JONI J. JONES (7562)

KYLE J. KAISER (13924) Assistant Utah Attorneys General

PARKER DOUGLAS (8924)

General Counsel and Chief of Staff

OFFICE OF THE UTAH ATTORNEY GENERAL 160 East 300 South, Sixth Floor P.O. Box 140856 Salt Lake City, Utah 84114-0856 Telephone: (801) 366-0100 Facsimile: (801) 366-0101

E-mail: jonijones@utah.gov

kkaiser@utah.gov

pdouglas@utah.gov

Attorneys for State Defendants

IN THE UNITED STATES DISTRICT COURT

IN AND FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

JONELL EVANS, STACIA IRELAND,

MARINA GOMBERG, ELLENOR

HEYBORNE, MATTHEW BARRAZA,

TONY MILNER, DONALD JOHNSON,

and CARL FRITZ SHULTZ,

Plaintiffs, v. STATE OF UTAH, GOVERNOR GARY

HERBERT, in his official capacity; and

ATTORNEY SEAN REYES, in his official

capacity,

Defendants.

DEFENDANTS’ RESPONSE TO

PLAINTIFFS’ PROPOSED

SUPPLEMENT TO MOTION FOR

PRELIMINARY INJUNCTION

Case No. 2:14-cv-00055-DAK

Judge Dale A. Kimball

Defendants the State of Utah, Governor Gary Herbert, and Attorney General Sean Reyes,

(“Defendants” or the “State” or the “State of Utah”) by and through counsel, Joni J. Jones and

Case 2:14-cv-00055-DAK Document 33 Filed 04/16/14 Page 1 of 8

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Kyle J. Kaiser, Assistant Utah Attorneys General, and Parker Douglas, General Counsel and

Chief of Staff, provide the following response to Plaintiffs’ Supplement to Motion for

Preliminary Injunction. (Docs. 32, 32-1, 32-2.)

RESPONSE TO PLAINTIFFS’ FACTUAL SUPPLEMENT

Defendants do not dispute the supplemental facts set out in Plaintiffs’ [Proposed]

Supplement. (Doc. 32-1 at 2–4.) However, Plaintiffs have omitted certain relevant facts, which

Defendants set out below.

1. On January 27, 2014, the Honorable Robert P. Faust, Judge for the Third Judicial

District of Utah, heard argument in Doe v. State, Case No. 140900542. (See

Transcript of Hearing on Motion for TRO, redacted portions of which are attached as

Exhibit 1.)

2. Shane Marx, who acted as counsel of record in the Doe case, (see Compl. for

Extraordinary, Injunctive, and Declaratory Relief, a redacted copy of which is

attached as Exhibit 2), is also adoption counsel for Matthew Barraza and Tony

Milner, who are Plaintiffs in this action. (See [Proposed] Supplement to Mot. for

Prelim. Inj., (Doc. 32-1); see also Decl. of Shane Marx (Doc. 32-2).)

3. The events relating to Mr. Barraza’s and Mr. Milner’s state court adoption proceeding

form the basis for the collective Plaintiffs’ supplemental filing. (See [Proposed]

Supplement to Motion for Preliminary Injunction, Doc. 32-1; see also Declaration of

Shane Marx, Doc. 32-2.)

4. Like Mr. Barraza and Mr. Milner, the Doe petitioners are a same-sex couple who

married in Utah prior to the United States Supreme Court issuing its stay in Herbert v.

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Kitchen, 134 S. Ct. 893, 2014 WL 30367 (U.S. Utah). (See Doe v. State Complaint,

Ex. 2, ¶ 4.)

5. In Doe, Petitioners requested, among other things, that the district court direct the

State to execute a declaration of voluntary parentage upon the birth of the child with

whom Ms. Doe was then-pregnant. (See Doe Complaint, Ex. 2, ¶ 1.)

6. They also moved the district court to enter a TRO “restraining enforcement of Utah

Code §§ 30-1-2(5) and 30-1-4.1 and Utah Constitution Article 1, Section 29, as

applied to plaintiffs’ marriage.” (Doe Motion for Temporary Restraining Order,

redacted copy attached as Exhibit 3.)

7. After hearing argument on January 27, 2014, the Honorable Judge Faust denied the

Doe Plaintiffs’ request for a restraining order: “This Court is not making a

determination on the status of marriages during this 17 day time period. That

issue . . . is being addressed by the federal courts. [N]or is the Court making any

determination at this time if any rights vested by virtue of the marriages performed

during the time period of [the Kitchen v. Herbert] injunction. (See Tr. of Hr’g on

Mot. for TRO, Ex. 1, at 42–43.)

8. Because the Doe complaint included Federal Constitutional claims, Defendants

removed the case to federal court, and then filed a motion to consolidate Doe with

Evans. (See Doc. 12.)

9. The Doe Plaintiffs then voluntarily dismissed their complaint. (See Doc. 17.)

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RESPONSE TO PLAINTIFFS’ SUPPLEMENTAL LEGAL ANALYSIS

Plaintiffs assert they are confident that the Utah Department of Health—which has filed a

writ with the Utah Supreme Court asking it to determine whether the Department is required to

comply with Judge Stone’s order to amend J.’s birth certificate—lacks standing. (Doc. 32-1 at

4.) Plaintiffs’ contention is not based on a legal authority but rather a statement of confidence,

which carries no legal effect, and the Utah Supreme Court will surely determine the issue of

standing as any court must determine whether it has jurisdiction. Gregory v. Shurtleff, 299 P.3d

1098, 1102-03 (Utah 2013) (noting Utah Constitution has no “case or controversy” restriction

and that Utah recognizes public interest standing in matters of great constitutional or public

importance). For this reason, Plaintiffs’ speculation regarding the Utah Department of Health’s

standing or lack thereof is speculative, and clear Utah Supreme Court authority requires precisely

the opposite of Plaintiffs’ position on standing.

Plaintiffs also assert that Judge Stone’s ruling is persuasive and that it highlights that they

are likely to succeed on the merits. (Doc. 32-1 at 4–5.) However, as set out in Defendants’

supplemental facts, Judge Faust agreed with Defendants’ legal position: whether Utah laws

prohibiting the State from recognizing same-sex marriage are unconstitutional is being decided

in the federal courts by the Tenth Circuit Court of Appeals, and Utah cannot be required to

recognize same-sex marriages until the issue is resolved. (See Tr. of Hr’g, Ex. 1, at 42–43 (“By

issuing a temporary restraining order the Court would be, by implication, making a

determination in part on those matters and issues being determined at the federal level.”) In

addition, Judge Faust ruled that the petitioners would not be irreparably harmed if they were

required to wait for Kitchen to be resolved before their same-sex marriage was recognized. (Id.

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at 42.) If Judge Stone’s ruling demonstrates that Plaintiffs are likely to succeed on the merits, as

they assert, then they ought to similarly concede that Judge Faust’s ruling demonstrates that they

are not likely to succeed on the merits.

Significantly, Plaintiffs did not provide this Court with a copy of Judge Stone’s ruling in

In re J.B. It is therefore not possible for the Court (or State Defendants) to actually evaluate

whether Judge Stone’s reasoning was sound and should apply in the Evans case. See Fincher ex

rel. Fincher v. Prudential Prop. & Cas. Ins. Co., Nos. 08-1109, 08-1159, 374 Fed. App’x 833,

840 n.9 (10th Cir. April 20, 2010) (ord. & j. not selected for publication) (considering

unpublished non-binding authority “persuasive because of its reasoned analysis”). Without a

written order to consider, this Court is left to speculate as to the basis of the decision. Did Judge

Stone independently determine that Utah’s laws banning recognition of same-sex marriage are

unconstitutional and thus could not bar Mr. Milner’s and Mr. Barraza’s adoption? Did Judge

Stone find that these plaintiffs’ rights to their marriage vested immediately once their marriage

was solemnized, based on Utah common law and thus the marriage had to be recognized? The

legal rationale for Judge Stone’s ruling is not known. Therefore, it is not possible to say whether

his ruling is persuasive as to the legal issues in Evans.

The Department of Health’s decision to petition the Utah Supreme Court to determine

whether it must comply with Judge Stone’s order is not “a dramatic expansion of [the State’s]

policy to refuse to recognize Plaintiffs’ legally valid marriage.” (Doc. 32-1 at 5.) Rather, the

Department’s position is consistent with the advice Governor Herbert set out on January 8, 2014:

Utah cannot take action to extend benefits to same-sex marriages performed before the United

States Supreme Court issued its stay that would require the state to “recognize” the marriage

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after the stay was issued. (See Gov. Herbert’s Letter to Cabinet Members, January 8, 2014,

Exhibit 4.) The specific example that Governor Herbert used as an illustration in the letter to his

cabinet is remarkably similar to the situation the Department of Health faces. In his letter,

Governor Herbert explained:

For example, if a same-sex married couple previously changed their names on

new drivers licenses, those licenses should not be revoked. If a same-sex couple

seeks to change their names on drivers licenses now, the law does not allow the

state agency to recognize the marriage[;] therefore the new drivers licenses

cannot be issued.

(Id. (emphasis added).) Plaintiffs themselves attached this letter to their Complaint; they were no

doubt aware of the State’s position that the State would not issue state documents reflecting the

same-sex couples as legally married. (See Ex. D to Pls’ Compl., Doc. 1, at page 90 of 106.)

Nor does the Department of Health’s action “directly contradict” Defendants’ counsel’s

statements at oral argument that the State is not seeking to intervene in Plaintiffs adoption. (Doc.

32-1 at 5.) In fact, the Department of Health has not requested that the Utah Supreme Court

invalidate or rescind Mr. Milner’s and Mr. Barraza’s adoption. Rather, the Department’s

position is that so long as the stay of Kitchen v. Herbert is in place, the Department cannot

recognize their marriage, which includes declining to issue a birth certificate with their names as

parents of J.

Because neither the Attorney General nor any executive agency has been provided with

the rationale for the state court’s order, it is difficult to comprehend the basis for the decision,

given the clear language of Utah law as it stands today. Nevertheless, this position is not an

attack on the adoption itself. Mr. Milner and Mr. Barraza are free to use the adoption order with

any entity not constitutionally prohibited from giving effect to same-sex marriages. For

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example, they could use the adoption or to entitle them to deductions on their federal income tax

filings, or to obtain other federal benefits to which their child, or they as parents of the child,

might be entitled. They could also, for example, present the order of adoption to a private

employer in order to obtain health care benefits for their adopted child. Simply put, the State is

not seeking to take any action to interfere with or judicially dissolve or alter the adoption.

Contrary to Plaintiffs’ loud and clear protestations, Utah is not interfering with Mr.

Milner and Mr. Barraza’s adoption. Defendants understand that by using rhetorical strategies

such as asserting the State is “striking a blow at Mr. Milner and Mr. Barraza’s child and their

very family structure” (Doc. 32-1 at 5 (emphasis added)), Plaintiffs appeal to emotion they no

doubt feel in this litigation, but argumentum ad populum and argumentum ad misericordiam are

classic logical fallacies upon which this Court cannot base its determination. United States v.

Silva, No. 1:11-CR-096-DN, 2013 WL6576788, at *11 (D. Utah July 31, 2013) (op. & ord. not

selected for publication) (noting the Tenth Circuit interpretive canon requiring judicial legal

determinations to follow tradition principles of logic (citing United States v. Jones, 49 F.3d 628

632 (10th Cir. 1995)). Defendants do not criticize Plaintiffs’ efforts, but seek to emphasize that,

despite the rhetoric, Defendants Attorney General Sean Reyes and Governor Gary Herbert, on

behalf of the State, have taken a consistent and fair position. Defendants believe this position—

state agencies not undergoing any specific action that requires the state agency to recognize a

same-sex marriage until Kitchen is resolved—is consistent with the current state of the law and is

the least harmful approach to all parties. Once a final resolution of Kitchen is reached, the state,

these plaintiffs, and the hundreds of other same-sex couples and their children, will know what

the law is regarding their marriages.

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CONCLUSION

Defendants do not object to Plaintiffs filing a supplement to their motion for preliminary

injunction. Defendants do believe Plaintiffs omitted relevant facts, and Defendants have

supplied those. Defendants also disagree with Plaintiffs’ characterization of what has occurred,

and have responded in order to correct the record. The Department of Health has sought

guidance from the Utah Supreme Court through the appropriate vehicle of an extraordinary writ.

The Department of Health was not a party to the adoption. As a non-party, a writ is its only

avenue to determine whether the Department is required to comply with an order which requires

it to recognize a same-sex marriage, in violation of Utah law currently in effect.

DATED this 16th day of April, 2014.

OFFICE OF THE UTAH ATTORNEY GENERAL

/s/ Kyle J. Kaiser

JONI J. JONES

KYLE J. KAISER

Assistant Utah Attorneys General

PARKER DOUGLAS

General Counsel and Chief of Staff

Attorneys for Defendants

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