Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 1 Exhibit Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 2 1 (825) 2 3 4 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH 5 CENTRAL DIVISION 6 ______________________________________________________________ 7 DEREK KITCHEN, INDIVIDUALLY; MOUDI SBEITY, INDIVIDUALLY; KAREN ARCHER, INDIVIDUALLY; KATE CALL, INDIVIDUALLY; LAURIE WOOD, INDIVIDUALLY; AND KODY PARTRIDGE, INDIVIDUALLY. 8 9 CASE NO. 2:13-CV-217 10 PLAINTIFFS, 11 VS. 12 13 14 15 GARY R. HERBERT, IN HIS OFFICIAL CAPACITY AS GOVERNOR OF UTAH; JOHN SWALLOW, IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL OF UTAH; AND SHERRIE SWENSEN, IN HER OFFICIAL CAPACITY AS CLERK OF SALT LAKE COUNTY, SALT LAKE CITY, UTAH DECEMBER 23, 2013 16 DEFENDANTS. 17 ______________________________________________________________ 18 19 DEFENDANTS' MOTION TO STAY PENDING APPEAL BEFORE THE HONORABLE ROBERT J. SHELBY UNITED STATES DISTRICT COURT JUDGE 20 21 22 23 24 25 1 Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 3 1 2 3 4 5 APPEARANCES: 6 7 8 FOR THE PLAINTIFFS: MAGLEBY & GREENWOOD BY: JENNIFER F. PARRISH, ESQ. PEGGY A. TOMSIC, ESQ. 170 SOUTH MAIN STREET, SUITE 850 SALT LAKE CITY, UTAH 84101 (801) 359-9000 9 10 11 12 FOR DEFENDANTS HERBERT AND SWALLOW: OFFICE OF THE UTAH ATTORNEY GENERAL BY: BRIAN TARBET, ESQ. PHILIP S. LOTT, ESQ. STEVE WALKENHORST, ESQ. 160 EAST 300 SOUTH, SIXTH FLOOR P.O. BOX 140856 SALT LAKE CITY, UTAH 84114 (801) 366-0100 13 14 15 16 17 FOR DEFENDANT SWENSEN: 18 SALT LAKE COUNTY DISTRICT ATTORNEY BY: RALPH E. CHAMNESS, ESQ. DARCY M. GODDARD, ESQ. 2001 SOUTH STATE STREET, ROOM S3700 SALT LAKE CITY, UTAH 84190 (385) 468-7700 19 20 21 22 23 24 COURT REPORTER: RAYMOND P. FENLON 350 SOUTH MAIN STREET, #242 SALT LAKE CITY, UTAH 84101 (801) 809-4634 25 2 Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 1 P-R-O-C-E-E-D-I-N-G-S 2 Page: 4 (9:20 A.M.) 3 THE COURT: GOOD MORNING. 4 THERE WE GO. 5 IN CASE NUMBER 2:13-CV-217. 6 HERBERT AND THE STATE OF UTAH, ET AL. 7 8 9 GOOD MORNING, EVERYONE. LET ME TRY THAT AGAIN. WE'LL GO ON THE RECORD THIS IS KITCHEN, ET AL. VERSUS COUNSEL, WHY DON'T YOU TAKE A MOMENT AND MAKE YOUR APPEARANCES, IF YOU WOULD, PLEASE. MR. MAGLEBY: YOUR HONOR, PEGGY TOMSIC AND JENNIFER 10 FRASER PARRISH ON BEHALF OF THE PLAINTIFFS. 11 THE COURT EXCUSE MR. MAGLEBY. 12 THE COURT: 13 MR. LOTT: I WOULD ASK THAT HE IS OUT OF THE COUNTRY. OF COURSE, THANK YOU. YOUR HONOR, PHIL LOTT. TOGETHER WITH ME 14 HERE IS ACTING ATTORNEY GENERAL BRIAN TARBET, AND ALSO STEVE 15 WALKENHORST FROM THE ATTORNEY GENERAL'S OFFICE ON BEHALF OF 16 THE STATE DEFENDANTS. 17 THE COURT: 18 MS. GODDARD: 19 20 21 THANK YOU. AND DARCY GODDARD AND RALPH CHAMNESS ON BEHALF OF CO-DEFENDANT SALT LAKE COUNTY. THE COURT: THANK YOU. GOOD MORNING TO ALL OF YOU. THIS IS THE TIME SET FOR HEARING ON THE STATE DEFENDANTS' 22 MOTION FOR A STAY PENDING APPEAL. MY APOLOGIES TO KEEP -- FOR 23 KEEPING ALL OF YOU THIS MORNING. 24 WE WERE ABOUT TO COME OUT THAT THE TENTH CIRCUIT WAS ISSUING 25 AN ORDER IN RESPONSE TO A MOTION I THINK THE STATE RENEWED I WE WERE NOTIFIED JUST BEFORE 3 Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 5 1 THINK AT 1:00 O'CLOCK THIS MORNING. 2 CIRCUIT'S WRITTEN RULING MOMENTS AGO. 3 WE HAD AN OPPORTUNITY TO REVIEW IT BEFORE WE CAME OUT SO THAT 4 I WASN'T DOING SOMETHING IN VIOLATION OF THE TENTH CIRCUIT'S 5 DIRECTIVES. 6 7 WE RECEIVED THE 10TH I JUST WANTED TO ENSURE COUNSEL, A COPY OF THAT ORDER WAS PROVIDED TO BOTH OF YOU, IS THAT CORRECT? 8 MR. LOTT: 9 MS. TOMSIC: 10 THE COURT: YES. YES, YOUR HONOR. ALL RIGHT. WELL, MR. LOTT, I'VE 11 REVIEWED THE SUBMISSIONS ON BEHALF OF ALL THE PARTIES. 12 THE STATE'S MOTION. 13 MR. LOTT: 14 THE COURT: 15 MR. LOTT: IT'S THE FLOOR IS YOURS. THANK YOU. THANK YOU. MAY IT PLEASE THE COURT. THIS COURT'S 16 DECISION IS NOT THE FINAL WORD ON WHETHER UTAH'S MARRIAGE LAWS 17 ARE CONSTITUTIONAL. 18 SIDES INTENDED TO APPEAL ONCE THE DECISION WAS ENTERED IN THIS 19 CASE. 20 MARRIAGE ON UTAH REGARDLESS OF THE FACT THAT THE PEOPLE OF 21 UTAH HAVE DEMOCRATICALLY CHOSEN THE TRADITIONAL MAN/WOMAN 22 DEFINITION OF MARRIAGE. IT HAS ALWAYS BEEN UNDERSTOOD THAT BOTH HERE THE COURT HAS DECIDED TO IMPOSE ITS OWN VIEW OF 23 CONSIDERING HOW IMPORTANT AND HOW HOTLY CONTESTED THE 24 DEFINITION OF MARRIAGE IS, AND THE FACT THAT NEITHER THE TENTH 25 CIRCUIT COURT OF APPEALS OR THE SUPREME COURT HAS ISSUED A 4 Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 6 1 FINAL RULING ON THIS ISSUE, THE NEED FOR A STAY IS READILY 2 APPARENT. 3 CHOSEN DEFINITION OF MARRIAGE UNTIL AN APPELLATE COURT OF LAST 4 RESORT HAS DECLARED OTHERWISE. 5 UTAH SHOULD BE ALLOWED TO FOLLOW ITS DEMOCRATICALLY THE STATE DEFENDANTS ARE ENTITLED TO HAVE THIS COURT -- 6 THIS COURT'S DECISION REVIEWED BY A HIGHER COURT BEFORE IT 7 GOES INTO EFFECT. 8 FRENZY IS TO MAINTAIN THE STATUS QUO WHILE HIGHER COURTS 9 REVIEW THE DECISION. A MORE ORDERLY APPROACH THAN THE CURRENT NOT ALLOWING THE STAY PREJUDICES THE 10 STATE'S RIGHT TO HAVE APPELLATE REVIEW BEFORE THIS COURT'S 11 DECISION GOES INTO EFFECT. THE COURT: 12 WHAT IS THE STATUS QUO NOW, MR. LOTT? 13 THE STATE -- THERE WAS NO MOTION AND NO REQUEST BY EITHER 14 PARTY IN ADVANCE OF THE COURT'S RULING IN THIS CASE THAT THE 15 RULING WOULD EVER BE STAYED PENDING AN APPEAL. 16 THAT MY RULING WAS GOING TO BE APPEALED. 17 BEFORE ME, THERE WAS NOTHING FOR THE COURT TO ADDRESS. 18 IN THE INTERIM, OF COURSE, PEOPLE BEGAN ACTING IN IT WAS CLEAR HAVING NO MOTION 19 RELIANCE ON THE COURT'S ORDER. 20 FRONT OF US A MOTION FOR STAY AND WE'RE ADDRESSING IT, BUT 21 WHAT IS -- WHAT IS THE STATUS QUO? 22 MR. LOTT: THE QUESTION IS WE NOW HAVE IN WELL, TYPICALLY OUR -- OUR VIEW AND 23 UNDERSTANDING IN A CASE LIKE THIS, TYPICALLY A CASE WOULD STAY 24 SUA SPONTE BEFORE ENTERING AN ORDER THAT'S GOING TO GO INTO 25 EFFECT. AND WE WERE FRANKLY SURPRISED BOTH WHEN THE ORAL 5 Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 7 1 REQUEST THAT WAS MADE LAST WEEK WHEN THE STATE WAS NOTIFIED OF 2 THE RULING WAS NOT CONSIDERED, AND THAT WE DO HAVE A WINDOW OF 3 PERIOD -- A WINDOW OF TIME HERE THAT HAS RESULTED. THE COURT: 4 WELL, LET'S -- SO LET'S BE -- LET'S MAKE 5 SURE OUR RECORD ABOUT THAT IS COMPLETE SO THAT BOTH PARTIES 6 HAVE THE BENEFIT OF THAT IN YOUR APPEAL PROCESS. 7 WERE -- WE WERE CONTACTED BY YOUR OFFICE ABOUT ROUGHLY TWO OR 8 THREE HOURS AFTER THE ORDER ISSUED, I BELIEVE, AND WERE ASKED 9 ABOUT -- I THOUGHT WITH TWO QUESTIONS THAT SOUNDED PROCEDURAL, AND SO WE 10 AND FOR THAT REASON WE DIDN'T HAVE A COURT REPORTER ON HAND. 11 I WASN'T NOTIFIED THAT THE STATE WAS INTENDING TO MAKE ANY 12 MOTION AT THAT TIME. 13 TO ISSUE A SUA SPONTE STAY, WHICH OF COURSE I WASN'T 14 CONTEMPLATING AND NEITHER PARTY HAD REQUESTED ANYTHING AT THAT 15 POINT. 16 WE WERE ASKED WHETHER THE COURT INTENDED AND I NOTIFIED THE STATE AND THE PLAINTIFFS, WE ENSURED 17 BOTH PARTIES WERE ON THE LINE, NOTIFIED EVERYONE THAT WE WOULD 18 TAKE UP IN URGENT FASHION ANY MOTION THAT ANYONE WISHED TO 19 FILE BUT THAT WE WOULD REQUIRE IT BE IN WRITING SO THAT IT 20 IDENTIFIED THE RELIEF SOUGHT, THE BASIS FOR THAT RELIEF, AND 21 THE STANDARD THAT APPLIES, AND AFFORD THE PLAINTIFFS AN 22 OPPORTUNITY TO RESPOND IN EXPEDITED FASHION. 23 YOU WISH TO ADD ANYTHING MORE TO COMPLETE THE RECORD ON THAT 24 ISSUE BEFORE WE FINISH TODAY, AND I'LL ALLOW MS. TOMSIC TO AS 25 WELL IF SHE'D LIKE. I DON'T KNOW IF 6 Appellate Case: 13-4178 1 Document: 01019177091 Date Filed: 12/23/2013 Page: 8 BUT IN THE COURT'S VIEW, WE'RE HERE NOW ADDRESSING THE 2 COURT'S STAY. 3 HAVE PEOPLE STANDING IN CLERKS' OFFICES RIGHT NOW. 4 THE TENTH CIRCUIT WAITING TO SEE HOW THIS COURT RULES. 5 GUESS THE QUESTION IN MY MIND IS HOW DO WE PROCEED? 6 7 MR. LOTT: WE WE HAVE AND I WE'RE HERE TO CONVINCE THE COURT TO ENTER STAY. 8 9 WE HAVE A COMPLICATED STATE OF AFFAIRS. THE COURT: IF I CONCLUDE, APPLYING THE FACTORS THAT I'M REQUIRED TO ANALYZE IN DETERMINING WHETHER THE STAY SHOULD 10 ISSUE, AND I DETERMINE THAT THE STATE HASN'T SATISFIED ITS 11 BURDEN AS THE MOVING PARTY, IS THERE SOME INTERMEDIATE LEVEL 12 OF RELIEF THAT THE STATE REQUESTS THAT I ENTER? 13 MR. LOTT: 14 THE COURT: 15 MR. LOTT: YES. WHAT IS THAT? IN OUR REPLY MEMORANDUM, THE COURT 16 PROBABLY NOTICED AT THE END, WE'VE REQUESTED AS AN ALTERNATIVE 17 IF THE COURT DOES NOT ENTER A STAY, A PERMANENT STAY, THAT THE 18 COURT ENTER AT LEAST A STAY UNTIL THE TENTH CIRCUIT COURT OF 19 APPEALS MAKES A FINAL DECISION ON THE MOTION BEFORE IT. 20 MOTION THAT WAS BEFORE THE TENTH CIRCUIT TO THIS POINT IN TIME 21 WAS AN EMERGENCY MOTION REQUESTING A STAY PENDING THIS COURT'S 22 RULING. 23 PREJUDICE, AND THE STATE IS GOING TO REFILE AFTER THIS HEARING 24 TODAY DEPENDING ON WHAT THE COURT'S DECISION IS. 25 THE THAT'S BEEN DENIED, AS WE'RE AWARE NOW, WITHOUT SO AS AN ALTERNATIVE RELIEF, IF THE COURT DECIDES NOT TO 7 Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 9 1 ISSUE A PERMANENT STAY PENDING APPEAL, THE ALTERNATIVE REQUEST 2 IS THAT THE COURT AT LEAST GRANT A STAY UNTIL THE TENTH 3 CIRCUIT DECIDES. 4 WALKER IN THE PROPOSITION 8 PERRY CASE GRANTED THAT RELIEF. 5 AND THERE IS PRECEDENCE FOR THAT. JUDGE AS THE COURT HAS NOTED, THERE IS A CLOUD OF UNCERTAINTY 6 OVER SAME-SEX MARRIAGES THAT HAVE CURRENTLY TAKEN PLACE. 7 COURT CAN STOP THIS CHAOTIC SITUATION FROM CONTINUING BY 8 PLACE -- BY STAYING ITS ORDER PENDING APPEAL. 9 THE NO ONE WINS, NOT UTAH, NOT THE PLAINTIFFS, NOR ANY 10 SAME-SEX COUPLES IF UTAH'S MARRIAGE LAWS ARE CHANGED BACK AND 11 FORTH DURING THE PENDENCY OF THIS PROCEEDING, DEPENDING ON 12 WHICH COURT IS REVIEWING THE QUESTION. 13 SOCIAL ISSUE, THE STATUS QUO SHOULD REMAIN INTACT OF -- OF A 14 STAY BEING IN PLACE UNTIL -- UNTIL THERE'S BEEN APPELLATE 15 REVIEW. ON SUCH AN IMPORTANT 16 THERE'S GREAT IRONY IN THE FACT THAT THE -- TO BE ALLOWED 17 TO BECOME A STATE UTAH WAS COMPELLED BY THE FEDERAL GOVERNMENT 18 TO ADOPT A DEFINITION OF MARRIAGE AS BEING A UNION OF ONE MAN 19 AND ONE WOMAN, AND NOW THE FEDERAL DISTRICT COURT HAS IMPOSED 20 UPON UTAH TO ABANDON THAT TRADITIONAL DEFINITION AND HAS 21 ORDERED UTAH TO CHANGE ITS DEFINITION OF MARRIAGE TO INCLUDE 22 SAME-SEX MARRIAGE. 23 THE COURT DECISION REACHES CONCLUSIONS UNPRECEDENTED IN 24 THE TENTH CIRCUIT AND SUPREME COURT. NEITHER THE TENTH 25 CIRCUIT NOR THE SUPREME COURT HAS EVER HELD THAT THE STATE IS 8 Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 10 1 CONSTITUTIONALLY PROHIBITED FROM DEFINING MARRIAGE AS ONLY THE 2 UNION BETWEEN A MAN AND A WOMAN. 3 NOR THE SUPREME COURT HAS EVER HELD THAT THE FUNDAMENTAL RIGHT 4 TO MARRY INCLUDES SAME-SEX MARRIAGE. 5 CIRCUIT OR THE SUPREME COURT HAS EVER HELD THAT A 6 TRADITIONAL -- THE TRADITIONAL DEFINITION OF MARRIAGE SOMEHOW 7 CONSTITUTES GENDER DISCRIMINATION. 8 CIRCUIT NOR THE SUPREME COURT HAS EVER HELD THAT TRADITIONAL 9 MAN/WOMAN MARRIAGE IS IRRATIONAL, DISCRIMINATORY OR 10 11 NEITHER THE TENTH CIRCUIT NEITHER THE TENTH AND NEITHER THE TENTH UNCONSTITUTIONAL. IN FACT THE TWO MOST RECENT FEDERAL DISTRICT COURTS THAT 12 HAVE CONSIDERED AND RULED ON THE CONSTITUTIONALITY OF THE 13 STATE'S LAWS LIMITING MARRIAGE TO THE LEGAL UNION BETWEEN A 14 MAN AND A WOMAN, BOTH IN THE NINTH CIRCUIT, HAVE REACHED A 15 DIFFERENT CONCLUSION THAN THIS COURT HAS REACHED. 16 THE JACKSON CASE FROM HAWAII AND THE SEVCICK CASE FROM NEVADA. 17 MOREOVER, THE ONLY FEDERAL CIRCUIT COURT TO SQUARELY RULE THOSE ARE 18 ON THIS ISSUE, THE EIGHTH CIRCUIT, HAS UPHELD THE 19 CONSTITUTIONALITY OF THE TRADITIONAL DEFINITION OF MARRIAGE. 20 THAT'S THE BRUNING CASE. 21 AND THOSE DECISIONS DO NOT STAND ALONE. AS CITED IN THE 22 STATE DEFENDANTS' COURT PLEADINGS, MANY OTHER COURTS HAVE 23 CONCLUDED THAT THE OPPOSITE-SEX DEFINITION OF MARRIAGE 24 RATIONALLY SERVES SOCIETY'S INTERESTS IN REGULATING SEXUAL 25 RELATIONSHIPS BETWEEN MEN AND WOMEN SO THAT THE UNIQUE 9 Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 11 1 PROCREATIVE CAPACITY OF THOSE RELATIONSHIPS BENEFITS RATHER 2 THAN HARMS SOCIETY. 3 INSTEAD OF CONSIDERING AND BASING ITS DECISION ON THE 4 MAJORITY OPINION IN THE WINDSOR CASE, THE DISTRICT COURT 5 QUOTES AND CITES AS CONCLUSIVE AUTHORITY THE CYNICAL 6 OBSERVATION AND DISSENT OF JUSTICE SCALIA OF WHAT THE SUPREME 7 COURT'S VIEW WOULD BE IF CONSIDERING STATE MARRIAGE LAWS. 8 DISTRICT COURT'S APPROACH IS IN EFFECT TO JUMP THE GUN AND TO 9 JOIN JUSTICE SCALIA IN SPECULATING ABOUT WHAT THE SUPREME 10 THE COURT WOULD DO BEFORE IT HAS ACTUALLY RULED ON THIS ISSUE. THE COURT: 11 WELL, THAT'S WHAT I WAS CALLED TO DO IN 12 THIS CASE, WAS I NOT, TO DETERMINE AS BEST I COULD WHAT 13 GUIDANCE THE SUPREME COURT WAS PROVIDING ON THIS ISSUE? 14 WHILE I WISH I WASN'T THE FIRST COURT IN THE NATION TO WEIGH 15 IN ON THAT AFTER THE WINDSOR DECISION, ISN'T THE -- ISN'T THE 16 DISSENTING VIEW MAYBE THE -- MAYBE THE BEST PLACE TO LOOK TO 17 SEE WHAT THE PEOPLE ON THE LOSING SIDE OF THAT PROPOSITION 18 BEFORE THE SUPREME COURT THOUGHT THE EFFECT OF THE COURT'S 19 RULING WAS? 20 AND IT'S NOT CLEAR, OF COURSE, IN THE WINDSOR DECISION, AS 21 WE'VE DISCUSSED AT ORAL ARGUMENT. 22 ANSWER THIS QUESTION. 23 AND DO THE BEST WE CAN WITH THAT DECISION. 24 DISAGREES. 25 OPINION OF JUSTICE SCALIA OR THE DISSENTS IN THE WINDSOR CASE. THE WINDSOR COURT DIDN'T SO WE'RE FORCED TO READ THE TEA LEAVES THE STATE CLEARLY BUT MY -- MY DECISION DOESN'T REST ON THE MINORITY 10 Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 12 1 IT'S NOT A BAD PLACE TO LOOK TO SEE WHAT THE SUPREME COURT 2 JUSTICES THEMSELVES THINK OF THE DECISION THOUGH, IS IT? 3 4 MR. LOTT: THE STATE IS RESPECTFULLY TRYING TO POINT OUT THE LIKELIHOOD OF SUCCESS ON APPEAL. 5 THE COURT: 6 MR. LOTT: OKAY, VERY GOOD, THANK YOU. GO AHEAD. THE DISTRICT COURT CONCEDES IN ITS 7 OPINION THAT, QUOTE, THE COURT'S ROLE IS TO NOT DEFINE 8 MARRIAGE, AN EXERCISE THAT WOULD BE IMPROPER GIVEN THE STATE'S 9 PRIMARY AUTHORITY IN THIS REALM. AND THAT'S IN THE OPINION AT 10 PAGE 16, THE COURT'S DECISION AT PAGE 16. 11 PROCEEDS TO DO EXACTLY THAT, TO REDEFINE MARRIAGE IN SUCH A 12 BROAD WAY TO ENCOMPASS SAME-SEX MARRIAGE. 13 AND THEN THE COURT THE DISTRICT COURT CITES TO AND APPLIES SUPREME COURT 14 PRECEDENT RECOGNIZING THE FUNDAMENTAL RIGHT TO MARRY -- 15 RECOGNIZING A FUNDAMENTAL RIGHT TO MARRY IN CASES THAT 16 UNIVERSALLY INVOLVE MARRIAGE BETWEEN A MAN AND A WOMAN AS 17 THOUGH THE GENDER OF THE SPOUSE IS IRRELEVANT. 18 CONCLUDES, QUOTE, THE PLAINTIFFS HERE DO NOT SEEK A NEW RIGHT 19 TO SAME-SEX MARRIAGE, BUT INSTEAD ASK THE COURT TO HOLD THAT 20 THE STATE CANNOT PROHIBIT THEM FROM EXERCISING THEIR EXISTING 21 RIGHT TO MARRY ON ACCOUNT OF THE SEX OF THEIR CHOSEN PARTNER, 22 AT PAGE 28 OF THE DECISION. THE COURT 23 BY REFUSING TO RECOGNIZE THE TRADITIONAL MAN/WOMAN 24 MARRIAGE, THAT TRADITIONAL MAN/WOMAN MARRIAGE IS MATERIALLY 25 DIFFERENT FROM SAME-SEX MARRIAGE, THE COURT SIDESTEPS THE 11 Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 13 1 HOLDING OF THE WASHINGTON V. GLUCKSBERG CASE THAT SETS FORTH 2 THE ESTABLISHED METHOD OF SUBSTANTIVE DUE PROCESS ANALYSIS. 3 THE COURT STATES, QUOTE, BECAUSE THE RIGHT TO MARRY HAS 4 ALREADY BEEN ESTABLISHED AS A FUNDAMENTAL RIGHT, THE COURT 5 FINDS THAT THE GLUCKSBERG ANALYSIS IS INAPPLICABLE HERE, AT 6 PAGE 29. 7 IN THE DISTRICT COURT'S VIEW, TRADITION AND HISTORY ARE 8 INSUFFICIENT REASONS TO DENY FUNDAMENTAL RIGHTS TO AN 9 INDIVIDUAL. THE COURT'S REFUSAL TO CONSIDER HISTORY AND 10 TRADITION, HOWEVER, GO FAR BEYOND WHAT EVEN THE LAWRENCE CASE 11 CONTEMPLATED. 12 THINK OUR LAWS AND TRADITIONS OF THE PAST HALF-CENTURY ARE OF 13 THE MOST RELEVANCE HERE. THERE IN THE LAWRENCE CASE THE COURT STATED, WE 14 THE RELEVANT HISTORY AND TRADITION REGARDING SAME-SEX 15 MARRIAGE IS MUCH SHORTER THAN THAT, MUCH SHORTER THAN THE PAST 16 HALF-CENTURY. 17 2003. 18 MARRIAGE UNTIL THE NETHERLANDS IN 2000. 19 OF THIS NATION'S 237 YEAR HISTORY, ONLY A MINORITY OF STATES 20 HAVE PERMITTED SAME-SEX MARRIAGE, AND NEARLY ALL OF THOSE HAVE 21 DONE SO BY THE DEMOCRATIC PROCESS RATHER THAN BY JUDICIAL 22 DECREE. 23 NO STATE PERMITTED SAME-SEX MARRIAGE UNTIL EVEN ABROAD, NO FOREIGN NATION ALLOWED SAME-SEX IN THE LAST TEN YEARS THE DISTRICT COURT IN THE STATE'S OPINION HAS FAILED TO 24 EXERCISE THE UTMOST CARE THAT'S REQUIRED BY THE GLUCKSBERG 25 ANALYSIS. THE DISTRICT COURT'S DECISION PLACES THE MATTER 12 Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 14 1 OUTSIDE THE ARENA OF PUBLIC DEBATE AND LEGISLATIVE ACTION AND 2 CONSTITUTES POLICY PREFERENCE OF THE COURT. 3 COURT'S DECISION IS A FUNDAMENTAL SHIFT AWAY FROM SOCIETY'S 4 UNDERSTANDING OF WHAT MARRIAGE IS AND OVERRIDES THE DEMOCRATIC 5 VOICE OF THE PEOPLE OF UTAH. 6 THE DISTRICT THE DISTRICT COURT ALSO HELD THAT MAN/WOMAN -- THE 7 MAN/WOMAN DEFINITION OF MARRIAGE IS GENDER DISCRIMINATION, AND 8 THE STATE OBVIOUSLY DISAGREES WITH THAT CONCLUSION. 9 THE COURT ALSO WRONGLY CONCLUDED THAT UTAH'S MARRIAGE 10 LAWS DO NOT EVEN SATISFY THE MINIMAL REQUIREMENTS OF A 11 RATIONAL BASIS TEST. 12 THE TRIAL AND APPELLATE COURT LEVELS HAVE REACHED THE OPPOSITE 13 CONCLUSION. 14 DEFINITION OF MARRIAGE IS RATIONALLY RELATED TO LEGITIMACY AND 15 INTEREST, AND EVEN THAT MAN/WOMAN MARRIAGE PROMOTES THE 16 STATE'S COMPELLING INTEREST IN THE CARE AND WELL-BEING OF 17 CHILDREN BY FACILITATING RESPONSIBLE PROCREATION AND THE IDEAL 18 MODE OF CHILD REARING. 19 NUMEROUS STATE AND FEDERAL COURT'S AT THESE COURTS HAVE FOUND THAT THE TRADITIONAL THE VERY FACT THAT SO MANY OTHER COURTS HAVE FOUND THE 20 TRADITIONAL DEFINITION OF MARRIAGE TO SATISFY RATIONAL BASIS 21 REVIEW IS REASON ENOUGH TO CONCLUDE THAT THE STATE DEFENDANTS 22 HAVE SUFFICIENT LIKELIHOOD OF SUCCESS ON APPEAL TO WARRANT 23 STAY PENDING APPEAL. 24 25 THE STATE ALSO BELIEVES THE COURT DID NOT PROPERLY FRAME THE ISSUE BEFORE IT. THE SUPREME COURT HAS HELD THAT A 13 Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 15 1 CLASSIFICATION SUBJECT TO RATIONAL BASIS REVIEW WILL BE UPHELD 2 WHEN THE INCLUSION OF ONE GROUP PROMOTES A LEGITIMATE 3 GOVERNMENTAL PURPOSE AND THE ADDITION OF OTHER GROUPS WOULD 4 NOT. 5 THAT'S THE JOHNSON V. ROBISON CASE. AND AS THE FEDERAL DISTRICT COURT IN THE HAWAII JACKSON 6 CASE EXPLAINED, THE STATE IS NOT REQUIRED TO SHOW THAT DENYING 7 MARRIAGE TO SAME-SEX COUPLES IS NECESSARY TO PROMOTE THE 8 STATE'S INTEREST OR THAT SAME-SEX COUPLES WILL SUFFER NO HARM 9 BY AN OPPOSITE-SEX DEFINITION OF MARRIAGE. RATHER, THE 10 RELEVANT QUESTION IS WHETHER AN OPPOSITE-SEX DEFINITION OF 11 MARRIAGE FURTHERS A LEGITIMATE INTEREST THAT WOULD NOT BE 12 FURTHERED, OR FURTHERED TO THE SAME DEGREE, BY ALLOWING 13 SAME-SEX COUPLES TO MARRY. 14 THE DISTRICT COURT'S DECISION CONSTITUTES A FUNDAMENTAL 15 SHIFT AWAY FROM SOCIETY'S UNDERSTANDING OF WHAT MARRIAGE IS. 16 FOR OVER 100 YEARS UTAH HAS ALWAYS ADHERED TO A DEFINITION OF 17 MARRIAGE AS THE UNION OF A MAN AND A WOMAN AND HAS NEVER 18 RECOGNIZED A MARRIAGE OF ANY OTHER KIND. 19 STAND ALONE, A MAJORITY OF STATES ADHERE TO THE SAME 20 DEFINITION OF MARRIAGE. 21 AND UTAH DOES NOT AS THE SUPREME COURT RECOGNIZED IN GLUCKSBERG, EXTENDING 22 CONSTITUTIONAL PROTECTION TO AN ASSERTED RIGHT OR LIBERTY 23 INTEREST TO A GREAT EXTENT PLACES THE MATTER OUTSIDE THE ARENA 24 OF PUBLIC DEBATE AND LEGISLATIVE ACTION. 25 DECISION HAS TAKEN THE IMPORTANT PUBLIC POLICY QUESTION OF THE DISTRICT COURT'S 14 Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 16 1 SAME-SEX MARRIAGE AWAY FROM THE PEOPLE OF UTAH AND AS SUCH 2 CONSTITUTES A THREAT OF IRREPARABLE HARM TO THE DEMOCRATIC 3 PROCESS IN UTAH. 4 WE CITED TO THE COURT THE CASE OF COALITION FOR ECONOMIC 5 EQUITY VERSUS WILSON, WHICH HELD IT IS CLEAR THAT A STATE 6 SUFFERS IRREPARABLE INJURY WHENEVER AN ENACTMENT OF ITS PEOPLE 7 IS ENJOINED. 8 9 THE COURT: IS THERE ALSO IRREPARABLE HARM WHEN CITIZENS ARE DEPRIVED CONSTITUTIONAL RIGHTS? I MEAN I 10 UNDERSTAND THE STATE BELIEVES THAT I INCORRECTLY CONCLUDED 11 THAT THERE'S A FUNDAMENTAL RIGHT TO MARRY, AND WE WON'T KNOW 12 UNTIL ANOTHER COURT ABOVE ME SOUNDS IN ON THAT ISSUE. 13 HAVING CONCLUDED THAT THAT'S A CONSTITUTIONAL RIGHT THAT ALL 14 OF THE CITIZENS OF THE STATE ENJOY, IS THERE IRREPARABLE HARM 15 TO CITIZENS WHEN WE DISALLOW THEM FROM ENJOYING A 16 CONSTITUTIONAL RIGHT? 17 MR. LOTT: BUT AS A GENERAL PROPOSITION I WOULD AGREE, 18 BUT AS THE COURT KNOWS, THE STATE DISAGREES WHETHER THERE'S A 19 CONSTITUTIONAL RIGHT TO SAME-SEX MARRIAGE. 20 21 THE CASE CITED ALSO -THE COURT: HOW DO WE -- HOW DO WE RESOLVE THAT 22 QUESTION IN YOUR MIND? HAVING CONCLUDED THAT THERE ARE 23 CONSTITUTIONAL RIGHTS AT ISSUE HERE, AND THAT THOSE RIGHTS ARE 24 BEING DEPRIVED -- SOME CITIZENS OF THE STATE ARE BEING 25 DEPRIVED OF THE ENJOYMENT OF THOSE RIGHTS, AND THEN THE 15 Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 17 1 STATE'S INTEREST IN, AS YOU FRAMED IT, ALLOWING THE STATE TO 2 MAKE THESE POLICY CONSIDERATIONS THROUGH THE VOICE OF THE 3 ELECTORATE, HOW DO WE BALANCE THOSE HARMS IN YOUR VIEW IN 4 DETERMINING WHETHER A STAY SHOULD ISSUE? MR. LOTT: 5 WE'VE POINTED OUT TO THE COURT THAT FROM 6 OUR PERSPECTIVE THE HARM TO THE PLAINTIFFS AND ALSO TO 7 SAME-SEX COUPLES THAT WISH TO MARRY IF ANYTHING WOULD BE 8 DELAYED. 9 DECISION, AND IF THE APPEAL IS UPHELD, IT PUTS THOSE THAT HAVE THE APPELLATE COURT IS GOING TO REVIEW THIS COURT'S 10 ENTERED INTO A MARRIAGE INTO AN UNCOMFORTABLE SITUATION WHERE 11 THEIR MARRIAGES MOST LIKELY WOULD BE VOID. 12 AVOID THAT SITUATION FROM OCCURRING TO THE BENEFIT OF EVERYONE 13 IS TO ENTER A STAY. 14 THE COURT: AND THE WAY TO IT'S THE STATE'S POSITION THAT IF MY 15 RULING IS REVERSED ON APPEAL, THAT ANY MARRIAGE -- ANY 16 MARRIAGE LICENSES THAT ISSUED IN THE INTERIM WOULD BE VOID; IS 17 THAT RIGHT? 18 MR. LOTT: THAT'S CORRECT. 19 THE COURT: SO THEN WHAT IS THE HARM TO THE STATE? 20 WHAT IS THE IRREPARABLE INJURY TO THE STATE IF THE EFFECT OF A 21 REVERSAL IS THAT THERE WERE NO VALID MARRIAGES PERFORMED? 22 MR. LOTT: WELL, THE STATE IS CONCERNED WITH ALL OF 23 ITS CITIZENS, NOT ONLY THOSE THAT -- THAT DO NOT WANT TO HAVE 24 SAME-SEX MARRIAGE. 25 WANT SAME-SEX MARRIAGE, AND THERE'S A CONCERN FOR THOSE IT ALSO INCLUDES AN INTEREST TO THOSE THAT 16 Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 18 1 CITIZENS OF THE STATE AS WELL. 2 THE CONCERN THE STATE HAS IN HAVING ITS DEMOCRATIC VOICE 3 RECOGNIZED. 4 THAT'S -- THAT'S APART FROM I WAS GOING TO QUOTE JUSTICE RENQUIST. HE STATED, IT 5 ALSO SEEMS TO ME THAT ANYTIME A STATE IS ENJOINED BY A COURT 6 FROM EFFECTUATING STATUTES ENACTED BY REPRESENTATIVES OF ITS 7 PEOPLE, IT SUFFERS A FORM OF IRREPARABLE INJURY. 8 9 THE STATE, AS WE POINTED OUT, ALSO FACES ADMINISTRATIVE BURDENS DURING THIS PERIOD OF UNCERTAINTY. AND ALSO ACTIONS 10 THAT WOULD BE TAKEN IN RELIANCE OF MARRIAGE BY THIRD PARTIES, 11 BY EMPLOYERS, CREDITORS, OTHERS, ALSO ARE GOING TO BE 12 IMPACTED. 13 ORDER AND IN AVOIDING UNNECESSARY EXPENDITURES. THE PUBLIC ALSO HAS AN INTEREST IN CERTAINTY AND IN 14 WE HAVE ALSO IN OUR REPLY THAT WE FILED THIS MORNING HAVE 15 ADDRESSED THE -- THE THREE CASES THAT THE PLAINTIFFS CITE POST 16 WINDSOR, AND WE HAVE DISTINGUISHED THOSE CASES. 17 JERSEY CASE, OF COURSE, WAS BASED UPON NEW JERSEY STATE LAW. 18 IT'S A CASE THAT ARISES FROM NEW JERSEY STATE COURTS APPLYING 19 THEIR STANDARDS FOR A STAY, WHICH ARE NOT THE SAME AS IN 20 FEDERAL COURT. 21 THE NEW AND THE NEW MEXICO CASE INVOLVES A STATE WHERE THERE IS 22 NO LAW EITHER PROHIBITING OR GRANTING THE RIGHT OF SAME-SEX 23 MARRIAGE, SO IT'S AN ENTIRELY DIFFERENT SITUATION. 24 CASE FROM ILLINOIS INVOLVES A STATE STATUTE THAT HAS ALREADY 25 ADOPTED SAME-SEX MARRIAGE, AND A COUPLE FILING THE MOTION AND THE 17 Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 19 1 SIMPLY WANTED TO MARRY BEFORE THE STATUTE WENT INTO EFFECT, 2 WHICH IS VERY DIFFERENT FROM THE SITUATION WE FACE HERE. 3 THE MOST APPLICABLE EXAMPLE THAT WE WOULD URGE THE COURT 4 TO FOLLOW IS THAT OF THE NINTH CIRCUIT AND THE DISTRICT COURT 5 IN PERRY V. BROWN PROPOSITION 8 CASE. 6 STAY PENDING A DECISION FROM THE NINTH CIRCUIT AS TO WHETHER 7 THEY WERE GOING TO GRANT A STAY, AND THE NINTH CIRCUIT DID 8 GRANT A STAY IN THAT CASE, IN THE PROPOSITION 8 LITIGATION. 9 SO WE WOULD URGE THE COURT TO FOLLOW THAT EXAMPLE. 10 11 12 13 JUDGE WALKER GRANTED A THANK YOU, YOUR HONOR. THE COURT: THANK YOU, MR. LOTT. WE'LL HEAR AGAIN FROM YOU BEFORE WE CONCLUDE. MS. TOMSIC. 14 MS. TOMSIC: 15 THE COURT: 16 MS. TOMSIC: GOOD MORNING, YOUR HONOR. GOOD MORNING. YOUR HONOR, FUNDAMENTALLY THE STATE IS 17 ASKING YOU TO LOOK BACKWARD AND TO NOT -- DENY PLAINTIFFS' 18 MOTION FOR SUMMARY JUDGMENT AND TO GRANT THEIR MOTION ON 19 EXACTLY THE SAME MERIT GROUNDS THAT THEY ARGUED IN TENS OF 20 PAGES OF BRIEFING DURING ALMOST FOUR HOURS OF ORAL ARGUMENT 21 THAT THIS COURT SOUNDLY AND DEFINITIVELY REJECTED IN A 22 WELL-REASONED FOUNDATIONALLY SUPPORTED DECISION. 23 THERE IS NOT A SINGLE ISSUE FROM A LEGAL STANDPOINT THAT 24 THE STATE HAS RAISED, EITHER IN ITS WRITTEN PAPERS BEFORE THIS 25 COURT OR IN THE ORAL ARGUMENT THAT HAS NOW BEEN MADE BEFORE 18 Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 20 1 YOUR HONOR, THAT WOULD JUSTIFY THIS COURT FINDING THAT THERE 2 IS NOT ONLY A LIKELIHOOD OF YOUR HONOR BEING REVERSED ON 3 APPEAL, BUT THE STANDARD IN THIS DISTRICT REQUIRES THE STATE 4 TO SHOW, MAKE A STRONG SHOWING -- IT IS NOT JUST A SHOWING, AS 5 IT IS IN A PRELIMINARY INJUNCTION, IT IS A STRONG SHOWING. 6 AND THERE IS GOOD REASON FOR THAT REQUIREMENT, YOUR HONOR. 7 THE REASON THAT REQUIREMENT EXISTS, AND PARTICULARLY IN A 8 SITUATION LIKE THIS CASE, IS THAT WE HAVE A DECISION FROM YOUR 9 HONOR THAT IS NOT A PRELIMINARY INJUNCTION. WE HAVE A 10 DECISION FROM THIS COURT THAT ACTUALLY SORT OF FLOWED OUT OF 11 THE STATE ASKING THIS COURT TO DECIDE THE ISSUE ON SUMMARY 12 JUDGMENT. 13 HAVING AN AMPLE OPPORTUNITY TO PUT THEIR BEST FOOT FORWARD, TO 14 PUT THEIR BEST ARGUMENTS, THEIR BEST UNDISPUTED FACTS, THEIR 15 BEST LEGAL AUTHORITIES, AND WE DID THAT, YOUR HONOR. 16 IT IS A DECISION THAT IS PREDICATED ON BOTH SIDES STARTING ON OCTOBER 22ND -- OR EXCUSE ME -- 11TH OF THIS 17 YEAR WE PROVIDED YOUR HONOR MAYBE WITH WE COULD CALL IT A 18 MOUNTAIN OF PAPER, WHERE EACH SIDE HAD A FULL OPPORTUNITY TO 19 ADVISE YOUR HONOR OF HOW WE BELIEVED YOU SHOULD RULE. 20 THEN ON NOVEMBER 22ND WE INUNDATED YOU WITH FURTHER PAGES 21 EXPLAINING WHY THE OTHER SIDE'S POSITION WAS FUNDAMENTALLY 22 WRONG AS A MATTER OF LAW. 23 TIME. 24 SIDES ALL THE TIME THEY NEED IN ORAL ARGUMENT TO HELP ME MAKE 25 THE RIGHT DECISION. AND AND THEN YOUR HONOR GAVE US AMPLE YOU SAID THIS IS AN IMPORTANT ISSUE. I AM GIVING BOTH 19 Appellate Case: 13-4178 1 Document: 01019177091 Date Filed: 12/23/2013 Page: 21 AFTER THAT PROCESS, WHERE YOU HAVE A PERMANENT 2 DECISION -- OR INJUNCTION DECLARING WHAT THE LAW IN UTAH IS, A 3 COURT REQUIRES MORE THAN SIMPLY A REARGUMENT OF THE POSITIONS 4 THAT WERE REJECTED AND DENIED IN THE FIRST PLACE. 5 WERE NOT TRUE, EVERY TIME A COURT ISSUES AN ORDER, A 6 PRELIMINARY INJUNCTION OR A PERMANENT INJUNCTION, THE STATE 7 COULD SIMPLY MEET THAT MANDATORY REQUIREMENT BY REARGUING THE 8 SAME POSITIONS AND SAYING, GOSH, YOUR HONOR, YOU GOT IT WRONG 9 THE FIRST TIME. 10 YOU BETTER AGREE WITH US NOW. IF THAT WELL, THAT'S NOT THE STANDARD AND THE STATE HASN'T MET IT. 11 AND WHAT'S IMPORTANT, YOUR HONOR, IS WHAT YOU'VE HEARD IN 12 THEIR PAPERS, AND WHAT YOU HEARD MR. LOTT SAY IN THIS CASE IS, 13 GEE, JUDGE, YOU OUGHT TO GRANT US A MOTION TO STAY BECAUSE 14 THIS IS A DIVISIVE AND IMPORTANT PUBLIC STATE INTEREST. 15 16 THE COURT: THAT SEEMS A REASONABLE REQUEST, DOES IT? 17 MS. TOMSIC: ABSOLUTELY NOT, YOUR HONOR. IF THAT 18 WERE THE STANDARD, THE TENTH CIRCUIT WOULD NOT HAVE MANDATORY 19 FACTORS. 20 OF THEM, AND THAT IS THE PUBLIC'S INTEREST. 21 YOU KNOW BETTER THAN I DO BECAUSE YOU WROTE YOUR DECISION, ONE 22 OF THE ARGUMENTS THAT THE STATE MADE AS TO WHY YOU SHOULD DENY 23 OUR MOTION FOR SUMMARY JUDGMENT AND GRANT THEIRS IS PROCEEDING 24 WITH CAUTION. 25 VERSION OF THAT ARGUMENT, WHICH YOU HAVE ALREADY REJECTED. THE IMPORTANCE OF THAT PARTICULAR FACTOR IS ONLY ONE AND, YOUR HONOR, THIS IS JUST A REPACKAGED AND DRESSED-UP 20 Appellate Case: 13-4178 1 Document: 01019177091 Date Filed: 12/23/2013 Page: 22 AND TO SAY, JUDGE, THIS IS IMPORTANT SO LET'S IGNORE ALL 2 THE OTHER FACTORS THAT ARE MANDATORY. 3 LIKE, OH, GEE, LOOK AT THESE, BUT IF YOU DON'T THINK THEY 4 APPLY, GO AHEAD AND ISSUE A STAY BECAUSE IT'S IMPORTANT. 5 THAT'S NOT THE LAW. 6 PLEA IS BECAUSE THEY CANNOT AND HAVE NOT MET THE MANDATORY 7 FACTORS THAT THE TENTH CIRCUIT REQUIRES THIS COURT TO APPLY. 8 9 THEY'RE NOT SUGGESTED, AND THE REASON THEY MAKE THAT IMPASSIONED THE COURT: IF I AGREE WITH YOU, WHAT AM I TO MAKE OF THE STATE'S ALTERNATIVE REQUEST THAT WE AT LEAST IMPOSE A 10 TEMPORARY STAY TO ALLOW THE TENTH CIRCUIT TO DECIDE HOW IT 11 WISHES TO PROCEED? 12 MS. TOMSIC: YOUR HONOR, NUMBER ONE, A REQUEST THAT 13 THIS COURT DO TEMPORARILY WHAT IT CAN'T DO PERMANENTLY IS NO 14 BETTER THAN THE INITIAL REQUEST. 15 DEMONSTRATION WARRANTING A STAY, AND THE TENTH CIRCUIT TWICE 16 NOW HAS TOLD THESE GUYS WE'RE NOT GOING TO DO THAT, AND IT 17 WOULD BE WHOLLY IMPROPER FOR THIS COURT TO DO IT. 18 AND THEY TALK ABOUT THIS CLOUD OF CONFUSION. YOU STILL HAVE TO MAKE A WELL, THE 19 CLOUD OF CONFUSION, WHICH I'LL GET TO, IS IN THEIR MINDS. 20 IT'S NOT IN ANYBODY ELSE'S. 21 HONOR, THE STATUS QUO IN THIS CASE, THE LAW IN THIS 22 JURISDICTION RIGHT NOW IS YOUR ORDER. 23 THE COURT: BUT THE BOTTOM LINE IS, YOUR AND -- I THINK THIS IS MR. LOTT'S POINT. 24 MY ORDER IS ONLY THE FIRST RULING IN THIS CASE. 25 CERTAINLY NOT GOING TO BE THE LAST. BUT IT IS I THINK THE STATE'S POINT 21 Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 23 1 IS EXACTLY THAT, SHOULDN'T WE ALLOW SOMEBODY ABOVE ME TO WEIGH 2 IN ON THAT? 3 MS. TOMSIC: YOUR HONOR, THEY'RE GOING TO WEIGH IN 4 ON IT, AND YOU KNOW WHAT, NOTHING IS GOING TO CHANGE BETWEEN 5 NOW AND THERE, NOTHING. 6 EVEN FOR A TEMPORARY STAY -- WHICH THEY HAVEN'T CITED 7 AUTHORITY. 8 CASE. 9 IT WAS BEFORE ALL THESE OTHER CASES THAT HAVE COME DOWN AFTER 10 I MEAN WHAT THE STATE HAS TO SHOW THEY WENT TO JUDGE WALKER'S OPINION IN THE PROP 8 JUDGE, BUT REMEMBER, HIS OPINION WAS BEFORE WINDSOR. WINDSOR. IT'S NOT A TENTH CIRCUIT DECISION. 11 THE COURT: 12 THAT THIS CASE PRESENTED TO ME. 13 INTERPRET HOW I THOUGHT I WAS SUPPOSED TO RULE IN LIGHT OF 14 WINDSOR. 15 CORRECT, RIGHT, THE TENTH -- NEITHER THE TENTH CIRCUIT NOR THE 16 SUPREME COURT HAS ANSWERED THE QUESTION THAT I WAS REQUIRED TO 17 ANSWER IN THIS CASE? 18 BUT WINDSOR DIDN'T ANSWER THE QUESTION AND I DID THE BEST I COULD TO BUT MR. LOTT IS CORRECT, THE STATE OF UTAH IS MS. TOMSIC: YOUR HONOR, I WOULD ABSOLUTELY BE 19 CANDID AND AGREE WITH YOU, BUT WOULD YOU TELL ME A SINGLE CASE 20 IN THIS CIRCUIT OR FROM THE SUPREME COURT WHERE A COURT HAD 21 SAID, GOSH, IF YOUR CIRCUIT HASN'T RULED, AND THE SUPREME 22 COURT HASN'T RULED, YOU BETTER GRANT A STAY? 23 WHAT, IF THAT WAS THE STANDARD, WE WOULD HAVE STAYS ISSUED 24 ALMOST IN EVERY CASE. 25 ISN'T THE STANDARD, YOUR HONOR, AND THERE ISN'T A CASE THAT BECAUSE YOU KNOW EVERY CASE STANDS ON ITS OWN. THAT 22 Appellate Case: 13-4178 1 Document: 01019177091 Date Filed: 12/23/2013 Page: 24 STANDS FOR THAT PROPOSITION. YOUR HONOR, HAD YOU BELIEVED THAT THERE SHOULD BE A STAY 2 3 IN PLACE, REGARDLESS OF ANY PENDING MOTION, SO THE TENTH 4 CIRCUIT WOULD HAVE AN OPPORTUNITY TO RULE ON THIS ISSUE, IT 5 SURE AS HECK COULD HAVE DONE A TEMPORARY STAY IN ITS ORDER AND 6 IT DIDN'T DO IT. 7 CHANGED. IT DID NOT DO IT, AND THE STATUS QUO HAS 8 THE COURT: 9 MS. TOMSIC: WHAT IS THE STATUS QUO? THE STATUS QUO RIGHT NOW IS THE LAW IN 10 UTAH IS THAT COUNTY CLERKS ARE OBLIGATED TO ISSUE LICENSES TO 11 SAME-SEX COUPLES TO GET MARRIED. 12 MARRIED, ARE MARRIED. 13 MARRIED BY THE END OF THE DAY ON FRIDAY. 14 QUO. 15 GOING TO STOP THE IMPORT OF MY RULING, AND LET'S CHANGE IT NOW 16 BACK TO THE WAY IT WAS AND LET THE TENTH CIRCUIT DO IT. SAME-SEX COUPLES ARE GETTING THERE WERE HUNDREDS OF SAME-SEX COUPLES THAT IS THE STATUS AND TO NOW SAY, GOSH, I WAS JUST KIDDING, FOLKS. 17 THE COURT: 18 MS. TOMSIC: 19 THE COURT: I'M IT'S NOT. WAIT, LET ME JUST -IT'S NOT A QUESTION THAT I WAS KIDDING. 20 IT'S THERE WAS NO MOTION FOR A STAY PENDING BEFORE I ENTERED 21 MY RULING. 22 THERE IS NOW. MS. TOMSIC: AND I UNDERSTAND IT. AND IN THAT 23 INTERIM, THE STATUS QUO HAS CHANGED, YOUR HONOR. AND WHAT THE 24 STATE IS ASKING YOU TO DO IS PUT THEM IN A POSITION WHERE THEY 25 CAN ARGUE TO THE TENTH CIRCUIT, GOSH, JUDGE SHELBY HAS NOW 23 Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 25 1 ISSUED AN INTERIM TEMPORARY STAY, EVEN THOUGH THERE'S NO 2 AUTHORITY TO DO THAT. 3 NOW IS SAME-SEX COUPLES CAN GET MARRIED, AND WE ARE JUST 4 ASKING YOU TO MAINTAIN THE STATUS QUO. 5 AVOID THEIR BURDEN, WHICH IS YOU SHOW ME HOW THE STATE IS 6 GOING TO BE IRREPARABLY HARMED BY MORE SAME-SEX MARRIAGES 7 OCCURRING. 8 9 AND GUESS WHAT, THE STATUS QUO IN UTAH THEY ARE TRYING TO THE STATUS QUO IS THE STATUS QUO. AND I WANT TO COME BACK AND PUT ON THE RECORD, YOUR HONOR, KIND OF THE CHRONOLOGY OF HOW WE GOT HERE. WHEN YOUR 10 HONOR ASKED FOR BRIEFING ON SUMMARY JUDGMENTS, THERE WAS NO 11 QUESTION THAT THERE WAS AN ABSOLUTE RISK AND POSSIBILITY FOR 12 BOTH SIDES THAT YOU WERE GOING TO ISSUE A SELF-EXECUTING 13 OPINION. 14 THAN A LAW STUDENT TO KNOW THAT. 15 I MEAN, MY GOSH, JUDGE, YOU DON'T HAVE TO BE MORE SECOND, WE'VE ALL MADE IT CLEAR, YOUR HONOR IS CLEAR, 16 THIS THING IS NOT GOING TO END HERE, AND WE KNOW THAT. 17 APPEAL NOTICE WAS FILED ON FRIDAY. 18 TENTH CIRCUIT FOR FINAL RESOLUTION IN THIS CIRCUIT, UNLESS THE 19 SUPREME COURT GRANTS CERT. 20 STATE NEVER ONCE RAISED THE ISSUE OF A STAY. 21 THE IT'S GOING TO GO TO THE AND WE ALL KNOW THAT. YET THE AND WE KNEW WHEN WE ENDED OUR HEARING ON DECEMBER 4TH 22 THAT THERE WASN'T GOING TO BE ANY WARNING ABOUT YOUR DECISION 23 COMING OUT. 24 GET IT ELECTRONICALLY. 25 NOTHING TO PROTECT THE STATUS QUO, I THINK THIS COURT CAN YOU WERE GOING TO ISSUE AN OPINION AND WE WOULD WE KNOW THAT. SO IF THE STATE DID 24 Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 26 1 INFER THAT IN REALITY IT WAS NOT CONCERNED ABOUT IRREPARABLE 2 HARM. 3 AND I THINK THE OTHER THING THAT'S IMPORTANT, YOUR HONOR, 4 IS WHEN YOUR HONOR ISSUED THIS OPINION, AND IT CAME TO US ALL 5 AT THE SAME TIME ELECTRONICALLY, THE STATE DIDN'T DO ANYTHING 6 FOR A COUPLE OF HOURS. 7 COULD HAVE SAID, JUDGE, MAKE THEM BRIEF IT IN TWO HOURS. 8 LET'S HAVE THIS HEARD NOW. 9 GETTING MARRIED. 10 THEY COULD HAVE FILED A STAY. THINGS ARE GOING NUTS. THEY PEOPLE ARE LET'S DO IT NOW BEFORE THERE'S MORE CHAOS AND HARM, AS THEY CALL IT. THEY DIDN'T DO IT. WHAT HAPPENED INSTEAD IS YOU ON YOUR OWN INITIATIVE 11 12 PLACED A CONFERENCE CALL AND HAD US ON THE PHONE, AND YOU WERE 13 CRYSTAL CLEAR IN THAT CONFERENCE CALL THAT YOU BELIEVED YOU 14 NEEDED A WRITTEN MOTION SO YOU UNDERSTOOD WHAT THE STANDARDS 15 WERE AND WHETHER THEY WERE MET. 16 AND IF YOU WILL RECALL, WHICH I'M SURE YOU DO, YOUR 17 HONOR, YOU ASKED THE STATE WHEN -- WHAT ARE YOU GOING TO DO? 18 ARE YOU GOING TO FILE A MOTION? 19 IT? 20 TAKEN CARE OF. 21 WHEN ARE YOU GOING TO FILE I'LL SET AN EXPEDITED BRIEFING SCHEDULE. LET'S GET THIS WHAT THE STATE TOLD YOU IS, GOSH, WE DON'T KNOW WHAT 22 WE'RE GOING TO DO OR WHEN. AND WE ENDED THE CALL WITH NO 23 SCHEDULE, NO HEARING, BECAUSE THE STATE IN THE FACE OF MY 24 STATEMENT, JUDGE, PEOPLE ARE GETTING MARRIED, SAME-SEX COUPLES 25 ARE GETTING MARRIED NOW, DID NOTHING, NOTHING. AND WHAT THEY 25 Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 27 1 LET THE COUNTY CLERKS, INCLUDING -- EXCLUDING UTAH COUNTY, DO 2 WAS ISSUE MARRIAGE LICENSES TO SAME-SEX COUPLES, ALLOWED THEM 3 TO GET MARRIED, DIDN'T FILE A MOTION FOR A STAY. 4 MOTION FOR -- OR A NOTICE OF APPEAL. 5 THEIR MOTION UNTIL AFTER THE OFFICES HAD CLOSED AT ABOUT 8:30 6 AT NIGHT. 7 THEY FILED A THEY DIDN'T EVEN FILE NOW, IF THIS MOTION WOULD HAVE BEEN A 20 PAGE BLOCKBUSTER 8 INTELLECTUALLY CHALLENGING MOTION, GOSH, MAYBE YOU CAN SAY 9 MAYBE IT'S OKAY THAT THEY WAITED, BUT IT'S A FIVE PAGE MEMO, 10 JUDGE. 11 AND TRYING TO MAINTAIN SOME STATUS QUO THAT EXISTED BEFORE 12 THIS ORDER, THEY SURE AS HECK HAD THE OPPORTUNITY TO MAKE IT 13 HAPPEN. 14 HAVE A DIFFERENT STATUS QUO. 15 UNLESS A HIGHER COURT DETERMINES THAT IT SHOULD CHANGE. 16 COME ON. IF THEY WERE WORRIED ABOUT IRREPARABLE HARM WELL, THEY DIDN'T. WE'RE IN A SITUATION WHERE WE WE NEED TO KEEP THAT STATUS QUO THIS CONCEPT OF PING-PONGING, JUDGE, NOW STAY IT. GOSH, 17 LET'S GO TO THE TENTH CIRCUIT. 18 THEN WE'RE BACK TO THIS -- I MEAN YOU TALK ABOUT CONFUSION AND 19 UNCERTAINTY. 20 WHAT IF THEY DON'T STAY IT? THAT'S EXACTLY WHAT THEY'RE ASKING. AND I WOULD ASK YOUR HONOR TO UPHOLD THE MERITS OF YOUR 21 DECISION, STAND BEHIND THEM, BECAUSE THERE IS NO LIKELIHOOD 22 IT'S GOING TO BE REVERSED ON APPEAL, AND THERE SURE AS HECK 23 ISN'T ANY STRONG SHOWING IT WILL BE REVERSED. 24 TO ESTABLISH THAT FUNDAMENTAL CRITICAL FACTOR IS ABSOLUTELY 25 DEVASTATING TO THIS MOTION. AND THE FAILURE IF YOU CANNOT DEMONSTRATE THAT, 26 Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 28 1 YOU ARE NOT ENTITLED TO A STAY AND YOU'RE SURE AS HECK NOT 2 ENTITLED TO UPSET THE STATUS QUO TEMPORARILY WHILE WE HAVE 3 THEM MAKE EXACTLY THE SAME INEFFECTIVE AND MERITLESS ARGUMENTS 4 TO THE TENTH CIRCUIT. 5 BASED ON ARGUMENTS THAT HAVE NO MERIT HERE AND CAN'T MEET THE 6 STANDARDS OF THE TENTH CIRCUIT UNDER RULE 8. 7 PLEASE DO NOT CHANGE THE STATUS QUO BUT LET ME TALK ABOUT THE OTHER FACTORS, YOUR HONOR, 8 BECAUSE IT'S NOT JUST THAT FACTOR. I MEAN THE REASON THEY 9 WANT TO KIND OF CLOUD EVERYTHING AND SAY, GOSH, THERE'S THIS 10 CLOUD OF CONFUSION. 11 WHAT, THERE IS NO CLOUD OF CONFUSION. 12 ORDER THAT DECLARES THE LAW IN UTAH. 13 SALT LAKE COUNTY, HAS NO QUESTION ABOUT WHAT THEIR OBLIGATION 14 TO FOLLOW THE LAW IS. 15 AS I UNDERSTAND MOST OF THE OTHER COUNTIES IN THIS STATE ARE 16 DOING, OTHER THAN UTAH COUNTY. 17 YOU NEED TO CLEAR IT UP. WELL, YOU KNOW THERE IS A FEDERAL THE COUNTIES, INCLUDING THEY'RE DOING EXACTLY WHAT THE LAW IS, AND, YOUR HONOR, WHILE I'M ON THIS, WHILE IT'S A LITTLE 18 BIT OF AN OFF POINT, IT'S SOMETHING I WANT IN THIS RECORD. 19 THE DEFENDANT GOVERNOR HERBERT IN THIS CASE ON SATURDAY -- MAY 20 I APPROACH? 21 THE COURT: 22 MS. TOMSIC: PLEASE. ISSUED A LETTER TO ALL OF THE COUNTY 23 CLERKS. NOW, THIS IS AFTER YOUR ORDER HAS BEEN 24 SELF-EFFECTUATING SINCE BETWEEN 1:30 AND 2:00 FRIDAY 25 AFTERNOON, AFTER PEOPLE HAVE BEEN GRANTED MARRIAGE LICENSES, 27 Appellate Case: 13-4178 1 2 Document: 01019177091 Date Filed: 12/23/2013 Page: 29 AFTER THEY'VE BEEN MARRIED, HE SENDS OUT THIS LETTER. AND, YOUR HONOR, I WANT YOU TO LOOK AT THE SECOND 3 PARAGRAPH OF THIS LETTER, AND PARTICULARLY THE LAST SENTENCE. 4 GOVERNOR HERBERT, THE DEFENDANT IN THIS ACTION, THE GOVERNOR 5 OF THE STATE OF UTAH, REQUIRED TO FOLLOW UTAH LAW IS TELLING 6 THESE CLERKS, PENDING A DETERMINATION OF THE STAY, PLEASE 7 CONSULT WITH YOUR COUNTY ATTORNEY AND COUNCIL -- COUNTY 8 COUNCIL OR COMMISSION FOR DIRECTION OF HOW TO PROCEED, END 9 QUOTE. 10 YOUR HONOR, HE IMPLICITLY IS TELLING THEM NOT TO FOLLOW 11 YOUR ORDER. THIS IS NO DIFFERENT THAN GOVERNOR WALLACE 12 STANDING IN FRONT OF THAT YOUNG BLACK WOMAN IN ALABAMA AND 13 SAYING, I DON'T CARE IF A FEDERAL COURT DETERMINED THAT THIS 14 GIRL HAS A CONSTITUTIONAL RIGHT TO ENTER OUR ALL WHITE SCHOOL. 15 YOU'RE NOT COMING IN BECAUSE THE PEOPLE OF THIS STATE SAY YOU 16 CAN'T. 17 DOESN'T GET TO DECIDE WHAT THE LAW IS. 18 AND THE STATE OFFICIALS IN THIS STATE NEED TO ABIDE BY THEIR 19 OATH OF OFFICE AND WHAT THE LAW OF THIS STATE IS. 20 AND I WANT TO TURN TO IRREPARABLE HARM. WELL, YOU KNOW WHAT, YOUR HONOR, GOVERNOR HERBERT YOU DO AND YOU HAVE. YOUR HONOR, THE 21 STATE SKIRTS THE ISSUE THAT WE RAISED AND THE QUESTION YOU 22 POSED TO THEM, WHICH IS WHAT IS THE STATUS QUO? 23 REASON THAT'S IMPORTANT FOR IRREPARABLE HARM, YOUR HONOR, IS 24 BECAUSE YOU NEED TO LOOK AT WHAT WOULD HAPPEN IF YOU ISSUE 25 THIS STAY NOW. AND THE THIS ISN'T LIKE GOING BACK IN TIME BEFORE YOUR 28 Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 30 1 DECISION WAS ISSUED AND SAYING, NOPE, WE'RE GOING TO JUST HOLD 2 STILL. 3 WHERE YOUR ORDER HAS NOW BEEN IN EFFECT, GOSH, MOST OF FRIDAY 4 AFTERNOON AND PART OF MONDAY MORNING. 5 IT IS THE LAW IN UTAH. 6 PERMITTING ADDITIONAL SAME-SEX COUPLES TO MARRY WILL HARM ITS 7 INTEREST, WILL CREATE IRREPARABLE HARM. 8 HAVE NOT MADE THAT SHOWING. 9 WE'RE NOT GOING TO DO ANYTHING. THIS IS A SITUATION IT IS THE STATUS QUO. AND THE STATE MUST DEMONSTRATE HOW AND, YOUR HONOR, THEY IN FACT YOUR POINTED QUESTION ABOUT, GOSH, IF YOU'RE 10 SAYING ALL THESE MARRIAGES ARE INVALID, IF THE TENTH CIRCUIT 11 REVERSES ME, WHAT'S YOUR HARM? 12 AND, YOUR HONOR, I WOULD ASK YOU TO LOOK BACK AT YOUR 13 OPINION AGAIN IN TERMS OF IRREPARABLE HARM OF THE STATE. 14 STATE'S ARGUMENT ABOUT PROTECTING THE PUBLIC WILL, AND 15 PROTECTING THE TRADITIONAL FAMILY, AND PROTECTING THE PUBLIC 16 PROCESS ARE ALL THE STATE INTERESTS THAT THE STATE ARGUED TO 17 THIS COURT AS JUSTIFICATION FOR THE DISCRIMINATORY MARRIAGE 18 LAWS IN UTAH. 19 THE AND YOUR HONOR SQUARELY HELD THAT THE STATE WHOLLY FAILED 20 TO DEMONSTRATE THAT EVEN ASSUMING THOSE WERE LEGITIMATE STATE 21 INTERESTS, THAT THERE WAS ANY RATIONAL RELATIONSHIP BETWEEN 22 BANNING SAME-SEX MARRIAGE AND ACCOMPLISHING THOSE OBJECTIVES. 23 IF THE STATE CANNOT MEET THAT STANDARD, WHEN NO SAME-SEX 24 MARRIAGES HAVE TAKEN PLACE, THEY SURE AS HECK CAN'T SHOW THEY 25 MEET A STANDARD OF SHOWING HOW MORE SAME-SEX MARRIAGES WILL 29 Appellate Case: 13-4178 1 2 Document: 01019177091 Date Filed: 12/23/2013 Page: 31 HARM THE STATE'S INTERESTS. AND I WOULD ASK YOUR HONOR, IF YOU ARE LOOKING AT THIS IN 3 TERMS OF HARMS -- AND YOU AGAIN ASKED THE QUESTION, GOSH, HOW 4 DO YOU BALANCE, IF THE STATE IS ARGUING THAT IT IS GOING TO BE 5 HARMED HERE BECAUSE THE -- YOU'VE GOT ALL THESE ARGUMENTS 6 ABOUT TRADITIONAL MARRIAGE AND PUBLIC SUPPORT FOR 7 DISCRIMINATING AGAINST SAME-SEX COUPLES, HOW DO YOU BALANCE 8 THAT AGAINST MY FINDING THAT THE PLAINTIFFS IN THIS CASE HAVE 9 TWO FUNDAMENTAL RIGHTS UNDER THE CONSTITUTION THAT ARE BEING 10 VIOLATED? HOW CAN YOU JUSTIFY, WHEN I HAVE FOUND AS A FEDERAL 11 JUDGE, MANDATED BY ARTICLE 3, NOT TO CARRY OUT THE WILL OF THE 12 PEOPLE, THAT'S THE LEGISLATURE AND GOVERNOR'S JOB. 13 JOB AS A FEDERAL JUDGE TO HONOR AND IMPLEMENT THE PROTECTIONS 14 OF THE UNITED STATES CONSTITUTION. 15 CONSTITUTIONAL RIGHTS EXIST AND THEY ARE BEING DEPRIVED, HOW 16 CAN YOU POSSIBLY WEIGH WHAT I FOUND TO BE INSUFFICIENT TO 17 JUSTIFY THESE DISCRIMINATORY LAWS WOULD IN ANY WAY OUTWEIGH 18 THE DEPRIVATION OF CONSTITUTIONAL RIGHTS UNTIL THE TENTH 19 CIRCUIT APPELLATE PROCESS RUNS ITS COURSE, WHICH MAY BE YEARS? 20 AND I WOULD POINT OUT AGAIN, YOUR HONOR, THIS CONCEPT IT IS MY IF I FIND THOSE 21 THAT, GOSH, ALL WE'RE TALKING ABOUT IS DELAYING LETTING THESE 22 FOLKS EXERCISE THEIR CONSTITUTIONAL RIGHTS. 23 ARGUMENT IS JUST ALMOST THE SAME AS THEIR ARGUMENT IN THEIR 24 PAPERS THAT THERE'S NOT A LONG ENOUGH HISTORY OF 25 DISCRIMINATION. LET'S MAKE IT LONGER. WELL, TO ME THAT THAT'S NOT A GOOD 30 Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 IT'S NOT A FAIR ARGUMENT. Page: 32 1 ARGUMENT, YOUR HONOR. YEAH, THAT'S 2 WHAT THEY THINK, BUT THAT'S NOT A LEGAL JUSTIFICATION. 3 AND I WOULD POINT OUT AGAIN, AS I DID IN MY PAPERS, AS I 4 DID IN MY ORAL ARGUMENT BEFORE, I HAVE TWO PLAINTIFFS, ONE OF 5 WHOM IS TERMINALLY ILL AND DYING. 6 GOSH, YOU KNOW, TOO BAD. 7 SAME-SEX COUPLES WHO AREN'T MARRIED, IT'S JUST THE BREAKS. 8 WELL, IT'S NOT THE BREAKS. 9 AND THEY ARE SAYING, OH, IF THAT HAPPENS TO ALL THESE OTHER JUDGE, YOU BALANCE THOSE HARMS. OURS WIN. THEIRS ARE 10 SHALLOW AND NONEXISTENT. 11 YOURSELF, IF I STAY THIS ACTION, WHAT IS THE WORST THAT'S 12 GOING TO HAPPEN TO THE STATE? 13 THE WORST THAT'S GOING TO HAPPEN TO SAME-SEX COUPLES? 14 LIKE YOUR DECISION, IT IS NOT A CLOSE CALL. 15 AND I WOULD ASK YOU TO SAY TO AND BALANCE IT AGAINST WHAT IS AND AND FINALLY, YOUR HONOR, LET'S TALK ABOUT THE PUBLIC 16 INTEREST. 17 CITIZENS BECAUSE, GOSH, THERE'S THIS WHOLE GROUP OF PEOPLE WHO 18 BELIEVE THAT THIS ORDER IS VIOLATING GOD'S LAW. 19 TO PROTECT THOSE CITIZENS. 20 IT'S NOT THIS COURT'S PLACE TO PROTECT A MORAL MAJORITY'S 21 VIEWPOINT. 22 CONSTITUTIONAL RIGHTS OF OUR CITIZENS. 23 THEY TALK ABOUT WANTING TO PROTECT ALL OF UTAH'S AND THEY WANT WELL, YOU KNOW WHAT, YOUR HONOR, THE LAW IS CLEAR ON THAT. IT'S TO PROTECT THE AND WHEN WE'RE TALKING ABOUT THE PUBLIC INTEREST HERE, 24 THIS COURT FOUND, AND THE STATE ADMITTED, THAT THE PLAINTIFFS 25 AND OTHER SAME-SEX COUPLES, BY BEING KEPT FROM MARRIAGE, WERE 31 Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 33 1 SUFFERING CONSTITUTIONAL INJURIES. 2 IS OUT OF WINDSOR. 3 AND IT IS AN INJURY THAT WILL HAPPEN EVERY DAY A STAY IS IN 4 PLACE, JUST LIKE IT DID BEFORE YOUR RULING. 5 JUSTIFICATION FOR THAT. 6 AND THE LANGUAGE YOU QUOTE IT IS A CONSTITUTIONAL INJURY, YOUR HONOR, AND THERE IS NO BUT, MORE IMPORTANTLY, WHEN THE STATE SAYS THEY WANT TO 7 PROTECT ALL ITS CITIZENS, THAT IS BALONEY. LOOK AT THE 8 UNCONTROVERTED RECORD IN THIS CASE, WHICH IS CITED IN YOUR 9 OPINION, WHICH IS THERE ARE AROUND 3,000 CHILDREN OF SAME-SEX 10 COUPLES WHO ARE EXPERIENCING ON A DAILY BASIS THE KIND OF 11 HARM, DISCRIMINATION AND INSECURITY THAT NO CHILD, NO CHILD, 12 SHOULD EVER HAVE TO ENDURE. 13 PROTECT THOSE KIDS. YOUR HONOR, AND FINALLY THEIR EFFORT TO RELY ON DECISIONS 14 IN HAWAII AND NEVADA THAT ARE CURRENTLY PENDING BEFORE THE 15 NINTH CIRCUIT, AND ALSO THE EIGHTH CIRCUIT OPINION. 16 17 18 THE COURT: BUT THE JACKSON DECISION IS RENDERED MOOT, IS IT NOT, BY THE ACTION OF -MS. TOMSIC: IT IS. IT ABSOLUTELY IS. SO WE'RE 19 REALLY TALKING ABOUT THE NEVADA DECISION AND THE EIGHTH 20 CIRCUIT DECISION. 21 NUMBER ONE, YOUR HONOR, THOSE COURTS ARE NOT IN OUR 22 JURISDICTION. 23 AND I WOULD SAY A COUPLE THINGS ABOUT THAT. NUMBER TWO, THOSE CASES WERE -- AND I KNOW YOU DON'T LOVE 24 WINDSOR THE WAY I LOVE WINDSOR, BUT THEY WERE CLEARLY BEFORE 25 WINDSOR, AND THEY WERE CLEARLY BEFORE THE SUPREME COURT LEFT 32 Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 34 1 JUDGE WALKER'S DECISION IN PROP 8 INTACT. AND I WOULD SAY 2 THAT IF YOU LOOK AT ACTUALLY THE DECISIONS THAT WERE DECIDED 3 AFTER WINDSOR, INCLUDING THE NEW JERSEY CASE, THOSE CASES HAVE 4 REFUSED TO ISSUE INJUNCTIONS FOR THE SAME TYPE OF -- I MEAN 5 STAYS FOR THE SAME REASONS YOU SHOULD. 6 AND THE EFFORT OF THE STATE IN THE PLEADINGS THEY FILED 7 THIS MORNING AND IN ORAL ARGUMENT AND SAY, OH, GOSH, THEY'RE 8 DISTINGUISHABLE. 9 ORDER IN NEW JERSEY, THE STANDARDS FOR STAY IN NEW JERSEY ARE NO, THEY'RE NOT, JUDGE. IF YOU READ THE 10 THE SAME WHETHER IT'S A STATE LAW OR A FEDERAL LAW. 11 SAME. 12 13 IT IS NO DIFFERENT. AND I WOULD JUST SAY TO YOUR HONOR, PLEASE, DO THE RIGHT THING. 14 15 THE COURT: MR. LOTT: 17 THE COURT: 19 THANK YOU, MS. TOMSIC. MR. LOTT. 16 18 IT'S THE JUST A COUPLE OF POINTS IN RESPONSE. WOULD YOU MOVE THE MICROPHONE A LITTLE CLOSER. MR. LOTT: JUST A COUPLE OF POINTS IN RESPONSE. 20 REGARDING THE TIMING OF THE COURT'S ORDER ISSUING, IT WAS THE 21 FRIDAY BEFORE CHRISTMAS, AND IT WOULD HAVE BEEN NICE TO HAVE 22 RECEIVED NOTICE OF THE COURT'S GOING TO BE ISSUING A RULING 23 AND TO HAVE SOME EXPECTATION. 24 WORKED OUT A LITTLE BIT DIFFERENTLY HAD THAT HAPPENED. 25 I THINK THE CHRONOLOGY MAY HAVE ON THE CHARACTERIZATION OF THE TENTH CIRCUIT'S CURRENT 33 Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 35 1 RULING, AGAIN, IT'S WITHOUT PREJUDICE, AND I DON'T THINK 2 ANYTHING MORE THAN THAT NEEDS TO BE READ INTO IT. 3 IS NOT -- 4 THE COURT: THE STATE I DON'T READ EITHER OF THE TENTH CIRCUIT 5 ORDERS TO BE SUBSTANTIVE ORDERS. THE FIRST WAS CLEARLY 6 PROCEDURAL. 7 INSUFFICIENT, AND SO IT WAS DENIED FOR THAT REASON. 8 MEET THE LEGAL REQUIREMENTS. 9 MUCH EXPLANATION, EXCEPT TO SAY THAT I THINK, AS BEST I CAN 10 READ IT, IS THEY WANTED THIS HEARING TO PROCEED BEFORE THEY 11 MADE A DECISION. 12 THE STATE'S REQUEST ARE WITHOUT PREJUDICE, WHICH INVITES THE 13 STATE TO RENEW THOSE MOTIONS. 14 TO DO IF I DENY THE STATE'S MOTION FOR A STAY? THE RULING WAS THAT THE APPLICATION WAS IT DIDN'T AND THE ONE THIS MORNING IS NOT BUT IN BOTH INSTANCES THEIR ORDERS DENYING 15 MR. LOTT: 16 THE COURT: 17 MR. LOTT: IS THAT WHAT THE STATE INTENDS YES. ALL RIGHT. THE STATE HAS NOT CITED TO OR RELIED UPON 18 GOD'S LAW IN THIS, AND I THINK THAT'S AN IRRELEVANT ASSERTION. 19 AND AS TO THE GOVERNOR'S LETTER, I HADN'T SEEN THAT BEFORE 20 TODAY, BUT -- 21 THE COURT: 22 MR. LOTT: NEITHER HAD I. IN MY VIEW THE GOVERNOR'S ADVICE TO A 23 COUNTY CLERK TO CHECK WITH A COUNTY ATTORNEY SEEMS LIKE A 24 REASONABLE ADVICE TO ME. 25 THE COURT: I DON'T SEE -- I DON'T SEE THAT IT'S PARTICULARLY 34 Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 36 1 RELEVANT TO WHAT WE'RE DOING TODAY. 2 THE RECORD, AND IT WILL BE RECEIVED FOR THAT REASON. 3 MR. LOTT: 4 THE COURT: 5 MS. TOMSIC WANTED IT IN THANK YOU, YOUR HONOR. THANK YOU. ALL RIGHT. LET'S DO THIS. LET'S TAKE A -- LET'S TAKE A BRIEF RECESS. 6 MS. GODDARD: YOUR HONOR, I'M SO SORRY. THIS IS 7 GOING TO BE A LITTLE ANTICLIMACTIC, BUT I DO THINK THERE IS 8 SOMETHING THE COUNTY IS UNIQUELY POSITIONED TO ADDRESS. THE COURT: 9 10 MY APOLOGIES. PLEASE, THE PODIUM IS YOURS. MS. GODDARD: 11 YOUR HONOR ASKED EARLIER WHAT THE 12 STATUS QUO IS, AND I THINK BOTH PARTIES ANSWERED IT TO THE 13 BEST THEY COULD. 14 ENTITY TO ISSUE THE MARRIAGE LICENSES MIGHT BE THE BEST TO 15 GIVE YOU THE ACTUAL NUMBERS. 16 I THINK THAT SALT LAKE COUNTY AS THE FIRST ON FRIDAY WE ISSUED OVER 100 MARRIAGE LICENSES TO 17 SAME-SEX COUPLES. 18 PROBABLY 45 MINUTES OF OUR RECEIVING NOTICE OF THE COURT'S 19 ORDER. THE FIRST ONE WAS ISSUED WITHIN I WOULD SAY 20 AS OF THIS MORNING WE HAVE ISSUED OVER 90 I AM TOLD 21 ALREADY, AND THAT NUMBER IS PROBABLY A LITTLE BIT STALE. 22 WE CAME HERE THIS MORNING THERE WAS -- THERE WAS A LINE OF 23 PEOPLE STRETCHING THROUGH ALL THREE FLOORS OF OUR BUILDING. 24 BUT MORE THAN THAT, YOUR HONOR, THERE IS ACTUALLY SOME 25 WHEN CONFUSION AMONG THE COUNTY CLERKS THAT I THINK WOULD BE 35 Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 37 1 HELPFUL FOR YOU TO ADDRESS. 2 CODE THAT ALSO AFFECTS THE ABILITY OF CLERKS TO ISSUE LICENSES 3 TO SAME-SEX COUPLES THAT IS NOT EXPLICITLY ADDRESSED IN YOUR 4 RULING. 5 THERE IS A PROVISION IN THE UTAH THIS CODE SECTION IS 31-8, AND IT IS APPLICATION FOR A 6 LICENSE. 7 THAT A MARRIAGE LICENSE MAY BE ISSUED BY THE COUNTY CLERK TO A 8 MAN AND A WOMAN. 9 THE NEXT SUBSECTION THAT TALKS ABOUT THE FULL NAMES OF A MAN 10 11 AND TWICE IN THAT SECTION OF THE CODE IT REFERENCES THAT IS IN THE FIRST SECTION. IT IS ALSO IN AND A WOMAN. NOW, OUR INTERPRETATION IN SALT LAKE COUNTY OF YOUR ORDER 12 ON FRIDAY, WHEN IN FOOTNOTE ONE ON PAGE EIGHT YOU INDICATED 13 THAT YOU WERE ADDRESSING ALL OF THE LAWS THAT WOULD RESTRICT 14 THE ISSUANCE OF LICENSES TO SAME-SEX COUPLES, WAS THAT YOU 15 MEANT WHAT YOU SAID. 16 OUR CLERK THAT REGARDLESS OF THIS SEPARATE SECTION IN THE 17 CODE, SHE NEEDED TO COMPLY WITH YOUR ORDER. 18 AND SO WE INTERPRETED IT, AND WE ADVISED THAT SAID, OVER THE WEEKEND WE BECAME AWARE THAT THIS IS 19 AN ISSUE IN A NUMBER OF COUNTY CLERKS OFFICES THROUGHOUT THE 20 STATE OF UTAH WHERE THEY ARE CONCERNED ABOUT THE LANGUAGE THAT 21 WAS UNADDRESSED IN YOUR OPINION, AND IN PARTICULAR THEY ARE 22 CONCERNED BECAUSE IT IS A CLASS-A MISDEMEANOR FOR CLERKS TO 23 ISSUE LICENSES IN VIOLATION OF THE LAW. 24 25 AND BECAUSE THAT CODE SECTION IS NOT SPECIFICALLY MENTIONED, I THINK THERE IS SOME CONFUSION, NOT THE CONFUSION 36 Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 38 1 THE STATE OR MS. TOMSIC IS TALKING ABOUT, BUT A CONFUSION 2 AMONG THE COUNTY ATTORNEYS AND THE COUNTY CLERKS AS TO WHETHER 3 THEY COULD POTENTIALLY BE CRIMINALLY LIABLE UNDER THAT 4 SEPARATE PROVISION. 5 NOW, AGAIN, SALT LAKE COUNTY VIEWS YOUR ORDER AS 6 ENCOMPASSING ALL THE LAWS THAT WOULD PURPORT TO LIMIT THE 7 ABILITY OF THE CLERKS TO ISSUE LICENSES TO SAME-SEX COUPLES. 8 BUT TO THE EXTENT YOU ARE NOT INCLINED TO STAY YOUR RULING 9 TODAY, AND SO WE ALL LEAVE THIS COURTROOM AND CLERKS ARE 10 CONTINUING TO ISSUE LICENSES, WE THINK IT WOULD BE HELPFUL NOT 11 JUST IN SALT LAKE COUNTY BUT TO OTHER CLERKS THROUGHOUT THE 12 STATE FOR YOU TO CLARIFY THAT YOUR RULING ENCOMPASSES THAT 13 SECTION OF THE CODE AS WELL. 14 THE COURT: ALL RIGHT, THANK YOU, MS. GODDARD. OF 15 COURSE THAT SECTION OF THE CODE WASN'T RAISED BY ANY OF THE 16 PARTIES IN THE BRIEFING, AND I WAS COMPLETELY UNAWARE OF IT 17 UNTIL THIS MORNING. 18 MS. TOMSIC: 19 THE COURT: 20 ALL RIGHT. MS. TOMSIC: 22 MR. LOTT: 23 THE COURT: 25 ANYTHING MORE IN LIGHT OF THAT, MR. LOTT, MS. TOMSIC? 21 24 MEA CULPA, YOUR HONOR. NO, YOUR HONOR. NO. LET'S TAKE A BRIEF RECESS FOR 15 OR 20 MINUTES AND WE'LL COME BACK. (RECESS FROM 10:19 A.M. UNTIL 11:08 A.M.) 37 Appellate Case: 13-4178 Document: 01019177091 1 THE COURT: 2 PATIENCE. 3 Date Filed: 12/23/2013 ALL RIGHT. Page: 39 THANK YOU ALL FOR YOUR TO CONSIDER. 4 ONCE AGAIN THE PARTIES HAVE GIVEN ME A GREAT DEAL AT THE OUTSET LET ME FIRST ADDRESS THE ISSUE RAISED BY 5 SALT LAKE COUNTY AT THE CONCLUSION OF OUR ARGUMENT. TO THE 6 EXTENT THAT IT'S NOT ALREADY CLEAR FROM THE COURT'S RULING, MY 7 INTENT AND THE EFFECT OF MY RULING ON FRIDAY WAS TO FIND THAT 8 THE LAWS OF THE STATE OF UTAH THAT OPERATE TO DENY SAME-SEX 9 COUPLES THE OPPORTUNITY TO MARRY OPERATE IN VIOLATION OF THE 10 DUE PROCESS PROTECTIONS AND EQUAL PROTECTION UNDER THE UNITED 11 STATES CONSTITUTION. 12 APPLIED. FOR THAT REASON, THEY COULD NOT BE 13 WHILE I DID NOT ATTEMPT TO IDENTIFY OR SPECIFY EVERY 14 PROVISION OF THE STATE CODE THAT MIGHT OPERATE IN VIOLENCE TO 15 THOSE CONSTITUTIONAL GUARANTEES, THE INTENT AND EFFECT OF MY 16 ORDER IS TO PREVENT THE STATE OF UTAH OR ANYONE ACTING ON 17 BEHALF OF THE STATE OF UTAH FROM ENFORCING ANY LAW THAT WOULD 18 DEPRIVE SAME-SEX COUPLES OF THOSE CONSTITUTIONAL GUARANTEES, 19 INCLUDING THAT PROVISION THAT MS. GODDARD SPECIFICALLY RAISED 20 AT THE CONCLUSION OF OUR ARGUMENT. 21 BUT TURNING TO THE ISSUE BEFORE US, THE -- BEFORE THE 22 COURT IS THE STATE DEFENDANTS' MOTION FOR A STAY PENDING 23 APPEAL. 24 THE PARTIES, BOTH IN SUPPORT OF AND IN OPPOSITION TO THAT 25 MOTION, AND OF COURSE HAVE CONSIDERED THE ARGUMENTS PRESENTED WE HAVE CAREFULLY REVIEWED THE BRIEFS SUBMITTED BY 38 Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 40 1 HERE THIS MORNING. 2 AUTHORITIES CITED BY THE PARTIES AND THE STANDARDS THAT GOVERN 3 APPLICATIONS FOR STAYS PENDING APPEAL. 4 WE'VE ALSO CONSIDERED THE LEGAL I'LL NOTE THAT I THINK MS. TOMSIC'S DISCUSSION CONCERNING 5 THE PROCEDURAL HISTORY THAT LED US TO THIS POINT WAS CORRECT 6 AND APT, AND I ADOPT THAT DISCUSSION. 7 COURSE, IS THAT THIS IS SOMETHING OF A MESS, FOR THOSE REASONS 8 I THINK THAT MS. TOMSIC EXPLAINED. 9 AND OUR REALITY, OF I'LL NOTE THAT THERE IS NO DISPUTE AMONGST THE PARTIES 10 ABOUT THE STANDARD THAT I AM REQUIRED TO APPLY IN ADDRESSING 11 AND RESOLVING THIS MOTION FOR A STAY PRESENTED BY THE STATE 12 DEFENDANTS. EVERYONE AGREES WHAT THOSE FACTORS ARE. 13 BEFORE I ANNOUNCE MY RULING, I'LL JUST NOTE THAT 14 ULTIMATELY THE STATE DEFENDANTS ENCOURAGE ME TO FOLLOW THE 15 COURSE TAKEN BY JUDGE WALKER IN CALIFORNIA IN DECIDING THE 16 PROPOSITION 8 LITIGATION. 17 DIFFERENT PROCEDURAL POSTURE THAN JUDGE WALKER WAS, FOR THE 18 REASON THAT THE PARTIES IN THAT CASE CONSIDERED AND HAD 19 PREPARED TO FILE A MOTION REQUESTING THAT THE COURT STAY THE 20 EFFECT OF ITS ORDER EVEN BEFORE THE COURT ISSUED ITS RULING. 21 THE INTERVENOR DEFENDANTS IN THE PROPOSITION 8 LITIGATION MADE 22 THAT REQUEST IN A MANNER THAT PERMITTED JUDGE WALKER TO 23 CONSIDER IT SIMULTANEOUSLY WITH THE ISSUANCE OF HIS RULING ON 24 THE MERITS. 25 BUT, IMPORTANTLY, WE ARE IN A AND OF COURSE JUDGE WALKER DID THAT. HE ISSUED TWO 39 Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 41 1 ORDERS ESSENTIALLY SIMULTANEOUSLY, ONE RESOLVING THE LEGAL 2 ISSUES ADDRESSED, AND THEN, SECOND, A SECOND ORDER STAYING THE 3 EFFECT OF THAT RULING TO PRESERVE THE STATUS QUO UNTIL THE 4 PARTIES HAD AN OPPORTUNITY FULLY TO BRIEF A REQUEST FOR A 5 STAY. 6 AND IN THIS INSTANCE WE HAD NO SUCH REQUEST FROM ANY 7 PARTY, EITHER PRIOR TO THE COURT'S SUBSTANTIVE RULING FRIDAY 8 OR IMMEDIATELY THEREAFTER. 9 IN EVERY CASE, IN EVERY ORDER THAT I HAVE ISSUED SINCE I TOOK SO THIS COURT DID WHAT IT HAS DONE 10 MY OATH AND TOOK THIS POSITION, AND THAT WAS TO ISSUE AN ORDER 11 RESOLVING THE ISSUES PRESENTED BY THE PARTIES, AND NOTHING 12 ELSE, AND THAT'S EXACTLY WHAT WE DID. 13 AND I'LL NOTE THAT AT ITS CORE I BELIEVE MS. TOMSIC IS 14 CORRECT, THAT THE STATE ESSENTIALLY RELIES AND REASSERTS HERE 15 ARGUMENTS THAT IT PREVIOUSLY SUBMITTED IN OPPOSITION TO THE 16 PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT, ARGUMENTS THAT I 17 PREVIOUSLY CONSIDERED AND DECIDED ON THE MERITS. 18 FINDINGS -- PARDON ME -- THOSE FINDINGS PREVENT ME FROM 19 PROVIDING THE RELIEF THAT THE STATE IS REQUESTING TODAY. 20 FOR REASONS THAT I WILL FURTHER AND MORE COMPLETELY AND THOSE 21 ARTICULATE IN A BRIEF WRITTEN RULING THAT I'LL ISSUE BEFORE 22 THE END OF THE DAY TODAY, I CONCLUDE THAT THE STATE HAS FAILED 23 TO CARRY ITS BURDEN AS THE MOVING PARTY TO DEMONSTRATE AND 24 SATISFY THE FACTORS IT IS REQUIRED TO MEET IN ORDER TO OBTAIN 25 A STAY PENDING RESOLUTION OF THE DEFENDANTS' APPEAL TO THE 40 Appellate Case: 13-4178 1 2 Document: 01019177091 Date Filed: 12/23/2013 Page: 42 TENTH CIRCUIT. AND IMPORTANTLY I'LL NOTE THAT THERE IS NO AUTHORITY 3 CITED BY THE PARTIES, AND I AM AWARE OF NO AUTHORITY, THAT 4 OTHERWISE GRANTS ME A LEGAL BASIS TO PROVIDE A TEMPORARY STAY 5 WHILE THE TENTH CIRCUIT CONSIDERS WHAT I EXPECT WILL BE AN 6 EXPEDITIOUSLY FORTHCOMING MOTION FROM THE STATE OF UTAH. 7 IN LIGHT OF THAT, IT SEEMS TO ME THAT MY OBLIGATION AS A 8 DISTRICT COURT JUDGE IS TO MAKE A SUBSTANTIVE RULING ON THE 9 MERITS AS QUICKLY AS POSSIBLE AND THEN TO STEP ASIDE AND ALLOW 10 THE TENTH CIRCUIT TO WEIGH IN AND DETERMINE HOW BEST TO 11 PROCEED. 12 AND SO WHILE THERE WILL BE A BRIEF WRITTEN ORDER 13 FORTHCOMING, THE ORDER THAT I'VE JUST ARTICULATED IS THE 14 RULING OF THE COURT, AND THE STATE IS WELCOME TO PROCEED 15 IMMEDIATELY WITH ANY APPLICATION FOR ANY FURTHER RELIEF IT 16 WOULD LIKE FROM THE TENTH CIRCUIT OR ANYONE ELSE. 17 18 19 20 21 22 IN LIGHT OF THAT RULING, ARE THERE ANY FURTHER -- ARE THERE ANY QUESTIONS OR ANYTHING MORE WE SHOULD TAKE UP TODAY? MR. LOTT? MR. LOTT: NOT ON BEHALF OF THE STATE DEFENDANTS. WE THANK THE COURT FOR THE CLARITY OF THE RULING. THE COURT: THANK YOU, AND THANK YOU BOTH, BOTH 23 PARTIES, FOR -- YOU HAVE BOTH WORKED OVER THE WEEKEND AND LATE 24 AT NIGHT TO PREPARE YOUR BRIEFS AND ARGUMENTS, AND I VERY MUCH 25 APPRECIATE THAT. 41 Appellate Case: 13-4178 1 2 3 4 Document: 01019177091 Date Filed: 12/23/2013 Page: 43 MS. TOMSIC, IS THERE ANYTHING FURTHER? MS. TOMSIC: NO, YOUR HONOR. THANK YOU FOR THE TIME THIS MORNING. THE COURT: THANK YOU. WE'LL BE IN RECESS. 5 (HEARING CONCLUDED AT 11:16 A.M.) 6 * * * 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 42 Appellate Case: 13-4178 Document: 01019177091 Date Filed: 12/23/2013 Page: 44 1 2 3 4 5 6 CERTIFICATE OF REPORTER I, RAYMOND P. FENLON, OFFICIAL COURT REPORTER FOR THE 7 UNITED STATES DISTRICT COURT, DISTRICT OF UTAH, DO HEREBY 8 CERTIFY THAT I REPORTED IN MY OFFICIAL CAPACITY, THE 9 PROCEEDINGS HAD UPON THE HEARING IN THE CASE OF 10 KITCHEN, ET AL. VS. HERBERT, ET AL., CASE NO. 2:13-CV-217, 11 IN SAID COURT, ON THE 23RD DAY OF DECEMBER, 2013. 12 I FURTHER CERTIFY THAT THE FOREGOING PAGES CONSTITUTE 13 THE OFFICIAL TRANSCRIPT OF SAID PROCEEDINGS AS TAKEN FROM MY 14 MACHINE SHORTHAND NOTES. 15 16 IN WITNESS WHEREOF, I HAVE HERETO SUBSCRIBED MY NAME THIS 23RD DAY OF DECEMBER, 2013. 17 18 19 20 /S/ RAYMOND P. FENLON 21 22 23 24 25 43