Case 2:14-cv-00055-DAK Document 12 Filed 02/05/14 Page 1 of 10

JONI J. JONES (7562) KYLE J. KAISER (13924) Assistant Utah Attorneys General PARKER DOUGLAS (8924) Chief of Staff and Counsel General 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 pdouglas@utah.gov kkaiser@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 GENERAL SEAN REYES, in his official capacity, Defendants.

MOTION TO CONSOLIDATE AND/OR FOR TRANSFER OF CASE NO. 2:14-cv-61 AND MEMORANDUM OF LAW IN SUPPORT

Case No. 2:14-cv-00055-DAK Judge Dale A. Kimball

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MOTION Defendants the State of Utah, Governor Gary Herbert, and Attorney General Sean Reyes, by and through counsel Parker Douglas, General Counsel, and Joni J. Jones, and Kyle J. Kaiser, Assistant Utah Attorneys General, hereby move the Court to consolidate Doe v. State of Utah, Case No. 2:14-cv-00061 into the above-captioned case pursuant to DUCivR 42-1, or in the alternative, to accept transfer of Doe v. State of Utah as a related case pursuant to DUCivR 832(g). MEMORANDUM BACKGROUND On December 20, 2013, Judge Shelby ruled that same-sex couples have a fundamental right to marriage under the Federal Constitution and that the State was enjoined from enforcing Article I, 29 of the Utah Constitution, and Utah Code 30-1-2 and 30-1-4.1 as unconstitutional under the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the United States Constitution. Kitchen v. Herbert, ___ F. Supp. 2d ___, 2013 WL 6697874, at * 30 (D. Utah Dec. 20, 2013). The State of Utah repeatedly requested a stay of the ruling including orally on the date of its issue. On December 20, 2013, the State appealed Judge Shelbys ruling and requested a stay from the Tenth Circuit Court of Appeals. See Emergency Mot. for Temporary Stay, Kitchen v. Herbert, No. 13-4178 (10th Cir. filed Dec. 20, 2013). That stay was denied on December 22, 2013. See Ord. Kitchen v. Herbert, No. 13-4178 (10th Cir. Dec. 22, 2013). On December 23, 2013, Judge Shelby denied the States December 20, 2014 written motion for a stay. See Kitchen v. Herbert, No. 2:13-cv-217, 2013 WL 6834634, at * 4 (D. Utah 2

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Dec. 23, 2013) (ord. on mot. to stay not selected for publication). On December 22, 2013 the Tenth Circuit denied the States request for a stay pending the United States District Courts Ruling on the States motion before him, and on December 24, 2013, denied the States Motion for a stay pending appeal. See Ord. Denying Emergency Mot. for Stay & Temp. Mot. for Stay, Kitchen v. Herbert, No. 13-4178, at 2 (10th Cir. Dec. 24, 2013). Though the appeal process was continuing, and the State continued to seek stays of the District Courts Order, in compliance with that Courts ruling, Governor Gary Herbert directed Utahs state agencies that where no conflicting laws exist you should conduct business in compliance with the federal judges ruling until such time that the current district court decision is addressed by the 10th Circuit Court. Memo of 12-24-14 from Governors office to Cabinet, attached as Exhibit 1. On December 31, 2013, the State filed a request for stay with the United States Supreme Court. See Application for Stay Pending Appeal, Herbert v. Kitchen, 13A-687 (Dec. 31, 2013) Pursuant to Supreme Court rules, the motion for stay was filed with Judge Sotomayor, who referred the motion to the entire Court. On January 6, 2014, the Supreme Court issued a stay, stating: Application for stay presented to Justice SOTOMAYOR and by her referred to the Court granted. Permanent injunction issued by the United States District Court for the District of Utah, case No. 2:13-cv-217, on December 20, 2013, stayed pending final disposition of the appeal by the United States Court of Appeals for the Tenth Circuit.

Application Granted by the Ct., Herbert v. Kitchen, No. 13A-687, 2014 WL 30367 (orders Jan. 6, 2013) (A copy of the Supreme Court order is attached as Exhibit 2). 3

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Based on the plain interpretation of the Supreme Courts stay, the Governors Office sent a memorandum to all cabinet members on January 8, 2014, noting that the Supreme Court stay effectively puts a hold on the decision of the district court, recognizing that the original laws governing marriage in Utah return to effect pending final resolution by the courts, and directing state agency compliance with current laws that prohibit the state from recognizing same sex marriages. Memo. from Derek B. Miller, Chief of Staff, to Governors Cabinet, attached as Exhibit 3. The memo specifically recognized that actions taken during the period would not be undone, but that no new marriage related government benefits would not be granted, as required by the Utah Constitution and Utah Law, for example: [I]f 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. Id. During the time period from December 23, 2013 and January 6, 2014, it is estimated approximately 1,340 same-sex marriages were performed. The four couples comprising the Plaintiffs in Evans v. State of Utah, and the couple comprising the plaintiffs in Doe v. State of Utah were married in this period. They have filed claims for relief under 42 U.S.C. 1983 and state law seeking recognition of the protections and responsibilities of the marriages that were performed during that time. See Compl. (doc. 1) Evans v. State of Utah, at 31 A; Compl. (doc. 1-1) Doe v. State of Utah, 2:14-cv-00061, at 107-110 & p. 10) (complaint was filed as private in State Court and was ordered sealed in Federal Court. (See Order, doc. 8, Doe v. State of Utah, 2:14-cv-00061).

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ARGUMENT I. The Court Should Consolidate Doe v. State Into the Current Case Because the Cases Arise From a Single Event and Involve the Same Legal Issues and Defendants

Defendants seek consolidation pursuant to Federal Rule of Civil Procedure 42(a) and Local Rule 42-1. Federal Rule 42(a) provides that if actions before the court involve a common question of law or fact, the court may consolidate the actions or issue any other orders to avoid unnecessary cost or delay. Fed. R. Civ. P. 42(a)(2), (3) The business of a court having more than one judge shall be divided among the judges as provided by the rules and orders of the court. 28 U.S.C. 137. The local rules require random assignment of cases, but also allow for the consolidation of cases, or the transfer of related cases to different judges within the district. DUCivR 42-1, 83-2(g). A motion to consolidate is proper if one of several factors is present, including if the cases: (i) (ii) (iii) (iv) (v) arise from substantially the same transaction or event; involve substantially the same parties or property; involve the same patent, trademark, or copyright; call for determination of substantially the same questions of law; or for any other reason would entail substantial duplication of labor or unnecessary court costs or delay if heard by different judges.

DUCivR 42-1. Consolidation is appropriate when the factors are present, even if cases are at disparate points in pretrial proceedings, and even if the plaintiffs bring distinct causes of action1. Dennis v. EG&G Defense Materials, Inc., No. 2:08-CV-482-TS, 2009 WL 250396, at *2 (D.
1

Plaintiffs in the Doe case have moved to seal their entire case. (See doc.10.) Defendants will file an opposition to that request. However, for the reasons stated herein, the Motion to Seal does not impact the Courts ability to consolidate the cases. 5

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Utah Feb. 2, 2009) (Mem. decision & ord. granting mot. to consolidate not selected for publication); French v. Am. Airlines, No. 2:08-cv-638-TS, 2009 WL 1578288, at * 2 (D. Utah June 2, 2009) (Mem. decision & ord. granting American Airlines mot. to consolidate, consolidating cases, granting American Airlines mot. to dismiss, and dismissing case, not selected for publication). Factors (i), (iv), and (v) are met in Evans and Doe. A. Evans and Doe Arise from the Same Event Plaintiffs in both Doe and Evans claim to have a vested right to all of the legal benefits of their marriages, the licenses for which issued after Judge Shelbys ruling in Kitchen v. Herbert, but before the United States Supreme Court issued a stay on the ruling. Though the alleged benefits of marriage Plaintiffs seek to enforce are different, Plaintiffs claims for relief arise out of the same general series of events: Judge Shelbys December 20, 2013 order enjoining the state from refusing to issue marriage certificates to same-sex couples in Utah; the couples acquisition of marriage licenses before the U.S. Supreme Court stayed the injunction; and their request to receive some benefit after the stay has been enacted. B. The Defendants in Evans and Doe Are the Same Although the cases do not involve the same plaintiffs, the defendants are the same. Like in Evans, the Doe plaintiffs have sued the State of Utah, Gary Herbert, in his official capacity as Governor of the State of Utah, and Sean D. Reyes, as Attorney General of the State of Utah. (A copy of the caption in Doe v. State of Utah is attached as Exhibit 4.) The parties are substantially the same.

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C. The Cases Call for a Determination of the Same Questions of Law The central legal question that must be decided in cases involving same-sex marriages performed between December 20 and January 4 is whether the state must recognize for the purpose of granting marriage benefits to the plaintiffs, even though Judge Shelbys ruling was stayed by the United States Supreme Court, even though that ruling is on appeal, and even though Plaintiffs sought the requested after the stay was put in place. This is a critical legal question and one that requires a single answer. The State cannot take inconsistent legal positions based on different federal court rulings. Consolidation is therefore critical, and this single factorthat the cases involve the same legal questionjustifies consolidating the cases. See Utah v. Dept of Interior, 45 F. Supp. 2d 1279, 1281 (D. Utah 1999) (agreeing to consolidate a case where both cases concerned the lawfulness of federal agencys procedures in approving a lease and compliance with federal open records law). D. Doe Should Be Consolidated Into Evans Under the local rules, the cases should be consolidated into Evans, which has the lower number. See DUCivR 42-1. Alternatively, the Court should consolidate Doe into Evans, at least through dispositive motions. See Fed. R. Civ. P. 42(b) (providing the court discretion to order separate trials on different claims).

II.

Alternatively, the Court Should Accept Transfer of Doe as a Related Case

If the Court does not order consolidation, or partial consolidation, then the Court should accept transfer of the case as a separate case with its own docket and scheduling order. The purpose of assigning a case to the judge of a pending related case is to foster judicial economy 7

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while not fostering judicial specialization. Bd. of Sch. Directors of City of Milwaukee v. Wisconsin, 102 F.R.D. 5906, 5908 (E.D. Wisc. 1984). Local Rule 83-2 provides for a transfer of a later-filed case to a judge with a lowernumbered related case, decided by the judge with the lowest numbered assigned case, in consultation with the other judges. DUCivR83-2(g). Each case retains its separate docket and

scheduling order. DUCivR 83-2(g) & n.11. Under the local rule, in determining whether to accept transfer, the court may consider: (i) (ii) (iii) (iv) (v) (vi) (vii) Whether the cases arise from the same or a closely related transaction or event; Whether the cases involve substantially the same parties or property; Whether the cases involve the same patent, trademark, or copyright; Whether the cases call for a determination of the same or substantially related questions of law and fact; Whether the cases would entail substantial duplication of labor or unnecessary court costs or delay if heard by different judges; and Whether there is risk of inconsistent verdicts or outcomes; Whether the motion has been brought for an improper purpose.

DUCivR 83-2(g). The factors are similar to those listed in local rule 42-1 for consolidating a case, but there are notable differences, indicating a more relaxed standard. In factor (i), the court may consider whether the cases arise from the same or a closely related transaction or event. In factor (iv), the court may consider whether the cases call for a determination of the same or substantially related questions of law and fact. Factors (vi) and (vii), the consideration of inconsistent verdicts and any improper purpose, are additional considerations. In this case, though the relief the parties seek may be different, their claims all spring from the issue of whether a marriage license purported to be issued by an executive pursuant to a to-be-appealed judicial order creates vested rights that cannot be retroactively modified when the judges order is stayed. If these cases were heard by separate judges, not only would judicial 8

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resources be wasted in the research and consideration of this cutting-edge legal issue, but there would be a considerable risk of inconsistent verdicts on the core vested rights issue. No one can contest that the issuance of all of the couples marriage licenses are closely related transactions. And the State of Utah brings this motion not for an improper purpose, but to ensure the most expeditious and consistent ruling possible. See Bank of Am. v. Andersen, No. 2:11-CV400-DAK, 2011 WL 6778257, at *2 (D. Utah. Dec. 23, 2011) (refusing to dismiss a second-filed case under the claim-splitting doctrine, but encouraging the parties to consider whether transfer under Local Rule 83-2(g) would be appropriate). Accordingly, at a minimum, Judge Kimball should accept transfer of the case under Local Rule 83-2(g). CONCLUSION Based on the foregoing, this Court should grant Defendants Motion to Consolidate, and consolidate Doe with the Evans case. Alternatively, the Court should accept transfer of the Doe case as a related case.

DATED this 5th day of February, 2014.

OFFICE OF THE UTAH ATTORNEY GENERAL

/s/ Joni Jones JONI J. JONES KYLE J. KAISER Assistant Utah Attorneys General PARKER DOUGLAS Chief of Staff and Counsel General Attorney for Defendants

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CERTIFICATE OF SERVICE I certify that on February 5, 2014, I caused a copy of the foregoing MOTION TO CONSOLIDATE AND/OR FOR TRANSFER OF CASE NO. 2:14-cv-61 AND MEMORANDUM OF LAW IN SUPPORT, to be served on the following by electronic filing using the Courts CM/ECF system:

Erik Strindberg Lauren I. Scholnick Kathryn K. Harstad Rachel E. Otto STRINDBERG & SCHOLNICK, LLC 675 East 2100 South, Ste. 350 Salt Lake City, UT 84106 John M. Mejia Leah M. Farrell ACLU of Utah 355 North 300 West Salt Lake City, Utah 84103

I further certify that on February 5, 2014, pursuant to DUCivR 42-1, I have filed a Notice of the above Motion in Doe v. State of Utah, Case No. 2:14-cv-61, and have further provided a courtesy copy of the Motion, via electronic mail, to

Shane A. Marx James H. Hunnicutt David S. Dolowitz DOLOWITZ HUNNICUT 299 South Main Street, Suite 1300 Salt Lake City, UT 84111 shane@dolowitzhunnicutt.com

/s/ Sharon Zeller

10

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