Utah's Governor Gary Herbert and Acting Attorney General Brian Harbet are panicked about the "chaotic situation" (also known as loving couples getting married) happening in the Beehive State and intend to try to bring about change by court order first thing Monday morning, they said in two statements released yesterday.
"Yesterday afternoon's ruling from Judge Robert Shelby of the U.S. Federal Court has created a chaotic situation in our state that requires an expedited judicial resolution. Utahns deserve a fair and complete judicial process, and I strongly encourage Judge Shelby to grant the motion for stay until the appeal can be heard and Utah's constitutional defense of traditional marriage restored."
"We are vigorously pursuing an appeal and we intend to bring a Motion to Stay before Judge Shelby at 9:00 a.m. Monday morning. If he declines to rule at that time, we have already petitioned the U.S. Court of Appeals for the 10th Circuit for a temporary stay pending Judge Shelby's decision."
Will Shelby listen? Probably not, says law professor David Cruz:
When a loser in federal court asks for a stay of the court's judgment in order to preserve the status quo during an appeal, Tenth Circuit rules require the court considering such a motion to consider four factors: “(a) the likelihood of success on appeal; (b) the threat of irreparable harm if the stay or injunction is not granted; (c) the absence of harm to opposing parties if the stay or injunction is granted; and (d) any risk of harm to the public interest.” The state official's arguments on these points in their six-page motion are mighty slim. I recognize that they filed this motion the same day the trial judge ruled in the case, but they should have been prepared for the possibility that he would rule against them and not stay his judgment. (After all, that's what Chief Judge Vaughn Walker did in the federal litigation that held California's Proposition 8 unconstitutional.)