UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

JONELL EVANS, individually;
STACIA IRELAND, individually;
MARINA GOMBERG, individually;
ELENOR HEYBORNE, individually;
MATTHEW BARRAZA, individually;
and
KARL FRITZ SHULTZ, individually,

Plaintiffs - Appellees,

v.

STATE OF UTAH, GARY R.
HERBERT, in his official
capacity as Governor of Utah, and
SEAN D. REYES, in his official
capacity as Attorney General of Utah,

Defendants Appellants,








No. 14-4060

STATE DEFENDANTS APPELLANTS REPLY IN SUPPORT OF
MOTIONS FOR STAY PENDING APPEAL
________________________________________________________________________





Appellate Case: 14-4060 Document: 01019261034 Date Filed: 06/09/2014 Page: 1
[Docket Reference Number 10181998]
1

Utah Governor Gary R. Herbert and Utah Attorney General Sean D.

Reyes, through Undersigned Counsel, file this reply brief in further support
of a stay pending appeal. Fed. R. App. P. 27(a)(4).
INTRODUCTION
Plaintiffs brief (Oppn) mischaracterizes Defendants actions, both in
filing the instant motion and in pursuing parallel state proceedings. Oppn at
1. In actuality, undersigned Counsel has been regularly in contact with
Plaintiffs counsel since the district courts stayed injunction issued. During
that time, Defendants had no predetermined plan, but instead, diligently
researched and carefully analyzed the legal and practical viability of all
available options, including implementation or appeal. When an appeal
seemed likely, Counsel contacted Plaintiffs lead counsel, Mr. Strindberg, on
Friday May 30, 2014 as a courtesy. At that time, Counsel told Mr. Strindberg
an appeal was likely but promised to notify him if one would be imminently
filed and offered to stipulate to extend the district courts stay if Plaintiffs
desired extra time. When a final decision was made to appeal, Counsel
immediately contacted Mr. Strindberg on Monday June 2, 2014, and
reiterated multiple times the offer for extra time. The following evening, Mr.
Strindberg stated he had discussed the issue with his team, and said we feel
we have plenty of time to respond. Two days later, Defendants filed a Stay
Motion, and the following evening, Plaintiffs filed an opposition with three
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days left before the stay was set to expire. Consequently, this Court should
not consider Plaintiffs timing claims in balancing equities analysis.
With respect to parallel proceedings, Utah, through its Department of
Health (Department), sought clarity from the Utah Supreme Court
regarding the conflict between a state district courts orders and Utah state
law. It did so only in response to actions taken by interim married couples,
including some Plaintiffs. Consequently, any suggestion of forum shopping
is also inaccurate and unsupported by the facts of this case.
I. Harms and Equities: Denying a Stay Would Deprive
Defendants Of Meaningful Appellate Review

As discussed in Defendants Brief (Defs. Br.), this Court should stay
this matter pending appeal because failing to do so will moot this appeal for
all practical purposes. If Utah is required to recognize and give benefits to
the marriages, despite state statutes and a state constitutional provision to
the contrary, the appeal of the legal issues can yield nothing more than a
prohibited advisory opinion, which federal courts may not render. Alabama
v. Arizona, 291 U.S. 286, 291 (1935); Norvell v. Sangre de Criston Dev. Co.,
519 F.2d 370, 375 (10th Cir. 1975). Plaintiffs have tacitly conceded the
serious risk of mootness that would occur if the Court does not continue the
stay, Oppn at 1618, which is far more serious than administrative
difficulties. Id. at 16. It is a threat to proper appellate review of a novel,
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important legal issue affecting the lives of thousands of Utahans. To ensure

Utahs right to review is preserved, a stay is essential.
Importantly, not only would this appeal essentially be rendered moot,
so would the pending cases before the Utah Supreme Court. That court has
before it the issue of whether the Department may recognize same-sex
marriages performed in the interim period for purposes of amending birth
certificates in step-parent adoptions. If the stay is not granted, and the State
must recognize the marriages, the Utah Supreme Court would be hard
pressed to address the state law issues presented. Consequently, Utahs
highest court would be deprived of addressing critical matters of state
law. Moreover, taking the issue from the Utah Supreme Court would deprive
this Court of guidance on a state law matter that would guide and bind this
Court with respect to Utah law. E.g., San Diegans for Mt. Soledad Natl War
Meml v. Paulson, 548 U.S. 1301, 130304 (2006) (Kennedy, J., in
chambers). The stay equities favor a stay in this case.
The district court and Plaintiffs are mistaken when they fault
Defendants for forum shopping and creating the possible conflict between
the federal court and the Utah Supreme Court. Several same-sex couples,
including two Plaintiffs here, filed petitions for step-parent adoption in Utah
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state courts. When several entered adoption decrees,

1
the couples presented
the decrees to the Department to amend minors birth certificates. See Pet.,
(attached to opening memorandum as Exhibit 4). The Department sought
clarity from the Utah Supreme Court regarding the conflict between the
district court orders and Utah law.
It was only when the couples sought adoptions in state court after this
case was removed to federal court; and the state courts ordered state officials
to take action; and the precise question of whether the State could recognize
the interim marriages was raised, that Defendants asked the federal district
court to certify the issue of state law. Before these events, Plaintiffs sought
to certify the different question of whether the Due Process Clause of the
Utah Constitution required the State to recognize the interim
marriages. Because Utahs Amendment 3 is in effect (post stay of Kitchen),
Defendants argued there was no need to certify the question since it was
obvious that recognition was barred by Amendment 3. It was only after the
significant changes in circumstances just described that Defendants sought
certification of the question that was already pending before the Utah

1
Contrary to Plaintiffs assertion, state courts have ruled in Defendants
favor. See Doe v. State, 1400542, doc 33-1 at 33, in Evans v. State, 2:14-cv-55.
And those courts that stayed adoption proceedings ruled as the State
recommended. Cf. Op. at 33.
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Supreme Court, in part due to Plaintiffs seeking to force Utah to recognize

their same-sex marriage adoption through a state court order.
These events were precipitated by Plaintiffs taking the recognition
question to state court before the federal district court ruled. Defendants do
not fault Plaintiffs for seeking recognition in federal and state court.
Likewise, Defendants appropriate response to Plaintiffs filings should not be
held against Defendants in determining the propriety of a stay.
The balance of the harms tips decidedly in favor of Defendants because
if the stay is not granted, the right to appeal the district courts ruling is
effectively lost. Plaintiffs will incur additional delay in having their
marriages recognized if it is ultimately determined that Utahs laws are
unconstitutional. But, as described in Defendants brief, the harm is offset by
the certainty that results in a final, complete review of the legal issues, which
benefits all parties and all the people of Utah. Utah respects Plaintiffs and
understands their concerns regarding their familial status. But delay in
implementing trial court rulings while higher courts review the legal issues is
essential to ensure a complete, final resolution of these important questions
and to protect the integrity of Utahs laws.
II. Plaintiffs Legal Responses Are Erroneous or Non-Responsive
Defendants opening brief demonstrates that the district court
erroneously determined Utah statutory and constitutional provisions at issue
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violated the Fourteenth Amendment. Rather than respond to or counter the

arguments raised in the opening brief, Defs. Br. at II.A., that Elwell and
Windsor offer no support for such a proposition, Plaintiffs largely parrot the
district courts analysis of the foundation of the asserted marriage right
under the Fourteenth Amendment. See Oppn at 810. Defendants rest on
their opening brief on that topic and focus on the legal issues of retroactivity
and vesting.
A. The District Courts Retroactivity Analysis Is Erroneous
There are three principal and legally fatal infirmities in Plaintiffs
defense of the district courts analysis of retroactivity. First, both fail to
recognize that the plain language of the provisions evidence intended
retroactive application. The word recognize in the provisions at issue
inherently demonstrates an intention to acknowledge actions past because,
as a matter of logic, one cannot recognize something that has not previously
occurred. This is further supported by the common definitions of the word
recognize and its associates as they are used in everyday and legal
discourse.
2

2
The Oxford English Dictionary defines the term as always applying to
something past, for one cannot recognize a non-occurrence: to look over again
. . . to know again, to perceive to be identical with something previously
known. The Compact Edition of the Oxford English Dictionary, Recognize,
2442 (Oxford U.P., 1989). The words root is same as cognizance, to
apprehend or appreciate, with re implying a past event, again. Id. The
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Second, the statutory and constitutional provisions were intended to

apply retroactively to same-sex marriages that occurred in other states.
Section 2 of the federal Defense of Marriage Act, 28 U.S.C. 1738C,
unchallenged in the Windsor decision, authorizes states to refuse recognition
of same-sex marriages; Utahs provisions; are similarly structured. Again, by
form of logic, a state can only refuse to recognize a marriage that has already
occurred. This fact of legislative intent and history was recognized in Kitchen
v. Herbert, 961 F. Supp. 2d 1181, 119192 (D. Utah 2013). Kitchen was
accurate on this point in spite of other limitations, as it understood the
purpose of the Utah statutory scheme, like those in DOMA Section 2, was
intended to allow states like Utah to refuse to recognize same-sex marriages
that had already occurred. That Utah did not include a clause akin to and if
these provisions are temporarily suspended they will apply equally to any
same-sex marriages that occur during that period is not surprising.
Waddoups v. Noorda, 321 P.3d 1108 (Utah 2013), upon which Plaintiffs
rely heavily, is inapposite. While it is true that Waddoups dealt with the
word recognize and, like the district court, analyzed the significance of the
present tense, the Waddoups court did so in the context of identifying
whether causes of action, as Plaintiffs explicitly identify, accrued before the

same connotation is noted in every definition of the word, including the noun
form recognizance. Id. at 2441. As such, retroactivity is at the very center
of the action implied by the plain language to recognize.
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statute was passed. Oppn at n.2. As such, Waddoups properly identifies

the general Utah rule against retroactivity. Yet, it also clearly identifies the
exception to that rule applicable here: there is a clear and unavoidable
implication that the statute operates on events already past. Id. at 111112,
(quoting Evans & Sutherland Computer Corp. v. Utah State Tax Commn,
953 435, 437 (Utah 1997)). The question of whether Utahs laws regarding
recognition may be retroactively applied to the interim marriages is before
the Utah Supreme Court, favoring a stay.
Finally, the very cases cited by Plaintiffs and the district court
regarding retroactivity favor Defendants rather than Plaintiffs position. See
Oppn at n.1 (collecting cases). Each case applies to legislation passed after
an event or action at issue rather than legislation which, as here, was
suspended for a time and then through no action of legislators or the voters
put back into effect. Even Cook v. Cook, 104 P.3d 857 (Ariz. Ct. App. 2005), a
case in which Plaintiffs and the district court put much stock, deals with, a
statute applied to marriages that were already recognized in Arizona before
the statute was passed. Oppn at n.1.
B. Plaintiffs Vested Rights Analysis Is Erroneous
Plaintiffs confidence in the district court ruling regarding vested
rights, Oppn at 911, fails to acknowledge the complexity and novelty of the
legal issue here. No other court has ever decided whether marriages, made
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lawful by a district court temporarily enjoining state laws banning such

marriages, somehow acquire vested rights. The question is whether
Plaintiffs marriage rights were created in, and thus are dependent on,
Kitchen, or whether the marriages acquired rights under the federal
constitution or state law once they were solemnized.
3
As Defendants set out
in their brief, the district court relied on dicta for its ruling that Plaintiffs
marriages acquired federal liberty interests and incorrectly applied state law
in concluding Plaintiffs acquired state-created property interest in their
marriages.
While there is no case with the same facts and legal questions as here,
the well-developed vested rights doctrine best describes the rights Plaintiffs
acquired in their marriages: rights that did not exist prior to and were
created in a judicial decision. Defs. Br. at 10, 14. Plaintiffs argue the
doctrine does not apply because the cases Defendants cite, have nothing to
do with pending appeals. Oppn at 13. But the vested rights doctrine and
many cases applying it does address the status of rights created by an order
on appeal:

3
The court in Strauss v. Horton, 207 P.3d 48, 64 (Cal 2009), noted that under
the unique facts in that case, there could have been a due process problem if
the California Supreme Court had ruled that Proposition 8 applied
retroactively to marriages that were solemnized before that Proposition was
passed. Here, the statutes and state constitutional amendment at issue were
passed long before Plaintiffs married.
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The vested rights doctrine has a due process component

grounded upon a recognition that rights fixed by judgment are, in
essence, a form of property over which legislatures have no greater
power than any other [property]. . . .
However . . . a case remains pending, and open to legislative
alteration, so long as an appeal is pending or the time for filing an
appeal has yet to lapse. Thus, if, subsequent to the judgment, and
before the decision of the appellate court, a law intervenes and
positively changes the rule which governs, the law must be
obeyed . . . .
Axel Johnson Inc. v. Arthur Anderson & Co., 6 F.3d 78, 84 (2d Cir. 1993)
(alterations in original) (citations omitted); accord 16A CJS Constitutional
Law 422 (The legislature may not by retroactive statute . . . impair final
judgments or rights therein adjudicated . . . . There can be no vested right,
therefore, in a verdict, order, or judgment, while . . . the order or judgment is
subject to appellate review.) (footnotes omitted) (emphasis added). Under
the vested rights doctrine, there can be no doubt that Utahs laws currently
in effect apply to Plaintiffs marriages.
CONCLUSION
For the foregoing reasons, and those set forth in Defendants brief, this
Court should grant a stay pending appeal.
4

4
Should this Court deny this motion, Defendants ask for a temporary stay
allowing time to seek a stay from the U.S. Supreme Court.
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Dated this 9th day of June, 2014.

Respectfully submitted,

s/ Parker Douglas
PARKER DOUGLAS
Federal Solicitor & Chief of Staff

Joni Jones
Kyle Kaiser
Office of the Utah Attorney General
350 N. State Street, Ste. 230
Salt Lake City, Utah 84114
801-366-0100 (phone)
pdouglas@utah.gov

Appellate Case: 14-4060 Document: 01019261034 Date Filed: 06/09/2014 Page: 12
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ECF CERTIFICATIONS
Pursuant to Section II(I) of the Courts CM/ECF Users Manual, the
undersigned certifies that:

1. all required privacy redactions have been made;

2. hard copies of the foregoing motion required to be submitted to the
clerks office are exact copies of the brief as filed via ECF; and

3. the brief filed via ECF was scanned for viruses with the most recent
version of Microsoft Security Essentials v. 4.5.216.0, and according
to the program is free of viruses.

s/ Parker Douglas

CERTIFICATE OF SERVICE

I hereby certify that on the 9th of June, 2014, a true, correct and
complete copy of the foregoing State DefendantsAppellants Reply in
Support of Motions for Stay Pending Appeal was filed with the Court and
served on the following via the Courts ECF system:


s/ Parker Douglas

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