DISTRICT COURT, COUNTY OF DENVER STATE OF COLORADO 1437 Bannock Street Denver, CO 80202

Plaintiffs: vs. Defendants: COLORADO BOARD OF EDUCATION, et al., Intervenors: FLORENCE DOYLE, et al., AND Plaintiffs: vs. Defendants: DOUGLAS COUNTY SCHOOL DISTRICT RE-1, et al. TAXPAYERS FOR PUBLIC EDUCATION, et al., JAMES LARUE, et al.

COURT USE ONLY

Case No.: 11cv4424 Combined with: Case No.: 11CV4427

Courtroom: 259

Attorneys for Defendants: Douglas County Board of Education and Douglas County School District: Names: James M. Lyons, #882 Eric V. Hall, #32028 Michael Francisco, #39111 Rothgerber Johnson & Lyons LLP One Tabor Center, Suite 3000 1200 Seventeenth Street Denver, Colorado 80202 303.623.9000 303.623.9222 jlyons@rothgerber.com ehall@rothgerber.com mfrancisco@rothgerber.com JOINT MOTION TO STAY INJUNCTION PENDING APPEAL Defendants Douglas County School District and Douglas County Board of Education, jointly with Defendants Colorado State Board of Education, Colorado Department of Education, Defendant-Intervenors Florence, Derrick, Alexandra, and Donovan Doyle; DefendantIntervenors Diana, Mark, and Nathaniel Oakley; and Defendant-Intervenors Jeanette StrohmAnderson and Mark and Max Anderson; (collectively, Defendants), through their undersigned
{A0200470 / 1}

Firm: Address:

Tel: Fax: E-Mail:

counsel and pursuant to C.R.C.P. 62(b) and (c), submit the following Motion to Stay Injunction Pending Appeal or, in the alternative, for a Discretionary Stay, and state as follows: 1. On August 12, 2011, this Court entered an Order denying Defendants Motion to Dismiss and Granting Plaintiffs Motions for Preliminary Injunction (the "Order"). The Order granted Plaintiffs a permanent injunction following the three-day hearing held August 2 through 4, 2011. 2. The Defendants intend to appeal this Order to the Colorado Court of Appeals, and will file (within the allowed time on or before September 26, 2011) a Notice of Appeal. Stay Injunction Pending Appeal 3. Pursuant to C.R.C.P. 62(c), the Defendants respectfully request that this Court stay the Order and injunction pending appeal, exercising its discretion to suspend an injunction during the pendency of the appeal upon such terms as to bond or otherwise as it considers proper for the security of the rights of the adverse party. 4. The interests of justice favor a stay pending appeal of the injunction, as evidenced by the substantial public impact of the permanent, mandatory injunction issued just as the school year begins for the nearly 500 scholarship students, private schools, and public schools. As this court recognized in the Order, granting the Plaintiffs request for injunctive relief will undoubtedly result in significant hardships for the families already selected for enrollment in the Scholarship Program, as well as the Private School Partners (for instance, the Woodlands Academy) that have relied on the Scholarship Programs implementation. Order at p.29. Discretionary Stay 5. In the alternative, pursuant to C.R.C.P. 62(b), the Defendants respectfully request that the Court stay the Order and injunction during the time permitted for filing of a notice of appeal. C.R.C.P. 62(b)(3). 6. A discretionary stay is expressly authorized under the circumstances of this case by C.R.C.P. 62(b)(3), and it will be in the interests of justice to preserve the status quo pending Defendants preparation of a Notice of Appeal. WHEREFORE, Defendants request that this Motion be granted, and that the injunction entered against Defendants in this case be stayed pending appeal, or alternatively stayed during the time permitted for Defendants filing of a notice of appeal, i.e. through September 26, 2011 A proposed form of Order Staying Injunction Pending Appeal Pursuant to C.R.C.P. 62(b)(3) or (c) is submitted herewith.

C.R.C.P. 121 1-15 CERTIFICATE OF CONFERENCE Undersigned counsel conferred in good faith with Plaintiffs counsel, Mike McCarthy and Matthew Douglas, regarding the contents of this motion. They oppose the motion. ROTHGERBER JOHNSON & LYONS LLP s/ Michael Francisco James M. Lyons Eric V. Hall Michael Francisco Attorneys for Defendants Douglas County Board of Education and Douglas County School District JOHN W. SUTHERS Attorney General /s/ Antony B. Dyl Original signature on file at the Colorado Attorney Generals Office Antony B. Dyl, #15968* Senior Assistant Attorney General Geoffrey N. Blue, #32684* Deputy Attorney General Education Unit State Services Section Attorney for Petitioners 1525 Sherman Street, 7th Floor Denver, CO 80203 Telephone: (303) 866-5380 *Counsel of Record

INSTITUTE FOR JUSTICE /s/ Michael E. Bindas William H. Mellor, #8402 Richard D. Komer, Pro Hac Vice 901 N. Glebe Road, Suite 900 Arlington, VA 22203 Phone Number: (703) 682-9320 FAX Number: (703) 682-9321 wmellor@ij.org rkomer@ij.org

Michael E. Bindas, Pro Hac Vice Institute for Justice 101 Yesler Way, Suite 603 Seattle, WA 98104 Phone Number: (206) 341-9300 Attorneys for Defendant-Intervenors Florence, Derrick, Alexandra, and Donovan Doyle; Defendant-Intervenors Diana, Mark, and Nathaniel Oakley; and Defendant-Intervenors Jeanette Strohm-Anderson and Mark and Max Anderson

CERTIFICATE OF SERVICE I hereby certify that on August 18, 2011, I electronically filed the foregoing with the Clerk of Court using Lexis/Nexis File and Serve causing an electronic copy to be served upon the following: Matthew J. Douglas, Esq. Timothy R. Macdonald, Esq. Michelle K. Albert, Esq. Arnold & Porter LLP 370 17th Street, Suite 4500 Denver, CO 80202 Ayesha N. Khan, Esq. Gregory M. Lipper, Esq. Americans United for Separation of Church and State 1301 K Street, NW Suite 850, East Tower Washington, D.C. 20005 George Langendorf, Esq. Arnold & Porter LLP 22nd Floor, One Embarcadero Center San Francisco, CA 94111-3711 Michael S. McCarthy, Esq. Colin C. Deihl, Esq. Madia G. Malik, Esq. Sarah A. Kellner, Esq. Gordon M. Hadfield, Esq. FAEGRE & BENSON, LLP 3200 Wells Fargo Center 1700 Lincoln Denver, CO 80203-4532 Alexander Halpern, Esq. Alexander Halpern LLC 1426 Pearl Street, #420 Boulder, CO 80302 Mark Silverstein, Esq. Rebecca T. Wallace, Esq. American Civil Liberties Union Foundation of Colorado 400 Corona Street Denver, CO 80218 Daniel Mach, Esq. Heather L. Weaver, Esq. ACLU Foundation Program on Freedom of Religion and Belief 915 15th Street, NW, Suite 600 Washington, D.C. 2005

Paul Alexander, Esq. Arnold & Porter LLP Suite 110, 1801 Page Mill Road Palo Alto, CA 94304-1216 Antony B. Dyl, Esq. Nicholas G. Stancil, Esq. Geoffrey N. Blue, Esq. Office of the Attorney General 1525 Sherman Street, 7th Floor Denver, CO 80203

William H. Mellor, Esq. Institute for Justice 901 N. Glebe Road, Suite 900 Arlington, VA 22203

s/ Karen Lutterschmidt Karen Lutterschmidt 5