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10th Circuit sets 'expedited' schedule for appeal of Amendment 3

Appellate attorney predicts resolution could be reached by spring

Published: Monday, Aug. 31 2015 12:12 p.m. MDT

Utah has until the end of January to begin its defense of the state's constitutional Amendment 3, which defines marriage as the union of a man and a woman. (Shutterstock) Utah has until the end of January to begin its defense of the state's constitutional Amendment 3, which defines marriage as the union of a man and a woman. (Shutterstock)

SALT LAKE CITY — Utah has until the end of January to begin its defense of the state's constitutional Amendment 3, which defines marriage as the union of a man and a woman.

U.S. District Judge Robert Shelby struck down the voter-approved amendment on Dec. 20, finding that it violated the due process and equal protection clauses of the 14th Amendment to the U.S. Constitution. The state, in turn, filed a notice of appeal to the Denver-based 10th Circuit Court of Appeals, which outlined an "expedited" schedule for the appeal in an order issued Monday.

The state is to file its opening brief by Jan. 27. The response brief from attorneys for gay couple Derek Kitchen and Moudi Sbeity, and lesbian couples Laurie Wood and Kody Partridge, and Karen Archer and Kate Call, is due Feb. 18. Any reply from the state must be filed by Feb. 25.

"Requests for extension of time are very strongly discouraged and will be considered only under extraordinary circumstances," 10th Circuit Court Clerk Elisabeth Shumaker wrote.

The schedule was released as Attorney General Sean Reyes said outside counsel had been hired to seek a stay of the ruling from the U.S. Supreme Court. The state is also working to hire outside counsel to bolster its full appeal to the 10th Circuit and potentially the Supreme Court — an effort that could cost as much as $2 million.

More than 700 marriage licenses were issued in Utah to mostly gay couples in the first few days after Shelby's ruling. Utah immediately sought a stay from Shelby and later from the 10th Circuit Court of Appeals asking that the marriages be halted pending the appeal. Both courts denied the request.

Reyes said the next step, a motion for a stay from the U.S. Supreme Court, could be filed late Monday or Tuesday.

When that application for a stay is filed, it is anticipated that Justice Sonia Sotomayor will review the request, as she oversees the 10th Circuit. Appellate attorney Troy Booher said Sotomayor will have the option of sending the matter to the entire U.S. Supreme Court.

"And with this one, she probably would," Booher said Monday. "Even if she decided (herself), whoever lost would have the opportunity to go beyond just her … which is why with something like this — when it's this high-profile and there's this much at stake — she will most likely send it to the full court."

The high court typically reviews applications for stays in cases it is planning to hear, he said. It's not uncommon for justices to receive requests pertaining to cases pending in lower courts.

Booher said the 10th Circuit found the "middle ground" by expediting the appeal.

"They're not going to stay (Shelby's) ruling, but they're also not going to take the normal, nearly a year of what it would take to handle an appeal," he said. "They're doing it really fast."

Given the schedule outlined Monday, there could be a resolution to the appeal by late spring, Booher said. But the expedited appeal could also mean the state is less likely to get a stay from the U.S. Supreme Court because a resolution is on a fast track, and "most of the harm the state points to has already occurred," Booher said.

"What's another two months when anybody who wanted to get married immediately probably already did anyway?" he said.

As for the appeal, Booher explained that whoever loses has the option of asking for a review of the decision, which will likely come from a three-judge panel, by all of the 10th Circuit Court judges. They can also take an appeal of the decision straight to the U.S. Supreme Court.

"There's some strategic decisions to be made," Booher said.

It might make more sense, he argued, to go straight to the high court and hope the case will make it on its October to June calendar because a decision from the U.S. Supreme Court would override any 10th Circuit ruling.

"You've got to convince (the U.S. Supreme Court) to take it," Booher said. "Most likely they would, but there's no guarantee. They had the chance in the California Prop. 8 case to decide it and dismissed it for the lack of standing and left it an open question. … But with so many state and federal judges deciding this the way they are, mostly likely the (U.S.) Supreme Court will want to decide this sooner or later."

Email: emorgan@deseretnews.com Twitter: DNewsCrimeTeam

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