Reported December 28, 2013 ("Big Mistake by Utah's Attorney General") (http://politicalwire.com):

QUOTE FOLLOWS:

Andrew Koppleman [spelling of Koppelman is incorrect in this article] says "an underreported story in the Utah same-sex marriage case is the incompetence of the Utah Attorney General's office in litigating the case.

"Typically, in same-sex marriage litigation, the state accompanies its pleadings with a routine request that, if the trial court rules in favor of the same-sex couples, that ruling be stayed pending the inevitable appeal. That way no licenses can issue until the question is finally resolved. Until now, courts have generally agreed that the question of same-sex marriage is doubtful enough that the status quo should be preserved during the litigation. Everyone agrees that it would be unfortunate for marriage licenses to issue, and couples to order their lives in reliance on them, only to have those licenses voided on appeal.

"In Utah, however, the state inexplicably neglected to request a stay before the ruling issued."

The original article this is taken from is worth reading for the paragraph of additional insight it provides: "The Utah Attorney General's office blows it," article by Andrew Koppelman (http://balkin.blogspot.com/2013/12/the-utah-attorney-generals-office-blows.html )

Very interesting!!!

Though as a resident of Utah, it is hard to see the AG office's incompetency and corruption play out over the past several years...it is a true gift that this chaos in the state government played a small part in granting freedoms that are long overdue.

This is like forgetting to put down the wheels before you land.

zenjamin Wrote:
-------------------------------------------------------
> This is like forgetting to put down the wheels
> before you land.

Absolutely apt, and I'm laughing because it's so true.

Serious question though: Obviously, as states attorneys general go, this was a major mess-up, but could it be that the reason it was overlooked was that it never occurred to the Utah A-G that the state might lose?

In other words, could this be a situation where there was so much unconscious (but overwhelming) hubris going on throughout the A-G's office that the standard legal "safety measures" were [unconsciously] deemed unimportant and unnecessary???



Edited 1 time(s). Last edit at 12/28/2013 03:41PM by tevai.

merits when you are conceding that you might not succeed on the merits? And how do you demonstrate that you are likely to succeed on the merits of an appeal when you don't even know how the trial court has ruled? Moreover, how do you demonstrate irreparable harm in this case? The article references a boilerplate argument that irreparable harm is shown by potential harm to the COUPLES, butShelby expressly rejected the argument that irreparable harm was demonstrated by the possibility that COUPLES married during the appeal might have their marriages voided by a reversal. He did so because such an argument does not demonstrate any harm to the STATE.

There is no way that the AG's office could have met the standard for a stay under the circumstances in this case, regardless whether the request was made before or after Shelby's ruling.

In a non-criminal trial, it is acceptable and routine to advance incompatible arguments. I was driving my car but did not hit the dog; but if I hit the dog, it was very softly; but if I hit the dog hard, it died because it was already sick; but if it was not sick, I shouldn't have to pay damages because it was an accident. This sort of thing is done all the time.

So it would be perfectly natural for the state to say, "the Feds can't overturn the Utah constitution; but if it does, please issue a stay."

The other issue is whether the failure to ask for the stay was incompetent. It would definitely have been better to ask for the stay in the original hearing. But the legal standards applied by the judge are exactly the same, so it should not matter whether the request was issued hours or even a day or two late.

I agree, however, that the AG's office appears not to have had any idea that the court would rule the way it did in the timeframe it adopted. Neither, incidentally, did the Lord's law firm: the good folks, and protectors of child molesters, at Kirton McConkie.

a likelihood of success on the merits. This is not analogous to a situation, for example, where a party argues that he or she should recover in tort because he or she was defrauded into signing a contract, but even if he or she was not defrauded he or she should still recover under the contract, and even if the contract is invalid for reasons other than fraud he or she should still recover in unjust enrichment, etc. Rather, it's analogous to arguing that the party should recover under a contract, but even if the party cannot prove the necessary element that the contract was breached he or she should still recover under the contract - which is not only illogical but legally impossible.

If you request the stay prior to the ruling, you are not only conceding a substantial chance that you are not going to prevail on the merits, you necessarily are advancing the exact same arguments in support of your motion for stay that you are advancing in your briefing on the merits, meaning that if the judge rules against you on the merits he has also ruled against you on the likelihood of success prong of injunctive relief.

This isn't to say that a stay never can be obtained, but this is how a stay typically works in the civil context - a judgment is rendered entitling the winner to some affirmative relief (usually a payment of money) and the losing party makes a motion that the status quo be maintained pending appeal, that is, that the judgment remain valid but enforcement of the judgment by the winning party be stayed. Often this requires the posting of some security on the judgment. But in a case where the judgment in question invalidates a law as unconstitutional, there is no judgment to enforce - the law is invalid the moment the trial judge renders his opinion. The status quo immediately changes from a situation where same sex couples cannot be married to one where they must be married if they so choose and face the prospect of irreparable harm absent their right to marry being recognized by the state. It's a very different situation from one where has been deprived of money for a period of time, been awarded that money, with interest, by a trial judge, and has to wait out an appeal to collect (interest accruing all the while).

Anyway, like I said, it's silly to claim that the AG was incompetent in not presenting a stupid argument (that "everyone agrees" that the COUPLES - rather the party advancing the argument, the STATE - would be irreparably harmed by a reversal of the trial court's opinion) that the AG did indeed present and which expressly rejected by the trial court.

In constitutional cases lawyers frequently offer alternative theories--contradictory arguments--to a court. They have to do this since there are strict limits on how much new material/argumentation they can introduce on appeal. If it's not introduced up front... So this is more like a tort case than a contract dispute.

And I disagree about the stay issue. There are, if I recall, four issues to be decided when judging the case for a stay. One is the likelihood of success, but there are others. Often a plaintiff will lose the case on the merits but obtain a stay because of the other factors. The trial judge has already decided against the arguments that determine "likelihood of success" but grants the stay on other grounds. Since inconsistent theories are accepted, the rejection on the merits is not determinative on the question of the stay.

I debated this point the other day in another thread with someone who said that a stay would be granted because one normally is. I disagreed with that because in this case I think the four criteria were not met. But that's a broader question than just "likelihood of success."

must establish each of the following factors: (1) likelihood of success on the merits; (2) irreparable harm to the party seeking the injunction; (3) lack of irreparable harm to the other party; and (4) that the relief is in, or at least is not contrary to, the public interest.

I suppose you could argue that each of the factors do not necessarily need to be established, but I think there is quite a bit of authority to the contrary. For example, the D.C. Circuit has stated, "Without . . . a substantial indication of probable success [on the merits on appeal], there would be NO justification for the court's intrusion into the ordinary processes of administration and judicial review." Virginia Petroleum Jobbers Ass'n v. Federal Power Comm., 259 F.2d 921, 925 (1958) (emphasis added). In other words, the court found that if likelihood of success on the merits was not demonstrated, then the court had no business issuing a stay. Virginia Petroleum was cited by the U.S. Supreme Court in Hilton v. Braunskill, 481 U.S. 770 (1987), which in turn was cited by Judge Shelby in his memorandum decision regarding the requested stay.

I really don't understand your view of how this case is more like a tort case than a contract case. Of course alternative arguments must be made up front to preserve them for appeal, but that's no more true in a constitutional law case than in a tort or contract case. My point is that a case determining the validity of a law under the constitution is distinct from tort or contract cases in that such a case does not involve a judgment rendered which entitles the prevailing party to subsequently collect money. Rather, it involves either the upholding or the invalidation of a law on fundamental civil rights grounds. In the former case, a stay is fairly easy to issue because the status quo (the pending judgment) can be preserved during the appeal - what is stayed is execution of the judgment, which can be compensated with interest. In a case invalidating a law under the constitution, however, irreparable harm - harm that is not readily compensable - would necessarily result to everyone whose civil rights were further restricted by leaving the law in force pending appeal. Further, the State cannot be irreparably harmed by being required to permit its citizens to realize their civil rights. And the public interest obviously cannot be furthered by the curtailment of civil rights. It is extremely difficult, if not impossible, for a trial court, or an appellate court, to issue a stay under such circumstances.

Seeking the stay prior to knowing how, and why, the Court has ruled on the merits can put the party seeking the stay at a tactical disadvantage. If one seeks the stay before the merits are decided, one is necessarily married to the precise same arguments for likelihood of success that one makes on the merits - permitting a court determined to rule against that party to reject the party's arguments for a stay on the precise same grounds that it rejects the party's arguments on the merits. If one waits until after the opinion on the merits is issued, however, then one is free to pick apart the court's rationale and introduce new arguments that may demonstrate the vulnerability of the opinion on appeal.

It seems the good old Mormon boys network fully expected the judge to throw his verdict their way.

Looks like their god struck the Utah Attorney General's office with confusion LOL

Yup!!!

Just curious - if a couple married in a state where that was legal, is their marriage treated as invalid in Utah?

Yes.

There were many out-of-state gay and lesbian marriages performed which were legal in the state they were performed in, but simultaneously "did not exist" when those spouses were residents of Utah (or visitors IN Utah--as on vacation, either...I THINK).



Edited 1 time(s). Last edit at 12/28/2013 03:45PM by tevai.

I do income taxes as an AARP volunteer, and we have already gotten 3 opinions from the Utah Tax Commission on how to handle state taxes for same-sex couples.

Initially, same sex marriages were not recognized at all in Utah, regardless of where they were performed.

When the federal decision came down late last summer to allow SSM couples to file jointly for federal income tax if they were legally married, even if they now lived in a state that did not recognize the marriage, Utah was in a bind. The law, and all the software for filing returns, insists, except in certain unusual situations, that a couple that files jointly on their federal return, must file jointly on their state return. Most of the numbers on the state return come directly off the federal return.

The Utah Tax Commission reasonably saw that it would be a total mess to not allow married gay couples in Utah to file jointly if they had a joint federal return, so their initial decision was to allow a joint state return.

Then the AG office got wind of that and reversed the decision. A legally married same sex couple residing in Utha who filed a joint federal return, would also have to prepare but not file two federal returns, filing either as Married Filing Separately, or Single (AG was still trying to decide which of those two to require when the Shelby decision came down). They would then have to file two state tax returns based on the numbers in the unfiled, and otherwise totally superfluous separate federal returns.

The reasoning was that Amendment 3 forbade (I love it when I get to write "forbade" :) any recognition of SSM. We were trying to figure out how the hell we were going to do a state return if a same sex couple came in. The software won't allow you to do multiple federal returns for the same SSN.

Meanwhile, we are bound by federal non-discrimination guidelines. I fact, about 10 days ago, I got a blast email from the IRS that basically said if a same-sex couple comes in to have their taxes done, all the volunteers are bound by their volunteer agreement to do the return in a professional and respectful manner. You can't refuse to do it, and you can't ask to have another volunteer do it. If a volunteer can't agree to that, they will not be able to participate in the program.

We are always kind of desperate for volunteers. There was zero wiggle room in that email. However desperate we are, right will be done by gay couples or else. I was proud of the IRS. Bet that's a sentence you don't see often. That requirement could be a deal breaker for some volunteers.

Anyway, we meet with the Utah tax commission in about 2 weeks, and I am sure there is much pencil chewing as they try to figure out what our instructions will be. I of course and hoping for "treat them as a married couple, period."

If there is no stay of Shelby's decision, I am pretty sure they will have no choice in the matter, but if the SC issues a stay, and they go back to their "gay couples get to do 5 returns, 3 federal and two state" total mess plan, I will be a very unhappy camper.

I will return and report.



Edited 1 time(s). Last edit at 12/28/2013 04:35PM by Brother Of Jerry.

I have heard that same-sex couples have had to fill out their state taxes on paper forms and mail them in due to that problem you mentioned of software programs not allowing you to do two federal returns.

In the same way that Romney didn't have a Concession Speech prepared - never occurred to them that they would lose.

to get injunctive relief if you're conceding the possibility of loss.

...

Tevai said that gay marriages in other states are not recognized in Utah. It's as if they never occurred.

That may have been the case in the short term, but it was unsustainable. The US Constitution has a "full faith and credit" clause, stating that a decision or action done by a state must be recognized in other states. That means that the states are in disagreement and ultimately must ask the supreme court to decide on a uniform rule.

When Scalia bitched and moaned about the implications of Kennedy's majority decision, this is precisely what he meant. He realized that the summer court judgment meant that in time the whole country must allow gay marriage. That logic is also the way that the district court judge, Shelby, thought about things.

So it's only a matter of time.

sounds to me like the AG office knew it was a lost cause.

That may be the case. But if you think about the politics of the situation, the AG should've been prepared for the loss. He should have had a fallback position, including an immediate request for a stay, already drafted so that voters wouldn't think he was incompetent.

The fact that he did not have that all figured out indicates to me that he probably didn't know that Utah was going to lose the case. Now when people look for scapegoats, he may become one whether he deserves it or not.

are you saying TSCC forgot the fix ?

I get the sense that Shelby is "unfixable," a man of integrity and logic. Must be quite a surprise to the self-created demi-gods in SLC.

There's irony there. Kennedy on the supreme court was a Reagan appointee and is politically conservative. Shelby was supported by Orin Hatch. Both are strong, independent, ethical judges.

I get the same impression from SC judge Roberts.

Ahhh, incompetence... No way that the Utah AG office was infiltrated by someone who put a little body English on the pleadings to accidentally sabotage it. I think that the AG's office will be distracted and overworked for some time to come.

I am reminded of D and C 9:9.

"But if it be not right you shall have no such feelings, but you shall have a stupor of thought that shall cause you to forget the thing which is wrong; therefore, you cannot write that which is sacred save it be given you from me".

Did not the AG's office have a "stupor of thought" because "if it be not right" to pursue "the thing which is wrong.

What think ye?



Edited 1 time(s). Last edit at 12/29/2013 03:22PM by learningdaily.