SUPREME COURT, STATE OF COLORADO Colorado State Judicial Building 2 East 14th Avenue Denver, Colorado 80203

COURT USE ONLY Case No.: ___SA ___

Boulder County District Court Andrew Hartman District Court Judge No. 2014CV30833 IN RE: PEOPLE OF THE STATE OF COLORADO, ex rel. JOHN SUTHERS, in his official capacity as Colorado Attorney General, and THE STATE OF COLORADO, Petitioners-Appellants, v. HILLARY HALL, in her official capacity as Boulder County Clerk and Recorder, Respondents-Appellees. JOHN SUTHERS, Attorney General DANIEL DOMENICO, Solicitor General MICHAEL FRANCISCO, Ass’t Solicitor General LEEANN MORRILL, First Ass’t Attorney General KATHRYN A. STARNELLA, Ass’t Attorney General 1300 Broadway, 10th Floor Denver, CO 80203 Phone: (720) 508-6000 Email: dan.domenico@state.co.us; michael.francisco@state.co.us; leeann.morrill@state.co.us; kathryn.starnella@state.co.us Registration Numbers: 32038, 39111, 38742, 43619

PETITION FOR RELIEF PURSUANT TO C.A.R. 21

DATE FILED: July 27, 2014 8:29 PM FILING ID: 4EBD8EB8E348F CASE NUMBER: 2014SA228

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Pursuant to Colorado Appellate Rules 21, and Colorado Constitution

article VI, § 3, the People of the State of Colorado ex rel. John Suthers

and the State of Colorado, petition this Court to issue a writ directing

the Boulder Clerk to abide by the same terms as the Denver and Adams

County Clerks and thereby stop issuing same-sex marriage licenses

pending resolution on appeal of the merits. C.A.R. 21(a)(2) (“The

petitioner need not designate a specific form of writ when seeking relief

under this rule.”).

As this Court knows, the statewide confusion and legal chaos

revolving around same-sex marriage in Colorado were detailed in the

Rule 8 proceedings in State, et al. v. Brinkman, et al., No. 2014SA212.

To be sure, the Attorney General had expected that other Clerks, acting

on behalf of the State, would understand that an order directing the

Denver Clerk to stop issuing same-sex marriage licenses would counsel

against other Clerks engaging in identical conduct.1 This expectation

was partly fulfilled when the Pueblo Clerk agreed to stop issuing same-

sex marriage licenses, because of the order in Brinkman.

The Respondent Clerk alone continues to issue same-sex marriage

licenses, contrary to current Colorado law, and in contravention of the

1 See Brinkman Repl. To Emergency Mot. at 11-12 (“[E]ven an order only directed at the clerks in this case [Denver and Adams Counties], but mandating that they comply with state law until the Court has ruled on the merits, would be adequate guidance to other clerks around the state.”)

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uniform nature of Colorado’s marriage laws. Accordingly, the State has

had no choice but to pursue an additional court order providing for the

uniform application of Colorado’s marriage laws pending final

determination of the constitutional claims for same-sex marriage.

Before seeking another extraordinary order from this Court the

Attorney General pursued timely motions in the trial court and Court of

Appeals. Those motions were denied, in spite of this Court’s Brinkman

order. See part E, p.5-6 infra. As explained below, if this Court does not

exercise jurisdiction over this case and allows the Boulder Clerk to

likewise continue issuing same-sex marriage licenses, then the

rationale behind the stay in Brinkman would become suspect. Almost

every reason given to order the Denver Clerk to stop would be made a

nullity and the State as a whole would continue to be subject to legal

confusion, needless disputes, all degrading to the rule of law

This Court alone is left to restore order to the legal process in

Colorado. This Court alone has the authority under Rule 21 to issue a

writ necessary to preserve the status quo in Colorado as the important

constitutional claims presented in Brinkman are given due deliberation.

A. Identity of the Parties

The Petitioners are the People and the State. The proposed

Respondent is Hillary Hall, in her official capacity as the Boulder

County Clerk and Recorder.

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B. Identity of the Court Below

The Court below is the Boulder County District Court, Colorado, the

Honorable Andrew Hartman presiding. The underlying proceeding is

captioned People of the State of Colorado ex rel. Suthers and the State of

Colorado v. Hillary Hall, No. 2014cv30833.

C. Identity of the Persons Against Whom Relief is Sought

Petitioners seek relief against the proposed Respondent Hillary Hall,

in her official capacity as the Boulder County Clerk and Recorder.

D. Rulings Complaint of and Relief Sought

The State seeks relief from order denying a stay pending appeal

dated July 23, 2014. Ex. 1. Judge Hartman denied the State’s request

for a stay pending appeal to stop the Respondent Clerk from issuing

same-sex marriage licenses in direct contravention of Colorado law, as

appeals are pending on the constitutionality of Colorado’s marriage

laws.

The Petitioners seek an order or writ from this Court that is

analogous to the order it issued just last week in Colorado, et al. v.

Brinkman, et al., whereby this Court directed Karen Long from Adams

County and Debra Johnson from Denver County, to stay from issuing

marriage licenses to same-sex couples pending resolution of that

appeal.2 Specifically, Petitioners seek an order or writ directing the 2 Order, July 18, 2014 (“IT IS FURTHER ORDERED that in light of the stay entered by the Trial Court, Defendants Karen Long, in her official capacity as

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Respondent Clerk to stay from issuing same-sex marriage licenses,

pending resolution of the interlocutory appeal, which is pending before

the Court of Appeals in State of Colorado v. Hillary Hall, Case No.

14CA1368.3

E. Reasons why No Other Adequate Remedy is Available

Proceedings under C.A.R. 21 are appropriate where an appellate

remedy would not be adequate. C.A.R. 21(a)(1); see, e.g., Morgan v.

Genesee Co., 86 P.3d 388, 391 (Colo. 2004); Pearson v. Dist. Ct., 924 P.2d

512, 515 (Colo. 1996). Exercise is discretionary and is governed by the

facts and circumstances of each case. Id.

In this case, original jurisdiction is proper for several reasons. First,

the State has no adequate appellate remedy: attempts to address the

situation by C.R.C.P. 62 motion in the trial court and C.A.R. 8 in the

court of appeals have failed. On July 24, 2014, in a perfunctory order,

the Court of Appeals denied the State’s Emergency Motion for Stay

Pending Appeal, pursuant to C.A.R. 8, on grounds that the State failed 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.”) 3 The State has no objection to this Court taking jurisdiction of the State v. Hall, No. 14CA1368l appeal and consolidating it with the State v. Brinkman, No. 2014SA212 appeal before this Court. See C.A.R. 50(b) (“the Supreme Court may on its own motion require transfer of the case to it.”). Judicial economy would favor such consolidation. Even absent consolidation, the Hall appeal is derivative of the Brinkman case and would likely be decided accordingly.

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to establish that factors for staying an order denying an injunction,

citing Romero v. City of Fountain, 307 P.3d 120, 122 (Colo. App. 2011).4

See Ex. 2.

Second, this Court’s original jurisdiction is properly invoked because

the district court abused its discretion in denying the State’s request for

a stay pending appeal, following this Court’s order of a similar stay in

Brinkman. The district court failed to properly appreciate the danger of

real, immediate, and irreparable injury to the State resulting from

continued issuance of same-sex marriage licenses that are void ab initio

under Colorado law. See infra p.17 (citing Lockyer).

Third, relief in nature of prohibition or mandamus is particularly

appropriate “in matters of great public importance,” such as this. See

Smardo v. Huisenga, 412 P.2d 431, 432 (Colo. 1966); Nuesteter v.

District Court, 675 P.2d 1, 2-3 (Colo. 1984) (recognizing that potential

for “irreparable harm” to petitioner is sufficient grounds for Supreme

Court to exercise jurisdiction under Rule 21); see also Peope ex rel Att’y

Gen. v. Richmond, 26 P. 929, 933 (1891) (in context of a writ of quo

warranto the purpose of Article VI, Section 2 is “insure the harmonious

working of our judicial system.”). 4 The four factors for staying an order denying an injunction are: (1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies. Romero, 307 P.3d at 122.

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As it stands, the only recourse available to restore order to the legal

process in Colorado is for this Court issuing a writ directing the

Respondent Clerk to be subject to the same order as the Clerks in

Brinkman.

F. Issue Presented

In light of the stay entered by the Trial Court and the Supreme

Court in Brinkman et al. v. Long et al. and State v. Brinkman et al.,

should the Respondent Clerk be stayed from issuing marriage licenses

to same-sex couples pending resolution of the appeal in State v. Hall (or

State v. Brinkman, if consolidated)?

G. Facts Necessary to Understand the Issues Presented

Already pending before this Court are the merits of the substantive

question of whether Colorado’s marriage laws, Colo. Const. art. II, § 31,

C.R.S. 14-2-104(1)(b), will stand or fall in the face of constitutional

challenges. See Colorado, et al. v. Brinkman, et al., No. 2014SC212.5

Though the district court’s decision on appeal in that case concluded

that Colorado’s non-recognition of same-sex marriage is 5 The same constitutional questions are also pending in a more recently-filed federal court action, Burns, et al. v. Hickenlooper, et al., Case No. 14-cv-01817 (D. Colo.), which was brought by same-sex couples who are either married under other states’ laws or who wish to marry under Colorado’s laws. On July 23, 2014, U.S. District Court Judge Raymond P. Moore preliminarily enjoined the enforcement or application of Article II, Section 31 of the Colorado Constitution and C.R.S. §§ 14-2-104(1)(b) and 14-2-104(2), but temporarily stayed his decision pending an interlocutory appeal. Ex. 3. The Attorney General intends to seek a longer-term stay from the appellate courts.

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unconstitutional, the district court stayed its decision upon finding

“that a stay is necessary to avoid the instability and uncertainty which

could result in the State of Colorado” if no stay was issued. Brinkman

Order at 48, Ex. 4.

While those constitutional questions remain pending for the court,

two things are clear: (a) same-sex couples may not marry under

Colorado law and (b) county clerks and recorders, whose issuance of

marriage licenses is a ministerial duty, have no authority to exercise

their discretion to grant marriage licenses that are not valid under

Colorado’s laws. See n.2, supra. Clerks should be treated equally.

In the interest of uniformity of Colorado’s marriage laws throughout

the State’s 64 counties, the State similarly requests that this Court

order Boulder County Clerk and Recorder Hillary Hall to stop issuing

same-sex marriage licenses until full resolution of People ex rel. Suthers,

et al. v. Hall, No. 2014CV30833 (Boulder County District Court), appeal

pending at State v. Hillary Hall, No. 2014CA1368.

On July 3, 2014, the State and People commenced the underlying

proceedings for declaratory and injunctive relief against Clerk Hall by

filing a verified complaint and motion for temporary restraining order

and preliminary injunction. On July 10, 2014, the district court issued

its order denying the requested preliminary injunctive relief. Ex. 5.

After this Court’s order in State v. Brinkman, the State filed a Notice of

Appeal in the Hall case and moved for a stay pending appeal under

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C.R.C.P. 62. The trial court denied the motion on July 23. Ex. 1. That

same day, the State filed an emergency motion for stay pending appeal

pursuant to C.A.R. 8, which the Court of Appeals denied on July 24,

2014. Ex. 2.

The Respondent Clerk thus continues to issue invalid marriage

licenses to same-sex couples. The Respondent Clerk is the only clerk

among Colorado’s 64 clerks who is choosing to issue licenses that violate

Colorado’s laws.

H. Reasons to grant Relief 1. Uniformity and this Court’s Order in Brinkman

overwhelmingly favors a stay.

Just last week this Court deliberated on thorough legal arguments

on the question on whether a county clerk should be permitted to

continue issuing same-sex marriage licenses while appeals are pending.

For clerks party to that case, the answer was no. For the clerk party to

this case the answer should likewise be no. There is no sound judicial

reason for the Denver Clerk to be prevented from issuing same-sex

marriage licenses (temporarily), while at the same time allowing the

Boulder Clerk to issue the same licenses. The State once again invokes

this Court’s authority to restore order and clarity to Colorado’s

marriage laws and to shore up the judicial branch’s role in adjudicating

important questions of constitutional law.

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The Brinkman situation presented this Court with at least seven

legal reasons to enter an order to temporarily stop the issuance of same-

sex marriage licenses: 1. Preservation of the status quo pending appeal, 2. Irreparable harm to the State when invalid licenses are issued, 3. Violation of longstanding ministerial duties of Clerks to follow

valid state law, 4. Preservation of the uniform system of marriage laws, 5. Public interest in an orderly judicial resolution of claims for same-

sex marriage, 6. Protection of the public from continued issuance of marriage

licenses that are likely void ab initio, and 7. Lack of any interference with the resolution of the merits from

issuing a stay pending appeal.

Every one of these legal reasons applies with equal force to the Boulder

Clerk. Again, just as with the Rule 8 motion in Brinkman, this Petition

does not ask the Court to resolve the merits of a constitutional right to

same-sex marriage. This direct appeal in Brinkman squarely presents

those issues.

To be sure, the Boulder Clerk was not a named party in Brinkman,

and the Denver Clerk is not a named party in this lawsuit. The

difference in the caption of this case when compared to Brinkman

should not distract from the simple legal issue before this Court: Should

a Clerk be ordered to stop issuing same-sex marriage licenses,

temporarily, while the merits of same-sex marriage is appealed? Yes.

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The Brinkman order to stop issuing same-sex marriage licenses

powerfully answers this question.

It is not as if the Brinkman lawsuit involves only the actions of the

Denver Clerk. The Plaintiffs in Brinkman fully expect their case to

govern every clerk in the State, and for good reason. The Summary

Judgment Order (likely amended to include an express injunction6) will,

if affirmed, require every clerk in Colorado to issue same-sex marriage

licenses. The naming of the Denver Clerk, but not the Boulder Clerk, is

therefore a formality and will not undermine the statewide binding

effect of an injunction against the State. Indeed, since the Boulder

Clerk will be governed by a final decision on the merits in Brinkman

(this cannot be seriously doubted) it makes no sense to treat Boulder’s

actions as entirely distinct in the interim.

Because the Brinkman appeal will resolve, finally and for the entire

State, the question of same-sex marriage licenses being issued, the

Boulder clerk’s unilateral actions are undermining the effectiveness and

fairness of the stay entered in that case. The irreparable harm brought

forth by the State to justify the stay remains unabated. (Marriage

6 See Unopposed Rule 59 Amendment pending before Brinkman trial court (“Consistent with this ruling, and subject to the stay entered in this Order, the State of Colorado, the Clerk and Recorder for the City and County of Denver, and the Clerk and Recorder of Adams County are enjoined … to issue marriage licenses and marriage certificates to couples who, but for their gender, satisfy all of the requirements for marriage under Colorado law.”) (emphasis added). Ex. 6.

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licenses have statewide affect and can be obtained regardless of county

residence.) With the Boulder Clerk empowered to defy state law by the

courts below the preservation of the status quo has been substantially

undermined, if not defeated altogether.

The Boulder Clerk alone has refused to follow Colorado’s still-valid

laws. If a stay is not granted as to the Boulder Clerk, the State is hard

pressed to understand upon what legal basis the Court would justify

upholding the Brinkman stay while not issuing a like order for the

Boulder Clerk. The orderly judicial process and rule of law demand that

the Boulder Clerk be subject to the same limits as the Denver Clerk,

pending a final decision on the merits regarding same-sex marriage in

Colorado.

2. This Court has broad authority to issue a writ in this case.

This Court has the authority to require public officials to perform

duties “required by law or to abstain from the exercise of power without

lawful authority.” People ex rel. Graves v. Dist. Court of Second Judicial

Dist., 37 Colo. 443, 455, 86 P. 87, 90 (1906) (quoting Attorney General v.

Blossom, 1 Wis. 317 (1853)); see also People ex rel. Salazar v. Davidson,

79 P.3d 1221, 1227-28 (Colo. 2003); C.A.R. 21(a)(2). The writs listed in

art. VI, § 3 are high prerogative writs at common law and can be

employed “in proceedings which involve the sovereignty of the state, its

prerogatives or franchises or the liberty of its citizens.” Graves, 37 Colo.

at 460, 86 P. at 92.

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This Court will exercise its original power in cases that involve “the

civil rights of the sovereign power of a state, vitally affecting its

character and the proper administration of the government itself, in

which the whole people and every individual member of the community

has a direct, immediate, and most sacred interest, when the exercise of

a public right or a public controversy is the subject matter of

controversy.” People ex rel. Miller v. Tool, 35 Colo. 225, 241-42, 86 P.

224, 229 (1905). “When a case presents an issue of a public nature that

‘affects the whole state, or its government, … then unquestionably it is

the duty of (the Court) to assume original jurisdiction and to issue such

writs as it is empowered to do for the purpose of giving the relief

demanded.’” State ex rel. Norton v. Bd. of County Comm’rs of Mesa

County, 897 P.2d 788, 791 (Colo. 1995) (quoting People v. Kenehan, 55

Colo. 589, 603, 136 P. 1037, 1038 (1913)).

While Colo. Const. art. VI, § 3 does not require specifying the form of

the writ requested, the nature of the relief sought here is akin to a writ

of injunction or prohibition against issuing licenses contrary to law and

a writ of mandamus requiring compliance. Cf Bd. of County Comm’rs of

Mesa County, 897 P.2d at 791 (standards governing writ of mandamus:

the State must show: (1) it is has a clear right to the relief sought, (2)

the respondent has a clear duty to perform the act requested, and (3)

there is no other available remedy.) Our common law has long

recognized that it is appropriate for the Attorney General to petition

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this court to enjoin public officials from acting contrary to law. See

People ex rel. Salazar v. Davidson, 79 P.3d at 1231 (discussing the

Attorney General’s common law powers to challenge public officials’

actions).

A writ in this instance would be akin to injunctive relief. 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), aff’d, 203 F.3d 738

(10th Cir. 2000) (same factors). 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 Ass’n, 135 Colo. 398, 409-10, 312

P.2d 998, 1003 (1957); see also Port of New York Auth. v. City of

Newark, 85 A.2d 815, 818-19 (N.J. Sup. Ct 1952).

3. The same reasons favoring a stay in Brinkman apply here.

An order from this Court 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 questions

about constitutional rights in an orderly manner. Clerks lack the legal

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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. Two lower

courts have now refused to properly remedy this situation.

A. The status quo should be preserved.

This Court should issue a writ to preserve the status quo in Colorado

while the weighty and important questions of constitutional law and

same-sex marriage are deliberated on the merits. Courts have long

understood they have the power to prevent it with simple orders to

preserve the status quo. See, e.g., Merrimack River Sav. Bk. v. Clay

Center, 219 U.S. 527, 536 (1911) (“That the circuit court, to the end that

the status quo might be preserved pending such appeal, had the power

to continue an injunction in force by virtue of its inherent equity power,

is not doubtful.”) Ajax Gold Mining Co. v. Triumph Gold Mining Co., 69

P. 523, 524 (Colo. 1902) (“Where an appeal has in good faith been

perfected, we assume that trial courts will be liberal in allowing an

injunction to preserve the status quo, when, if awarded, the appellees

can be protected against all loss by a sufficient bond, and when, if

refused, the very object of the appeal would be thwarted.”).

An order in this case could simply mirror the stay issued in

Brinkman without prejudicing the eventual decision on the merits. See

Monatt v. Pioneer Astro Indus., 592 P.2d 1352, 1354 (Colo. App. 1979)

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(“A stay does not adjudicate rights; it merely preserves the status

quo.”); Valley Fed. Sav. & Loan Ass’n. v. Aspen Accommodations, 716

P.2d 483, 484 (Colo. App. 1986) (“If a party desires to maintain the

status quo pending appeal he may … seek … a stay.”). Indeed, absent a

writ in this case, the Stay issued in Brinkman to preserve the status

quo will be made a nullity.

B. County clerks do not have the authority to issue licenses that do not comply with state law.

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

is “one which the person performs in 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 (e.g., an individual is under age, or

the couple is not comprised of one man and one woman), County Clerks

must not issue a marriage license. Clerks are authorized to issue

marriage licenses by state law. They are not authorized to pick and

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choose which state laws governing that delegated authority they will

abide by.

Until this Court or the United States Supreme Court finally resolves

the question, Colorado’s Marriage Laws remain in effect. Whether

Colorado’s marriage limitations will survive Constitutional scrutiny in

the final analysis is highly in doubt. But until we reach that final

analysis, the clerks’ actions must be based on the current state of the

law, not what it may be in the future. See Beedle v. Wilson, 422 F.3d

1059, 1069 (10th Cir. 2005) (right violated must be established at the

time of the defendant's actions). See Ex. 5 (Hall Order – finding State

satisfied likelihood of success on the merits based on current law).

Thus, other courts, even those that end up ruling in favor of same-

sex marriage, recognize that until those laws are repealed or overturned

by final court action, local officials have no authority to ignore them. See

Lockyer v. City and County of San Francisco, 95 P.3d 459, 467 (Cal.

2004) (“Pending our determination of these matters, we directed the

officials to enforce the existing marriage statutes and refrain from

issuing marriage licenses or certificates not authorized by such

provisions.”); Dep’t of Health v. Hanes, 78 A.3d 676, 692 (Pa. Commw.

Ct. 2013).

C. Clerks’ ignoring state law prior to judicial rulings causes irreparable harm and is against the public interest.

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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 the Brinkman trial

court. Judge Crabtree 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.7 See also Ex. 4 at 46. The same holds true for federal district

courts in Oklahoma, Virginia, Kentucky, Texas, Ohio, and Wisconsin.8 7 Herbert v. Kitchen, 134 S.Ct. 893 (U.S. Jan. 6, 2014) (stay pending appeal granted); Herbert v. Evans, No. 14A65 (U.S. July 18, 2014) (stay pending appeal granted); Kitchen v. Herbert, No. 13-4178, slip op. 64-65 (10th Cir. June 25, 2014) (same); Bishop v. Smith, Nos. 14-5003, 5006 slip op (10th Cir. July 18, 2014) (stayed pending appeal); Latta v. Otter, No. 14-35420 (9th Cir. May 20, 2014) (Idaho case - same); DeBoer v. Snyder, No. 14-1341 (6th Cir. Mar. 25, 2014) (Michigan case - same); see also Tanco 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 court’s order until this case is reviewed on appeal.”); Baskin v. Bogan, No. 14-2386 (7th Cir. June 27, 2014) (Indiana case - granting stay pending appeal). 8 District 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 interpret Geiger as undermining the Court’s order in

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Since this Court deliberated on the Brinkman Rule 8 motion, in fact,

additional courts have issued stays in marriage cases – making the

precedent even stronger in favor of a stay. See n.7.

Permitting one clerk 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. There are at least five types of harm that

letting this lone clerk’s actions go unchecked will cause.

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

rejecting duly enacted laws. See 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. 4 at 47.

Second, the harm caused by the confusion the clerk’s 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

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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Crabtree 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 (emphasis added).

Third, same-sex marriage licenses issued prematurely cannot be

isolated, as Judge Hartman seemed to hope. 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 or…a

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 report…with 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 month…such clerk and recorder shall

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

registrar…shall register the statistical event described therein…and

shall place the same…in the permanent files of the office.”).

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So whatever licenses Clerk Hall submits 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, Clerk Hall’s 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 driver’s 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

insurance coverage and benefits; and (6) establishing the existence of a

legal marriage in dissolution proceedings for purposes of spousal

support and/or maintenance, child support, the division of marital

assets; and the custody of minor children. In short, because the

legalization of marriage turns on the performance of ministerial acts by

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both State and county officials, the single County Clerk’s issuance of

invalid marriage licenses sends ripples of harm throughout our society

that cannot be undone by the State either easily or with absolute legal

certainty.

Fifth, if this Court refuses to use its broad powers, see C.A.R. 21,

Colo. Const. art. VI, § 3, to ensure that government officials carry out

their ministerial duties while controversial litigation is ongoing, it will

provide perverse and dangerous incentives. Clerks, like the Pueblo

Clerk, who previously understood this Court’s stay in Brinkman to

indicate that clerks should not prematurely issue same-sex marriage

licenses may well take a denial of relief in this case as a strong signal

that clerks can or should issue same-sex marriage licenses. Denial of

relief would, in general, affirm that state officials can ignore laws they

personally find disagreeable. What about a sheriff who believes limits

on felons or minors obtaining a concealed carry permit violates the right

to bear arms? A DMV clerk who does not believe undocumented

immigrants are entitled to a driver’s license? Both would be encouraged

to put their personal opinions above their duties to follow the law

should this Court decline to act.

D. The public interest overwhelmingly favors a writ.

Each day that one clerk continues to issue same-sex marriage

licenses – and publicly declare those licenses’ validity, despite the State

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Marriage Laws and the Attorney General’s statements to the contrary –

greater social and legal chaos ensues because the public is left confused

and uncertain about the legal validity of such marriages and the role of

clerks versus the role of the courts or other government officials in

determining whether to enforce state law.9 This undermines

Coloradans’ confidence in their government diminishes in view of the

fact that, as public officers, County Clerks are refusing to abide by and

enforce still-valid Colorado laws.

The public confidence is also irreparably undermined by the fact

that, as public officers, County Clerks who issue marriage licenses to

same-sex couples are issuing false certificates, in further violation of

Colorado law. See C.R.S. § 18-8-406 (stating that “a person commits a

class 6 felony, if, being a public servant authorized by law to make and

issue official certificates or other official written instruments, he makes

and issues such an instrument containing a statement which he knows

to be false.”); see also People v. Buckallew, 848 P.2d 904 (Colo. 1993)

(concerning the statute’s application to county officials).

This is not to ignore the harms to couples who, if the State is wrong

on the ultimate constitutional merits, have been denied the right to a

government marriage certificate. One can understand and sympathize

with the desire to shortcut the normal processes and get that certificate,

9 See http://www.thedenverchannel.com/news/local-news/marriage-licenses-for-same-sex-couples-still-in-question

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even if it comes with the disclaimer or cloud of legal uncertainty. But

that is not enough to overcome the reasons that favor the Court’s

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 merits, that will not mean that prematurely issued

certificates will be validated. See Lockyer, 95 P.3d at 496-97

(“[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.”).

The effect of the Respondent Clerk’s actions and the litigation below

is that the State itself is being required to recognize as legal these

certificates issued contrary to current law. That may well be the effect

of a final judicial decision on the merits (Brinkman); but that inherently

judicial power to declare the state’s laws unconstitutional, Colorado

Gen. Assembly v. Lamm, 704 P.2d 1371, 1379 (Colo. 1985) (noting that

the “interpretation of the constitution is a function at the very core of

the judicial role”), should not be wielded by county clerks. See Colo.

Const. art. VI, § 1 (“the judicial branch of Colorado government is

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empowered to construe the constitution’s meaning”); Bd. of County

Comm’rs v. Vail Assoc., 19 P.3d 1263, 1272 (Colo. 2001). That some

lower courts are allowing that to occur while others do not only

highlights the confusion that exists today.

Again, the relief requested in this motion will not decide the merits

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

Colorado’s 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 in Kitchen v. Herbert, or by this Court in Brinkman (subject to

petitions to the U.S. Supreme Court by the loser). 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.

Everywhere – except a single county in Colorado – the common

judicial tool of issuing a stay pending final resolution has been effective

in preventing state clerks from issuing marriage licenses that may not

be valid. In fact, clerks in Indiana, Michigan, Wisconsin and Utah had

issued marriage licenses before a stay was granted, but ceased once a

stay was issued. Mot. at n.6 (citing cases). The Denver Clerk and Pueblo

Clerk in Colorado were issuing same-sex marriage licenses prior to this

Court’s stay in Brinkman. Only the Respondent Clerk has ignored the

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legal effect of a stay and acted to nullify state law without legal

authority.

CONCLUSION

The Attorney General recognizes that this is an extraordinary

request, but there is no question this is an extraordinary situation. The

broad powers of Article VI and Rule 21 exist for the rare and

exceptional circumstances such as this. See Salazar v. Davidson, 79

P.3d 1221, 1227-28 (Colo. 2003). The question before this Court is

simple: should a single county clerk issue same-sex marriage licenses

before the federal constitutional question has been settled? No.

Uniformity of Colorado law and basic fairness demand as much.

Respectfully submitted this 27th day of July, 2014. JOHN W. SUTHERS Attorney General

s/ Michael Francisco MICHAEL FRANCISCO* Assistant Solicitor General Attorneys for Plaintiff-Appellant

*Counsel of Record

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CERTIFICATE OF SERVICE

This is to certify that I have duly served the foregoing PETITION FOR RELIEF PURSUANT TO C.A.R. 21 upon the following parties or their counsel electronically via ICCES, or via electronic mail, at Denver, Colorado this 27th day of July, 2014, addressed as follows: David E. Hughes M. Brooke McKinley BOULDER COUNTY ATTORNEY’S OFFICE P.O. Box 471 Boulder, Colorado 80306

s/Michael Francisco