Case 2:14-cv-00055-DAK Document 38 Filed 04/25/14 Page 1 of 5

JONI J. JONES (7562) KYLE J. KAISER (13924) Assistant Utah Attorneys General PARKER DOUGLAS (8924) General Counsel and Chief of Staff 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: jonijones@utah.gov kkaiser@utah.gov pdouglas@utah.gov Attorneys for State Defendants

IN THE UNITED STATES DISTRICT COURT IN AND FOR THE DISTRICT OF UTAH, CENTRAL DIVISION JONELL EVANS, STACIA IRELAND, MARINA GOMBERG, ELLENOR HEYBORNE, MATTHEW BARRAZA, TONY MILNER, DONALD JOHNSON, and CARL FRITZ SHULTZ, Plaintiffs, v. Case No. 2:14-cv-00055-DAK STATE OF UTAH, GOVERNOR GARY HERBERT, in his official capacity; and ATTORNEY SEAN REYES, in his official capacity, Defendants. Judge Dale A. Kimball DEFENDANTS REPLY MEMORANDUM IN SUPPORT OF THEIR MOTION TO CERTIFY QUESTIONS OF UTAH STATE LAW TO THE UTAH SUPREME COURT

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Pursuant to DUCivR 7-1 Defendants the State of Utah, Governor Gary Herbert, and Attorney General Sean Reyes, (Defendants or the State or the Utah) by and through counsel, Joni J. Jones and Kyle J. Kaiser, Assistant Utah Attorneys General, and Parker Douglas, General Counsel and Chief of Staff, provide the following Reply Memorandum in Support of Defendants Motion to Certify Questions of Utah State Law to the Utah Supreme Court (doc. 34). Plaintiffs Response to Defendants Motion to Certify (doc. 35) provides no relevant legal basis for the Court to deny certification on Defendants Proposed Certified Question.1 Rather, Plaintiffs cast Defendants Motion as strategic, alleging that Defendants are manufacturing standing before the Utah Supreme Court and are manipulat[ing] this courts certification procedures, attempt[ing] to game the certification process, and even flout[ing] the litigation process. (Pl.s Resp. at 2, 3, 4.) As is apparent from Defendants Motion as well as Defendants Response to Plaintiffs Proposed Supplement to Motion for Preliminary Injunction (doc. 33), nothing could be further from the truth. The heart of Plaintiffs claims is that the States failure to grant marriage benefits to those marriages performed pre-stay violates the Due Process Clause of the Fourteenth Amendment. (See Pl.s Compl. (doc. 1) at 1, 104121.) Defendants therefore removed Plaintiffs case to federal court, the appropriate forum to make such a determination. ( See Not. of Removal (doc. 1) at 1.) With this action pending, at least two Plaintiffsalong with other same-sex couples who are not parties here, but who would certainly benefit from any injunction entered by
1

Defendants Proposed Certified Question is: Do same-sex couples who received marriage licenses, and whose marriages were solemnized, between December 20, 2013 and January 6, 2014, have vested property rights in their marriages which now require recognition under present Utah law? 2

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this Courtmoved forward with adoption petitions in state court. Adoption proceedings are essentially private, and the Attorney General was made aware of a few such petitions by when the court notified by the trial court. See Utah Code 78B-6-141(1) (requiring that a petition for adoption, written reports and all other documents filed with an adoption be sealed); see also (Add. C. to Ex. 1 of Decl. of Shane Marx, doc. 32-2). Despite the pendency of the federal case, and also the pendency of the preliminary injunction motion that would provide those state court petitioners the relief they desired, at least some of the adoption petitioners moved forward in state court. In some of those instancesthough the State understands, not in allstate trial court judges granted same-sex petitioners (including Plaintiffs Barraza and Milner) their requested relief and entered orders of adoption. (See [Proposed] Supplement to Mot. for Prelim. Inj. (doc. 32-1) at 2 1, 5.) The orders of adoption required the Department of Health, Office of Vital Statistics, a state agency, to take action perceived to be contrary to the plain language of Utahs laws. The Department of Health was not a party to, and did not have notice of, any adoptions, and took the only reasonable course of action it could: It sought guidance from the Utah Supreme Court to clarify its responsibilities vis--vis these orders. (See, e.g., Mem. of P. & A. in Supp. of Pet. for Extraordinary Relief, Ex. 2 to Def.s Mot. to Certify (doc. 34-2), at 5, 810.) This was not a litigation strategy, but the only reasonable course of action the Department could take, being caught between contempt sanctions on one hand, and the apparent violation of the plain text of Utah law on the other.

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Plaintiffs argue that Utah Code 78B-6-133(7) bars [the Department of Healths]2 petition to the Utah Supreme Court. (Pl.s Resp. at 3.) Plaintiffs argument is really not that the Department of Health cannot file a petition with the Utah Supreme Court, but rather that it should not win because a provision of Utah law forbids the contesting of an adoption by a person who has been served with notice of the adoption proceeding. Utah Code 78B-6133(7). Plaintiffs use a statute meant to ensure that individuals who might have an interest in a child cannot later contest the validity of an adoption,3 to argue that a state agency cannot challenge the jurisdiction of a district court to issue an order contrary to the laws of Utah. Plaintiffs arguments on the standing issue are not before this Court. Instead, the question is whether an issue of state law pending before the Supreme Court of Utah should be certified to it, to ensure consistency and fairness. Plaintiffs do not address that question, and the answer is clear: With the additional proceedings taking place before the Utah Supreme Court, certification is warranted. Finally, Plaintiffs ask the Court, once again, to issue a preliminary injunction. For the reasons stated in Defendants Opposition (doc. 20), in Defendants Response to Plaintiffs Motion to Supplement (doc. 33), and at oral argument, Plaintiffs are not entitled to a preliminary injunction. Furthermore, the disagreement among the Utah district court judges demonstrates

Plaintiffs allege that it is Defendants that have filed the petitions with the Utah Supreme Court petitioning the Court, but in fact, it is the Department of Health. The parties in this case and the petitioners before the Utah Supreme Court are not the same. (Cf. Pet. for Extraordinary Relief, Ex. 2 to Def.s Mot. to Certify (doc. 34-2), at 1.) However, the legal issues are the same. 3 See Utah Code 78B-6 -110(11) (defining the sole purpose of providing notice of an adoption is to allow an interested party to intervene and present evidence to the court relevant to the best interest of the child). 4

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Plaintiffs inability to meet the high threshold of proving substantial likelihood of success on the merits. (See Def.s Resp. to Pls. Prop. Supp. to Mot. for Prelim. Inj. (doc. 33) at 4-5.) Plaintiffs add no new argument, and the subsequent proceedings do not demonstrate entitlement to temporary injunctive relief. More importantly, public policy would not favor a blanket injunction issued now by a federal court analyzing a state court property issue, when that issue is before the highest court in the state. Should the Utah Supreme Court rule on the vested rights issue, there is a serious risk of conflicting rulings. For example, if this Court rules that there is a likelihood of success on the issue of whether same-sex couples have vested rights in their marriage licenses, but the Utah Supreme Court rules that no vested rights exist, the executive agencies of Utah would be faced with contradictory court rulings. This scenarioor even the possibility thereofwould

dramatically expand[] the cloud of uncertainty that now hangs over the lives of all the citizens of Utah, and the agents of its government. (Pl.s Resp. at 3.) Out of respect for comity, and in recognition of judicial efficiency, this Court should certify Defendants Proposed Certified Question, or, at a minimum, stay the federal case pending the outcome of the Petitions for Extraordinary Relief before the Utah Supreme Court. DATED this 25th day of April, 2014. OFFICE OF THE UTAH ATTORNEY GENERAL

/s/ Kyle J. Kaiser JONI J. JONES KYLE J. KAISER Assistant Utah Attorneys General PARKER DOUGLAS General Counsel and Chief of Staff Attorneys for Defendants 5

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JONI J. JONES (7562) KYLE J. KAISER (13924) Assistant Utah Attorneys General PARKER DOUGLAS (8924) General Counsel and Chief of Staff 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: jonijones@utah.gov kkaiser@utah.gov pdouglas@utah.gov Attorneys for State Defendants

IN THE UNITED STATES DISTRICT COURT IN AND FOR THE DISTRICT OF UTAH, CENTRAL DIVISION JONELL EVANS, STACIA IRELAND, MARINA GOMBERG, ELLENOR HEYBORNE, MATTHEW BARRAZA, TONY MILNER, DONALD JOHNSON, and CARL FRITZ SHULTZ, Plaintiffs, v. STATE OF UTAH, GOVERNOR GARY HERBERT, in his official capacity; and ATTORNEY SEAN REYES, in his official capacity, Defendants. [PROPOSED] ORDER ON PLAINTIFFS MOTION TO CERTIFY QUESTIONS OF UTAH STATE LAW TO THE UTAH SUPREME COURT AND DEFENDANTS MOTION TO CERTIFY QUESTIONS OF UTAH STATE LAW TO THE UTAH SUPREME COURT

Case No. 2:14-cv-00055-DAK Judge Dale A. Kimball

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Now before the Court are Plaintiffs Motion to Certify Questions of Utah State Law to the Utah Supreme Court (doc. 10) and Defendants Motion to Certify Questions of Utah State Law to the Utah Supreme Court (doc. 34). The parties both request that this Court certify questions of Utah state law to the Utah Supreme Court. Plaintiffs requested the following questions be certified. 1. Under Utah law, do same-sex couples who were legally married between December 20, 2013, and January 6, 2014 have vested rights in their marriage which are protected under Article I, Section 7 of the Utah Constitution? 2. Once the State of Utah recognized the marriages of same-sex couples entered into between December 20, 2013, and January 6, 2014, could it apply Utah Code 30-1-4.1 and Article I, Section 29 of the Utah Constitution to withdraw that recognition? Defendants initially opposed the certification, arguing that the answers to the questions were clear in light of the plain language of the Utah Constitution, that the questions were vague, and that the answers to such questions would not be helpful. In April 2014, after briefing on Plaintiffs motion was complete and after argument, Defendants filed their Motion to Certify (doc. 34). In that Motion, Defendants advised that a number of Utah state district court judges had granted same-sex parents adoptive rights and ordered the Utah Department of Health, Office of Vital Statistics to change the name on the adopted childrens birth certificates. Because the Department believed that doing so would violate Utahs prohibition on recognition of same-sex marriages, the Department filed Petitions for Extraordinary Relief with the Utah Supreme Court. See Utah R. App. P. 19. In those petitions, the Department argued that the adoptive parents did not have vested rights in their marriages to allow the adoptions or require the Department of Health to change the birth certificates because Utahs constitution and laws in effect prohibit the recognition of same-sex marriage. (See, e.g., Mem. of P. & A. in Supp. of Pet. for Extraordinary Relief, Ex. 2 to Defs. Mot (doc. 34-2) at 5, 810.) Thus, Defendants argue, circumstances have 2

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changed, and to ensure consistency and to promote the efficient use of judicial resources, the Court should certify a different question to the Utah Supreme Court:

Do same-sex couples who received marriage licenses, and whose marriages were solemnized, between December 20, 2013 and January 6, 2014, have vested property rights in their marriages which now require recognition under present Utah law? (Defs. Mot. (doc. 34) at 2). ANALYSIS Rule 41(a) of the Utah Rules of Appellate Procedure provides that the Utah Supreme Court may answer a question of Utah law certified to it by a court of the United States when requested to do so by such certifying court...if the state of the law of Utah applicable to a proceeding before the certifying court is uncertain. Utah R. App. P. 41(a). The certification order must state the question of law to be answered, that the question certified is a controlling issue of law in a proceeding pending before the certifying court, and that there appears to be no controlling Utah law. Id. 41(c). Courts have found that certification is appropriate when the case concerns a matter of vital public concern, where the issue will likely recur in other cases, where resolution of the question to be certified is outcome determinative of the case, and where the state supreme court has yet to have an opportunity to illuminate a clear path on the issue. State Farm Mut. Auto. Ins. Co. v. Pate, 275 F.3d 666, 672 (7th Cir. 2001). Certification protects the interests of comity and federalism, Ohio Cas. Ins. Co. v. Unigard Ins. Co., 564 F.3d 1192, 1198 (10th Cir. 2009), and is appropriate when it will conserve time, energy, and resources of the parties as well as of the court itself. Walker v. BuildDirect.com Techs., Inc., 733 F.3d 1001, 1005 (10th Cir. 2013). 3

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This case clearly presents a unique situation. Couples received marriage licenses, and their marriages were solemnized, when the law of the land barred Utah from enforcing its statutes and constitutional amendment prohibiting same-sex marriage as well as the recognition of any union other than opposite sex marriage. That prohibition was removed when the United States Supreme Court stayed the injunction, and Utah law reverted to the status quo ante. Both parties have cited cases about the nature of a solemnized marriage in general, see, e.g., Walters v. Walters, 812 P.2d 64, 68 (Utah Ct. App. 1991); State v. Giles, 966 P.2d 872, 877 (Utah Ct. App. 1998), and that illegal marriages are void ab initio, see, e.g., State v. Chaney, 989 P.2d 1091, 1096 (Utah Ct. App. 1999); Van Der Stappen v. Van Der Stappen, 815 P.2d 1335, 1338 (Utah Ct. App. 199). However, neither one precisely defines the scope of the rights asserted here, that is, rights in a marriage license issued based on a non-final federal court order subject to appeal. Plaintiffs questions refer to rights vested under the Utah Constitution. Defendants are correct that those questions appear to be answered plainly by Article I, Section 29 whatever due process rights plaintiffs may have under the Utah Constitution, such rights must be read against the limitations placed by Article I, Section 29, the more specific and latter-enacted constitutional amendment. E.g., 16 C.J.S. Constitutional Law 68; Jackson v. Dravo Corp., 603 F.2d 156, 157 (10th Cir. 1979) (The general rule is that where an amendment to a constitution is in conflict or in anywise modifies a prior provision of the constitution, the amendment controls.); City of Albuquerque v. N.M. State Corp. Commn, 93 N.M. 719, 721 (1979) (recognizing that when constitutional provisions conflict, the specific prevails over the general and the later prevails over the earlier, in determining whether a city or a corporation commission

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could set rates for transportation). Plaintiffs questions as presented in their motion need not be certified. The issue of whether Plaintiffs possess a fully vested and currently enforceable property interest in their marriage license, as described above, is a question that has not been decided by Utah courts. Furthermore, because the issue appears to be presented to the Utah Supreme Court in the petitions for extraordinary writs filed by the Utah Department of Health, interests of judicial efficiency and comity are implicated. Should this Court and the Utah Supreme Court come to opposite conclusions on the question, different agents and agencies within Utah may be placed in the untenable position of deciding whether to comply with a federal or state supreme court order. While certification may not have been necessary when Plaintiffs Motion for Preliminary Injunction, and Plaintiffs Motion to Certify were heard, it is clear that it is warranted now. CONCLUSION Based on the above reasoning, Defendants Motion to Certify Questions of Utah State Law to the Utah Supreme Court (doc. 34) is GRANTED and Plaintiffs Motion to Certify Questions of Utah State Law to the Utah Supreme Court (doc. 10) is DENIED AS MOOT. This court requests the Utah Supreme Court to answer the following certified question, if it elects to do so: Do same-sex couples who received marriage licenses, and whose marriages were solemnized, between December 20, 2013 and January 6, 2014, have vested property rights in their marriages which now require recognition under present Utah law?

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As a result of this courts determination to certify this question to the Utah Supreme Court, this court STAYS its ruling on Plaintiffs Motion for Preliminary Injunction (doc. 8) and Defendants Motion for Partial Dismissal (doc. 22). All other proceedings in this case are likewise STAYED until the Utah Supreme Court rules on the certification order. Pursuant to Rule 41(d) of the Utah Rules of Appellate Procedure, the Clerk of Court shall transmit a copy of this certification order, under this courts official seal, to the Utah Supreme Court. The Clerk of Court shall also certify a copy of any portion of the record in this case as may be directed by the Utah Supreme Court. IT IS SO ORDERED.

Dated:

By: Dale A. Kimball Senior District Judge United States District Court District of Utah

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Approved as to form: OFFICE OF THE UTAH ATTORNEY GENERAL

/s/ Kyle J. Kaiser JONI J. JONES KYLE J. KAISER Assistant Utah Attorneys General PARKER DOUGLAS General Counsel and Chief of Staff Attorneys for Defendants