12-17668 #104
TRANSCRIPT
-
8/13/2019 12-17668 #104
1/9
Case No . 12-17668
UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT
BEVERLY SEVCIK, et al. ,
Plaint iffs-Appellan ts
v.
GOVERNOR BRIAN SANDOVAL, et al.,
efendants -Appellees and
COAL IT I ON FOR THE PROTECTION OF MARRIAGE,
Intervenor -Defenda nt-Appellee.
On Appea l fr om the Un i ted States Di s t rict CourtFor the District of Nevada
Case No. 2:12 -CV -00578-RCJ-PALThe Honorable Robert C. Jones, District Jud ge
DEFENDANTS-APPELLEES JOINT MOTION FOR EXTENSION OF TIMETO FILE RESPONSE BRIEFS and SUPPORTING DECLARATION
Monte Neil StewartStewart Taylor MorrisPLLC12550 W. Explorer Drive,Suite 100Boise, ID 83713Tel: (208) 345-3333For Coalition for theProtection of Marriage
Cather ine Cortez MastoAttorney GeneralC. Wayne HowleSolicitor General100 North Carson StreetCa1son City, NV 89701Tel: (775) 684 1227For Governor Sandoval
Neil A. RombardoDi strict AttorneyRand al R MunnChi ef Deputy District A tty885 E. Musser StreetSuite 2030Carson City, NV 89701Tel: (775) 887-2010For Clerk- Re corder Glover
Case: 12-17668 12/04/2013 ID: 8888706 DktEntry: 104 Page: 1 of 9
-
8/13/2019 12-17668 #104
2/9
-
8/13/2019 12-17668 #104
3/9
PROCEDUR L B CKGROUND
Plaintiffs-Appellants filed suit in the U.S. District Court for the District o f Nevada on
AprillO, 2012, seeking a declaration that their exclusion from marriage based on their sexual
orientation and their sex violated the Fourteenth Amendment. Plaintiffs-Appellants sought t
permanently enjoin Defendants-Appellees Govemor Brian Sandoval and three county clerks, all
named in their official capacity, from denying same-sex couples (i) access to marriage, or (ii) for
those couples who validly have married in another jurisdiction, recognition of their marriages.
The Coalition for the Protection o f Marriage, a Nevada advocacy group that campaigned for the
passage ofNevada s state constitutional amendment preserving Nevada s definition o f marriage ,
was permitted to intervene as a Defendant-Intervenor.
On November 26, 2012, the District Court granted in part a motion to dismiss, granted
summary judgment for Defendants, and denied Plaintiffs motion for summary judgment, thus
upholding Nevada s marriage laws defining marriage . Plaintiffs-Appellants noticed this appeal
on December 3, 2012.
This case reached this Court in a posture similar to and at about the same time as the
Hawai i same-sex marriage case, Jackson v Abercrombie No. 12-16995. Plaintiffs-Appellants
filed a motion on December 11, 2012, asking the Court to (1) assign this case and Jackson to the
same merits panel and se t them for argument on the same day; (2) conform briefmg in this case
to the schedule in Jackson; and (3) deem any amicus brief filed in either case as having been
filed in both. (Dkt. 7.) On December 12, 2012, the Clerk issued an order construing Plaintiffs
Appellants request as a motion to assign this case and Jackson to the same merits panel. (Dkt.
8.) On January 7, 2013, the Clerk granted Plaintiffs-Appellants motion to have the cases heard
before the same merits panel. (Dkt. 11.) Based on the Supreme Court s grant o f certiorari n
3
Case: 12-17668 12/04/2013 ID: 8888706 DktEntry: 104 Page: 3 of 9
-
8/13/2019 12-17668 #104
4/9
United States v. Windsor, 133 S.Ct. 2675 (2013), and Hollingsworth v. Perry, 133 S.Ct. 2652
(20 13), the Clerk stayed both this case and Jackson Wltil April 1 2013, and set the due date for
opening briefs for May 1, 2013. (Dkt. 11.) On January 24 2013 the Clerk issued an order
providing that amicus curiae briefs could be filed jointly in both cases. (Dkt. 12.)
A party in Jackson renewed its request for a stay in both Jackson and this case on March
19,2013. (Dkt. 27, No. 12-16995). The Clerk granted the request on March 26,2013, staying
both cases until July 18 2013 and setting August 19, 2013 as the due date for opening briefs.
(Dkt. 13.) On June 26, 2013, the Supreme Court issued decisions in Windsor and Hollingsworth.
Parties in both this case and Jackson submitted streamlined 30-day extension requests for
opening briefs, and the Clerk extended the due date in both cases to September 18, 2013. (Dkt.
15; Dkt. 30, 32, No. 12-16995.)
On August 20, 2013, the Plaintiffs-Appellants in Jackson and Governor Abercrombie
moved the Court for a 30-day extension for opening briefs in both Jackson and this case. (Dkt.
33, No. 12-16995.) The request was based on the likelihood that the Hawai i legislature might
convene for a special session to consider legislation that would allow same-sex couples to marry
in the state and thereby moot the appeal in Jackson. ( d. at 1, 4.) As the motion indicated, all
parties in Jackson and this case had been consulted for their positions on the request for
additional time in both cases, and no party objected. Id. at 5-6.) On August 21, 2013, the Clerk
extended the deadline for opening briefs n Jackson to October 18, 2013. (Dkt. 34, No. 12-
16995.) Plaintiffs-Appellants counsel in this case received clarification from the Clerk s Office
the same day that the extension request must be filed in this case as well and accordingly
4
Case: 12-17668 12/04/2013 ID: 8888706 DktEntry: 104 Page: 4 of 9
-
8/13/2019 12-17668 #104
5/9
submitted a motion for a parallel extension of their opening brief due date to October 18, 2013.
The Clerk entered an order granting that motion. (Dkt. 18.) 1
On October 18) 2013, P l a i n t i f f s ~ p p e l l a n t sfiled their 26,500-word opening brief. (Dkt.
20-3.) By October 25,2013, seventeen amici curiae had filed briefs in their support, totaling
some 109,540 words. (Dkt 21, 22,24-32, 36-41.)
e f e n d a n t s ~Appellees made their respective streamlined requests for a 30-day extension
on November 5 and 6, 2013. (Dkt. 96, 98, 100.) The Clerk granted those (Dkt. 97, 99, 102),
resulting in the current December 18, 2013, deadline for the response briefs.
RGUMENT ND REQUEST FOR RELIEF
This case is of large public importance and, consequently, is the subject of an
extraordinarily large opening brief(26,500 words) and seventeen amicus curiae briefs totaling
109,540 words. The issues extend beyond bare issues oflegal doctrine to a wide range o f public
policies and social concerns. To adequately address the issues and arguments massively briefed
on the l a i n t i f f s ~Appellants' side, the Defendants -Appe llees need more time. The additional
time is warranted because, in a case of this nature, the response briefs should be built on a careful
analysis of the wide range of mportant arguments advanced by the other side, and this Court will
be much better served i f the response briefs are of that nature.
In this context, we note three important facts. One, the Defendant s-Appellees' briefing
time was adversely impacted by the Thanksgiving holiday and will be adversely impacted by the
onset of the December holidays. Two, even with the requested extension, there will still be a
Because of new Hawai'i legislation, the Clerk of his Court on November 26,2013, entered an
order giving the ackson appellants 2 days to move for voluntary dismissal ... or show causewhy [the appeal] should not be dismissed for lack of urisdiction, i.e. , because of mootness.(Dkt. 117.)
5
Case: 12-17668 12/04/2013 ID: 8888706 DktEntry: 104 Page: 5 of 9
-
8/13/2019 12-17668 #104
6/9
large disparity in the brief-writing time made available to each side; the time from the filing of
the docketing statement until the filing o f the opening brief and the supporting amicus curiae
briefs was more than ten months, while the time from the filing of the opening brief to the
requested January 17, 2014 , filing deadline for the response briefs is three months . Three, as
detailed in the next section, Plaintiffs-Appellants do not object to the requested extension.
OPPOSING COUNSEL S POSITION
On Monday, December 2 2013, the Coalition's counsel (Mr. Stewart) spoke by
telephone with the Plaintiffs-Appellants' counsel (Ms. Borelli) and requested her clients'
position on the propo sed extension o f time. By e-mail on Tuesday, December 3 , 2013, Ms.
Borelli responded: Plaintiffs consent to defendants' request for 30 additional days to file their
answering briefs, on the understanding that defendants will not seek any further extension for
their answering briefs absent exigent circumstances.
CONCLUSION
For the reasons stated above, Defendant s-Appellees respectfully request that this Court
grant them 30 additional days to file their response briefs, up to and including Friday, January
17, 2014.
DATE: December 4, 2013
Monte Neil StewartStewart Taylor MorrisPLLC
12550 W Explorer Drive,Suite 100Boise, ID 83713Tel: (208) 345-3333For Coalition for theProtection of Marriage
Respectfully submitted ,
Catherine Cor tez MastoAttorney GeneralC Wayne HowleSolicitor General100 North Carson StreetCarson City, NV 89701Tel: (775) 684-1227For Governor BrianSandoval
6
Neil A. RombardoDistrict AttorneyRandal R MunnChief Deputy DistrictAttorney885 E. Musser Stleet,Suite 2030Carson City, NV 89701Tel: (775) 887-2010For lan Glover CarsonCity Clerk-Recorder
Case: 12-17668 12/04/2013 ID: 8888706 DktEntry: 104 Page: 6 of 9
-
8/13/2019 12-17668 #104
7/9
DECL R TION OF MONTE NEIL STEW RT
I. Monte Neil Stewart, testify under penalty of perjury and of my own personal
knowledge that:
1 I am a lawyer admitted to practice before this Court and the courts of the states of
California, Nevada , Idaho, and Utah; a member of the Boise, Idaho law firm of Stewart
Taylor Morris PLLC; and lead counsel for Defendant-Appellee Coalition for the
Protection of Marriage. I provide this Declaration in support of the joint motion of all
Defendants-Appellees for n extension of time for the filing of the response briefs.
2. By consultation among defense counsel (Mr. Howle for Governor Sandoval, Mr. Munn
for Clerk-Recorder Glover, and me), we have determined a pressing need for an
additional 30 days for the preparation and filing of the response briefs, that is, until
January 17, 2014. This need arises from the realities that:
a. This case is of large public importance and, consequently, is the subject of an
extraordinarily large opening brief (26,500 words) and seventeen amicus curiae
briefs totaling 109,540 words. The issues extend beyond bare issues of legal
doctrine to a wide range of public policies and social concerns. To adequately
address the issues and arguments massively briefed on the Plaintiffs-Appellants
side, the Defendants-Appellees need more time. We believe that additional time
is warranted because, in a case o f this nature, the response briefs should be built
on a careful analysis of the wide range of mportant arguments advanced by the
other side, and, again in our view, this Court will be much better served if the
response briefs are of that nature.
Case: 12-17668 12/04/2013 ID: 8888706 DktEntry: 104 Page: 7 of 9
-
8/13/2019 12-17668 #104
8/9
b. The Defendants-Appellees' briefing time was adversely impacted by the
Thanksgiving holiday and will be adversely impacted by the onset of the
December holidays.
3. On Monday, December 2, 2013, I spoke y telephone with the Plaintiffs-Appellants'
counsel (Tara Borelli) and requested her clients' position on the proposed extension of
time. By e-mail on Tuesday, December 3, 2013, Ms. Borelli responded: Plaintiffs
consent to defendants' request for 30 additional days to file their answering briefs, on the
understanding that defendants will not seek any further extension for their answering
briefs absent exigent circwnstances.
Date: December 4 2013
Monte Neil Stewart
Case: 12-17668 12/04/2013 ID: 8888706 DktEntry: 104 Page: 8 of 9
-
8/13/2019 12-17668 #104
9/9
CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing with the Clerk o f he Court for the
United States Court o f Appeals for the Ninth Circuit by using the appellate CMIECF system on
Decemb er 4 2013.
Participants in the case who are registered CM/ECF users will be served by the appellate
CM/ECF system.
s Monte N. Stewart
Case: 12-17668 12/04/2013 ID: 8888706 DktEntry: 104 Page: 9 of 9