2:14-cv-00055 #38
TRANSCRIPT
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: [email protected]
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.
DEFENDANTS’ REPLY
MEMORANDUM IN SUPPORT OF
THEIR 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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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 court’s
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 State’s 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, 104–121.) 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 Plaintiffs—along 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?
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this Court—moved 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 instances—though the State understands, not in all—state 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 Utah’s 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-à-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, 8–10.) 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 Health’s]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-6-
133(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
2 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”).
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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 scenario—or even the possibility thereof—would
“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
Case 2:14-cv-00055-DAK Document 38 Filed 04/25/14 Page 5 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: [email protected]
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 children’s birth certificates. Because the
Department believed that doing so would violate Utah’s 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 Utah’s 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, 8–10.) Thus, Defendants argue, circumstances have
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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).
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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. Comm’n, 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 Plaintiff’s 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 court’s 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 court’s 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
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