2:14-cv-00200 #18

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Peter K. Michael, (Wyo. Bar. No. 5-2309)

Attorney General of WyomingMartin L. Hardsocg (Wyo. Bar No. 6-2919)

Deputy Attorney General

James C. Kaste, (Wyo. Bar No. 6-3244)


Jared S. Crecelius (Wyo. Bar No. 6-4118)

Senior Assistant Attorney General

Ryan T. Schelhaas (Wyo. Bar No. 6-3321)Senior Assistant Attorney General

Michael M. Robinson (Wyo. Bar. No. 6-2658)Senior Assistant Attorney General

Wyoming Attorney Generals Office

123 State Capitol Building

Cheyenne, WY 82002

(307) 777-7876

(307) 777-3687 fax

UNITED STATES DISTRICT COURT

DISTRICT OF WYOMING

Anne Marie Guzzo and Bonnie Robinson; )Ivan Williams and Charles Killion; )

Brie Barth and Shelly Montgomery; )

Carl Oleson and Rob Johnston; and )

Wyoming Equality, )

)

Plaintiffs, )

)

v. ) Civil No. 14-CV-200-SWS

)

Matthew H. Mead, in his official capacity as )the Governor of Wyoming; Dean Fausset, in )

his official capacity as Director of the )

Wyoming Department of Administration and )

Information; Dave Urquidez, in his official )

Capacity as Administrator of the State of )

Wyoming Human Resources Division; and )

Debra K. Lathrop, in her official capacity )

as Laramie County Clerk, )

)

Defendants. )

GOVERNOR MEADS MOTION TO QUASH SUBPOENA

Case 2:14-cv-00200-SWS Document 18 Filed 10/13/14 Page 1 of 9

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Defendant, Governor Matthew H. Mead, through the Office of the Attorney

General, hereby moves to quash the Subpoena to Appear and Testify at a Hearing or Trial

in a Civil Action, served on Governor Meads Deputy Chief of Staff by Plaintiffs on

October 9, 2014. In support of this motion, Governor Mead states as follows:

1. On October 7, 2014, Plaintiffs initiated this case by filing their Complaint

for Declaratory and Injunctive Relief, alleging that the State of Wyoming unlawfully

denies same sex couples the right to marry. Compl. at 1. The following day, Plaintiffs

filed a motion for a preliminary injunction and temporary restraining order barring the

Defendants from enforcing Wyo. Stat. Ann. 20-1-101 and requiring them to issue or

permit the issuance of marriage licenses to same sex couples. Mot. for Prelim. Inj. at

9-10. On October 9, 2014, the Court set Plaintiffs motion for preliminary injunction for

hearing on October 16, 2014, at 10:00 a.m., in Casper, Wyoming. Despite regular

communications between the parties both before and after the filing of this suit, counsel

for Governor Mead was not advised that Plaintiffs would seek to compel the Governor to

testify at the hearing.

2. On the evening of October 9, 2014, five minutes before the scheduled start

of a debate between gubernatorial candidates, two unidentified individuals approached

Governor Meads staff and security detail on the campus of Casper College. Mead Aff.

at 2. These individuals attempted to serve Governor Mead with a Subpoena to Appear

and Testify at a Hearing or Trial in a Civil Action commanding Governor Mead to appear

at the hearing of Plaintiffs motion for preliminary injunction. Id. Governor Meads

Deputy Chief of Staff received the subpoena on his behalf, and a copy of the subpoena is


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attached hereto as Exhibit A.1 Id. At no time prior to service of the subpoena did

Plaintiffs approach counsel for Governor Mead to inquire whether they would accept

service of the subpoena on his behalf.2

3. Under Federal Rule of Civil Procedure 45, on timely motion a court must

quash or modify a subpoena that either fails to allow a reasonable time to comply or

subjects a person to an undue burden. Fed. R. Civ. P. 45(d)(3)(A)(i) and (iii). This

subpoena should be quashed for both reasons.

4. First, the subpoena fails to give Governor Mead a reasonable time to

comply. Although Rule 45 does not define reasonable time, many courts have found

that anything less than fourteen days from the date of service is not reasonable. SEC v.

Art Intellect, Inc., 2012 WL 776244, at *3 fn.43 (D. Utah March 7, 2012) (listing cases);

Tri Investments, Inc. v. Aiken Cost Consultants, 2011 WL 5330295, at *2 (W.D.N.C.

November 7, 2011) (citing cases).

5. This subpoena only gives Governor Mead seven total and five working

days notice of the hearing. Ex. A. For most witnesses five working days notice does not

provide enough time to rearrange their professional and personal schedules without

1Governor Mead does not assert that service of the subpoena was defective because it

was accepted by the Deputy Chief of Staff rather than served on the Governor personally.

See Fed. R. Civ. P. 45 (b)(1). However, the subpoena was not accompanied by therequired witness fee and mileage allowance. Id.

2 Concerned that service upon the Deputy Chief of Staff was defective, upon the

suggestion of counsel for Governor Mead, Plaintiffs eventually requested, and counsel

for Governor Mead did accept service of the subpoena in the late afternoon on October

10, 2014.


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imposing a hardship on them and the people around them. This is even more true for the

Governor of a state and the citizens who have made their way onto his busy schedule. In

fact, Governor Mead has multiple preexisting commitments that make it nearly

impossible for him to attend the hearing. Mead Aff. at 3. On the night before the

hearing Governor Mead will be in Cheyenne for a long scheduled Industry Roundtable

Reception and Dinner with many attendees who are traveling from out of state for the

event. Id. The following day, in addition to a host of other meetings and duties, he is

scheduled to travel from Cheyenne to Riverton for a gubernatorial debate. Id. These

debates are scheduled long in advance and cannot be rescheduled. Id. Governor Mead

cannot attend the hearing as commanded by the subpoena without significantly disrupting

the plans of a host of different individuals and potentially missing the debate. Id.

6. Accordingly, at a minimum, the subpoena should be quashed for failing to

allow Governor Mead a reasonable time to comply. Moreover, and more importantly, the

subpoena should be quashed because it imposes an undue burden on Governor Mead to

require his testimony at a hearing where he has no personal knowledge of any of the facts

likely to be at issue. Mead Aff. at 4.

7. In evaluating a motion to quash a subpoena, the district court may consider

whether (i) the subpoena was issued primarily for purposes of harassment, (ii) there are

other viable means to obtain the same evidence, and (iii) to what extent the information

sought is relevant, nonprivileged, and crucial to the moving party's case. Bogosian v.

Woloohojian Realty Corp., 323 F.3d 55. 66 (1st Cir.2003). The Court may quash or

modify a subpoena that is unreasonable on the basis of annoyance, embarrassment,


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oppression, or undue burden or expense or seeks privileged or otherwise protected

information. Meacham v. Church, 2010 WL 1576711, at *2 (D. Utah April 19, 2010).

The Court also considers whether the information is necessary and available from any

other source. Id.(quoting 9A Fed. Prac. & Proc. Civ. 2463.1).

8. These same considerations are at issue when a party has subpoenaed a

government employee to testify. When a government employee is subpoenaed, the court

must determine whether it would be an undue burden for the government to produce [the

employee] and to weigh that burden against the Plaintiffs need for the testimony.

Solomon v. Nassau County, 274 F.R.D. 455, 458 (E.D.N.Y. 2011). [] Department heads

and similarly high-ranking officials should not ordinarily be compelled to testify unless it

has been established that the testimony to be elicited is necessary and relevant and

unavailable from a lesser ranking officer. Halderman v. Pennhurst State Sch. &

Hosp., 96 F.R.D. 60, 64 (E.D. Pa. 1982) (citing Sneaker Circus, Inc. v. Carter, 457 F.

Supp. 771, 794 n. 33 (E.D.N.Y.1978) (emphasis added); United States v. Northside

Realty Assoc., 324 F. Supp. 287, 293 (N.D. Ga. 1971)). Because [h]igh ranking

government officials have greater duties and time constraints than other witnesses ...

[they] should not, absent extraordinary circumstances, be called to testify regarding

their reasons for taking official actions. In re U.S., 197 F.3d 310, 313 (8th Cir. 1999)

(citations and internal quotations omitted) (emphasis added).

9. In this case, Governor Mead has no necessary or relevant information to

offer on any of the four factors the Court must consider at the hearing on the motion for

preliminary injunction. Neither Governor Mead, nor any member of his staff, are


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11. The same reasoning holds true in this case. Governor Mead does not make

the decision to grant or deny marriage licenses in Wyoming, does not have any authority

over the individuals who make these decisions, and he does not determine who is or is

not eligible for any particular state benefit. As a result, he has no facts to offer the Court

on any of the four factors at issue in these preliminary injunction proceedings.

Accordingly, it would be an undue burden on him to testify in these proceedings, and the

subpoena should be quashed.

12. Moreover, the Court can infer from the Governors lack of personal

knowledge and the manner and timing of service that the subpoena was issued primarily

for the purposes of harassment and annoyance. The Attorney Generals Office routinely

accepts service of process for the State, its officers, and agencies, and most certainly

would have done so in this case, had it been given the opportunity. There is simply no

need for and no excuse for approaching the Governor immediately before a debate

without first seeking to secure an acceptance of service from counsel. Similarly, there is

no legitimate reason for attempting to elicit the testimony of the Governor in this matter,

particularly where doing so would disrupt his ability to participate in a gubernatorial

debate.

13. In conformity with U.S.D.C.L.R. 7.1 counsel for Governor Mead conferred

with counsel for the Plaintiffs about this motion on October 10-11, 2014, but the parties

were unable to resolve their dispute. Plaintiffs did offer to attempt to arrange either a

video deposition or a video conference to allow Governor Mead to testify at the hearing,

but that offer is neither reasonable nor appropriate. Neither suggestion cures the untimely


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notice or addresses the fact that Governor Meads schedule is already full. More

importantly, even if the notice had not been untimely, Governor Mead still has no factual

information to offer at the hearing and this subpoena appears calculated merely to harass

and annoy the Governor right before an important debate.

WHEREFORE Governor Mead requests that the Court quash the subpoena

commanding his attendance at the hearing on Plaintiffs Motion for Preliminary

Injunction.

Dated this 13th

day of October, 2014.

OFFICE OF THE ATTORNEY GENERAL

/s/James C. Kaste


Attorney General of Wyoming

Martin L. Hardsocg (Wyo. Bar No. 6-2919)



Deputy Attorney GeneralJared S. Crecelius (Wyo. Bar No. 6-4118)


Ryan T. Schelhaas (Wyo. Bar No. 6-3321)


Michael M. Robinson (Wyo. Bar. No. 6-2658)


Attorneys for the State Defendants


Cheyenne, WY 82002

(307) 777-7876

(307) 777-3687 fax

[email protected]

[email protected]

[email protected]

[email protected]

[email protected]

[email protected]

mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]

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I certify that on this 13th day of October, 2014, I electronically filed the foregoing

with the CM/ECF system which sent notice to the following:

Tracy L. Zubrod James Lyman

[email protected] Thomas W. Stoever, Jr.

[email protected]

Qusair Mohamedbhai Shannon P. Minter

[email protected] Christopher F. Stoll

[email protected]

/s/James C. Kaste

James C. Kaste

mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]

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EXHIBIT

Case 2:14-cv-00200-SWS Document 18-1 Filed 10/13/14 Page 1 of 3

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I

t\0

.

8

( lev. IUI3)

SubpocM

to

Appear nnd

Temlfy nl

"Hearing orTrlalln a Civil Action

UNITED STATES DISTRICT OURT

for the

District

of Wyoming

.. .--..b n.e

Marie Guzzo et

al.

)

Plalnli.ff

)

v )

Civil Action No. 14-cv-00200SWS

M ~ l i D _ e Y _ t : . M e a d , Governor of Wyoming et ?..h._. )

Defendam )

SUBPOENA

TO APPEAR AND TESTIFY

AT

A

HEARING

OR TRIAL IN A CIVIL ACTION

To: Governor

Matthew

H. Mead

-----------. . . N.,. , . .a_m_e .. if ...pe.-rs-on_t_o

,' ' 'vlr,.....om..--,.th.,..fs-.subpo-en-a ':'ls-d:-:-ire-c-ted)-::-----------

YOU ARE COMMANDED to

appear

in the

United

States

district

court at the

time,

date

1

and

place

set

forth below

to

testIfy

at a

hearing

or trial

in

this

civil action.

When you

arrive,

you

must remain at the court

until

the

judge or

a

court

officet allows you to leave.

lPlace:

Ewing

f.KerrFederal Building

Courtroom No.: 2

1 111 South Wolcott St.

~ ~ ~ - = - " ' : ' " - - - - - - - - - - - - - -

Date

and Time: 10/16/201410:00

am

I

asper

WY

82601-2534

.. ---..

You must also bring with you

the

following documents, electronically stored information, or objects (leaw bftmk If

llll

llf1 11/r:able.J:

The

following

provisions of Fed.

R.

Civ. P. 45 are attached-

Rule

45(c)

1

relating to the

place

of

o m p l i a n c e ~

Rule 45(d), relating to your protection as a

person

subject

to

a subpoena; and

Rule

45(e)

and (g),

relating to your

duty

to

respond to

this subpoena

and

the

potential consequences ofnot

doing

so.

()ale:

10/09/2014

CLERK OF COURT

OR

S gtte1111re ofClerk

or

Deputy Clerk

The

name, address.

e-mail

address,

and

telephone

number

of

the

attorney

representing

name

()jpal ly)

All

Plaintiffs

Anne

Marie

Guzzo, et al. , who issues

or

requests this subpoena, are:

L James Lyman;

ARNOLD

& PORTER LLP; 370

Seventeenth Street,

Suite 4400,

Denver,

Colorado 60202-1370;

Telephone:

(303) 8 6 3 ~ 1 0 0 0 ; Email: [email protected]

Notice to the person

who

issues or

requests

this subpoena

Ir his subpoena

commands

the

production

of documents, electronically stored i n f o r m t i o n ~ or tangible things,

a notice

nnd n

copy

of the

subpoena must be served

on

each

party

in this

oase before

it

is served

on the person to whom It

is

directed. Fed. R Civ. P

45(a)(4). ,

, 11r muumwu


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;

)

i\0 1\ l I R ~ - v . 12/13) Subpoc:

to p p e ~

and 'l'cstll' f at n f;enringorTrial hu Civil Action (pngc

l)

Federal Rule ()fCivil Procedure 45 (c), (d), (e), nd (g) (Effectiwe 12/1/13)

( ~ ) lAce t l f C o m p i i M n c ~ .

(1) For n

Trln/,

Htnrl11g,

or DtpMitlon. A aubpoeno

mny

command

fllll'l\Un tn

attend ntrinl, heatlng. or deposition only

as

follows:

(t\) within 100 miles ofwht:rc the ptrton rtsidcs,. is employed. or

n:I)Ulnrlv

transacts

b u s i n e s ~

In

person: or

(ll} \Vitllin

till:

statu where the

person

resides.

employed,

or regularly

t r n R l l l \ ~ 1 ~ business lrt

person.

lftllc porson

(I) Is aJlnrty or upmty's

officer;at

(II) eommundud

to attend

a ttinl

nnd would

no' Incur

aubstnntlnl

i:Sfl\)nill.l,

l) Fnr Othl r D/sctJvl ry, A subpocnn

mey

commnnd:

(;\)production ol'ckJcumeniS. e el.'tl'llnicnlly Stot'l:d infhrrnlltlolt.

or

tUilJ ,ihlc things nt

a i ~ ~ C ~ :

within 100 milt:.,

nfwhcte

the person resides, Is

l lllttlnyl tl, nr regularly transncts

business

In

person: 11nd

(ll)fllSflUCiion orprcmlSCl D\

the

prel1l1Ses

to be inspected.

(d)

Pr111attlng a Person

Subject to

a

Subpocllhll'i:nforcemeut.

( )

iiV()/ttlug tl111lm

Bttrtlllll or

Expell.ft:l

Sttnctlont. A p11rty or

attorney

M'Jiilll -lihlc

lor Issuing nnd serving a subpnena m11st ll1kc reli$0nabte

steps

tunvold

Imposing

undue burden or

expense

on 11 plli'SOn s u b j c ~ ' l to the

~ u h ) < l l l \ a , 1'1\u oourt fur Ute district. whcro cotnpllanco is

required

must

.:unucu this

duty and

Impose an appruprintc Sllttetlon-which may Include

l u ~ ' t

unmings

and

n:nsonabh:

attorney'$ fees-on o

party or

atturney

who

f n i l ~

In

oon1ply.

l) C'umm1tntlto

Pt11duce Mnterlnfs

nr Pf lrtrtlt

ltrspectloll,

(,\)

.lppunmnct

Not Rtqulred. Apetron c o m m a n d ~ d to produce

thlcllmcnlll. ch:ctronlcally

stored

intorn1ation. or t"n&ible things, or to

purmltthc

lnspectinn o f p r c m i s ~ : s . need

not

nppear

in

person

at

the

plnoe

or

p r t ~ U e t h m or lnspcetlon unless also c o t n m ~ ~ n c l o d to uppenr ror ndepositlort,

huurin .l. ur trinl.

(\1) Oh}tctlmrs.

Aporno\' oonlmDndc,l to pro

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Attorney General of WyomingMartin L. Hardsocg (Wyo. Bar No. 6-2919)





Senior Assistant Attorney GeneralRyan T. Schelhaas (Wyo. Bar No. 6-3321)


Michael M. Robinson (Wyo. Bar. No. 6-2658)Senior Assistant Attorney General



Cheyenne, WY 82002

(307) 777-7876

(307) 777-3687 fax


DISTRICT OF WYOMING




Wyoming Equality, )

)

Plaintiffs, )

)


)









)

Defendants. )

AFFIDAVIT OF MATTHEW H. MEAD

Matthew H. Mead, being first duly sworn, deposes and states of his own knowledge:

I. I am the Governor of the State of Wyoming and a Defendant in this matter. I

have knowledge of the facts stated herein from my ownpersonal knowledge and am competent

to testify thereto.


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2.

On the evening

o

October

9

2014, five minutes before the scheduled start

o

a

debate between gubernatorial candidates, two unidentified individuals approached my staff and

security detail on the campus

o

Casper College. These individuals attempted to reach me, and

my Deputy Chief

o

Staff received a Subpoena to Appear and Testify at a Hearing or Trial in a

Civil Action. The subpoena commands me to appear and testify at the hearing on Plaintiffs

Motion for Preliminary Injunction and Temporary Restraining Order on October 16, 2014, at

10:00 a.m. in Casper, Wyoming. This subpoena does not allow me a reasonable time to comply,

subjects me to

an

undue burden, and any testimony I might be asked to provide

is

not necessary

or relevant

to

the proceedings before the Court.

3.

As

an initial matter, the subpoena only gives me seven total and five working

days notice

o

the hearing. I have multiple preexisting commitments that make it very

burdensome for

me

to attend the hearing. On the night before the hearing I will be in Cheyenne

for a long scheduled Industry Roundtable Reception and Dinner with attendees who are traveling

from out

o

state for the event. The following day, in addition to a host

o

other meetings and

duties, I am scheduled to travel from Cheyenne to Riverton for a gubernatorial debate. These

debates are scheduled long in advance. I cannot attend the hearing as commanded by the

subpoena without significantly disrupting the plans

o

a host

o

different individuals and

potentially missing the debate.

4.

Moreover, I have no personal knowledge

o

any facts likely to

be

at issue at the

hearing on the Plaintiffs motion for preliminary injunction. I am not responsible for issuing

marriage licenses in Wyoming. Similarly, I have no personal knowledge or control over the

determination

o

eligibility for benefits provided by the State

o

Wyoming to married couples.

These determinations are made by other individuals within the executive branch o government.


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Because information related to my decisions with regard to the defense o Wyoming statutes in

this and other cases is privileged, I do not have any testimony information that would assist the

Court in its resolution o the motion for preliminary injunction.

FURTHER AFFIANT SA YETH NAUGHT.

DATED this 0 day o October, 2014.

_g: r?

Matthew H. Mead

STATE OF WYOMING

COUNTY OF LARAMIE

ss

The foregoing AFFIDAVIT OF MATTHEW H MEAD was subscribed and sworn to

before me by Matthew H Mead this _jQ_ day

o

October, 2014.

Witness my hand and official seal.

My Commission Expires:

J/ /

3

{J G


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DISTRICT OF WYOMING




Wyoming Equality, )

)

Plaintiffs, )

)


)









)

Defendants. )

ORDER GRANTING GOVERNOR MEADS MOTION TO QUASH SUBPOENA

THIS MATTER, having come before the Court on Governor Meads Motion to

Quash Subpoena, and this Court having reviewed the motion and being fully advised in

the premises,

IT IS HEREBY ORDERED that for the reasons set forth in the motion, Governor

Meads Motion to Quash Subpoena is granted, the subpoena is quashed, and Governor

Mead is relieved of any obligation to comply with the subpoena.

DATED this ____ day of October, 2014.


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______________________________________

Scott W. Skavdahl

United States District Judge


Attorney General of Wyoming

Martin L. Hardsocg (Wyo. Bar No. 6-2919)


James C. Kaste, (Wyo. Bar No. 6-3244)Deputy Attorney General



Ryan T. Schelhaas (Wyo. Bar No. 6-3321)Senior Assistant Attorney General

Michael M. Robinson (Wyo. Bar. No. 6-2658)



123 State Capitol BuildingCheyenne, WY 82002

(307) 777-7876

(307) 777-3687 fax


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