Case 2:14-cv-00055-DAK Document 38 Filed 04/25/14 Page 1 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: jonijones@utah.gov kkaiser@utah.gov pdouglas@utah.gov 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. Case No. 2:14-cv-00055-DAK STATE OF UTAH, GOVERNOR GARY HERBERT, in his official capacity; and ATTORNEY SEAN REYES, in his official capacity, Defendants. Judge Dale A. Kimball DEFENDANTS REPLY MEMORANDUM IN SUPPORT OF THEIR MOTION TO CERTIFY QUESTIONS OF UTAH STATE LAW TO THE UTAH SUPREME COURT

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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 courts 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 States 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, 104121.) 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 Plaintiffsalong 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? 2

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this Courtmoved 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 instancesthough the State understands, not in allstate 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 Utahs 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--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, 810.) 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 Healths]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-6133(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

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). 4

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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 scenarioor even the possibility thereofwould

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 5