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Shane A. Marx (Bar. No. 13293)James H. Hunnicutt (Bar No. 9341)David S. Dolowitz (Bar No. 0899)

DOLOWITZ HUNNICUTT

299 South Main Street, Suite 1300

Salt Lake City, Utah 84111Tel: (801) 535-4340

Fax: (801) 535-4346

Email: [email protected]@dolowitzhunnicutt.com

[email protected]

Attorneys for Plaintiffs

IN THE UNITED STATES DISTRICT COURT

IN AND FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

KATE DOE &BETH ROE, as individuals and in loco parentis

for their unborn child,

Plaintiffs,

vs.

STATE OF UTAH,

GARY R. HERBERT, as Governor of Utah, &

SEAN D. REYES, as Attorney General of

Utah,

Defendants.

MOTION FOR PROTECTIVE ORDER

SEALING CASE

Case No. 2:14-cv-00061-CW-BCW

Judge Clark Waddoups

Magistrate Judge Brooke C. Wells

Pursuant to FRCP 5.2(c)(2) and DUCivR 5-2(a), plaintiffs Kate Doe and Beth Roe move

the Court for a protective order sealing this case, parallel in effect to the Order Classifying File as

Private Record, previously entered by the state court in the above-entitled matter before removal

Case 2:14-cv-00061-CW-BCW Document 10 Filed 02/05/14 Page 1 of 8

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to this Court. The state court's Order Classifying File as Private Record is attached hereto as

Exhibit A. A proposed form of Protective Order Sealing Case is filed herewith.

BACKGROUND

1. On January 23, 2014, plaintiffs filed this case in the Third Judicial District Courtof the State of Utah, seeking the protections for their family that flow from formal legal recognition

of their marital relationship.

2. To assure the routine privacy appropriately afforded families and marriage in theprocess of litigation, plaintiffs concurrently sought an Order Classifying File as Private Record

with the filing of their complaint.

3. On January 24, 2014, the Honorable Judge Robert Faust granted plaintiffs' requestfor Order Classifying File as Private Record, attached hereto as Exhibit A, under the substantive

Utah law governing privacy rights in domestic and marital relations cases. Not only was there a

written order in place, Judge Faust also explicitly addressed the privacy concerns and his orders

classifying the case as private with state defendants in a hearing held on January 27, 2014. Therein,

Judge Faust expressly advised the state defendants of their obligations under his Order Classifying

File as Private Record, and he required everyone present in the courtroom to identify their

affiliation to the parties and closed the proceedings to the public.

4. The intentional disclosure or publication of a record once classified as private bythe court is contemptuous conduct and a class B misdemeanor under Utah law. UTAH CODE

78B 6-301(3), 301(5), and 63G-2-801(1)(a).


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5. In violation of the existing state court order and Utah law, defendants failed to takeany precautions to safeguard plaintiffs' family privacy or to comply with the existing state court

orders when they filed their Notice of Removal and a copy of the Complaint as a public record in

this Court. In doing so, defendants made the complaint widely available.

6. Plaintiffs were not immediately aware of defendant's actions until they receivedmultiple telephone calls regarding news articles about this case. The multiple news publications

reported information from the complaint that easily identified plaintiffs, despite their use of

protective pseudonyms in the pleadings.

7. Defendants' disregard for plaintiffs' privacy interests resulted in the intimate detailsof plaintiffs' private family life widely disseminated in numerous publications, both locally and

nationally. The news publications quote from the Complaint and detail plaintiffs' relationship

history, the manner in which they conceived a child, and the date on which their child is expected

to be born. See internet search results and news articles, attached as Exhibit B.

8. As a result of defendants' actions, plaintiff's family became the target of the veryinflammatory, sensationalized, and hurtful anonymous comment against which the state court

order and law governing privacy in domestic relations is supposed to protect. See news publication

comments, attached as Exhibit C. Examples of such published comments on local news forums

include, but are not limited to, the following sampling of negative reaction:

a. "Being gay is an immoral act against God and Man. Therefore it does notgive them any kind of rights because it is a sin. It is also illogical. The human body was

not designed to support their actions. Therefore their supposed 'rights' should be denied."


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b. "Two women CANNOT be a couple. If two women want to live togetherso be it but do don't force your immoral beliefs on innocent children!"

c. "stop the degradation of society"d. "it's not their baby it's Doe's and some random guys baby"e. "I don't want it presented in our society as being normal because it's not!!

and I definately [sic] don't want it being taught to my children and grandchildren in schools

as a normal family"

f. "This is stupid. Regardless of your stance on SSM, this should berecognized as very poor parenting."

9. Defendants requested to seal the complaint in this matter only after plaintiffsconfronted them about the impropriety of their actions. Rather than express any empathy or at least

acknowledge the distress their actions caused, the state defendants blithely asserted that "Any

further action to seal the record in this matter based on the Third District Courts classification of

the state court record as private shall be the responsibility of the Plaintiffs under DUCivR 5-2.1."

See Defs.' Mot. to Seal Compl. 2.

10. Plaintiffs are understandably afraid that defendants' actions and the publicity it hascaused will further identify them as the plaintiffs in this case and that they will be subject to added

discrimination for their efforts to protect their family through the court process. These fears are

entirely valid given the speed with which the news of this case has spread, the nature of public

comments expressed in relation to those news stories, and the lack of any protections in Utah for

even the most basic housing and employment needs of families like that of the plaintiffs.


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ARGUMENT

The private nature of family relations warrant restricting nonparties' access to the record

and proceedings in this case, as the state court previously ordered prior to removal. Plaintiffs seek

judicial determination and vindication of legal protections for their family. In this process, they

are entitled to the privacy and respect traditionally afforded when family relations come before

courts.

Contrary to state defendants' position, it is not clear that the state court's Order Classifying

File as Private Record was stripped of any force in the removal process. At the very least, that

order was effective when state defendants made the complaint public, until this Court assumed

jurisdiction through removal.

Moreover, to the degree that defendants have asked this Court to exercise supplemental

jurisdiction over state law claims regarding marriage and family relations, such claims are subject

to Utah law governing the plaintiffs' substantive rights of privacy. Family privacy is one of the

most sacred interests contemplated under the law. See Griswold v. Connecticut, 381 U.S. 479, 485

(1965) (describing marriage as "a relationship lying within the zone of privacy created by several

fundamental constitutional guarantees"). To safeguard this privacy, family and domestic relations

cases are traditionally shielded from unrestricted public access. See, e.g., UTAH CODE 30-3-4(2)

and UTAH R.JUD.ADMIN. 4-202.02 (providing for private classification in divorce, child support,

custody, and parentage actions). When a child is involved, the need to maintain privacy takes on

elevated significance. See id. 78B-6-141 (mandating that adoption files be sealed); and UTAH

CODE 78B-15-105 (directing protection of the "the health safety, privacy, and liberty of a child


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or other individual who could be jeopardized by disclosure of identifying information" in

parentage actions).

For those reasons, Judge Faust expressly found that "Plaintiffs' privacy interests outweigh

any interest in public access to this case file and record" and the "other alternatives to closure

would not sufficiently safeguard plaintiff's privacy interests." The state defendants did not contest

plaintiffs' request or the state court's findings on this point. Consequently, Judge Faust ordered that

this case file be classified as private and protected from disclosure to nonparties. Once so classified

under Utah law, "[t]he record is private until the judge determines it is possible to release the record

without prejudice to the interests that justified closure." Id. 30-3-4(2)(c).

Despite removal, there has been no change in circumstances or other reason to believe that

the release of the record will not prejudice plaintiffs' interests in maintaining their familial rights

to privacy. Rather, the state defendants' disclosure of the complaint has demonstrated the need to

further protect this family's privacy as they seek clarification of their rights in the current political

environment. Consequently, plaintiffs respectfully request that this Court renew the state court's

order or otherwise enter an order sealing and restricting nonparties' access to any court filings or

proceedings.

CONCLUSION

Plaintiffs deserve privacy in their efforts to protect their family. A real fear of retribution

comes with public access to this case, as this animus is the very reason plaintiffs come to the court

seeking protections for their family. Public access to the filings and proceedings would discourage

plaintiffs and others like them from seeking the courts' assistance. Thus, plaintiffs respectfully


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request that the Court restrict nonparties' access to this case and enter the concurrently filed

proposed form of Protective Order Sealing Case.

DATED this 5th day of February , 2014

DOLOWITZ HUNNICUTT,PLLC

/s/ Shane A. MarxSHANE A. MARX

Attorney for Plaintiffs


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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 5thday of February, 2014, I caused a true and correct

copy of the foregoing to be filed and thereafter served, pursuant to FRCP 5 and DUCivR 5-1, on

the following person(s), by the means indicated herein.

Joni J. Jones

Meb W. Anderson

Assistant Attorney GeneralsParker Douglas

Chief of Staff and General Counsel

OFFICE OF THE UTAH ATTORNEY GENERAL160 E. 300 S., 6th FloorP.O. Box 140856

Salt Lake City, UT 84114-2320

Fax: (801) 366-0101Tel: (801) 366-0100

Email: [email protected]

[email protected]

[email protected]

U.S. Regular Mail

Hand Delivery

Facsimile TransmissionE-Mail

X E-Filing CM/ECF

/s/ Shane A. Marx


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EXHIBIT

A

Case 2:14-cv-00061-CW-BCW Document 10-1 Filed 02/05/14 Page 1 of 3

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The Order of Court is stated below:

Dated: January 24, 2014 /s/ Robert Faust

10:05:24 AM District Court Judge

January 24, 2014 10:05 AM 1 of


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January 24, 2014 10:05 AM 2 of


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EXHIBIT

B


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EXHIBIT

C


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Shane A. Marx (Bar. No. 13293)James H. Hunnicutt (Bar No. 9341)David S. Dolowitz (Bar No. 0899)

DOLOWITZ HUNNICUTT

299 South Main Street, Suite 1300

Salt Lake City, Utah 84111Tel: (801) 535-4340

Fax: (801) 535-4346

Email: [email protected]@dolowitzhunnicutt.com

[email protected]

Attorneys for Plaintiffs

IN THE UNITED STATES DISTRICT COURT

IN AND FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

KATE DOE &BETH ROE, as individuals and in loco parentis

for their unborn child,

Plaintiffs,

vs.

STATE OF UTAH,

GARY R. HERBERT, as Governor of Utah, &

SEAN D. REYES, as Attorney General of

Utah,

Defendants.

PROTECTIVE ORDER SEALING CASE

Case No. 2:14-cv-00061-CW-BCW

Judge Clark WaddoupsMagistrate Judge Brooke C. Wells

THIS MATTER comes before the Court by way of plaintiffs' Motion for Protective Order

Sealing Case. Having reviewed the basis of record herein and Pursuant to FRCP 5.2(d), (e)(2) and

DUCivR 5-2(a), THE COURT HEREBY ORDERS THAT:


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1. Plaintiffs have a substantive right to privacy in judicial proceedings involving theirmarital and family relations under Utah law.

2. Plaintiffs' privacy interests outweigh any interest in public access to this case fileand record.

3. Any other alternatives to closure would not sufficiently safeguard plaintiff's privacyinterests.

4. Access to the filings and proceedings in this case shall be limited to the parties.Nonparties shall not be permitted remote electronic access to any document filed with the Court.

5. Unless otherwise waived by plaintiffs, defendants have the affirmative duty tosafeguard all documents filed by either party with the Court. Under no circumstances shall

defendants disseminate or otherwise further permit nonparty access to the filings in this case.

IT IS SO ORDEREDon this day of , 2014

BY THE COURT:

HONORABLE CLARK WADDOUPS

District Court Judge

HONORABLE BROOKE C. WELLSMagistrate Judge


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