COLORADO SUPREME COURT Colorado State Judicial Building 2 East 14th Avenue Denver, CO 80203

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________________________ Case No. 2014SA000212

Appeal from District Court, Adams County, Colorado Hon. C. Scott Crabtree Case No. 13CV32572 APPELLANTS: STATE OF COLORADO, et al, APPELEES: REBECCA BRINKMAN, et al. Attorneys for Jefferson County: JEFFERSON COUNTY ATTORNEY ELLEN G. WAKEMAN, #12290 Writer Mott, #33148 David Wunderlich, #39365 Assistant County Attorney Jefferson County Attorney's Office 100 Jefferson County Parkway, #5500 Golden, CO 80419-5500 Phone: 303-271-8932 Fax: (303) 271-8901 wmott@co.jefferson.co.us dwunderl@co.jefferson.co.us

JEFFERSON COUNTY CLERK AND RECORDER’S, DOUGLAS

COUNTY CLERK AND RECORDER’S, LA PLATA COUNTY CLERK AND RECORDER’S, ARAPAHOE COUNTY CLERK AND RECORDER’S, AND MESA COUNTY’S CLERK AND RECORDER’S AMICUS BRIEF IN RELATION TO THE ATTORNEY GENERAL’S EMERGENCY MOTION

FOR INJUCTION PENDING APPEAL

DATE FILED: July 16, 2014 2:43 PM FILING ID: EE3F13ED3BBE1 CASE NUMBER: 2014SA212

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Interested Third Parties, Jefferson County Clerk and Recorder Pam

Anderson, Douglas County Clerk and Recorder Jack Arrowsmith, La Plata County

Clerk and Recorder Tiffany Lee Parker, Arapahoe County Clerk and Recorder

Matt Crane, and Mesa County Clerk and Recorder Sheila Reiner (collectively, the

“Interested Clerks”), by and through counsel, respectfully request this Court issue

an order on the Attorney General’s Emergency Motion for Injunction Pending

Appeal (the “Injunction Motion”) providing guidance to the County Clerks

regarding the issuance of marriage licenses for same-sex couples in Colorado.

The legal landscape governing the rights of same-sex couples to be married

in Colorado has dramatically shifted in the last few months in light of the trial

court’s decision in this case, the decision of the Tenth Circuit Court of Appeals in

Kitchen v. Herbert, No. 13-4178, 2014 WL 2868044 (10th Cir. 2014) (striking

down Utah’s ban on same-sex marriages), and the decision of the Boulder District

Court denying the Attorney General’s request to enjoin the Boulder County Clerk

and Recorder from issuing same-sex marriage licenses in Colorado v. Hall, No.

14CV30833 (Boulder Cnty. Dist. Ct. July 10, 2014). These decisions have created

uncertainty amongst the county clerks about the propriety and legality of issuing

same-sex marriage licenses and have resulted in a patchwork of inconsistent

policies and procedures, with some county clerks issuing same-sex marriage

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licenses and others waiting for more definitive and binding precedent to resolve

this constitutional issue.

The Interested Clerks are separately elected County Officials who are

statutorily responsible for issuing marriage licenses in accordance with State law.

See Colo. Const. Art. 14, Sec. 8 (creating the office of County Clerk and

Recorder); C.R.S. § 14-2-106 (establishing a non-discretionary duty upon county

clerks to issue marriage licenses if certain state requirements are met). The county

clerks in issuing marriage licenses act in a ministerial role enforcing state law. See

Echols v. Parker, 909 F.2d 795, 801 (5th Cir. 1990) (“A county official pursues his

duties as a state agent when he is enforcing state law or policy.”); Bethesda

Lutheran Homes & Services, Inc. v. Leean, 154 F.3d 716, 718 (7th Cir. 1998)

(“When the municipality is acting under compulsion of state or federal law, it is the

policy contained in that state or federal law, rather than anything devised or

adopted by the municipality, that is responsible for the injury.”). See also

Injunction Motion, pg. 8 (“By definition, the issuance of marriage licenses is a

ministerial act…. Under the Uniform Marriage Act, County Clerks are given the

power to issue licenses by the State on behalf of the State, but only if the

requirements set by the state are met.”).

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The Interested Clerks are now confronted with several State and Federal

Court decisions, including the trial court decision in this case, holding Colorado’s

constitutional and statutory prohibitions against same-sex marriage to be

unconstitutional, casting doubt on the continued legality and enforcement of

Colorado’s same-sex marriage ban. However, none of these reported decisions

constitute a final, binding order on the county clerks on this issue as all of the

decisions have been stayed pending appeal.

The Interested Clerks, therefore, seek affirmative guidance from this Court

and are hopeful that this Court will provide clear direction to the county clerks

regarding whether they should begin issuing same-sex marriage licenses or

whether they should, as advocated by the Attorney General, be enjoined from

issuing same-sex marriage licenses pending a final determination on the merits of

this appeal. An order addressing this single issue will allow the county clerks to

once again uniformly and consistently issue marriage licenses throughout the State

and would provide much needed clarification on this important issue of state and

constitutional law.

The Injunction Motion provides this Court with the important and historic

opportunity to provide direction and clarity to the county clerks, as well as to the

public at large, as to whether the county clerks should or should not be issuing

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same-sex marriage licenses in Colorado. The Interested Clerks respectfully request

that this Court, in its order addressing the Injunction Motion, provide explicit

direction to the county clerks to either begin issuing same-sex marriage licenses or,

in the alternative, cease issuing marriage licenses pending final determination of

the merits of this appeal challenging the constitutionality of Colorado’s ban on

same-sex marriage.

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Dated this 16th day of July, 2014.

JEFFERSON COUNTY ATTORNEY ELLEN G. WAKEMAN s/ David Wunderlich David Wunderlich, #39365 Writer Mott, #33148 Assistant County Attorney 100 Jefferson County Parkway, Suite 5500 Golden, CO 80419 Telephone: 303-271-8932 dwunderl@co.jefferson.co.us wmott@co.jefferson.co.us MESA COUNTY ATTORNEY s/ Andrea Nina Atencio Andrea Nina Atencio, #33351 Assistant County Attorney P.O. Box 20,000 Grand Junction, CO 81502 Telephone: 970-244-1612 Nina.atencio@mesacounty.us DOUGLAS COUNTY ATTORNEY LANCE INGALLS s/ Kelly Dunnaway Kelly Dunnaway, #31896 Deputy County Attorney 100 Third Street Castle Rock, CO 80104 Telephone: 303-660-7414 KDunnawa@douglas.co.us

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LA PLATA COUNTY ATTORNEY SHERYL ROGERS Sheryl Rogers Sheryl Rogers, #20962 County Attorney 1099 Main Ave, Suite 313 Durango, CO 81301 Telephone: 970-382-8600 rogers@lpcattorney.org ARAPAHOE COUNTY ATTORNEY RON CARL s/ John Cristofferson John Cristofferson, #35292 Assistant County Attorney 5334 S. Prince Street Littleton, CO 80120

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CERTIFICATE OF SERVICE

I hereby certify that on the 16th day of July, 2014, I filed the foregoing JEFFERSON COUNTY CLERK AND RECORDER’S, DOUGLAS COUNTY CLERK AND RECORDER’S, LA PLATA COUNTY CLERK AND RECORDER’S, ARAPAHOE COUNTY CLERK AND RECORDER’S, AND MESA COUNTY’S CLERK AND RECORDER’S AMICUS BRIEF IN RELATION TO THE ATTORNEY GENERAL’S EMERGENCY MOTION FOR INJUCTION PENDING APPEAL via ICCES and served as follows:

Michael Francisco Leeann Morrill Dan D. Domenico Attorney General’s Office 1300 Broadway, 10th Floor Denver, CO 80203 Michael.francisco@state.co.us Leeann.morrill@state.co.us Dan.domenico@state.co.us Ralph Ogden M. Anne Wilcox Wilcox & Ogden, P.C. 160 Lafayette Street Denver, CO 80218 irishcorky@aol.com Professor Thomas Russell 1001 16th St. B180 #175 Denver, CO 80265 Tdrlaw@comcast.net John J. McHugh Anthony L. Giacomini Amy R. Gray Michael Kotlarczyk Tess Hand-Bender Jason M. Lynch

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Reilly Pozner LLP 1900 16th Street, Suite 1700 Denver, CO 80202 jmchugh@rplaw.com agiacomini@rplaw.com agray@rplaw.com mkotlarczyk@rplaw.com thandbender@rplaw.com jlynch@rplaw.com Marcus Lock Law of the Rockies 525 North Main Street Gunnison, CO 81230 mlock@lawoftherockies.com Ann Gushurst Gutterman Griffiths P.C. 10375 Park Meadows Blvd., Suite 520 Littleton, CO 80124 ann@ggfamilylaw.com Heidi M. Miller Jennifer D. Stanley Adams County Attorney’s Office 4430 South Adams County Parkway 5th Floor, Suite C5000B Brighton, CO 80601-8206 hmiller@adcogov.org Jack Finlaw Benjamin Figa Governor’s Office of Legal Counsel 121 State Capitol Denver, CO 80203 Jack.finlaw@state.co.us Ben.figa@state.co.us

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Wendy J. Shea Denver City Attorney’s Office Litigation Section 201 West Colfax Avenue, Dept. No. 1108 Denver, CO 80202-5332 Wendy.shea@denvergov.org Michael J. Norton Alliance Defending Freedom 7951 E. Maplewood Avenue, Suite 100 Greenwood Village, CO 80111 mjnorton@alliancedefendingfreedom.org Byron J. Babione, Pro Hac Vice David Austin R. Nimocks, Pro Hac Vice Alliance Defending Freedom 15100 N. 90th Street Scottsdale, AZ 85260 Facsimile: 480-444-0025

/s/ Briana McCarten Briana McCarten, Paralegal