PLAINTIFF-APPELLEES OPPOSITION TO MOTION FOR ENLARGEMENT OF TIME TO FILE OPENING BRIEF
JONELL EVANS, individually; STACIA IRELAND, individually; MARINA GOMBERG, individually; ELENOR HEYBORNE, individually; MATTHEW BARRAZA, individually; and KARL FRITZ SCHULTZ, 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 Appellate Case: 14-4060 Document: 01019297353 Date Filed: 08/19/2014 Page: 1 [Docket Reference Number 10199683]
1 INTRODUCTION Plaintiffs counsel understand the need for professional courtesy in agreeing to extension requests. But because of the irreparable harm and extreme uncertainty the Plaintiffs face every day that the district courts order remains stayed, and because that stay cannot be lifted before this Court reviews Defendants appeal, Plaintiffs are compelled to oppose the Defendants-Appellants motion to extend time. BACKGROUND AND PROCEDURAL HISTORY On May 19, 2014, the district court granted Plaintiffs motion for a preliminary injunction compelling Defendants to recognize Plaintiffs marriages. Memorandum Decision & Order dated 5/19/2014, docket number 45. At that time, the district court recognized that: The State has placed Plaintiffs and their families in a state of legal limbo with respect to adoptions, child care and custody, medical decisions, employment and health benefits, future tax implications, inheritance, and many other property and fundamental rights associated with marriage. These legal uncertainties and lost rights cause harm each day that the marriage is not recognized. The court concludes that these circumstances meet the irreparable harm standard under Tenth Circuit precedents.
Id. at 25-26 (emphasis added). Indeed, on the record for the preliminary injunction, Defendants made no attempt to counter the factual showings that each Plaintiffs couple and their families are, on a daily basis, facing untenable harms related to Defendants stripping of their marriages of recognition. As one illustrative example, Defendants have undertaken litigation to successfully block Mr. Milners son from receiving a birth certificate that recognizes Mr. Appellate Case: 14-4060 Document: 01019297353 Date Filed: 08/19/2014 Page: 2
2 Milner as his adoptive father. Every day that Mr. Milner and his son are without that document leaves them in a state of uncertainty about whether their legal relationship will be granted equal status as other parents and children in Utah and without the dignity granted to other adoptive families. Nonetheless, in granting Plaintiffs motion for a preliminary injunction, the district court simultaneously granted a limited 21day stay during which it may pursue an emergency motion to stay with the Tenth Circuit. Id. at 30. Defendants then filed for a stay on June 4, 2014, which this Court granted on a temporary basis the next day. Order filed by Clerk dated 6/05/14, Court of Appeals Docket # 14-4060. On July 11, 2014, this Court denied Defendants motion to extend the stay of the district courts order to cover the entire time of the appeal. On July 18, 2014, the United States Supreme Court granted Defendants motion to extend the stay to the duration of Defendants appeal of the district courts preliminary injunction. On August 12, 2014, the district court certified that the record was complete, and this Court set a deadline for Defendants brief of September 22, 2014. On August 18, 2014, Defendants filed the present motion to extend the deadline to file their opening brief an additional month. ARGUMENT Rule 27.4(A) of this Court is clear: Extensions of time to file briefs are disfavored. Putting teeth to this rule, the Court has set out a list of specific showings that counsel seeking additional time need to make. Defendants do not overcome this Appellate Case: 14-4060 Document: 01019297353 Date Filed: 08/19/2014 Page: 3
3 Courts hurdles to make it purposely difficult to be granted an extension. On the other hand, Plaintiffs will suffer real prejudice from any further delays in this matter. First and most glaringly, Defendants have not satisfactorily state[d] reasons why other associated counsel cannot prepare the brief for timely filing or relieve movants counsel of the other litigation. Rule 27.4(D)(1)(d). While Mr. Douglas is clearly Defendants first choice to prepare the brief, the mere fact that Ms. Jones and Mr. Kaiser usually deal with trial level work hardly makes them incompetent to prepare the present appellate brief. Moreover, both Ms. Jones and Mr. Kaiser have been involved with this case since its inception. Further, Ms. Jones and other attorneys in her office have acted as counsel in Defendants motions for extraordinary writs in the state court litigation surrounding birth certificates. As such, Mr. Douglas is far from the only attorney at the Utah Attorney Generals office who has the requisite knowledge of this case and Defendants legal positions to more than adequately prepare the brief. Nor can Mr. Douglas be the only attorney in that office who has appellate briefing skills to complement the trial level attorneys. Finally, to the extent Mr. Douglas is essential to Defendants brief, Mr. Douglas described caseload ends on September 8, giving him ample time to review and give input to work product drafted by others. Moreover, if counsel is busy with other litigation, as is the case with Mr. Douglas in the Ute Tribe case here, Defendants are required to show, among other things, the action taken in the other litigation on a request for continuance or deferment; [and] state reasons why the other litigation should receive priority over the case in which the motion is filed. Rule 27.4(D)(1)(b)-(c). Defendants fail on both prongs here. First, they have Appellate Case: 14-4060 Document: 01019297353 Date Filed: 08/19/2014 Page: 4
4 not described any steps they took to extend the schedule in the Ute Tribe litigation to free Mr. Douglas time, or why another attorney in their office could not take over for Mr. Douglas there. Second, they give no reason why that litigation should take a priority over this case, which would be especially difficult because a district court has already ruled that daily irreparable harm is being visited upon Plaintiffs for as long as the injunction not enforced. It also cannot be said that that Defendants could not have foreseen the timing of the present briefing schedule to anticipate a need to shift resources and priorities. Further, Defendants generally assert that this case is factually and legally complex and presents a novel issue. To rely on case complexity as a reason for an extension, however, Rule 27.4(D)(2) requires that a movant show that the case is so complex that an adequate brief cannot reasonably be prepared by the due date, in which case the motion must state facts demonstrating the complexity. Defendants do not state any facts demonstrating that this case meets this heightened level of complexity contemplated by the rule. Even granting a higher level of complication here, Defendants have already submitted extensive briefing at the trial level, as well as two substantive briefs on appeal, that deal directly with all of the main issues on appeal. They have had since January of this year, when this case was filed, to deliberate about the issues presented here and have undoubtedly already done much of the required research and writing needed. On the other side of the equation, there are families who face financial, emotional, and dignitary harms every single day Defendants refuse to recognize their marriages. These real concrete harms militate strongly against any further extensions in this case. Appellate Case: 14-4060 Document: 01019297353 Date Filed: 08/19/2014 Page: 5
5 While Plaintiffs counsel understand the need for professional courtesy in agreeing to extension requests, they are unable to do so when extensions will work tangible harm to their clients. CONCLUSION For the foregoing reasons, Defendants-Appellants Motion to Enlarge Time to File Opening Brief should be denied.
Respectfully Submitted,
/s/ John Mejia Erik Strindberg (Utah Bar No. 4154) Lauren I. Scholnick (Utah Bar No. 7776) Kathryn Harstad (Utah Bar No. 11012) STRINDBERG & SCHOLNICK, LLC 675 East 2100 South, Ste. 350 Salt Lake City, UT 84106 Telephone: (801) 359-4169 Facsimile: (801) 359-4313 erik@utahjobjustice.com lauren@utahjobjustice.com kass@utahjobjustice.com
Attorneys for Plaintiffs-Appellees
John Mejia (Utah Bar No. 13965) Leah Farrell (Utah Bar No. 13696) AMERICAN CIVIL LIBERTIES UNION OF UTAH FOUNDATION, INC. 355 N. 300 W. Salt Lake City, Utah 84103 Telephone: 801.521.9862 Facsimile: 801.532.2850 jmejia@acluutah.org lfarrell@acluutah.org
Joshua A. Block ACLU LGBT Project 125 Broad Street, Floor 18 New York, New York, 10004 Telephone: (212) 549-2593 Facsimile: (212) 549-2650 jblock@aclu.org Dated: August 19, 2014
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6
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7 CERTIFICATE OF DIGITAL SUBMISSION
I hereby certify that with respect to the foregoing Opposition:
(1) all required privacy redactions have been made per 10th Circ. R. 25.5;
(2) if required to file additional hard copies, that the ECF submission is an exact copy of those documents;
(3) the digital submissions have been scanned for viruses with the most recent version of a commercial virus scanning program, Sophos Mac AntiVirus, updated 6/6/2014, and according to the program are free of viruses.
August 19, 2014 ___s/ Leah Farrell_______ Leah Farrell lfarrell@acluutah.org ACLU of Utah 355 N 300 W Salt Lake City, UT 84103 (801) 521-9862
CERTIFICATE OF SERVICE I hereby certify that on the 19th of August, 2014, a true, correct and complete copy of the foregoing Opposition was filed with the Court and served on the following via the Courts ECF system: Mr. Joshua A. Block: jblock@aclu.org Ms. Leah Farrell: lfarrell@acluutah.org Ms. Kathryn Harstad: kass@utahjobjustice.com Ms. Joni J. Jones: jonijones@utah.gov Mr. Kyle J. Kaiser: kkaiser@utah.gov Mr. John M. Mejia: jmejia@acluutah.org Mr. Erik Strindberg: erik@utahjobjustice.com
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8 In addition, I hereby certify that on August 19, 2014, I mailed or served the foregoing Opposition by first-class mail, postage prepaid, to the following: Mr. Parker Douglas Office of the Attorney General for the State of Utah 160 East 300 South, 6th Floor P.O. Box 140856 Salt Lake City, UT 84114
___s/ Leah Farrell_______ Leah Farrell lfarrell@acluutah.org ACLU of Utah 355 N 300 W Salt Lake City, UT 84103 (801) 521-9862
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