1:15-cv-00009 #21
-
Upload
equality-case-files -
Category
Documents
-
view
224 -
download
0
Transcript of 1:15-cv-00009 #21
-
8/9/2019 1:15-cv-00009 #21
1/23
2
3
4
5
6
7
8
9
2
3
4
5
6
7
8
9
2
2
22
23
4
Mitchell F. Thompson, Esq.
R. Todd Thompson, Esq.
Thompson Gutierrez &
Alcantara ,
P.C.
238 Archbishop Flores Street, Suite 801
Hagatfia, Guam 96910
Telephone:
(671)472-2089
Facsimile:
(671)477-5206
William D. Pesch, Esq.
Guam F am il y L aw Of f i ce
173 Aspinall Avenue, Suite 203
Hagatfia, Guam 96910
Telephone: (671) 472-8472
Facsimile: (671)477-5873
Attorneys for Plaintiffs Kathleen M. Aguero and
Loretta M. Pangelinan
DISTRI T
OURT
OF
GU^M
Y
0 7
2 5
JEANNE G.
QUINATA
Clerk o f c o u r t
IN T H E
D I ST R IC T C O U R T
O F G U A M
TERRITORY OF
GUAM
KATHLEEN M. AGUERO a nd LORETTA
M. PANGELINAN,
Plaintiffs,
EDDIE BAZA CALVO in his official capacity as
Governor
of
Guam; and CAROLYN GARRIDO
in her official capacity as Registrar in the Office
of
Vital Statistics, Department
of
Public
Health
and
Social Services,
Defendants.
CIVIL
CASE
NO. 15-00009
P L A I N T I F F S
O P P O S I T I O N
T O D E F E N D A N T S
M O T I O N
F O R
A
S T A Y
ORIGIN LCase 1:15-cv-00009 Document 21 Filed 05/07/15 Page 1 of 23
-
8/9/2019 1:15-cv-00009 #21
2/23
3
4
5
6
7
8
9
1
1
1
1
1
1
1
1
1
2
2
2
2
2
T
I
P
L
I
B
R
C
G
H
W
CS
A
D
D
B
o
B
Sm
t
G
C
B
D
P
t
Sm
o
E
R
Case 1:15-cv-00009 Document 21 Filed 05/07/15 Page 2 of 23
-
8/9/2019 1:15-cv-00009 #21
3/23
5
6
7
8
9
2
3
4
5
6
7
8
9
2
23
4
II. DEFENDANTS' REQUEST FOR A 14-
DAY EXTENSION IS
UNTIMELY
AND
DISINGENUOUS
15
CONCLUSION
17
Case 1:15-cv-00009 Document 21 Filed 05/07/15 Page 3 of 23
-
8/9/2019 1:15-cv-00009 #21
4/23
2
3
4
5
6
7
8
9
2
3
4
5
6
7
8
9
2
23
4
TABLE OF
AUTHORIT IES
CASES
PAGE(S)
Am. Trucking Ass ns
v.
Smith.
496 U.S. 167 (1990) 11
Armstrong v. Brenner.
135 S. Ct. 890 (U.S. Dec.
19,2014)
13
Berry v. Epps.
506 F.3d 402 (5th Cir. 2007)
Campaign for S. Equal, v. Bryant.
2014 WL 6680570 (S.D. Miss. Nov. 25, 2014) 10
Conde-Vidal v. Rius-Armendariz,
No. 14-2184 (1st Cir. Apr. 14, 2015) 12
Condon v. Haley.
2014 WL 5897175 (D. S.C. Nov. 12, 2014) 14
DeBoer v. Snyder.
772 F.3d 388 (6th Cir. 2014) 3,
11
Does v. City
of
Indianapolis.
2006 U.S. Dist. LEXIS 72865 (S.D. Ind. Oct. 5,2006) 9
Elrod v. Burns.
427 U.S. 347 (1976) 10
Front ie ro v . Richardson.
411 U.S. 677 (1973) 3
Guzzo
v.
Mead.
2014 WL 5317797 (D. Wyo. Oct. 17,2014) 14
In re Ford Motor Co. Speed Control Deactivation Switch
Products Liab. Litie.. 664 F. Supp. 2d 752 (E.D. Mich. 2009),
order
clarified
on reconsideration (Jan. 4.2010) 11
Klein v. City o f
San Clemente ,
584 F.3d 1196(9th Cir. 2009) 10
Case 1:15-cv-00009 Document 21 Filed 05/07/15 Page 4 of 23
-
8/9/2019 1:15-cv-00009 #21
5/23
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
4
Kook v. Cate.
2013 WL 4041363
(CD.
Cal. June 14,2013) 4
Landis
v.
N. Am. Co..
299 U.S. 248 (1936) 6,7
Latta
v.
Otter.
771 F.3d 456 (9th Cir. 2014), pet. for reh gen banc denied,
779 F.3d902 (9th Cir. Jan 9,2015) passim
Lawson v.
Kelly.
No. 14-3779 (8th Cir. Apr. 29,2015) 12
Leyva
v. Certified
Grocers
o f California. Ltd..
593 F.2d 857 (9th Cir. 1979) 6
Loving v. Virg inia .
388 U.S.
1(1967)
3
Majors v. Home.
141 F. Supp. 3d 1313 (D. Ariz. 2014) 14
Marie v. Moser.
2014 WL 5598128 (D. Kan. Nov.
4,2014)
15
Martin
v.
Naval Cr iminal Investigative Serv. . (NCIS),
2012 WL 1570840 (S.D. Cal. May 3,2012) 10
McClellan v. Young.
421 F.2d 690 (6th Cir. 1970) 4
Metrophones Telecommunications. Inc. v. GlobalCrossingTelecommunications. Inc..
2003 WL 25511850 (W.D. Wash. Dec. 16, 2003), affd in part,
rev d
in part on other grounds. 423 F.3d 1056 (9th Cir. 2005),
affd. 550 U.S. 45 (2007) 5,11
Nelson
v.
NASA.
530 F.3d 865 (9th Cir. 2008) 10
Newsome v. Albermar le Cntv. Sch. Bd..
354 F.3d 249 (4th Cir. 2003) 10
Obergefell v. Hodges,
Docket 14-556(U.S. 2015) 1,2,12, 13
iv
Case 1:15-cv-00009 Document 21 Filed 05/07/15 Page 5 of 23
-
8/9/2019 1:15-cv-00009 #21
6/23
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
4
Strange v. Searcy.
135 S. Ct. 940 (U.S. Feb. 9, 2015) 13
Stuart v. Huff.
834 F. Supp. 2d 424 (M.D.N.C. 2011) 10
Tanford
v.
Brand,
883 F. Supp. 1231 (S.D. Ind. 1995) 10
U.S. v. Windsor.
U.S. , 133 S.Ct. 2675 (2013)
11
United States v.
Guam,
No. CV 02-00022,2013 WL 5809289 (D. Guam Oct.
29,2013),
appeal dismissed (Dec. 13,2013), appeal dismissed, 596 F. App'x
562 (9th Cir. 2015) 7, 8
Watson v. Memphis.
373 U.S. 526 (1963)
4,14
Yong v.
I.N.S..
208 F.3d 1116(9th Cir. 2000) 4
Zvme
Solutions.
Inc.
v. InfoNow Corp..
2013
WL
6699997 (N.D. Cal.
Dec. 19,2013) 6, 7
OTHER AUTHORITIES PAGE(S)
Martin Luther King, Jr., Letter from Birmingham Jail (1963) 4
Case 1:15-cv-00009 Document 21 Filed 05/07/15 Page 6 of 23
-
8/9/2019 1:15-cv-00009 #21
7/23
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
IN TR ODUC TION
This memorandum responds to and opposes the Defendants' May 4, 2015 Motion to
HoldCase in Abeyance (hereinafter Motion to Stay ).
The instant action is a civil
rights
case alleging that Plaintiffs have been
denied equal
protection and due process under federal law by being denied the right to marry. The facts are
undisputed. The sole issue in the case is the
legal
question of whether a jurisdiction within the
Ninth Circuit may permissibly deny a same-sex couple the right to marry solely based on the
gender of the members
of
the couple. That issue has already been squarely addressed and
disposed
of
by controlling Circuit precedent holding that laws barring same-sex couples from
marriage violate the equal protection guarantee
of
the Fourteenth Amendment. Latta v. Otter.
771 F.3d 456, 464-65 (9th Cir. 2014),
pet. for reh g en banc denied,
779 F.3d 902 (9th Cir. Jan
9,2015).
Based on this indisputably controlling Circuit authority and the Defendants' failure to
dispute any of the facts, or even the applicability of that authority, the instant case is capable of
immediate resolution. Contrary to the Defendants' assertion, there is nothing complex about
this case. Indeed, scores
of
courts have addressed this issue; and the overwhelming majority
of
them have held laws such as
Guam s
to be unconstitutional. More importantly, the issue at
hand involves fundamental constitutional rights and, as such, any further delay is itself a harm
inflicted on Plaintiffs and all those similarly situated.
Unable to dispute the applicability of controlling Circuit precedent to the instant case,
Defendants have regrettably resorted to delay tactics. They request a stay
of
these proceedings
pending a ruling from the U.S. Supreme Court in Obergefell v. Hodges. Docket 14-556 (U.S.
2015). Yet Defendants have utterly failed to meet their burden to show that a stay is warranted
1
Case 1:15-cv-00009 Document 21 Filed 05/07/15 Page 7 of 23
-
8/9/2019 1:15-cv-00009 #21
8/23
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
23
24
sufficient to
overcome
settled Circuit law and the
immediate
irreparable
injury
posed to
Plaintiffs' and other similarly situated
same-sex
couples currently being denied the
fundamental right to marry.
For these and other reasons, set forth below, Plaintiffs oppose the issuance of any stay;
and they renew their request for expedited resolution of their pending motions for summary
judgment and preliminary injunction.
P R O C E DU R A L P O ST U RE O F
C A S E
The instant action was initiated by a Complaint filed on April 13, 2015, which was
accompanied by a motion for summary judgment and a motion for preliminary injunctive relief,
together with supporting memoranda of law. On April 16, 2015, Plaintiffs filed a First
Amended Request for an Expedited Ruling on the pending motions based on intervening
developments, namely, the Attorney General of Guam's memorandum to Defendant
Department
of Public Health and Social Services advising that the holding in Latta v. Otter is
controlling law rendering Guam's statute prohibiting same-gender marriages unenforceable
until
such
time that the Supreme Court of the United States alters the holding of the Ninth
Circuit Courtof Appeals.
Meanwhile,
as
noted
in Plaintiffs'
April
16,
2015 filing,
Defendants
continue to enforce Guam's statutes purporting to restrict issuance of marriage licenses to
opposite sex couples until further notice.
The Defendants have yet to
answer
the Complaint. Neither have they responded to
Plaintiffs'
motion
for
summary
judgment, motion for preliminary injunctive relief, or First
Amended Request for an Expedited Ruling on the
pending
motions. Instead, on the date they
should have answered and responded, Defendants merely filed a motion to stay these
proceedings
pending
the outcome of Obergefell. or in the alternative, for a continuance of
14
2
Case 1:15-cv-00009 Document 21 Filed 05/07/15 Page 8 of 23
-
8/9/2019 1:15-cv-00009 #21
9/23
2
3
4
5
6
7
8
9
2
2
2
d
e
m
L
I
D
D
O
G
O
T
L
Bm
o
w
awm
a
a
smm
W
g
l
ep
mD
dmS
F
Case 1:15-cv-00009 Document 21 Filed 05/07/15 Page 9 of 23
-
8/9/2019 1:15-cv-00009 #21
10/23
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
we
would,
of course, still be waiting.
Id.
Like so
many
others
before
them, For years now
[Plaintiffs] have heard the word 'Wait' . . . [But hjuman progress never rolls in on wheelsof
inevitability
[and]
time
itself
becomes
an
ally
of
the
forces
of social stagnation.
Id.
citing
Martin Luther King, Jr.'s Letter from Birmingham Jail (1963)). Accordingly, any
deprivation of constitutional rights calls for prompt rectification. Watson v. Memphis. 373
U.S. 526, 532 (1963).
Defendants have utterly failed to meet—or even discuss—their burden
of
showing their
entitlement to a stay of the proceedings in this case. Nor have they shown good cause for an
extension
of
time. As a result, Defendants' requests should be denied.
A. Whi le District Courts
have
Inherent
Discret ion t o
Manage their
Dockets,
District
Cour ts Canno t
Disregard
Bind ing Circu it Authori ty
Regardless o f
any Other
Pending Proceedings
Contrary to the Defendants' urgings, courts do not abdicate ruling on constitutional
issues just because the Supreme Court is poised to address the issue at a later date. As the
Ninth Circuit has observed, once a federal circuit court issues a decision on point, the district
courts within that circuit are
bound
to follow it and have no
authority
to await a ruling
by
the Supreme Court before applying the circuit court s decision as binding authority.
Yone v. I.N.S.. 208 F.3d 1116, 1119, n. 2 (9th Cir. 2000); Kook v. Cate. 2013 WL 4041363, at
*6 (CD. Cal. June 14, 2013) (denying stay where Supreme Court had granted certiorari
regarding
controlling
Ninth
Circuit
case
on
point because
this
Court
has 'no authority to
await
a
ruling
by the Supreme Court'
before applying
the
Ninth
Circuit's holding . . . ) quoting
Yong). See also
McClellan v.
Young. 421 F.2d
690,
691
(6th Cir.
1970)
(holding that district
judge was without authority to
defer action
in habeas corpus actions pending before him in
order to await a rulingby the Supreme Court inanothercase); Berryv. Epps, 506 F.3d402,405
4
Case 1:15-cv-00009 Document 21 Filed 05/07/15 Page 10 of 23
-
8/9/2019 1:15-cv-00009 #21
11/23
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
(5th
Cir. 2007)
(denying stay of execution
and dismissing inmate s Section
1983
civil
rights
action
challenging the constitutionality of
lethal
injection procedures, despite
Supreme
Court s
grant
of
certiorari
in
another
lethal
injection
case, because
circuit
precedent
remains
binding
until the
Supreme
Court provides contrary guidance ).
This
is
certainly
not the first time
parties
have urged a
court
to disregard
circuit
precedent
based
on uncertainty
about
the final outcome of a
legal issue.
In such cases, courts
invariably follow
circuit
authority and decline the invitation to guess about what
the
Supreme
Court might do. For example, one court dealt with such contentions as follows:
The parties agree that Greene[v. Sprint
Communications Co.,
340 F.3d 1047, 1052 (9th Cir. 2003),] is the governing law in
the present case, and also recognize that the filing
of
a petition
for certiorari does not change the binding effect
of
the Ninth
Circuit's decision on this Court.
While plaintiff argues
that
the Ninth Circuit
made the wrong decision in Greene,
there
is no authority for this Court to simply ignore it. See Yong
v.
INS
208 F.3d 1116, 1119 n. 2 (9th Cir. 2000);
Wedbush
Noble, Cooke, Inc. SEC,
714 F.2d, 923, 924 (9th Cir. 1983).
Yet
plaintiff asks
the Court
to do
just
that, based on its
assertion that the law in this area
is
not settled and
because the r n decision is still being appealed. Yet the
Ninth Circuit has already denied a petition for rehearing en
banc.
Further,
this
Court
does
not presume
to
know, nor
will it hazard a guess, as to what the U.S. Supreme Court
will or will not do if presented with a petition for certiorari.
What is certain is that
Greene
is the current controlling law of
the Ninth Circuit, and that is the law this Court must follow.
The Ninth Circuit has definitively decided the issue, the
motion is ripe for decision,and plaintiffs claim for a private
right
of
action under § 276 is dismissed.
Metrophones
Telecommunications.
Inc. v. Global Crossing
Telecommunications.
Inc..
2003
WL25511850, at *3 (W.D. Wash. Dec. 16,2003) (emphasis added),
aff
d in part, rev'd in part
on other
grounds.
423 F.3d 1056 (9th Cir. 2005), affd, 550 U.S. 45 (2007). The words
highlighted above apply with equal force in the instant case.
5
Case 1:15-cv-00009 Document 21 Filed 05/07/15 Page 11 of 23
-
8/9/2019 1:15-cv-00009 #21
12/23
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
Plaintiffs recognize
that courts generally enjoy discretion to
enter
a stay in an action
pending resolution of independent proceedings
which
bear upon the case.
See Levva
v.
Certified Grocers of California.
Ltd..
593
F.2d 857,
863
(9th
Cir.
1979).
However,
as the
U.S.
Supreme Court
established nearly eighty
years
ago,
that
discretion is not
unbridled.
A
party
seeking a stay basedon the outcomeof another case must makeout a clear case
of
hardshipor
inequity in being required to go forward, if there is even a fair possibility that the stay for
which he prays will work damage to someone else. Landis v. N. Am. Co.. 299 U.S. 248, 255
(1936). The high court continued,
[o]nly in rare circumstances will a lit igant in one cause
be compelled to
stand
aside while a litigant in another settles
the
rule
of
law
that
will
define the rights of both.
Landis. 299 U.S. at 255 (emphasis added). Defendants cannot
maintain that Landis is somehow outdated or inapposite, as they themselves rely on Landis. on
pages
3 and 4 of their
memorandum
of
law,
for the general proposition that [t]he decision to
stay proceedings
is
inherent and entirely within
the Court's discretion.
Defendants would
simply havetheCourtoverlook thepart ofLandis that undermines theirargument.
In
fact,
it is well settled in this Circuit that the mere pendency of related appellate
proceedings does
not
per
se
warrant a
stay.
Instead, use of the power to stay
calls for
the
exercise
of judgment, which must weigh
competing
interests and maintain an even balance.
Zvme Solutions. Inc. v. InfoNow Corp., 2013 WL 6699997, at *4 (N.D. Cal. Dec. 19, 2013).
Courts should consider the competing interests
which
will be affected by the granting or
refusal to grant a stay Among those competing interests are the possible damage which
may
result
from the granting of a stay, the hardship or inequity which a party
may suffer
in
being required to go forward, and the orderly course of justice measured in terms of the
simplifying or complicating of issues, proof, and
questions
of law which could be expected to
6
Case 1:15-cv-00009 Document 21 Filed 05/07/15 Page 12 of 23
-
8/9/2019 1:15-cv-00009 #21
13/23
2
3
4
5
6
7
8
9
2
3
4
5
6
7
8
9
2
2
22
23
4
result from a stay. Id. Defendants have utterly failed to address any such competing
interests
in the instant case. Since it is the Defendants
who
bear the
burden
of showing
entitlement to a stay, their silence alone warrantsdenial of their motion.
B.
As
in
the
Ordot
Dump
Case, t he S tay Reque st ed here
would
be Harmful
to Guam Residents
and
Delay
the
Government s Compliance with t he Law
ThisCourt is
well aware
of thecontrolling considerations to be
weighed
in a motion for
a stay, as it recently
faced
a rather similar
request
by the Governor's Office for a stay of
proceedings in another high-profile case. In the case popularly known on Guam as the Ordot
Dump Case, this Court rejected the Lieutenant Governor's request for a stay. Citing Landis.
this Court cautioned that if there is even a fair possibility that the stay ... will work damage to
someone else[,]' then the movant 'must make out a clear case
of
hardship or inequity in being
required to go forward.' United States v. Guam. No. CV 02-00022, 2013 WL 5809289, at *8
(D. Guam Oct. 29, 2013) (Per Tydingco-Gatewood, C.J.), appeal dismissed (Dec. 13, 2013),
appealdismissed. 596 F. App'x 562 (9thCir. 2015);
citing
Landis. 299 U.S. at 255. ThisCourt
denied the government's stay request in the Ordot DumpCase because there was more than a
fair possibility that the stay would work damage against the environment, the peopleof
Guam
and the UnitedStates, and because the government failed to clearly show that it would suffer
hardship
or inequity if required to go
forward. Id.
Indeed, this Court said in its Opinion and
Order:
. . . [A]fter weighing the competing factors, the court finds
that a stay
of
these proceedings is unwarranted. A stay
would
result
in
further environmental harm
and
ongoing violation
of
the Clean Water Act since the Ordot Dump will continue to
discharge untreated leachate into the Lonfit River. A stay
would also mean that the leachate discharges and uncontained
landfill gas will remain a public health hazard for the
surrounding residents.
Despite
claims
to
the
contrary,
th e
7
Case 1:15-cv-00009 Document 21 Filed 05/07/15 Page 13 of 23
-
8/9/2019 1:15-cv-00009 #21
14/23
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
Government
of Guam
will
no t
su ffer any hardsh ip or
inequity if
the procurements were allowed to proceed since
the
Receiver
h as s ufficie nt mon ie s w it hi n
the bond
issue -
within the original estimates that were made—to complete the
closure
of
the Ordot Dump.
Finally, a stay
would
not
further the orderly
course
of
justice but
would instead
delay the Government of Guam s compliance with the
Consent
Decree.
Id., at *12, (emphasis added).
Remarkably similar considerations compel the same result in the instant case. As in the
Ordot Dump case, the Governor's request to stay in the instant case is unwarranted because it
would result in further harm and ongoing violation
of
the fundamental right to marry of
Plaintiffs and other Guam same-sex couples, who will continued to be denied the rights and
privileges of marriage for so longas a stay
would remain
in effect. Similarly, [djespite claims
to the contrary, the Government of Guam will not suffer any hardship or inequity if marriage
licenses must be issued to same-sex couples. Finally, a stay would not further the orderly
course
of justice but
would instead delay
the Government of Guam's compliance with the
Ninth Circu it s c lea r manda te in
Latta.
C.
Defendants Have Failed
to
Meet their
Burden o f
Justi fying a Stay
As Plaintiffs have already demonstrated in their pending motion for preliminary
injunction, the Defendants in the instant action can
hardly
establish that they are likely to
succeed on the merits in view of bindingCircuit precedent against them. Nor can they show
that theyare likely to suffer irreparable harm in the absence of a stay, as the relief Plaintiffs
request (an injunction against denial of marriage licenses for Plaintiffs and other otherwise
Case 1:15-cv-00009 Document 21 Filed 05/07/15 Page 14 of 23
-
8/9/2019 1:15-cv-00009 #21
15/23
2
3
4
5
6
7
8
9
2
3
4
5
6
7
8
9
2
23
4
qualified same sex couples), imposes no undue burdens and in no way harms Defendants,
irreparably
orotherwise.
More importantly, because the constitutional rights to marry and equal protection
of
the
laws are at the center of the instant case, and because the conduct being engaged in by the
Defendants is directly at odds with controlling Circuit precedent, the balance
of
equities tips
not in Defendants' favor but rather in favor
of
Plaintiffs and other same-sex couples seeking to
marry now. Defendants will not be harmed by having to conform to constitutional
standards[.] Does v. City
of
Indianapolis. 2006 U.S. Dist. LEXIS 72865, at *29 (S.D. Ind.
Oct. 5, 2006). However, holding this case in abeyance would injure Plaintiffs, other same-sex
couples, and their children by exposing them to irreparable and continuing insecurity,
vulnerability, and stigma. As the Ninth Circuit recognized in Latta, marriage laws . ..
preventing same-sex couples from marrying and refusing to recognize same-sex marriages
celebrated elsewhere, impose profound legal, financial, social and psychic harms on numerous
citizens o f those states.
Latta, 771 F.3d
at
476.
The very purpose of marriage is to provide security in the face of anticipated and
unanticipated hardships and crises—e.g., in the face
of
death, aging, illness, accidents,
incapacity, and the vicissitudes of life. Same-sex couples wishing to marry are subjected to
irreparable harm every day they are
forced
to live without the security that marriage provides.
That harm is not speculative, but immediate and real.
Moreover, Defendants can hardly argue that issuing a stay is in the public interest. To
the contrary, the public interest tips strongly
against
any stay because deprivation
of
1 Plaintiffs incorporate the
arguments
made
in their Memorandum in Support of Motion
for
Preliminary Injunction.
Case 1:15-cv-00009 Document 21 Filed 05/07/15 Page 15 of 23
-
8/9/2019 1:15-cv-00009 #21
16/23
2
3
4
5
6
7
8
9
2
3
4
5
6
7
8
9
2
23
4
constitutional rights, for even minimal periods of time, unquestionably constitutes irreparable
injury. Elrod v. Burns. 427 U.S. 347, 373 (1976); Klein v. City
of
San Clemente. 584 F.3d
1196, 1207-08 (9th Cir. 2009) ( Both this court and the Supreme Court have repeatedly held
that '[t]he loss
of
First Amendment freedoms, for even minimal periods of time,
unquestionably constitutes irreparable injury.' ); Nelson v. NASA, 530 F.3d 865, 872-73 (9th
Cir. 2008). Surely, upholding constitutional rights serves the public interest. Newsome v.
Albermarle Cntv. Sch. Bd.. 354 F.3d 249, 261 (4th Cir. 2003). See also Stuart v. Huff. 834 F.
Supp. 2d
424,433
(M.D.N.C. 2011) ( [I]t is in the public interest for statutes that likely violate
fundamental constitutional rights be to enjoined from being enforced. ); Martin v. Naval
Criminal Investigative Serv.. (NCIS). 2012 WL 1570840, at *4 (S.D. Cal. May 3, 2012) ( The
public has an interest in the timely adjudication
of
alleged government misconduct. ).
Compared to the substantial harms suffered by Plaintiffs, other same-sex couples, and
their families, the balance
of
harms tips decidedly in Plaintiffs ' favor. Allowing same-sex
couples to marry
presents no harm to anyone. Campaign for S. Equal, v. Bryant. 2014 WL
6680570, at *40 (S.D. Miss. Nov. 25, 2014). Because the marriage ban is unconstitutional on
its face, governmental compliance with the Constitution always serves the common good.
Tanford v. Brand. 883 F. Supp. 1231,1237 (S.D. Ind. 1995). In sum, continued enforcement
of
an unconstitutional statute can never be in the public interest.
Defendants' memorandum is remarkable more for what it does
not
say than for
anything it says. Defendants maintain that judgment is premature in the instant case, yet they
failed to address numerous authorities cited by Plaintiffs from within this Circuit and elsewhere
for the proposition that expedited disposition is appropriate where the Circuit has resolved the
marriage issue. Simply put, [a] District Court is bound by the rulings
of
the Circuit Court in
10
Case 1:15-cv-00009 Document 21 Filed 05/07/15 Page 16 of 23
-
8/9/2019 1:15-cv-00009 #21
17/23
2
3
4
5
6
7
8
9
2
3
4
5
6
7
8
9
2
23
4
which it sits. In re Ford Motor Co. Speed Control Deactivation Switch Products Liab. Litig..
664 F. Supp. 2d 752, 761 (E.D. Mich. 2009), order clarified on reconsideration (Jan. 4, 2010).
See also,
Metrophones.
supra,
2003 WL 2551850, *3 (declining to guess about what the
SupremeCourt will do or will not do. ). And where enforcement
of
[a] statute has properly
been invalidated as unconstitutional, then so is enforcement of all ident ical s tatutes in other
States, whether occurring before or after our decision. Am. Trucking Ass'ns v. Smith. 496
U.S. 167, 175 (1990) (Scalia, J. concurring); see also U.S. v. Windsor. U.S. , 133 S.Ct.
2675, 2691 (2013) (striking down a federal law that discriminated against legally married
same-sexcouples, the Supreme Court emphasized that [s]tate laws
regulating marriage, of
course, must respect the constitutional rightsofpersons. ). Plaintiffs seek from this Court only
what Latta requires, which is a ruling enjoining the enforcement
of
laws that prevent same-sex
couples from marrying. 771 F.3d at 476.
D. Defendants Request for a
Stay of
th e Proceedings
in
this Case is at Odds
with
the
Actions
of
the N inth
Circuit and the Supreme
Cour t
Denying
Similar
Requests.
espite
the
Supreme
Court s
Consideration
of Obersefell
Defendants' only reason for staying the proceedings in this case is their misguided
speculation that theNinthCircuit
might have gotten
it wrongin Lattaand that this Courtshould
take pause based on contrary Sixth Circuit authority. While Defendants now concede that,
licensure
of
same-sex marriages is permitted in all
of
the U.S. States covered by the Ninth
Circuit, and that the Ninth Circuit dissolved the stay it placed in Latta. Defendants
nevertheless seek to justify a stay in the instant case based on the remarkably speculative
assertion that, it is not an unreasonable stretch to conclude that had the Sixth Circuit's decision
in DeBoer come out before October 15, 2014, when the Ninth Circuit dissolved the stay in
Latta. it is possible that the Ninth Circuit would not have dissolved the stays at all. Mem. at
11
Case 1:15-cv-00009 Document 21 Filed 05/07/15 Page 17 of 23
-
8/9/2019 1:15-cv-00009 #21
18/23
2
3
4
5
6
7
8
9
2
3
4
5
6
7
8
9
2
22
23
4
pp. 4, 6. But not only is such argument contrary to clear precedent showing that this Court is
bound by Latta.
supra,
it is also misleading.
Defendants cite to no case in which speculation similar to theirs justified imposition
of
a
stay
of
proceedings. They also cite to no case anywhere in the nation in which a trial court
sitting in a Circuit that has mandated marriage equality has issued a stay
of
further proceedings
based on a Circuit split or pending Supreme Court ruling. The only stays mentioned in
Defendants' memorandum are stays issued by Circuit courts staying appeals
challenging
decisions striking down marriage bans similar to Guam s, as well as that Circuit's binding
precedent holding the same. In other words, the stay the Defendants seek in the instant action
would do the exact opposite
of
what the Circuit courts did in such cases—maintain a status quo
directly at odds with Circuit authority.
Defendants concede that the Ninth Circuit and Supreme Court vacated stays of Latta
and other Circuit court rulings that upheld marriage equality. If the Supreme Court did not see
fit to stay these marriage equality rulings—thus effectively allowing thousands of same-sex
couples to freely marry in the affected Circuits—then why should this Court stay the instant
action, which would effectuate the opposite result—to prevent such couples from marrying
despite binding Circuit authority to the contrary?
Defendants also provide the Court with an incomplete picture of the actions taken by
the Ninth Circuit and Supreme Court since the Supreme Court began considering Obergefell.
For example, despite the fact that the invalidation of Montana's marriage ban in Rolando v.
2 While the
First and
Eighth
Circuits
have recently
delayed
oral
arguments
in
appeals
of
decisions
by district courtswithin such circuits pending the
Supreme
Court's resolution in Obergefell. neither of
those courts are presented with binding circuit authority unlike this Court and the Ninth and Fourth
Circuits.
See, e.g.,
Order, Conde-Vidal v. Rius-Armendariz. No. 14-2184 (1st Cir. Apr. 14, 2015);
Lawson v. Kelly. No. 14-3779 (8th Cir. Apr. 29, 2015).
12
Case 1:15-cv-00009 Document 21 Filed 05/07/15 Page 18 of 23
-
8/9/2019 1:15-cv-00009 #21
19/23
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
Fox.23 F. Supp. 3d
1227
(D.
Mont.
2014), onNovember 19, 2014, occurred nearly two weeks
after
the Sixth's Circuit decision in DeBoeron November6,2014, the Ninth Circuit at no point
has stayed the enforcement of the decision. Such a result, that same-sex couples in Montana
can now marry despite the circuit split created by DeBoer, is directly at odds with Defendants'
rank speculation.
Furthermore, Defendants completely fail to inform the Court about actions taken by the
Supreme Court that are directly at odds with their request. For example, on December 19,
2014, the Supreme Court denied a stay
of
the decision invalidating Florida's marriage ban even
though the Supreme Court was at the time considering the petitions for certiorari filed in
Obergefell. et al. as a result
of
the circuit split created by the Sixth Circuit. Armstrong v.
Brenner. 135 S. Ct. 890 (U.S. Dec. 19, 2014). Likewise, on February 9, 2015, the Supreme
Court denied to stay the decision
of
the district court invalidating Alabama's marriage ban
despite the fact that the Supreme Court had already granted
certiorari
in Obergefell weeks
earlier.
See
Strange v. Searcy. 135 S. Ct. 940 (U.S. Feb. 9, 2015) (denying stay); Obergefell v.
Hodges. 135 S. Ct. 1039 (U.S. Jan. 16, 2015) (granting petition for
certiorari .
This
acquiescence may well be seen as a signal
of
the Court's intended resolution[.] Strange. 135
S. Ct. at 941 (Thomas, J., dissenting).
There can be no dispute that this Court is bound by Latta. Defendants' mere and
misguided speculation about what the Supreme Court might or might not do, or about what the
Ninth Circuit might or might not have done, cannot serve to delay this Court's application of
the Ninth Circuit's clear and binding precedent. We live in the here and now, not in some
speculative world as Defendants would have this Court believe. The actions
of
the Supreme
Court and Ninth Circuit with regard to the issue at hand could not be clearer. The Ninth Circuit
13
Case 1:15-cv-00009 Document 21 Filed 05/07/15 Page 19 of 23
-
8/9/2019 1:15-cv-00009 #21
20/23
2
3
4
5
6
7
8
9
2
3
4
5
6
7
8
9
2
23
4
has already held that marriage bans like Guam's violate the constitutional guarantee
of
equal
protection. Likewise, since October 6, 2014, the Supreme Court has at every turn refused to
delay the application of decisions upholding the equality and dignity
of
same-sex couples with
regard to marriage, while only intervening to grant review of the sole decision by a circuit court
holding otherwise. The basic guarantees ofour Constitution are warrants for the here and now
and, unless there is an overwhelmingly compelling reason, they are to be promptly fulfilled.
Watson. 373 U.S. at 533. This Court should reject Defendants' delaying tactics and act
promptly to vindicate the constitutional rights
of
Plaintiffs and other same-sex couples in
Guam.
E.
Defendants Fail to Show why Expedited Relief Should Not
Instead
be
Granted
As Plaintiffs have pointed out, instead
of staying
this case, this Court would find itself
in good company if it
expedited
the matter and granted preliminary injunctive relief.
See
Majors v. Home.
141
F. Supp. 3d
1313
(D. Ariz. 2014) (promptly granting summary judgment
motions challenging Arizona's ban on marriage for same-sex couples just ten days after
issuance of the Ninth Circuit's opinion in Latta and refusing to stay its ruling).
Defendants do not dispute or even attempt to distinguish authorities cited by Plaintiffs
in which courts facing marriage-ban cases granted injunctive relief less than one month after
issuance of binding circuit authority on point.
See
Condon v. Haley. 2014 WL 5897175 (D.
S.C. Nov. 12, 2014) (granting injunctive relief and summary judgment regarding South
Carolina marriage ban less than one month after initiation of action); Guzzo v. Mead. 2014 WL
5317797
(D.
Wyo.
Oct. 17, 2014) (granting preliminary injunction enjoining enforcement of
Wyoming's ban on marriage for
same-sex
couples a mere ten days after the filing of the
14
Case 1:15-cv-00009 Document 21 Filed 05/07/15 Page 20 of 23
-
8/9/2019 1:15-cv-00009 #21
21/23
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
4
original complaint); Marie v. Moser. 2014 WL 5598128 (D. Kan. Nov. 4, 2014) (enjoining
enforcement
of
Kansas's ban on marriage for same-sex couples less than one month after the
commencement of the action [bjecause Tenth Circuit precedent is binding on this
Court... ).
Likewise, in the instant case, there is absolutely no principled reason to delay granting
injunctive relief in the face of controlling Ninth Circuit precedent on point. This case should
not be stayed; it should be
expedited.
II .
DEFENDANTS
REQUEST
FOR
A
14-DAY
EXTENSION
IS
U N T I M E L Y
A N D D I SI N GE N U O U S
Defendants appear to have a three-pronged strategy with respect to this case: Delay,
delay, and delay. As we have seen, instead
of
answering the Complaint and responding to the
motions on file, Defendants have moved for a stay. In the alternative, they ask the Court to
grant a 14-day extension to respond to the motions. For many
of
the same reasons stated
above, this alternative request should likewise be denied.
The apparent basis for the 14-day continuance request is the unsupported assertion that
the Governor has been off-island much lately; and thus he has not had enough time to consult
with
legal
counsel concerning this
very
important
matter.
Defendants do not say whether
Codefendant Garrido was similarly preoccupied.
Additionally, Defendants
maintain
that
they need
the extra two weeks because the
Attorney General
only appointed
counsel on May 1, 2015 to
serve
as a Special Assistant
Attorney General for the purpose of representing the Defendants. As a result, they maintain
that they have had insufficient time to prepare an answer and to respond to the pending
motions.
Thisclaim is disingenuous at best.
Media
statements
issued
by the Governor's office
15
Case 1:15-cv-00009 Document 21 Filed 05/07/15 Page 21 of 23
-
8/9/2019 1:15-cv-00009 #21
22/23
1
2
3
4
5
6
7
8
9
2
3
4
5
6
7
8
9
2
23
24
have consistently stated that the Governor's legal team has been carefully reviewing and
researching this controversy, as well as the Attorney General's response, for three full
weeks.3
Yet
despite this presumably intensive and careful review, the
Defendants
suddenly
claim to be flatfooted and speechless on the matter.
Moreover, it is manifest that the Defendan ts new counsel had
sufficient
time
to
research and draft several filings in support of the instant motion, including a 9-page
memorandum of law. Since Defendants state that they, do not take a position regarding any
of
Defendants' legal arguments (Mem. at p. 2), just what exactly would Defendants' counsel
have done with his time had he been appointed two weeks earlier? Indeed, given the
Defendants' reluctance to take any position on the merits of the instant controversy—except
that they are bound to follow statutory law—then just what would they do with the additional
14 days
if
the Court were to grant their motion? Defendants fail to say. In all likelihood,
Defendants would simply spend the extra time coming up with additional purported reasons for
kicking the judicial can down the road.
3
See Pacific
Daily
News, April 15, 2015, Update: Calvo-Tenorio
Administration
Defers
Decision onGayMarriage
( The administration said it 'respects the opinion of the
Arty.
Gen. Elizabeth
Barrett Anderson and that his legal team is reviewing and conducting research on the issue.' ); Pacific
Daily News, April 17, 2015,
Update:
Calvo:
More
Information Needed
for
Gay Marriage Decision
( I've instructed my legal team to research the issue... ); Pacific Daily News, April 17, 2015,
Update:
No DecisionbyPublicHealth Adelup on GayMarriage Issue
( Our legal team continues to research
the issue. ); Marianas Variety, April 17, 2015 ( The governor said he respects the Atty. Gen.'s opinion
and he currently has his legal team the reviewing the AG s position and further researching the
issue... ); Marianas Variety, April 21, 2015, Officials Urged to Comply with Same-Sex Law ( Gov.
Eddie Calvo has issued a statement saying he respects the Atty. Gen.'s opinion and he currently has his
legal team reviewing the AG's position and further researching the issue. ); Pacific Daily News, April
21, 20,
Calvo Still
Looking
Into It
( Oyaol Ngirairkl, director of communications for the governor's
office, said that his legal team is continuing to review the lawsuit. ); Pacific Daily News, April 24,
2015, States Issue Marriage Licenses Despite Appeals ( The governor, who's currently in California,
has tasked his legal team researching the issue. ).
16
Case 1:15-cv-00009 Document 21 Filed 05/07/15 Page 22 of 23
-
8/9/2019 1:15-cv-00009 #21
23/23
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
23
24
Rather than spending time preparing an opposition to the pending motions, Defendants
calculated that their best move was not to defend against the matter but to devote their energy
to delaying the proceedings for as long as possible. Having made that calculation, Defendants
must now live with the consequences.
C O N C L U S I O N
District Courts have no authority to await a ruling by the Supreme Court before
applying the Circuit Court's decision as binding authority. Yong. 203 F.3d at 1119, n.2. In
view
of
binding Circuit precedent directly on point, Defendants have failed to show any
principled reason to delay granting either summary judgment or preliminary injunctive relief.
The instant action should not be stayed. To the contrary, it should be expedited because
Plaintiffs are entitled to immediate injunctive relief. Defendants' motion for a stay and, in the
alternative, for an additional 14 days to respond to Plaintiffs' motions, should be DENIED.
Instead, Plaintiffs' motion for summary judgment should be GRANTED; and in the alternative,
Plaintiffs' motion for a preliminary injunction should beGRANTED immediately.
Respectfully submitted
this
th day
ofMay, 2015.
THOMPSON GUTIERREZ
&
ALCANTARA, P.C.
Attorneys for Plaintiffs Kathleen M. Aguero and
Loretta M. Pangelinan
R A ND A LL T O
P151047.RTT
17