1:15-cv-00009 #21

1
Mitchell F. Thompson, Esq.

R. Todd Thompson, Esq.
Thompson Gutierrez & Alcantara, P.C.
238 Archbishop Flores Street, Suite 801

Hagatfia, Guam 96910
Telephone: (671)472-2089
Facsimile: (671)477-5206
William D. Pesch, Esq.
DISTRICT COURT OF GU^M

MAY 0 7 2015
JEANNE G. QUINATA
Clerk of court
Guam Family Law Office

6
173 Aspinall Avenue, Suite 203

Hagatfia, Guam 96910
Telephone: (671) 472-8472
Facsimile: (671)477-5873
8
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Attorneys for Plaintiffs Kathleen M. Aguero and

Loretta M. Pangelinan
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IN THE DISTRICT COURT OF GUAM
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TERRITORY OF GUAM
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KATHLEEN M. AGUERO and LORETTA
CIVIL CASE NO. 15-00009
M. PANGELINAN,
13
Plaintiffs,
14
15
EDDIE BAZA CALVO in his official capacity as

16
Governor of Guam; and CAROLYN GARRIDO
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in her official capacity as Registrar in the Office

of Vital Statistics, Department of Public
Health and Social Services,
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Defendants.
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PLAINTIFFS' OPPOSITION
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TO DEFENDANTS'
23
MOTION FOR A STAY
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ORIGINAL
Case 1:15-cv-00009 Document
21 Filed 05/07/15 Page 1 of 23
Case 1:15-cv-00009 Document 21 Filed 05/07/15 Page 2 of 23

TABLE OF CONTENTS
INTRODUCTION
PROCEDURAL POSTURE OF CASE
LEGAL DISCUSSION
5
I.
6
7
DEFENDANTS' MOTION TO STAY SHOULD

BE DENIED BECAUSE A STAY WOULD
RESULT IN "FURTHER HARM" AND
"ONGOING VIOLATION" OF PLAINTIFFS'
CONSTITUTIONAL RIGHTS, THE

GOVERNMENT WILL NOT SUFFER ANY
HARDSHIP OR INEQUITY, AND A STAY

WOULD CONTRAVENE THE NINTH
CIRCUIT'S CLEAR MANDATE IN LATTA
10
A.
While District Courts have Inherent
Discretion to Manage their Dockets,

District Courts Cannot Disregard
Binding Circuit Authority, Regardless
of any Other Pending Proceedings
11
12
13
B.
14
15
C.
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As in the "Ordot Dump" Case, the

Stay Requested here would be Harmful
to Guam Residents and Delay the
Government's Compliance with the Law.
Defendants Have Failed to Meet their
Burden of Justifying a Stay

17
D.
18
Defendants' Request for a Stay of the

Proceedings in this Case is at Odds with
the Actions of the Ninth Circuit and the
Supreme Court Denying Similar Requests,

Despite the Supreme Court's Consideration
ofObergefell
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20
E.
21
11
Defendants Fail to Show why Expedited

Relief Should Not Instead be Granted
14
22
23
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II.
DEFENDANTS' REQUEST FOR A 14DAY EXTENSION IS UNTIMELY

AND DISINGENUOUS
CONCLUSION
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7
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15
17
TABLE OF AUTHORITIES
2
3
4
CASES
PAGE(S)
Am. Trucking Ass'ns v. Smith.
496 U.S. 167 (1990)
11
Armstrong v. Brenner.
135 S. Ct. 890 (U.S. Dec. 19,2014)
13
5
6
7
8
9
10
Berry v. Epps.
506 F.3d 402 (5th Cir. 2007)
Campaign for S. Equal, v. Bryant.

2014 WL 6680570 (S.D. Miss. Nov. 25, 2014)
10
Conde-Vidal v. Rius-Armendariz,
No. 14-2184 (1st Cir. Apr. 14, 2015)
12
11
Condon v. Haley.
12
13
14
15
16
2014 WL 5897175 (D. S.C. Nov. 12, 2014)
14
DeBoer v. Snyder.
772 F.3d 388 (6th Cir. 2014)
3, 11
Does v. City of Indianapolis.

2006 U.S. Dist. LEXIS 72865 (S.D. Ind. Oct. 5,2006)
Elrod v. Burns.
427 U.S. 347 (1976)
10
17
Frontiero v. Richardson.
18
411 U.S. 677 (1973)
19
Guzzo v. Mead.
20
21
2014 WL 5317797 (D. Wyo. Oct. 17,2014)
14
In re Ford Motor Co. Speed Control Deactivation Switch

Products Liab. Litie.. 664 F. Supp. 2d 752 (E.D. Mich. 2009),
order clarified on reconsideration (Jan. 4.2010)
11
22
Klein v. City of San Clemente,

23
584 F.3d 1196 (9th Cir. 2009)
10
in
24
Kook v. Cate.
2013 WL 4041363 (CD. Cal. June 14,2013)
Landis v. N. Am. Co..

3
299 U.S. 248 (1936)
Latta v. Otter.
779 F.3d 902 (9th Cir. Jan 9,2015)
Lawson v. Kelly.
6,7
771 F.3d 456 (9th Cir. 2014), pet. for reh 'g en banc denied,
passim
No. 14-3779 (8th Cir. Apr. 29,2015)
12
Leyva v. Certified Grocers of California. Ltd..

8
593 F.2d 857 (9th Cir. 1979)
Loving v. Virginia.
388 U.S. 1(1967)
10
11
12
Majors v. Home.
141 F. Supp. 3d 1313 (D. Ariz. 2014)
14
Marie v. Moser.
2014 WL 5598128 (D. Kan. Nov. 4,2014)
15
13
Martin v. Naval Criminal Investigative Serv.. (NCIS),

14
15
2012 WL 1570840 (S.D. Cal. May 3,2012)
10
McClellan v. Young.
421 F.2d 690 (6th Cir. 1970)
16
17
Metrophones Telecommunications. Inc. v. Global Crossing Telecommunications. Inc..

2003 WL 25511850 (W.D. Wash. Dec. 16, 2003), affd in part,
rev'd in part on other grounds. 423 F.3d 1056 (9th Cir. 2005),
18
affd. 550 U.S. 45 (2007)
19
Nelson v. NASA.
5,11
530 F.3d 865 (9th Cir. 2008)
10
20
Newsome v. Albermarle Cntv. Sch. Bd..

21
354 F.3d 249 (4th Cir. 2003)
22
Obergefell v. Hodges,
10
Docket 14-556 (U.S. 2015)
1,2,12, 13
23
iv
24
Strange v. Searcy.
135 S. Ct. 940 (U.S. Feb. 9, 2015)
13
Stuart v. Huff.
3
834 F. Supp. 2d 424 (M.D.N.C. 2011)
Tanford v. Brand,
883 F. Supp. 1231 (S.D. Ind. 1995)
10
10
U.S. v. Windsor.
6
U.S.
, 133 S.Ct. 2675 (2013)
United States v. Guam,
No. CV 02-00022,2013 WL 5809289 (D. Guam Oct. 29,2013),

appeal dismissed (Dec. 13,2013), appeal dismissed, 596 F. App'x
562 (9th Cir. 2015)
11
7, 8
Watson v. Memphis.
10
373 U.S. 526 (1963)
11
Yong v. I.N.S..
208 F.3d 1116 (9th Cir. 2000)
4,14
12
Zvme Solutions. Inc. v. InfoNow Corp..

13
2013 WL 6699997 (N.D. Cal. Dec. 19,2013)
6, 7
14
OTHER AUTHORITIES
PAGE(S)
15
Martin Luther King, Jr., "Letter from Birmingham Jail" (1963)

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1
2
INTRODUCTION
This memorandum responds to and opposes the Defendants' May 4, 2015 "Motion to
Hold Case in Abeyance" (hereinafter "Motion to Stay").
The instant action is a civil rights case alleging that Plaintiffs have been denied equal
protection and due process under federal law by being denied the right to marry. The facts are
undisputed. The sole issue in the case is the legal question of whether a jurisdiction within the
Ninth Circuit may permissibly deny a same-sex couple the right to marry solely based on the
gender of the members of the couple. That issue has already been squarely addressed and
disposed of by controlling Circuit precedent holding that laws barring same-sex couples from
10
marriage violate the equal protection guarantee of the Fourteenth Amendment. Latta v. Otter.
11
771 F.3d 456, 464-65 (9th Cir. 2014), pet. for reh 'g en banc denied, 779 F.3d 902 (9th Cir. Jan
12
9,2015).
13
Based on this indisputably controlling Circuit authority and the Defendants' failure to
14
dispute any of the facts, or even the applicability of that authority, the instant case is capable of
15
immediate resolution. Contrary to the Defendants' assertion, there is nothing "complex" about
16
this case. Indeed, scores of courts have addressed this issue; and the overwhelming majority of
17
them have held laws such as Guam's to be unconstitutional. More importantly, the issue at
18
hand involves fundamental constitutional rights and, as such, any further delay is itself a harm
19
inflicted on Plaintiffs and all those similarly situated.
20
Unable to dispute the applicability of controlling Circuit precedent to the instant case,
21
Defendants have regrettably resorted to delay tactics. They request a stay of these proceedings
22
pending a ruling from the U.S. Supreme Court in Obergefell v. Hodges. Docket 14-556 (U.S.
23
2015). Yet Defendants have utterly failed to meet their burden to show that a stay is warranted
1
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sufficient to overcome settled Circuit law and the immediate irreparable injury posed to
Plaintiffs' and other similarly situated same-sex couples currently being denied the
fundamental right to marry.
For these and other reasons, set forth below, Plaintiffs oppose the issuance of any stay;
and they renew their request for expedited resolution of their pending motions for summary
judgment and preliminary injunction.
PROCEDURAL POSTURE OF CASE
The instant action was initiated by a Complaint filed on April 13, 2015, which was
accompanied by a motion for summary judgment and a motion for preliminary injunctive relief,
10
together with supporting memoranda of law. On April 16, 2015, Plaintiffs filed a First
11
Amended Request for an Expedited Ruling on the pending motions based on intervening
12
developments, namely, the Attorney General of Guam's memorandum to Defendant
13
Department of Public Health and Social Services advising that "the holding in Latta v. Otter is
14
controlling law rendering Guam's statute prohibiting same-gender marriages unenforceable
15
until such time that the Supreme Court of the United States alters the holding of the Ninth
16
Circuit Court of Appeals." Meanwhile, as noted in Plaintiffs' April 16, 2015 filing, Defendants
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continue to enforce Guam's statutes purporting to restrict issuance of marriage licenses to
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"opposite sex" couples "until further notice."
19
The Defendants have yet to answer the Complaint. Neither have they responded to
20
Plaintiffs' motion for summary judgment, motion for preliminary injunctive relief, or First
21
Amended Request for an Expedited Ruling on the pending motions. Instead, on the date they
22
should have answered and responded, Defendants merely filed a motion to stay these
23
proceedings pending the outcome of Obergefell. or in the alternative, for a continuance of 14

2
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extension of time, and renew their request for an expedited ruling.
days to respond to the pending motions. Plaintiffs oppose the motion to stay, oppose any
I.
LEGAL DISCUSSION
DENIED BECAUSE A STAY WOULD RESULT IN

"FURTHER HARM" AND "ONGOING VIOLATION"
DEFENDANTS'
MOTION
TO
STAY
SHOULD
BE
OF PLAINTIFFS' CONSTITUTIONAL RIGHTS, THE

7
GOVERNMENT WILL NOT SUFFER ANY HARDSHIP
OR INEQUITY, AND A STAY WOULD CONTRAVENE

8
THE
NINTH
CIRCUIT'S
CLEAR
MANDATE
IN
LATTA
By seeking a stay, the Defendants would have this honorable Court simply look the
10
other way at a flagrant violation of constitutionally-protected civil rights. Specifically, they

11
would have the Court halt all proceedings in this case based on mere and misguided speculation
12
about what the U.S. Supreme Court might or might not do in two months' time. By requesting
13
a stay of the action, Defendants appear all too anxious to run out the clockto avoid
14
acquiescing to controlling Ninth Circuit precedent for as long as possible, based on the
15
slimmest reed of hope that such precedent might soon vanish.

16
While reasonable people can debate whether such a "wait and see" approach amounts to
17
good leadership; there can be no debate that a "wait and see" approach amounts to bad law, at
18
least when fundamental constitutional rights are at stake. That is, because "whenever the
19
expansion of a constitutional right is proposed, 'proceed with caution' seems to be the universal
20
mantra of the opponents." DeBoer v. Snyder. 772 F.3d 388, 435 (6th Cir. 2014) (Daughtrey, J.
21
dissenting). But similar arguments were made in Loving v. Virginia. 388 U.S. 1 (1967) and
22
Frontiero v. Richardson. 411 U.S. 677 (1973), and had "the Court [] listened to the argument,
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we would, of course, still be waiting." Id. Like so many others before them, "For years now
[Plaintiffs] have heard the word 'Wait'! . . . [But hjuman progress never rolls in on wheels of
inevitability ... [and] time itselfbecomes an ally of the forces of social stagnation." Id. (citing
Martin Luther King, Jr.'s "Letter from Birmingham Jail" (1963)).
deprivation of constitutional rights calls for prompt rectification." Watson v. Memphis. 373
U.S. 526, 532 (1963).
Accordingly, "any
Defendants have utterly failed to meetor even discusstheir burden of showing their
entitlement to a stay of the proceedings in this case. Nor have they shown good cause for an
extension of time. As a result, Defendants' requests should be denied.
11
While District Courts have Inherent Discretion to Manage their Dockets,

District Courts Cannot Disregard Binding Circuit Authority, Regardless of
any Other Pending Proceedings
12
Contrary to the Defendants' urgings, courts do not abdicate ruling on constitutional
13
issues just because the Supreme Court is poised to address the issue at a later date. As the
14
Ninth Circuit has observed, once a federal circuit court issues a decision on point, "the district
15
courts within that circuit are bound to follow it and have no authority to await a ruling by
16
the Supreme Court before applying the circuit court's decision as binding authority."
17
Yone v. I.N.S.. 208 F.3d 1116, 1119, n. 2 (9th Cir. 2000); Kook v. Cate. 2013 WL 4041363, at
18
*6 (CD. Cal. June 14, 2013) (denying stay where Supreme Court had granted certiorari
19
regarding controlling Ninth Circuit case on point because "this Court has 'no authority to await
20
a ruling by the Supreme Court' before applying the Ninth Circuit's holding . . .") (quoting
21
Yong). See also McClellan v. Young. 421 F.2d 690, 691 (6th Cir. 1970) (holding that district
22
judge was without authority to defer action in habeas corpus actions pending before him in
23
order to await a ruling by the Supreme Court in anothercase); Berry v. Epps, 506 F.3d 402,405
10
A.
4
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(5th Cir. 2007) (denying stay of execution and dismissing inmate's Section 1983 civil rights
action challenging the constitutionality of lethal injection procedures, despite Supreme Court's
grant of certiorari in another lethal injection case, because circuit precedent "remains binding
until the Supreme Court provides contrary guidance").
This is certainly not the first time parties have urged a court to disregard circuit
precedent based on uncertainty about the final outcome of a legal issue. In such cases, courts
invariably follow circuit authority and decline the invitation to "guess" about what the Supreme
Court might do. For example, one court dealt with such contentions as follows:
9
10
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The parties agree that Greene[v. Sprint Communications Co.,

340 F.3d 1047, 1052 (9th Cir. 2003),] is the governing law in
the present case, and also recognize that the filing of a petition
for certiorari does not change the binding effect of the Ninth
Circuit's decision on this Court. While plaintiff argues that
the Ninth Circuit made the wrong decision in Greene, there
is no authority for this Court to simply ignore it. See Yong
v. INS, 208 F.3d 1116, 1119 n. 2 (9th Cir. 2000); Wedbush,
Noble, Cooke, Inc. v. SEC, 714 F.2d, 923, 924 (9th Cir. 1983).
Yet plaintiff asks the Court to do just that, based on its
14
assertion that "the law in this area is not settled and
15
because the Greene decision is still being appealed." Yet the

Ninth Circuit has already denied a petition for rehearing en
banc. Further, this Court does not presume to know, nor
16
17
will it hazard a guess, as to what the U.S. Supreme Court

will or will not do if presented with a petition for certiorari.
What is certain is that Greene is the current controlling law of
the Ninth Circuit, and that is the law this Court must follow.
18
The Ninth Circuit has definitively decided the issue, the
19
motion is ripe for decision, and plaintiffs claim for a private

right of action under 276 is dismissed.
20
Metrophones Telecommunications. Inc. v. Global Crossing Telecommunications. Inc.. 2003
21
WL 25511850, at *3 (W.D. Wash. Dec. 16,2003) (emphasis added), affd in part, rev'd in part
22
on other grounds. 423 F.3d 1056 (9th Cir. 2005), affd, 550 U.S. 45 (2007). The words
23
highlighted above apply with equal force in the instant case.

5
24
Plaintiffs recognize that courts generally enjoy discretion to enter a stay in an action
pending resolution of independent proceedings which bear upon the case. See Levva v.
Certified Grocers of California. Ltd.. 593 F.2d 857, 863 (9th Cir. 1979). However, as the U.S.
Supreme Court established nearly eighty years ago, that discretion is not unbridled. A party
seeking a stay based on the outcome of another case "must make out a clear case of hardshipor
inequity in being required to go forward, if there is even a fair possibility that the stay for
which he prays will work damage to someone else." Landis v. N. Am. Co.. 299 U.S. 248, 255
(1936). The high court continued, "[o]nly in rare circumstances will a litigant in one cause
be compelled to stand aside while a litigant in another settles the rule of law that will
10
define the rights of both." Landis. 299 U.S. at 255 (emphasis added). Defendants cannot
11
maintain that Landis is somehow outdated or inapposite, as they themselves rely on Landis. on
12
pages 3 and 4 of their memorandum of law, for the general proposition that "[t]he decision to
13
stay proceedings is inherent and entirely within the Court's discretion." Defendants would
14
simply have the Court overlook the part of Landis that undermines their argument.
15
In fact, it is well settled in this Circuit that the mere pendency of related appellate
16
proceedings does not per se warrant a stay. Instead, use of the power to stay "calls for the
17
exercise of judgment, which must weigh competing interests and maintain an even balance."
18
Zvme Solutions. Inc. v. InfoNow Corp., 2013 WL 6699997, at *4 (N.D. Cal. Dec. 19, 2013).
19
Courts should consider "the competing interests which will be affected by the granting or
20
refusal to grant a stay .... Among those competing interests are the possible damage which
21
may result from the granting of a stay, the hardship or inequity which a party may suffer in
22
being required to go forward, and the orderly course of justice measured in terms of the
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simplifying or complicating of issues, proof, and questions of law which could be expected to
6
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result from a stay." Id.
interests" in the instant case. Since it is the Defendants who bear the burden of showing
entitlement to a stay, their silence alone warrants denial of their motion.

B.
Defendants have utterly failed to address any such "competing
As in the "Ordot Dump" Case, the Stay Requested here would be Harmful
to Guam Residents and Delay the Government's Compliance with the Law
This Court is well aware of the controlling considerations to be weighed in a motion for
6
a stay, as it recently faced a rather similar request by the Governor's Office for a stay of
7
proceedings in another high-profile case. In the case popularly known on Guam as "the Ordot
8
Dump Case," this Court rejected the Lieutenant Governor's request for a stay. Citing Landis.
9
this Court cautioned that '"if there is even a fair possibility that the stay ... will work damage to
10
someone else[,]' then the movant 'must make out a clear case of hardship or inequity in being
11
required to go forward.'" United States v. Guam. No. CV 02-00022, 2013 WL 5809289, at *8

12
(D. Guam Oct. 29, 2013) (Per Tydingco-Gatewood, C.J.), appeal dismissed (Dec. 13, 2013),
13
appeal dismissed. 596 F. App'x 562 (9th Cir. 2015); citing Landis. 299 U.S. at 255. This Court
14
denied the government's stay request in the Ordot Dump Case because there was "more than a
15
fair possibility that the stay would work damage against the environment, the people of Guam
16
and the United States," and because the government "failed to clearly show that it would suffer
17
hardship or inequity if required to go forward." Id. Indeed, this Court said in its Opinion and
18
Order:
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. . . [A]fter weighing the competing factors, the court finds

that a stay of these proceedings is unwarranted. A stay would
result in further environmental harm and ongoing violation
21
of the Clean Water Act since the Ordot Dump will continue to
discharge untreated leachate into the Lonfit River. A stay

22
would also mean that the leachate discharges and uncontained
23
landfill gas will remain a public health hazard for the

surrounding residents. Despite claims to the contrary, the
7
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Government of Guam will not suffer any hardship or

inequity if the procurements were allowed to proceed since
the Receiver has sufficient monies within the bond issue -
within the original estimates that were madeto complete the

closure of the Ordot Dump. Finally, a stay would not
further the orderly course of justice but would instead
delay the Government of Guam's compliance with the
3
4
Consent Decree.
5
Id., at *12, (emphasis added).

6
Remarkably similar considerations compel the same result in the instant case. As in the
7
Ordot Dump case, the Governor's request to stay in the instant case is unwarranted because it
8
would result in "further harm" and "ongoing violation" of the fundamental right to marry of
9
Plaintiffs and other Guam same-sex couples, who will continued to be denied the rights and
10
privileges of marriage for so long as a stay would remain in effect. Similarly, "[djespite claims
11
to the contrary, the Government of Guam will not suffer any hardship or inequity" if marriage
12
licenses must be issued to same-sex couples. Finally, "a stay would not further the orderly
13
course of justice but would instead delay the Government of Guam's compliance with" the
14
Ninth Circuit's clear mandate in Latta.

15
C.
Defendants Have Failed to Meet their Burden of Justifying a Stay
16
As Plaintiffs have already demonstrated in their pending motion for preliminary

17
injunction, the Defendants in the instant action can hardly establish that they are likely to
18
succeed on the merits in view of binding Circuit precedent against them. Nor can they show
19
that they are likely to suffer irreparable harm in the absence of a stay, as the relief Plaintiffs
20
request (an injunction against denial of marriage licenses for Plaintiffs and other otherwise
21
22
23
24
qualified same sex couples), imposes no undue burdens and in no way harms Defendants,
irreparably or otherwise.'
More importantly, because the constitutional rights to marry and equal protection of the
laws are at the center of the instant case, and because the conduct being engaged in by the
Defendants is directly at odds with controlling Circuit precedent, the balance of equities tips
not in Defendants' favor but rather in favor of Plaintiffs and other same-sex couples seeking to
marry now.
standards[.]" Does v. City of Indianapolis. 2006 U.S. Dist. LEXIS 72865, at *29 (S.D. Ind.
Oct. 5, 2006). However, holding this case in abeyance would injure Plaintiffs, other same-sex
10
couples, and their children by exposing them to irreparable and continuing insecurity,
11
vulnerability, and stigma.
12
preventing same-sex couples from marrying and refusing to recognize same-sex marriages
13
celebrated elsewhere, impose profound legal, financial, social and psychic harms on numerous
14
citizens of those states." Latta, 771 F.3d at 476.
"Defendants will not be harmed by having to conform to constitutional
As the Ninth Circuit recognized in Latta, "marriage laws ...
15
The very purpose of marriage is to provide security in the face of anticipated and
16
unanticipated hardships and crisese.g., in the face of death, aging, illness, accidents,
17
incapacity, and the vicissitudes of life. Same-sex couples wishing to marry are subjected to
18
irreparable harm every day they are forced to live without the security that marriage provides.
19
That harm is not speculative, but immediate and real.
20
Moreover, Defendants can hardly argue that issuing a stay is in the public interest. To
21
the contrary, the public interest tips strongly against any stay because deprivation of
22
23
1 Plaintiffs incorporate the arguments made in their Memorandum in Support of Motion for
Preliminary Injunction.
24
constitutional rights, "for even minimal periods of time, unquestionably constitutes irreparable
injury." Elrod v. Burns. 427 U.S. 347, 373 (1976); Klein v. City of San Clemente. 584 F.3d
1196, 1207-08 (9th Cir. 2009) ("Both this court and the Supreme Court have repeatedly held
that '[t]he loss of First Amendment freedoms, for even minimal periods of time,
unquestionably constitutes irreparable injury.'"); Nelson v. NASA, 530 F.3d 865, 872-73 (9th
Cir. 2008). "Surely, upholding constitutional rights serves the public interest." Newsome v.
Albermarle Cntv. Sch. Bd.. 354 F.3d 249, 261 (4th Cir. 2003). See also Stuart v. Huff. 834 F.
Supp. 2d 424,433 (M.D.N.C. 2011) ("[I]t is in the public interest for statutes that likely violate
fundamental constitutional rights be to enjoined from being enforced."); Martin v. Naval
10
Criminal Investigative Serv.. (NCIS). 2012 WL 1570840, at *4 (S.D. Cal. May 3, 2012) ("The
11
public has an interest in the timely adjudication of alleged government misconduct.").
12
Compared to the substantial harms suffered by Plaintiffs, other same-sex couples, and
13
their families, the balance of harms tips decidedly in Plaintiffs' favor. "Allowing same-sex
14
couples to marry ... presents no harm to anyone." Campaign for S. Equal, v. Bryant. 2014 WL
15
6680570, at *40 (S.D. Miss. Nov. 25, 2014). Because the marriage ban is unconstitutional on
16
its face, "governmental compliance with the Constitution always serves the common good."
17
Tanford v. Brand. 883 F. Supp. 1231,1237 (S.D. Ind. 1995). In sum, continued enforcement of
18
an unconstitutional statute can never be in the public interest.
19
Defendants' memorandum is remarkable more for what it does not say than for
20
anything it says. Defendants maintain that judgment is premature in the instant case, yet they
21
failed to address numerous authorities cited by Plaintiffs from within this Circuit and elsewhere
22
for the proposition that expedited disposition is appropriate where the Circuit has resolved the
23
marriage issue. Simply put, "[a] District Court is bound by the rulings of the Circuit Court in
10
24
which it sits." In re Ford Motor Co. Speed Control Deactivation Switch Products Liab. Litig..
664 F. Supp. 2d 752, 761 (E.D. Mich. 2009), order clarified on reconsideration (Jan. 4, 2010).
See also, Metrophones. supra, 2003 WL 2551850, *3 (declining to "guess" about "what the
Supreme Court will do or will not do."). And where "enforcement of [a] statute" has properly
been invalidated as unconstitutional, "then so is enforcement of all identical statutes in other
States, whether occurring before or after our decision." Am. Trucking Ass'ns v. Smith. 496
U.S. 167, 175 (1990) (Scalia, J. concurring); see also U.S. v. Windsor.
2675, 2691 (2013) (striking down a federal law that discriminated against legally married
same-sex couples, the Supreme Court emphasized that "[s]tate laws ... regulating marriage, of
10
course, must respect the constitutional rights of persons."). Plaintiffs seek from this Court only
11
what Latta requires, which is a ruling enjoining the enforcement of laws that prevent same-sex
12
couples from marrying. 771 F.3d at 476.
13
D.
U.S.
, 133 S.Ct.
Defendants' Request for a Stay of the Proceedings in this Case is at Odds

with the Actions of the Ninth Circuit and the Supreme Court Denying
14
Similar Requests. Despite the Supreme Court's Consideration of Obersefell
15
Defendants' only reason for staying the proceedings in this case is their misguided
16
speculation that the Ninth Circuit might have gotten it wrong in Latta and that this Courtshould
17
take pause based on contrary Sixth Circuit authority. While Defendants now concede that,
18
"licensure of same-sex marriages is permitted in all of the U.S. States covered by the Ninth
19
Circuit," and that the Ninth Circuit dissolved the stay it placed in Latta. Defendants
20
nevertheless seek to justify a stay in the instant case based on the remarkably speculative
21
assertion that, "it is not an unreasonable stretch to conclude that had the Sixth Circuit's decision
22
in DeBoer come out before October 15, 2014, when the Ninth Circuit dissolved the stay in
23
Latta. it is possible that the Ninth Circuit would not have dissolved the stays at all." Mem. at
11
24
pp. 4, 6. But not only is such argument contrary to clear precedent showing that this Court is
bound by Latta. supra, it is also misleading.
Defendants cite to no case in which speculation similar to theirs justified imposition of a
stay of proceedings. They also cite to no case anywhere in the nation in which a trial court
sitting in a Circuit that has mandated marriage equality has issued a stay of further proceedings
based on a Circuit split or pending Supreme Court ruling.
Defendants' memorandum are stays issued by Circuit courts staying appeals challenging
decisions striking down marriage bans similar to Guam's, as well as that Circuit's binding
precedent holding the same.
The only stays mentioned in
In other words, the stay the Defendants seek in the instant action
10
would do the exact opposite of what the Circuit courts did in such casesmaintain a status quo
11
directly at odds with Circuit authority.
12
Defendants concede that the Ninth Circuit and Supreme Court vacated stays of Latta
13
and other Circuit court rulings that upheld marriage equality. If the Supreme Court did not see
14
fit to stay these marriage equality rulingsthus effectively allowing thousands of same-sex
15
couples to freely marry in the affected Circuitsthen why should this Court stay the instant
16
action, which would effectuate the opposite resultto prevent such couples from marrying
17
despite binding Circuit authority to the contrary?
18
Defendants also provide the Court with an incomplete picture of the actions taken by
19
the Ninth Circuit and Supreme Court since the Supreme Court began considering Obergefell.
20
For example, despite the fact that the invalidation of Montana's marriage ban in Rolando v.
21
22
23
2 While the First and Eighth Circuits have recently delayed oral arguments in appeals of decisions
by district courts within such circuits pending the Supreme Court's resolution in Obergefell. neither of
those courts are presented with binding circuit authority unlike this Court and the Ninth and Fourth
Circuits. See, e.g., Order, Conde-Vidal v. Rius-Armendariz. No. 14-2184 (1st Cir. Apr. 14, 2015);
Lawson v. Kelly. No. 14-3779 (8th Cir. Apr. 29, 2015).
12
24
Fox. 23 F. Supp. 3d 1227 (D. Mont. 2014), on November 19, 2014, occurred nearly two weeks
after the Sixth's Circuit decision in DeBoer on November 6,2014, the Ninth Circuit at no point
has stayed the enforcement of the decision. Such a result, that same-sex couples in Montana
can now marry despite the circuit split created by DeBoer, is directly at odds with Defendants'
rank speculation.
Furthermore, Defendants completely fail to inform the Court about actions taken by the
Supreme Court that are directly at odds with their request. For example, on December 19,
2014, the Supreme Court denied a stay of the decision invalidating Florida's marriage ban even
though the Supreme Court was at the time considering the petitions for certiorari filed in
10
Obergefell. et al. as a result of the circuit split created by the Sixth Circuit. Armstrong v.
11
Brenner. 135 S. Ct. 890 (U.S. Dec. 19, 2014). Likewise, on February 9, 2015, the Supreme
12
Court denied to stay the decision of the district court invalidating Alabama's marriage ban
13
despite the fact that the Supreme Court had already granted certiorari in Obergefell weeks
14
earlier. See Strange v. Searcy. 135 S. Ct. 940 (U.S. Feb. 9, 2015) (denying stay); Obergefell v.
15
Hodges. 135 S. Ct. 1039 (U.S. Jan. 16, 2015) (granting petition for certiorari).
16
acquiescence may well be seen as a signal of the Court's intended resolution[.]" Strange. 135
17
S. Ct. at 941 (Thomas, J., dissenting).
18
There can be no dispute that this Court is bound by Latta.
"This
Defendants' mere and
19
misguided speculation about what the Supreme Court might or might not do, or about what the
20
Ninth Circuit might or might not have done, cannot serve to delay this Court's application of
21
the Ninth Circuit's clear and binding precedent. We live in the here and now, not in some
22
speculative world as Defendants would have this Court believe. The actions of the Supreme
23
Court and Ninth Circuit with regard to the issue at hand could not be clearer. The Ninth Circuit
13
24
has already held that marriage bans like Guam's violate the constitutional guarantee of equal
protection. Likewise, since October 6, 2014, the Supreme Court has at every turn refused to
delay the application of decisions upholding the equality and dignity of same-sex couples with
regard to marriage, while only intervening to grant review of the sole decision by a circuit court
holding otherwise. "The basic guarantees of our Constitution are warrants for the here and now
and, unless there is an overwhelmingly compelling reason, they are to be promptly fulfilled."
Watson. 373 U.S. at 533.
promptly to vindicate the constitutional rights of Plaintiffs and other same-sex couples in
Guam.
10
E.
This Court should reject Defendants' delaying tactics and act
Defendants Fail to Show why Expedited Relief Should Not Instead be

Granted
11
As Plaintiffs have pointed out, instead of staying this case, this Court would find itself
12
in good company if it expedited the matter and granted preliminary injunctive relief. See
13
Majors v. Home. 141 F. Supp. 3d 1313 (D. Ariz. 2014) (promptly granting summary judgment
14
motions challenging Arizona's ban on marriage for same-sex couples just ten days after
15
issuance of the Ninth Circuit's opinion in Latta and refusing to stay its ruling).
16
Defendants do not dispute or even attempt to distinguish authorities cited by Plaintiffs

17
in which courts facing marriage-ban cases granted injunctive relief less than one month after
18
issuance of binding circuit authority on point. See Condon v. Haley. 2014 WL 5897175 (D.
19
S.C. Nov. 12, 2014) (granting injunctive relief and summary judgment regarding South
20
Carolina marriage ban less than one month after initiation of action); Guzzo v. Mead. 2014 WL
21
5317797 (D. Wyo. Oct. 17, 2014) (granting preliminary injunction enjoining enforcement of
22
Wyoming's ban on marriage for same-sex couples a mere ten days after the filing of the
23
14
24
original complaint); Marie v. Moser. 2014 WL 5598128 (D. Kan. Nov. 4, 2014) (enjoining
enforcement of Kansas's ban on marriage for same-sex couples less than one month after the
commencement of the action "[bjecause Tenth Circuit precedent is binding on this Court...").
Likewise, in the instant case, there is absolutely no principled reason to delay granting
injunctive relief in the face of controlling Ninth Circuit precedent on point. This case should
not be stayed; it should be expedited.

II.
DEFENDANTS'
REQUEST
FOR
14-DAY
EXTENSION IS UNTIMELY AND DISINGENUOUS

9
Defendants appear to have a three-pronged strategy with respect to this case: Delay,
10
delay, and delay. As we have seen, instead of answering the Complaint and responding to the
11
motions on file, Defendants have moved for a stay. In the alternative, they ask the Court to
12
grant a 14-day extension to respond to the motions. For many of the same reasons stated
13
above, this alternative request should likewise be denied.

14
The apparent basis for the 14-day continuance request is the unsupported assertion that
15
the Governor has been off-island much lately; and thus he has not had enough time to consult
16
with legal counsel concerning this very important matter. Defendants do not say whether
17
Codefendant Garrido was similarly preoccupied.

18
Additionally, Defendants maintain that they need the extra two weeks because the
19
Attorney General only appointed counsel on May 1, 2015 to serve as a Special Assistant
20
Attorney General for the purpose of representing the Defendants. As a result, they maintain
21
that they have had insufficient time to prepare an answer and to respond to the pending
22
motions. This claim is disingenuous at best. Media statements issued by the Governor's office
23
15
24
have consistently stated that the Governor's "legal team" has been carefully "reviewing" and
"researching" this controversy, as well as the Attorney General's response, for three full
weeks.3 Yet despite this presumably intensive and careful review, the Defendants suddenly
claim to be flatfooted and speechless on the matter.
Moreover, it is manifest that the Defendants' new counsel had sufficient time to
research and draft several filings in support of the instant motion, including a 9-page
memorandum of law. Since Defendants state that they, "do not take a position regarding any of
Defendants' legal arguments" (Mem. at p. 2), just what exactly would Defendants' counsel
have done with his time had he been appointed two weeks earlier?
Indeed, given the
10
Defendants' reluctance to take any position on the merits of the instant controversyexcept
11
that they are bound to follow statutory lawthen just what would they do with the additional
12
14 days if the Court were to grant their motion? Defendants fail to say. In all likelihood,
13
Defendants would simply spend the extra time coming up with additional purported reasons for
14
kicking the judicial can down the road.
15
16
17
18
19
20
21
22
23
3 See Pacific Daily News, April 15, 2015, Update: Calvo-Tenorio Administration Defers
Decision on GayMarriage ("The administration said it 'respects the opinion of the Arty. Gen. Elizabeth
Barrett Anderson and that his legal team is reviewing and conducting research on the issue.'"); Pacific
Daily News, April 17, 2015, Update: Calvo: More Information Neededfor Gay Marriage Decision
("I've instructed my legal team to research the issue..."); Pacific Daily News, April 17, 2015, Update:
No Decision by Public Health, Adelup, on Gay Marriage Issue ("Our legal team continues to research
the issue."); Marianas Variety, April 17, 2015 ("The governor said he respects the Atty. Gen.'s opinion
and he currently has his legal team the reviewing the AG's position and further researching the
issue..."); Marianas Variety, April 21, 2015, Officials Urged to Comply with Same-Sex Law ("Gov.
Eddie Calvo has issued a statement saying he respects the Atty. Gen.'s opinion and he currently has his
legal team reviewing the AG's position and further researching the issue."); Pacific Daily News, April
21, 20, Calvo Still Looking Into It ("Oyaol Ngirairkl, director of communications for the governor's
office," said that "his legal team is continuing to review the lawsuit."); Pacific Daily News, April 24,
2015, States Issue Marriage Licenses Despite Appeals ("The governor, who's currently in California,
has tasked his legal team researching the issue.").
16
24
Rather than spending time preparing an opposition to the pending motions, Defendants
calculated that their best move was not to defend against the matter but to devote their energy
to delaying the proceedings for as long as possible. Having made that calculation, Defendants
must now live with the consequences.

CONCLUSION
District Courts "have no authority to await a ruling by the Supreme Court before
applying the Circuit Court's decision as binding authority." Yong. 203 F.3d at 1119, n.2. In
view of binding Circuit precedent directly on point, Defendants have failed to show any
principled reason to delay granting either summary judgment or preliminary injunctive relief.
10
The instant action should not be stayed. To the contrary, it should be expedited because
11
Plaintiffs are entitled to immediate injunctive relief. Defendants' motion for a stay and, in the
12
alternative, for an additional 14 days to respond to Plaintiffs' motions, should be DENIED.
13
Instead, Plaintiffs' motion for summary judgment should be GRANTED; and in the alternative,
14
Plaintiffs' motion for a preliminary injunction should be GRANTED immediately.
15
Respectfully submitted this 7th day ofMay, 2015.
16
THOMPSON GUTIERREZ & ALCANTARA, P.C.
17
Attorneys for Plaintiffs Kathleen M. Aguero and

Loretta M. Pangelinan
18
19
RANDALL TO
20
P151047.RTT
21
22
23
17
24

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1

Mitchell F. Thompson, Esq.

Thompson Gutierrez & Alcantara, P.C.

238 Archbishop Flores Street, Suite 801

William D. Pesch, Esq.

DISTRICT COURT OF GU^M

Guam Family Law Office

173 Aspinall Avenue, Suite 203

Attorneys for Plaintiffs Kathleen M. Aguero and

IN THE DISTRICT COURT OF GUAM

KATHLEEN M. AGUERO and LORETTA

CIVIL CASE NO. 15-00009

EDDIE BAZA CALVO in his official capacity as

Governor of Guam; and CAROLYN GARRIDO

in her official capacity as Registrar in the Office

MOTION FOR A STAY

Case 1:15-cv-00009 Document 21 Filed 05/07/15 Page 2 of 23

PROCEDURAL POSTURE OF CASE

DEFENDANTS' MOTION TO STAY SHOULD

CONSTITUTIONAL RIGHTS, THE

HARDSHIP OR INEQUITY, AND A STAY

CIRCUIT'S CLEAR MANDATE IN LATTA

While District Courts have Inherent

Discretion to Manage their Dockets,

As in the "Ordot Dump" Case, the

Burden of Justifying a Stay

Defendants' Request for a Stay of the

Supreme Court Denying Similar Requests,

Defendants Fail to Show why Expedited

DEFENDANTS' REQUEST FOR A 14DAY EXTENSION IS UNTIMELY

Case 1:15-cv-00009 Document 21 Filed 05/07/15 Page 3 of 23

Am. Trucking Ass'ns v. Smith.

496 U.S. 167 (1990)

Campaign for S. Equal, v. Bryant.

No. 14-2184 (1st Cir. Apr. 14, 2015)

2014 WL 5897175 (D. S.C. Nov. 12, 2014)

772 F.3d 388 (6th Cir. 2014)

Does v. City of Indianapolis.

427 U.S. 347 (1976)

411 U.S. 677 (1973)

2014 WL 5317797 (D. Wyo. Oct. 17,2014)

In re Ford Motor Co. Speed Control Deactivation Switch

Klein v. City of San Clemente,

584 F.3d 1196 (9th Cir. 2009)

Case 1:15-cv-00009 Document 21 Filed 05/07/15 Page 4 of 23

2013 WL 4041363 (CD. Cal. June 14,2013)

Landis v. N. Am. Co..

299 U.S. 248 (1936)

779 F.3d 902 (9th Cir. Jan 9,2015)

No. 14-3779 (8th Cir. Apr. 29,2015)

Leyva v. Certified Grocers of California. Ltd..

593 F.2d 857 (9th Cir. 1979)

388 U.S. 1(1967)

2014 WL 5598128 (D. Kan. Nov. 4,2014)

Martin v. Naval Criminal Investigative Serv.. (NCIS),

2012 WL 1570840 (S.D. Cal. May 3,2012)

421 F.2d 690 (6th Cir. 1970)

Metrophones Telecommunications. Inc. v. Global Crossing Telecommunications. Inc..

affd. 550 U.S. 45 (2007)

530 F.3d 865 (9th Cir. 2008)

Newsome v. Albermarle Cntv. Sch. Bd..

354 F.3d 249 (4th Cir. 2003)

Docket 14-556 (U.S. 2015)

Case 1:15-cv-00009 Document 21 Filed 05/07/15 Page 5 of 23