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IN THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT



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]

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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.
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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
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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
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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.
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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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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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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

Appellate Case: 14-4060 Document: 01019297353 Date Filed: 08/19/2014 Page: 9

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