no. 14-35427 united states court of appeals for ...media.oregonlive.com/mapes/other/45 - declaration...

No. 14-35427

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NATIONAL ORGANIZATION FOR MARRIAGE, INC.

Appellant-Proposed Intervenor

v.

DEANNA L. GEIGER, et al.,

Plaintiffs-Appellees

and

JOHN KITZHABER, et al.

Defendants-Appellees

Appeal from the United States District Court for the District of Oregon

Civil Case Nos. 6:13-cv-01834-MC and 6:13-cv-02256-MC (Hon. Michael J. McShane)

DECLARATION OF ROGER K. HARRIS IN SUPPORT OF

PETITION FOR REHEARING EN BANC

Roger K. Harris (OSB No. 78046)

HARRIS BERNE CHRISTENSEN LLP

5000 SW Meadows Road, Suite 400

Lake Oswego, OR 97035

(503) 968-1475

(503) 968-2003 Fax

[email protected]

John C. Eastman (Cal. Bar No. 193726)

CENTER FOR CONSTITUTIONAL JURISPRUDENCE

c/o Chapman University Fowler School of Law

One University Dr.

Orange, CA 92866

(877) 855-3330

(714) 844-4817 Fax

[email protected]

Case: 14-35427 09/25/2014 ID: 9254741 DktEntry: 45 Page: 1 of 121

DECLARATION OF ROGER K. HARRIS

IN SUPPORT OF PETITION FOR REHEARING EN BANC – Page 1

I, Roger K. Harris, hereby declare and state as follows:

1. I am a named partner with the law firm of Harris Berne Christensen LLP,

attorneys for Appellant/Proposed Intervenor National Organization for Marriage,

Inc. (“NOM”), in this matter. I have personal knowledge of the matters stated in

this declaration and could and would so testify if called as a witness.

2. Shortly before the close of business on September 9, 2014 — the evening

before NOM’s petition for rehearing en banc was due — I received from the

Attorney General’s office 75KB of digital documents in response to a public

records act request that this office had made back on May 19, 2014. This

production of documents included more than 800 e-mail (86 with attachments)

strings with more than 2000 discreet e-mail messages.

3. On September 10, 2014, I was able to quickly review some of the

documents in the production and learn that there had been a high degree of

cooperation between attorneys for Plaintiffs and attorneys with the Office of the

Attorney General in the underlying litigation challenging the constitutionality of

Oregon’s state constitutional definition of marriage passed by voters as Measure 36

in 2004, and that this cooperation began even before the lawsuit was filed.

4. As a result of that quick initial review, co-counsel and I determined to

include reference to these documents in NOM’s petition for rehearing en banc,

with a promise of this declaration to follow, because the documents demonstrate a




lack of adversarialness sufficient to raise serious questions about the jurisdiction of

the court below to have issued the broad-ranging declaratory and injunctive relief

that it issued.

5. Submission of newly-discovered evidence to the appellate court, even at

the petition for rehearing en banc stage, is permitted in rare circumstances, such as

where the new evidence casts a “shadow on the integrity of the … process.” Prof'l

Air Traffic Controllers Org. v. Fed. Labor Relations Auth., 672 F.2d 109, 111

(D.C. Cir. 1982), cited with approval in Portland Audubon Soc'y v. Endangered

Species Comm., 984 F.2d 1534, 1549 (9th Cir. 1993); cf. Mirchandani v. United

States, 836 F.2d 1223 (9th Cir. 1988) (ordering limited remand to permit District

Court to address government’s motion to reopen proceedings to consider newly

discovered evidence). Indeed, the evidence summarized herein demonstrates a

lack of adversarialness in the proceedings below that raise serious questions about

the lower court’s jurisdiction, and this Court has “an ongoing obligation to be sure

that jurisdiction exists.” Matheson v. Progressive Specialty Ins. Co., 319 F.3d

1089, 1090 (9th Cir. 2003).

6. Attached hereto as Exhibit A (Bates #1001) is a true and correct copy of

an email from Lake Perriguey (counsel for the Geiger Plaintiffs) to Defendant

Ellen Rosenblum, Attorney General of Oregon, asking for a phone call to discuss

“a potential challenge to Oregon’s constitutional provision defining marriage.”




The email is dated July 25, 2013, nearly three months before the Geiger complaint

was filed.

7. Attached hereto as Exhibit B (Bates #1046-1049) is a true and correct

copy of an email chain dated between August 14, 2013 and August 21, 2013,

between Lake Perriguey and staff at the office of Attorney General setting up a

meeting on September 5, 2013 between Perriguey and Attorney General Ellen

Rosenblum, Deputy Attorney General Mary Williams, and Deputy Chief Trial

Counsel Sheila Potter “to discuss a federal constitutional challenge of Oregon’s

anti-gay definition of marriage.” The scheduled meeting was approximately six

weeks before the Geiger complaint was filed.

8. Attached hereto as Exhibit C (Bates #1051) is a true and correct copy of

an email exchange between Sheila Potter and Lake Perriguey dated between

September 7 and September 9, 2013, confirming that a meeting had taken place in

the “past week” at which Potter had agreed to have her “contacts,” which she then

identified as “Marc Abram’s (sic) friends,” communicate with Perriguey.

9. Attached hereto as Exhibit D (No Bates) is a true and correct copy of

internet pages from linkedin.com and blueorgeon.com disclosing biographical

information about Marc Abrams. The biographical sketches describe Abrams as a

Senior Assistant Attorney General at the Oregon Department of Justice (counsel




for Defendants in the Geiger and consolidated Rummell cases) and also a member

of the ACLU (counsel for Plaintiffs in the consolidated Rummell case).

10. Attached hereto as Exhibit E (Bates #1055) is a true and correct copy of

an email exchange between Lake Perriguey and Sheila Potter dated September 17,

2013, in which Perriguey references prior discussions he had had with Potter

during which Potter apparently agreed that Oregon’s marriage laws were

unconstitutional. Perriguey asked for Potter’s approval to inform the Court “once

the case is filed” that “the State agrees with the Plaintiffs” that Oregon’s marriage

laws violate “fundamental due process and equal protection.” He also proposed

submitting to the Court “a stipulated Judgment declaring Measure 6 [sic]

unconstitutional (and the marriage statutes as well, insofar as they prevent same-

sex couple from marrying), in violation of the Equal Protection Clause, and

enjoining the State and its instrumentalities from enforcing Measure 36 and the

marriage statutes.” Finally, Perriguey asked Potter, “Could it be this direct?”

Potter replied that she did not “think this approach is the way to go,” promising to

call later that morning to discuss further. The exchange demonstrates collaboration

between counsel for Plaintiffs and counsel for Defendants on litigation tactics

about a month before the Geiger complaint was filed.

11. Attached hereto as Exhibit F (Bates #1061-1062) is a true and correct

copy of an email exchange dated September 17, 2013 between Lake Perriguey and




Sheila Potter in which Perriguey expresses his “hope to have a draft complaint to

[Potter] in a couple of days,” recognizes problems with a judicial determination of

unconstitutionality absent “some kind of adversarial process” but nevertheless asks

Potter and her office to consider “a stipulated judgment,” and then expresses

concern that if the federal judge decides to stay the effective date of any such

stipulated judgment until a Supreme Court ruling on the issue, “then we [i.e.,

Perriguey and Potter] may not have accomplished anything by suing in Oregon.”

After Potter reminded Perriguey that they had discussed on the phone that the State

would not be able to sign a stipulated judgment on constitutionality, Perriguey

acknowledged that the two of them had “concluded that this approach did not make

sense to either” of them.

12. Attached hereto as Exhibit G (Bates #1087-1091) is a true and correct

copy of an email exchange dated September 23, 2013, between David Fidanque,

Executive Director of ACLU-Oregon (counsel for Plaintiffs in the Rummell case),

and Deputy Attorney General Mary Williams (counsel for defendants in both

Geiger and Rummell cases) referencing discussions between the two about the

possibility of intervention in the prospective lawsuit if the “state elects not to

defend Measure 36.” The exchange and attached memo indicates joint concern

about litigation tactics and discloses the sharing of legal research nearly a month




before the Geiger complaint was filed and three months before the Rummell

complaint was filed.

13. Attached hereto as Exhibit H (Bates #1123) is a true and correct copy of

an email exchange dated October 1, 2013, between Lake Perriguey and Sheila

Potter transmitting a draft complaint and seeking the State’s position on venue.

14. Attached hereto as Exhibit I (Bates #1151-1152) is a true and correct

copy of an email exchange dated October 22, 2013 between Lake Perriguey and

Sheila Potter requesting an in-person meeting and referencing the State’s decision

to cease enforcing the Oregon constitutional prohibition on “recognizing” as

marriages same-sex relationships treated as marriages in other states. That State

defendants made that determination the day after the Geiger lawsuit was filed. See

State Defendants’ Answer ¶ 26 and Ex. A (D.Ct. Dkt. ## 9, 10).

15. Attached hereto as Exhibit J (Bates #1182) is a true and correct copy of

an email exchange dated October 31, 2013 between Sheila Potter and Katharine

von Ter Stegge (counsel for co-defendant Multnomah County Assessor) in which

von Ter Stegge seeks the State’s agreement to indemnify the County for Plaintiff’s

fee petition and noting that Lake Perriguey had already agreed not to seek fees

from the County. This exchange, which treats the obligation to pay fees (and,

therefore, plaintiffs as the prevailing parties) as a foregone conclusion, occurs

before the defendants had even answered the complaint, before the parties had




taken discovery, before any dispositive motions had been filed, and certainly

before any ruling on the merits had been issued by the Court.

16. Attached hereto as Exhibit K (Bates #1187-1188) is a true and correct

copy of an email exchange between Lake Perriguey and Sheila Potter dated

November 5, 2013, in which Perriguey expresses his “hope that the state will

encourage the court to apply a strict scrutiny analysis” and asks whether Potter

anticipates “that the state will acknowledge the history of discrimination against

gay people and advance a strict scrutiny/compelling basis analysis.” At the time of

this exchange, governing precedent in the Ninth Circuit treated sexual orientation

classifications as subject only to rational basis review, not strict scrutiny. See High

Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563, 574 (9th Cir. 1990);

Witt v. Dep’t of the Air Force, 527 F.3d 806, 821 (9th Cir. 2008). The exchange,

therefore, evidences a request from counsel for Plaintiffs to counsel for Defendants

to burden the defense with a higher standard of review than was required under

existing precedent. Defendants honored that request in their response to Plaintiffs’

motion for summary judgment by urging the district court to “apply heightened

scrutiny to evaluate plaintiffs’ equal protection claims and by asserting as fact

(without any substantiation) “that the reason for the ban [on treating same-sex

relationships as marriages] was to enshrine in the state constitution a belief that




same-sex couples are disfavored.” See State Defendants’ Response to Motion for

Summary Judgment at 14 (D.Ct. Dkt. #64).

17. Attached hereto as Exhibit L (Bates #1193-1194) is a true and correct

copy of an email dated November 5, 2013 from Sheila Potter to Lea Ann Easton

(co-counsel for Geiger Plaintiffs) forwarding Lake Perriguey’s request that the

State encourage the court to apply strict scrutiny, asking to speak by phone and

stating: “I don't want to worry Lake, but I also want to be careful about discretion

in a case in which a lot of people want to know what we’re going to say before we

say it, and are battering down the AG’s door to find out so that they can lobby her

to say what they want her to say.”

18. Attached hereto as Exhibit M (Bates #1197) is a true and correct copy of

an email dated November 9, 2013 from Lake Perriguey to Sheila Potter and

Katharine von Ter Stegge asking for a phone call because “[t]here is a new

development in the case that we should discuss prior to the filing of responsive

pleadings,” evidencing collaboration between counsel for plaintiffs and counsel for

defendants on the answer to the complaint that the respective defendants would be

filing.

19. Attached hereto as Exhibit N (Bates #1228-1231) is a true and correct

copy of an email exchange dated November 19-21, 2013 between Sheila Potter and

Lake Perriguey/Lea Ann Easton in which Potter points out ambiguities in the




complaint about which statutes will be enjoined and offers to attach a list to the

State’s answer “as a stipulation,” because “[t]hat seems the quickest way to all get

on the same page.” Potter also advises Plaintiffs’ counsel that “the relief requested

doesn’t ask for an order compelling equal application of the benefits of laws that

specifically refer to 'husband’ and ‘wife’,” noting that “If that’s something that

belongs in the suit (and it may), I imagine that it should be in the pleadings, so that

it’s within the Court’s authority to grant or deny that relief, rather than the Court

ordering it sua sponte.” In their First Amendment Complaint, Plaintiffs accepted

this suggestion by counsel for the Defendants to broaden the requested relief

sought. Compare Complaint, Request for Relief ¶ 2 (D.Ct. Dkt. #1) with First

Amended Complaint, Request for Relief ¶ 2 (D.Ct. Dkt. #8).

20. Attached hereto as Exhibit O (Bates #1280 and #1297) is a true and

correct copy of an email exchange between Lea Ann Easton and Sheila Potter

dated December 3-4, 2013, providing Potter with an advance copy of Plaintiffs’

First Amended Complaint and inviting a call if Potter would like to discuss it, and

a response by Potter noting that the “amendments address our issues.”

21. Attached hereto as Exhibit P (Bates #1342-1343) is a true and correct

copy of an email from Lea Ann Easton to Kate von Ter Stegge dated December 4,

2013, transmitting Plaintiffs’ First Amendment Complaint and acknowledging that

the amendments adding specific statutes and clarifying the relief requested were




made "[i]n response to the email dialogue with Sheila that started on November

21st.”

22. Attached hereto as Exhibit Q (Bates #1499; also see Exhibit T – Bates

#1578) is a true and correct copy of an email exchange between Lea Ann Easton

and Sheila Potter dated December 20, 2013, in which Potter acknowledges the

involvement of both the Attorney General and Governor in decisions being made

about the litigation, and in which Easton asks to “confer” with Potter about the

Rummell Plaintiffs’ motion to consolidate “and a response.”

23. Attached hereto as Exhibit R (Bates #1384-1385) is a true and correct

copy of an email exchange dated December 17-18, 2013 between Lake Perriguey

and Sheila Potter in which Perriguey notes that “an implied interest [by the

Rummell plaintiffs in the consolidated case] in delaying the case appear to be at

odds with our clients’ urgency in getting the matter before the court as soon as

possible.” By use of the plural phrase, “our clients’,” Perriguey indicates

congruence of interest between Plaintiffs and Defendants.

24. Attached hereto as Exhibit S (Bates #1500) is a true and correct copy of

an email dated December 20, 2013 from Lake Perriguey to Sheila Potter requesting

“to confer … about [the Rummell Plaintiffs’] motion [to consolidate] and a

response,” suggesting the possibility that a joint response could be filed by the

Geiger plaintiffs and the Geiger defendants.




25. Attached hereto as Exhibit T (Bates #1576-1579) is a true and correct

copy of an email exchange dated December 24, 2013 between Lea Ann Easton and

Sheila Potter sharing legal analysis about one of the Rummell Plaintiffs’ standing,

in which Easton “vent[s]” that “if we can make a cogent argument [that the Basic

Rights Organization lacks organizational standing], we can use it in the response to

consolidate as a reason why the court shouldn’t consolidate the cases,” (emphasis

added), indicating by use of the plural “we” a planned collaboration between the

Geiger plaintiffs and defendants in response to the Rummell plaintiffs’ motion to

consolidate.

26. Attached hereto as Exhibit U (Bates #1771-1773) is a true and correct

copy of an email exchange between Jennifer Middleton (counsel for the Rummell

Plaintiffs) and Sheila Easton/Lake Perriguey dated January 15, 2014, in which

Middleton acknowledges that Sheila Potter, an attorney for defendants in the

Attorney General’s office, was giving input on and had been given an advance

copy of the Rummell amended complaint, and in which Perriguey asks whether the

Rummell plaintiffs would agree to separate the cases if any issue the Rummell

plaintiffs raised resulted in need for a trial, thereby indicating that the Geiger

complaint (on which the Attorney General had provided input in advance of filing)

had been structured to avoid a trial. Easton then forwarded the exchange to Sheila

Potter, and Potter replied that the suggestion of separation of the cases “seemed




worth raising,” thereby revealing that counsel for defense was complicit in the

effort to avoid a trial.

27. Attached hereto as Exhibit V (Bates #1779-1780) is a true and correct

copy of an email exchange between Misha Isaak (counsel for the Rummell

Plaintiffs) and Sheila Potter, dated January 14-16, 2014, in which Isaak transmits

an advance copy of an amended complaint and acknowledges a prior telephone

conversation with Potter collaborating on language “that is both broad enough to

enjoin all State actions excluding same-sex couples from the rights and obligations

of marriage, and also specific enough to identify portions of the domestic relations

statutes we would like found unconstitutional.”

28. Attached hereto as Exhibit W (Bates #1785-1786) is a true and correct

copy of email exchange between Lea Ann Easton and Sheila Potter dated January

17, 2014 regarding the amended Rummell complaint, in which Potter refers to the

Geiger attorneys for both plaintiffs and defendants, collectively, as “our … team.”

29. Attached hereto as Exhibit X (Bates #1818-1819) is a true and correct

copy of an email exchange dated January 17, 2014, between Misha Isaak and

Sheila Potter, in which Isaak admits that the Rummell Plaintiffs modified the

prayer for relief in their complaint in response to suggestions made by Defendants,

and to which Potter responded: “Thanks! Yes. I can live with this. Thank you so

much for working with me on this.”




30. Attached hereto as Exhibit Y (Bates #1912) is a true and correct copy of

an email exchange between Lea Ann Easton and Sheila Potter dated January 24,

2014, in which Easton expresses concern about a prior dialogue between Judge

McShane and counsel for the Rummell plaintiffs regarding a discovery cutoff. The

“concern” expressed by Easton is noteworthy because the Geiger plaintiffs and

defendants had agreed early in the case “to forgo” the discovery required by Rule

26(a)(1). See D.Ct. Dkt. #7 (Nov. 25, 2013).

31. Attached hereto as Exhibit Z (Bates #1927) is a true and correct copy of

an email dated January 30, 2014 from Lea Ann Easton to Sheila Potter and

Katharine von Ter Stegge describing the opposing counsel in the cases as “the

consolidated cooperative happy attorneys.”

32. Attached hereto as Exhibit AA (Bates #1928) is a true and correct copy

of an email from Sheila Potter to Lea Ann Easton dated February 5, 2014,

expressing “hope” that “things are going well with all of the various cooperatings.”

33. Attached hereto as Exhibit BB (Bates #1971) is a true and correct copy of

an email exchange between Lake Perriguey and Sheila Potter dated February 10,

2014, in which Perriguey asks Potter “what position/theory/statement you and the

[AG’s] office are going to put forth” about the SmithKline decision and noting that

“[i]t would be great if there was a way to move this forward without a hearing in

two months.”




34. Attached hereto as Exhibit CC (Bates #1975-1976) is a true and correct

copy of an email dated February 10, 2014 from Sheila Potter to Tom Johnson

(counsel for the Rummell Plaintiffs) stating that “the smaller the group [on a

planned phone conference], the more candid I will be comfortable being! :)”, and

informing Johnson that she’d like to check in with him “in advance of filing the

[State’s] answer, so that the parties know what we’re filing before it hits PACER.”

Johnson confirmed the meeting the following day and noted that he was “working

to keep the group as small as possible for the reasons we discussed.”

35. Attached hereto as Exhibit DD (Bates #1991) is an email from Sheila

Potter to Tom Johnson dated February 13, 2014, proposing to provide a Local Rule

7-1 meet and confer certification for Plaintiffs’ motion for summary judgment

stating that counsel for the respective parties had “concluded that they were unable

to resolve the dispute in this case among themselves,” a position which she

claimed had “the virtue of being completely, literally true,” despite the fact that the

proposed certification failed to disclose that the nominally opposing parties were

actually collaborating to have Oregon’s marriage laws declared unconstitutional

and that Local Rule 7-1 embraces the understanding of all counsel that the court

must, ultimately accept or ratify any agreed upon resolution, even if stipulated to or

unopposed. See LR 7-1(4). The Rummell Plaintiffs accepted Potter’s proposed




language. See Rummell Motion for Summary Judgment, D.Ct. Dkt.#42 (Feb. 18,

2014).

36. Attached hereto as Exhibit EE (Bates #2005-2006) is a true and correct

copy of an email exchange dated February 14-17, 2014 between Sheila Potter and

Lea Ann Easton, referencing concerns that had been raised by Misha Isaak about a

possible mandamus action forcing the Attorney General to appeal a judgment in

plaintiffs’ favor, in which Potter notes she’s “not worried about mandamus” but is

“glad that people are thinking about all the ways that things could go pear-shaped,”

thereby indicating collaboration between plaintiffs’ and defendants’ attorneys not

to have the anticipated final judgment of unconstitutionality thwarted by outside

factors. During the exchange, Easton asked Potter: “Don’t the Plaintiffs get to vet

and edit the AG’s remarks?”

37. Attached hereto as Exhibit FF (Bates #2038) is a true and correct copy of

an email dated March 10, 2014, from Sheila Potter to all Plaintiffs’ counsel noting

that a decision out of Michigan is expected soon and that, if the Michigan court

“bucks the trend,” the State might want a couple more days for their response to

the Motions for Summary Judgment “to address anything in the opinion that looks

like it could use some talking about,” implying that the State would want to

distinguish away any decision upholding Michigan’s marriage law.




38. Attached hereto as Exhibit GG (Bates #2064) is a true and correct copy

of an email exchange between Tom Johnson (counsel for the Rummell plaintiffs)

and Sheila Potter dated March 11, 2014, in which Johnson notes that “We are

totally on the same page,” and Potter responds, “You know, I rather suspected we

might be.”

39. Attached hereto as Exhibit HH (Bates #2057-2060) is a true and correct

copy of an email exchange between Lake Perriguey and Sheila Potter dated March

11, 2014, in which Perriguey proposes to request that oral argument be moved up,

and to which Sheila responds that it is a bad idea because Judge McShane “really

reacted unhappily to the perceived push for a quick decision” and notes that “we

haven’t filed our response yet.” Perriguey then agreed with Potter’s assessment,

noting that we don’t want it to “appear that we are pushing the judge . . . despite

the fact that everyone in the room appears to agree.”

40. Attached hereto as Exhibit II (Bates #2083-2084) is a true and correct

copy of an email from Sheila Potter to a group of both Plaintiff and Defendant

attorneys dated March 14, 2014, stating: “We want a speedy resolution as well, but

my clients have a significant interest in an open and transparent process leading to

that resolution,” thereby characterizing the “resolution” as a foregone conclusion

and the so-called transparency for pretense.




41. Attached hereto as Exhibit JJ (Bates #2132) is a true and correct copy of

an email dated March 19, 2014, from Lea Ann Easton to Sheila Potter stating:

“Wonderful response [to motion for summary judgment, in which the State join in

Plaintiffs’ attack on the constitutionality of the Oregon marriage law it was

“defending”]. I want to play on your team instead of my team.”

42. Attached hereto as Exhibit KK (Bates #2209-2210) is a true and correct

copy of an email exchange between Lake Perriguey and Mary Williams dated

March 19, 2014, in which Perriguey praises Williams’ brief for the State

defendants in response to Plaintiffs’ motions for summary judgment as “beautiful,

elegant, and inspiring,” to which Williams responded: “I’m very proud to have

played a role in this one.” The exchange includes the following statements by

Perriguey, confirming the initial coordination meeting between opposing counsel

more than a month before the Geiger complaint was filed: “Thank you and Sheila

for meeting me back in August.” Perriguey also thanks Williams for “managing to

deftly represent the State’s interests while appreciating my and my clients’ goals,”

confirming that attorneys for defendants in the Attorney General’s office viewed

the “State’s interests” not as defending the Oregon law but in helping to advance

Plaintiffs’ goals of having Oregon’s marriage law ruled unconstitutional.

43. Attached hereto as Exhibit LL (Bates #2333-2334) is a true and correct

copy of an email exchange between Lea Ann Easton and Sheila Potter dated March




21, 2014, in which Easton transmitted a copy of a recent Michigan marriage

decision to Potter and in which Potter replied that “We should send to the court’s

clerk who is working on the case.” Potter also added: “This decision is so, so

good. The Regnerus piece alone has totally made my day,” referencing the

criticism of expert testimony in support of marriage laws that was contained in the

Michigan decision.

44. Attached hereto as Exhibit MM (Bates #2397) is a true and correct copy

of an email exchange between Sheila Potter and Misha Isaak dated April 1, 2014,

in which Isaak responds to Potter’s evident excitement about the amicus briefs that

had been filed against Oregon’s marriage law by expressing his view that “We

have reached a tipping point at which opposing marriage equality is just not an

acceptable position anymore (as you so eloquently said in your own brief),”

thereby confirming defendants’ complete abdication of their duty to defend

Oregon’s law.

45. Attached hereto as Exhibit NN (Bates #2425-2427) is a true and correct

copy of an email exchange between counsel for all parties, plaintiffs and

defendants, setting up a meeting to “confer on oral argument.” Counsel for the

Geiger Plaintiffs Lea Ann Easton noted: “We think it makes sense to try to

coordinate part of the argument so that we don’t repeat arguments as well as

brainstorm questions that Judge McShane is likely to ask.” Sheila Potter, counsel




for the State defendants, and Katharine von Ter Stegge, counsel for the county

defendant, thought having a meeting to coordinate their oral argument with

Plaintiffs' counsel was, respectively, an “Awesome idea” and a “Great idea.”

46. Attached hereto as Exhibit OO (Bates #2452-2454) is a true and correct

copy of an email dated April 15-16, 2014 from Lake Perriguey to counsel for all

parties, plaintiffs as well as defendants, circulating a table of legal issues raised in

the briefing “which might be helpful for us to begin a conversation about what

topics we each might focus on in the [oral argument] presentation.” Forwarding

the email to Mary Williams, who had been omitted from the original distribution

list, Perriguey notes that a “group of lawyers [from both sides are] planning to

meet in advance of the oral . . . conversation . . . next week.” Among the topics

Perriguey proposed to discuss were: 1) “Ballot Measure Animus,” a concession of

which by the State would trigger analysis and likely determination of

unconstitutionality under Romer v. Evans); 2) the “State’s interest in protecting

[gay] families,” thereby indicating that the State was only advancing interests that

supported Plaintiffs’ attack on Oregon’s marriage laws, not interests that supported

the laws themselves; 3) that the “State [was] harmed by ban” on same-sex

marriage; and 4) concerns that had surfaced “in talks among counsel” that “Judge

McShane might consider issuing a stay, even though no one has asked him to do

so.”




47. Attached hereto as Exhibit PP (Bates #2546) is a true and correct copy of

an email dated April 18, 2014 from Sheila Potter to “Ms. Pew” (in Judge

McShane’s chambers), confirming that the opposing parties had met “to discuss

plans for oral argument,” and asking “whether the Judge might have some thoughts

on how we might collectively make oral argument as productive and useful for him

as we can.”

48. Attached hereto as Exhibit QQ (Bates #2619) is a true and correct copy

of an email from Sheila Potter to Tom Johnson and Misha Isaak dated April 21,

2014, noting in response to a press release issued by the National Organization for

Marriage announcing that it would seek to intervene in defense of the Oregon

marriage laws that the government defendants were supposed to be defending, that

the release “made me want to beat them. They don’t get to win this.” The

exchange is evidence that one of the principal attorneys for Defendants viewed

herself as though she were an attorney for Plaintiffs in the case.

49. Attached hereto as Exhibit RR (Bates #2629) is a true and correct copy of

an email dated April 22, 2014, from Lake Perriguey to the group of attorneys for

both Plaintiffs and Defendants sharing ideas about how to respond to NOM’s

motion to intervene and referring to Judge McShane on a first-name basis,

demonstrating continuing collaboration between the opposing parties in the case




and an aura of familiarity with the Judge that is at least troubling, particularly in a

case that already lacked adversarialness between the parties.

50. Attached hereto as Exhibit SS (Bates #2792-2793) is a true and correct

copy of an email exchange dated May 10, 2014, between counsel for Plaintiffs and

Defendants, setting up a phone conference call “in advance of the [hearing on

NOM’s motion to intervene] to discuss our presentations and how to promote

efficiency,” indicating collaboration between the nominally opposing sides in joint

opposition to the motion to intervene.

51. Attached hereto as Exhibit TT (Bates #2797) is a true and correct copy of

an email dated May 12, 2014, from Lake Perriguey to the group of attorneys

representing both Plaintiffs and Defendants, sharing with the group a definition of

the word “collusion,” indicating that the nominally opposing counsel were

colluding even on their objection to NOM’s use of the word “collusion” in

describing the relationship between what should have been opposing sides in the

case.

52. Attached hereto as Exhibit UU (Bates #2839-2841) is a true and correct

copy of an email dated May 15, 2014, from Sheila Potter to the group of attorneys

for both Plaintiffs and Defendants transmitting a draft order even before Judge

McShane had issued a ruling. The order, drafted by the State, states that there is

“no legitimate state interest” and, while acknowledging that the state is not




enforcing the “recognize” out-of-state marriages part of the law, nevertheless

“Declares” that Fourteenth Amendment requires that outcome and enjoins the

County from not recognizing out-of-state marriages.

53. Attached hereto as Exhibit VV (Bates #3024-3028) is a true and correct

copy of an email exchange dated May 19, 2014, between Anna Joyce (AG’s

office), Lea Ann Easton, and Sheila Potter, in which Joyce noted that the State

defendants would, like Plaintiffs, be filing an opposition to NOM’s stay

application, and in which Potter and Easton offer to buy each other a “glass of

wine” to celebrate the ruling against Potter’s clients and make a “deal” for Potter

and other attorneys in the office of the Attorney General to “hang out” at Easton’s

house to celebrate the ruling.

54. Attached hereto as Exhibit WW (Bates #3029) is a true and correct copy

of an email dated May 20, 2014, from Lake Perriguey to the group of attorneys for

both Plaintiffs and Defendants, expressing “Huge gratitude to everyone who

advanced this case, and especially, today, I appreciate the vision and work and

intelligence” of the women in the office of the Attorney General.

55. Attached hereto as Exhibit XX (Bates #3071) is a true and correct copy

of an email dated May 28, 2014, from Lake Perriguey to Mary Williams asking for

shared legal research regarding Oregon election law and voter standing.




56. Attached hereto as Exhibit YY (Bates #3688) is a true and correct copy

of an email exchange dated July 10-11, 2014, between Lake Perriguey and Sheila

Potter, in which Potter agrees to Perriguey’s request that the stipulated fee

agreement include a line that he agreed to a reduced fee “in recognition of the

Oregon taxpayers who did not vote for Measure 36,” providing further evidence

that Plaintiffs and Defendants were collaborating to negate the votes cast in favor

of Measure 36.

57. The full text and context of all documents produced by the Oregon

Attorney General’s office in response to NOM’s public records request may be

found at: http://myop.us/YgmMXw.

Dated: September 25, 2014

Respectfully submitted,

s/ Roger K. Harris

Roger K. Harris

HARRIS BERNE CHRISTENSEN LLP

John C. Eastman

CENTER FOR CONSTITUTIONAL

JURISPRUDENCE

Attorneys for Appellant

National Organization for Marriage, Inc.


http://myop.us/YgmMXw

From Lake James PerrigueyTo Rosenblum Ellen FSent 7 25 2013 3 42 34 PMSubject Potential challenge to Or Const defining marriage

Greetings Ellen

I would like to schedule a call with you about a potential federal challenge to Oregon s constitutional provision

defining marriage

Lake James H PerrigueyLaw Works LLC1906 SW Madison StreetPortland Oregon 97205

T 503 227 1928F 503 334 2340

http www law works comskype lagojaime

OTLA Guardian of Civil Justice

PLEASE DON T PRINT CONSERVE RESOURCESThis e mail may contain confidential or privileged information If you are not the i ntended recipient please notifythe sender immediately by return e mail with a copy to lake law works com and delete this e mail and all copies

and attachments

Exhibit A Page 1 of 1


From Bader Chrystal MTo Lake Perriguey

Sent 8 21 2013 2 12 54 PMSubject RE Lake Perriguey request for Meeting with Ellen Rosenblum

Sounds good Thanks

Chrystal Bader

Public Affairs Legislative CoordinatorOffice of the Aorney General

1162 Court Street NE Salem OR 97301503 378 6002

Description

OregonStateSeal

From Lake Perriguey mailto lake law works comSent Wednesday August 21 2013 2 12 PMTo Bader Chrystal MSubject Re Lake Perriguey request for Meeting with Ellen Rosenblum

Lets plan on 10 am on Sept 5 at the down town offices

Lake James Perriguey

LAW WORKS LLC1906 SW Madison StPortland OR 97205 1718503 803 5184

On Aug 21 2013 at 1 03 PM Bader Chrystal M Chrystal m bader doj state or us wrote

thOops sorry It is September 5 when they are both available and at our Portland office 1515 SW FifthAve Ste 410 Are you able to come there Thanks

Chrystal Bader



image001 jpg

Exhibit B Page 1 of 4


From Lake Perriguey mailto lake law works comSent Wednesday August 21 2013 12 30 PMTo Bader Chrystal MSubject Re Lake Perriguey request for Meeting with Ellen Rosenblum

Hi Chrystal

Your email indicates that it is next week s schedule but then the date identifies a day that is two weeks away

Can we do a google hangout I do not expect them to drive to my office


T 503 227 1928F 503 334 2340



PLEASE DON T PRINT CONSERVE RESOURCESThis e mail may contain confidential or privileged information If you are not the i ntended recipient

please notify the sender immediately by return e mail with a copy to lake law works com and delete

this e mail and all copies and attachments

On Aug 21 2013 at 12 22 PM Bader Chrystal M Chrystal m bader doj state or us wrote

Hi Lake

I can help with geing you a meeting with Mary Williams Deputy Aorney G eneral Below is heravailability next week Also aending will be Sheila Poer Deputy Chief Trial Couns el

Thursday September 5 10 00 AM 12 00 noon 2 00 4 00 PM

Please let me know if this date works for you If not we can look out further Thanks

Chrystal Bader



image001 jpg



From Lake Perriguey mailto lake law works comSent Thursday August 15 2013 9 50 AMTo Busey JenniferSubject Re Lake Perriguey request for Meeting with Ellen Rosenblum

Hi there

Thank you so much

Lake James Perriguey

LAW WORKS LLC1906 SW Madison StPortland OR 97205 1718503 803 5184

On Aug 15 2013 at 9 48 AM Busey Jennifer jennifer busey doj state or us wrote

Hello Lake

We met recently by phone when I helped schedule you a little time with AG Rosenblumand Deputy Williams Hope all is well

I have your request on my list and will be in touch as soon as I can regarding availability Both the AG and Deputy are out of theoffice today and tomorrow I ll review scheduling requests next week and will be back in touch

Thank you and have a good day

Jennifer Busey

Executive Assistant and Scheduler for

Ellen Rosenblum Attorney General

503 378 6002

From Lake Perriguey mailto lake law works comSent Wednesday August 14 2013 11 21 AMTo Attorney GeneralSubject Request for Meeting with Ellen Rosenblum

Hello

I would like to set up a meeting with Ellen Rosenblum to discuss a federal constitutional challenge of Oregon s

anti gay definition of marriage


T 503 227 1928F 503 334 2340



PLEASE DON T PRINT CONSERVE RESOURCESExhibit B

Page 3 of 4


This e mail may contain confidential or privileged information If you are not the i ntended recipient

please notify the sender immediately by return e mail with a copy to lake law works com and delete

this e mail and all copies and attachments

CONFIDENTIALITY NOTICE

This e mail may contain information that is privileged confidential or otherwise ex empt from disclosure under

applicable law If you are not the addressee or it appears from the context or otherwise that you have received this

e mail in error please advise me immediately by reply e mail keep the contents conf idential and immediately delete

the message and any attachments from your system



From Potter Sheila HTo Lake Perriguey

Sent 9 9 2013 5 32 34 PMSubject RE Meeting

It was so nice to meet you The contacts are Marc Abrams s friends and he says he knows you abit so you will hear from him or them if you haven t already

And please call me Sheila

Sheila

From Lake Perriguey mailto lake law works comSent Saturday September 07 2013 5 56 PMTo Potter Sheila HSubject Meeting

Dear Ms Potter

It was nice to see you this past week I will look forward to hearing from your contacts soon

LakeLake James H PerrigueyLaw Works LLC1906 SW Madison StreetPortland Oregon 97205T 503 227 1928F 503 334 2340http www law works com http www law works comskype lagojaimeOTLA Guardian of Civil Justice

PLEASE DON T PRINT CONSERVE RESOURCESThis e mail may contain confidential or privileged information If you are not the intendedrecipient please notify the sender immediately by return e mail with a copy to lake lawworks com mailto lake law works com and delete this e mail and all copies and attachments

Exhibit C Page 1 of 1


Exhibit D Page 1 of 2


Exhibit D Page 2 of 2



Sent 9 17 2013 9 13 57 AMSubject RE Litigation

I don t think that this approach is the way to go I ll give you a call in a bit if you havetime this morning

From Lake Perriguey mailto lake law works comSent Tuesday September 17 2013 8 28 AMTo Potter Sheila HSubject Litigation

Dear Sheila

The first paragraph of every motion in federal court must certify that the parties made a goodfaith effort to resolve the issues in the complaint which will be those discussed in my priordiscussions with you The constitution and the underlying statutory framework as clarified inLi limit marriage to same sex couples in violation of fundamental due process and equalprotection So I am writing to discuss a resolution Once the case is filed I would like tosay that the parties have conferred and the State agrees with the plaintiffs

If so then I could simultaneously submit a stipulated Judgment declaring Measure 6unconstitutional and the marriage statutes as well insofar as they prevent same sex couplefrom marrying in violation of the Equal Protection Clause and enjoining the State and itsinstrumentalities from enforcing Measure 36 and the marriage statutes

Could it be this direct If so then I could get a stipulated judgment as above with anadditional injunction against the multnomah county clerk requiring him or her to issue alicense

Lake James H PerrigueyLaw Works LLC1906 SW Madison StreetPortland Oregon 97205T 503 227 1928F 503 334 2340http www law works com http www law works comskype lagojaimeOTLA Guardian of Civil Justice


Exhibit E Page 1 of 1


From Lake PerrigueyTo Potter Sheila HSent 9 17 2013 10 31 42 PMSubject Re Marriage Stipulated Judgment and other thoughts

Yes we did speak about this I appear to have drafted this before we spoke and sent it once weconcluded that this approach did not make sense to either of us

Lake James H PerrigueyLaw Works LLC1906 SW Madison StreetPortland Oregon 97205T 503 227 1928F 503 334 2340http www law works comskype lagojaimeOTLA Guardian of Civil Justice

PLEASE DON T PRINT CONSERVE RESOURCESThis e mail may contain confidential or privileged information If you are not the intendedrecipient please notify the sender immediately by return e mail with a copy to lake lawworks com and delete this e mail and all copies and attachments

On Sep 17 2013 at 10 22 PM Potter Sheila H sheila potter doj state or us wrote

Lake Did our wires get crossed If I wasn t clear this morning I apologize the Statewouldn t and couldn t sign onto a stipulated judgment I had understood you to say that youdidn t think was a good idea anyway even from your perspective

It remains something that I can t imagine my office would sign onto and that I wouldn trecommend to any client It s not the way to resolve important questions of constitutionallaw

Besides a federal judge presented with a question of law can be expected to analyze anddecide the question of law Lawyers don t get to bind judges legal rulings by agreeing witheach other Judges are charged with getting the law right as best they can whether thelawyers agree or not

But that s secondary We won t stipulate to a judgment on constitutionality It s just notthe way to handle those kinds of questions

Sheila H PotterDeputy Chief CounselTrial DivisionOregon Department of Justice

On Sep 17 2013 at 3 42 PM Lake James Perriguey lake law works com mailto lake lawworks com wrote

Sheila

I don t know if a federal judge would even declare a provision of a state constitutional andstatutes unconstitutional under the Equal Protection Clause and find a fundamental right tomarriage without some kind of adversarial process I don t know of any case in which that hasbeen done but then neither I nor my team are familiar with every one of the thousands ofconstitutional law cases In any event a stipulated judgment would require mutual agreementI would like your office to consider whether this idea has any appeal

Ideally it would contain a declaratory judgment that Measure 36 cited by its actualarticle and section number in the constitution and the relevant marriage statutes violate theEqual Protection Clause and are void and unenforceable to the extent that they prohibitsame sex couples from obtaining marriage licenses and 2 an order injunction requiring thestate and all of its subdivisions to issue marriage licenses to same sex couples

I wonder if a federal judge would stay the effective date of the judgment pendingExhibit F Page 1 of 2


resolution of any appeal in the cases in other states

What would happen to the judgment if no one appealed but a Supreme Court ruling laterestablishes that the legal conclusion in the judgment is erroneous Would Oregon still bebound by the judgment That doesn t sound reasonable And if the federal judge in Oregonthinks such thoughts at 3 a m and decides that the better course is to stay the effectivedate of a judgment then we may not have accomplished anything by suing in Oregon before thereis a US Supreme Court ruling on the issue

Just a few thoughts

Lake


PLEASE DON T PRINT CONSERVE RESOURCESThis e mail may contain confidential or privileged information If you are not the intended

recipient please notify the sender immediately by return e mail with a copy to lake lawworks com mailto lake law works com and delete this e mail and all copies and attachments


This e mail may contain information that is privileged confidential or otherwise exemptfrom disclosure under applicable law If you are not the addressee or it appears from thecontext or otherwise that you have received this e mail in error please advise me immediatelyby reply e mail keep the contents confidential and immediately delete the message and anyattachments from your system

Exhibit F Page 2 of 2


From Dave FidanqueTo Mary Williams

Sent 9 23 2013 3 13 33 PMSubject Continue Our Conversation

Mary

I d like to touch base with you briefly about additional info that came to my attention over the weekend on the topic Idiscussed last week

I can be reached on my cell 541 954 7731

Thanks

Dave

David Fidanque

Executive Director

ACLU of Oregon

P O Box 40585 Portland OR 97240■ pdx 503 227 6928 ■ eug 541 683 9277■ m 541 954 7731 ■ dfidanque aclu or orgwww aclu or org

This message may contain information that is confidential or legally privileged If y ou are not the intended recipient please immediately advise the sender by

reply email that this message has been inadvertently transmitted to you and delete th is email from your system

Exhibit G Page 1 of 5


From Dave FidanqueTo Mary Williams

CC Kevin DiazSent 9 23 2013 5 45 25 PMSubject MemoAttachments 22636408 1 DOCX ATT00001 txt

Mary

With the caveat we discussed that this does not represent an official ACLU position here isGreg s take on intervention in the circumstance I described to him

Dave F



Suite 2400

1300 SW Fifth AvenuePortland OR 97201 5610

Gregory A Chaimov503 778 5328 tel

503 778 5299 fax

gregorychaimov dwt com

MEMORANDUM

To David Fidanque and Jann Carson

From Gregory A Chaimov and Paul SouthwickDate September 23 2013

Subject Intervention

This memorandum responds to your request for our views on whether after Hollingsworth v

Perry 133 SCt 2652 186 L Ed 2d 768 2013 a person s role as chief petitioner is a sufficientbasis to require a district court to allow the person to intervene in an action that challenges the

validity of the state measure of which the person was chief petitioner 1

The answer depends primarily on the whether the state defends the challenged measure

A court must grant a timely motion to intervene that shows

1 The applicant has a significant protectable interest relating to the property or

transaction that is the subject of the action

2 The disposition of the action may as a practical matter impair or impede the

applicant s ability t o protect its interest and

3 The existing parties may not adequately represent the applicant s interest

Prete v Bradbury 438 F3d 949 954 2007 quoting United States v Alisol Water Corp 370

F3d 915 919 2004 By virtue of having been chief petitioner a chief petitioner fulfills the first

two requirements Prete 438 F3d at 955

Absent a very compelling showing Prete 438 F3d at 956 quoting Arakai v Cayetano 324

F3d 1078 1086 2003 a state s defense of a measure will be deemed a dequate and preclude a

district court from permitting a chief petitioner from intervening as a matter of right In Prete

the Court of Appeals ruled that the district court erred when allowing the chief petitioner to

intervene as a matter of right in a ch allenge to 2002 Ballot Measure 26 438 F3d at 957 court

presumes the Oregon government adequately represents the interests of the chief petitioner

1 A district court may permit a chief petitioner to intervene despite the chief petitioner s lacking the qualifications tointervene as a matter of right t he decision to grant or deny permissive intervention is discretionary subject to

considerations of equity and judicial economy Prete v Bradbury 438 F3d 949 958 n 13 2007 quoting Garza

v County of Los Angeles 918 F2d 763 777 1990

DWT 22636408v1 0050062 082039



From this analysis we conclude that a district court must allow a person to intervene underFRCP 24 a if the state elects not to defend a challenge to the measure of which the person waschief petitioner

Hollingsworth v Perry holds that a person does not establish standing to sue by virtue of having

served as chief petitioner of a challenged measure and therefore the person may not appeal an

adverse decision rendered in the action in which the person intervened Hollingsworth v Perry

did not address whether a chief petitioner must establish standing to sue to intervene as a matter

of right

We expect therefore that if the state elects not the defend Measure 36 the district court willpermit the chief petitioners to intervene to defend the measure

First notwithstanding a statement in Prete and in other cases that the Ninth Circuit has not

decided whether an intervenor must establish standing to sue in addition the requirements of

FRCP 24 a 438 F3d at 955 n 8 we expect the district court to consider the Ninth Circuit not torequire an independent showing of standing See e g State of California Dep t of Soc Servs v

Thompson 321 F3d 835 846 9th Cir 2003 Ms Rosales did not need to meet Article IIIstanding requirements to intervene 2

Second district courts are interpreting Hollingsworth v Perry not to require a showing of

standing to in addition meeting the requirements of FRCP 24 a For example in VividEntertainment Inc v Fielding 2013 US Dist LEXIS 109251 p 2 CD Cal 2013 the districtcourt permitted the official proponents of a measure to intervene because in Hollingsworth v

Perry the Supreme Court left the district court s judgment intact In so doing it implicitly

approved of the framework currently at issue at the district court level intervention by initiative

proponents is proper when the government is enforcing the initiative but refuses to defend it

regardless of whether the interveners have standing independent of the government defendants

citation omitted

2 There are Ninth Circuit cases thatcould be read to say that a person establishes standing to sue by virtue of

meeting the requirements of FRCP 24 a Those statements are not viable afterHollingsworth v Perry

2DWT 22636408v1 0050062 082039



Sent from my iPad



From Potter Sheila HTo Lake Perriguey Williams Mary HSent 10 1 2013 2 36 45 PMSubject RE Legal Challenge Discriminatory Provision of Or Constitution

Thanks Lake Keep us posted Eugene strikes me as an equally appropriate venue as Portlandfor a suit against the Governor and the AG Marion County disputes are properly heard in theEugene Division under the Local Rules and it s not at all uncommon for the State to be suedthere

From Lake Perriguey mailto lake law works comSent Sunday September 29 2013 2 39 PMTo Potter Sheila H Williams Mary HSubject Legal Challenge Discriminatory Provision of Or Constitution

Dear Sheila and Mary

Attached is an updated draft of the lawsuit we plan to file We may add additional plaintiffswho have children My hope is to file within the next 10 days

This draft anticipates a filing in Portland we are considering filing in Eugene Though ourclients live in Portland the state officials act throughout the state

It is in all parties interest to advance the case expeditiously With this in mind I wouldlike to know the State s position with regard federal venue and to a possible filing inEugene

Lake James H PerrigueyLaw Works LLC1906 SW Madison StreetPortland Oregon 97205T 503 227 1928F 503 334 2340http www law works com http www law works comskype lagojaimeOTLA Guardian of Civil JusticePLEASE DON T PRINT CONSERVE RESOURCESThis e mail may contain confidential or privileged information If you are not the intendedrecipient please notify the sender immediately by return e mail with a copy to lake lawworks com mailto lake law works com and delete this e mail and all copies and attachments

Exhibit H Page 1 of 1



Sent 10 22 2013 10 56 32 AMSubject RE Geiger v Kitzhaber

Sure I m in Portland both days

From Lake Perriguey mailto lake law works comSent Tuesday October 22 2013 10 44 AMTo Potter Sheila HSubject Re Geiger v Kitzhaber

Sheila

I would like to meet with you in person if that works for you in Portland



On Oct 22 2013 at 10 05 AM Potter Sheila Hsheila potter doj state or us mailto sheila potter doj state or us wrote

I am indeed Today and tomorrow are all jammed up but how are Thursday or Friday for you andLea Ann

Sheila

From Lake Perriguey mailto lake law works com http law works comSent Monday October 21 2013 3 51 PMTo Potter Sheila HSubject Geiger v Kitzhaber

Dear Sheila

I understand you are just returning from time away from the office Welcome back

Are you available to meet this week to discuss this case in anticipation of a Rule 16scheduling conference discovery and case planning

Each day that Bob and Bill and their children and Deanna and Janine are denied equal accessto marriage by Oregon while they witness similarly situated citizens in NJ CA WA NY andother states marry without unconstitutional government direction and intervention the damageto them and their families is greater and more palpable

While my clients are elated by the movement toward equality effected by the recent decision toextend some equal rights to those citizens married out of state we would like to move thecase along straightaway

Lake James H PerrigueyLaw Works LLC1906 SW Madison Street x apple data detectors 0 0 Exhibit I

Page 1 of 2


Portland Oregon 97205 x apple data detectors 0 0T 503 227 1928 tel 503 20227 1928F 503 334 2340 tel 503 20334 2340http www law works com http www law works comskype lagojaimeOTLA Guardian of Civil Justice

PLEASE DON T PRINT CONSERVE RESOURCESCONFIDENTIALITY NOTICE

This e mail may contain information that is privileged confidential or otherwise exempt fromdisclosure under applicable law If you are not the addressee or it appears from the contextor otherwise that you have received this e mail in error please advise me immediately byreply e mail keep the contents confidential and immediately delete the message and anyattachments from your system

Exhibit I Page 2 of 2


From Potter Sheila HTo Katharine VON TER STEGGESent 10 31 2013 10 39 46 AMSubject RE Geiger

Just got an adjuster assigned and he s the one I need to talk to and will

From Katharine VON TER STEGGE mailto katevts multco usSent Thursday October 31 2013 10 13 AMTo Potter Sheila HSubject Geiger

Hi Sheila

Have you had any more thoughts discussions as to whether the State will indemnify the Countyor at least agree to not seek to split the Plaintiff s fee petition Lake says that he won tseek from fees from the County

Happy Halloween

Kate von Ter Stegge

Assistant County Attorney Multnomah County Attorney

501 SE Hawthorne Suite 500 Portland OR 97214

503 988 3138 503 988 3377 fax

katevts mailto katevts co multnomah or us multco us http multco us

Exhibit J Page 1 of 1


From Lake PerrigueyTo Potter Sheila HSent 11 5 2013 6 47 08 AMSubject Re Geiger

Dear Sheila

Thank you for responding I am on holiday today it is not a dude ranch though it is Texas

Do you anticipated that the state will acknowledge the history of discrimination agai nst gay people and advance a

strict scrutiny compelling basis analysis

The video of the New Mexico arguments were fascinating

I have always been stunned at the sophistry promoted by otherwise intelligent people who would deny that gay

people are a minority with a history of discrimination and that only a rational basis test should apply

At one point in the colloquy a NM Supreme Court justice asked Have you never hear d of the concept in thecloset

Mary Williams letter to Michael Jordan articulating the basis for the directive to r ecognize same sex marriages

performed out of state recognizes that a court could apply a strict scrutiny analysis

I do hope that the state will encourage the court to apply a strict scrutiny analysis

Lake

Lake James H PerrigueycLaw Works LLC1906 SW Madison StreetPortland Oregon 97205

T 503 227 1928F 503 334 2340



PLEASE DON T PRINT CONSERVE RESOURCESThis e mail may contain confidential or privileged information If you are not the i ntended recipient please notifythe sender immediately by return e mail with a copy to lake law works com and delete this e mail and all copies

and attachments

On Nov 1 2013 at 1 40 PM Potter Sheila H sheila potter doj state or us wrote

I ve got time this afternoon I m not sure how much I m in a position to tell you atthis point but I m alwayshappy to give you a call

From Lake Perriguey mailto lake law works comSent Tuesday October 29 2013 8 29 AMTo Potter Sheila HSubject Geiger

Sheila

Exhibit K Page 1 of 2


I am preparing a Motion for Summary Judgment in anticipation of your and the county s answerDo you have a few moments this week to speak with me on the phone about your anticipa ted arguments


T 503 227 1928F 503 334 2340



PLEASE DON T PRINT CONSERVE RESOURCESThis e mail may contain confidential or privileged information If you are not the i ntended recipient please notify

the sender immediately by return e mail with a copy to lake law works com and delete this e mail and all copies

and attachments


This e mail may contain information that is privileged confidential or otherwise ex empt from disclosure under

applicable law If you are not the addressee or it appears from the context or otherwise that you have received this

e mail in error please advise me immediately by reply e mail keep the contents conf idential and immediately deletethe message and any attachments from your system

Exhibit K Page 2 of 2


From Potter Sheila HTo Lea Ann Easton

Sent 11 5 2013 9 16 59 AMSubject Re Geiger

Thank you


On Nov 5 2013 at 9 15 AM Lea Ann EastonLEaston dorsayindianlaw com mailto LEaston dorsayindianlaw com wrote

I do I need to finish up a project by 10 30 am so any time after 10 30 would be fine I am inthe rest of the dayMy office number is 503 790 9060

Lea Ann

From Potter Sheila H mailto sheila potter doj state or usSent Tuesday November 05 2013 9 12 AMTo Lea Ann EastonSubject Fwd Geiger

Hey do you have any time for a call today I don t want to worry Lake but I also want to becareful about discretion in a case in which a lot of people want to know what we re going tosay before we say it and are battering down the AG s door to find out so that they can lobbyher to say what they want her to say

Begin forwarded message

From Lake Perriguey lake law works com mailto lake law works com mailto lake lawworks com mailto lake law works com 3e 3eDate November 5 2013 6 47 08 AM PSTTo Potter Sheila H sheila potter doj state or us mailto sheila potter doj state or usmailto sheila potter doj state or us mailto sheila potter doj state or us 3e 3e

Subject Re Geiger

Dear Sheila

Thank you for responding I am on holiday today it is not a dude ranch though it is Texas

Do you anticipated that the state will acknowledge the history of discrimination against gaypeople and advance a strict scrutiny compelling basis analysis

The video of the New Mexico arguments were fascinatingI have always been stunned at the sophistry promoted by otherwise intelligent people who woulddeny that gay people are a minority with a history of discrimination and that only a rationalbasis test should applyAt one point in the colloquy a NM Supreme Court justice asked Have you never heard of theconcept in the closet

Mary Williams letter to Michael Jordan articulating the basis for the directive to recognizesame sex marriages performed out of state recognizes that a court could apply a strictscrutiny analysis

I do hope that the state will encourage the court to apply a strict scrutiny analysis

Lake

Lake James H PerrigueycLaw Works LLC Exhibit L

Page 1 of 2


1906 SW Madison StreetPortland Oregon 97205T 503 227 1928F 503 334 2340http www law works com http www law works com http www law works com 3eskype lagojaimeOTLA Guardian of Civil Justice

PLEASE DON T PRINT CONSERVE RESOURCESThis e mail may contain confidential or privileged information If you are not the intendedrecipient please notify the sender immediately by return e mail with a copy to lake lawworks com mailto lake law works com mailto lake law works com mailto lake law works com 3eand delete this e mail and all copies and attachments

On Nov 1 2013 at 1 40 PM Potter Sheila Hsheila potter doj state or us mailto sheila potter doj state or usmailto sheila potter doj state or us mailto sheila potter doj state or us 3e 3e wrote

I ve got time this afternoon I m not sure how much I m in a position to tell you at thispoint but I m always happy to give you a call

From Lake Perriguey mailto lake law works comSent Tuesday October 29 2013 8 29 AMTo Potter Sheila HSubject Geiger

Sheila

I am preparing a Motion for Summary Judgment in anticipation of your and the county s answerDo you have a few moments this week to speak with me on the phone about your anticipatedarguments

Lake James H PerrigueyLaw Works LLC1906 SW Madison StreetPortland Oregon 97205T 503 227 1928F 503 334 2340http www law works com http www law works com http www law works com 3eskype lagojaimeOTLA Guardian of Civil Justice

PLEASE DON T PRINT CONSERVE RESOURCESThis e mail may contain confidential or privileged information If you are not the intendedrecipient please notify the sender immediately by return e mail with a copy to lake lawworks com mailto lake law works com mailto lake law works com mailto lake law works com 3eand delete this e mail and all copies and attachments



Exhibit L Page 2 of 2


From Lake PerrigueyTo Potter Sheila H Katharine VON TER STEGGESent 11 9 2013 6 43 03 PMSubject Geiger

Hi Sheila and Katharine

There is a new development in the case that we should discuss prior to the filing of responsive pleadings

Please let me know if there is a good time to speak on Monday or Tuesday I m happy to call you both we do notneed a conference call


T 503 227 1928F 503 334 2340



PLEASE DON T PRINT CONSERVE RESOURCESThis e mail may contain confidential or privileged information If you are not the i ntended recipient please notify

the sender immediately by return e mail with a copy to lake law works com and delete this e mail and all copiesand attachments

Exhibit M Page 1 of 1


From Potter Sheila HTo Lake Perriguey Lea Ann Easton

CC Katharine VON TER STEGGE Sage TetonSent 11 21 2013 1 29 48 PMSubject RE Question on pleadings

Thanks Boy there are some odd artifacts in there aren t there

I was thinking more in terms of the laws that the Complaint specifically seeks to invalidateor enjoin which I presume don t include all laws that refer to marriage or to husbands and

wives Like rather than invalidating the privilege for marital communications my guess isthat the desired result would be for the privilege to apply equally to same sex spouses

Which I guess raises another issue in that the relief requested doesn t ask for an ordercompelling equal application of the benefits of laws that specifically refer to husband andwife If that s something that belongs in the suit and it may I imagine that it should be

in the pleadings so that it s within the Court s authority to grant or deny that reliefrather than the Court ordering it sua sponte That one might require an amendment to theComplaint

But in terms of the laws sought to be invalidated wholly in the existing Complaint if youLake and Lea Ann could e mail us a letter setting out the laws that you are asking the Court

to declare unconstitutional and to enjoin then I think we could make that an exhibit to ourAnswer and incorporate that list into the pleadings that way Does that make sense And Iagree with Lea Ann that language can be crafted to allow for there being something thatdoesn t get picked up in the initial list a stipulation that Paragraph Nos 3 5 22 2633 etc etc refer to ORS numbers and that you have not to date identifiedothers but that you reserve the right to amend to add to the list any other laws that have

the effect of barring same sex couples from the benefits of marriage in Oregon But when itcomes to declaring Oregon laws unconstitutional I think it s important to know which ones areon the table

On an unrelated note should we get on Judge McShane s calendar for a Rule 16 conference

From Lake Perriguey mailto lake law works comSent Thursday November 21 2013 1 03 PMTo Lea Ann EastonCc Potter Sheila H Katharine VON TER STEGGE Sage TetonSubject Re Question on pleadings

Hello all

Plaintiffs seek full equality

The Domestic Partnership law in ORS 106 includes language that generally identifies laws andrules of marriage and attempts to create a and unequal equal scheme ORS 106 calls out all

laws in Oregon in the following way it does not cite each one specifically I think weshould be able to stipulate generally that the same Oregon laws that ORS 106 speaks to are thesame Oregon laws that the plaintiffs are claiming should be equally applied

And exhaustive list will no doubt leave something out

106 340 Certain privileges immunities rights benefits and responsibilities granted orimposed 1 Any privilege immunity right or benefit granted by statute administrative orcourt rule policy common law or any other law to an individual because the individual is orwas married or because the individual is or was an in law in a specified way to anotherindividual is granted on equivalent terms substantive and procedural to an individualbecause the individual is or was in a domestic partnership or because the individual is or

was based on a domestic partnership related in a specified way to another individual2 Any responsibility imposed by statute administrative or court rule policy common law or

any other law on an individual because the individual is or was married or because theindividual is or was an in law in a specified way to another individual is imposed onequivalent terms substantive and procedural on an individual because the individual is orwas in a domestic partnership or because the individual is or was based on a domestic

partnership related in a specified way to another individual Exhibit N Page 1 of 4


3 Any privilege immunity right benefit or responsibility granted or imposed by statuteadministrative or court rule policy common law or any other law to or on a spouse withrespect to a child of either of the spouses is granted or imposed on equivalent termssubstantive and procedural to or on a partner with respect to a child of either of thepartners

4 Any privilege immunity right benefit or responsibility granted or imposed by statuteadministrative or court rule policy common law or any other law to or on a former orsurviving spouse with respect to a child of either of the spouses is granted or imposed onequivalent terms substantive and procedural to or on a former or surviving partner withrespect to a child of either of the partners

5 Many of the laws of this state are intertwined with federal law and the LegislativeAssembly recognizes that it does not have the jurisdiction to control federal laws or theprivileges immunities rights benefits and responsibilities related to federal laws

6 ORS 106 300 to 106 340 do not require or permit the extension of any benefit under ORSchapter 238 or 238A or under any other retirement deferred compensation or other employeebenefit plan if the plan administrator reasonably concludes that the extension of benefitswould conflict with a condition for tax qualification of the plan or a condition for otherfavorable tax treatment of the plan under the Internal Revenue Code or regulations adoptedunder the Internal Revenue Code

7 ORS 106 300 to 106 340 do not require the extension of any benefit under any employeebenefit plan that is subject to federal regulation under the Employee Retirement IncomeSecurity Act of 1974

8 For purposes of administering Oregon tax laws partners in a domestic partnershipsurviving partners in a domestic partnership and the children of partners in a domesticpartnership have the same privileges immunities rights benefits and responsibilities as aregranted to or imposed on spouses in a marriage surviving spouses and their children 2007c 99 9



On Nov 21 2013 at 12 55 PM Lea Ann EastonLEaston dorsayindianlaw com mailto LEaston dorsayindianlaw com wrote

Notice This communication including any attachments may contain privileged or confidentialinformation intended for a specific individual and purpose and is protected by law If youare not the intended recipient you should delete this communication and or shred thematerials and any attachments and are hereby notified that any disclosure copying ordistribution of this communication or the taking of any action based on it is strictlyprohibited

Notice 2 To comply with IRS regulations we inform you that any U S federal tax advicecontained in this communication including any attachments is not intended to be used andcannot be used for the purpose of i avoiding penalties under the Internal Revenue Code orii promoting marketing or recommending to another party any transaction or matter addressed

herein

Sheila Exhibit N Page 2 of 4


I ve attached a list we ve compiled of various places in Oregon Revised Statutes whichreference husband and wife in response to your request While we have attempted to capture allsuch reference in ORS I am not confident that the list is inclusive of all such references instatutes despite our efforts to identify each and every place in the statutes Additionallyit does not include references in Oregon Administrative Rules which also would be affected bythis litigation

While I agree that we should be able to come up with a stipulation on this issue I amconcerned that attaching a list may not capture all of such references It seems as though weshould be able to craft the stipulation to cover this issue but look forward to hearing yourthoughts on it

Lea Ann

Dorsay Easton LLPSuite 440 1 SW ColumbiaPortland OR 97258

503 790 9060

From Potter Sheila H mailto sheila potter doj state or usSent Tuesday November 19 2013 8 59 AMTo Lea Ann Easton Lake PerrigueyCc Katharine VON TER STEGGESubject Question on pleadings

Lake and Lea Ann

In a couple of places in the complaint there is a reference to other laws alleging thatthose laws are unconstitutional and or calling for them to be enjoined See Complt 3 allother Oregon statutes that exclude gay and lesbian people from equal access to civilmarriage 5 Oregon statutes which refer to husband and wife and by implicationrestrict marriage to only a man and a woman 22 Oregon s discriminatory marriage laws26 all Oregon statutes restricting marriage to heterosexual couples 33 all Oregonstatutes referring to marriage and describing only husband and wife 34 all statestatutes to the extent they limit marriage to heterosexuals 30 35 37 38 and request forrelief 12 Oregon statutes that limit marriage to husband and wife Request fo r relief

1 laws that bar or in any way impede same sex marriage

Ordinarily we would want plaintiffs to specifically list the state statutes they are seekingto invalidate in the complaint It helps focus the argument and ensures that the final ordercan be definitive and easy to implement

We re not in light of everything going to ask for an amended complaint here but can youprovide us with a list that we can incorporate into our Answer as a stipulation That seemslike the quickest way to all get on the same page

Thanks




Exhibit N

no. 14-35427 united states court of appeals for ...media.oregonlive.com/mapes/other/45 - declaration...

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