Appellate Case: 13-4178

Document: 01019224663

Date Filed: 03/27/2014

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UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

DEREK KITCHEN, individually, et. al. Plaintiffs - Appellees, v. GARY R. HERBERT, in his official capacity as Governor of Utah, et. al., Defendants - Appellants, and

MOTION FOR RECONSIDERATION

No. 13-4178 SHERRIE SWENSEN, in her official capacity as Clerk of Salt Lake County, Defendant.

NOW COMES: Duane Morley Cox, as Amicus Curiae, requesting the Court

RECONSIDER the denial of his "Motion To Participate In Oral Arguments In

Support of Utah's Constitutional Amendment No. 3."- Denied 24 Mar 2014.

BACKGROUND: A. Amicus properly and timely filed his Motion to Participate In Oral

Arguments.
B. Amicus in his Motion to Participate properly noted that the Court Below

was not properly briefed on religious impacts. Pg 1

Docket Reference Number: [10161186]

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C.

Amicus indicated that his Amicus Brief was properly before the Court and

cited five grounds which were related to negative Religious impacts that would result from the Decision of the Court Below. D. Amicus properly argued that his five issues were vital to the public interest

and that they needed to be fully argued in order to avoid manifest injustice to himself and others of similar religious persuasion and belief. E. Amicus properly noted that these five grounds had not been briefed or

argued by either the plaintiffs or the state of Utah. F. Amicus respectfully cited the lOth Circuit's own precedents holding that: "Moreover, appellate courts MAY address a waived issue when it promotes the public interest or is necessary to avoid manifest injustice." Bylin v. Billings, 568 F.3d 1224, 1231 )lOth Cir. 2009); Sussman v. Patterson, 108 F.3d 1206, 1210 (lOth Cir. 1997)" Reply Brief, Pg 41, Footnote 19 [Emphasis added] G. And Amicus properly relied upon the exception granted by Fed. R. App.

Rule 29(g): "An amicus curiae MAY participate in oral argument only with the court's permission." F. R. App. Rule 29 [Emphasis added] JUSTIFICATION FOR REVERSAL OF ORDER: It is to be noted that the precedents allowing the Court to address religious issues that may have been waived by the failure of the Court below to assure that they were properly briefed and argued - is predicated upon the term "MAY". Pg2

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And it is also noted that exception of Rule 29(g) - is also predicated upon the term "MAY". Now in normal usage the term "MAY" is permissive while the term
"SHALL" is peremptory or mandatory.

But the U.S. Supreme Court has held that this normal convention is invalid when the term "MAY" is used in legislation or in equivalent language which must of course include Federal Rules and Court precedents, and that when the public asks for that which "MAY" be granted, it becomes the duty of those empowered (this Court) to grant the request. "The conclusion to be deduced from the authorities is, that where power is given to public officers, in the language of the Act before us, or in equivalent language- whenever the public interest or individual rights call for its exercise - The language used, though permissive, is in fact peremptory. What they are empowered to do for a third person is given not for their benefit but for his. It is placed with the repository to meet the demands of justice. It is given as a remedy to those entitled to invoke its aid, and who would otherwise be remediless. In all cases, it is held that the intent of the legislature, which is the test, was not to devolve a mere discretion, but it imposes 'a positive and absolute duty." The Board of Supervisors of Rock Island County v. United States on Relation of the State Bank, 18 L.Ed. 423 (U.S. Sup. Ct. 1847) [Emphasis added] Surely, where 63% ofUtah's population is of the same Faith as Amicus (1021 data, www.rickety.us/lds/us/ ), where the majority of adult members of this Faith have made the same Covenant with God to sustain God's plan for the marriage of a man to a woman in return for a "Kingdom" in the highest level of the Pg3

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Celestial Kingdom where God will dwell and share all his powers (Cox Amicus Brief, Pgs 1-3), which Covenant Amicus made on 5 August 1960 (Cox Amicus BriefPg 3), where as many as 30% of the Utah population (of his faith and others like the three Clerks of other faiths in New York as cited in Cox Amicus Brief, Pg

14) who are eligible to seek and hold office may be disqualified by the "Religious
Test" which Amicus cited in his Brief(Cox Amicus Brief, Pgs 14-15)- justice is not served by denying Amicus the right to Argue these five issues at Oral Arguments. And just as surely, the State of Utah has a firm and abiding interest in maximizing the pool of possible candidates, and not having them withdraw because of a "Religious Test" imposed by the Decision of the Court below in violation of Article VI of the U.S. Constitution. To deny these issues to be heard at Oral Argument would leave Amicus and millions of individuals of similar religious persuasion and belief remediless in this national debate which may alter their lives forever and in the case of Utah seriously diminish the participation of otherwise worthy individuals in public service. And to deny participation by Amicus would be contrary to the Precedent of the U.S. Supreme Court in "Supervisors".

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Appellate Case: 13-4178

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UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

DEREK KITCHEN, individually, et. al. Plaintiffs - Appellees, v. GARY R. HERBERT, in his official capacity as Governor of Utah, et. al., Defendants - Apppellants, and

CERTIFICATE OF SERVICE

No. 13-4178 SHERRIE SWENSEN, in her official capacity as Clerk of Salt Lake County, Defendant.

I, Duane Morley Cox, as Amicus Curiae, do swear that on 25 March 2014, that I did mail to the Tenth Circuit Court and to the following other individuals listed below a true and correct copy of the attached Motion For Reconsideration by first class paid mail, postage prepaid.

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Gene Schaerr, Special Assistant Utah Attorney General Brian L. Target, Chief Deputy Utah Attorney General, Stanford E. Purser, Assistant Attorney General Parker Douglas, Chief Deputy Attorney General PhillipS. Lott, Assistant Utah Attorney General P.O. Box 140856 160 East 300 South Salt Lake City, Utah 84114-0856 801-366-0100 spurser@utah.gov Peggy A. Tomsic James E. Magleby Jennifer Fraser Parrish MAGLEBY & GREENWOOD. P.C. 170 South Main Street, Suite 850 Salt Lake City, Utah 84101 Ralph Chamness Darcy M Goddard Salt Lake County District Attorneys 2001 South State, S3700 Salt Lake City, Utah 84190 Kathryn D. Kendell Shannon P. Minter David C. Codell National Center for Lesbian Rights 870 Market St., Ste. 370 San Francisco, CA 94102 Jennifer L. Bursch, Amici Curiae Institute for Marriage and Public Policy Suite 100 24910 Las Brisas Road Murrieta, Calif. 92562 tomsic@mgplaw.com magleby@mpglaw .com parrish@mgplaw.com

rchamness@slco.org dgoddard@slco.org

kkendall@nclrights.org sminter@nclrights.org dcodell@nclrights. org

jbursch@faith-freedom. com

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John J. Bursch Warner Norcross & Judd LLP Ste. 900 111 Lyon Street, NW. Grand Rapids, MI. 49503 Monte N. Stewart Ste. 100 12550 W. Explorer Dr. Boise, Id. 83 713

jbursch@wnj .com

stewart@stm-law .com

Date: 25 March 2014

Duane Morley Cox,~ Se, Amici Curiae

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