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Erik Strindberg (Bar No. 4154) Lauren I. Scholnick (Bar No. 7776) Kathryn Harstad (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 [email protected] [email protected] [email protected] [email protected]
John Mejia (Bar No. 13965) Leah Farrell (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 [email protected] Joshua A. Block* ACLU LGBT Project 125 Broad Street, Floor 18 New York, New York, 10004 Telephone: (212) 549-2593 Facsimile: (212) 549-2650 [email protected] *Admitted pro hac vice
Attorneys for Plaintiffs
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
JONELL EVANS, et al.
Plaintiffs
v.
STATE OF UTAH, et al.,
Defendants.
PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION FOR
CERTIFICATION
Case No. 2:14-cv-55 DAK
Case 2:14-cv-00055-DAK Document 35 Filed 04/17/14 Page 1 of 5
Although they previously objected to certification, Defendants now seek to use
certification as a means of manufacturing standing to challenge several families’ adoption
petitions at the Utah Supreme Court. It is time for the Court to issue a preliminary
injunction based Plaintiffs’ federal claims, putting an end to Defendants’ use of this
litigation to support its legal claims in other courts. Nothing short of a ruling based on
the federal Constitutional claims will bring a prompt end to Defendants’ ongoing and
brazen violation the rights of Plaintiffs and other legally married same-sex couples under
the federal Constitution.
I. DEFENDANTS SEEK CERTIFICATION TO COLLATERALLY ATTACK COMPLETED ADOPTIONS THEY ARE OTHERWISE BARRED FROM CHALLENGING Defendants were offered an opportunity to intervene in the adoption proceedings
of Mr. Barraza and Mr. Milner and other same-sex couples but declined to do so.
Having failed to intervene at the appropriate time, Defendants are absolutely barred from
collaterally attacking the completed adoption proceedings and attendant orders requiring
amended birth certifications. Utah law unambiguously provides that parties “may not
contest an adoption after the final decree of adoption is entered, if that person . . . was
served with notice of the adoption proceeding." Utah Code§ 78B-6-133(7)(a). “The
limitations on contesting an adoption action . . . apply to all attempts to contest and
adoption (i) regardless of whether the adoption is contested directly or collaterally; and
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Case 2:14-cv-00055-DAK Document 35 Filed 04/17/14 Page 2 of 5
(ii) regardless of the basis for contesting the adoption, including claims of ... mistake of
law, or lack of jurisdiction.” Id. § 78B-6-133(7)(c).
Defendants are aware that Utah Code§ 78B-6-133(7) bars their petition to the Utah
Supreme Court. Because they lack authority to challenge the completed adoption
proceedings – and the attendant orders requiring for amended birth certifications that
accompany any lawful adoption – Defendants now seek to manipulate this court’s
certification procedures to transfer jurisdiction to the Utah Supreme Court. This would
provide Defendants standing to challenge the adoption proceedings that they now lack.
This Court should not permit Defendants’ attempt to game the certification process.
II. THE COURT SHOULD ISSUE A PRELIMINARY INJUNCTION BASED ON PLAINTIFFS’ FEDERAL CONSTITUTIONAL CLAIMS
In light of Defendants’ recent litigation conduct, Plaintiffs respectfully submit that
the Court should put the issue to rest by issuing a preliminary injunction based on
Plaintiffs’ federal claims requiring that Defendants restore recognition to their legally
valid marriages. Until recently, it appeared that Defendants refused only to recognize
Plaintiffs’ marriages, but – as noted in Plaintiffs’ proposed supplement – Defendants now
claim the right to examine the factual predicate of court orders and refuse to comply with
those orders if the judgment was based on a court’s determination that Plaintiffs were
married. Defendants newly claimed power to ignore not only valid marriage licenses, but
also any other judicial determinations based upon those licenses, dramatically expands
the cloud of uncertainty that now hangs over Plaintiffs’ lives.
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Case 2:14-cv-00055-DAK Document 35 Filed 04/17/14 Page 3 of 5
In light of Defendants’ claims of ever-expanding power to flout the litigation
process, it is imperative that this Court make clear that – regardless of how the Utah
Supreme Court ultimately rules with respect to the state-law claims – stripping
recognition from the legal marriages of Plaintiffs and other same-sex couples violates
their vested rights and liberty interests under the federal Constitution. Like any other
married couple, Plaintiffs and other legally married same-sex couples are now protected
by the fundamental right to marry, and Defendants’ ongoing efforts to destroy those
marriages in violation of the Fourteenth Amendment should be repudiated in clear and
unequivocal terms.
In addition to ruling on Plaintiffs’ federal constitutional claims, the Court may, of
course, also exercise its discretion to certify state-law questions to the Utah Supreme
Court to give that court a chance to definitively resolve those questions if it so chooses.
But the Court should make clear that such certification does not detract from its
preliminary injunction on the federal constitutional claims or relieve Utah and state
officials, bound by the injunction in their official capacities, from their federal
constitutional obligation to recognize the marriages of Plaintiffs and other same-sex
couples, including any valid court orders concerning stepparent adoptions based on those
marriages.
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Case 2:14-cv-00055-DAK Document 35 Filed 04/17/14 Page 4 of 5
DATED this 17th day of April 2014.
STRINDBERG & SCHOLNICK, LLC
/s/ Lauren I. Scholnick Erik Strindberg Lauren I. Scholnick Kathryn Harstad Attorneys for Plaintiffs
CERTIFICATE OF SERVICE I hereby certify that the foregoing pleading was served upon the following via the CM/ECF
electronic delivery system.
JONI J. JONES KYLE K. KAISER Office of the Utah Attorney General 160 East 300 South Salt Lake City, UT 84114 [email protected] [email protected] /s/ Lauren I. Scholnick
B:\CurrentClientsUT\Marriage Equality\Pleadings\Plaintiffs Response to Certification Motion Final.docx
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