Appellate Case: 13-4178

Document: 01019199511

Date Filed: 02/07/2014

Page: 1

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

DEREK KITCHEN, individually; MOUDI SBEITY, individually; KAREN ARCHER, individually; KATE CALL, individually; LAURIE WOOD, individually; and KODY PARTRIDGE, individually, Plaintiffs-Appellees, No. 13-4178 v. GARY R. HERBERT, in his official capacity of Governor of Utah; and BRIAN L. TARBET, in his official capacity as Acting Attorney General of Utah, Defendants-Appellants.

PLAINTIFFS-APPELLEES’ UNOPPOSED MOTION TO EXCEED WORD COUNT

Pursuant to Tenth Circuit Rule 28.3, Plaintiffs-Appellees Derek Kitchen, Moudi Sbeity, Karen Archer, Kate Call, Laurie Wood, and Kody Partridge (collectively, “Plaintiffs” or “Plaintiffs-Appellees”), by and through their counsel of record, respectfully request permission to file a brief up to, but not greater than, 24,000 words in length. Defendants-Appellants do not oppose the request.

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EQCF#76 Docket Reference [10148008]

Appellate Case: 13-4178

Document: 01019199511

Date Filed: 02/07/2014

Page: 2

GROUNDS TO EXCEED WORD COUNT This appeal presents important constitutional issues that affect thousands of Utah families. The State Defendants are asking this Court to reverse the Decision and Judgment of the United States District Court for the District of Utah declaring unconstitutional Amendment 3 to the Utah Constitution, and related Utah statutes, banning same-sex couples from marriage and the State of Utah’s recognition of the marriages of same-sex couples legally married in other states. The District Court declared the Utah laws unconstitutional under both the Due Process and Equal Protection clauses of the Fourteenth Amendment of the United States Constitution, and enjoined the State Defendants from enforcing those laws. To properly address the arguments raised by the State Defendants in their opening brief will require analysis and descriptions of applicable legal authority that will exceed the 14,000 word limitation for an appellee’s brief, including up to 10,000 words in excess of that limit. Plaintiffs, while seeking this permission, will in good faith make every effort to address the issues as concisely as possible. In an unopposed motion, Defendants-Appellants sought and were granted permission by this Court to use up to 24,000 words in their opening brief. The opening brief that Defendants-Appellants filed used 21,745 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

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Appellate Case: 13-4178

Document: 01019199511

Date Filed: 02/07/2014

Page: 3

THIS REQUEST IS TIMELY This request is filed more than 14 days before the due date for Plaintiffs’ brief, which is February 25, 2014. 10th Cir. R. 28.3 (“A motion filed within 14 days of the brief’s due date must show why earlier fling was not possible.”). CONCLUSION For the reasons discussed above, Plaintiffs-Appellees respectfully request permission to file a brief up to, but not greater than, 24,000 words in length. DATED this 7th day of February, 2014.

/s/ Peggy A. Tomsic Peggy A. Tomsic James E. Magleby Jennifer Fraser Parrish MAGLEBY & GREENWOOD, P.C. 170 South Main Street, Suite 850 Salt Lake City, Utah 84101 Telephone: 801.359.9000 Facsimile: 801.359.9011 Email: tomsic@mgpclaw.com magleby@mgpclaw.com parrish@mgpclaw.com

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Kathryn D. Kendell Shannon P. Minter David C. Codell NATIONAL CENTER FOR LESBIAN RIGHTS 870 Market Street, Suite 370 San Francisco, California 94102 Telephone: 415.392.6257 Facsimile: 415.392.8442 3

Appellate Case: 13-4178

Document: 01019199511

Date Filed: 02/07/2014

Page: 4

Email: kkendell@nclrights.org sminter@nclrights.org dcodell@nclrights.org

Attorneys for Plaintiffs-Appellees

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Appellate Case: 13-4178

Document: 01019199511

Date Filed: 02/07/2014

Page: 5

ECF CERTIFICATIONS Pursuant to Section II(I) of the Court’s CM/ECF User’s Manual, the undersigned, certifies that:

1. All required privacy redactions have been made. 2. Hard copies of the foregoing motion required to be submitted to the clerk’s office exact copies of the motion as filed via ECF; and 3. The motion filed via ECF was scanned for viruses with the most recent version of ESET Endpoint Antivirus™ 5.0.2214.4 and according to the program is free of viruses. /s/ Peggy A. Tomsic___________

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Appellate Case: 13-4178

Document: 01019199511

Date Filed: 02/07/2014

Page: 6

CERTIFICATE OF SERVICE

I hereby certify that I am employed by the law firm of MAGLEBY & GREENWOOD, P.C., 170 South Main Street, Suite 850, Salt Lake City, Utah 84101, and that a true and correct copy of the foregoing PLAINTIFFS-APPELLEES’ UNOPPOSED MOTION TO EXCEED WORD COUNT IN THEIR BRIEF was delivered to the following this 7th day of February, 2014, via the Court’s CM/ECF system:

Gene Schaerr gschaerr@gmail.com Brian L. Tarbet Philip S. Lott phillott@utah.gov Stanford E. Purser spurser@utah.gov UTAH ATTORNEY GENERAL 160 East 300 South, Sixth Floor P.O. Box 140856 Salt Lake City, Utah 84114-0856 John J. Bursch jbursch@wnj.com Warner Norcross & Judd LLP 111 Lyon Street, NW. Ste. 900 Grand Rapids, Michigan 49503

Ralph Chamness rchamness@slco.org Darcy Goddard dgoddard@slco.org SALT LAKE COUNTY DISTRICT ATTORNEYS 2001 South State Street, S3500 Salt Lake City, Utah 84190-1210 Attorneys for Defendant Sherrie Swensen

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Appellate Case: 13-4178

Document: 01019199511

Date Filed: 02/07/2014

Page: 7

Monte N. Stewart stewart@stm-law.com 12550 W. Explorer Dr., Ste. 100 Boise, Idaho 83713 Attorneys for Defendants-Appellants Gary R. Herbert and Sean D. Reyes /s/ Jennifer Fraser Parrish________________ Jennifer Fraser Parrish Attorney for Plaintiffs-Appellees MAGLEBY & GREENWOOD, P.C. 170 South Main Street, Suite 850 Salt Lake City, Utah 84101

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