PARKER DOUGLAS (8924

)
Utah Federal Solicitor and Chief of Staff
JONI J. JONES (7562)
KYLE J. KAISER (13924)
Assistant Utah Attorneys General
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: pdouglas@utah.gov
jonijones@utah.gov
kkaiser@utah.gov

______________________________________________________________________________

IN THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT


JONELL EVANS, STACIA IRELAND,
MARINA GOMBERG, ELLENOR
HEYBORNE, MATTHEW BARRAZA,
TONY MILNER, DONALD JOHNSON,
and CARL FRITZ SHULTZ,

Plaintiffs/Appellees,
v.

STATE OF UTAH; GOVERNOR GARY
HERBERT, in his official capacity; and
ATTORNEY SEAN REYES, in his
official capacity,

Defendants/Appellants.





Reply Brief in Support of
Motion for Enlargement
of Time to File Opening
Brief



Case No. 14-4060




Appellate Case: 14-4060 Document: 01019297925 Date Filed: 08/20/2014 Page: 1
[Docket Reference Number 10199972]

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Pursuant to Rule 26(b) of the Federal Rules of Appellate Procedure and Tenth
Circuit Rule 27.4, counsel for Appellants Gary R. Herbert and Sean D. Reyes (“Utah”
or “Defendants”) submit this reply brief in support of their motion to the Court for a
30-day enlargement of time, up to and including October 22, 2014, for Appellants to
file their opening brief.
INTRODUCTION
Utah has never disputed that Plaintiffs genuinely feel subjected to hardship in
this matter, and Defendants never would. However, as Utah pointed out in briefing
before the Supreme Court, Plaintiffs themselves acknowledged no concrete or
ongoing irreparable harm: They maintained “no one knows what the next twelve
months (or more) may bring” Plaintiffs’ way, and Plaintiffs cannot assume
irreparable harm as no deprivation of constitutional rights has yet been finally
determined. Pets.’ Reply Mem. in Supp. of Emergency Application to Stay Prelim.
Inj. Pending Appeal at 9-10, Herbert et al. v. Evans et al., 2014 WL 3557112, 83
U.S.L.W. 3073 (quoting Resps.’ Br. at 25). Uncertainty and what Plaintiffs have
repeatedly referred to as “legal limbo” is the nature of all non-final litigation. Utah
respects and recognizes that this state of affairs has an effect on Plaintiffs, and has
repeatedly acknowledged that it seeks orderly dispositions of all issues in this case as
they are of obvious importance to all Utahns.
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Nonetheless, it is a fact that opposing counsel has never addressed the equally
true proposition in the balancing harms analysis: “any time a State is enjoined by a
court from effectuating statues enacted by the representatives of its people, it suffers
a form of irreparable injury.” New Motor Vehicle Bd. v. Orrin W. Fox Co., 434 U.S.
1345, 1351 (1977) (Rehnquist, J., in chambers); accord Maryland v. King, 133 S. Ct.
1, 3 (Roberts, C.J., in chambers); Planned Parenthood of Greater Tex. Surgical Health
Servs. v. Abbott, 134 S. Ct. 506, 506 (2013) (Scalia, J., concurring in denial of
application to vacate stay). The possible harms posed by the preliminary injunction
the district court fashioned in this matter are wide ranging, as the district court did
not limit its order to named Plaintiffs, but ordered that Utah officials immediately
recognize all of the interim marriages entered into by same-sex couples between the
district court’s decision in Kitchen v. Herbert, 961 F. Supp. 2d 1181 (D. Utah 2013), on
December 20, 2013 and the Supreme Court’s stay of that decision on January 6, 2014.
The issue of “Whether the Fourteenth Amendment to the United States Constitution
prohibits a state from defining or recognizing marriage only as the legal union
between a man and a woman” is the precise question Utah recently presented to the
Supreme Court for certiorari in Kitchen v. Herbert, __ F.3d __, 2014 WL 2868044
(10th Cir. 2014), petition for cert. filed (Aug 05, 2014) (No. 14-124), and the
recognition question is central here as it still is in Kitchen.
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While Plaintiffs’ counsel puts much emphasis on the district court’s
findings—which Utah disputes on this appeal—opposing counsel completely neglect
that the Supreme Court necessarily considered the equities in the full briefing
regarding the stay pending appeal, which consisted of an opening brief of roughly
thirty pages, Plaintiffs’ response of approximately the same length, and Utah’s reply
brief of twelve pages. After Justice Sotomayor referred the matter to the entire
Court, the Supreme Court found on the questions posed to this Court by this appeal
of the district court’s application of a preliminary injunction in this matter: “(1) a
reasonable probability that four Justices will consider the issue sufficiently
meritorious to grant certiorari; (2) a fair prospect that a majority of the Court will
vote to reverse the judgment below; (3) a likelihood irreparable harm will result from
denial of the stay.” Hollingsworth v. Perry, 558 U.S. 190 (2010) (per curium). “In
close cases the Circuit Justice or the Court will balance the equities and weigh the
relative harms to the applicant and to the respondent.” Id. (citing Lucas v.
Townsend, 486 U.S. 1301, 1304 (1988) (Kennedy, J., in chambers)). On application
for stay, a Circuit Justice must “try to predict whether four Justices would vote to
grant certiorari should the Court of Appeals affirm the District Court order without
modification; try to predict whether the Court would then set the order aside; and
balance the so-called ‘stay equities.’” San Diegans for Mt. Soledad Nat’l War
Memorial v. Paulson, 548 U.S. 1301, 1302 (2006) (Kennedy, J., in Chambers)
Appellate Case: 14-4060 Document: 01019297925 Date Filed: 08/20/2014 Page: 4

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(quoting INS v. Legalization Assistance Project of Los Angeles Cnty Fed’n of Labor,
510 U.S. 1301, 1304 (O’Connor, J., in chambers). Thus, as Justice Sotomayor
referred the stay on appeal in this matter to the entire Court, the Court considered
the harms and found they weighed in favor of Utah, found that four justices would
vote to grant certiorari should this Court simply affirm the district court, and found a
fair prospect that a majority of justices would vote to reverse the district court’s grant
of preliminary injunction in this matter.
ARGUMENT
Defendants do not dispute that, under the applicable rule of this Court,
extensions are generally “disfavored.” 10th Cir. R. 27.4(A). Notwithstanding,
one-time, 30-day extensions are routinely granted by the Clerk of this Court. Such a
modest extension is merited in this matter.
Opposing counsel first argues the Motion to Extend did not state with
specificity “why other associated counsel cannot prepare the brief for timely filing or
relieve movant’s counsel of the other litigation.” Rule 27.4(D)(1)(d). In spite of
opposing counsels’ speculation regarding the possible capacities of the Office of the
Utah Attorney General, and their estimation that other counsel in that office could
adequately prepare the brief, Defendants are nonetheless entitled to choose which
counsel should represent them in this appeal. Undersigned counsel was present in
briefing and in argument for all stages of this matter, from initial arguments through
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moving for the Supreme Court stay, and this Court recognizes the importance of
continuity of counsel. cf. United States v. Banks, ___F.3d ___, 2014 WL 3805481, at
*5 (noting general proposition under federal Speedy Trial Act that continuity of
counsel is an appropriate consideration). As it is counsel’s practice to argue only
briefs that counsel prepares himself, opposing counsel’s proposition that others draft
the brief and undersigned counsel argue the case to the Court is not an acceptable or
practicable alternative for Defendants.
Regarding undersigned counsel’s ability to timely prepare the brief on the
current schedule, the motion noted that counsel has a brief due in Ute Tribe v. Utah
et al., 14-4028 &14-4031, that is complex and due to this Court September 3, 2014.
This Court can take judicial notice of the fact that counsel of necessity requested and
was granted a 30-day extension in that matter, as this Court can take judicial notice
of its docket. During that time, counsel was one of the primary drafters and filing
counsel in the petition for writ of certiorari in Kitchen v. Herbert, __ F.3d __, 2014 WL
2868044 (10th Cir. 2014), petition for cert. filed (Aug 05, 2014) (No. 14-124). As the
dates suggest, during the time this Court allowed counsel for extension in Ute Tribe,
counsel prepared the writ of certiorari in Kitchen, having just completed the briefing
to the Supreme Court for a stay in the instant case, continued preparing the appeal
in the Ute case, as well as handling other matters and performing everyday duties as
Utah Federal Solicitor and Chief of Staff to the Utah Attorney General. In short,
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counsel’s instant request is not for sloth or dawdling, but motivated by a desire to
provide this Court with the consistent standard of advocacy this important case
merits.
As for why a short extension in this matter should be granted limited priority,
the same facts apply: counsel was already granted an extension by the Court in
another case and the Court is well-aware of the September 3 deadline for briefing Ute
Tribe v. Utah et al., 14-4028 &14-4031. Counsel has also noted that depositions in
that matter are scheduled for September 5 and 8, and a trial brief is due as well
immediately thereafter. Be that as it may, opposing counsel raises the fair question
regarding time constraints after September 8, 2014. On that issue, the Court can
also take judicial notice of the fact that because counsel filed the petition for writ of
certiorari in Kitchen on August 5, 2014, the response to that petition will be filed by
September 5, 2014 and counsel will then for the next two weeks be involved in
drafting, editing and filing a reply in support of the petition for writ of certiorari in
that matter. Thus, the time for that reply roughly coincides with the current date
for the opening brief in this matter, September 22, 2014.
Regarding the complexity of the case at hand justifying the requested
extension, undersigned counsel submits that given the aforementioned scheduling, a
30-day extension, which is often given as a matter of course, is indeed a modest
request. While opposing counsel may assume familiarity with the law and facts of
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the case, undersigned counsel would merely point to the fact that this case presents
novel questions of both federal and state law, questions that are novel enough that in
spite of this Court’s denial of a longer stay request, and the district court’s
conclusions in its order for preliminary injunction, the Supreme Court nonetheless
on its grant of the petition for stay disagreed with the analysis below to the extent
that it found that should the district court be affirmed, four justices would likely vote
to grant certiorari and there exists the potential that a majority of justices would vote
to reverse the decision below. Given that conflict in judicial perspectives, opposing
counsel cannot credibly and seriously maintain that this matter is not complex.
The preliminary injunction at issue raises not only the issues previously
mentioned, but as the district court did not limit its injunction to the named parties,
and instead fashioned the injunction such that it is applicable to all interim same-sex
marriages that took place between the district court’s decision in Kitchen enjoining
enforcement of Utah constitutional and statutory provisions and the Supreme
Court’s stay of that injunction, the present case also presents this Court with a
complex question on the nature of a preliminary injunction’s proper scope as well.
Counsel submits the bare posture of the case as just outlined makes a sufficient
showing of complexity such that a modest extension is warranted given the present
conditions and posture of this case.

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CONCLUSION
For the above mentioned reasons, Utah requests that this Court grant the
motion for a 30-day enlargement of time, to and including Wednesday, October 22,
2014, for Defendants to file their opening brief in this appeal.
DATED this 20th day of August, 2014.

OFFICE OF THE UTAH ATTORNEY GENERAL


Parker Douglas
PARKER DOUGLAS
Utah Federal Solicitor
Counsel for Defendants
Appellate Case: 14-4060 Document: 01019297925 Date Filed: 08/20/2014 Page: 9

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CERTIFICATE OF SERVICE


Pursuant to Section II(I) of the Court=s CM/ECF User=s Manual, the undersigned
certifies that all required privacy redactions have been made and this document was
scanned for viruses with the most recent version of Microsoft Security Essentials v.
2.1.111.6.0, and, according to the program, is free of viruses.

The undersigned also certifies that on August 20, 2014, a true, correct and complete
copy of this document was filed with the Court and served on the following via the
Court=s ECF system:

Erik Strindberg
Lauren I Scholnick
Kathryn K. Harstad
Rachel E. Otto
STRINDBERG & SCHOLNICK, LLC
675 East 2100 South, Ste. 350
Salt Lake City, UT 84106

John M. Mejia
Leah M. Farrell
ACLU of Utah
355 North 300 West
Salt Lake City, Utah 84103

Peggy Wheeler-Estrada





Appellate Case: 14-4060 Document: 01019297925 Date Filed: 08/20/2014 Page: 10

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