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IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-1817-REB-KLM

CATHERINE BURNS;SHEILA SCHROEDER;MARK THRUN;GEOFFREY BATEMAN;RACHEL CATT;CASSIE RUBALD;BREANNA ALEXANDER;STACY PARRISH;

ANGELA CRANMORE;

JULIANNE DELOY;KAREN COLLIER; andDENISE LORD;

Plaintiffs,

v.

JOHN W. HICKENLOOPER, JR., in his official capacity as Governor of Colorado;JOHN SUTHERS, in his official capacity as Attorney General of Colorado; andPAM ANDERSON, in her official capacity as Clerk and Recorder for Jefferson County;

Defendants.

JEFFERSON COUNTY CLERK AND RECORDERS REPLY REGARDINGDEFENDANTS MOTION TO STAY PROCEEDINGS AND NON-OPPOSITION TO

PROPOSED PRELIMINARY INJUNCTION

Jefferson County Clerk and Recorder Pam Anderson (Clerk Anderson), by and

through the Jefferson County Attorney and Assistant County Attorneys Writer Mott and

David Wunderlich, at the request of the Court [Doc. #38], hereby submits her Reply

addressing Defendants Motion to Stay Proceedings and Non-Opposition to Proposed

Case 1:14-cv-01817-RM-KLM Document 40 Filed 07/18/14 USDC Colorado Page 1 of 7

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Preliminary Injunction (Motion to Stay) [Doc. #16] and Plaintiffs Response to

Defendants Motion to Stay Proceedings (the Response) [Doc. #32].

Argument

I. The State, not any individual clerk, is the real party in interest in a civilrights action challenging the constitutionality of a state statute or stateconstitutional provision

Clerk Anderson is a separately elected county official who is statutorily

responsible for issuing marriage licenses in accordance with State law. See Colo.

Const. Art. 14, Sec. 8 (creating the office of County Clerk and Recorder); Colo. Rev.

Stat. 14-2-106 (establishing a non-discretionary duty upon county clerks to issue

marriage licenses if certain state requirements are met). The county clerks in issuing

marriage licenses act in a ministerial role enforcing state law. See Echols v. Parker,

909 F.2d 795, 801 (5th Cir. 1990) (Thus, the State cannot dissociate itself from actions

taken under its laws by labeling those it commands to act as local officials. A county

official pursues his duties as a state agent when he is enforcing state law or policy.);

Bethesda Lutheran Homes & Services, Inc. v. Leean, 154 F.3d 716, 718 (7th Cir. 1998)

(When the municipality is acting under compulsion of state or federal law, it is the policy

contained in that state or federal law, rather than anything devised or adopted by the

municipality, that is responsible for the injury.); Pusey v. City of Youngstown, 11 F.3d

652, 657 (6th Cir. 1994) (Thus, a city official pursues her duty as a state agent when

enforcing state law or policy.). See also Colorado Attorney Generals Emergency

Motion for Injunction Pending Appeal, filed July 14, 2014 with the Colorado Supreme

Court in Colorado v. Brinkman, 2014SA000212, seeking an injunction against all county


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clerks in Colorado from issuing same-sex marriage licenses, attached as Exhibit A-1,

pg. 8 (By definition, the issuance of marriage licenses is a ministerial act. Under the

Uniform Marriage Act, County Clerks are given the power to issue licenses by the State

on behalf of the State, but only if the requirements set by the state are met.).

Clerk Anderson is in a unique position, therefore, in this litigation, by being sued

for enforcing a state policy rather than a policy developed by her office or by Jefferson

County.Accord, West Virginians for Life, Inc. v. Smith, 952 F. Supp. 342, 348 (S.D. W.

Va. 1996) (The States prosecuting attorneys would have been acting primarily for the

State, not their own county governments, in assisting Secretary Hechler to implement

the statute. It would be patently unfair to require West Virginias fifty-five county

governments to shoulder a share of the cost of the States unconstitutional action. The

Court therefore orders that the entire amount of the [fees] award be paid by Secretary

Hechler [on behalf of the State].). It is the State, through the Attorney General, who

has been and continues to defend the constitutionality of the States prohibition on

same-sex marriage. Thus, the State, and not any of the individual clerks, is the real

party in interest.

A local government official pursues his duties as a state agent whenenforcing state law or policy. Where the local official was acting on behalfof the state, his action cannot be attributed to the local governmental entityunder Monell. An examination of the Ohio statutory scheme for the

issuance of certificates of title for motor vehicles reveals that this is amatter within the control of the state. The counties have no role in theissuance or regulation of certificates of title for motor vehicles. The OhioGeneral Assembly, by statute, has designated the clerks of court in eachcounty in Ohio to perform the largely ministerial tasks associated with theissuance of certificates of title in accordance with state law.

* * *


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This court concludes that defendant Williams [clerk of the court] wasacting as an agent of the state in transferring title of plaintiffsmanufactured home to Lacy, not pursuant to any policy of Pike County.

The actions of defendant Williams cannot be attributed to Pike Countyunder Monell, and Pike County is entitled to summary judgment. Sincedefendant Williams was acting as an agent of the state, the plaintiffs claimfor monetary damages against defendant Williams in his official capacity isnot cognizable under 1983.

Leslie v. Lacy, 91 F.Supp.2d 1182, 1195 (S.D. Ohio 2000) , citing Monell v. Dept of

Social Servs of City of New York 436 U.S. 658, 690, 98 S. Ct. 2018, 2035-2036 (1978)

(Local governing bodies, therefore, can be sued directly under 1983 for monetary,

declaratory, or injunctive relief where, as here, the action that is alleged to be

unconstitutional implements or executes a policy statement, ordinance, regulation, or

decision officially adopted and promulgated by that body'sofficers.)(emphasis added).

The objective of this lawsuit is to have Colorados ban on same-sex marriage

overturned. It is a direct challenge of a State statute and a State constitutional

provision, which under State law the Attorney General is required to be given notice and

be given the opportunity to be heard and defend the constitutionality of the State

provision. Colo. Rev. Stat. 13-51-115; see also C.R.C.P. 57(j) (Colorado Attorney

General must be served with any action challenging constitutionality of any statute,

ordinance or franchise). Given the objective to strike down the state ban on same-sex

marriages, the true party in interest who is responsible and is statutorily required to

defend the States laws is the Attorney General on behalf of the State, not the Clerk who

is merely fulfilling a ministerial duty on behalf of the State in issuing the licenses.

II. Clerk Anderson does not take a posit ion on the merits of the stay orwhether any stay should be issued


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As described above, Clerk Anderson is simply serving in a ministerial role in

issuing marriage licenses and does not take a position on the underlying merits or on

the stay. Clerk Anderson seeks clarity and guidance from this Court, as she similarly

requested from the Colorado Supreme Court (Exhibit A-3) in response to the state

court Injunction Motion,1 whether she should or should not be issuing same-sex

marriage licenses.

WHEREFORE, Clerk Anderson respectfully requests that the Court issue an

order providing Clerk Anderson explicit guidance as to whether she should or should not

be issuing marriage licenses to same-sex couples pending a final determination of the

constitutionality of Colorados ban on same-sex marriages.

1The Colorado Supreme Court declined to provide guidance to all of the counties regarding theissuance of same-sex marriage licenses in its order issued today. See Exhibit A-2 (the

Colorado Supreme Courts Order on the Attorney Generals state court injunction request).Instead, the Supreme Court stayed only those clerks who are parties to the appeal, Denver and

Adams, from issuing same-sex marriage licenses pending the determination of the merits of thatappeal. Id. In so doing, the Colorado Supreme Court declined the request of the JeffersonCounty Clerk and Recorder, Mesa County Clerk and Recorder, La Plata County Clerk andRecorder, Douglas County Clerk and Recorder, and Arapahoe County Clerk and Recorder toprovide guidance to all of the 64 county clerk and recorders in the state regarding the proprietyand legality of issuing same-sex marriage licenses at this time. SeeExhibit A-3 (the clerks

Amicus Brief).


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CERTIFICATE OF SERVICE

I hereby certify that I filed a true and correct copy of the foregoing JEFFERSON

COUNTY CLERK AND RECORDERS REPLY REGARDING DEFENDANTSMOTION TO STAY PROCEEDINGS AND NON-OPPOSITION TO PROPOSEDPRELIMINARY INJUNCTION via the US District Court ECF Filing System this 18th dayof July, 2014, which will provide service upon the following:

Mari NewmanDavid A. LaneDarren M. JankordDanielle C. Jefferis1543 Champa Street, Suite 400Denver, CO 80202

[email protected]@[email protected]@kln-law.com

Attorneys for Plaintiffs

Michael FranciscoDaniel D. DomenicoColorado Department of Law1300 Broadway, 10th FloorDenver, CO 80203

[email protected] [email protected]

Attorneys for Defendant John W. Suthers

Wendy J. SheaEvan P. Lee

Assistant County AttorneyDenver City Attorneys Office, Litigation Section201 W. Colfax Avenue, Dept. 1108Denver, CO [email protected]

[email protected] for Defendant Debra Johnson

/s/ Briana McCarten

Briana McCarten, Paralegal

mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]

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SUPREME COURT OF COLORADO

2 East 14thAve., Denver, Colorado 80203

COURT USE ONLY

Appeal from District Court, Adams County,Colorado, Case No. 13CV32572, Hon. C. Scott

Crabtree

DEFENDANT/APPELLANT: STATE OF

COLORADO, et al,

v.

PLAINTIFFS/APPELLEES: REBECCA

BRINKMAN et al.

Consolidated with District Court, City andCounty of Denver, Colorado, Case No.

14CV30731:

DEFENDANT/APPELLANT: STATE OF

COLORADO, et al.

v.

PLAINTIFFS/APPELLEES: G. KRISTIAN

MCDANIEL-MICCIO et al.

JOHN W. SUTHERS, Attorney General

DANIEL D. DOMENICO, Solicitor General*MICHAEL FRANCISCO, Asst Solicitor

General*

LEEANN MORRILL, First Asst Attorney

General*

1300 Broadway, 10th Floor

Denver, CO 80203

Telephone: (720) 508-6551

Email:[email protected];michael.fran

[email protected];

[email protected]*Counsel of Record

Registration Numbers: 32038, 39111, 38742

Case No.2014SA000212

EMERGENCY MOTION FOR INJUNCTION PENDING APPEAL

DATE FILED: July 14, 2014 1:45 PMFILING ID: 4731FE44144D2CASE NUMBER: 2014SA212

Case 1:14-cv-01817-RM-KLM Document 40-1 Filed 07/18/14 USDC Colorado Page 1 of 24

A-1
mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]

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Pursuant to C.A.R. 8, the Attorney General of the State of Colorado,

John Suthers, on behalf of the State and the People of Colorado, hereby

seeks an injunction pending resolution of this appeal. The Court now has

jurisdiction over the case that will resolve, so far as state courts can

resolve it, the substantive question of whether Colorados marriage laws

violate the federal constitution. SeeNotice of Appeal, filed today.

But while the Court goes about the process of resolving that

important question, the State, its lower courts and county clerks, and its

people, deserve clarity and uniformity in the application of state law.

This motion asks the Court to provide that clarity and uniformity

regardless of how the merits are ultimately resolved on the important

question of same-sex marriage. As will be argued below, the appropriate

way to do so is to look to the U.S. Supreme Courts actions in Herbert v.

Kitchen, (and the numerous other federal courts resolving constitutional

claims for same-sex marriage) and enjoin the State and the Clerk and

Recorders or others acting on its behalf from acting contrary to current

state law until the validity of those laws has been fully adjudicated. See

n.5-6 infra(collecting cases with stays).

The current confusion and uncertainty benefits nobody. This Court

plainly has the power to prevent that from continuing, seeC.A.R. Rule 8,

Rule 21(a); Colo. Const. art VI, 3.1

1See alsoC.R.C.P. 65 (an injunction is binding not only on the parties, but on

the parties officers, agents ... and other persons who are in active concert or

participation with a party. Thus any injunction as to the State would be


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BACKGROUND

The Notice of Appeal filed earlier today in this case brings the

underlying question of the constitutionality of Colorados Marriage Laws

a significant step closer to final resolution. But while that important

issue has gotten closer to resolution, the issue of what County Clerks

and the State are supposed to do in the interim, has descended into

complete confusion. Only this Court can bring clarity and ensure that

the orderly administration of justice prevails. There are two state cases

from same-sex couples challenging the merits of Colorados marriage

laws. Those have been combined through Multi-District Litigation to

Judge Crabtree in Adams County.Brinkman et al v. Long et al. No.

13CV32572, and the summary judgment order in that case is the subject

of this appeal. Ex. A (Brinkman Summary Judgment Order, July 9,

2014). There is also a case in Boulder County district court whereby the

Attorney General is addressing the County Clerks legal authority to

issue same-sex marriage licenses contrary to current Colorado law.

Colorado v. Hall, No. 14CV30833, where the court denied the States

request for a preliminary injunction. Ex. B (Hall Order Denying

Preliminary Injunction, July 10, 2014).

Another lawsuit will apparently be necessary in Pueblo County

district court unless this Court acts, as the Pueblo Clerk has now begun

binding upon those acting under state law, as clerks do when they issue

marriage licenses.).


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issuing same-sex marriage licenses contrary to Colorado law.2Finally,

there is a federal case in the district of Colorado from same-sex couples

challenging the merits of Colorados marriage laws.Burns v.

Hickenlooper, No. 14-cv-1817, Ex. C. (Complaint, July 1, 2014); Ex. D

(Defendants Motion for Stay Proceedings and Non-Opposition to

Proposed Preliminary Injunction, July 2, 2014).

On July 9, Judge Crabtree issued a summary judgment order in

Brinkman, holding that Colorados limits on same-sex marriage violate

the U.S. Constitution, but also recognizing it was a delusion to think

that his district court order was the final word on the matter. Ex. A,

p.47. Recognizing the legal and social confusion caused by allowing the

issuance of licenses before that final word has been handed down, Judge

Crabtree stayed the effectiveness of his judgment. Id.p.46-48.

One day later, Judge Hartman of Boulder County reached an

apparently conflicting decision. Ex. B. While recognizing that the

issuance of licenses in these circumstances is likely illegal, he

nevertheless refused to prevent Boulder Clerk Hall from doing so. Id.,

p.23. In response, the Denver Clerk & Recorder, despite being a party to

theBrinkman case (subject to a stay), began issuing licenses contrary to

state law and Judge Crabtrees Order. The Pueblo Clerk & Recorder

2Seehttp://www.kktv.com/home/headlines/Pueblo-County-to-Start-Issuing-Same-Sex-

Marriage-Licenses-Friday-266676981.htmlThe longer there is legal confusion,

the more likely it is that other Clerks will act contrary to Colorado law

and the legal game of whack-a-mole will continue.

http://www.kktv.com/home/headlines/Pueblo-County-to-Start-Issuing-Same-Sex-Marriage-Licenses-Friday-266676981.htmlhttp://www.kktv.com/home/headlines/Pueblo-County-to-Start-Issuing-Same-Sex-Marriage-Licenses-Friday-266676981.htmlhttp://www.kktv.com/home/headlines/Pueblo-County-to-Start-Issuing-Same-Sex-Marriage-Licenses-Friday-266676981.htmlhttp://www.kktv.com/home/headlines/Pueblo-County-to-Start-Issuing-Same-Sex-Marriage-Licenses-Friday-266676981.htmlhttp://www.kktv.com/home/headlines/Pueblo-County-to-Start-Issuing-Same-Sex-Marriage-Licenses-Friday-266676981.htmlhttp://www.kktv.com/home/headlines/Pueblo-County-to-Start-Issuing-Same-Sex-Marriage-Licenses-Friday-266676981.html

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followed suit. The State filed a motion for an injunction against the

Denver Clerk, but Judge Crabtree denied the States motion on the

morning of July 9, 2014, stating [i]t is not the function of an injunction

to enforce the dignity and enforceability of a Courts Order. Ex. E, p.5

(injunction denial order).

The rest of the states clerks are now in a quandary: some have

decided to await judicial resolution, others are still seeking legal advice.

Meanwhile, state law is being patently ignored and the State is

incurring real and irreparable costs associated with this chaotic

situation. Should more clerks choose to follow the example of Boulder,

Denver and Pueblo, those costs will only increase and additional

litigation would be unnecessarily thrust upon the State with

inconsistent and confusing legal decisions all but a guaranteed result.

There has been confusion enough in other states where a court has

ruled against a states marriage laws but not put in place a stay.3But in

no other state have the courts allowed the situation going on now in

Colorado to continue clerks openly defying state law beforeany court

has issued a binding decision against the laws and in the face of a stay.

Cf. Lockyer v. City and County of San Francisco, 95 P.3d 459 (Cal.

3See Evans v. Utah, No. 14:CV55DAK, (D. Utah, May 19, 2014) (litigation

regarding validity of marriage licenses issued when no stay in place following

marriage litigation), appeal pendingNo. 14-4060 (10th Cir. July 11, 2014)

(affirming but issuing stay pending appeals to U.S. Supreme Court). The Utah

situation shows the costly mess that this can lead to. This is hardly a scenario

for Colorados courts to emulate.


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2004);4Dept of Health v. Hanes, 78 A.3d 676, 690-92 (Pa. Commw. Ct.

2013) (clerks lack authority to issue same-sex marriage licenses, post-

Windsor, while merits are litigated). Whatever one thinks about the

merits of the underlying question of same-sex marriage, the question

about the role of courts versus county clerks is one this Court should

resolve immediately. It can solve this serious and growing problem by

the simple expedient of putting on hold the issuance of licenses while the

appeal of the merits plays out.

REASONS TO GRANT INJUNCTION PENDINGAPPEAL

This motion is necessary to preserve the orderly procedures and rule

of law and enforce the separation of powers doctrine by allowing the

judicial branch to resolve critical questionsabout constitutional rights in

an orderly manner. An injunction is necessary to maintain the status

4The California Supreme Court aptly described the difference between

addressing the merits of same-sex marriage and the legality of Clerks issuance

of licenses contrary to existing state law:

Although the present proceeding may be viewed by some as presenting

primarily a question of the substantive legal rights of same-sex couples,

in actuality, the legal issue before us implicates the interest of all

individuals in ensuring that public officials execute their official duties

in a manner that respects the limits of the authority granted to them asofficeholders. In short, the legal question at issue---the scope of the

authority entrusted to our public officials---involves the determination of

a fundamental question that lies at the heart of our political system: the

role of the rule of law in a society that justly prides itself on being a

government of laws, and not of men (or women). Id. at 1067-68.


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quo pending a final court resolution on the merits. County Clerks lack

legal authority to issue marriage licenses on behalf of the State that are

patently contrary to the Colorado Constitution and statutes that define

marriage as the union of one man and one woman, while litigation is

pending with a stay issued by the district court judge.

C.A.R. 8 gives the Court, or any Justice, the authority to issue

injunctions during the pendency of appeals. While such a request must

ordinarily be made in the first instance in the trial court, a request for

such relief directly from this Court may be made if the trial could has

denied an application. C.A.R. 8(a); see also Colo. Const. art. VI, 3. The

State has sought relief in the trial court in a motion for injunction and it

was denied on the morning of July 14, 2014. Ex. E. Additionally, due to

the acts of other Clerks not party toBrinkmanwho continue to issue

same-sex marriage licenses, any relief afforded by the trial court would

not be practicable in resolving the broader issue for the states other 63

clerks.

Generally, to obtain injunctive relief, a party must prevail on the

merits, suffer irreparable injury, show that the harm to the movant

outweighs the harm to the opposing party and show that the injunction

would not be adverse to the public interest. Romero v. City of Fountain,

307 P.3d 120, 122 (Colo. App. 2011) (adopting federal factors for

injunction); Campbell v. Buckley, 11 F. Supp.2d 1260, 1262 (D. Colo.

1998), affd, 203 F.3d 738 (10th Cir. 2000) (same factors).


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When it is brought on behalf of the public to benefit the public,

however, the party requesting the injunction must show only that it is

correct on the merits. Conway-Bogue Realty Inv. Co. v. Denver Bar Assn,

135 Colo. 398, 409-10, 312 P.2d 998, 1003 (1957); see also Port of New

York Authority v. City of Newark, 85 A.2d 815, 818-19 (N.J. Sup. Ct

1952).

Thus, the only question this Court must answer to properly resolve

whether to grant this motion should be whether the states clerks are

authorized, prior to any final, binding court decision, to ignore state law

in carrying out their ministerial functions. That is the issue presented in

this motion.

I. County clerks do not have the authority to issue licensesthat do not comply with state law.

By definition, the issuance of marriage licenses is a ministerial act; it

is one which the person performsin a given state of facts in a prescribed

manner in obedience to the mandate of legal authority, without regard to

or the exercise of his own judgment upon the propriety of the act being

done. Hamma v. People, 94 P. 326, 328 (Colo. 1908). Under the Uniform

Marriage Act, County Clerks are given the power to issue licenses by the

State on behalf of the State, but only if the requirements set by the state

are met. See C.R.S. 14-2-104, 14-2-106, and 14-2-110. Put another

way, if certain requirements are met, all 64 County Clerks must issue

the marriage license; conversely, if certain requirements are not met


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II. Clerks ignoring state law prior to judicial rulings causesirreparable harm and is against the public interest.

Even if the State were required to prove the additional Romero

factors, it would prevail. These factors align with the factors for a stay,

and have already been carefully adjudicated by Judge Crabtree. He

recognized that even though he ruled against the State on the

underlying constitutional merits, the State had established a likelihood

of success on the merits for a stay, given the stay issued in similar

litigation by the U.S. Supreme Court and four Federal Courts of

Appeals.5See alsoEx. A at 46. Likewise for federal district courts in

Oklahoma, Virginia, Kentucky, Texas, Ohio, and Wisconsin.6

5Herbert v. Kitchen, 134 S.Ct. 893 (U.S. Jan. 6, 2014) (stay pending appeal

granted);Kitchen v. Herbert, No. 13-4178, slip op. 64-65 (10th Cir. June 25,

2014) (same); Latta v. Otter, No. 14-35420 (9th Cir. May 20, 2014) (Idaho case -

same) attached as Exhibit F;DeBoer v. Snyder, No. 14-1341 (6th Cir. Mar. 25,2014) (Michigan case - same) attached as Exhibit G; see alsoTanco v.

Haslam, No.14-5297 *2 (6th Cir. April 25, 2014) (Tennessee case) (per curium)

(Because the law in this area is so unsettled, in our judgment the public

interest and the interests of the parties would be best served by this Court

imposing a stay on the district courts order until this case is reviewed on

appeal.), attached as Exhibit H;Baskin v. Bogan, No. 14-2386 (7th Cir. June

27, 2014) (Indiana case - granting stay pending appeal), attached as Exhibit I.

6District Court decisions granting stay:Bishop v. United States, ex rel. Holder,

962 F. Supp. 2d 1252 (N.D. Okla. 2014);Bostic v. Rainey, No. 2:13cv395, 2014

WL 561978 (E.D. Va. Feb. 13, 2014);De Leon v. Perry, No. SA-13-CA-00982-OLG, 2014 WL 715741 (W.D. Tex. Feb. 26, 2014);Bourke v. Beshear, No.3:13-

CV-750-H, 2014 WL 556729, at *14 (W.D. Ky. Feb. 12, 2014) (stay granted,

noting [i]t is best that these momentous changes occur upon full review,

rather than risk premature implementation or confusing changes. That does

not serve anyone well); Henry v. Himes, No. 14-cv-129, 2014 WL 1512541, *1-

2 (S.D. Ohio April 16, 2014) (stay pending appeal granted); Wolf v. Walker, No.

14-cv-64-bbc, 2014 WL 2693963 *12 (W.D. Wis. June 13, 2014) (I do not


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Permitting County Clerks to ignore some state laws while using the

power granted by other state laws causes significant irreparable harm to

the state and the public interest particularly when it is a handful of

clerks while the majority continues to enforce state law. There are at

least five types of harm that letting these few clerks actions go

unchecked will cause.

First,there is the inherent harm courts have uniformly recognized in

rejecting duly enacted laws. Judge Crabtree recognized as much,

following Coalition for Econ. Equity v. Wilson, 122 F.3d 718, 719 (9th

Cir. 1997); O Centro Espirita Beneficiente Uniao De Vegetal. v. Ashcroft,

314 F.3d 463, 467 (10th Cir. 2002);Planned Parenthood of Greater Tex.

Surgical Health Servs. v. Abbott, 134 S.Ct. 506, 506 (2013); New Motor

Vehicle Bd. v. Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977) (Rehnquist,

J., in chambers) (It also seems to me that any time a State is enjoined

by a court from effectuating statutes enacted by representatives of its

people, it suffers a form of irreparable injury.). Ex. A at 47.

Second, the harm caused by the confusion the clerks action has

caused is real and widespread. As Judge Crabtree noted, The public has

an interest in the orderly determination of the constitutionality of its

laws and granting a stay will effectuate that end. Id. Judge Crabtree

interpret Geigeras undermining the Courts order in Herbert...Because I see no

way to distinguish this case from Herbert, I conclude that I must stay any

injunctive relief pending appeal.).


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expressly noted that a stay was necessary to avoid the instability and

uncertainty which would result in the State of Colorado if the Court did

not stay its ruling, noting with disfavor the continued issuance of

marriage licenses in Boulder as the type of instability and uncertainty

that should be avoided. Id. at 48 n.18. The Denver Clerk, however, has

been emboldened by Judge Hartmans views to the contrary to ignore

this judicial finding in the case in which she is a party. Apparently this

Courts intervention is necessary.

Third, the clerks action cannot be isolated, as Judge Hartman

seemed to hope. The States system for processing and acknowledging to

the public (that is to say, recognizing, marriages) does not allow for the

Registrar to double-check compliance with state law. The continued

issuance of invalid same-sex marriage licenses harms the State by

forcing other divisions of the State to recognize, contrary to the current

law and constitution, the legal validity of the improperly issued licenses.

See C.R.S 14-2-109(1) (Either the person solemnizing the marriage

ora party to the marriage shall complete the marriage certificate form

and forward it to the county clerk and recorder[.]); 14-2-109(3) (Upon

receipt of the marriage certificate, the county clerk and recorder shall

register the marriage.); 25-2-106 (Each county clerk and recorder shall

prepare a reportwith respect to every duly executed marriage

certificate that is returned in accordance with 14-2-109, C.R.S. On or

before the tenth day of each monthsuch clerk and recorder shall


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forward to the state registrar all such marriage reports for all marriage

certificates returned in the preceding period.); 25-2-104 (Promptly

upon the receipt of each vital statistics report..., the state

registrarshall register the statistical event described thereinand

shall place the samein the permanent files of the office.).

So whatever licenses clerks submit will become part of the record that

the State recognizes. The system is dependent on clerks carrying out

their duties pursuant to law; it does not contemplate having to second-

guess their compliance. Thus, the clerks actions effectively mean that

the State itself is being forced to violate its own laws by recognizing

marriages that are not at least not yet valid.

Fourth, third parties rely on this system for various reasons. To be

sure, practical, real-world harm will result from third-parties

including the courts, private corporations, and other governmental

entities unknowing reliance on the invalid marriage licenses currently

being issued in the name of the State. For example, the following acts

turn on the ability to prove the existence of a valid marriage: (1)

establishing spousal benefits under the Social Security Act; (2) obtaining

a legal name change on a drivers license, passport, social security card,

or other government-issued identification; (3) establishing the

presumptive legitimacy of children; (4) establishing relationships

necessary for determining probate, inheritance, and unclaimed property

matters; (5) establishing eligibility for health, life, and disability


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temporarily suspending the issuance of licenses while this appeal on the

merits plays out. Indeed, the moving concerns of same-sex couples in

Colorado are not unlike the concerns of same-sex couples around the

United States, and those couples are, pursuant to the standard legal

process, awaiting a final judicial determination before same-sex

marriage licenses are issued.

Most importantly, even if the State does prove to be wrong on the

constitutional question, that does not mean that prematurely issued

certificates will be validated. See Lockyer, 33 Cal.4th at 1116

([Accordingly, we view Family Code section 300 itself as an explicit

statutory provision establishing that the existing same-sex marriages at

issue are void and invalid.). Thus, even if the State loses this appeal,

the couples obtaining these certificates likely would not be the winners.8

Second, to the extent this were an immediate and irreparable harm, the

couples could have brought actions for preliminary injunctive relief.

That they chose not to reveals that they recognize, as the heavy majority

of courts have, that this harm is but temporary and reparable.9If they

8Indeed, the Hall Order seems to set aside substantial legal difficulties

created by licenses that are not valid by speculating that additional litigationand lawyers in the future may sort things out. This is a strong reason to follow

the orderly administration of the judicial process not ignore the process and

hope it can be fixed later.

9Compare, for example, the Seventh Circuits lifting of the stay it imposed in

Baskinfor a couple when it was shown that one of them was suffering from

terminal cancer. See Ex. I. There has been no such showing or allegation here.


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prevail on the merits, a real, no-disclaimer, no-questions-asked marriage

certificate will be theirs for the asking.

The relief requested in this motion will not decide the merits of

claims for a federal right to same-sex marriage that would invalidate

Colorados Constitution and statutes those substantial and weighty

claims will be decided for Colorado either by the federal courts, where

Colorado has now been sued and will be bound by the outcome of a Utah

case inKitchen v. Herbert, or by this Court (subject to petitions to the

U.S. Supreme Court by the loser) in the merits of this appeal. Either

way, the merits can and should be decided in due course for all of

Colorado. The relief here requested, however, is immediately necessary

to preserve the status quo pending those appeals and to affirm the legal

responsibility of County Officials to comply with Colorado law. Colorado

is hardly the only state where the constitutional right to same-sex

marriage is being actively litigated. Colorado stands alone, however, in

its courts permitting a handful of clerks to issue marriage licenses

contrary to law before the courts have made a final, binding

determination of the merits. States defending their marriage laws (like

Colorado) have all asked for stays pending appeal to protect the status

quo and avoid legally indeterminate marriage licenses from being issued

by eager clerks. As detailed above, seen. 5-6 supra, courts have

repeatedly imposed stays in same-sex marriage litigation resulting in


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Clerks in those States being compelled to wait for final judicial action.

Colorado should join this wise course of action.

CONCLUSION

The question of the constitutionality of limitations on state

recognition of same-sex marriage like Colorados is undoubtedly headed

for a final resolution soon. And the excitement felt by those who support

same-sex marriage, including the Respondent Clerks and the plaintiffs

in the various related cases is more than understandable momentum is

on their side. Unless the U.S. Supreme Court grants certiorari on the

substantive question before theKitchencase becomes final and binding,

the Attorney General has already recognized that Colorados laws will

not stand. See Ex. D.

But the immediate question is whether that excitement and that

momentum will be allowed to overwhelm the various legal and

constitutional processes and structures and divisions of power the state

has put in place for carrying out ministerial duties like issuing marriage

licenses or profoundly non-ministerial ones like deciding constitutional

questions. Those processes and divisions can be cumbersome, unwieldy,

and downright frustrating. They may even seem pointless in a particular

case when the right outcome may be so obvious to so many.

Yet true as that might be in the immediate term, the long-term

stability of our system of government and rule of law depends on those

structures and divisions standing up in the face of pressure, even where


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the immediate result might appear unjust. This case shows the wisdom

of that fundamental understanding: theBrinkman andBurnscases were

moving along as our system requires, and were on track to final

resolution as soon as possible. That process is not as fast or simple as

anyone may want, but they are the process our system of laws and

divided power depends on. A rush to get to the right result by

shortcuts, no matter how well-intentioned, is a precedent this Court

should refuse to set.

RELIEF REQUESTED

The State specifically requests an order pending appeal prohibiting

the Defendants, including the State and those acting pursuant to state

law, from: (1) issuing marriage licenses on behalf of the State that do not

comply the Uniform Marriage Act, 14-2-104(1)(b) or Colo. Const. art. II,

section 31; and (2) submitting or processing any marriage licenses that

do not comply with state law to the State Registrar of Vital Statistics,

pending further order of the Court. See See C.A.R. 8(a); C.A.R. 21.

Respectfully submitted this 14th day of July, 2014.


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JOHN W. SUTHERS

Attorney General

/s/ Michael Francisco

DANIEL D. DOMENICO, 32083*

Solicitor GeneralMICHAEL FRANCISCO, 39111*

Assistant Solicitor General

LEEANN MORRILL, 38742*

First Assistant Attorney General

Attorneys for the State of Colorado

*Counsel of Record


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This is to certify that I have duly served the foregoingEMERGENCYMOTION FOR INJUNCTION PENDING APPEAL

upon the following parties or their counsel electronically via ICCES, or

via electronic mail, at Denver, Colorado this 14th day of July, 2014,

addressed as follows:

Plaintiffs/Appellees in Adams County District Court Case:

Ralph Ogden, Reg. No. 13623

M. Anne Wilcox, Reg. No. 13604

WILCOX & OGDEN, P.C.160 Lafayette Street

Denver, Colorado 80218

Professor Thomas Russell, Reg. No. 34771

1001 16th Street B180 #175


Plaintiffs/Appellees in the City and County of Denver District Court

Case:

John M. McHugh, Reg. No. 45456

Anthony L. Giacomini, Reg. No. 26057

Amy R. Gray, Reg. No. 40814

Michael Kotlarczyk, Reg. No. 43250

Tess Hand-Bender, Reg. No. 42681

Jason M. Lynch, Reg. No. 39130

REILLY POZNER LLP

1900 16th Street, Suite 1700


Marcus Lock, Reg. No. 33048

LAW OF THE ROCKIES

525 North Main Street

Gunnison, Colorado 81230

Ann Gushurst, Reg. No. 29187


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GUTTERMAN GRIFFITHS, P.C.

10375 Park Meadows Blvd., Suite 520

Littleton, Colorado 80124

Defendant Karen Long, Clerk and Recorder for Adams County, Colorado:

Heidi M. Miller, Reg. No. 33923

County Attorney

Jennifer D. Stanley, Reg. No. 33084

Assistant County Attorney

4430 South Adams County Parkway

5thFloor, Suite C5000B

Brighton, Colorado 80601-8206

Defendant Debra Johnson, Clerk and Recorder for the City and County of

Denver, Colorado:

Wendy J. Shea, Reg. No. 26253

Assistant City Attorney

Denver City Attorneys Office, Litigation Section

201 West Colfax Avenue, Dept. No. 1108

Denver, Colorado 80202-5332

Defendant John W. Hickenlooper, Jr., Governor of the State of Colorado:

Jack Finlaw, Reg. No. 11681

Benjamin Figa, Reg. No. 41302

Governors Office of Legal Counsel

121 State Capitol


Amicus Curiae Alliance Defending Freedom:

Michael J. Norton, Reg. No. 6430

ALLIANCE DEFENDING FREEDOM

7951 E. Maplewood Avenue, Suite 100

Greenwood Village, Colorado 80111


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Byron J. Babione, Pro Hac Vice

David Austin R. Nimocks, Pro Hac Vice

ALLIANCE DEFENDING FREEDOM15100 N. 90thStreet

Scottsdale, Arizona 85260

s/Michael Francisco


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State of Colorado,

and

Defendants:

John W. Hickenlooper, Jr. in his official capacity as Governorfor the State of Colorado and Debra Johnson, in her official

capacity as Clerk and Recorder for the City and County ofDenver.

ORDER OF COURT

Upon consideration of the Emergency Motion for Injunction Pending

Appeal, the Adams County Plaintiffs-Appellees Objection to the States

Emergency Motion For Injunctive Relief, Response In Opposition To Emergency

Motion for Injunction Pending Appeal filed by the Denver County Plaintiffs and

the Denver Clerk, the Jefferson County Clerk And Recorders, Douglas County

Clerk And Recorders, La Plata County Clerk And Recorders, Arapahoe County

Clerk And Recorders, And Mesa Countys Clerk And Recorders Amicus Brief in

Relation to the Attorney Generals Emergency Motion For Injunction Pending

Appeal, the Update to Notice of Appeal, Denver Plaintiffs/Appellees Response to

the States Update to Notice of Appeal, the Request for Oral Argument on the

States Motion for Emergency Injunctive Relief, and the Response to Motion for

Oral Argument on States Motion for Emergency Injunctive Relief, and now being

sufficiently advised in the premises,

IT IS ORDERED that said Request for Oral Argument on the States Motion

for Emergency Injunctive Relief shall be, and the same hereby is, DENIED.


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IT IS FURTHER ORDERED that in light of the stay entered by the Trial

Court, Defendants Karen Long, in her official capacity as Clerk and Recorder of

Adams County and Debra Johnson, in her official capacity as Clerk and Recorder

for the City and County of Denver, are hereby stayed under C.A.R. 8 from issuing

marriage licenses to same-sex couples pending resolution of this appeal.

BY THE COURT, EN BANC, JULY 18, 2014.


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COLORADO SUPREME COURTColorado State Judicial Building

2 East 14th AvenueDenver, CO 80203

COURT USE ONLY

________________________

Case No. 2014SA000212

Appeal from District Court, Adams County,Colorado

Hon. C. Scott Crabtree

Case No. 13CV32572

APPELLANTS:STATE OF COLORADO, et al,

APPELEES:REBECCA BRINKMAN, et al.

Attorneys for Jefferson County:

JEFFERSON COUNTY ATTORNEY

ELLEN G. WAKEMAN, #12290Writer Mott, #33148David Wunderlich, #39365


Jefferson County Attorney's Office

100 Jefferson County Parkway, #5500

Golden, CO 80419-5500Phone: 303-271-8932Fax: (303) 271-8901

[email protected]

[email protected]

JEFFERSON COUNTY CLERK AND RECORDERS, DOUGLAS

COUNTY CLERK AND RECORDERS, LA PLATA COUNTY CLERK

AND RECORDERS, ARAPAHOE COUNTY CLERK AND RECORDERS,

AND MESA COUNTYS CLERK AND RECORDERS AMICUS BRIEF IN

RELATION TO THE ATTORNEY GENERALS EMERGENCY MOTION

FOR INJUCTION PENDING APPEAL

DATE FILED: July 16, 2014 2:43 PMFILING ID: EE3F13ED3BBE1CASE NUMBER: 2014SA212


A-3
mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]

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Interested Third Parties, Jefferson County Clerk and Recorder Pam

Anderson, Douglas County Clerk and Recorder Jack Arrowsmith, La Plata County

Clerk and Recorder Tiffany Lee Parker, Arapahoe County Clerk and Recorder

Matt Crane, and Mesa County Clerk and Recorder Sheila Reiner (collectively, the

Interested Clerks), by and through counsel, respectfully request this Court issue

an order on the Attorney Generals Emergency Motion for Injunction Pending

Appeal (the Injunction Motion) providing guidance to the County Clerks

regarding the issuance of marriage licenses for same-sex couples in Colorado.

The legal landscape governing the rights of same-sex couples to be married

in Colorado has dramatically shifted in the last few months in light of the trial

courts decision in this case, the decision of the Tenth Circuit Court of Appeals in

Kitchen v. Herbert, No. 13-4178, 2014 WL 2868044 (10th Cir. 2014) (striking

down Utahs ban on same-sex marriages), and the decision of the Boulder District

Court denying the Attorney Generals request to enjoin the Boulder County Clerk

and Recorder from issuing same-sex marriage licenses in Colorado v. Hall, No.

14CV30833 (Boulder Cnty. Dist. Ct. July 10, 2014). These decisions have created

uncertainty amongst the county clerks about the propriety and legality of issuing

same-sex marriage licenses and have resulted in a patchwork of inconsistent

policies and procedures, with some county clerks issuing same-sex marriage


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licenses and others waiting for more definitive and binding precedent to resolve

this constitutional issue.

The Interested Clerks are separately elected County Officials who are

statutorily responsible for issuing marriage licenses in accordance with State law.

See Colo. Const. Art. 14, Sec. 8 (creating the office of County Clerk and

Recorder); C.R.S. 14-2-106 (establishing a non-discretionary duty upon county

clerks to issue marriage licenses if certain state requirements are met). The county

clerks in issuing marriage licenses act in a ministerial role enforcing state law. See

Echols v. Parker, 909 F.2d 795, 801 (5th Cir. 1990) (A county official pursues his

duties as a state agent when he is enforcing state law or policy.); Bethesda

Lutheran Homes & Services, Inc. v. Leean, 154 F.3d 716, 718 (7th Cir. 1998)

(When the municipality is acting under compulsion of state or federal law, it is the

policy contained in that state or federal law, rather than anything devised or

adopted by the municipality, that is responsible for the injury.). See also

Injunction Motion, pg. 8 (By definition, the issuance of marriage licenses is a

ministerial act. Under the Uniform Marriage Act, County Clerks are given the

power to issue licenses by the State on behalf of the State, but only if the

requirements set by the state are met.).


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The Interested Clerks are now confronted with several State and Federal

Court decisions, including the trial court decision in this case, holding Colorados

constitutional and statutory prohibitions against same-sex marriage to be

unconstitutional, casting doubt on the continued legality and enforcement of

Colorados same-sex marriage ban. However, none of these reported decisions

constitute a final, binding order on the county clerks on this issue as all of the

decisions have been stayed pending appeal.

The Interested Clerks, therefore, seek affirmative guidance from this Court

and are hopeful that this Court will provide clear direction to the county clerks

regarding whether they should begin issuing same-sex marriage licenses or

whether they should, as advocated by the Attorney General, be enjoined from

issuing same-sex marriage licenses pending a final determination on the merits of

this appeal. An order addressing this single issue will allow the county clerks to

once again uniformly and consistently issue marriage licenses throughout the State

and would provide much needed clarification on this important issue of state and

constitutional law.

The Injunction Motion provides this Court with the important and historic

opportunity to provide direction and clarity to the county clerks, as well as to the

public at large, as to whether the county clerks should or should not be issuing


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same-sex marriage licenses in Colorado. The Interested Clerks respectfully request

that this Court, in its order addressing the Injunction Motion, provide explicit

direction to the county clerks to either begin issuing same-sex marriage licenses or,

in the alternative, cease issuing marriage licenses pending final determination of

the merits of this appeal challenging the constitutionality of Colorados ban on

same-sex marriage.


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Dated this 16th day of July, 2014.

JEFFERSON COUNTY ATTORNEY

ELLEN G. WAKEMAN

s/ David Wunderlich

David Wunderlich, #39365

Writer Mott, #33148


100 Jefferson County Parkway, Suite 5500

Golden, CO 80419Telephone: 303-271-8932

[email protected]

[email protected]

MESA COUNTY ATTORNEY

s/ Andrea Nina Atencio

Andrea Nina Atencio, #33351Assistant County Attorney

P.O. Box 20,000

Grand Junction, CO 81502Telephone: 970-244-1612

[email protected]

DOUGLAS COUNTY ATTORNEY

LANCE INGALLS

s/ Kelly DunnawayKelly Dunnaway, #31896Deputy County Attorney

100 Third StreetCastle Rock, CO 80104

Telephone: 303-660-7414

[email protected]

mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]

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LA PLATA COUNTY ATTORNEY

SHERYL ROGERS

Sheryl Rogers

Sheryl Rogers, #20962County Attorney

1099 Main Ave, Suite 313Durango, CO 81301

Telephone: 970-382-8600

[email protected]

ARAPAHOE COUNTY ATTORNEYRON CARL

s/ John Cristofferson

John Cristofferson, #35292


5334 S. Prince StreetLittleton, CO 80120

mailto:[email protected]:[email protected]:[email protected]

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I hereby certify that on the 16th day of July, 2014, I filed the foregoingJEFFERSON COUNTY CLERK AND RECORDERS, DOUGLAS

COUNTY CLERK AND RECORDERS, LA PLATA COUNTY CLERK

AND RECORDERS, ARAPAHOE COUNTY CLERK AND RECORDERS,

AND MESA COUNTYS CLERK AND RECORDERS AMICUS BRIEF IN

RELATION TO THE ATTORNEY GENERALS EMERGENCY MOTION

FOR INJUCTION PENDING APPEAL via ICCES and served as follows:

Michael FranciscoLeeann Morrill

Dan D. DomenicoAttorney Generals Office

1300 Broadway, 10th FloorDenver, CO 80203

[email protected]

[email protected]

[email protected]

Ralph Ogden

M. Anne WilcoxWilcox & Ogden, P.C.

160 Lafayette Street

Denver, CO [email protected]

Professor Thomas Russell

1001 16thSt. B180 #175

Denver, CO 80265

[email protected]

John J. McHughAnthony L. Giacomini

Amy R. GrayMichael Kotlarczyk

Tess Hand-Bender

Jason M. Lynch

mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]

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Reilly Pozner LLP

1900 16th Street, Suite 1700


[email protected]

[email protected]@rplaw.com

[email protected]@rplaw.com

Marcus Lock

Law of the Rockies

525 North Main StreetGunnison, CO 81230

[email protected]

Ann Gushurst

Gutterman Griffiths P.C.

10375 Park Meadows Blvd., Suite 520Littleton, CO 80124

[email protected]

Heidi M. Miller

Jennifer D. Stanley

Adams County Attorneys Office4430 South Adams County Parkway

5th Floor, Suite C5000BBrighton, CO 80601-8206

[email protected]

Jack Finlaw

Benjamin FigaGovernors Office of Legal Counsel121 State Capitol


[email protected]

mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]

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Wendy J. Shea

Denver City Attorneys Office

Litigation Section201 West Colfax Avenue, Dept. No. 1108

Denver, CO 80202-5332

[email protected]

Michael J. NortonAlliance Defending Freedom

7951 E. Maplewood Avenue, Suite 100

Greenwood Village, CO 80111

[email protected]

Byron J. Babione, Pro Hac Vice

David Austin R. Nimocks, Pro Hac ViceAlliance Defending Freedom

15100 N. 90th Street

Scottsdale, AZ 85260

Facsimile: 480-444-0025

/s/ Briana McCarten

Briana McCarten, Paralegal

mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]

1:14-cv-01817 #40

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