Appellate Case: 13-4178

Document: 01019208848

Date Filed: 02/26/2014

Page: 1

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT DEREK KITCHEN, individually; MOUDI SBEITY, individually; KAREN ARCHER, individually; KATE CALL, individually; LAURIE WOOD, individually; and KODY PARTRIDGE, individually, No. 13-4178 Plaintiffs - Appellees, v. GARY R. HERBERT, in his official capacity as Governor of Utah, and SEAN D. REYES, in his official capacity as Attorney General of Utah, Defendants Appellants, and SHERRIE SWENSEN, in her official capacity as Clerk of Salt Lake County. Defendant. DEFENDANTS-APPELLANTS MOTION TO EXTEND TIME TO FILE, AND EXCEED WORD COUNT IN, THEIR REPLY BRIEF

Docket Reference Number: [10152813]

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Date Filed: 02/26/2014

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Defendants-Appellants Gary R. Herbert, in his official capacity as Governor of Utah, and Sean D. Reyes, in his official capacity as Attorney General of Utah (collectively State Defendants), request an additional 7 days to file their reply brief, and permission to use up to an additional 5,000 words in that brief. See 10th Cir. R. 27.4 and 28.3. The extra time and words are necessary to allow State Defendants a reasonable and fair opportunity to reply to the Plaintiffs lengthy response brief, and to respond as needed to the numerous amicus briefs that have been and will likely be filed in support of the Plaintiffs. Plaintiffs do not oppose either request. BACKGROUND In part because of the importance of the issues on appeal and the need to adequately brief them, the State Defendants previously requested additional time to file their opening brief, and the Court extended the deadline by 7 days. The Court also allowed both sides to file briefs exceeding the word limits by up to 10,000 wordsfor a total of 24,000 words each. A week after State Defendants filed their overlength (21,745 words) opening brief, 28 briefs were filed by amici curiae. Plaintiffs 1

Appellate Case: 13-4178

Document: 01019208848

Date Filed: 02/26/2014

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filed their overlength (23,984 words) response brief on February 25, 2014. It is expected that numerous amici curiae will file briefs by the March 4, 2014 deadline for briefs supporting the Plaintiffs. Fed. R. App. P. 29(e) (amicus curiae must file its brief no later than 7 days after the principal brief of the party being supported is filed). One such amicus brief has already been filed and several other amici have already made appearances. And more than a dozen amici briefs supporting same-sex marriage were filed in the pending Ninth Circuit appeal addressing these same issues. But the State Defendants reply brief is currently due the same dayMarch 4as the expected amici briefs. GROUNDS TO EXTEND TIME TO FILE REPLY BRIEF For two reasons, State Defendants need an additional 7 days to file their reply brief. 10th Cir. R. 27.4 (motion must establish that it will not be possible to file the brief on time, even if the party exercises due diligence and gives priority to preparing the brief).1

Courts January 21, 2014 order setting the current briefing schedule did not announce any other standard governing requests for extension of time. State Defendants therefore refer to 10th Cir. R. 27.4. But the reasons State Defendants explain for the requested extension would also satisfy the extraordinary circumstances standard the Court applied to any extensions of the previous briefing schedule set forth in its December 30, 2013 order.
1

The

Appellate Case: 13-4178

Document: 01019208848

Date Filed: 02/26/2014

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First, as the briefing schedule now stands, both State Defendants reply brief and the numerous expected amici curiae briefs supporting Plaintiffs are due on the same day. This means that, absent an extension, the State Defendants will be unable to respond in writing to any material arguments raised in the amici briefs supporting Plaintiffs and the district courts decision. In contrast, both the Plaintiffs and their amici have had at least two weeks to review and respond to the amicus briefs supporting State Defendants. Given the importance of the issues presented on appeal, a short 7-day extension is necessary to allow State Defendants sufficient time to review and respond as needed to the myriad amicus briefs likely to be filed in support of Plaintiffs. Granting the extension now will also avoid the inefficiency of (1) State Defendants having to later request permission to file a separate brief responding to Plaintiffs amici and (2) this Court having to address such a motion and then, if the motion is granted, having to review two reply briefs from the State Defendants. By avoiding both of those outcomes, the present request seeks to avoid the resulting waste of State and judicial resources. Second, the Plaintiffs brief alone contains 23,984 words, as 3

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allowed by the Courts order, and cites to dozens of cases along with statutes and other sources. Again, given the constitutional and societal importance of the issues being argued, State Defendants cannot reasonably review Plaintiffs arguments and the legal and other sources cited in support thereof, and draft an appropriately substantive reply within the currently allotted 7 days. An additional 7 days to reply is therefore warranted. Finally, a 7-day extension for the reply brief will not affect the Courts ability to hear oral argument on April 10, 2014. GROUNDS TO EXCEED WORD COUNT IN REPLY BRIEF Compelling and extraordinary circumstances also justify the filing of a reply brief exceeding the current limit of 7,000 words. 10th Cir. R. 28.3 (Motions to exceed the word count will be denied unless extraordinary and compelling circumstances can be shown.). Once again, considering the importance of the issues at stake and the unavoidably lengthy citations to vast amounts of social science studies supporting State Defendants case, the Court allowed State Defendants to file an opening brief up to 10,000 words longer than normal. The Court afforded the Plaintiffs the same opportunity, and 4

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Plaintiffs response brief used almost 24,000 words. State Defendants require additional space to reply to the Plaintiffs lengthy response. Indeed, the same extraordinary and compelling circumstances that justified the parties overlength primary briefs likewise support the State Defendants request for up to an additional 5,000 words in their reply brief. Moreover, the present request would merely allow the reply brief to take up to 12,000 wordsone-half the allowed length of the parties principal briefswhich is consistent with the usual practice prescribed by the federal rules. Fed. R. App. P. 32(a)(7)(B)(ii) (A reply brief is acceptable if it contains no more than half of the type-volume specified for principal briefs). By contrast, limiting State Defendants to the currently allowed 7,000 words would cap their reply at less than onethird the length of Plaintiffs responsenot to mention the hundreds of pages likely to be submitted by their supporting amici. WHY THIS REQUEST COULD NOT BE MADE EARLIER Finally, State Defendants realistically could not have made this request earlier. 10th Cir. R. 28.3 (A motion [to exceed word count] filed within 14 days of the briefs due date must show why earlier filing was 5

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not possible.). As a practical matter, State Defendants could not have requested to exceed the word count in their reply before first reviewing the Plaintiffs response brief, which was received late last nightand a mere one week before the reply brief is currently due. State Defendants filed this motion as soon as reasonably possible after receiving Plaintiffs response. CONCLUSION For the foregoing reasons, State Defendants respectfully request an additional 7 days to file, and permission to use up to an additional 5,000 words in, their reply brief. Respectfully submitted, s/ Gene Schaerr_____________ GENE SCHAERR Special Assistant Utah Attorney General BRIAN L. TARBET Chief Deputy Utah Attorney General STANFORD E. PURSER PHILIP S. LOTT Assistant Utah Attorneys General P.O. Box 140856 160 East 300 South Salt Lake City, Utah 84114-0856 801-366-0100 (phone) gschaerr@gmail.com 6

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Date Filed: 02/26/2014

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ECF CERTIFICATIONS Pursuant to Section II(I) of the Courts CM/ECF Users Manual, the undersigned certifies that: 1. all required privacy redactions have been made; 2. hard copies of the foregoing motion required to be submitted to the clerks office are exact copies of the brief as filed via ECF; and 3. the document filed via ECF was scanned for viruses with the most recent version of Microsoft Security Essentials v. 2.1.111.6.0, and according to the program is free of viruses. s/ Gene Schaerr_____________

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CERTIFICATE OF SERVICE I hereby certify that on the 26th of February, 2014, a true, correct and complete copy of the foregoing Defendants-Appellants Motion to Extend Time to File, and Exceed Word Count in, Their Reply Brief was filed with the Court and served on the following via the Courts ECF system: Peggy A. Tomsic tomsic@mgplaw.com James E. Magleby magleby@mgplaw.com Jennifer Fraser Parrish parrish@mgplaw.com MAGLEBY & GREENWOOD, P.C. 170 South Main Street, Suite 850 Salt Lake City, UT 84101 Kathryn D. Kendell kkendall@nclrights.org Shannon P. Minter sminter@nclrights.org David C. Codell dcodell@nclrights.org National Center for Lesbian Rights 870 Market St., Ste. 370 San Francisco, CA 94102 Ralph Chamness rchamness@slco.org Darcy M. Goddard dgoddard@slco.org Salt Lake County District Attorneys 2001 South State, S3700 Salt Lake City, UT 84190 s/ Gene Schaerr_____________