Gay Marriage | News | Utah

Utah State Officials Want 10 Day Extension to File Opening Brief in Marriage Appeal; ACLU to Sue

Utah state officials are asking the Tenth Circuit Court of Appeals for a ten day extension to file the opening brief of their appeal in the same-sex marriage case, Kitchen v. Herbert, Equality on Trial reports:

HerbertThe request was anticipated by some, since the opening brief is due in ten days, and the state only hired its outside counsel for the marriage litigation yesterday. The appeal is on a very fast track in the Tenth Circuit, and briefing was expected to be completed late next month. The Tenth Circuit has said that any request for extension of time “are very strongly discouraged, and will be considered only under extraordinary circumstances.”

Citing the “requirements of state procurement law,” the state says in its request that it could only hire counsel yesterday. The state adds that “the Clerk of the Court indicated to Plaintiffs and State Defendants that the Court is considering extending each of the existing briefing deadlines by 2 or 3 days” and that would mean that even with an extension of time to file an opening brief, only 7-8 days would be added to the briefing schedule.

UtahPlaintiffs in the case are opposing the request (PDF):

The State Defendants' Motion requesting an extension of time to file their opening brief fails even to mention the showing that Tenth Circuit Local Rule 27.4 requires for an extension of time to file a brief or the Court's previous order in this case that "[r]equests for extension of time are very strongly discouraged, and will be considered only under extraordinary circumstances." Dec. 30, 2013, Order [Dkt. No. 10136661] ("Scheduling Order") at 1-2 (emphasis added). There are no extraordinary circumstances here. Granting of the Motion will result in a schedule giving the State Defendants more time (by one day) to file their brief than is ordinarily provided under the Federal Rules of Appellate Procedure. Such a result would run contrary to this Court's earlier determination that the briefing in this case should be expedited. ...

In related news, the ACLU of Utah plans to announce a lawsuit on Tuesday against the state for its decision not to recognize marriages of same-sex couples performed before the Supreme Court stay pending appeal of the above case.

The Deseret News reports:

The civil liberties organization started looking for plaintiffs on Jan. 8, the same day Gov. Gary Herbert's office issued a directive putting state recognition of gay and lesbian newlyweds "on hold," based on counsel from Attorney General Sean Reyes.

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    ...Utah officials are all puppets of mormon church interests. If he came out and said "let's not fight it", he and his family would be booed in the street and at mormon meetings (church)


    Posted by: Bob | Jan 19, 2014 6:07:15 PM

  2. Funny they need a delay. I'm sure they'll just present the same old, tedious, repetitive arguments that have been making the rounds in every court case from the last five years plus.

    Posted by: Lexis | Jan 19, 2014 6:24:38 PM

  3. When all their tired excuses for not allowing/recognizing equality now turned upside down they need more time to come up with new ones. At this point they are only going to delay the inevitable, perhaps only by days.

    Because I said so is not a valid reason to discriminate.

    Posted by: bkmn | Jan 19, 2014 6:25:44 PM

  4. Sick, maybe the US could take a page from up here in Canada. I'm not saying we're perfect but come on how long is this going to take? Does each state have to actually do this? We could be waiting another 10-20 years for the inevitable (all 50 states). Why does civil rights need to go state by state?!

    Posted by: Will | Jan 19, 2014 7:34:44 PM

  5. There are no new arguments. Or winning ones.

    Posted by: KevinVt | Jan 19, 2014 8:39:41 PM

  6. If the new attorney brings up anything about raising kids we will know that Utah will have wasted a lot of money.

    Posted by: bkmn | Jan 19, 2014 8:43:08 PM

  7. Nothing unusual about delay requests and while it might be policy to discourage them, states are given about as much latitude as they need to gain one most of the time. Where it's strongly discouraged is in tactical maneuvers to avoid the death penalty, etc.

    Posted by: anon | Jan 19, 2014 8:47:38 PM

  8. I'd think "extraordinary circumstances" would mean circumstances beyond the litigant's control. Voluntarily hiring outside counsel isn't outside Utah's control. It's voluntary. They also didn't have to wait until the last possible second to hire someone. They could have lined someone up a month ago to be ready to go in the event they lost.

    If Utah voters elected a crooked AG--who apparently employed the only lawyers on the planet who can't plan for contingencies--then the voters can live with the consequences. That's the deal with voting. There's nothing extraordinary about Utahns getting exactly the representation they voted for.

    Posted by: JJ | Jan 19, 2014 8:52:42 PM

  9. A delay is OK with me, but not an extension of the stay to go with it!

    Posted by: Gay Guy | Jan 19, 2014 9:18:39 PM

  10. @Anon: of course it isn't unusual for a state to want a delay (in a civil proceeding, not a criminal one...); but Utah wants a delay now, when it was in a big ol' hurry a few weeks ago when the 10th Circuit promised them a fast appeal. That said, 10 days isn't going to make their case any stronger.

    Posted by: Steven H | Jan 19, 2014 9:27:27 PM

  11. The "crooked AG" Utah voters elected, John Swallow, resigned in disgrace. The new AG, Sean Reyes, was appointed by the governor on Dec. 23, 2013. Apparently he has no experience in constitutional law because they put out ads for outside counsel with experience in constitutional law, specifically the 14th Amendment.

    I don't know if that qualifies as an extraordinary circumstance? I'm not sure they anticipated the district court ruling against them. That probably came as a surprise.

    They're going to lose in the 10th Circuit, I can see it coming. Will the SCOTUS take up Oklahoma and Utah or will they wait for a few more states first?

    Posted by: Ninong | Jan 20, 2014 2:31:56 AM

  12. The state had competent counsel on staff on the day the district decision was entered, and on each day since. The states ordinary process for hiring additional counsel is clearly not an extraordinary circumstance.

    The only surprise is that the motion for extra time, is itself technically defective. You would have thought that they had learned that lesson afresh, just recently.

    Posted by: Steve | Jan 20, 2014 2:50:33 AM

  13. To the Attorney General (and Governor) of Utah I can only say one thing - YOUR INCOMPETENCE IS SHOWING. Requesting a 10 day delay is not only a stall tactic but a sure sign of desperation on the part of the state to find a competent enough lawyer to present their less than compelling case to a court that wants to move this case forward. If you don't have your case together now, why would the court believe that an additional 10 days would be beneficial? After all the state, which is entirely run by the Mormon Church has been battling marriage equality since before the days of California's Prop. 8 so their "case", as it is, should be pretty firm and fixed by this time.

    Posted by: ThomT | Jan 20, 2014 9:55:19 AM

  14. this is won't matter if they ask for 10 days or 1000 days, it won't matter because their response is no different than any of the other anti-gay responders out other words, they are probably going to lose!

    Posted by: Bernie | Jan 20, 2014 1:30:31 PM

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