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(701)
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
______________________________________________________________
DEREK KITCHEN, INDIVIDUALLY;
MOUDI SBEITY, INDIVIDUALLY;
KAREN ARCHER, INDIVIDUALLY; CASE NO. 2:13-CV-217
KATE CALL, INDIVIDUALLY;
LAURIE WOOD, INDIVIDUALLY; AND
KODY PARTRIDGE, INDIVIDUALLY,
PLAINTIFFS,
VS.
GARY R. HERBERT, IN HIS OFFICIAL
CAPACITY AS GOVERNOR OF UTAH; SALT LAKE CITY, UTAH
JOHN SWALLOW, IN HIS OFFICIAL AUGUST 27, 2013
CAPACITY AS ATTORNEY GENERAL OF
UTAH; AND SHERRIE SWENSEN, IN HER
OFFICIAL CAPACITY AS CLERK OF
SALT LAKE COUNTY,
DEFENDANTS.
______________________________________________________________
STATUS CONFERENCE
BEFORE THE HONORABLE ROBERT J. SHELBY
UNITED STATES DISTRICT COURT JUDGE
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Case 2:13-cv-00217-RJS Document 25 Filed 09/05/13 Page 1 of 52
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APPEARANCES:
FOR THE PLAINTIFFS:
MAGLEBY & GREENWOOD
BY: JAMES E. MAGLEBY, ESQ.
JENNIFER F. PARRISH, ESQ.
PEGGY A. TOMSIC, ESQ.
170 SOUTH MAIN STREET, SUITE 850
SALT LAKE CITY, UTAH 84101
(801) 359-9000
FOR DEFENDANTS HERBERT AND SWALLOW:
OFFICE OF THE UTAH ATTORNEY GENERAL
BY: PHILIP S. LOTT, ESQ.
STANFORD E. PURSER, ESQ.
160 EAST 300 SOUTH, SIXTH FLOOR
P.O. BOX 140856
SALT LAKE CITY, UTAH 84114
(801) 366-0100
SALT LAKE COUNTY DISTRICT ATTORNEY
BY: RALPH E. CHAMNESS, ESQ.
DARCY M. GODDARD, ESQ.
2001 SOUTH STATE STREET, ROOM S3700
SALT LAKE CITY, UTAH 84190
(385) 468-7700
COURT REPORTER:
RAYMOND P. FENLON
350 SOUTH MAIN STREET, #242
SALT LAKE CITY, UTAH 84101(801) 809-4634
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P-R-O-C-E-E-D-I-N-G-S
(1:51 P.M.)
THE COURT: GOOD AFTERNOON. WE'LL GO ON THE RECORD
IN CASE NUMBER 2:13-CV-217. THIS IS KITCHEN, ET AL. VERSUS
GARY HERBERT, ET AL. MY APOLOGIES TO ALL OF YOU TO KEEP YOU
WAITING FOR A FEW MOMENTS.
COUNSEL, I HAVE YOUR NAMES, BUT WHY DON'T YOU TAKE A
MOMENT AND ENTER YOUR APPEARANCES, IF YOU WOULD, PLEASE.
MR. MAGLEBY: YOUR HONOR, JIM MAGLEBY, PEGGY TOMSIC
AND JENNIFER PARRISH ON BEHALF OF THE PLAINTIFFS.
THE COURT: THANK YOU.
MR. LOTT: PHIL LOTT AND STAN PURSER ON BEHALF OF
THE STATE DEFENDANTS.
THE COURT: THANK YOU.
MS. GODDARD: AND DARCY GODDARD, SALT LAKE COUNTY,
ON BEHALF OF SALT LAKE COUNTY, SHERRIE SWENSEN.
MR. CHAMNESS: RALPH CHAMNESS ON BEHALF OF SALT LAKE
COUNTY (INAUDIBLE).
THE COURT: ON BEHALF OF SALT LAKE COUNTY --
MR. CHAMNESS: SHERRIE SWENSEN, THE CLERK.
THE COURT: RIGHT. THANK YOU VERY MUCH. ALL RIGHT.
WELCOME ALL OF YOU. THANK YOU. THANKS FOR BEING HERE. AND
THANK YOU ALSO FOR YOUR SUBMISSIONS. IT WAS ACTUALLY QUITE
HELPFUL TO GET A SENSE FOR WHERE YOU ALL ARE AND WHERE YOU
THINK WE'RE HEADED BEFORE WE MET TODAY. THOUGH I WILL ADMIT
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THAT I WAS AT LEAST A LITTLE INTRIGUED, IF NOT PUZZLED, THAT
YOUR RESPECTIVE POSITIONS SEEMED TO BE OPPOSITE OF WHAT I
INITIALLY EXPECTED I MIGHT HEAR FROM ALL OF YOU.
WE HAVE UNDERTAKEN A GOOD BIT OF RESEARCH SINCE WE
RECEIVED YOUR SUBMISSIONS. AND AS YOU ALL KNOW, AT LEAST AS
WELL AS WE DO AND PROBABLY BETTER, WE'RE NOT ALONE ON THIS
TRAIL. THERE ARE A NUMBER OF COURTS IN DIFFERENT
JURISDICTIONS THROUGHOUT THE COUNTRY AT DIFFERENT STAGES ALL
RIDING HERD IN THE SAME DIRECTION TRYING TO RESOLVE I THINK
THIS QUESTION AND QUESTIONS PRESENTED BY THIS SUIT.
WE'VE SEEN IN OUR VIEW WHAT SEEMS TO BE A FAIRLY UNIFORM
PRACTICE BY COURTS IN TERMS OF MANAGING THESE PROCEEDINGS.
THE STATE POINTED US, OF COURSE, TO NEVADA AND HAWAII AS
EXAMPLES THAT THE STATE URGES US TO FOLLOW. WE FOUND EXAMPLES
IN OTHER JURISDICTIONS AS WELL. AND IT WAS INTERESTING TO SEE
THE PRACTICE SEEMS TO BE IN MOST OF THESE CASES THAT THE
COURTS, IN FACT AND THE PARTIES ARE URGING THIS IN MOST EVERY
CASE THAT WE SAW, SOME INITIAL MOTION PRACTICE TO RESOLVE AND
NARROW THE SCOPE OF THE LEGAL ISSUES THAT REMAIN TO BE
RESOLVED AND TO DO THAT AT THE -- NEAR THE OUTSET OF THE
LITIGATION IN LIEU OF FACT DISCOVERY AT THE OUTSET. IN FACT
THAT SEEMS TO BE THE CLEAR TREND AND ESPECIALLY AFTER THE
WINDSOR DECISION FROM THE SUPREME COURT.
AND AS I REVIEWED THE PLAINTIFFS' SUBMISSION IN ADVANCE
OF THIS HEARING AND BEGAN TO THINK ABOUT WHAT THEY WERE
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ASKING -- WHAT THE PLAINTIFFS WERE SEEKING BY WAY OF
DISCOVERY, I BECAME MORE AND MORE CONVINCED IN ADVANCE OF OUR
HEARING TODAY OF A PATH THAT I THINK MAKES SENSE AND WHAT I'LL
PROPOSE, AND THEN OF COURSE WE'LL HEAR FROM ALL OF YOU.
BUT I'LL JUST NOTE THAT THE DISCOVERY THAT THE PLAINTIFFS
IDENTIFY IN THEIR SUBMISSION I THINK FOCUSES LARGELY ON A
NUMBER OF LEGAL ISSUES, INCLUDING FOR EXAMPLE THE LEVEL OF
SCRUTINY THAT WILL APPLY TO OUR REVIEW, WHETHER ANY OF THESE
PLAINTIFFS ARE MEMBERS OF A PROTECTED CLASS AND THE LIKE.
THOSE ARE LEGAL QUESTIONS THAT WILL BE ADDRESSED AND ARGUED OF
COURSE UNDER EXISTING PRECEDENT FROM THE TENTH CIRCUIT AND THE
SUPREME COURT.
TO THE EXTENT THAT THERE ARE REMAINING FACTUAL QUESTIONS,
AND THERE ARE A NUMBER OF ISSUES WHERE THERE ARE FACTUAL
QUESTIONS, INCLUDING WHETHER MARRIAGE HAS HAD A STABLE
DEFINITION ACROSS GENERATIONS, WHETHER ONLY OPPOSITE SEX
MARRIAGE CAN FURTHER INTERESTS IN PROCREATION AND THE LIKE,
THOSE ARE FACTS THAT ARE IN MY VIEW NOT NECESSARILY IN THE
POSSESSION OF THE STATE OF UTAH OR THE DEFENDANTS. I THINK
THAT IT SEEMS TO ME AT LEAST AT THE OUTSET THAT THE PLAINTIFFS
ARE LIKELY TO MAKE FEW, IF ANY, OF THEIR ARGUMENTS BASED ON
DEPOSITIONS OR INTERROGATORIES OR DISCOVERY RESPONSES THAT
THEY WOULD RECEIVE FROM THE DEFENDANTS.
IT SEEMS FAR MORE LIKELY TO ME THAT THIS COURSE WOULD
FOLLOW -- THIS CASE WOULD FOLLOW THE TRAJECTORY WE'VE SEEN IN
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SO MANY OTHERS WHERE THE PLAINTIFFS WOULD BE CITING TO
EVIDENCE PROVIDED BY SOCIOLOGISTS OR PSYCHOLOGISTS OR OTHER
EXPERTS, THINGS THAT I THINK ARE EXPERTS AND SUBJECTS THAT ARE
AVAILABLE TO THE PLAINTIFFS WHOLLY INDEPENDENT OF TRADITIONAL
DISCOVERY IN LITIGATION. AND I DON'T -- I DON'T SEE A NEED,
AT LEAST AT THE OUTSET, FOR DISCOVERY FROM THE DEFENDANTS ON
THOSE SUBJECTS.
MY VIEW IS THAT WE SHOULD CONSIDER A SCHEDULE FOR HEARING
ON CROSS-MOTIONS FOR SUMMARY JUDGMENT OR JUST -- JUST THE
STATE'S MOTION FOR SUMMARY JUDGMENT, IF THE STATE INTENDS TO
FILE AN EARLY MOTION. AND I DON'T SEE THAT THE PLAINTIFFS
WOULD SUFFER ANY PREJUDICE FROM RESOLVING THOSE MOTIONS EARLY
BECAUSE THOSE MOTIONS I THINK WILL DEFINE THE AREAS AND ISSUES
OF DISPUTE BETWEEN THE PARTIES AND WILL ASSIST US IN
IDENTIFYING WHAT FACTUAL AREAS, IF ANY, EXIST WHERE THERE IS
IN FACT A NEED FOR DISCOVERY FROM THE DEFENDANTS. AND THE
RESOLUTION OF THOSE MOTIONS WILL I THINK NARROW -- IT WILL
EITHER RESOLVE THE CASE OR NARROW THE ISSUES ON WHICH WE NEED
TO CONDUCT FACT DISCOVERY.
SO ON THE WHOLE, ON BALANCE, I THINK I'M QUITE INCLINED
TO FOLLOW THE OTHER JURISDICTIONS THAT ARE PROCEEDING ALONG
THIS PATH IN THIS CASE AND THEN GO FROM THERE. LET ME SAY
BEFORE I HEAR FROM THE PARTIES THAT IN NO WAY MEANS TO SUGGEST
THAT I'VE REACHED ANY SORT OF CONCLUSION ABOUT THE OUTCOME OF
THE ISSUES ON THE MERITS OR WHETHER THERE WILL BE A NEED FOR
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FACT DISCOVERY IN THIS CASE OR NOT FROM THE DEFENDANTS.
AND LET ME SAY THIS. THIS CASE WAS FILED IN MARCH, AND
I'M CERTAIN FROM THE PLAINTIFFS' PERSPECTIVE IT'S AN ISSUE
THAT THEY'VE BEEN WAITING TO HAVE THEIR DAY IN COURT ON FOR
YEARS. AND SO IF WE DO PROCEED IN THE MANNER THAT I'VE JUST
SUGGESTED, WE'LL DO SO EXPEDITIOUSLY SO THAT WE CAN GET THESE
ISSUES RESOLVED, GET THE MOTIONS RESOLVED. AND IN THE EVENT
WE ARE GOING TO HAVE DISCOVERY AND MOVE FORWARD TOWARDS A
TRIAL, WE CAN DO THAT ON A TIMELY BASIS.
AND WHEN I SAY EXPEDITIOUSLY, I DON'T EXACTLY MEAN WHAT
SOME OF THE OTHER COURTS HAVE DONE. I THINK IN THE HAWAII
COURT THE JUDGE THERE IMPOSED A TWO MONTH PERIOD FOR BRIEFING
SUMMARY JUDGMENT AND GETTING IN AND HAVING A HEARING. I DON'T
HAVE ANYTHING QUITE THAT CRAZY IN MIND, BUT I THINK WE SHOULD
MOVE BRISKLY.
SO THOSE ARE MY THOUGHTS. MR. MAGLEBY, THOSE THOUGHTS
LARGELY RUN COUNTER TO WHAT YOU'RE PROPOSING, SO LET ME INVITE
YOU TO ADDRESS THOSE IDEAS FIRST.
MR. MAGLEBY: THANK YOU, YOUR HONOR. SO LET ME SEE
WHERE I WANT TO START. I DON'T -- WE DON'T HAVE AN ISSUE WITH
THE STATE FILING A MOTION FOR SUMMARY JUDGMENT. IF THE STATE
WANTS TO FILE A MOTION FOR SUMMARY JUDGMENT, THEY CAN DO THAT.
IF THE STATE DETERMINES THAT IT WANTS TO FOREGO DISCOVERY
VIS-A-VIS OUR CLIENTS, IT CAN DO THAT. IF THE STATE IS SO
CONFIDENT THAT THE RATIONAL BASIS STANDARD OF REVIEW IS GOING
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TO APPLY FOR EXAMPLE ON THE EQUAL PROTECTION CLAIM AND IT DOES
NOT WANT TO SET FORTH ANY EXPERT TESTIMONY OR CONDUCT
DISCOVERY, IT CAN DO THAT.
HOWEVER, AS WE LOOK AT THESE ISSUES, WE ARE CERTAIN THAT
THERE ARE SOME ISSUES WHICH ARE GOING TO NEED TO BE RESOLVED
AS A MATTER OF FACT, AND THEY'RE GOING TO BE MATTERS FOR THE
COURT TO RESOLVE. AND WHAT WE DON'T WANT TO DO, AND THIS GOES
BACK TO WHAT YOU SAID ABOUT DOING THIS EXPEDITIOUSLY, DOING
THIS BRISKLY, IS HAVE A TWO TO THREE MONTH DELAY WHILE WE
BRIEF MOTIONS AND THE STATE AND THE COUNTY -- AND I THINK THE
COUNTY IS PROBABLY MORE ON THE SIDELINES SAYING, WELL, LOOK,
YOU DON'T GET TO DO ANY DISCOVERY.
IN RESPONSE TO THOSE MOTIONS, YOUR HONOR, THERE IS A GOOD
CHANCE, DEPENDING ON WHAT THE STATE SAYS, THAT WE MAY AGREE
THAT SOME OF THE ISSUES -- FOR EXAMPLE, IF THEY CONCEDE
CERTAIN THINGS, AS THEY HINT AT IN THEIR PAPERS BUT THEY DON'T
ACTUALLY COME RIGHT OUT AND SAY THAT THEY'RE GOING TO
STIPULATE OR AGREE TO CERTAIN OF THESE ISSUES, IF THEY
STIPULATE AND AGREE TO CERTAIN ISSUES, THEN OF COURSE WE COULD
FOREGO DISCOVERY ON THIS. BUT WHAT WE DON'T WANT TO DO IS
HAVE THIS DELAY.
AND SO WHAT WE'RE SAYING IS NOT, YOUR HONOR, THAT WE
SHOULDN'T DO BRIEFS WHENEVER THE STATE WANTS TO FILE THEM, AND
THEN WE'LL ASSESS WHETHER OR NOT, GIVEN WHAT THEY MAY OR MAY
NOT HAVE CONCEDED, FILE CROSS-MOTIONS. WHAT WE'RE SAYING IS
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THERE IS NO REASON TO DELAY DISCOVERY, AND WHAT WE OUGHT TO DO
IS TO PUT IN PLACE A SCHEDULE THAT ACCOMMODATES THE OUTCOME IF
THE STATE IS WRONG. BECAUSE, YOUR HONOR, I RECOGNIZE THAT
THEY'VE GOT THEIR POSITIONS, BUT WE'VE GOT OURS AS WELL. AND
WE HAVE CLIENTS, HUMAN BEINGS. THESE ARE VERY IMPORTANT
RIGHTS. AS YOU HAVE INDICATED, THEY'VE BEEN WAITING FOR A
LONG TIME TO HAVE THEIR DAY IN COURT. ONE OF OUR CLIENTS HAS
SOME HEALTH ISSUES WHICH DIRECTLY RELATE TO THE ISSUES IN THIS
CASE.
AND SO WHAT WE WOULD LIKE THE COURT TO DO IS SET A
SCHEDULE, AND THE STATE CAN FILE ITS BRIEF WHEN IT WANTS TO
FILE ITS BRIEF. I WOULD ACTUALLY PREFER IF THE STATE WOULD --
EXCUSE ME -- THE COURT WOULD MAKE THEM DO IT BY SAY OCTOBER
1ST, BUT I WASN'T GOING TO ASK FOR THAT TODAY. I WAS JUST
GOING TO SAY THEY CAN FILE THEIR BRIEF WHEN THEY FILE THEIR
BRIEF AND WE'RE ALLOWED TO DO DISCOVERY.
LET ME GIVE YOU SOME EXAMPLES OF SOME OF THE THINGS THAT
I THINK ARE NOT GOING TO BE A GIVEN IN THIS CASE, AND THEY
COME RIGHT OUT OF THE STATE'S BRIEF. THE STATE REFERS TO
QUOTE EXISTING AND READILY AVAILABLE HISTORICAL FACTS AS ONE
OF THE THINGS THAT THE COURT WILL LOOK AT.
MY QUESTION FOR THE STATE IS WILL YOU ACCEPT MY VIEW AND
MY CLIENTS' VIEW OF HISTORICAL FACTS OR ARE YOU GOING TO
DISAGREE WITH US? THE STATE SAYS THERE'S A SMALL NUMBER OF
MATERIAL ADJUDICATED FACTS WHICH ARE PROBABLY NOT DISPUTED.
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SO THEY'VE COME IN HERE AND ASKED THE COURT TO DENY MY CLIENTS
THE RIGHT TO MOVE THEIR CASE FORWARD BY HINTING THAT THEY
MIGHT STIPULATE TO CERTAIN FACTS BUT NOT TELLING US WHAT THEY
ARE.
THEY'VE SAID THAT A LEGISLATIVE FACT IS A QUESTION OF
SOCIAL FACTORS AND HAPPENINGS. AGAIN, WILL THE STATE AGREE TO
JIM MAGLEBY'S VIEW OF SOCIAL FACTORS AND HAPPENINGS OR THE
VIEW OF DEREK KITCHEN AND MY OTHER CLIENTS? I SUSPECT THEY
WILL NOT, AND I OUGHT NOT TO HAVE TO WAIT 90 DAYS TO FIGURE
THAT OUT.
LET ME GIVE ANOTHER EXAMPLE. LET'S TALK ABOUT DUE
PROCESS AND THE STRICT SCRUTINY ANALYSIS. PERHAPS WE CAN
RESOLVE ON MOTIONS WHETHER OR NOT SAME SEX MARRIAGE IS A
FUNDAMENTAL RIGHT. WHAT I DO KNOW IS THAT MARRIAGE IS A
FUNDAMENTAL RIGHT AND THE UNITED STATES SUPREME COURT HAS SAID
IT. I THINK THAT WILL BE EASILY RESOLVED IN OUR FAVOR. BUT
THEN THE STATE HAS TO COME FORWARD WITH A COMPELLING STATE
INTEREST. WHAT IS THAT STATE INTEREST? I THINK I'M ALLOWED
TO SERVE AN INTERROGATORY THAT SAYS TELL ME WHAT YOUR STATE
INTEREST IS SO THAT I KNOW WHAT IT IS FROM THE BEGINNING OF
THE CASE, AND IF AND WHEN I DEFEAT THE SUMMARY JUDGMENT MOTION
I KNOW WHETHER OR NOT I NEED TO DO DISCOVERY INTO THAT.
I'LL GIVE YOU AN EXAMPLE. ONE OF THE THINGS WE ALLEGED
IN OUR COMPLAINT IS THE VOTER PAMPHLET, THE BROCHURE THAT WAS
PASSED OUT WHEN AMENDMENT 3 WAS PROPOSED, HAD A LIST OF
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THINGS, AND ALBEIT IT WAS A BRIEF LIST, AND I WOULD SUGGEST TO
THE COURT A WHOLLY INADEQUATE LIST BUT A LIST NONETHELESS OF
THE REASONS WHY THE PROPONENTS OF THE AMENDMENT THOUGHT THAT
IT WAS A GOOD IDEA. THAT'S THE CLOSEST WE'VE COME TO SEEING
THE STATE ARTICULATE AN INTEREST. AND YOU KNOW WHAT THEY SAID
IN RESPONSE TO OUR COMPLAINT, THIS IS PARAGRAPH 29, THEY SAID
WE DISAGREE. THERE'S OTHER STUFF OUT THERE THAT MIGHT BE OUR
STATE COMPELLING STATE INTEREST.
THE OTHER THING I DON'T WANT TO HAVE HAPPEN IS THEY FILE
A SUMMARY JUDGMENT MOTION. THEY ADVANCE WHAT THEY SAY IS THE
STATE INTEREST. I DEFEAT THEM. THEY SUDDENLY COME UP WITH
SEVEN DIFFERENT NEW ONES. I SHOULD BE ABLE TO SERVE AN
INTERROGATORY THIS WEEK AND HAVE THEM ANSWER THAT SO THAT I
CAN WORK ON IT WHILE THEY WORK ON THEIR SUMMARY JUDGMENT
MOTION.
ANOTHER SET OF EXAMPLES UNDER THE EQUAL PROTECTION
HEIGHTENED SCRUTINY ANALYSIS, THERE'S FOUR FACTORS THE COURT
IS GOING TO ANALYZE: WHETHER THE GROUP THAT MY CLIENTS ARE A
PART OF HAVE SUFFERED A SIGNIFICANT HISTORY OF DISCRIMINATION;
WHETHER THE BASIS FOR THE DISCRIMINATION BEARS NO RELATION TO
THEIR ABILITY TO PERFORM OR CONTRIBUTE TO SOCIETY; WHETHER THE
BASIS FOR DISCRIMINATION IS BASED ON AN IMMUTABLE OR
DISTINGUISHING CHARACTERISTIC.
NOW, I WILL SAY THIS. IF THE STATE WILL CONCEDE THOSE,
THIS WILL GO A LOT FASTER. BUT, YOU KNOW, MY QUESTION TO
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MR. LOTT OR MR. PURSER WHEN THEY STAND UP HERE IS TELL ME ARE
YOU GOING TO CONCEDE THOSE THINGS? BECAUSE IF YOU'RE NOT
GOING TO CONCEDE THOSE THINGS, THEN THERE'S NO REASON THAT I
SHOULDN'T BE ALLOWED TO SERVE DISCOVERY TO FIND OUT WHAT THEY
ARE SO THAT I CAN GO DO WHAT YOUR HONOR HAS CORRECTLY FORECAST
AS WHAT IS LIKELY, WHICH IS THERE'S GOING TO BE SOME EXPERT
TESTIMONY ON THIS. AND I WOULD LIKE TO KNOW WHICH EXPERTS I
HAVE TO GET AND WHICH ONES I DON'T HAVE TO GET, WHETHER OR NOT
THE STATE IS GOING TO GET ITS OWN EXPERTS.
THE COURT: SO WHICH WAY DOES THAT CUT, MR. MAGLEBY?
THIS IS WHAT I'VE THOUGHT ABOUT. UNLIKE A TITLE VII CASE FOR
EXAMPLE THAT WE MIGHT SEE OR AN ERISA CASE OR A 1983 ACTION
WHERE WE HAVE DEFINED LEGAL PARAMETERS FOR OUR ANALYSIS THAT
ARE ESTABLISHED AND LONG RECOGNIZED, IT SEEMS TO ME WE HAVE
SOME QUESTIONS TO ANSWER IN THIS CASE BEFORE WE CAN BEGIN TO
ADDRESS WHAT DISCOVERY IS GOING TO BE RELEVANT. AND WHAT I'M
FEARFUL OF IS SENDING THE PARTIES OUT TO SEA TO GO CONDUCT
DISCOVERY AND BE COLUMBUS WHEN WE CAN DO SOMETHING FAR MORE
NARROW AND SURGICAL IF NECESSARY TO ADDRESS THOSE ISSUES THAT
REALLY ARE IN DISPUTE IN THIS CASE AND ONCE WE'VE DEFINED THE
RULES. AND SOME OF THOSE RULES ARE NOT DEFINED ANYWHERE YET.
SOME OF THEM ARE AND SOME OF THEM MAY BE FOR THE FIRST TIME BY
US OR OUR SISTER COURTS. DON'T WE WANT TO DEFINE THE RULES
THAT WE'RE GOING TO PLAY THIS GAME BY BEFORE WE START SENDING
EVERYBODY OUT TO START DISCOVERY IN THE WORLD?
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MR. MAGLEBY: I THINK WE ABSOLUTELY DO WANT TO
DEFINE THOSE RULES, YOUR HONOR, AND I THINK WE'RE ACTUALLY
TALKING ABOUT THE SAME THING.
THE COURT: MAYBE WE ARE, BUT WON'T THE
GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT TAKE US HALFWAY DOWN
THAT PATH, AND THEN WON'T YOUR RESPONSE TO THAT MOTION GET US
ABOUT THE REST OF THE WAY DOWN THAT PATH IN --
MR. MAGLEBY: NO.
THE COURT: -- DEFINING WHAT ISSUES ARE OUT THERE IN
DISPUTE, AND ON WHICH ISSUES DO WE NEED FACTUAL DISCOVERY, AND
FOR WHICH ISSUES ARE IN THE POSSESSION OF THE STATE?
MR. MAGLEBY: YES AND NO, YOUR HONOR.
THE COURT: OKAY.
MR. MAGLEBY: YOUR HONOR, AND I THINK WE'RE ON THE
SAME PAGE HERE. BELIEVE ME, I DON'T WANT TO SPEND EXTRA TIME
OR MONEY IN THIS CASE THAT I DON'T HAVE TO SPEND, AND MY
CLIENTS DON'T WANT TO SPEND THE HEARTACHE INVESTMENT THAT THEY
DON'T HAVE TO SPEND. I THINK IT'S IRONIC THAT ONE OF THE
REASONS THE STATE SAID WE OUGHT TO DO THIS SCHEDULE IS BECAUSE
THEY DON'T WANT TO WASTE TIME AND MONEY. I'M FIGHTING THE 800
POUND GORILLA. THEY'VE GOT ALL THE RESOURCES IN THE WORLD.
MINE ARE NOT SO UNLIMITED. SO LET ME ASSURE YOU MY GOAL IS
NOT TO MAKE THIS MORE COMPLICATED THAN IT NEEDS TO BE. BUT MY
THOUGHT IS DOING WHAT WE PROPOSE WILL ACTUALLY GET US THERE
QUICKER.
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SO LET ME EXPLAIN TO YOU WHY I THINK THAT WOULD BE THE
CASE. WE WOULD SERVE A LIMITED SET OF DISCOVERY, POINTED
QUESTIONS TO THE ISSUES THAT WILL ALSO BE ADDRESSED BY THE
SUMMARY JUDGMENT, BUT THEY WILL SAY FOR EXAMPLE TELL US ALL
THE BASES FOR THE COMPELLING STATE INTEREST.
THE COURT: WELL, DO THEY HAVE TO DO THAT?
MR. MAGLEBY: I THINK THEY DO.
THE COURT: I'M UNCERTAIN ABOUT THAT AS WE SIT HERE
TODAY. I THINK THIS IS ONE OF THE LEGAL QUESTIONS THAT WE
NEED TO RESOLVE FOR EXAMPLE AT THE OUTSET. WHAT LEVEL OF
SCRUTINY ARE WE GOING TO APPLY IN THIS CASE? THAT IS GOING TO
BE A STRICTLY LEGAL QUESTION THAT WE'RE GOING TO RESOLVE. DO
YOU AGREE?
MR. MAGLEBY: MAYBE. I THINK THE ANSWER IS MAYBE.
FOR EXAMPLE, A HEIGHTENED LEVEL OF SCRUTINY UNDER THE EQUAL
PROTECTION ANALYSIS HAS FOUR SUBCOMPONENTS TO IT THAT I TALKED
ABOUT A MINUTE AGO. I DON'T THINK THAT'S A LEGAL ANALYSIS,
UNLESS THE STATE IS WILLING TO CONCEDE THAT MY CLIENTS FALL
INTO A GROUP THAT CALLS FOR HEIGHTENED SCRUTINY. NOW, IF THEY
WILL CONCEDE THAT, THEN WE CAN GO ON AND ARGUE ABOUT WHETHER
THERE'S A COMPELLING GOVERNMENTAL INTEREST, ETCETERA.
WHAT I'M SUGGESTING IS IF WE SERVE LIMITED DISCOVERY
SAYING TELL US WHAT THINGS YOU CONCEDE AND WHAT THINGS YOU
DON'T CONCEDE, AND TELL US THE BASES UPON WHICH YOU ARE GOING
TO SAY THERE'S A COMPELLING GOVERNMENT INTEREST --
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THE COURT: CONTENTION INTERROGATORIES?
MR. MAGLEBY: YEAH, CONTENTION INTERROGATORIES.
THE COURT: AND WHAT HAPPENS WHEN WE GET THE
RESPONSE BACK POINTING US TO THE ESTABLISHED CASE LAW THAT
CONTENTION INTERROGATORIES ARE GREAT BUT A PARTY IS ENTITLED
TO ALLOW THE LITIGATION TO RUN ITS COURSE A GOOD BIT BEFORE
THEY HAVE TO COMMIT TO LEGAL POSITIONS?
MR. MAGLEBY: THAT WOULD BE AN EFFECTIVE ARGUMENT.
IT'S ONE I'VE MADE IN CIVIL CASES, BUT THE STATE HAS COME
BEFORE YOU, YOUR HONOR, AND SAID THEY DON'T NEED ANY OF THAT.
THE COURT: RIGHT.
MR. MAGLEBY: BECAUSE IT'S GOING TO BE LEGAL
ARGUMENTS. AND IF THE RESPONSE IS HERE ARE THE FIVE CASES AND
HERE ARE THE FIVE BASES, THEN I KNOW WHAT THEY ARE AND THEY'RE
NOT GOING TO CHANGE. BUT WHAT I DON'T WANT TO HAVE HAPPEN IS
THEY FILE THEIR SUMMARY JUDGMENT. I COME BACK. I DEFEAT IT.
AND THEN THEY SUDDENLY SAY HERE ARE MORE ARGUMENTS.
SO IF THE COURT WERE INCLINED FOR EXAMPLE TO RESTRICT OUR
DISCOVERY, AND I IN WAY THINK THE COURT SHOULD DO THAT, THEN
THEIR SUMMARY JUDGMENT HAS GOT TO HAVE EVERYTHING IN IT SO
THAT I'M NOT SANDBAGGED AND I'M NOT SUFFERING FROM DELAY WHEN
WE COME BACK AND I WIN THE SUMMARY JUDGMENT AND THEN THEY GO,
AH, YOU KNOW WHAT, I JUST THOUGHT OF SOMETHING NEW. HERE IS
MY NEW SUMMARY JUDGMENT. AND YOU STILL DON'T GET TO DO
DISCOVERY.
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YOUR HONOR, IF I WAS IN ANY OTHER CASE, ANY OTHER CIVIL
CASE, AND THE OTHER SIDE CAME IN AND SAID I WANT TO STAY
DISCOVERY BASED ON A SUMMARY JUDGMENT MOTION, THE FIRST THING
THEY'D HAVE TO DO IS FILE IT. THEY HAVEN'T EVEN FILED THAT
MOTION OR A MOTION TO STAY DISCOVERY. THEY ARE TWO MOTIONS
BEHIND WHAT THEY WOULD HAVE TO DO IN ANOTHER CASE, AND I DON'T
THINK THE STATE OUGHT TO GET --
THE COURT: WELL, I MEAN THE REASON WE'RE HERE TODAY
IS FOR THIS REASON. WE'RE GOING TO TRY TO CUT THROUGH SOME OF
THE RED TAPE THAT WE OFTEN HAVE IN THESE CASES, ESPECIALLY IN
THIS COURT WHERE PEOPLE ARE FILING MOTIONS, AND THEN THEY'RE
FULLY BRIEFED, AND THEN WE SET A HEARING DATE OUT, AND WE --
WE'RE GOING TO TRY TO CHART A COURSE TODAY SO WE CAN DO THIS,
AS I SAID, EXPEDITIOUSLY.
MR. MAGLEBY: AND WE WELCOME THAT, YOUR HONOR. WHAT
I'M SUGGESTING IS THE MINOR ADDITIONAL BURDEN, AND I THINK
THAT'S A GENEROUS WORD, FOR THE STATE TO PUT ON DISCOVERY,
BECAUSE IT'S REALLY A RIGHT THAT WE HAVE, BUT WHATEVER BURDEN
THAT IS OF THEM HAVING TO TELL US WHAT THEY'RE GOING TO
CONTEST AND WHAT THEY'RE GOING TO STIPULATE TO, AND TELL US
WHAT ARGUMENTS THEY'RE GOING TO ADVANCE FOR EXAMPLE IN THE
COMPELLING STATE INTERESTS ON THE FOUR ELEMENTS FOR HEIGHTENED
SCRUTINY, IT'S GOING TO BE TIME WELL SERVED.
THE COURT: I THINK YOU KEEP JUMPING PAST THE
PRELIMINARY QUESTIONS. LET ME TRY TO GET MY ARMS AROUND WHAT
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YOU'RE SAYING SO I MAKE SURE I'M NOT JUST DISCOUNTING
SOMETHING THAT YOU'RE SAYING. BUT I'M NOT -- I'M NOT TO
HEIGHTENED SCRUTINY YET. THAT MAY APPLY IN THIS CASE AND IT
MIGHT NOT. BUT I'D LIKE TO KNOW THE ANSWER TO THAT QUESTION
BEFORE WE START SENDING DISCOVERY AROUND IDENTIFYING ALL THE
FACTS THAT -- YOU KNOW, CONTENTION INTERROGATORY, IDENTIFY ALL
THE FACTS IN YOUR POSSESSION THAT YOU THINK PROVE THIS POINT
AND THIS POINT AND THIS POINT. DON'T I NEED TO KNOW THAT
THAT'S A RELEVANT INQUIRY BEFORE -- I DON'T NEED TO. WE DO
THIS OFTENTIMES IN CIVIL LITIGATION.
MR. MAGLEBY: SURE.
THE COURT: BUT THEN IT JUST SEEMS TO ME WE'RE
ALLOWING OURSELVES TO GET ON A CIRCUITOUS PATH THAT WE SEE IN
SO MANY CIVIL CASES HERE IN THIS COURT WHERE WE'RE AT TRIAL
THREE YEARS FROM NOW.
MR. MAGLEBY: OH, WE'RE NOT GOING TO -- NO. WE DO
NOT WANT A TRIAL IN THREE YEARS. WE WANT A TRIAL IN MAY
ACTUALLY. WE PUSHED THE DATE OUT BECAUSE WE THOUGHT OUR
WORTHY OPPONENTS WOULD WANT MORE TIME.
BUT LET ME GIVE YOU ANOTHER EXAMPLE, YOUR HONOR. THEY
FILE THEIR SUMMARY JUDGMENT MOTION. THEY HAVEN'T TOLD US IN
ADVANCE WHAT ISSUES THEY'RE GOING TO CONTEST AND WHAT ISSUES
THEY'RE GOING TO STIPULATE TO. THAT MEANS I HAVE TO WAIT. IF
I'M GOING TO OPPOSE THAT MOTION WITH EXPERT TESTIMONY, AS I
FULLY EXPECT TO DO, I HAVE TO WAIT UNTIL I GET THEIR MOTION.
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THEN I HAVE TO COME DOWN AND SAY TO THE COURT I NEED ACTUALLY
ANOTHER 60 DAYS. I'VE GOT TO GO FIND EXPERTS. THEY'RE
LOCATED ACROSS THE LAND. THEIR TIME IS PRECIOUS TO THEM.
I'VE GOT TO MEET WITH THEM. I'VE GOT TO PREPARE MY RESPONSIVE
AFFIDAVITS.
NOW, I WANT TO GET THIS THING DONE, SO MAYBE I GO GET MY
EXPERTS TOMORROW AND I JUST CROSS MY FINGERS THAT I'M ABLE TO
FORECAST WHAT THE STATE WILL AND WILL NOT CONCEDE. MAYBE I'VE
SPENT TENS OF THOUSANDS OF DOLLARS HIRING EXPERTS THAT I DON'T
NEED. SO, YOU KNOW, IF WE'RE GOING TO CUT THROUGH IT, YOUR
HONOR, ONE OF THE THINGS WE NEED TO CUT THROUGH IS TAKE THE
STATE UP ON THEIR VEILED OFFER IN THEIR PAPERS THAT, GEE,
MAYBE WE WON'T CONTEST SOME OF THESE THINGS, SUCH AS THE
PLAINTIFFS ARE IN COMMITTED RELATIONSHIPS. MAYBE WE WON'T
CONTEST SOME OF THESE THINGS. YOU KNOW, MAYBE THAT MY CLIENTS
AND THE GROUP THEY'RE IN HAS BEEN HISTORICALLY DISCRIMINATED
AGAINST. I'D LIKE TO KNOW THAT, OTHERWISE I'M GOING TO GET AN
EXPERT THAT TALKS ABOUT WHETHER OR NOT THEY'VE BEEN
HISTORICALLY DISCRIMINATED AGAINST.
IT ACTUALLY WOULD SAVE ME A LOT OF TIME AND MONEY IF THE
COURT WOULD MAKE THEM DO THAT. THE PROBLEM I SEE IS I DON'T
THINK THE COURT WANTS TO DRAFT SOMETHING THAT SAYS TELL ME
WHAT THE ELEMENTS ARE THAT YOU'RE GOING TO CONCEDE AND NOT
CONCEDE. AND I DON'T THINK WE WANT THE STATE TO DO IT. I
THINK WE WANT TO SERVE DISCOVERY TO DO IT AND WE'LL GET THEIR
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ANSWERS. AND, YOUR HONOR, IF THEY DON'T PROVIDE EVIDENCE OR
GIVE SUFFICIENT ANSWERS, THEN, YOU KNOW, UNDER RULE 26, RULES
37, THEY'RE PRECLUDED FROM COMING BACK WITH ADDITIONAL
INFORMATION AT TRIAL.
WHAT I WANT TO AVOID IS EXACTLY WHAT YOU'RE TALKING
ABOUT, WHICH IS GOING AROUND AND AROUND IN CIRCLES AS THE
STATE CHANGES ITS POSITION. THEY WANT TO FILE A SUMMARY
JUDGMENT MOTION, THEY DON'T WANT TO DO DISCOVERY, THEY DON'T
WANT TO GET THEIR OWN EXPERTS, GREAT, BUT THEY NEED TO COMMIT
TO WHERE THEY ARE SO THAT WE CAN FIGURE OUT WHERE THEY ARE SO
THAT WE CAN MOVE THIS CASE FORWARD. SO THAT'S WHAT I'M
SAYING.
THE COURT: OF COURSE THEY'RE THE DEFENDANTS IN THE
CASE. I MEAN YOU'RE THE PLAINTIFF. YOU FILED YOUR CLAIMS.
OKAY. WELL, LET'S HEAR FROM MR. LOTT. MAYBE I'M ACTING ON AN
INCORRECT ASSUMPTION THAT THE SUMMARY JUDGMENT MOTIONS WOULD
HELP US NARROW THE LEGAL AND FACTUAL ISSUES BEFORE US, BUT
LET'S SEE WHAT THE STATE SAYS.
MR. LOTT, AM I MISTAKEN ABOUT ALL OF THAT?
MR. LOTT: YOU'RE NOT. THANK YOU, YOUR HONOR. WE
VIEW THIS AS A CASE THAT WOULD BE MORE EXPEDITIOUSLY DECIDED
THROUGH SUMMARY JUDGMENT.
THE COURT: WHY IS THAT?
MR. LOTT: WELL, BY BRINGING THE LEGAL ISSUES TO THE
COURT. AGAIN, WE DON'T VIEW THIS AS A FACTUAL ISSUE CASE.
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AND WE TRIED TO DISTINGUISH IN THE SUBMISSION THAT WE FILED
YESTERDAY BETWEEN ADJUDICATIVE FACTS AND LEGISLATIVE FACTS.
THE FACTS THAT THE STATE PROBABLY WOULD STIPULATE TO WOULD BE
ADJUDICATIVE FACTS REGARDING THE PARTIES, THEIR SEXUAL
ORIENTATION, THE FACT THAT THEY'RE COUPLES, THAT THEY -- THAT
THEY WISH TO BE MARRIED. THAT ONE OF THE COUPLES HAS BEEN
MARRIED IN IOWA. WE DON'T SEE THOSE AS BEING HIGHLY DISPUTED
FACTS.
THE DISPUTED FACTS ARE THE LEGISLATIVE FACTS, WHAT ARE
TERMED LEGISLATIVE FACTS, HISTORY, PHILOSOPHICAL QUESTIONS.
THE PARTIES ARE GOING TO HAVE DIFFERENT VIEWS ON THOSE TYPE OF
ISSUES. AND DOING DISCOVERY, I DON'T REALLY SEE HOW THAT'S
GOING TO PROVIDE ANY ASSISTANCE IN ADVANCING THE CASE. EVEN
HAVING A HEARING WHERE WE HAVE A WITNESS TESTIFY ABOUT A
PHILOSOPHICAL QUESTION OR A SOCIAL ISSUE, THE COURT IS IN THE
IN THE ROLE OF MAKING THOSE DECISIONS. THE PARTIES CAN
PRESENT THEIR OWN VIEW ON THOSE ISSUES, BUT THE COURT HAS TO
DECIDE THOSE ISSUES. AND IT WOULD BE INAPPROPRIATE FOR A
WITNESS TO TELL THE JUDGE WHAT THE LAW IS. THAT'S THE COURT'S
ROLE TO DECIDE WHAT THE APPROPRIATE RULE OF LAW IS.
AS FAR AS DISCOVERY --
THE COURT: DOES WINDSOR JUST ANSWER THAT QUESTION
FOR US?
MR. LOTT: EXCUSE ME?
THE COURT: DOES THE WINDSOR DECISION, DOES IT JUST
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TELL US THE ANSWER TO THESE QUESTIONS?
MR. LOTT: I THINK --
THE COURT: IS IT A PURELY LEGAL SET OF QUESTIONS
THAT ARE IN FRONT OF US IN THIS LAWSUIT?
MR. LOTT: I BELIEVE IT'S PRIMARILY LEGAL ISSUES,
AND IT MAY BE EXCLUSIVELY LEGAL ISSUES. THE OTHER THING THAT
MAY OCCUR, IF THERE IS A FACTUAL ISSUE THAT COMES UP AFTER
PLEADINGS ARE SUBMITTED, THE COURT CAN MAKE A DECISION THAT I
NEED SOME ADDITIONAL WORK ON A FACTUAL ISSUE THAT'S SEPARATE
AND APART FROM DECIDING THE LEGAL ISSUE. THAT CAN BE DONE
THROUGH THE PLEADINGS.
ON THE DISCOVERY DESCRIPTION THAT MR. MAGLEBY HAS MADE,
WHAT I FORESEE IS IF WE RECEIVE A SET OF INTERROGATORIES
ASKING US TO SET FORTH THE COMPELLING STATE INTEREST, WE'RE
GOING TO OBJECT TO THAT. IT'S GOING TO BE AN ISSUE THAT THERE
WILL BE AN OBJECTION. WE'RE GOING TO HAVE TO HAVE A HEARING
ON IT. THE COURT'S GOING TO HAVE TO DECIDE. AND BY GOING THE
ROUTE OF PRESENTING IT AS A LEGAL ARGUMENT THROUGH SUMMARY
JUDGMENT, WE SHORTCUT HAVING TO DO ALL THAT. IT WOULD TAKE
MORE TIME TO HAVE DISCOVERY DISPUTES, HAVE THE COURT RULE ON
THOSE AND INCH BY INCH MOVE THE CASE FORWARD.
THE COURT: I THINK THAT'S MY FEELING ABOUT IT AS
WELL. WHAT HAPPENS WHEN MR. MAGLEBY RESPONDS TO YOUR MOTION
FOR SUMMARY JUDGMENT WITH A RULE 56(D) MOTION AND SAYS NOW I
SEE WHAT IT IS THEY'RE SAYING. HERE IS THE DISCOVERY THAT WE
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HAVE TO TAKE, AND HERE IS WHAT WE NEED TIME TO ADDRESS, THEN
WHAT DO WE DO?
MR. LOTT: WE'RE GOING TO HAVE TO HAVE A HEARING.
WE MAY OBJECT TO THAT PROCEDURE. WE'RE GOING TO HAVE TO HAVE
A HEARING AND THE COURT IS GOING TO HAVE TO DECIDE WHAT
DISCOVERY IS APPROPRIATE AND WHAT'S NOT. AND REALLY IT GOES
AGAIN TO THE QUESTION OF ADJUDICATIVE FACTS VERSUS LEGISLATIVE
FACTS.
THE COURT: HOW WILL THE STATE'S MOTION FOR SUMMARY
JUDGMENT, IF WE GO IN THIS DIRECTION, HOW WILL THAT HELP US
NARROW THE ISSUES IN THIS CASE AND EXPEDITE RESOLUTION OF THIS
CASE?
MR. LOTT: THE ISSUES AS IDENTIFIED IN OUR ANSWER
ARE, NUMBER ONE, SUBJECT MATTER JURISDICTION OF THE COURT.
THERE'S SOME CASE LAW WHETHER SAME SEX MARRIAGE IS EVEN A
FEDERAL QUESTION. THAT WOULD BE NUMBER ONE. IF THE COURT
DOESN'T HAVE JURISDICTION, THE CASE ENDS. DUE PROCESS IS AN
ALLEGATION, SO THERE'S GOING TO HAVE TO BE A SHOWING BY THE
PLAINTIFFS THAT WHAT WE'RE TALKING ABOUT IS A FUNDAMENTAL
RIGHT TO GET TO THE STRICT SCRUTINY LEVEL OF REVIEW. IF NOT,
IT'S A RATIONAL BASIS REVIEW. THE STATE WOULD SET FORTH ITS
LEGISLATIVE FACTS, ITS LEGITIMATE INTERESTS IN TRADITIONAL
MARRIAGE. THAT WOULD BE THE DUE PROCESS PART, EQUAL
PROTECTION, WE'D LOOK AT CLASSIFICATION, SAME SEX MARRIAGE
VERSUS TRADITIONAL MARRIAGE, IF THERE ARE LEGITIMATE STATE
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INTERESTS FOR UTAH'S LAW. THERE'S ALSO A FULL FAITH AND
CREDIT ISSUE, WHETHER UTAH HAS THE RIGHT TO NOT ACCEPT A
LAWFUL MARRIAGE FROM ANOTHER STATE BECAUSE OF UTAH'S STRONG
PUBLIC POLICY IN THE OTHER DIRECTION. SO THOSE WOULD BE THE
ISSUES THAT WOULD BE RAISED IN A MOTION FOR SUMMARY JUDGMENT.
THE COURT: IF WE GO IN THAT DIRECTION, HOW QUICKLY
CAN THE STATE FILE SUCH A MOTION?
MR. LOTT: WE ANTICIPATED FILING EITHER THE MIDDLE
OR LATTER PART OF OCTOBER. AND WHAT WE WOULD FORESEE AND
PROPOSE IS THAT WE DO CROSS-MOTIONS FOR SUMMARY JUDGMENT, THAT
THE PARTIES DO ONE RESPONSE, THAT THERE NOT BE NECESSITY FOR A
REPLY UNLESS, YOU KNOW, SOMETHING UNUSUAL IS ALLEGED IN THE
PLEADINGS, AND THEN HAVE A HEARING PROBABLY IN JANUARY IF THE
COURT COULD ACCOMMODATE IT.
THE COURT: ALL RIGHT, MR. LOTT, THANK YOU. IS
THERE ANYTHING MORE YOU WANTED TO TOUCH ON BEFORE WE HEAR --
MR. LOTT: I DON'T BELIEVE SO, UNLESS IN COURT HAS
ANY QUESTIONS.
THE COURT: WE MAY BE HERE FOR A LITTLE WHILE, BUT
I UNDERSTAND FOR NOW. THANK YOU.
MS. GODDARD, DO YOU CARE TO BE HEARD?
MS. GODDARD: JUST BRIEFLY, YOUR HONOR.
THE COURT: THANK YOU.
MS. GODDARD: THE COUNTY'S ROLE IN THIS CASE, AS I
THINK PLAINTIFFS' COUNSEL CONCEDED, IS REALLY ON THE SIDELINES
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IN A LOT OF WAYS. OUR COUNTY CLERK HAS A MINISTERIAL DUTY TO
JUST APPLY THE LAW AS IT CURRENTLY EXISTS. THAT SAID --
THE COURT: HOW DOES IT CURRENTLY EXIST?
MS. GODDARD: AS WE UNDERSTAND IT --
THE COURT: I'M KIDDING.
MS. GODDARD: RIGHT. YOU KNOW, WHAT WE WOULD SAY
THOUGH IS THAT TO THE EXTENT WE CAN EXPEDITE THIS CASE TO GET
A RULING SO THAT SHE HAS GUIDANCE SOONER RATHER THAN LATER, I
THINK THAT WE SUPPORT THAT IDEA. WHAT THE JUDGE RECOMMENDED,
YOUR RECOMMENDATION FOR DOING CROSS-MOTIONS FOR SUMMARY
JUDGMENT OR AT LEAST THE STATEMENT FILING A MOTION FOR SUMMARY
JUDGMENT IN RELATIVELY SHORT ORDER I THINK MAKES SENSE. I
THINK IT ALSO MAKES SENSE TO STAY DISCOVERY IN THE CASE UNTIL
THOSE MOTIONS ARE DECIDED BECAUSE I THINK, EVEN WHEN
MR. MAGLEBY WAS SPEAKING, THE ONLY DISCOVERY THAT HE WAS
REFERRING TO WERE IMPROPER CONTENTION INTERROGATORIES OR
REQUESTS FOR INFORMATION THAT WE REALLY CAN'T PROVIDE, LIKE
FOR EXAMPLE THE FACTORS GOING INTO WHETHER HEIGHTENED SCRUTINY
WOULD APPLY. AND THAT'S REALLY NOT SOMETHING FOR THE PARTIES
TO ANSWER, CERTAINLY NOT THIS EARLY IN THE LITIGATION.
SO WE ACTUALLY WOULD AGREE WITH THE STATE'S PROPOSED
SCHEDULE OF DOING MOTIONS FOR SUMMARY JUDGMENT IN RELATIVELY
SHORT ORDER, FOR EXAMPLE, THE END OF OCTOBER, A HEARING IN
JANUARY IF THE COURT WOULD SUPPORT THAT AND HAVE TIME FOR
THAT, AND THEN HAVE A RELATIVELY EXPEDITED DISCOVERY SCHEDULE
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FROM -- BASED ON WHATEVER THE RULINGS ARE IN THE MOTIONS
FOR SUMMARY JUDGMENT, ASSUMING AT LEAST PART OF THE CASE
SURVIVES, DOING DISCOVERY RELATIVELY QUICKLY WITH A SHORT TIME
FOR FACT DISCOVERY AND THEN A SLIGHTLY LONGER TIME FOR EXPERT
DISCOVERY.
THE COURT: DO YOU CONTEMPLATE THAT IF WE PROCEEDED
WITH MOTIONS FOR SUMMARY JUDGMENT AT THE OUTSET OF THE CASE
THAT THE COUNTY WOULD FILE ITS OWN MOTION OR DO YOU THINK THE
MOTION WOULD COME JOINTLY FROM THE DEFENDANTS OR DO YOU KNOW?
MS. GODDARD: AS OF RIGHT NOW I ACTUALLY WOULD
SUSPECT THAT THE COUNTY MIGHT JOIN IN PART TO THE STATE'S
MOTION FOR SUMMARY JUDGMENT. I CAN'T SAY THAT WE WOULD JOIN
ALL OF THE MOTION FOR SUMMARY JUDGMENT BECAUSE WE HAVEN'T SEEN
IT. I DON'T THINK WE ANTICIPATE FILING OUR OWN SEPARATE
MOTION.
THE COURT: DOES THE COUNTY HAVE A POSITION ON THIS
ISSUE, ON THE LEGAL ISSUES IN THIS CASE?
MS. GODDARD: WE DO. AND THE COUNTY'S POSITION IS
THAT MS. SWENSEN'S DUTY IS MINISTERIAL IN NATURE AND HER JOB
IS TO ENFORCE THE LAW AS IT IS WRITTEN AND CONSTRUED BY THE
COURTS.
THE COURT: I DON'T THINK MR. MAGLEBY DISPUTES
THAT.
MS. GODDARD: AND YET WE'RE HERE.
THE COURT: WELL, I THINK YOU'RE PROBABLY A
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NECESSARY PARTY. BUT DOES THE COUNTY HAVE A POSITION ON THE
MERITS OF THE UNDERLYING CLAIMS?
MS. GODDARD: NOT THAT WE'RE PREPARED TO SPEAK TO
TODAY.
THE COURT: WELL, DO YOU ANTICIPATE THAT YOU'LL
EXPRESS ANY OPINION ABOUT THOSE ISSUES IN THE LITIGATION?
MS. GODDARD: I THINK THAT LIKELY WE WOULD IN
DECIDING WHAT PORTIONS, IF ANY, OF THE STATE'S MOTION FOR
SUMMARY JUDGMENT THE COUNTY WOULD JOIN.
THE COURT: AND WHAT WOULD DRIVE THAT DETERMINATION?
MS. GODDARD: WELL, IT CERTAINLY WOULDN'T BE
ANYTHING THAT WE THINK ANYBODY IS GOING TO BE GETTING IN THIS
CASE IN FACT DISCOVERY. I THINK IT WILL DEPEND ON A FURTHER
AND MORE IN DEPTH ANALYSIS OF THE CASE LAW, WHAT'S GOING ON IN
OTHER JURISDICTIONS, A BETTER ANALYSIS OF THE WINDSOR
DECISION, THE PROP 8 DECISION, AND THEN JUST LOOKING AT WHAT
ARGUMENTS THE STATE ARE MAKING.
FOR EXAMPLE, THE COUNTY MIGHT NOT HAVE A POSITION ON THE
STATE'S SOVEREIGN RIGHT TO DEFINE MARRIAGE BECAUSE IT DOESN'T
IMPLICATE THE COUNTY IN ANY WAY. THE COUNTY MIGHT, HOWEVER,
HAVE A POSITION ON WHAT STANDARD OF SCRUTINY APPLIES IN THE
CASE. I'M NOT PREPARED TO SAY TODAY WHAT I THINK THAT IS BUT
THAT MIGHT BE A PORTION OF THE STATE'S MOTION FOR SUMMARY
JUDGMENT OR IT MIGHT EVEN BE A PORTION OF THE PLAINTIFFS'
MOTION FOR SUMMARY JUDGMENT IF THEY DECIDE TO FILE ONE THAT WE
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WOULD DECIDE TO JOIN. RIGHT NOW WE JUST HAVEN'T MADE ANY
DECISIONS IN THAT REGARD.
THE COURT: ALL RIGHT, THANK YOU.
MR. MAGLEBY.
MR. MAGLEBY: YOUR HONOR, YOU CAN SEE THAT I WAS
EAGER TO JUMP UP. I CAN'T HELP MYSELF.
THE COURT: WELL, WE'RE GOING TO HEAR FROM ANYBODY
UNTIL WE'VE HEARD IT ALL TODAY.
MR. MAGLEBY: ALL RIGHT. MS. TOMSIC POINTED
SOMETHING OUT TO ME THAT I MAY HAVE BEEN UNCLEAR IN THE SENSE
THAT WE'RE NOT REALLY TALKING ABOUT A CLASSIC FACT DISCOVERY,
ESPECIALLY NOT GIVEN WHAT I'VE NOW HEARD FROM THE STATE ABOUT
STIPULATING TO CERTAIN ISSUES. WE'RE TALKING ABOUT LIMITED
DISCOVERY AND WORKING ON OUR EXPERTS AND FINDING OUT IF THE
STATE HAS ANY EXPERTS. THE HEARING DATE THAT WE WERE
PROPOSING, THE TRIAL DATE, WAS GEARED TOWARDS RESOLVING THE
EXPERT DISCOVERY ISSUES. THAT WAS WHAT WE THOUGHT WAS A
GENEROUS AMOUNT OF TIME FOR THE PARTIES TO GET IN THEIR
REPORTS.
THE COURT: WHAT WILL BE THOSE ISSUES?
MR. MAGLEBY: WELL --
THE COURT: WHAT IS THE EXPERT -- WHAT ARE THE
EXPERT DISCOVERY ISSUES THAT WE'LL HAVE TO RESOLVE IN THIS
CASE?
MR. MAGLEBY: WELL, SO FOR EXAMPLE, YOUR HONOR --
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THE COURT: ARE THEY ISSUES ABOUT THE HISTORICAL
DEFINITION OF MARRIAGE?
MR. MAGLEBY: YEP, YEP.
THE COURT: AND THE SOCIETAL IMPACT OF --
MR. MAGLEBY: YEP.
THE COURT: -- STRAIGHT AND GAY COUPLES AND CHILD
REARING AND STATE INTERESTS --
MR. MAGLEBY: YES, WHETHER THE STATE HAS A -- YOU
KNOW, I MEAN I'VE GOT TO KNOW WHAT THE STATE'S GOING TO CLAIM
BECAUSE NOW IT'S A BIG MYSTERY TO ME, OF COURSE. BUT, YOU
KNOW, FOR EXAMPLE ARE THEY GOING TO MAKE THE SAME CLAIMS THAT
WERE MADE IN THE PROP 8 CASE? I WOULD LIKE TO KNOW THAT.
WHAT I WOULD SAY, YOUR HONOR -- AND I SEE WHERE YOU'RE
LEANING AND I KNOW YOU HAVEN'T PREJUDGED THIS -- BUT WHAT I
WOULD SAY IS THIS. IF WE ACCEDE -- NOT THAT I'M GOING TO
ACCEDE -- BUT IF THE COURT ACCEDES TO THE STATE'S POSITION,
THAT WHAT I WOULD LIKE AS PART OF THAT IS THEY NEED TO PUT
EVERYTHING THEY'VE GOT INTO THAT SUMMARY JUDGMENT MOTION. I
DON'T WANT TO HAVE TO COME BACK AND DO A SECOND ONE WHEN I WIN
THE FIRST ONE, AND THEN I STILL HAVEN'T BEEN ABLE TO DO ANY
DISCOVERY. AND THEY'RE GOING TO SAY, WELL, GEE -- AND THERE'S
NOT GOING TO BE A TRIAL DATE SET; RIGHT? THERE'S NOT GOING TO
BE ANY DISCOVERY DEADLINES OR EXPERT WITNESS DEADLINES. AND
THEY'RE GOING TO SAY, GOSH, WE'D LIKE TO FILE A SECOND SUMMARY
JUDGMENT MOTION.
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CHIEF?
MR. MAGLEBY: WELL, ACTUALLY NO. I THINK I'M GOING
TO WIN ON WHATEVER LEGAL ISSUES THE STATE CAN ADVANCE. FOR
EXAMPLE IF THEY GIVE A RATIONAL BASIS, I STILL THINK I'M GOING
TO WIN THAT ONE. NOW, WHAT YOU'RE SAYING DO I NEED IT
RESOLVED IN MY FAVOR ON SUMMARY JUDGMENT? I DON'T THINK SO.
I THINK I CAN HAVE IT RESOLVED IN MY FAVOR AFTER AN
EVIDENTIARY HEARING.
THE COURT: IN EVERY CASE THAT I THINK WE LOOKED AT
RECENTLY RESOLVING OR ADDRESSING THESE ISSUES OR TEEING THEM
UP FOR RESOLUTION, WE'VE SEEN CROSS-MOTIONS FOR SUMMARY
JUDGMENT FROM BOTH PARTIES AT THE SAME TIME AT THE OUTSET OF
THE LITIGATION TO DEFINE THE ISSUES, THE LEGAL ISSUES AND
PARAMETERS OF THE CASE. I'M JUST TRYING TO DECIDE WHAT THE
IMPACT IS IF THE PLAINTIFFS DECIDE THEY DON'T CARE TO
PARTICIPATE IN THAT PROCESS. WHAT'S THE -- WHAT DO YOU VIEW
AS THE IMPACT IF THE STATE FILES A MOTION FOR SUMMARY
JUDGMENT, THE PLAINTIFFS DON'T, AND SAY THE PLAINTIFFS
PREVAIL. WHERE DOES THAT PUT US?
MR. MAGLEBY: THAT PUTS US WHERE I THINK WE'RE GOING
TO END UP ANYWAY, WHICH IS WE'RE GOING TO COME FORWARD WITH
OUR EXPERT REPORTS AND WE'RE GOING TO ASK FOR A HEARING.
WE'RE GOING TO PRESENT THE EVIDENCE. WE'RE GOING TO DO WHAT
TRIAL COURTS DO. WE'RE GOING TO PUT OUR WITNESSES UP THERE.
THE STATE CAN HAVE AT THEM. IF THE STATE DOESN'T WANT TO PUT
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ON ITS OWN, IF IT THINKS IT'S PURELY A LEGAL ISSUE, THE STATE
CAN MAKE THAT CHOICE.
BUT, YOUR HONOR, AS WE LOOKED AT THE CASES -- YOU'VE
TALKED ABOUT NEVADA AND HAWAII, AND SO AS THE STATE, WITH ALL
DUE RESPECT TO THOSE LAWYERS, I WISH THEY HAD DEVELOPED A
FACTUAL RECORD ON SOME OF THE ISSUES THAT ARE NOW GOING UP ON
APPEAL.
THE COURT: SO ARE WE GOING TO PLAY THE ROLE OF THE
CALIFORNIA COURT AND START DECIDING QUESTIONS ABOUT WHAT
MARRIAGE MEANS? IS THAT -- AM I GOING TO DO THAT?
MR. MAGLEBY: MAYBE.
THE COURT: AM I?
MR. MAGLEBY: YEAH, MAYBE.
THE COURT: THAT'S THE ROLE OF A JUDGE YOU THINK?
MR. MAGLEBY: IT IS, YOUR HONOR. I MEAN THESE ARE
CONSTITUTIONAL ISSUES. THEY DON'T GO TO A JURY. THEY'RE
SIGNIFICANT ISSUES AND THAT'S ONE OF THE REASONS THEY GO TO
JUDGES, PARTICULARLY ARTICLE III JUDGES THAT ARE APPOINTED TO
DECIDE THESE FROM YOUR LEVEL, YOUR HONOR, UP TO THE CIRCUIT
COURT LEVEL, UP TO THE UNITED STATES SUPREME COURT.
BUT WE LOOK AT IT ON BEHALF OF OUR CLIENTS, WHO HAVE VERY
REAL AND SIGNIFICANT INTERESTS HERE, AND WE LOOK AT THOSE
OTHER CASES AND WE SAY, GOSH, WISH WE HAD A LITTLE MORE ON THE
RECORD, YOU KNOW. AND WHAT'S INTERESTING IS THE PROPONENTS OF
PROP 8 THEY ACTUALLY COULDN'T GET ANYTHING INTO THE RECORD TO
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SUPPORT THEIR POSITION. THEY -- PEOPLE RAN FOR THE HILLS.
THEIR EXPERTS WOULDN'T TESTIFY.
I WOULD SUGGEST, YOUR HONOR, AS I THINK WE ALL KNOW FROM
CIVIL PRACTICE, IF THE OTHER SIDE GIVES UP ON AN IMPORTANT
POINT OR ELEMENT, IT'S BECAUSE THEY THINK THEY CAN'T WIN IT.
I THINK THAT'S HOW THIS IS GOING TO PLAY OUT, AND I'M ENTITLED
TO ADVANCE THOSE ARGUMENTS ON BEHALF OF MY CLIENTS.
SO AM I SAYING WE WON'T FILE A SUMMARY JUDGMENT MOTION?
NO. BUT I'M SAYING THAT'S NOT THE RECORD THAT I MIGHT WANT TO
CREATE.
THE COURT: WELL, IT WON'T -- IT WON'T BE THE RECORD
ON APPEAL, RIGHT, I MEAN EVEN IF -- EVEN IF WE GO IN THIS
DIRECTION. SAY THERE ARE CROSS-MOTIONS FOR SUMMARY JUDGMENT
AND THEY'RE RESOLVED, UNLESS THOSE MOTIONS ARE ENTIRELY
DISPOSITIVE OF THE WHOLE CASE, THEN THERE WILL BE MORE WORK TO
DO. THE RECORD WILL BE --
MR. MAGLEBY: THAT'S RIGHT.
THE COURT: JUST SO WE'RE CLEAR ON ONE THING,
RIGHT, I MEAN WHAT I'M PROPOSING, OR WHAT I PROPOSED AT LEAST
AT THE OUTSET OF THE HEARING WAS NOT THAT THERE BE NO
DISCOVERY IN THIS CASE; RIGHT? I MEAN WE'RE ON THE SAME -- I
DON'T -- I HOPE I DIDN'T MISSPEAK. IT'S JUST A QUESTION OF
TIMING ABOUT WHEN THE DISCOVERY WOULD TAKE PLACE. AND --
MR. MAGLEBY: AND THANK YOU FOR -- YOU KNOW, THANK
YOU FOR CLARIFYING THAT, YOUR HONOR, BECAUSE I WAS I THINK
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OPERATING ON THE ASSUMPTION THAT THERE WOULD BE VERY LITTLE
DISCOVERY. WHAT I'M SAYING IS WE KNOW THERE'S GOING TO BE
SOME -- AT LEAST I'M VERY CONFIDENT THERE'S GOING TO BE SOME.
WHY MAKE ME WAIT TO FIND OUT.
I MEAN THE STATE MAY NOT BE ABLE TO FILE A DISPOSITIVE
MOTION IN 30 DAYS, BUT THEY OUGHT TO BE ABLE TO TELL ME WHAT
THINGS THEY'RE GOING TO CONCEDE, WHAT THEY'RE GOING TO
STIPULATE TO AND WHAT THEY'RE NOT.
THE COURT: I DON'T KNOW WHY YOU'LL GET THAT ANSWER
ANYMORE QUICKLY THROUGH DISCOVERY THAN YOU WILL THROUGH THE
FILING OF A MOTION FOR SUMMARY JUDGMENT. IT SEEMS TO ME JUST
THE OPPOSITE. BUT IF YOU FILE THAT DISCOVERY, IF YOU SERVE
THAT DISCOVERY -- AND I DON'T KNOW WHAT IT LOOKS LIKE YET.
I'VE SEEN YOUR LIST OF PROPOSED TOPICS OR AREAS. I FULLY
EXPECT THAT THERE WILL BE OBJECTIONS TO WHAT YOU'RE PROBABLY
MOST INTERESTED IN. AND THERE WILL BE BRIEFING, AND THERE
WILL BE A MOTION TO COMPEL AND A MOTION FOR PROTECTIVE ORDER
AND A HEARING. AND THEN AT THE HEARING WHAT WE'RE GOING TO
HAVE TO DECIDE IS UNDER RULE 26 IS THE DISCOVERY REASONABLY
LIKELY TO LEAD TO THE DISCOVERY OF ADMISSIBLE -- OR EXCUSE
ME -- RELEVANT EVIDENCE. AND DOESN'T THE ANSWER TO THAT TURN
ON THE VERY QUESTION THAT WE'RE TRYING TO RESOLVE IN SUMMARY
JUDGMENT IN PART? WHAT ARE THE LEGAL QUESTIONS?
MR. MAGLEBY: MAYBE, MAYBE. BUT THE STATE MAY --
FOR EXAMPLE IF I SERVED ADMISSIONS, RIGHT, THEY MAY COME BACK
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AND ADMIT THE THINGS THAT I NOW HEAR THE STATE IS WILLING TO
ADMIT THAT THEY DIDN'T ADMIT IN THE ANSWER. AND THAT TAKES
THOSE THINGS OFF THE TABLE. MAYBE THEY CAN GIVE ME THEIR LIST
OF COMPELLING GOVERNMENTAL INTERESTS. I'M NOT ASKING FOR
THEIR WHOLE BRIEF.
BUT WHAT THEY'VE TOLD YOU IS THEY DON'T THINK WE NEED TO
DO ANYTHING MORE THAN WHAT HAS ALREADY BEEN DONE. SO
PRESUMABLY THEY HAVE THEIR ANSWERS. AND THE BIG DIFFERENCE
BETWEEN THE SUMMARY JUDGMENT MOTION AND DISCOVERY IS, YOUR
HONOR, I CAN PIN THEM DOWN AND THEY CAN'T CHANGE THEIR MIND
LATER.
THE COURT: I UNDERSTAND.
MR. MAGLEBY: UNLESS YOU SAY THIS IS YOUR
DISPOSITIVE MOTION CUTOFF, AND SO WE'RE GOING TO HEAR THIS
ONCE AND WE'RE NOT -- I MEAN THERE'S A REASON COURTS SET
DISPOSITIVE MOTION CUTOFFS, RIGHT, SO YOU DON'T GET TWO OR
THREE SUMMARY JUDGMENT MOTIONS.
THE COURT: WELL, BUT THERE'S A REASON IN MOST CASES
I THINK IT MAKES SENSE TO PROCEED THROUGH FACT DISCOVERY AND
THEN THROUGH EXPERT DISCOVERY AND THEN TO MOTIONS FOR SUMMARY
JUDGMENTS. AND, YOU KNOW, AND I GUESS THE QUESTION THAT STILL
REMAINS IN MY MIND IS WHETHER A MORE DIRECT AND EXPEDITIOUS
WAY TO GET TO THE END RESULT HERE IS TO FIRST DEFINE THE
LEGAL -- EXCUSE ME, DEFINE -- WELL, DEFINE THE ISSUES THAT WE
NEED TO HAVE DISCOVERY ON, IF ANY, AND THEN FIGURE OUT WHAT
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THAT DISCOVERY IS, AND THEN -- IT WON'T TAKE LONG; RIGHT? I
MEAN IS TWO MONTHS PLENTY OF TIME FOR FACT DISCOVERY IN THIS
CASE?
MR. MAGLEBY: OH, YEAH.
THE COURT: HOW DO YOU KNOW THAT TODAY? HOW DO YOU
KNOW WHICH ISSUES ARE RELEVANT --
MR. MAGLEBY: WELL --
THE COURT: -- FOR FACT DISCOVERY?
MR. MAGLEBY: THERE ARE -- THIS IS NOT A COMPLEX
COMMERCIAL CASE WITH TENS OF THOUSANDS OF DOCUMENTS AND
MULTIPLE WITNESSES. THIS IS -- THERE'S BASICALLY A 30(B)(6)
WITNESS; RIGHT? AND I'M NOT SUGGESTING WE'RE GOING TO TAKE
THE STATE'S DEPOSITION.
THE COURT: I WAS AFRAID YOU WERE GOING TO SAY THAT.
ARE YOU GOING TO DEPOSE THE GOVERNOR? ARE YOU GOING TO ASK
THE GOVERNOR WHAT THE STATE'S INTEREST IS IN A PROPOSITION
THAT WAS ENACTED BY THE VOTERS?
MR. MAGLEBY: DEPENDING UPON WHAT HAPPENS IN THE
SUMMARY JUDGMENT HEARING AND DISCOVERY ANSWERS, I GUESS I
MIGHT. DO I WANT TO? NO. I JUST WANT TO KNOW --
THE COURT: OF COURSE YOU DO. YOU'RE A PLAINTIFF'S
LAWYER. YOU CAN'T WAIT TO GET THE GOVERNOR UNDER OATH. I
UNDERSTAND THAT.
MR. MAGLEBY: EVERY MINUTE I SPEND DEPOSING THE
GOVERNOR IS DELAY AND MONEY. WHAT I'M SAYING, YOUR HONOR, IS
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I JUST DON'T WANT TO HAVE TO DO -- YOU KNOW, THEY FILE THE
MOTIONS, WE WIN, AND THEN THEY FILE ANOTHER MOTION, THEN THEY
FILE ANOTHER MOTION.
THE COURT: THAT'S A -- THAT'S A SUPREMELY RELEVANT
POINT, MR. MAGLEBY. LET ME ASK MR. LOTT ABOUT THAT. THANK
YOU.
MR. LOTT, HOW DO WE ENSURE THAT IF WE START DOWN THIS
PATH THAT WE DON'T JUST FRUSTRATE THE WHOLE THING, THE WHOLE
DESIGN OF THIS, BY HAVING THREE ROUNDS OF SUMMARY JUDGMENT
MOTIONS?
MR. LOTT: THE STATE'S INTEREST IS RECEIVING A
DISPOSITIVE RULING DECIDING THE CASE ONE WAY OR ANOTHER.
WE'RE NOT ANTICIPATING FILING A MOTION ON JURISDICTION,
GETTING A RULING, FILING A MOTION ON DUE PROCESS, GETTING A
RULING, FILING A MOTION ON EQUAL PROTECTION, GETTING A RULING.
THAT'S NOT THE INTENT. I DON'T KNOW WHY WE WOULD DO THAT.
THE COURT: IN YOUR VIEW THE MOTION THAT YOU'RE
CONTEMPLATING, YOU'VE GIVEN SOME -- I GATHER A LOT OF THOUGHT
TO THIS, AND YOU AND YOUR COLLEAGUES HAVE TALKED ABOUT IT.
YOU THINK THE MOTION THAT YOU INTEND TO FILE IS DISPOSITIVE OF
THE CASE WIN OR LOSE, EITHER WAY?
MR. LOTT: MOST LIKELY, YES.
THE COURT: WHEN WOULDN'T IT BE?
MR. LOTT: WELL, I'M HAVING A HARD TIME FIGURING OUT
WHAT REMAINING ISSUES OF FACT WOULD BE OUTSTANDING THAT WE
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HAVE TO PURSUE, BUT IF BY SOME REASON THERE WAS AN OUTSTANDING
ISSUE OF FACT THAT THE COURT FELT LIKE IT NEEDED TO HAVE
RESOLVED ONE WAY OR ANOTHER BEFORE ISSUING A RULING OF LAW,
THAT WOULD BE ONE SCENARIO.
THE COURT: YOU PROPOSED, MR. LOTT, A DEADLINE FOR
CROSS-MOTIONS FOR SUMMARY JUDGMENT. SUPPOSE -- SUPPOSE THE
PLAINTIFFS CHOOSE NOT TO FILE A MOTION FOR SUMMARY JUDGMENT
BUT INSTEAD SEEK TO RESPOND TO THE STATE. I ASSUME UNDER
THOSE CIRCUMSTANCES THE STATE WOULD LIKE AN OPPORTUNITY TO
REPLY.
MR. LOTT: YES.
THE COURT: YOU WERE THINKING IF THEY WERE
CROSS-MOTIONS, A SINGLE OPPOSITION REALLY WOULD HAVE FRAMED
ALL THE ISSUES. BUT IF WE'RE MOVING IN TURN, I SUSPECT THAT
IF THE STATE WERE TO FILE A MOTION FOR SUMMARY JUDGMENT AND
NOT THE PLAINTIFFS, WHAT YOU WOULD RECEIVE IN OPPOSITION WOULD
BE SOME -- A GOOD NUMBER OF DECLARATIONS AND EVIDENCE THAT
YOU'D WANT SOME OPPORTUNITY TO MEET?
MR. LOTT: ABSOLUTELY.
THE COURT: IF WE GO IN THAT DIRECTION, CAN THE
STATE FILE ITS MOTION FOR SUMMARY JUDGMENT BY THE END OF
SEPTEMBER, BY SEPTEMBER 27TH?
MR. LOTT: YES.
THE COURT: ALL RIGHT. LET'S DO THIS. LET'S TAKE A
SHORT RECESS. LET ME CHEW ON --
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MR. LOTT: I THINK I MISUNDERSTOOD YOU. YOU SAID BY
SEPTEMBER 27TH. I WAS STILL THINKING OCTOBER. I BELIEVE THAT
WE WOULD NEED MORE TIME. THAT WOULD ESSENTIALLY BE 30 DAYS.
THE STATE I DON'T THINK WOULD BE READY TO FILE ITS MOTION FOR
SUMMARY JUDGMENT WITHIN 30 DAYS.
THE COURT: OKAY. YOU NEED 45 -- 45 TO 60 IS WHAT
YOU WERE SUGGESTING EARLIER?
MR. LOTT: YES.
THE COURT: MR. MAGLEBY, IF WE GO IN THIS DIRECTION,
I GUESS YOU NEED TO SEE THE MOTION, BUT CAN THE PLAINTIFFS
RESPOND IN 45 DAYS? WE'RE KEEPING IN MIND EVERYONE'S DESIRE
TO MOVE THROUGH THIS QUICKLY.
MR. MAGLEBY: YOUR HONOR, WE THINK WE CAN DO IT IN
30 DAYS, UNLESS WHAT WE NEED TO DO IS GET EXPERT DECLARATIONS,
IF WE HAVE TROUBLE GETTING THAT FROM OUR EXPERTS FOR REASONS
THAT ARE BEYOND MY CONTROL. SO IF THE QUESTION IS HOW FAST
CAN THE LAWYERS SITTING OVER HERE BRIEF THIS THING, WE'LL DO
IT IN 30 DAYS.
THE COURT: IF THAT WERE THE QUESTION, I THINK YOU
COULD DO IT IN 10. I'M CONFIDENT OF THAT.
MR. MAGLEBY: BUT WHY DON'T YOU GIVE US 30, AND IF
WE NEED HELP, WE'LL COME BACK, AND IF WE DECIDE TO DO RULE 56
WE'LL COME BACK -- OR A 56(D) I GUESS.
THE COURT: IT CHANGED, DIDN'T IT, RIGHT.
MR. MAGLEBY: IT CHANGED ON ME, AND I'M TOO OLD TO
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REMEMBER THE NEW RULES.
THE COURT: ALL RIGHT, 56(D). IS THERE ANY REASON
WE CAN'T HAVE THIS -- IF WE GO IN THIS DIRECTION, IS THERE ANY
REASON WHY WE CAN'T HAVE A HEARING ON THESE ISSUES IN EARLY
DECEMBER? I'M PROJECTING A TIME LINE FORWARD. I THINK THAT
WOULD ALL WORK. I'M GOING TO GO LOOK AT A CALENDAR, BUT I'M
NOT -- I'M GOING TO THINK SOME MORE ABOUT WHAT YOU'VE SAID,
MR. MAGLEBY, TO MAKE SURE I'M NOT --
MR. MAGLEBY: WE'VE BEEN PASSING NOTES OVER HERE
ABOUT THE HEARING DATE, AND SOMETIME BETWEEN DECEMBER 1 AND
DECEMBER 15 IS WHAT WE WERE PROPOSING. I HAVE A TRIAL AT SOME
POINT IN DECEMBER, SO I WOULD JUST LOOK AT MY CALENDAR, BUT I
THINK DECEMBER 1ST OR AROUND THEN WOULD WORK FOR US.
THE COURT: MY INCLINATION WAS TO TRY TO GET THE
PARTIES IN, IF WE COULD, IF WE GO IN THIS DIRECTION, BY THE
FIRST WEEK IN DECEMBER.
MR. MAGLEBY: UNDERSTOOD, YOUR HONOR.
THE COURT: WITH AN EYE TOWARDS TRYING TO GIVE THE
PARTIES THE BENEFIT OF SOME RULING BEFORE THE END OF THE YEAR
SO THAT WE COULD STILL -- I MEAN MY CONCEPTION OF THINGS, IF
WE GO THIS ROUTE IN LIEU OF DISCOVERY AT THE OUTSET AND THEN
MOTIONS, WE WOULD NOT BE FAR OFF THE TIME LINE YOU'VE PROPOSED
FOR GETTING TO TRIAL IN ANY EVENT.
MR. MAGLEBY: I THINK THAT'S RIGHT. I WAS GETTING
EXCITED BECAUSE FROM WHAT I WAS HEARING FROM THE STATE I
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THOUGHT WE MIGHT GET THERE SOONER, BUT --
THE COURT: WELL, WHILE I'M INTERESTED IN MOVING
EXPEDITIOUSLY, MY FIRST CONCERN, AND I SAY THIS REPEATEDLY
FROM THE BENCH, IT'S OBVIOUS, PERHAPS, BUT THE PRIMARY CONCERN
IS GETTING THE RIGHT ANSWER, AND WE'LL TAKE WHAT TIME IT TAKES
TO GET THE RIGHT ANSWER. BUT I DON'T SEE WHY WE CAN'T DO THAT
ON THE KIND OF TIME FRAME WE'VE BEEN TALKING ABOUT.
LET'S RECESS FOR A FEW MOMENTS, GIVE YOU ALL A CHANCE TO
CONSULT WITH YOUR COLLEAGUES. LET ME THINK ABOUT IT AND SPEAK
WITH MY CLERKS AND THEN WE'LL COME BACK OUT.
MR. MAGLEBY: THANK YOU, YOUR HONOR.
(RECESS FROM 2:41 P.M. UNTIL 3:00 P.M.)
THE COURT: I DON'T GET TO PRACTICE LAW ANYMORE, SO
I DON'T GET TO TELL PEOPLE HOW TO RUN THEIR CASES, AND SO I'M
NOT GOING TO DO THAT IN THIS CASE EITHER. BUT LET ME SAY
THIS, AND THEN WHAT I'M GOING TO DO IS PROPOSE TWO ALTERNATIVE
SCHEDULES, AND I'M GOING TO GIVE THE PLAINTIFFS AN ELECTION
AND I'M GOING TO GIVE YOU A DATE BY WHICH TO NOTIFY EVERYONE
WHAT YOUR ELECTION IS, AND THEN WE'LL OPERATE UNDER ONE OF THE
TWO SCHEDULES THAT YOU'LL CHOOSE.
MR. MAGLEBY: I LIKE IT, AT LEAST RIGHT NOW.
MS. TOMSIC: YOU HAVEN'T HEARD WHAT HE SAID YET.
THE COURT: MR. MAGLEBY, YOU KNOW YOUR CASE BETTER
THAN I DO, AND YOU KNOW THE ISSUES BETTER THAN I DO, AND
YOU'VE GIVEN A GREAT DEAL MORE THOUGHT TO ALL OF THIS THAN I
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HAVE. I WILL SAY THIS. WE ARE GOING TO PROCEED WITH SOME
MOTION PRACTICE AT THE BEGINNING OF THE CASE TO NARROW AND
DEFINE THE ISSUES IN THE CASE BEFORE WE GET INTO FACT
DISCOVERY.
I MEAN I STILL CAN'T ESCAPE THE IDEA THAT EVEN IF WE LEFT
TODAY AND STARTED FACT DISCOVERY, AND YOU SERVED YOUR
DISCOVERY TOMORROW, THAT WE'D BE HERE ABOUT THE TIME OF THE
SUMMARY JUDGMENT HEARING RESOLVING THE MOTIONS TO COMPEL AND
FOR PROTECTIVE ORDER. AND I JUST THINK WE CAN ADVANCE THE
BALL MUCH MORE QUICKLY AND DIRECTLY, AND I BELIEVE THE STATE
CAN BE BOUND UP IN ITS -- IN THE POSITIONS THAT IT TAKES ON
SUMMARY JUDGMENT, PARTICULARLY IF THEY'RE ALSO RESPONDING TO A
CROSS-MOTION. THIS IS THE PART WHERE I DON'T GET TO DECIDE
HOW YOU FOLKS PROCEED.
I WILL TELL YOU, AS I'VE THOUGHT ABOUT THE ISSUES, I
THINK IT WOULD BE BENEFICIAL TO THE COURT IF I HAD THE BENEFIT
OF THE GUIDANCE AND WISDOM OF BOTH PARTIES ON THE LEGAL ISSUES
AT THE BEGINNING OF THE CASE, BUT YOU'LL DECIDE HOW YOU WANT
TO PRESENT YOUR CASE AND IN WHAT ORDER AND WHICH ISSUES YOU
WANT TO PRESENT AND WHEN.
SO WITH THAT IN MIND, WE'RE GOING TO PROCEED THIS WAY.
IF THE PLAINTIFFS ELECT TO FILE CROSS-MOTIONS FOR SUMMARY
JUDGMENT, THEN WE'LL HAVE THOSE FILED ON OR BEFORE OCTOBER 11,
AND THEN WE'LL HAVE OPPOSITIONS FILED ON OR BEFORE NOVEMBER
22ND. AND THAT WILL ALLOW BOTH PARTIES TWO BRIEFS TO PRESENT
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ISSUES, AND I THINK WE WILL SQUARELY HAVE PRESENTED EVERYTHING
WE NEED TO CONSIDER LEGALLY AT THAT POINT. WE'LL ALSO KNOW OF
NECESSITY WHETHER THERE ARE FACTUAL ISSUES THAT PREVENT
RESOLVING SOME OF THOSE ISSUES ON SUMMARY JUDGMENT AT THE
OUTSET.
IF THE PLAINTIFFS CHOOSE NOT TO FILE A CROSS-MOTION FOR
SUMMARY JUDGMENT, THEN THIS WILL BE THE SCHEDULE. WE'LL HAVE
THE STATE -- WELL, THE DEFENDANTS, FILE SUMMARY JUDGMENT
MOTIONS ON OR BEFORE OCTOBER 11. WE'LL HAVE AN OPPOSITION BY
THE PLAINTIFFS ON OR BEFORE NOVEMBER 12TH. THAT'S 30 DAYS --
IT'S ACTUALLY 31, I THINK, IF I DID MY MATH WELL. I WAS BAD
AT THIS AS A LAWYER AND I'M NO BETTER AT IT AS A JUDGE, EVEN
WITH THE CALENDAR IN FRONT OF ME. AND THEN REPLIES FROM THE
DEFENDANTS ON OR BEFORE NOVEMBER 27, WHICH I STILL THINK GETS
YOU IN BEFORE THE HOLIDAY BREAK THIS YEAR BECAUSE I THINK IT'S
LATE.
MR. MAGLEBY: DID YOU SAY 27TH OR 22ND?
THE COURT: 27TH.
MR. MAGLEBY: THANK YOU.
THE COURT: AND, IN ANY EVENT, OUR HEARING WILL BE
ON DECEMBER 4TH. THAT IS A WEDNESDAY. WE'LL BEGIN AT 10:00
A.M. I'LL HOLD THE DAY. I DON'T KNOW HOW MUCH WE'LL HAVE TO
DISCUSS, BUT I GUESS IT WILL BE A LOT, AND WE'LL HEAR FROM
EVERYBODY.
SO WHAT I'M GOING TO PROPOSE, AND I'LL HEAR FROM
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EVERYBODY BEFORE WE MAKE THIS THE ORDER. WHAT I'M GOING TO
PROPOSE IS THAT THE PLAINTIFFS HAVE SEVEN DAYS TO EVALUATE HOW
THEY'D LIKE TO PROCEED AND THAT THEY'LL NOTIFY THE DEFENDANTS
WITHIN SEVEN DAYS OF TODAY WHICH SCHEDULE WE'LL BE OPERATING
UNDER. AND THEN YOU'LL JOINTLY SUBMIT AN ORDER TO THE COURT
ESSENTIALLY ENCAPSULATING WHAT I'VE DECIDED TODAY AND THE
SCHEDULE THAT WILL GOVERN.
MR. MAGLEBY, MR. LOTT, MS. GODDARD, ANY OBJECTIONS TO
PROCEEDING IN THAT WAY? ARE THERE ISSUES I HAVEN'T THOUGHT
ABOUT? SAVE, MR. MAGLEBY, FOR YOUR OBJECTIONS, OF COURSE,
YOU'D LIKE TO PROCEED WITH DISCOVERY TODAY. WE'LL RESERVE
THOSE OBJECTIONS. BUT IS THERE ANY REASON WE CAN'T PROCEED
THIS WAY?
MR. MAGLEBY: WELL, YOUR HONOR, IF YOU TELL US TO DO
IT, THERE'S NO REASON THAT WE CAN'T DO IT AND WE WILL DO IT.
WHAT I'LL ASK IS THAT WE ADD AN ADDITIONAL COMPONENT TO IT,
AND THAT IS THAT WE SET EXPERT DEADLINES FOR MAYBE 45 DAYS
AFTER YOUR HONOR RULES.
THE COURT: YOU KNOW, I ACTUALLY HAVE ONE BETTER IN
MIND FOR YOU.
MR. MAGLEBY: OH, GREAT.
THE COURT: I'M SORRY I DIDN'T GET THIS FAR. I HAVE
IN MIND THAT WE'LL ALSO SCHEDULE TODAY A STATUS CONFERENCE THE
FIRST WEEK THAT WE'RE ALL BACK AFTER THE FIRST OF THE YEAR.
THE COURT'S CLOSED ON THE 1ST, AND I THINK LAST YEAR -- I
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CAN'T RECALL IF WE WERE OPEN ON THE 2ND, BUT WHAT I HAD IN
MIND IS HAVING EVERYBODY IN THE FIRST MONDAY IN JANUARY -- OR
PROBABLY TUESDAY INSTEAD, TUESDAY JANUARY 7TH, FOR A STATUS
AND SCHEDULING CONFERENCE. MY EXPECTATION IS THAT YOU WOULD
ALL HAVE A RULING FROM ME IN ADVANCE OF THAT DATE.
AND AT THAT TIME, IF THERE -- IF THE CASE IS NOT -- IF
THE MOTIONS WEREN'T DISPOSITIVE OF THE CASE, THEN WE'LL BE
CHARTING A COURSE, SETTING A TRIAL DATE, IDENTIFYING THE
DISCOVERY THAT NEEDS TO BE COMPLETED, DEADLINES FOR THE
DISCOVERY, AND THE LIKE.
MR. MAGLEBY: THANK YOU, YOUR HONOR. THAT ADDRESSES
MY ONE CONCERN. WHAT I WOULD ALSO LIKE TO KNOW, AND I DON'T
KNOW IF THERE'S -- HOW WE DO THIS, BUT THERE'S REALLY TWO
ISSUES THAT ARE GOING TO RELATE TO WHETHER WE FILE A
CROSS-MOTION FOR SUMMARY JUDGMENT, AND ONE IS WHAT ARE THE
FACTS THE STATE IS WILLING TO STIPULATE TO. SO, FOR EXAMPLE,
SOME OF THE THINGS MR. LOTT MENTIONED, THEY COULD EASILY
CONTEST THOSE IF THEY CHANGE THEIR MIND AND DECIDED TO CONTEST
WHETHER OR NOT OUR CLIENTS ARE IN A COMMITTED RELATIONSHIP.
THE COURT: WELL, YOU KNOW THE ANSWER TO THAT. IF
YOU INCLUDE THOSE FACTS IN YOUR MOTION FOR SUMMARY JUDGMENT --
MR. MAGLEBY: IT'S SOMETHING THAT I WOULD LIKE TO
KNOW BEFORE I SPEND THE TIME AND MONEY. AND I WOULD LIKE TO
KNOW -- IN ADDITION, THIS IS MORE IMPORTANT FOR ME IN MAKING
THAT DECISION IS WHAT ARE THE -- WHAT INTEREST IS THE STATE
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GOING TO ADVANCE AS PART OF ITS IMPORTANT GOVERNMENT PURPOSE
OR LEGITIMATE STATE INTEREST. AND I DON'T NEED A DISCOVERY
ANSWER. I JUST NEED A LIST OF WHAT THOSE ARE BECAUSE THEN I
CAN GO GET MY EXPERTS AND THEN WE CAN DECIDE, HEY, WE THINK
WE'VE GOT A SHOT AT SUMMARY JUDGMENT ON THESE. SO THAT WOULD
BE THE COMPONENT THAT I WOULD ASK THE COURT TO HAVE THEM GIVE
US THAT LIST 30 OR 45 DAYS FROM NOW.
THE COURT: I UNDERSTAND YOUR POSITION. IN PART
BECAUSE OF THE PROCEDURAL POSTURE OF THIS CASE, I'VE DONE JUST
ENOUGH RESEARCH INTO ALL OF THIS TO BE DANGEROUS, AND PROBABLY
LEGALLY INCORRECT. BUT I THINK -- I REALLY THINK THE ANSWER
TO THAT QUESTION TURNS ON THE LEVEL OF SCRUTINY THAT WE APPLY
IN THIS CASE. IF IT'S A RATIONAL BASIS LEVEL OF SCRUTINY THAT
APPLIES, FOR EXAMPLE, I DON'T THINK THE STATE HAS AN
AFFIRMATIVE BURDEN TO COME FORWARD AND IDENTIFY THE -- I'M NOT
SURE ABOUT THIS, BUT I DON'T THINK THEY HAVE THE BURDEN TO
COME FORWARD AND SAY THIS AMENDMENT ADDRESSES THESE
RATIONAL -- OR HERE IS A LIST OF RATIONAL BASES FOR THAT
AMENDMENT.
I THINK THE CASE LAW SAYS THAT I'M REQUIRED TO DETERMINE
THAT THERE ARE NONE, I THINK. I'M NOT SURE OF THAT. I
HAVEN'T RESEARCHED THAT QUESTION EXHAUSTIVELY, BUT WE'LL KNOW
THE ANSWER TO THAT QUESTION AFTER WE GET YOUR MOTIONS AND I
REVOLVE THEM.
I THINK I GET WHERE YOU'RE GOING, BUT I THINK WE'RE
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PUTTING THE CART BEFORE THE HORSE. HOW ARE WE NOT? MAYBE WE
HAD THIS DISCUSSION IN PART ALREADY. MAYBE I'M JUST NOT
CATCHING IT.
MR. MAGLEBY: WELL, YOUR HONOR, IF THEY'RE NOT
WILLING TO ADVANCE ANY, I MEAN IF THEY'RE GOING TO SAY IT IS
A RATIONAL BASIS PERIOD, WE'RE NOT GOING TO COME FORWARD,
THAT'S NOT OUR BURDEN, THAT'S HELPFUL FOR ME TO KNOW IN
DECIDING WHETHER TO FILE A CROSS-MOTION FOR SUMMARY JUDGMENT.
I MEAN I WANT TO KNOW WHAT THEY'RE GOING TO STIPULATE TO IN
TERMS OF FACTS AND WHAT THEY'RE NOT GOING TO CONTEST.
THE COURT: I'M NOT INCLINED TO ORDER THEM TO GIVE
YOU THAT INFORMATION BEFORE YOU MAKE YOUR DECISION.
BUT, MR. LOTT, WHAT'S YOUR ANSWER TO THAT? CAN YOU
ANSWER THAT QUESTION? DO YOU KNOW THE ANSWER TO THAT
QUESTION?
MR. LOTT: I DON'T KNOW THE ANSWER TO THAT QUESTION.
THE COURT: HOW CAN YOU KNOW THE ANSWER TO THAT
QUESTION?
MR. LOTT: I CAN'T.
THE COURT: WELL, YOU WILL -- AT SOME POINT YOU'LL
KNOW THE ANSWER TO THAT QUESTION.
MR. LOTT: WHEN WE FILE OUR MOTION -- AND I DON'T
WANT TO COMMIT TO A POSITION, BUT I DON'T SEE HOW WE WOULD
STIPULATE TO WHAT I WOULD CONSIDER TO BE A LEGISLATIVE FACT.
I THINK THE VIEWS ARE QUITE DIFFERENT, AND I DON'T KNOW WHAT
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WE WOULD STIPULATE TO AS FAR AS THAT'S CONCERNED.
I FORESEE THAT WE MAY STIPULATE TO SOME OF THE
ADJUTICATIVE FACTS REGARDING THE PARTIES THEMSELVES, BUT I
DON'T KNOW WHAT ELSE TO SAY.
THE COURT: THANK YOU, MR. LOTT. I MEAN I'LL TELL
YOU, MR. MAGLEBY, THIS IS ONE OF THE REASONS THAT I THINK IT
WOULD BE HELPFUL FOR THE COURT IF THERE WERE TWO MOTIONS IN
FRONT OF ME. IF THERE WERE CROSS-MOTIONS, I THINK WE WOULD
DEVELOP AND RESOLVE THESE VERY QUESTIONS. BUT I'M NOT TELLING
YOU TO FILE A MOTION FOR SUMMARY JUDGMENT, AND I'M NOT
ORDERING YOU TO DO IT, AND IT MAY BE THAT THERE ARE VERY GOOD
REASONS WHY YOU SHOULDN'T OR DON'T WANT TO.
I THINK IT WOULD BE HELPFUL. I ESPECIALLY THINK IT WOULD
BE HELPFUL IN PINNING DOWN THE RESPECTIVE POSITIONS OF THE
PARTIES BECAUSE THEY WILL IN FACT BE RESPONDING TO YOUR
STATEMENT OF MATERIAL FACTS IF YOU INCLUDE ONE, IF YOU FILE A
MOTION. AND I THINK THAT'S SOMETHING THAT WOULD BE BINDING ON
BOTH PARTIES, THOSE RESPONSES, THROUGHOUT THE LITIGATION.
LET ME QUALIFY THAT. I'M NOT CERTAIN OF THAT UNDER THE
CASE LAW, BUT I BELIEVE THAT TO BE TRUE.
GO AHEAD, MR. MAGLEBY, TAKE A MOMENT.
MR. MAGLEBY: IF I COULD JUST TALK TO MS. TOMSIC FOR
ONE SECOND?
THE COURT: TAKE WHATEVER TIME YOU NEED. IN FACT,
IF YOU'D LIKED ANOTHER RECESS TO CONSULT, WE CAN DO THAT.
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WHATEVER YOU'D LIKE.
MR. MAGLEBY: I THINK IT WILL BE SHORT, AND IF IT
WON'T, THEN I'LL TELL YOU.
(BRIEF PAUSE)
MR. MAGLEBY: YOUR HONOR, THE CONSIDERATION WE'RE
HAVING IS IF WE CHOOSE TO FILE A CROSS-MOTION FOR SUMMARY
JUDGMENT, THEN ARE WE GOING TO BE DONE WITH SUMMARY JUDGMENT
MOTIONS THEN? I MEAN THE STATE HAS SAID, I THINK, THAT
THEY'RE ALL IN ON THIS FIRST MOTION. AND IF I KNOW THAT'S THE
CASE, I'M NOT GOING TO BE GETTING A SECOND OR A THIRD MOTION
OR REQUESTS FOR A CONTINUANCE OF THE TRIAL, THAT'S ALSO AN
IMPORTANT FACT. AND SO I WOULD EITHER ASK THE STATE TO TELL
US THAT OR COMMIT TO THAT OR FOR THE COURT TO ORDER IT.
THE COURT: THESE ARE THE HYPOTHETICALS THAT I SPENT
A GREAT DEAL OF TIME THINKING ABOUT WHEN I WAS TRYING TO THINK
ABOUT THE SCHEDULE THAT MIGHT APPLY IN THE CASE. MY
PERCEPTION IS THAT CROSS-MOTIONS FOR SUMMARY JUDGMENT LIKELY
COULD BE DISPOSITIVE OF THE CASE TOO, BUT IF THEY'RE NOT, IT
SEEMS TO ME THEN WE'RE JUST SETTING A TRIAL ON THE ISSUES
WE'VE IDENTIFIED THAT ARE IN DISPUTE.
I'M NOT GOING TO ORDER A PARTY TO COMMIT TO THAT BEFORE
THEY'VE SEEN -- BEFORE THEY'VE SUBMITTED THEIR OWN MOTION OR
SEEN YOURS. AND I DON'T KNOW. THIS IS PRECISELY WHY I THINK
MOTIONS WILL HELP ALL OF US UNDERSTAND WHAT IT IS WE NEED TO
ADDRESS AND RESOLVE IN THIS CASE.
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BUT, MR. LOTT.
MR. LOTT: ALL I WAS GOING TO SAY IS I CAN'T COMMIT
THAT WE'RE NOT GOING TO FILE ANY ADDITIONAL MOTIONS BECAUSE
DEPENDING ON WHAT THE COURT RULES, IT MAY IMPACT WHAT
DIRECTION WE GO FROM THAT POINT. IT'S GOING TO DEPEND ON THE
COURT'S RULING.
THE COURT: WHAT I'M NOT GOING TO ENTERTAIN AND WHAT
NONE OF YOU WILL WANT TO ENTERTAIN IS RELITIGATING ISSUES THAT
ARE RESOLVED. SO INSOFAR AS YOUR MOTIONS PRESENT ISSUES, THEY
WILL BE RESOLVED, AND THEY WILL BE FINALLY RESOLVED PENDING AN
APPEAL THAT EITHER OR BOTH OF YOU MAY WISH TO TAKE. SO WE
WON'T BE RELITIGATING ISSUES THAT ARE RAISED AND ANSWERED.
MR. MAGLEBY: THANK YOU, YOUR HONOR.
THE COURT: DOES THAT HELP AT ALL, MR. MAGLEBY?
MR. MAGLEBY: IT DOES HELP.
THE COURT: OKAY, ALL RIGHT. WHAT AM I FORGETTING?
WHAT ELSE CAN WE ADDRESS? WHAT ELSE CAN I DO TO HELP ALL OF
YOU? IS THERE ANYTHING MORE WE SHOULD TAKE UP?
MS. GODDARD, YOU'VE BEEN QUIET. AM I BOXING YOU OUT OF
THIS DISCUSSION?
MS. GODDARD: NOTHING FROM US, YOUR HONOR.
THE COURT: ALL RIGHT. MR. LOTT, ANYTHING FURTHER
YOU THINK WE SHOULD ADDRESS?
MR. LOTT: I DON'T BELIEVE SO, YOUR HONOR.
THE COURT: WHILE --
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MS. TOMSIC: YOUR HONOR, COULD WE GET A TIME ON
JANUARY 7TH FOR THE STATUS CONFERENCE?
THE COURT: I WROTE IT DOWN RIGHT HERE. IT WILL BE
10:00 A.M.
MS. TOMSIC: ALL RIGHT.
THE COURT: AND I'LL JUST ASK YOU TO INCLUDE THAT IN
THE ORDER THAT YOU SUBMIT TO THE COURT, PLEASE.
AND, MR. MAGLEBY, I'LL ASK YOU TO DRAFT THAT ORDER WITH
INPUT AND CONSULTATION, OF COURSE, WITH MR. LOTT AFTER YOU'VE
MADE YOUR ELECTION, WHICH SHOULD BE BY THE END OF DAY SEVEN
DAYS FROM TODAY. IS THAT ENOUGH TIME FOR YOU TO DECIDE?
MR. MAGLEBY: THAT IS, YOUR HONOR. I ALWAYS HAVE TO
ASK THIS BECAUSE I'M ALWAYS CONFUSED BY THIS. IS THAT SEVEN
BUSINESS DAYS OR IS THAT SEVEN CALENDAR DAYS?
THE COURT: LET'S HAVE YOU FILE THAT, FILE THE ORDER
WITH THE COURT, ON -- MAKE YOUR -- WELL, MAKE YOUR ELECTION
BY -- MAKE YOUR ELECTION BY 3:00 P.M. NEXT TUESDAY, SEPTEMBER
3RD, AND THEN YOU CAN ALL JUST SUBMIT THE ORDER WHENEVER IS
CONVENIENT AFTER THAT. YOUR SCHEDULES WILL BE IMPACTED BEFORE
OURS.
MR. MAGLEBY: THANK YOU, YOUR HONOR.
THE COURT: IS THERE ANYTHING ELSE YOU THINK WE
SHOULD TAKE UP TODAY, MR. MAGLEBY?
MR. MAGLEBY: NOTHING FROM US, YOUR HONOR.
THE COURT: ALL RIGHT. WELL, THANK YOU ALL FOR YOUR
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PATIENCE. WE'RE HAPPY TO HAVE YOU HERE, AND WE LOOK FORWARD
TO TRYING TO GET THROUGH THIS TOGETHER, SO WE'LL BE IN RECESS.
MR. MAGLEBY: THANK YOU, YOUR HONOR.
(HEARING CONCLUDED AT 3:15 P.M.)
* * *
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CERTIFICATE OF REPORTER
I, RAYMOND P. FENLON, OFFICIAL COURT REPORTER FOR THE
UNITED STATES DISTRICT COURT, DISTRICT OF UTAH, DO HEREBY
CERTIFY THAT I REPORTED IN MY OFFICIAL CAPACITY, THE
PROCEEDINGS HAD UPON THE HEARING IN THE CASE OF
KITCHEN, ET AL. VS. HERBERT, ET AL., CASE NO. 2:13-CV-217,
IN SAID COURT, ON THE 27TH DAY OF AUGUST, 2013.
I FURTHER CERTIFY THAT THE FOREGOING PAGES CONSTITUTE
THE OFFICIAL TRANSCRIPT OF SAID PROCEEDINGS AS TAKEN FROM MY
MACHINE SHORTHAND NOTES.
IN WITNESS WHEREOF, I HAVE HERETO SUBSCRIBED MY NAME
THIS 6TH DAY OF SEPTEMBER, 2013.
/S/ RAYMOND P. FENLON
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