDE.

ROUTE OF PRESENTING IT AS A LEGAL ARGUMENT THROUGH SUMMARY JUDGMENT, WE SHORTCUT HAVING TO DO ALL THAT. IT WOULD TAKE

MORE TIME TO HAVE DISCOVERY DISPUTES, HAVE THE COURT RULE ON THOSE AND INCH BY INCH MOVE THE CASE FORWARD. THE COURT: WELL. I THINK THAT'S MY FEELING ABOUT IT AS

WHAT HAPPENS WHEN MR. MAGLEBY RESPONDS TO YOUR MOTION

FOR SUMMARY JUDGMENT WITH A RULE 56(D) MOTION AND SAYS NOW I SEE WHAT IT IS THEY'RE SAYING. HERE IS THE DISCOVERY THAT WE

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HAVE TO TAKE, AND HERE IS WHAT WE NEED TIME TO ADDRESS, THEN WHAT DO WE DO? MR. LOTT: WE'RE GOING TO HAVE TO HAVE A HEARING. WE'RE GOING TO HAVE TO HAVE

WE MAY OBJECT TO THAT PROCEDURE.

A HEARING AND THE COURT IS GOING TO HAVE TO DECIDE WHAT DISCOVERY IS APPROPRIATE AND WHAT'S NOT. AND REALLY IT GOES

AGAIN TO THE QUESTION OF ADJUDICATIVE FACTS VERSUS LEGISLATIVE FACTS. THE COURT: HOW WILL THE STATE'S MOTION FOR SUMMARY

JUDGMENT, IF WE GO IN THIS DIRECTION, HOW WILL THAT HELP US NARROW THE ISSUES IN THIS CASE AND EXPEDITE RESOLUTION OF THIS CASE? MR. LOTT: THE ISSUES AS IDENTIFIED IN OUR ANSWER

ARE, NUMBER ONE, SUBJECT MATTER JURISDICTION OF THE COURT. THERE'S SOME CASE LAW WHETHER SAME SEX MARRIAGE IS EVEN A FEDERAL QUESTION. THAT WOULD BE NUMBER ONE. IF THE COURT

DOESN'T HAVE JURISDICTION, THE CASE ENDS.

DUE PROCESS IS AN

ALLEGATION, SO THERE'S GOING TO HAVE TO BE A SHOWING BY THE PLAINTIFFS THAT WHAT WE'RE TALKING ABOUT IS A FUNDAMENTAL RIGHT TO GET TO THE STRICT SCRUTINY LEVEL OF REVIEW. IT'S A RATIONAL BASIS REVIEW. IF NOT,

THE STATE WOULD SET FORTH ITS

LEGISLATIVE FACTS, ITS LEGITIMATE INTERESTS IN TRADITIONAL MARRIAGE. THAT WOULD BE THE DUE PROCESS PART, EQUAL

PROTECTION, WE'D LOOK AT CLASSIFICATION, SAME SEX MARRIAGE VERSUS TRADITIONAL MARRIAGE, IF THERE ARE LEGITIMATE STATE

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INTERESTS FOR UTAH'S LAW.

THERE'S ALSO A FULL FAITH AND

CREDIT ISSUE, WHETHER UTAH HAS THE RIGHT TO NOT ACCEPT A LAWFUL MARRIAGE FROM ANOTHER STATE BECAUSE OF UTAH'S STRONG PUBLIC POLICY IN THE OTHER DIRECTION. SO THOSE WOULD BE THE

ISSUES THAT WOULD BE RAISED IN A MOTION FOR SUMMARY JUDGMENT. THE COURT: IF WE GO IN THAT DIRECTION, HOW QUICKLY

CAN THE STATE FILE SUCH A MOTION? MR. LOTT: WE ANTICIPATED FILING EITHER THE MIDDLE AND WHAT WE WOULD FORESEE AND

OR LATTER PART OF OCTOBER.

PROPOSE IS THAT WE DO CROSS-MOTIONS FOR SUMMARY JUDGMENT, THAT THE PARTIES DO ONE RESPONSE, THAT THERE NOT BE NECESSITY FOR A REPLY UNLESS, YOU KNOW, SOMETHING UNUSUAL IS ALLEGED IN THE PLEADINGS, AND THEN HAVE A HEARING PROBABLY IN JANUARY IF THE COURT COULD ACCOMMODATE IT. THE COURT: ALL RIGHT, MR. LOTT, THANK YOU. IS

THERE ANYTHING MORE YOU WANTED TO TOUCH ON BEFORE WE HEAR -MR. LOTT: ANY QUESTIONS. THE COURT: I UNDERSTAND FOR NOW. WE MAY BE HERE FOR A LITTLE WHILE, BUT THANK YOU. I DON'T BELIEVE SO, UNLESS IN COURT HAS

MS. GODDARD, DO YOU CARE TO BE HEARD? MS. GODDARD: THE COURT: MS. GODDARD: JUST BRIEFLY, YOUR HONOR. THANK YOU. THE COUNTY'S ROLE IN THIS CASE, AS I

THINK PLAINTIFFS' COUNSEL CONCEDED, IS REALLY ON THE SIDELINES

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IN A LOT OF WAYS.

OUR COUNTY CLERK HAS A MINISTERIAL DUTY TO THAT SAID --

JUST APPLY THE LAW AS IT CURRENTLY EXISTS. THE COURT: MS. GODDARD: THE COURT: MS. GODDARD:

HOW DOES IT CURRENTLY EXIST? AS WE UNDERSTAND IT -I'M KIDDING. RIGHT. YOU KNOW, WHAT WE WOULD SAY

THOUGH IS THAT TO THE EXTENT WE CAN EXPEDITE THIS CASE TO GET A RULING SO THAT SHE HAS GUIDANCE SOONER RATHER THAN LATER, I THINK THAT WE SUPPORT THAT IDEA. WHAT THE JUDGE RECOMMENDED,

YOUR RECOMMENDATION FOR DOING CROSS-MOTIONS FOR SUMMARY JUDGMENT OR AT LEAST THE STATEMENT FILING A MOTION FOR SUMMARY JUDGMENT IN RELATIVELY SHORT ORDER I THINK MAKES SENSE. I

THINK IT ALSO MAKES SENSE TO STAY DISCOVERY IN THE CASE UNTIL THOSE MOTIONS ARE DECIDED BECAUSE I THINK, EVEN WHEN MR. MAGLEBY WAS SPEAKING, THE ONLY DISCOVERY THAT HE WAS REFERRING TO WERE IMPROPER CONTENTION INTERROGATORIES OR REQUESTS FOR INFORMATION THAT WE REALLY CAN'T PROVIDE, LIKE FOR EXAMPLE THE FACTORS GOING INTO WHETHER HEIGHTENED SCRUTINY WOULD APPLY. AND THAT'S REALLY NOT SOMETHING FOR THE PARTIES

TO ANSWER, CERTAINLY NOT THIS EARLY IN THE LITIGATION. SO WE ACTUALLY WOULD AGREE WITH THE STATE'S PROPOSED SCHEDULE OF DOING MOTIONS FOR SUMMARY JUDGMENT IN RELATIVELY SHORT ORDER, FOR EXAMPLE, THE END OF OCTOBER, A HEARING IN JANUARY IF THE COURT WOULD SUPPORT THAT AND HAVE TIME FOR THAT, AND THEN HAVE A RELATIVELY EXPEDITED DISCOVERY SCHEDULE

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FROM -- BASED ON WHATEVER THE RULINGS ARE IN THE MOTIONS FOR SUMMARY JUDGMENT, ASSUMING AT LEAST PART OF THE CASE SURVIVES, DOING DISCOVERY RELATIVELY QUICKLY WITH A SHORT TIME FOR FACT DISCOVERY AND THEN A SLIGHTLY LONGER TIME FOR EXPERT DISCOVERY. THE COURT: DO YOU CONTEMPLATE THAT IF WE PROCEEDED

WITH MOTIONS FOR SUMMARY JUDGMENT AT THE OUTSET OF THE CASE THAT THE COUNTY WOULD FILE ITS OWN MOTION OR DO YOU THINK THE MOTION WOULD COME JOINTLY FROM THE DEFENDANTS OR DO YOU KNOW? MS. GODDARD: AS OF RIGHT NOW I ACTUALLY WOULD

SUSPECT THAT THE COUNTY MIGHT JOIN IN PART TO THE STATE'S MOTION FOR SUMMARY JUDGMENT. I CAN'T SAY THAT WE WOULD JOIN

ALL OF THE MOTION FOR SUMMARY JUDGMENT BECAUSE WE HAVEN'T SEEN IT. I DON'T THINK WE ANTICIPATE FILING OUR OWN SEPARATE

MOTION. THE COURT: DOES THE COUNTY HAVE A POSITION ON THIS

ISSUE, ON THE LEGAL ISSUES IN THIS CASE? MS. GODDARD: WE DO. AND THE COUNTY'S POSITION IS

THAT MS. SWENSEN'S DUTY IS MINISTERIAL IN NATURE AND HER JOB IS TO ENFORCE THE LAW AS IT IS WRITTEN AND CONSTRUED BY THE COURTS. THE COURT: THAT. MS. GODDARD: THE COURT: AND YET WE'RE HERE. WELL, I THINK YOU'RE PROBABLY A I DON'T THINK MR. MAGLEBY DISPUTES

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NECESSARY PARTY.

BUT DOES THE COUNTY HAVE A POSITION ON THE

MERITS OF THE UNDERLYING CLAIMS? MS. GODDARD: TODAY. THE COURT: WELL, DO YOU ANTICIPATE THAT YOU'LL NOT THAT WE'RE PREPARED TO SPEAK TO

EXPRESS ANY OPINION ABOUT THOSE ISSUES IN THE LITIGATION? MS. GODDARD: I THINK THAT LIKELY WE WOULD IN

DECIDING WHAT PORTIONS, IF ANY, OF THE STATE'S MOTION FOR SUMMARY JUDGMENT THE COUNTY WOULD JOIN. THE COURT: MS. GODDARD: AND WHAT WOULD DRIVE THAT DETERMINATION? WELL, IT CERTAINLY WOULDN'T BE

ANYTHING THAT WE THINK ANYBODY IS GOING TO BE GETTING IN THIS CASE IN FACT DISCOVERY. I THINK IT WILL DEPEND ON A FURTHER

AND MORE IN DEPTH ANALYSIS OF THE CASE LAW, WHAT'S GOING ON IN OTHER JURISDICTIONS, A BETTER ANALYSIS OF THE WINDSOR DECISION, THE PROP 8 DECISION, AND THEN JUST LOOKING AT WHAT ARGUMENTS THE STATE ARE MAKING. FOR EXAMPLE, THE COUNTY MIGHT NOT HAVE A POSITION ON THE STATE'S SOVEREIGN RIGHT TO DEFINE MARRIAGE BECAUSE IT DOESN'T IMPLICATE THE COUNTY IN ANY WAY. THE COUNTY MIGHT, HOWEVER,

HAVE A POSITION ON WHAT STANDARD OF SCRUTINY APPLIES IN THE CASE. I'M NOT PREPARED TO SAY TODAY WHAT I THINK THAT IS BUT

THAT MIGHT BE A PORTION OF THE STATE'S MOTION FOR SUMMARY JUDGMENT OR IT MIGHT EVEN BE A PORTION OF THE PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT IF THEY DECIDE TO FILE ONE THAT WE

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WOULD DECIDE TO JOIN.

RIGHT NOW WE JUST HAVEN'T MADE ANY

DECISIONS IN THAT REGARD. THE COURT: MR. MAGLEBY. MR. MAGLEBY: EAGER TO JUMP UP. YOUR HONOR, YOU CAN SEE THAT I WAS ALL RIGHT, THANK YOU.

I CAN'T HELP MYSELF. WELL, WE'RE GOING TO HEAR FROM ANYBODY

THE COURT:

UNTIL WE'VE HEARD IT ALL TODAY. MR. MAGLEBY: ALL RIGHT. MS. TOMSIC POINTED

SOMETHING OUT TO ME THAT I MAY HAVE BEEN UNCLEAR IN THE SENSE THAT WE'RE NOT REALLY TALKING ABOUT A CLASSIC FACT DISCOVERY, ESPECIALLY NOT GIVEN WHAT I'VE NOW HEARD FROM THE STATE ABOUT STIPULATING TO CERTAIN ISSUES. WE'RE TALKING ABOUT LIMITED

DISCOVERY AND WORKING ON OUR EXPERTS AND FINDING OUT IF THE STATE HAS ANY EXPERTS. THE HEARING DATE THAT WE WERE

PROPOSING, THE TRIAL DATE, WAS GEARED TOWARDS RESOLVING THE EXPERT DISCOVERY ISSUES. THAT WAS WHAT WE THOUGHT WAS A

GENEROUS AMOUNT OF TIME FOR THE PARTIES TO GET IN THEIR REPORTS. THE COURT: MR. MAGLEBY: THE COURT: WHAT WILL BE THOSE ISSUES? WELL -WHAT IS THE EXPERT -- WHAT ARE THE

EXPERT DISCOVERY ISSUES THAT WE'LL HAVE TO RESOLVE IN THIS CASE? MR. MAGLEBY: WELL, SO FOR EXAMPLE, YOUR HONOR --

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THE COURT:

ARE THEY ISSUES ABOUT THE HISTORICAL

DEFINITION OF MARRIAGE? MR. MAGLEBY: THE COURT: MR. MAGLEBY: THE COURT: YEP, YEP. AND THE SOCIETAL IMPACT OF -YEP. -- STRAIGHT AND GAY COUPLES AND CHILD

REARING AND STATE INTERESTS -MR. MAGLEBY: YES, WHETHER THE STATE HAS A -- YOU

KNOW, I MEAN I'VE GOT TO KNOW WHAT THE STATE'S GOING TO CLAIM BECAUSE NOW IT'S A BIG MYSTERY TO ME, OF COURSE. BUT, YOU

KNOW, FOR EXAMPLE ARE THEY GOING TO MAKE THE SAME CLAIMS THAT WERE MADE IN THE PROP 8 CASE? I WOULD LIKE TO KNOW THAT.

WHAT I WOULD SAY, YOUR HONOR -- AND I SEE WHERE YOU'RE LEANING AND I KNOW YOU HAVEN'T PREJUDGED THIS -- BUT WHAT I WOULD SAY IS THIS. IF WE ACCEDE -- NOT THAT I'M GOING TO

ACCEDE -- BUT IF THE COURT ACCEDES TO THE STATE'S POSITION, THAT WHAT I WOULD LIKE AS PART OF THAT IS THEY NEED TO PUT EVERYTHING THEY'VE GOT INTO THAT SUMMARY JUDGMENT MOTION. I

DON'T WANT TO HAVE TO COME BACK AND DO A SECOND ONE WHEN I WIN THE FIRST ONE, AND THEN I STILL HAVEN'T BEEN ABLE TO DO ANY DISCOVERY. AND THEY'RE GOING TO SAY, WELL, GEE -- AND THERE'S THERE'S NOT GOING TO AND

NOT GOING TO BE A TRIAL DATE SET; RIGHT?

BE ANY DISCOVERY DEADLINES OR EXPERT WITNESS DEADLINES.

THEY'RE GOING TO SAY, GOSH, WE'D LIKE TO FILE A SECOND SUMMARY JUDGMENT MOTION.

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LET'S PUT THOSE DEADLINES IN PLACE SO THAT THE STATE HAS A MOTIVATION TO BE COMPLETE IN ITS MOTION. LET'S TELL THE

STATE YOU NEED TO BE COMPLETE IN YOUR MOTION. THE COURT: I'M NOT KIDDING. I DON'T KNOW WHAT THAT MEANS. I MEAN

I'M NOT TRYING TO BE FLIPPANT.

I DON'T KNOW

WHAT THAT MEANS TO TELL A PARTY BE COMPLETE IN YOUR SUMMARY JUDGMENT MOTION THAT YOU'RE FILING AT THE BEGINNING OF THE CASE BEFORE YOU'VE RECEIVED A RESPONSE FROM THE OTHER SIDE OR TAKEN ANY DISCOVERY. I MEAN THE WHOLE -THEY'VE SAID THEY DON'T NEED ANY

MR. MAGLEBY: DISCOVERY.

SO IT'S REALLY -- YOUR HONOR, IT'S THE EQUIVALENT THIS IS YOUR

OF SETTING A DISPOSITIVE MOTION DEADLINE. DEADLINE FOR FILING A SUMMARY JUDGMENT. THE COURT: PARTIES? MR. MAGLEBY: YOUR HONOR.

AND WILL IT BE DISPOSITIVE FOR BOTH

I'M NOT SURE WE'RE GOING TO FILE ONE,

WE MAY PREFER TO DEVELOP THE RECORD, AND WE'RE

GOING TO HAVE TO WAIT AND SEE WHAT THE STATE PUTS FORWARD, BECAUSE WHATEVER RECORD WE CREATE IN THIS COURT IS THE RECORD THAT'S GOING TO GO UP ON APPEAL, AND SO WE NEED TO BE VERY JUDICIOUS ABOUT HOW WE ADDRESS THOSE ISSUES. THE COURT: MR. MAGLEBY: THE COURT: I'VE THOUGHT A GOOD BIT ABOUT THAT. YEAH. AREN'T THERE SOME LEGAL ISSUES THAT YOU

THINK YOU NEED RESOLVED IN YOUR FAVOR AS PART OF YOUR CASE IN

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CHIEF? MR. MAGLEBY: WELL, ACTUALLY NO. I THINK I'M GOING FOR

TO WIN ON WHATEVER LEGAL ISSUES THE STATE CAN ADVANCE.

EXAMPLE IF THEY GIVE A RATIONAL BASIS, I STILL THINK I'M GOING TO WIN THAT ONE. NOW, WHAT YOU'RE SAYING DO I NEED IT I DON'T THINK SO.

RESOLVED IN MY FAVOR ON SUMMARY JUDGMENT?

I THINK I CAN HAVE IT RESOLVED IN MY FAVOR AFTER AN EVIDENTIARY HEARING. THE COURT: IN EVERY CASE THAT I THINK WE LOOKED AT

RECENTLY RESOLVING OR ADDRESSING THESE ISSUES OR TEEING THEM UP FOR RESOLUTION, WE'VE SEEN CROSS-MOTIONS FOR SUMMARY JUDGMENT FROM BOTH PARTIES AT THE SAME TIME AT THE OUTSET OF THE LITIGATION TO DEFINE THE ISSUES, THE LEGAL ISSUES AND PARAMETERS OF THE CASE. I'M JUST TRYING TO DECIDE WHAT THE

IMPACT IS IF THE PLAINTIFFS DECIDE THEY DON'T CARE TO PARTICIPATE IN THAT PROCESS. WHAT'S THE -- WHAT DO YOU VIEW

AS THE IMPACT IF THE STATE FILES A MOTION FOR SUMMARY JUDGMENT, THE PLAINTIFFS DON'T, AND SAY THE PLAINTIFFS PREVAIL. WHERE DOES THAT PUT US? MR. MAGLEBY: THAT PUTS US WHERE I THINK WE'RE GOING

TO END UP ANYWAY, WHICH IS WE'RE GOING TO COME FORWARD WITH OUR EXPERT REPORTS AND WE'RE GOING TO ASK FOR A HEARING. WE'RE GOING TO PRESENT THE EVIDENCE. TRIAL COURTS DO. WE'RE GOING TO DO WHAT

WE'RE GOING TO PUT OUR WITNESSES UP THERE. IF THE STATE DOESN'T WANT TO PUT

THE STATE CAN HAVE AT THEM.

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ON ITS OWN, IF IT THINKS IT'S PURELY A LEGAL ISSUE, THE STATE CAN MAKE THAT CHOICE. BUT, YOUR HONOR, AS WE LOOKED AT THE CASES -- YOU'VE TALKED ABOUT NEVADA AND HAWAII, AND SO AS THE STATE, WITH ALL DUE RESPECT TO THOSE LAWYERS, I WISH THEY HAD DEVELOPED A FACTUAL RECORD ON SOME OF THE ISSUES THAT ARE NOW GOING UP ON APPEAL. THE COURT: SO ARE WE GOING TO PLAY THE ROLE OF THE

CALIFORNIA COURT AND START DECIDING QUESTIONS ABOUT WHAT MARRIAGE MEANS? IS THAT -- AM I GOING TO DO THAT? MAYBE. AM I? YEAH, MAYBE. THAT'S THE ROLE OF A JUDGE YOU THINK? IT IS, YOUR HONOR. I MEAN THESE ARE THEY'RE

MR. MAGLEBY: THE COURT: MR. MAGLEBY: THE COURT: MR. MAGLEBY: CONSTITUTIONAL ISSUES.

THEY DON'T GO TO A JURY.

SIGNIFICANT ISSUES AND THAT'S ONE OF THE REASONS THEY GO TO JUDGES, PARTICULARLY ARTICLE III JUDGES THAT ARE APPOINTED TO DECIDE THESE FROM YOUR LEVEL, YOUR HONOR, UP TO THE CIRCUIT COURT LEVEL, UP TO THE UNITED STATES SUPREME COURT. BUT WE LOOK AT IT ON BEHALF OF OUR CLIENTS, WHO HAVE VERY REAL AND SIGNIFICANT INTERESTS HERE, AND WE LOOK AT THOSE OTHER CASES AND WE SAY, GOSH, WISH WE HAD A LITTLE MORE ON THE RECORD, YOU KNOW. AND WHAT'S INTERESTING IS THE PROPONENTS OF

PROP 8 THEY ACTUALLY COULDN'T GET ANYTHING INTO THE RECORD TO

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SUPPORT THEIR POSITION.

THEY -- PEOPLE RAN FOR THE HILLS.

THEIR EXPERTS WOULDN'T TESTIFY. I WOULD SUGGEST, YOUR HONOR, AS I THINK WE ALL KNOW FROM CIVIL PRACTICE, IF THE OTHER SIDE GIVES UP ON AN IMPORTANT POINT OR ELEMENT, IT'S BECAUSE THEY THINK THEY CAN'T WIN IT. I THINK THAT'S HOW THIS IS GOING TO PLAY OUT, AND I'M ENTITLED TO ADVANCE THOSE ARGUMENTS ON BEHALF OF MY CLIENTS. SO AM I SAYING WE WON'T FILE A SUMMARY JUDGMENT MOTION? NO. BUT I'M SAYING THAT'S NOT THE RECORD THAT I MIGHT WANT TO

CREATE. THE COURT: WELL, IT WON'T -- IT WON'T BE THE RECORD

ON APPEAL, RIGHT, I MEAN EVEN IF -- EVEN IF WE GO IN THIS DIRECTION. SAY THERE ARE CROSS-MOTIONS FOR SUMMARY JUDGMENT

AND THEY'RE RESOLVED, UNLESS THOSE MOTIONS ARE ENTIRELY DISPOSITIVE OF THE WHOLE CASE, THEN THERE WILL BE MORE WORK TO DO. THE RECORD WILL BE -MR. MAGLEBY: THE COURT: THAT'S RIGHT. JUST SO WE'RE CLEAR ON ONE THING,

RIGHT, I MEAN WHAT I'M PROPOSING, OR WHAT I PROPOSED AT LEAST AT THE OUTSET OF THE HEARING WAS NOT THAT THERE BE NO DISCOVERY IN THIS CASE; RIGHT? I MEAN WE'RE ON THE SAME -- I IT'S JUST A QUESTION OF AND --

DON'T -- I HOPE I DIDN'T MISSPEAK.

TIMING ABOUT WHEN THE DISCOVERY WOULD TAKE PLACE. MR. MAGLEBY:

AND THANK YOU FOR -- YOU KNOW, THANK

YOU FOR CLARIFYING THAT, YOUR HONOR, BECAUSE I WAS I THINK

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OPERATING ON THE ASSUMPTION THAT THERE WOULD BE VERY LITTLE DISCOVERY. WHAT I'M SAYING IS WE KNOW THERE'S GOING TO BE

SOME -- AT LEAST I'M VERY CONFIDENT THERE'S GOING TO BE SOME. WHY MAKE ME WAIT TO FIND OUT. I MEAN THE STATE MAY NOT BE ABLE TO FILE A DISPOSITIVE MOTION IN 30 DAYS, BUT THEY OUGHT TO BE ABLE TO TELL ME WHAT THINGS THEY'RE GOING TO CONCEDE, WHAT THEY'RE GOING TO STIPULATE TO AND WHAT THEY'RE NOT. THE COURT: I DON'T KNOW WHY YOU'LL GET THAT ANSWER

ANYMORE QUICKLY THROUGH DISCOVERY THAN YOU WILL THROUGH THE FILING OF A MOTION FOR SUMMARY JUDGMENT. THE OPPOSITE. IT SEEMS TO ME JUST

BUT IF YOU FILE THAT DISCOVERY, IF YOU SERVE

THAT DISCOVERY -- AND I DON'T KNOW WHAT IT LOOKS LIKE YET. I'VE SEEN YOUR LIST OF PROPOSED TOPICS OR AREAS. I FULLY

EXPECT THAT THERE WILL BE OBJECTIONS TO WHAT YOU'RE PROBABLY MOST INTERESTED IN. AND THERE WILL BE BRIEFING, AND THERE

WILL BE A MOTION TO COMPEL AND A MOTION FOR PROTECTIVE ORDER AND A HEARING. AND THEN AT THE HEARING WHAT WE'RE GOING TO

HAVE TO DECIDE IS UNDER RULE 26 IS THE DISCOVERY REASONABLY LIKELY TO LEAD TO THE DISCOVERY OF ADMISSIBLE -- OR EXCUSE ME -- RELEVANT EVIDENCE. AND DOESN'T THE ANSWER TO THAT TURN

ON THE VERY QUESTION THAT WE'RE TRYING TO RESOLVE IN SUMMARY JUDGMENT IN PART? WHAT ARE THE LEGAL QUESTIONS? MAYBE, MAYBE. BUT THE STATE MAY --

MR. MAGLEBY:

FOR EXAMPLE IF I SERVED ADMISSIONS, RIGHT, THEY MAY COME BACK

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AND ADMIT THE THINGS THAT I NOW HEAR THE STATE IS WILLING TO ADMIT THAT THEY DIDN'T ADMIT IN THE ANSWER. THOSE THINGS OFF THE TABLE. AND THAT TAKES

MAYBE THEY CAN GIVE ME THEIR LIST I'M NOT ASKING FOR

OF COMPELLING GOVERNMENTAL INTERESTS. THEIR WHOLE BRIEF.

BUT WHAT THEY'VE TOLD YOU IS THEY DON'T THINK WE NEED TO DO ANYTHING MORE THAN WHAT HAS ALREADY BEEN DONE. PRESUMABLY THEY HAVE THEIR ANSWERS. SO

AND THE BIG DIFFERENCE

BETWEEN THE SUMMARY JUDGMENT MOTION AND DISCOVERY IS, YOUR HONOR, I CAN PIN THEM DOWN AND THEY CAN'T CHANGE THEIR MIND LATER. THE COURT: MR. MAGLEBY: I UNDERSTAND. UNLESS YOU SAY THIS IS YOUR

DISPOSITIVE MOTION CUTOFF, AND SO WE'RE GOING TO HEAR THIS ONCE AND WE'RE NOT -- I MEAN THERE'S A REASON COURTS SET DISPOSITIVE MOTION CUTOFFS, RIGHT, SO YOU DON'T GET TWO OR THREE SUMMARY JUDGMENT MOTIONS. THE COURT: WELL, BUT THERE'S A REASON IN MOST CASES

I THINK IT MAKES SENSE TO PROCEED THROUGH FACT DISCOVERY AND THEN THROUGH EXPERT DISCOVERY AND THEN TO MOTIONS FOR SUMMARY JUDGMENTS. AND, YOU KNOW, AND I GUESS THE QUESTION THAT STILL

REMAINS IN MY MIND IS WHETHER A MORE DIRECT AND EXPEDITIOUS WAY TO GET TO THE END RESULT HERE IS TO FIRST DEFINE THE LEGAL -- EXCUSE ME, DEFINE -- WELL, DEFINE THE ISSUES THAT WE NEED TO HAVE DISCOVERY ON, IF ANY, AND THEN FIGURE OUT WHAT

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THAT DISCOVERY IS, AND THEN -- IT WON'T TAKE LONG; RIGHT?

MEAN IS TWO MONTHS PLENTY OF TIME FOR FACT DISCOVERY IN THIS CASE? MR. MAGLEBY: THE COURT: OH, YEAH. HOW DO YOU KNOW THAT TODAY? HOW DO YOU

KNOW WHICH ISSUES ARE RELEVANT -MR. MAGLEBY: THE COURT: MR. MAGLEBY: WELL --- FOR FACT DISCOVERY? THERE ARE -- THIS IS NOT A COMPLEX

COMMERCIAL CASE WITH TENS OF THOUSANDS OF DOCUMENTS AND MULTIPLE WITNESSES. WITNESS; RIGHT? THIS IS -- THERE'S BASICALLY A 30(B)(6)

AND I'M NOT SUGGESTING WE'RE GOING TO TAKE

THE STATE'S DEPOSITION. THE COURT: I WAS AFRAID YOU WERE GOING TO SAY THAT. ARE YOU GOING TO ASK

ARE YOU GOING TO DEPOSE THE GOVERNOR?

THE GOVERNOR WHAT THE STATE'S INTEREST IS IN A PROPOSITION THAT WAS ENACTED BY THE VOTERS? MR. MAGLEBY: DEPENDING UPON WHAT HAPPENS IN THE

SUMMARY JUDGMENT HEARING AND DISCOVERY ANSWERS, I GUESS I MIGHT. DO I WANT TO? THE COURT: LAWYER. NO. I JUST WANT TO KNOW -YOU'RE A PLAINTIFF'S I

OF COURSE YOU DO.

YOU CAN'T WAIT TO GET THE GOVERNOR UNDER OATH.

UNDERSTAND THAT. MR. MAGLEBY: EVERY MINUTE I SPEND DEPOSING THE WHAT I'M SAYING, YOUR HONOR, IS

GOVERNOR IS DELAY AND MONEY.

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I JUST DON'T WANT TO HAVE TO DO -- YOU KNOW, THEY FILE THE MOTIONS, WE WIN, AND THEN THEY FILE ANOTHER MOTION, THEN THEY FILE ANOTHER MOTION. THE COURT: POINT, MR. MAGLEBY. YOU. MR. LOTT, HOW DO WE ENSURE THAT IF WE START DOWN THIS PATH THAT WE DON'T JUST FRUSTRATE THE WHOLE THING, THE WHOLE DESIGN OF THIS, BY HAVING THREE ROUNDS OF SUMMARY JUDGMENT MOTIONS? MR. LOTT: THE STATE'S INTEREST IS RECEIVING A THAT'S A -- THAT'S A SUPREMELY RELEVANT LET ME ASK MR. LOTT ABOUT THAT. THANK

DISPOSITIVE RULING DECIDING THE CASE ONE WAY OR ANOTHER. WE'RE NOT ANTICIPATING FILING A MOTION ON JURISDICTION, GETTING A RULING, FILING A MOTION ON DUE PROCESS, GETTING A RULING, FILING A MOTION ON EQUAL PROTECTION, GETTING A RULING. THAT'S NOT THE INTENT. THE COURT: I DON'T KNOW WHY WE WOULD DO THAT. IN YOUR VIEW THE MOTION THAT YOU'RE

CONTEMPLATING, YOU'VE GIVEN SOME -- I GATHER A LOT OF THOUGHT TO THIS, AND YOU AND YOUR COLLEAGUES HAVE TALKED ABOUT IT. YOU THINK THE MOTION THAT YOU INTEND TO FILE IS DISPOSITIVE OF THE CASE WIN OR LOSE, EITHER WAY? MR. LOTT: THE COURT: MR. LOTT: MOST LIKELY, YES. WHEN WOULDN'T IT BE? WELL, I'M HAVING A HARD TIME FIGURING OUT

WHAT REMAINING ISSUES OF FACT WOULD BE OUTSTANDING THAT WE

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HAVE TO PURSUE, BUT IF BY SOME REASON THERE WAS AN OUTSTANDING ISSUE OF FACT THAT THE COURT FELT LIKE IT NEEDED TO HAVE RESOLVED ONE WAY OR ANOTHER BEFORE ISSUING A RULING OF LAW, THAT WOULD BE ONE SCENARIO. THE COURT: YOU PROPOSED, MR. LOTT, A DEADLINE FOR SUPPOSE -- SUPPOSE THE

CROSS-MOTIONS FOR SUMMARY JUDGMENT.

PLAINTIFFS CHOOSE NOT TO FILE A MOTION FOR SUMMARY JUDGMENT BUT INSTEAD SEEK TO RESPOND TO THE STATE. I ASSUME UNDER

THOSE CIRCUMSTANCES THE STATE WOULD LIKE AN OPPORTUNITY TO REPLY. MR. LOTT: THE COURT: YES. YOU WERE THINKING IF THEY WERE

CROSS-MOTIONS, A SINGLE OPPOSITION REALLY WOULD HAVE FRAMED ALL THE ISSUES. BUT IF WE'RE MOVING IN TURN, I SUSPECT THAT

IF THE STATE WERE TO FILE A MOTION FOR SUMMARY JUDGMENT AND NOT THE PLAINTIFFS, WHAT YOU WOULD RECEIVE IN OPPOSITION WOULD BE SOME -- A GOOD NUMBER OF DECLARATIONS AND EVIDENCE THAT YOU'D WANT SOME OPPORTUNITY TO MEET? MR. LOTT: THE COURT: ABSOLUTELY. IF WE GO IN THAT DIRECTION, CAN THE

STATE FILE ITS MOTION FOR SUMMARY JUDGMENT BY THE END OF SEPTEMBER, BY SEPTEMBER 27TH? MR. LOTT: THE COURT: SHORT RECESS. YES. ALL RIGHT. LET'S DO THIS. LET'S TAKE A

LET ME CHEW ON --

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MR. LOTT: SEPTEMBER 27TH.

I THINK I MISUNDERSTOOD YOU.

YOU SAID BY

I WAS STILL THINKING OCTOBER.

I BELIEVE THAT

WE WOULD NEED MORE TIME.

THAT WOULD ESSENTIALLY BE 30 DAYS.

THE STATE I DON'T THINK WOULD BE READY TO FILE ITS MOTION FOR SUMMARY JUDGMENT WITHIN 30 DAYS. THE COURT: OKAY. YOU NEED 45 -- 45 TO 60 IS WHAT

YOU WERE SUGGESTING EARLIER? MR. LOTT: THE COURT: YES. MR. MAGLEBY, IF WE GO IN THIS DIRECTION,

I GUESS YOU NEED TO SEE THE MOTION, BUT CAN THE PLAINTIFFS RESPOND IN 45 DAYS? WE'RE KEEPING IN MIND EVERYONE'S DESIRE

TO MOVE THROUGH THIS QUICKLY. MR. MAGLEBY: YOUR HONOR, WE THINK WE CAN DO IT IN

30 DAYS, UNLESS WHAT WE NEED TO DO IS GET EXPERT DECLARATIONS, IF WE HAVE TROUBLE GETTING THAT FROM OUR EXPERTS FOR REASONS THAT ARE BEYOND MY CONTROL. SO IF THE QUESTION IS HOW FAST

CAN THE LAWYERS SITTING OVER HERE BRIEF THIS THING, WE'LL DO IT IN 30 DAYS. THE COURT: COULD DO IT IN 10. IF THAT WERE THE QUESTION, I THINK YOU

I'M CONFIDENT OF THAT. BUT WHY DON'T YOU GIVE US 30, AND IF

MR. MAGLEBY:

WE NEED HELP, WE'LL COME BACK, AND IF WE DECIDE TO DO RULE 56 WE'LL COME BACK -- OR A 56(D) I GUESS. THE COURT: MR. MAGLEBY: IT CHANGED, DIDN'T IT, RIGHT. IT CHANGED ON ME, AND I'M TOO OLD TO

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REMEMBER THE NEW RULES. THE COURT: ALL RIGHT, 56(D). IS THERE ANY REASON

WE CAN'T HAVE THIS -- IF WE GO IN THIS DIRECTION, IS THERE ANY REASON WHY WE CAN'T HAVE A HEARING ON THESE ISSUES IN EARLY DECEMBER? I'M PROJECTING A TIME LINE FORWARD. I THINK THAT

WOULD ALL WORK.

I'M GOING TO GO LOOK AT A CALENDAR, BUT I'M

NOT -- I'M GOING TO THINK SOME MORE ABOUT WHAT YOU'VE SAID, MR. MAGLEBY, TO MAKE SURE I'M NOT -MR. MAGLEBY: WE'VE BEEN PASSING NOTES OVER HERE

ABOUT THE HEARING DATE, AND SOMETIME BETWEEN DECEMBER 1 AND DECEMBER 15 IS WHAT WE WERE PROPOSING. I HAVE A TRIAL AT SOME

POINT IN DECEMBER, SO I WOULD JUST LOOK AT MY CALENDAR, BUT I THINK DECEMBER 1ST OR AROUND THEN WOULD WORK FOR US. THE COURT: MY INCLINATION WAS TO TRY TO GET THE

PARTIES IN, IF WE COULD, IF WE GO IN THIS DIRECTION, BY THE FIRST WEEK IN DECEMBER. MR. MAGLEBY: THE COURT: UNDERSTOOD, YOUR HONOR. WITH AN EYE TOWARDS TRYING TO GIVE THE

PARTIES THE BENEFIT OF SOME RULING BEFORE THE END OF THE YEAR SO THAT WE COULD STILL -- I MEAN MY CONCEPTION OF THINGS, IF WE GO THIS ROUTE IN LIEU OF DISCOVERY AT THE OUTSET AND THEN MOTIONS, WE WOULD NOT BE FAR OFF THE TIME LINE YOU'VE PROPOSED FOR GETTING TO TRIAL IN ANY EVENT. MR. MAGLEBY: I THINK THAT'S RIGHT. I WAS GETTING

EXCITED BECAUSE FROM WHAT I WAS HEARING FROM THE STATE I

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THOUGHT WE MIGHT GET THERE SOONER, BUT -THE COURT: WELL, WHILE I'M INTERESTED IN MOVING

EXPEDITIOUSLY, MY FIRST CONCERN, AND I SAY THIS REPEATEDLY FROM THE BENCH, IT'S OBVIOUS, PERHAPS, BUT THE PRIMARY CONCERN IS GETTING THE RIGHT ANSWER, AND WE'LL TAKE WHAT TIME IT TAKES TO GET THE RIGHT ANSWER. BUT I DON'T SEE WHY WE CAN'T DO THAT

ON THE KIND OF TIME FRAME WE'VE BEEN TALKING ABOUT. LET'S RECESS FOR A FEW MOMENTS, GIVE YOU ALL A CHANCE TO CONSULT WITH YOUR COLLEAGUES. LET ME THINK ABOUT IT AND SPEAK

WITH MY CLERKS AND THEN WE'LL COME BACK OUT. MR. MAGLEBY: THANK YOU, YOUR HONOR.

(RECESS FROM 2:41 P.M. UNTIL 3:00 P.M.) THE COURT: I DON'T GET TO PRACTICE LAW ANYMORE, SO

I DON'T GET TO TELL PEOPLE HOW TO RUN THEIR CASES, AND SO I'M NOT GOING TO DO THAT IN THIS CASE EITHER. BUT LET ME SAY

THIS, AND THEN WHAT I'M GOING TO DO IS PROPOSE TWO ALTERNATIVE SCHEDULES, AND I'M GOING TO GIVE THE PLAINTIFFS AN ELECTION AND I'M GOING TO GIVE YOU A DATE BY WHICH TO NOTIFY EVERYONE WHAT YOUR ELECTION IS, AND THEN WE'LL OPERATE UNDER ONE OF THE TWO SCHEDULES THAT YOU'LL CHOOSE. MR. MAGLEBY: MS. TOMSIC: THE COURT: I LIKE IT, AT LEAST RIGHT NOW. YOU HAVEN'T HEARD WHAT HE SAID YET. MR. MAGLEBY, YOU KNOW YOUR CASE BETTER

THAN I DO, AND YOU KNOW THE ISSUES BETTER THAN I DO, AND YOU'VE GIVEN A GREAT DEAL MORE THOUGHT TO ALL OF THIS THAN I

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HAVE.

I WILL SAY THIS.

WE ARE GOING TO PROCEED WITH SOME

MOTION PRACTICE AT THE BEGINNING OF THE CASE TO NARROW AND DEFINE THE ISSUES IN THE CASE BEFORE WE GET INTO FACT DISCOVERY. I MEAN I STILL CAN'T ESCAPE THE IDEA THAT EVEN IF WE LEFT TODAY AND STARTED FACT DISCOVERY, AND YOU SERVED YOUR DISCOVERY TOMORROW, THAT WE'D BE HERE ABOUT THE TIME OF THE SUMMARY JUDGMENT HEARING RESOLVING THE MOTIONS TO COMPEL AND FOR PROTECTIVE ORDER. AND I JUST THINK WE CAN ADVANCE THE

BALL MUCH MORE QUICKLY AND DIRECTLY, AND I BELIEVE THE STATE CAN BE BOUND UP IN ITS -- IN THE POSITIONS THAT IT TAKES ON SUMMARY JUDGMENT, PARTICULARLY IF THEY'RE ALSO RESPONDING TO A CROSS-MOTION. THIS IS THE PART WHERE I DON'T GET TO DECIDE

HOW YOU FOLKS PROCEED. I WILL TELL YOU, AS I'VE THOUGHT ABOUT THE ISSUES, I THINK IT WOULD BE BENEFICIAL TO THE COURT IF I HAD THE BENEFIT OF THE GUIDANCE AND WISDOM OF BOTH PARTIES ON THE LEGAL ISSUES AT THE BEGINNING OF THE CASE, BUT YOU'LL DECIDE HOW YOU WANT TO PRESENT YOUR CASE AND IN WHAT ORDER AND WHICH ISSUES YOU WANT TO PRESENT AND WHEN. SO WITH THAT IN MIND, WE'RE GOING TO PROCEED THIS WAY. IF THE PLAINTIFFS ELECT TO FILE CROSS-MOTIONS FOR SUMMARY JUDGMENT, THEN WE'LL HAVE THOSE FILED ON OR BEFORE OCTOBER 11, AND THEN WE'LL HAVE OPPOSITIONS FILED ON OR BEFORE NOVEMBER 22ND. AND THAT WILL ALLOW BOTH PARTIES TWO BRIEFS TO PRESENT

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ISSUES, AND I THINK WE WILL SQUARELY HAVE PRESENTED EVERYTHING WE NEED TO CONSIDER LEGALLY AT THAT POINT. WE'LL ALSO KNOW OF

NECESSITY WHETHER THERE ARE FACTUAL ISSUES THAT PREVENT RESOLVING SOME OF THOSE ISSUES ON SUMMARY JUDGMENT AT THE OUTSET. IF THE PLAINTIFFS CHOOSE NOT TO FILE A CROSS-MOTION FOR SUMMARY JUDGMENT, THEN THIS WILL BE THE SCHEDULE. WE'LL HAVE

THE STATE -- WELL, THE DEFENDANTS, FILE SUMMARY JUDGMENT MOTIONS ON OR BEFORE OCTOBER 11. WE'LL HAVE AN OPPOSITION BY THAT'S 30 DAYS -I WAS BAD

THE PLAINTIFFS ON OR BEFORE NOVEMBER 12TH.

IT'S ACTUALLY 31, I THINK, IF I DID MY MATH WELL.

AT THIS AS A LAWYER AND I'M NO BETTER AT IT AS A JUDGE, EVEN WITH THE CALENDAR IN FRONT OF ME. AND THEN REPLIES FROM THE

DEFENDANTS ON OR BEFORE NOVEMBER 27, WHICH I STILL THINK GETS YOU IN BEFORE THE HOLIDAY BREAK THIS YEAR BECAUSE I THINK IT'S LATE. MR. MAGLEBY: THE COURT: MR. MAGLEBY: THE COURT: ON DECEMBER 4TH. A.M. DID YOU SAY 27TH OR 22ND? 27TH. THANK YOU. AND, IN ANY EVENT, OUR HEARING WILL BE WE'LL BEGIN AT 10:00

THAT IS A WEDNESDAY.

I'LL HOLD THE DAY.

I DON'T KNOW HOW MUCH WE'LL HAVE TO

DISCUSS, BUT I GUESS IT WILL BE A LOT, AND WE'LL HEAR FROM EVERYBODY. SO WHAT I'M GOING TO PROPOSE, AND I'LL HEAR FROM

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EVERYBODY BEFORE WE MAKE THIS THE ORDER.

WHAT I'M GOING TO

PROPOSE IS THAT THE PLAINTIFFS HAVE SEVEN DAYS TO EVALUATE HOW THEY'D LIKE TO PROCEED AND THAT THEY'LL NOTIFY THE DEFENDANTS WITHIN SEVEN DAYS OF TODAY WHICH SCHEDULE WE'LL BE OPERATING UNDER. AND THEN YOU'LL JOINTLY SUBMIT AN ORDER TO THE COURT

ESSENTIALLY ENCAPSULATING WHAT I'VE DECIDED TODAY AND THE SCHEDULE THAT WILL GOVERN. MR. MAGLEBY, MR. LOTT, MS. GODDARD, ANY OBJECTIONS TO PROCEEDING IN THAT WAY? ABOUT? ARE THERE ISSUES I HAVEN'T THOUGHT

SAVE, MR. MAGLEBY, FOR YOUR OBJECTIONS, OF COURSE, WE'LL RESERVE

YOU'D LIKE TO PROCEED WITH DISCOVERY TODAY. THOSE OBJECTIONS. THIS WAY? MR. MAGLEBY:

BUT IS THERE ANY REASON WE CAN'T PROCEED

WELL, YOUR HONOR, IF YOU TELL US TO DO

IT, THERE'S NO REASON THAT WE CAN'T DO IT AND WE WILL DO IT. WHAT I'LL ASK IS THAT WE ADD AN ADDITIONAL COMPONENT TO IT, AND THAT IS THAT WE SET EXPERT DEADLINES FOR MAYBE 45 DAYS AFTER YOUR HONOR RULES. THE COURT: MIND FOR YOU. MR. MAGLEBY: THE COURT: OH, GREAT. I'M SORRY I DIDN'T GET THIS FAR. I HAVE YOU KNOW, I ACTUALLY HAVE ONE BETTER IN

IN MIND THAT WE'LL ALSO SCHEDULE TODAY A STATUS CONFERENCE THE FIRST WEEK THAT WE'RE ALL BACK AFTER THE FIRST OF THE YEAR. THE COURT'S CLOSED ON THE 1ST, AND I THINK LAST YEAR -- I

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CAN'T RECALL IF WE WERE OPEN ON THE 2ND, BUT WHAT I HAD IN MIND IS HAVING EVERYBODY IN THE FIRST MONDAY IN JANUARY -- OR PROBABLY TUESDAY INSTEAD, TUESDAY JANUARY 7TH, FOR A STATUS AND SCHEDULING CONFERENCE. MY EXPECTATION IS THAT YOU WOULD

ALL HAVE A RULING FROM ME IN ADVANCE OF THAT DATE. AND AT THAT TIME, IF THERE -- IF THE CASE IS NOT -- IF THE MOTIONS WEREN'T DISPOSITIVE OF THE CASE, THEN WE'LL BE CHARTING A COURSE, SETTING A TRIAL DATE, IDENTIFYING THE DISCOVERY THAT NEEDS TO BE COMPLETED, DEADLINES FOR THE DISCOVERY, AND THE LIKE. MR. MAGLEBY: MY ONE CONCERN. THANK YOU, YOUR HONOR. THAT ADDRESSES

WHAT I WOULD ALSO LIKE TO KNOW, AND I DON'T

KNOW IF THERE'S -- HOW WE DO THIS, BUT THERE'S REALLY TWO ISSUES THAT ARE GOING TO RELATE TO WHETHER WE FILE A CROSS-MOTION FOR SUMMARY JUDGMENT, AND ONE IS WHAT ARE THE FACTS THE STATE IS WILLING TO STIPULATE TO. SO, FOR EXAMPLE,

SOME OF THE THINGS MR. LOTT MENTIONED, THEY COULD EASILY CONTEST THOSE IF THEY CHANGE THEIR MIND AND DECIDED TO CONTEST WHETHER OR NOT OUR CLIENTS ARE IN A COMMITTED RELATIONSHIP. THE COURT: WELL, YOU KNOW THE ANSWER TO THAT. IF

YOU INCLUDE THOSE FACTS IN YOUR MOTION FOR SUMMARY JUDGMENT -MR. MAGLEBY: IT'S SOMETHING THAT I WOULD LIKE TO AND I WOULD LIKE TO

KNOW BEFORE I SPEND THE TIME AND MONEY.

KNOW -- IN ADDITION, THIS IS MORE IMPORTANT FOR ME IN MAKING THAT DECISION IS WHAT ARE THE -- WHAT INTEREST IS THE STATE

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GOING TO ADVANCE AS PART OF ITS IMPORTANT GOVERNMENT PURPOSE OR LEGITIMATE STATE INTEREST. ANSWER. AND I DON'T NEED A DISCOVERY

I JUST NEED A LIST OF WHAT THOSE ARE BECAUSE THEN I

CAN GO GET MY EXPERTS AND THEN WE CAN DECIDE, HEY, WE THINK WE'VE GOT A SHOT AT SUMMARY JUDGMENT ON THESE. SO THAT WOULD

BE THE COMPONENT THAT I WOULD ASK THE COURT TO HAVE THEM GIVE US THAT LIST 30 OR 45 DAYS FROM NOW. THE COURT: I UNDERSTAND YOUR POSITION. IN PART

BECAUSE OF THE PROCEDURAL POSTURE OF THIS CASE, I'VE DONE JUST ENOUGH RESEARCH INTO ALL OF THIS TO BE DANGEROUS, AND PROBABLY LEGALLY INCORRECT. BUT I THINK -- I REALLY THINK THE ANSWER

TO THAT QUESTION TURNS ON THE LEVEL OF SCRUTINY THAT WE APPLY IN THIS CASE. IF IT'S A RATIONAL BASIS LEVEL OF SCRUTINY THAT

APPLIES, FOR EXAMPLE, I DON'T THINK THE STATE HAS AN AFFIRMATIVE BURDEN TO COME FORWARD AND IDENTIFY THE -- I'M NOT SURE ABOUT THIS, BUT I DON'T THINK THEY HAVE THE BURDEN TO COME FORWARD AND SAY THIS AMENDMENT ADDRESSES THESE RATIONAL -- OR HERE IS A LIST OF RATIONAL BASES FOR THAT AMENDMENT. I THINK THE CASE LAW SAYS THAT I'M REQUIRED TO DETERMINE THAT THERE ARE NONE, I THINK. I'M NOT SURE OF THAT. I

HAVEN'T RESEARCHED THAT QUESTION EXHAUSTIVELY, BUT WE'LL KNOW THE ANSWER TO THAT QUESTION AFTER WE GET YOUR MOTIONS AND I REVOLVE THEM. I THINK I GET WHERE YOU'RE GOING, BUT I THINK WE'RE

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PUTTING THE CART BEFORE THE HORSE. HAD THIS DISCUSSION IN PART ALREADY. CATCHING IT. MR. MAGLEBY:

HOW ARE WE NOT?

MAYBE WE

MAYBE I'M JUST NOT

WELL, YOUR HONOR, IF THEY'RE NOT

WILLING TO ADVANCE ANY, I MEAN IF THEY'RE GOING TO SAY IT IS A RATIONAL BASIS PERIOD, WE'RE NOT GOING TO COME FORWARD, THAT'S NOT OUR BURDEN, THAT'S HELPFUL FOR ME TO KNOW IN DECIDING WHETHER TO FILE A CROSS-MOTION FOR SUMMARY JUDGMENT. I MEAN I WANT TO KNOW WHAT THEY'RE GOING TO STIPULATE TO IN TERMS OF FACTS AND WHAT THEY'RE NOT GOING TO CONTEST. THE COURT: I'M NOT INCLINED TO ORDER THEM TO GIVE

YOU THAT INFORMATION BEFORE YOU MAKE YOUR DECISION. BUT, MR. LOTT, WHAT'S YOUR ANSWER TO THAT? ANSWER THAT QUESTION? QUESTION? MR. LOTT: THE COURT: QUESTION? MR. LOTT: THE COURT: I CAN'T. WELL, YOU WILL -- AT SOME POINT YOU'LL I DON'T KNOW THE ANSWER TO THAT QUESTION. HOW CAN YOU KNOW THE ANSWER TO THAT CAN YOU

DO YOU KNOW THE ANSWER TO THAT

KNOW THE ANSWER TO THAT QUESTION. MR. LOTT: WHEN WE FILE OUR MOTION -- AND I DON'T

WANT TO COMMIT TO A POSITION, BUT I DON'T SEE HOW WE WOULD STIPULATE TO WHAT I WOULD CONSIDER TO BE A LEGISLATIVE FACT. I THINK THE VIEWS ARE QUITE DIFFERENT, AND I DON'T KNOW WHAT

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WE WOULD STIPULATE TO AS FAR AS THAT'S CONCERNED. I FORESEE THAT WE MAY STIPULATE TO SOME OF THE ADJUTICATIVE FACTS REGARDING THE PARTIES THEMSELVES, BUT I DON'T KNOW WHAT ELSE TO SAY. THE COURT: THANK YOU, MR. LOTT. I MEAN I'LL TELL

YOU, MR. MAGLEBY, THIS IS ONE OF THE REASONS THAT I THINK IT WOULD BE HELPFUL FOR THE COURT IF THERE WERE TWO MOTIONS IN FRONT OF ME. IF THERE WERE CROSS-MOTIONS, I THINK WE WOULD BUT I'M NOT TELLING

DEVELOP AND RESOLVE THESE VERY QUESTIONS.

YOU TO FILE A MOTION FOR SUMMARY JUDGMENT, AND I'M NOT ORDERING YOU TO DO IT, AND IT MAY BE THAT THERE ARE VERY GOOD REASONS WHY YOU SHOULDN'T OR DON'T WANT TO. I THINK IT WOULD BE HELPFUL. I ESPECIALLY THINK IT WOULD

BE HELPFUL IN PINNING DOWN THE RESPECTIVE POSITIONS OF THE PARTIES BECAUSE THEY WILL IN FACT BE RESPONDING TO YOUR STATEMENT OF MATERIAL FACTS IF YOU INCLUDE ONE, IF YOU FILE A MOTION. AND I THINK THAT'S SOMETHING THAT WOULD BE BINDING ON

BOTH PARTIES, THOSE RESPONSES, THROUGHOUT THE LITIGATION. LET ME QUALIFY THAT. I'M NOT CERTAIN OF THAT UNDER THE

CASE LAW, BUT I BELIEVE THAT TO BE TRUE. GO AHEAD, MR. MAGLEBY, TAKE A MOMENT. MR. MAGLEBY: ONE SECOND? THE COURT: TAKE WHATEVER TIME YOU NEED. IN FACT, IF I COULD JUST TALK TO MS. TOMSIC FOR

IF YOU'D LIKED ANOTHER RECESS TO CONSULT, WE CAN DO THAT.

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WHATEVER YOU'D LIKE. MR. MAGLEBY: I THINK IT WILL BE SHORT, AND IF IT

WON'T, THEN I'LL TELL YOU. (BRIEF PAUSE) MR. MAGLEBY: YOUR HONOR, THE CONSIDERATION WE'RE

HAVING IS IF WE CHOOSE TO FILE A CROSS-MOTION FOR SUMMARY JUDGMENT, THEN ARE WE GOING TO BE DONE WITH SUMMARY JUDGMENT MOTIONS THEN? I MEAN THE STATE HAS SAID, I THINK, THAT AND IF I KNOW THAT'S THE

THEY'RE ALL IN ON THIS FIRST MOTION.

CASE, I'M NOT GOING TO BE GETTING A SECOND OR A THIRD MOTION OR REQUESTS FOR A CONTINUANCE OF THE TRIAL, THAT'S ALSO AN IMPORTANT FACT. AND SO I WOULD EITHER ASK THE STATE TO TELL

US THAT OR COMMIT TO THAT OR FOR THE COURT TO ORDER IT. THE COURT: THESE ARE THE HYPOTHETICALS THAT I SPENT

A GREAT DEAL OF TIME THINKING ABOUT WHEN I WAS TRYING TO THINK ABOUT THE SCHEDULE THAT MIGHT APPLY IN THE CASE. MY

PERCEPTION IS THAT CROSS-MOTIONS FOR SUMMARY JUDGMENT LIKELY COULD BE DISPOSITIVE OF THE CASE TOO, BUT IF THEY'RE NOT, IT SEEMS TO ME THEN WE'RE JUST SETTING A TRIAL ON THE ISSUES WE'VE IDENTIFIED THAT ARE IN DISPUTE. I'M NOT GOING TO ORDER A PARTY TO COMMIT TO THAT BEFORE THEY'VE SEEN -- BEFORE THEY'VE SUBMITTED THEIR OWN MOTION OR SEEN YOURS. AND I DON'T KNOW. THIS IS PRECISELY WHY I THINK

MOTIONS WILL HELP ALL OF US UNDERSTAND WHAT IT IS WE NEED TO ADDRESS AND RESOLVE IN THIS CASE.

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BUT, MR. LOTT. MR. LOTT: ALL I WAS GOING TO SAY IS I CAN'T COMMIT

THAT WE'RE NOT GOING TO FILE ANY ADDITIONAL MOTIONS BECAUSE DEPENDING ON WHAT THE COURT RULES, IT MAY IMPACT WHAT DIRECTION WE GO FROM THAT POINT. COURT'S RULING. THE COURT: WHAT I'M NOT GOING TO ENTERTAIN AND WHAT IT'S GOING TO DEPEND ON THE

NONE OF YOU WILL WANT TO ENTERTAIN IS RELITIGATING ISSUES THAT ARE RESOLVED. SO INSOFAR AS YOUR MOTIONS PRESENT ISSUES, THEY

WILL BE RESOLVED, AND THEY WILL BE FINALLY RESOLVED PENDING AN APPEAL THAT EITHER OR BOTH OF YOU MAY WISH TO TAKE. SO WE

WON'T BE RELITIGATING ISSUES THAT ARE RAISED AND ANSWERED. MR. MAGLEBY: THE COURT: MR. MAGLEBY: THE COURT: THANK YOU, YOUR HONOR. DOES THAT HELP AT ALL, MR. MAGLEBY? IT DOES HELP. OKAY, ALL RIGHT. WHAT AM I FORGETTING?

WHAT ELSE CAN WE ADDRESS? YOU?

WHAT ELSE CAN I DO TO HELP ALL OF

IS THERE ANYTHING MORE WE SHOULD TAKE UP? MS. GODDARD, YOU'VE BEEN QUIET. AM I BOXING YOU OUT OF

THIS DISCUSSION? MS. GODDARD: THE COURT: NOTHING FROM US, YOUR HONOR. ALL RIGHT. MR. LOTT, ANYTHING FURTHER

YOU THINK WE SHOULD ADDRESS? MR. LOTT: THE COURT: I DON'T BELIEVE SO, YOUR HONOR. WHILE --

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MS. TOMSIC:

YOUR HONOR, COULD WE GET A TIME ON

JANUARY 7TH FOR THE STATUS CONFERENCE? THE COURT: I WROTE IT DOWN RIGHT HERE. IT WILL BE

MS. TOMSIC: THE COURT:

ALL RIGHT. AND I'LL JUST ASK YOU TO INCLUDE THAT IN

THE ORDER THAT YOU SUBMIT TO THE COURT, PLEASE. AND, MR. MAGLEBY, I'LL ASK YOU TO DRAFT THAT ORDER WITH INPUT AND CONSULTATION, OF COURSE, WITH MR. LOTT AFTER YOU'VE MADE YOUR ELECTION, WHICH SHOULD BE BY THE END OF DAY SEVEN DAYS FROM TODAY. IS THAT ENOUGH TIME FOR YOU TO DECIDE? THAT IS, YOUR HONOR. I ALWAYS HAVE TO IS THAT SEVEN

MR. MAGLEBY:

ASK THIS BECAUSE I'M ALWAYS CONFUSED BY THIS. BUSINESS DAYS OR IS THAT SEVEN CALENDAR DAYS? THE COURT:

LET'S HAVE YOU FILE THAT, FILE THE ORDER

WITH THE COURT, ON -- MAKE YOUR -- WELL, MAKE YOUR ELECTION BY -- MAKE YOUR ELECTION BY 3:00 P.M. NEXT TUESDAY, SEPTEMBER 3RD, AND THEN YOU CAN ALL JUST SUBMIT THE ORDER WHENEVER IS CONVENIENT AFTER THAT. OURS. MR. MAGLEBY: THE COURT: THANK YOU, YOUR HONOR. IS THERE ANYTHING ELSE YOU THINK WE YOUR SCHEDULES WILL BE IMPACTED BEFORE

SHOULD TAKE UP TODAY, MR. MAGLEBY? MR. MAGLEBY: THE COURT: NOTHING FROM US, YOUR HONOR. ALL RIGHT. WELL, THANK YOU ALL FOR YOUR

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PATIENCE.

WE'RE HAPPY TO HAVE YOU HERE, AND WE LOOK FORWARD

TO TRYING TO GET THROUGH THIS TOGETHER, SO WE'LL BE IN RECESS. MR. MAGLEBY: THANK YOU, YOUR HONOR.

(HEARING CONCLUDED AT 3:15 P.M.) * * *

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 /S/ RAYMOND P. FENLON CERTIFICATE OF REPORTER I, RAYMOND P. FENLON, OFFICIAL COURT REPORTER FOR THE UNITED STATES DISTRICT COURT, DISTRICT OF UTAH, DO HEREBY CERTIFY THAT I REPORTED IN MY OFFICIAL CAPACITY, THE PROCEEDINGS HAD UPON THE HEARING IN THE CASE OF KITCHEN, ET AL. VS. HERBERT, ET AL., CASE NO. 2:13-CV-217, IN SAID COURT, ON THE 27TH DAY OF AUGUST, 2013. I FURTHER CERTIFY THAT THE FOREGOING PAGES CONSTITUTE THE OFFICIAL TRANSCRIPT OF SAID PROCEEDINGS AS TAKEN FROM MY MACHINE SHORTHAND NOTES. IN WITNESS WHEREOF, I HAVE HERETO SUBSCRIBED MY NAME THIS 6TH DAY OF SEPTEMBER, 2013.

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