United States District Court District of Wyoming
United States District Court District of Wyoming
United States District Court District of Wyoming
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Defendants, Matthew H. Mead, Governor of the State of Wyoming, Dean Fausset, and
Dave Urquidez, in their official capacities (the State Defendants), through the Office of the
Attorney General, hereby oppose Plaintiffs motion for attorneys fees and costs (Docs. 69, 70,
and 71) for the following reasons:
Argument
On January 29, 2015, this Court entered a final order granting judgment on the pleadings
and permanent injunction in favor of Plaintiffs. (Doc. 65.) Based upon the Tenth Circuit Court of
Appeals decisions in Kitchen v. Herbert, 755 F. 3d 1193 (10th Cir. 2014) and Bishop v. Smith, 760
F.3d 1070 (10th Cir. 2014) this Court held that laws prohibiting same-sex marriage and laws failing
to recognize the validity of same-sex marriages are unconstitutional. Plaintiffs have submitted a
fee petition under 42 U.S.C. 1988. In any fee request under 1988(b), a claimant must prove
two elements: (1) that the claimant was the prevailing party in the proceeding; and (2) that the
claimants fee request is reasonable. Robinson v. City of Edmond, 160 F.3d 1275, 1280 (10th
Cir. 1998). The State Defendants agree that Plaintiffs are the prevailing party and are entitled their
reasonable fees and expenses.
Plaintiffs attorneys billings and oppose their fees and expenses for several reasons:
1) Many of the hours Plaintiffs attorneys billed and submitted to this Court are duplicative
and excessivefive to seven attorneys typically reviewed and/or edited every pleading;
2) Plaintiffs counsel is requesting fees for time spent subpoenaing Governor Mead for the
preliminary injunction hearingan action that this Court stated was unnecessary to the
legal issues of the case;
3) Many hours relate to work on pleadings that were never filed;
4) The time spent on simple tasks such as preparing pro hac vice motions was excessive;
5) Plaintiffs attorneys billed for time spent working on the State case;
Page 2 of 20
6) Plaintiffs attorneys billed for time spent working on pleadings even though they had
already been filed; and
7) Many hours relate to Plaintiffs attorneys preparation and travel time to the preliminary
injunction hearing even though those attorneys did not participate in the hearing.
Plaintiffs attorneys billed hourly rates ranging from $140 to $325, with at least 4 attorneys
billing $300/hour or more.1 The State Defendants are willing to accept these hourly rates, however,
if Plaintiffs attorneys are going to charge these rates based upon their expertise and experience
(See Affidavits in Docs. 70-1, 70-2, 70-3, and 70-4), they should not charge and recover fees for
the duplicative, excessive work and supervision that is pervasive in these billings.
Plaintiffs counsels fee request includes fees from four law firms, nine attorneys, and one
paralegal totaling 371.6 hours and $92,728.07. (Docs. 70-1, 70-2, 70-3, and 70-4.) The fee request
can be summarized as follows:
Name
Thomas
Stoever
James Lyman
Rebecca Golz
(paralegal)
Qusair
Mohamedbhai
Arash
Jahanian
Aaron Belzer
Tracy Zubrod
Shannon
Minter
Christopher
Stoll
Firm
Hourly rate
Arnold & Porter LLP $325
Total hours
35
Total fee
$11,375
101.6
23.3
$26,659.84
$3,104.73
Rathod
Mohamedbhai LLC
Rathod
Mohamedbhai LLC
Rathod
Mohamedbhai LLC
Zubrod Law Office,
PC
National Center for
Lesbian Rights
National Center for
Lesbian Rights
$300
21.9
$6,570
$200
70.7
$14,140
$140
13.5
$1,890
$220
38.3
$8,426
$325
19.8
$6,435
$300
42.6
$12,780
The 2013 Wyoming State Bar survey results indicate that only 4.4% of Wyoming attorneys charge more
than $300 an hour. (See Doc. 70-5, pp. 3, 19.)
Page 3 of 20
Amy Whelan
$275
Total
4.9
$1,347.50
371.6
$92,728.072
In addition, Plaintiffs attorneys seek to recover costs of $5,125.97. (Docs. 70-1, p. 23; 702, p. 22; and 70-3, p. 24.) Plaintiffs counsel suggests that these fees and costs were reasonably
incurred by each attorney for a case that substantially lasted only two weeksthe complaint was
filed October 7, 2014, the Court granted the preliminary injunction (Doc. 44) on October 17, and
the State Defendants filed their notice that they would not appeal (Doc. 47) on October 21. The
only remaining issue was the form of the final order granting a permanent injunction. After the
parties filed competing motions for judgment on the pleadings (Docs. 54 and 56), the Court granted
a permanent injunction (Doc. 65) on January 29, 2015.
The Court adopted the State Defendants proposed order in all material respects. The Court
rejected the Plaintiffs proposed order requesting the Court force the State Defendants to ensure
that county clerks and other officials within their control fulfill their obligations under the law.
The Court explained that it was not convinced State Defendants have the authority to control
county clerks because county clerks are separately elected officials. The Court finds Plaintiffs
request in this regard is inappropriate and cannot be granted. (Internal citation omitted) (Doc.
65.)
To determine a reasonable attorneys fee, the district court must arrive at a lodestar figure
by multiplying the hours plaintiffs counsel reasonably spent on the litigation by a reasonable
hourly rate. Case v. Unified School Dist. No. 233, Johnson Cnty., Kan., 157 F.3d 1243, 1249
(10th Cir. 1998) (quoting Jane L. v. Bangerter, 61 F.3d 1505, 1509 (10th Cir.1995)). [T]he fee
applicant bears the burden of establishing entitlement to an award and documenting the appropriate
2
In Plaintiffs fee chart on page 5 of their memorandum (Doc. 70), Plaintiffs counsel indicates that the
total is $92,728.12.
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hours expended and hourly rates. Case, 157 F.3d at 1249 (quoting Mares v. Credit Bureau of
Raton, 801 F.2d 1197, 1201 (10th Cir. 1986)); Hensley v. Eckerhart, 461 U.S. 424, 437 (1933).
Once the district court has adequate time records before it, it must then ensure that the winning
attorneys have exercised billing judgment. Id. at 1250 (quoting Copeland v. Marshall, 641 F.2d
880, 891 (D.C.Cir.1980). Billing judgment consists of winnowing the hours actually expended
down to the hours reasonably expended. Hours that an attorney would not properly bill to his or
her client cannot reasonably be billed to the adverse party, making certain time presumptively
unreasonable. See id. at 1250.
Based upon a review of Plaintiffs counsels billing statements, the State Defendants have
identified several areas that appear to be unreasonable because Plaintiffs attorneys failed to
exercise the appropriate and necessary billing judgment.3 For the convenience of the Court, the
State Defendants have attached and will cite to the Plaintiffs attorneys affidavits and billing
statements. (Docs. 70-1, 70-2, 70-3, and 70-4, attached as Exhibit A.)
I.
compensable hours] claimed by counsel include[s] hours that were unnecessary, irrelevant and
duplicative. Case, 157 F.3d at 1250 (quoting Carter v. Sedgwick Cnty., Kan., 36 F.3d 952, 956
(10th Cir.1994)).
duplicative, unnecessary, excessive, and unreasonable. Stolls and Minters work consisted
entirely of: 1) reviewing, revising, or editing documents drafted by one of the other seven attorneys
The State Defendants have tried to be precise with its calculations in this filing, however, it was a difficult
task because Plaintiffs attorneys commingled multiple tasks on individual billing entries.
Page 5 of 20
on the case; and 2) conferring with co-counsel or each other about the case. In most instances,
Stoll and Minter were the fifth and sixth attorneys to review a particular document.
For instance, the billing records indicate that Lyman drafted the complaint on October 6
and 7, 2014, (Doc. 70-1, p. 16) however, five other attorneys, including Stoll and Minter, billed
for and are requesting payment for reviewing and/or editing the complaint even though the
complaint is nearly identical to the complaint Plaintiffs attorneys filed about seven months earlier
in State district court (Courage v. Wyoming, et al.)(State Complaint attached as Exhibit B). (Docs
70-1, p. 16; 70-2, pp. 18-19; 70-3, p. 17; and 70-4, p. 5.) Similarly, Lyman drafted the motion for
preliminary injunction from October 6-8, 2014, (Doc. 70-1, p. 16) and six other attorneys,
including Stoll and Minter, researched, reviewed, or edited the motion. (Docs 70-1, p. 16; 70-2,
pp. 18-19; 70-3, p. 17; and 70-4, p. 5.) Minters and Stolls time does not appear to be essential
or necessary to the litigation especially considering the expertise and quality of the other attorneys
representing Plaintiffs. (See Affidavits attached to Docs. 70-1, 70-2, 70-3, and 70-4.) In making
the request for payment of their fees, Minter and Stoll failed to winnow the hours actually
expended down to the hours reasonably expended. Case, 157 F.3d at 1250. Minters and Stolls
billing statements do not reflect hours reasonably expended.
Further, many of Minters and Stolls time entries are identical or nearly identical. For
example:
10/6/2014 - Confer with client and co-counsel re Supreme Court certiorari denials,
communications with state officials, and potential federal litigation (Minter - 1.6 hrs)(Doc.
70-2, p. 18);
10/6/2014 - Confer with client and co-counsel re Supreme Court certiorari denials and
potential federal litigation (Stoll - 1.6 hrs)(Doc. 70-2, p. 19);
10/7/2014 - Confer with co-counsel re filing of complaint, pro hac vice motions and case
strategy (Minter - 1.4 hrs)(Doc. 70-2, p. 18);
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10/7/2014 - Confer with co-counsel re filing of complaint pro hac vice motions and re case
strategy (Stoll - 1.4 hrs)(Doc. 70-2, p. 19);
10/8/2014 - Confer with client and co-counsel re preliminary injunction and hearing
(Minter - 1.5 hrs)(Doc. 70-2, p. 18);
10/8/2014 - Confer with client and co-counsel re motion for preliminary injunction and
scheduling of hearing (Stoll - 1.5 hrs)(Doc. 70-2, p. 19);
10/9/2014 - Confer with co-counsel re hearing on motion for preliminary injunction (Stoll
- .7 hrs)(Doc. 70-2, p. 19);
10/14/2014 Review proposed order of proof; confer with co-counsel re same (Minter - .6
hrs)(Doc. 70-2, p. 18);
10/14/2014 Review proposed order of proof; confer with co-counsel re same. (Stoll - .8
hrs)(Doc. 70-2, p. 19);
10/14/2014 Confer with co-counsel re oral argument (Minter 1.2 hrs)(Doc. 70-2, p. 18);
10/14/2014 Confer with co-counsel re preparation for hearing (Stoll 1.2 hrs)(Doc. 702, p. 19);
10/15/2014 Confer with co-counsel re preparation for hearing (Minter 1.3 hrs)(Doc.
70-2, p. 18); and
10/15/2014 Confer with co-counsel re preparation for hearing (Stoll 1.3 hrs)(Doc. 702, p. 19).
These types of billing entries are consistent throughout Minters and Stolls billing statements. Not
only did Minter and Stoll duplicate the other attorneys work, they consistently duplicated each
others work.
In addition, Stoll billed 20.1 hours (between October 9 and 16) and $1,606.53 in travel
costs related to his preparation, traveling to, and attending the preliminary injunction hearing.4
Minter also billed 3.5 hours relating to preparation for the hearing which he did not attend. (Doc. 70-2,
p. 18.)
Page 7 of 20
(Doc. 70-2, pp. 19, 22.) However, Stoll did not participate in the hearing, he simply observed.
(See attached Hearing Transcript, Exhibit C.) Again, these fees and costs are unnecessary,
excessive, and unreasonable. If more attorneys are present at a hearing than needed, compensation
for excess time should be denied. See Case, 157 F.3d at 1250. At the preliminary injunction
hearing, although at least six of Plaintiffs attorneys were present, only three participated in the
one-hour hearing. All of Stolls time and expenses associated with the preliminary injunction
hearing is excessive, duplicative, and unnecessary.
The State Defendants request that Minters and Stolls 62.4 hours be disallowed because
they are duplicative, unnecessary, excessive, and unreasonable. Case, 157 F.3d at 1250. Those
hours do not represent appropriate billing judgment.
II.
All the fees and costs associated with the subpoena to Governor Mead are
unnecessary and unreasonable.
Plaintiffs seek recovery for approximately 26 hours of time totaling approximately $5,200
and $180 in service fees in relation to the subpoena for Governor Mead to testify at the preliminary
injunction hearing and responding to the State Defendants motion to quash.5 (Docs. 70-1, p. 16;
70-3, pp. 17-18, 24; and 70-4, p. 6.) In granting the motion to quash, this Court stated that [t]here
is no legitimate evidentiary need for the testimony of Governor Mead for this courts resolution of
the issues before it. Rather, it appears Plaintiffs counsel has engaged in a political stunt, which
simply detracts from the merits of the serious legal issues before this court. (Doc. 25.) In a
footnote the Court explained that: [t]he typical practice in serving subpoenas upon parties
Twenty-six hours is an estimate because on several of the billing entries relating to the subpoena,
Plaintiffs counsel also commingled other tasks. For instance, on October 9, 2014, Mohamedbhai spent 2.8
hours on strategize re subpoena; prepare clients for hearing[] and on the same day, Jahanian spent 3.3
hours on [p]repare subpoena; confer re pro hac vice motions; draft motion for summary judgment. (Doc.
70-3, p. 17.) It is impossible for the State Defendants to know the exact time Plaintiffs counsel spent on
the subpoena. For this reason, the entire 26 hours should be disallowedPlaintiffs counsel have not met
their burden to show that the hours billed and requested are reasonable.
Page 8 of 20
represented by counsel is to advise in advance opposing counsel of the intent to serve his or her
client with a subpoena, and seek to have counsel accept service on behalf of their client to minimize
costs and difficulties in service. That initially was not done in this case. For no good reason. Id.
The time and expenses relating to the subpoena were unnecessary to the legal issues of the
case because there was no legitimate evidentiary need for the testimony of Governor Mead. Id.
(See Case, 157 F.3d at 150, See also Carter, 36 F.3d at 956). Plaintiffs should not be allowed to
recover the 26 hours and $180 in service costs relating to the subpoena.
III.
reviewing, and discussing pro hac vice motions.6 (Docs. 70-1, pp. 16-17; 70-2, pp. 18-19; 70-3,
pp. 17-19; and 70-4, pp. 5, 7.) Pro hac vice motions are essentially pro forma filings that can be
easily created and duplicated. (See Docs. 8, 12, 29, and 30.) Twenty-seven hours is excessive for
this simple, basic task.
Further, time spent becoming admitted in a specific jurisdiction is not appropriate to be
billed to the client, but is simply a matter of personal qualification for an attorney. While
admission to the bar of the court of appeals is certainly a prerequisite to defending an appeal in
that forum, an attorneys professional licensing and bar admissions are matters of personal
qualification for the attorney himself to pursue, apart from the time expended in defense of a
particular appeal. Parker v. CitiMortgage, Inc., 987 F.Supp.2d 1224, 1232 (D.Utah 2013). The
same logic is applicable here. Clearly, the pro hac vice motions were necessary for the out-of-
As previously noted, not all of the 27 hours is associated solely with the pro hac vice motions because
other tasks were combined in the billing descriptions. However, it is impossible for the State Defendants
to know the exact time Plaintiffs counsel spent on tasks relating solely to the pro hac vice motions. For
this reason, the entire 27 hours should be disallowed.
Page 9 of 20
state attorneys to practice before this Court, but they are personal bar admission matters that are
separate from time expended litigating the case. As such, these hours should be disallowed.
IV.
spent working on pleadings that had already been served or filed. On October 8, 2014, Stoever
billed 3 hours for [r]evisions to federal complaint and preliminary motion[.] (Doc. 70-1, p. 16.)
However, the federal complaint was filed one day earlier on October 7, 2014, and the complaint
was never amended.7 (Doc. 1.) Further, on October 9, 2014, Stoever billed 1 hour for [r]evisions
to preliminary motion. (Doc. 70-1, p. 16.) The preliminary injunction motion was filed one day
earlier on October 8, 2014. (Doc. 7.) On October 10, 2014, Mohamedbhai billed .6 hours to:
[c]ontinue strategizing re subpoena[], however, the subpoena was served the previous day on
October 9, 2014. (Docs. 70-3, p. 18; 18, and 25.) Last, on December 2, 2014, Golz billed .9 hours
to file and serve plaintiffs motion for judgment on the pleadings[,] however, that motion was
filed on November 24, a week earlier. (Docs. 70-1, p. 21; 56.) These 5.5 hours are unreasonable
and unnecessary. See Case, 157 F.3d at 1250. They further call into question the accuracy of
Plaintiffs counsels billing statements.
V.
judgment that was never filed. (Doc. 70-3, pp. 17-18.) Belzer also requests recovery for 3 hours
for research on a summary judgment motion. Id. at p. 18. Hours that an attorney would not
properly bill to his or her client cannot reasonably be billed to the adverse party. See Case, 157
Again, Stoevers entry combines multiple tasks and it is impossible to know how much of the 3 hours
was spent on revising the complaint and how much was spent on the motion.
Page 10 of 20
F.3d at 1250. It is not reasonable or proper to bill a client for work on a motion that was never
filed. As such, these 8.9 hours are unreasonable, excessive, and should be disallowed.
VI.
Plaintiffs counsels preparation time, travel time, and attendance at the preliminary
injunction hearing was excessive.
Approximately 130 hours was billed by seven different attorneys in preparation for, travel
to, and attendance at, the preliminary injunction hearing. If more attorneys assist in a matter than
are needed, compensation should be denied for any excess time. Case, 157 F.3d at 1250. Four of
those seven attorneys either observed or did not attend the hearing at all. Specifically, Lyman
spent 46.2 hours preparing for and attending the preliminary injunction hearing. (Doc. 70-1, pp.
16-18.) However, Lyman did not participate in the hearing. (See Transcript, Exhibit C.) None of
Lymans 46.2 hours describe preparing witnesses or any other task that a hearing non-participant
attorney would reasonably be expected to assist with leading up to a hearing.
As part of those 130 billed hours, Minter and Stoll combined to bill approximately 23 hours
in preparation for, travel to, and attendance at, the preliminary injunction hearing without
participating in the hearing or preparing any witness. (Doc. 70-2, pp. 18-19.) Last, Mohamedbhai
billed approximately 7 hours8 for what appears to be his preparation for the hearing. (Doc. 70-3,
pp. 18-19.) For instance, on October 14, he [f]inalized pro hac vice motion; review and revise
reply to State Defendants response to preliminary injunction motion; prepare for hearing[] and
on October 16 he [c]ontinue[d] preparing for hearing; participate in hearing.9 Id. at p. 19.
Mohamedbhais time is hard to calculate as he combines many tasks together on billing entries.
Mohamedbhai also spent an additional 2.6 hours preparing for the hearing but his billing entry also
describes [p]repar[ing] clients for hearing[] which seems reasonable to the State Defendants. (Doc. 70-3,
p. 19.)
Page 11 of 20
However, although Mohamedbhai attended the hearing, he did not participate in the hearing and
this time should be reduced. (See Exhibit C.)
The State Defendants contend that the 76 hours billed by Minter, Stoll, Lyman, and
Mohamedbhai relating to attending or preparing for the hearing were excessive, unnecessary, and
duplicative. The hearing lasted approximately one hour and three different Plaintiffs attorneys
participated in the hearing. (Exhibit C.) Those three participating attorneys (Stoever, Jahanian,
and Zubrod) preparation, travel, and participation time totaled approximately 53 hours and may be
reasonable, although three attorneys participating in the hearing could be excessive. (Doc. 70-1,
pp. 17-18; 70-3, p. 19; and 70-4, pp. 5-8.)
This court should reduce the number of hours expended by Lyman, Stoll, Minter, and
Mohamedbhai, who simply observed the hearing without participation. [T]he fee applicant bears
the burden of establishing entitlement to an award and documenting the appropriate hours
expended and hourly rates. Case, 157 F.3d at 1249.
VII.
petition is permissible. An award of reasonable attorneys fees may include compensation for
work performed in preparing and presenting the fee application. Mares v. Credit Bureau of Raton,
801 F.2d 1197, 1205 (10th Cir. 1986); and See Glass v. Pfeffer, 849 F.2d 1261, 1266 n. 3 (10th
Cir.1988); Hernandez v. George, 793 F.2d 264, 269 (10th Cir.1986). That being said, Plaintiffs
are requesting about 44 hours of time devoted solely to their fee petition. (Docs. 70-3, pp. 21-22;
70-2, pp. 18-21.) Further, a new attorney, Amy Whelan, who had no involvement in litigating the
case, billed 4.9 hours, all of which were devoted solely to the fee petition. (Doc. 70-2, p. 21.)
Courts have refused to award attorneys fees for conducting research and drafting motions
Page 12 of 20
pertaining to attorney fee recovery because the time submitted for post-trial work was excessive.
See Case, 157 F.3d at 1254. Forty-four hours is excessive.
In comparison, according to the billing statements, Plaintiffs counsel billed approximately
60 hours for the two major court filings, the complaint and the preliminary injunction motion.
(Docs. 70-1, p. 16; 70-2, pp. 18-19; 70-3, p. 17; and 70-4, pp. 5-6.) As such, counsel for Plaintiffs
attorneys billed nearly as much time for the post judgment attorneys fee motion as they did for
the complaint and preliminary injunction motion, which is excessive and unreasonable for such a
simple, non-complex filing. Plaintiffs counsels time should be reduced because 44 hours is
excessive and unreasonable.
The State Defendants believe some of Jahanians time spent drafting and revising the fee
petition in the amount of 19.5 hours is reasonable.10 The other time spent by Jahanian and the
other attorneys is duplicative and excessive. In fact, a substantial portion of the time spent on the
fee petition is limited to confer[ing] re fee petition. Based upon the billing statements, it appears
that Plaintiffs counsel spent at least 5 hours simply conferring on the fee petition. (Doc. 70-3, pp.
21-22.)
VIII. Other duplicative work is unreasonable and excessive.
The duplicative work of Minter and Stoll has already been discussed; however, there are
other examples of duplicative, excessive billing in Plaintiffs counsels fee request. In addition to
Minter and Stoll, Plaintiffs counsel requests attorneys fees for approximately 18 hours of
reviews, revisions, and edits of the complaint and preliminary injunction motion by four different
attorneys in addition to approximately 31 hours Lyman billed to draft the documents. (Doc. 70-1,
p. 16; 70-3, pp. 17; 70-4, p. 5.) Five attorneys working on one document is excessive and
10
This figure includes Jahanians time on December 4, 5, 15, 2014, and February 24, and 25, 2015. (Doc.
70-3, pp. 21-22.)
Page 13 of 20
duplicative and should be reduced. See Case, 157 F.3d at 1250. The State Defendants believe that
billing for reviewing and revising a pleading by one attorney is reasonable at times, given the
nature of the case and the documents being drafted.
Further, four attorneys (not including Minter and Stoll) and a legal assistant billed around
5 hours to review this Courts order granting preliminary injunction. (Docs. 70-1, p. 18; 70-2, pp.
18-19; 70-3, pp. 19-20; and 70-4, p. 5.) It is excessive and unreasonable for four attorneys and a
legal assistant to bill to review the Courts order. We think it is reasonable for the attorney that
performed the majority of the work on the pleadings to bill and recover for his time to review the
Courts order.
Duplicative and excessive billings are pervasive throughout Plaintiffs counsels billings.
It is excess and inappropriate for at least four to five attorneys (not including Stoll and Minter) to
bill for reviewing party filings and orders of the Court. Plaintiffs attorneys have not met their
burden of proving why it is reasonable for every attorney on the case to bill for and seek fees for
reviewing relatively straightforward pleadings and orders. Because there are nine different
attorney billings with entries that contain multiple tasks, State Defendants have had a hard time
parsing out the exact number of hours each attorney dedicated for duplicative work such as
reviewing and revising pleadings and reviewing orders. The State Defendants do not wish to imply
that all time spent reviewing or editing a court filing is duplicative; however, when five
experienced, well trained attorneys and a legal assistant are all reviewing various court filings, a
portion of that time is excessive and duplicative and should be reduced to a reasonable number of
hours.
Page 14 of 20
IX.
Billing for work on the State same sex marriage case is not appropriate.
Plaintiffs attorneys seek 5.2 hours of time spent working on the prior case they filed in
Zubrod
11
0.60
1.80
11/11/2014
[redacted] regarding
states motions in federal
and state cases. (Doc. 701, p. 19.)
Lyman
11/13/2014
Lyman
0.60
11/14/2014
Lyman
0.50
1/5/2015
Stoever
1.00
1/30/2015
Golz
0.70
These charges are not in connection with this case and should not be included in Plaintiffs
fee request.
11
Lymans billings indicate he worked on motions in the state case along with motions in the federal case.
It is impossible for the State Defendants to parse out the exact amount of time he spent on the state case.
Page 15 of 20
X.
Plaintiffs reasonable fees and costs should be split between both defendants, Debra
K. Lathrop, Laramie County Clerk and the State Defendants
This case involves a situation where the Plaintiffs were the prevailing party against multiple
defendants. The Attorneys Fees Database treatise discusses this type of situation.
Where a plaintiff prevails against multiple defendants and obtains an award
of attorneys fees, a question may arise as to the allocation of liability for the fee
award among the defendants. Initially, the allocation of a fee award is a matter
committed to the District Courts discretion, and a courts determination will not
be disturbed unless there is an abuse of discretion.
There are a number of possible methods of allocating a fee award. Where
the defendants are joint tortfeasors or are otherwise jointly responsible for actions
that produced an indivisible injury, it may be appropriate to hold each defendant
jointly and severally liable for the entire fee award. An alternative method in a case
involving roughly equal wrongdoers is to divide the fees equally among the
defendants.
Where the claims against the defendants are separate and distinct or where
culpability is significantly unequal, a court may choose among other methods of
allocating the fee award. One approach is to apportion the attorneys fees in accord
with each defendants relative degree of culpability or in the same proportions as
the jury assessed damages. Alternatively, a court may apportion the fees according
to the relative amounts of time spent by the plaintiff in preparing the case against
each defendant. When one defendant is solely or largely responsible for a single
claim within an action, a court may choose to hold that defendant liable for all of
the attorneys fees related to that claim. Finally, a court may decide it is appropriate
to combine two or more of the above approaches in allocating the fee award.
1 Attorneys Fees 10:27 (3d ed.)(internal citations omitted).
The State Defendants assert that the recoverable fees and costs should be equally divided
between the Laramie County Clerk and the State Defendants. Most of the substantive work on the
case was applicable against both the Laramie County Clerk and the State of Wyoming, including
the complaint, preliminary injunction motion and hearing, and the motion for judgment on the
pleadings. Further, Plaintiffs essentially raised two claims in this case. One claim was brought
against the Laramie County Clerk demanding her to issue marriage certificates for same sex
couples and the other claim was brought against the State Defendants demanding that the State
Page 16 of 20
recognize valid same sex marriages entered in other states for the purpose of receiving spousal
benefits.
In addition, a considerable amount of work, around 15 to 17 hours, was performed and
billed by Plaintiffs attorneys directly in response to the county and its filings. (Docs. 70-1, pp.
17, 19; 70-2, pp. 18-19; 70-3, pp. 18, 20; and 70-4, pp. 5-9.) Based on the evenly divided claims
and joint work on this case, the easiest and fairest allocation of fees and expenses is to evenly
divide them between Laramie County and the State of Wyoming.
XI.
2, pp. 21, 22; and 70-3, p. 24.) The costs include: 1) Stolls travel costs ($1,606.53) to travel from
San Francisco to Casper for the preliminary injunction hearing; 2) Mohamedbhais travels costs
from Denver to Casper for the preliminary injunction hearing, processing costs to serve a subpoena
on Governor Mead, and miscellaneous mailing costs totaling $743.72; and 3) Lymans and
Stoevers travel costs to Casper for the preliminary injunction hearing and miscellaneous other
costs (filing fees, copying and Westlaw research) totaling $2,775.72.
As explained earlier, Stoll did not participate in the hearing and his travel costs should not
be allowed. Mohamedbhai also did not participate in the hearing and his travel costs totaling
$480.57 should not be allowed. Further, as described earlier, Mohamedbhais processing fees of
$180 to serve the subpoena on Governor Mead should be disallowed. Lymans travel costs of
$122.7712 should not be allowed because he did not participate in the hearing. Last, Arnold and
Porters $1,100 in filing fees should be reduced. It appears that $700 of the filing fees relate to
12
In Arnold and Porters billing statements, Lymans and Stoevers travel costs are not separated. The
State Defendants took the total cost amounts under the headings hotel and travel meals and reduced
those by one half to account for Lymans travel costs. (Doc. 70-1, p. 23.)
Page 17 of 20
pro hac vice admission which, as described earlier, should not be the responsibility of the
defendants. Based upon these reasonable and necessary reductions, the State Defendants believe
Plaintiffs attorneys are entitled to $2,036.10 in costs.
Conclusion
In sum, in order to identify the appropriate lodestar fee award, the Court must determine
the appropriate number of hours at the appropriate rate. Case, 157 F.3d at 1249. The State
Defendants are willing to accept the hourly rates submitted by Plaintiffs counsel; however, the
State Defendants object to the number of hours billed in this case. For the convenience of the
Court, the chart below reflects the fees that the State Defendants believe are fair and reasonable
and that reflects proper and appropriate billing judgment.
Name
Firm
Thomas
Stoever
James Lyman
Rebecca Golz
(paralegal)
Qusair
Mohamedbhai
Arash
Jahanian
Aaron Belzer
Tracy Zubrod
Shannon
Minter
Christopher
Stoll
Amy Whelan
Total
Hourly
rate
$325
Total
hours
billed
35
Recommended
allowed hours
Total fees
billed
Recommended
allowed fees
30
$11,375
$9,750
$262.40
101.6
54.5
$26,659.84
$14,300.80
$133.25
23.3
5.8
$3,104.73
$772.85
$300
21.9
$6,570
$1,200
$200
70.7
45.1
$14,140
$9,020
$140
13.5
1.7
$1,890
$238
$220
38.3
31.9
$8,426
$7,018
$325
19.8
$6,435
$300
42.6
$12,780
$275
4.9
$1,347.50
371.6
173
$92,728.07
$42,299.65
Page 18 of 20
As the chart reveals, the State Defendants believe that Plaintiffs counsel is entitled to a
total of 173 hours of work on the case for a total of $42,299.65. Further, Plaintiffs counsel should
only be entitled to costs in the amount $2,036.10. The State Defendants believe this represents a
fair, reasonable, and appropriate amount of fees and costs. Last, the State Defendants believe that
these amounts should be split evenly between the County and the State Defendants.
Dated this 12th day of March, 2015.
Page 19 of 20
I certify that on this 12th day of March, 2015, I electronically filed the foregoing with the
CM/ECF system which sent notice to the following:
Tracy L. Zubrod
[email protected]
Qusair Mohamedbhai
[email protected]
Shannon P. Minter
Christopher F. Stoll
[email protected]
Mark T. Voss
[email protected]
Bernard P. Haggerty
[email protected]
Page 20 of 20
)
)
)
Anne Marie Guzzo and Bonnie Robinson;
)
Ivan Williams and Charles Killion;
)
Brie Barth and Shelly Montgomery;
)
Carl Oleson and Rob Johnston; and
)
Wyoming Equality,
)
)
v.
) Case No. 14-cv-00200-SWS
)
Defendants,
)
)
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,
)
_____________________________________________________________________________
Plaintiffs,
__________________________________________________________________
I, Thomas W. Stoever, Jr., hereby declare and state as follows:
1.
in good standing of the State Bars of California and Florida. I am a partner at the international
law firm of Arnold & Porter LLP. I have been asked to make this Declaration in Support of
Plaintiffs Motion for Reasonable Attorneys Fees and Expenses. I have personal knowledge of
the matters stated in this Declaration and could and would confidently testify to these facts.
2.
I attended the Boalt Hall School of Law at the University of California, Berkeley,
and graduated in 1990. After graduation from law school, I worked at the law firm of Covington
EXHIBIT A
& Burling in Washington, D.C. In 1994, I moved from Covington & Burling to Arnold &
Porters office in Denver, Colorado. Arnold & Porter has offices in several locations around the
country and around the world, including, but not limited to, Washington, D.C., New York, San
Francisco, and London. The firms work runs the gamut from corporate and transactional
matters to litigation.
3.
has included environmental matters, antitrust matters, and mass tort cases. My experience has
included all phases of litigation, including motions practice, discovery, trials, and appeals. I
have handled cases in jurisdictions around the country, including, but not limited to, Colorado,
Florida, California, Texas, New York, Arizona, Utah, Montana, and Wyoming. I have argued
numerous appeals including, but not limited to, two en banc arguments before the Federal Circuit
Court of Appeals and an appearance in the United States Supreme Court (See Attachment 1).
4.
Bar Association, the American Bar Association, and the Faculty of Federal Advocates in the
District of Colorado. Over the years I have made several CLE presentations to peers and
colleagues regarding various aspects of litigation, legal ethics, and trial practice. I have also
served on the Board of Directors of several local, national, and international nonprofit
organizations.
5.
L. James Lyman was an associate at Arnold & Porter. Mr. Lyman received his
law degree from the University of Colorado School of Law in 2007 (Order of the Coif). Mr.
Lyman was editor of the University of Colorado Law Review. After graduation he clerked for
the Honorable Lewis T. Babcock on the United States District Court for the District of Colorado.
Mr. Lyman practiced before the state and federal courts of Colorado, the Court of Appeals for
the Tenth Circuit, the Court of Federal Claims, and the Court of Appeals for the Federal Circuit.
Mr. Lymans practice included representing clients in all phases of litigation (See Attachment 2).
In December 2014, Mr. Lyman left Arnold & Porter to become a trial attorney with the
Securities and Exchange Commission.
6.
Arnold & Porter was retained in this litigation by the Plaintiffs to challenge
Wyomings laws prohibiting the issuance of marriage licenses to same-gender couples and
prohibiting recognition of valid marriages of same-gender couples entered into in other
jurisdictions. The individual plaintiffs in this action did not have the resources to retain private
legal counsel and could not financially afford paying the attorneys fees and expenses necessary
to proceed with this action. Arnold & Porter is therefore representing Plaintiffs pro bono.
Plaintiffs have agreed that any awarded attorneys fees and costs will belong and be paid to their
counsel.
7.
After the Supreme Court struck down the Federal Defense of Marriage Act in
Windsor v. United States, 570 U.S. 12 (2013), I was approached by representatives from the
National Center for Lesbian Rights about the possibility of representing same-gender couples.
Beginning in early 2014, Mr. Lyman and I began to research and prepare a complaint for
injunctive relief to be filed in the Wyoming state courts. That complaint was filed on March 5,
2014. The Governor and the Laramie County Clerk were named as defendants. In addition to
filing a complaint, we filed a motion for summary judgment arguing that Wyomings
constitution prohibited the application of Wyomings statute defining marriage as a union
between one man and one woman. At the Governors request, a hearing on that motion for
summary judgment was delayed so the parties could take discovery.
8.
While that discovery was ongoing, the Supreme Court denied certiorari in Kitchen
v. Herbert. Immediately after the Supreme Courts denial of certiorari, Mr. Lyman and I
prepared and filed a complaint in federal court. That complaint was filed on October 7, 2014.
The next day we filed a motion for preliminary injunction.
9.
I managed the process of researching and drafting the complaint, the motion for
preliminary injunction, and supporting papers. I took the lead at the hearing on the motion for
preliminary injunction. Two days after the hearing, the Court granted our motion and the
Governor chose not to appeal.
10.
responsible for making all strategy calls and deploying the teams legal and other resources for
research, drafting, etc. I was also ultimately responsible for responding to the questions and
concerns of our clients and making sure they were fully informed regarding the status of the
litigation.
11.
Plaintiffs counsel litigated this case efficiently and without duplication of effort.
I brought my experience working with multiple law firms representing a single client (i.e., the
virtual firm model) to bear on this litigation.
12.
This complex and groundbreaking litigation was expedited over a very short
period. As noted above, Plaintiffs motion for a preliminary injunction was filed almost
immediately after the filing of the complaint. A hearing was requested and scheduled shortly
thereafter. The time from filing a complaint to issuance of a preliminary injunction was just ten
days.
13.
insisting on taking this matter to a hearing. As noted in the Courts order issuing a preliminary
injunction, Kitchen v. Herbert was the law of the Tenth Circuit. The Court was obliged to follow
that law. And, most importantly, the Governor never argued to the contrary or put on any
evidence suggesting that the burden of a preliminary injunction would outweigh the benefit. The
Governor could have significantly reduced the fees and expenses accrued by Plaintiffs counsel
by agreeing to a preliminary injunction.
14.
Moreover, the Governor had no fewer than four lawyers working on his
opposition to the motion for preliminary injunction. In addition, there were four lawyers present
at the preliminary injunction hearing. The Governors staffing decisions in this case are a further
reflection of its significance and complexity. The Court should consider the Governors staffing
when evaluating the reasonableness of the fee petition submitted by Plaintiffs counsel.
15.
Despite the demands and challenges, the efforts of Plaintiffs counsel produced an
excellent result. Plaintiffs prevailed on all claims in their complaint and helped to established
marriage equality in the Equality State. The lives of the Plaintiffs and thousands of other
families and individuals in Wyoming have been forever altered as a result of the Courts decision
in this case, recognizing their fundamental rights to due process and equal protection under the
U.S. Constitution.
16.
Attorneys and legal assistants at Arnold & Porter maintained detailed time
records. Those records are attached. In addition to myself and Mr. Lyman, Rebecca Golz, a
legal assistant at the firm, has billed time to this matter. These billing records reflect only the
time billed since the Supreme Courts denial of certiorari in the Kitchen v. Herbert case. None
of the time spent on research, drafting the complaint filed in state court, preparing the motion for
summary judgment filed in state court, or appearing in that venue are part of Arnold & Porters
fee petition in this case. All of that time provided a foundation for the work done in federal
court. Put another way, we would have spent more time researching, drafting, and preparing to
argue in federal court, had we not done the work in state court.
17.
rate of $257 per hour, which we believe is reasonable within the legal community given the
background, experience, and skill of the lawyers involved. Further, this rate is reasonable given
the exceptionally rare congruence and complexity, risk, and time demands of this case, as well as
the degree of success achieved.
18.
This hourly rate is based upon comparable rates typically billed by Wyoming
firms in commercial cases, and what other attorneys with similar skill, reputation, and experience
charge for similar work. In commercial cases, my usual hourly billable rate is $795.00 an hour,
Mr. Lymans billable rate was $640.00 per hour, and Ms. Golz billable rate is $325.00 per hour.
However, in this case, we have adjusted my hourly billable rate to $325.00, Mr. Lymans billable
rate to $262.40, and Ms. Golz billable rate to $133.25.
19.
Arnold & Porter is seeking a total award in fees of $41,139.62 (See Attachment 3).
Please note this figure does not include the time spent preparing our fee petition. In the event
Defendants dispute Plaintiffs fee petition, Plaintiffs counsel will submit supplemental time
records, at the appropriate time, for any time incurred after February 1, 2015. These are expenses
that we typically charge to fee-paying clients.
20.
In addition to fees, Arnold & Porter seeks to recover $2,775.72 in expenses. This
includes $659.39 for online research; $133.05 for copying; $1,100.00 for filing fees; and,
$628.14 for travel from Denver to Casper for the hearing on the motion for preliminary
injunction.
I declare under penalty of perjury that the foregoing is true and correct.
Executed in Denver, Colorado on this 26th day of February, 2015.
Respectfully submitted,
s/ Thomas W. Stoever, Jr.
Thomas W. Stoever, Jr.
ATTACHMENT 1
Case
Case2:14-cv-00200-SWS
2:14-cv-00200-SWS Document
Document70-1
72-1 Filed
Filed02/26/15
03/12/15 Page
Page10
9 of
of85
23
Contact Information
[email protected]
tel: +1 303.863.2328
fax: +1 303.832.0428
Suite 4400
370 Seventeenth Street
Denver, CO 80202-1370
Areas of Practice
Product Liability Litigation
Environmental
Litigation
Legislative and Public Policy
Nanotechnology
Antitrust/Competition
Information Security, Electronic
Surveillance and Computer
Crime
Consumer Products
Political Law, Government Ethics,
and Lobbying Compliance
Energy
Education
JD, University of California,
Berkeley School of Law (Boalt
Hall), 1990
MA, Johns Hopkins School of
Advanced International Studies,
1984
BA, Johns Hopkins University,
1983
Admissions
California
Colorado
Supreme Court of the United
States
Various Federal Courts
Florida
US Court of Veterans Appeals and the US Court of Appeals for the Federal Circuit, including two en
banc arguments before that court. He was recognized for his work on the Henderson v. Shinseki in the
2011 Annual Report for the Veterans Consortiums Pro Bono Program.
Mr. Stoever also represents a class of landowners in southern Colorado in litigation to obtain their
ancestral rights to access large tracts of private land for grazing and timber.
Representative Matters
Representation of the owners of a large power plant in toxic tort litigation brought by neighbors
alleging groundwater contamination by coal combustion by-products.
Representation of a large resort company in permitting for ski areas on National Forest land.
Representation of Wyeth in the diet drug litigation. Responsible for overseeing all aspects of
thousands of cases in 17 states, Mr. Stoever developed and implemented strategies for fact and
expert discovery, the generation of scientific testimony, and the formation and staffing of teams
to prepare and try cases.
Representation of Philip Morris in its litigation with state attorneys general, health insurers, and
consumers in individual and class actions.
Articles
Thomas W. Stoever, Jr. "Caution! Forest Plan Revisions Ahead" Ski Area Management, July 1,
1996
Presentations
Thomas W. Stoever, Jr. "Presentation: Ethical Issues for In-house Counsel in the Wake of
Sarbanes Oxley," Association of Corporate Counsel, Colorado Chapter, December 2004
Advisories
"Reefer Madness - New Treasury Guidance for Banks Providing Financial Services to Marijuana
Sellers" Mar. 2014
Multimedia
Daphne O'Connor, Jessica Mayer, Maurice A. Leiter and Thomas W. Stoever, Jr.. "Setting the
Goals, Building the Team, Managing the Budget" July 19, 2012.
ATTACHMENT 2
L. James Lyman
Alumni
James Lyman assists clients at all stages of
litigation, including pleading, discovery, trial,
and appeal. James' litigation experience
includes internal investigations and complex
motions practice in matters involving both
state and federal government agencies,
including matters arising under the False Claims Act and AntiKickback Act. James has represented clients in class actions,
arbitrations, and other complex litigation matters involving breach of
contract, breach of fiduciary duty, theft of intellectual property, civil
fraud, and product liability.
James is an Associate of the American Arbitration Association's
International Center for Dispute Resolution Young and International
Group and presents a Continuing Legal Education seminar
addressing forum selection clauses and arbitration clauses entitled:
"Making it Stick: Choosing a Forum and Staying There."
James served as a judicial clerk for the Honorable Lewis T. Babcock
of the United States District Court for the District of Colorado from
2007 though 2009. While in law school, James was an editor of the
University of Colorado Law Review. He is the author of "Coalbed
Methane: Crafting a Right to Sell from an Obligation to Vent." 78 U.
Colo. L. Rev. 613 (2007).
arnoldporter.com
Contact Information
[email protected]
tel: +1 303.863.2381
fax: +1 303.832.0428
Suite 4400
370 Seventeenth Street
Denver, CO 80202-1370
Areas of Practice
Litigation
Education
JD, Order of the Coif, University
of Colorado School of Law, 2007
BA in Communications, summa
cum laude, University of
Colorado, 2004
Admissions
Colorado
US District Court for the District
of Colorado
US Court of Appeals for the
Tenth Circuit
US Court of Federal Claims
US Court of Appeals for the
Federal Circuit
ATTACHMENT 3
0091738
Control
Group Line
Timekeeper (Category)
00004
32419968
Tran Date
Description
Billed
Hourly
Rate
Time/Unit
Value
Time/Unit
0.00
262.40
10.90
6,976.00
2,860.16
10.90
Prebill Num
Print
Flag
2713661
Lyman, L. James
10/06/14
draft
federal complaint and motion for
preliminary injunction;
32422624
7153
Golz, Rebecca A.
10/07/14
0.00
133.25
2.50
333.13
812.50
2.50
2713661
32419969
4261
Lyman, L. James
10/07/14
0.00
262.40
11.40
2,991.36
7,296.00
11.40
2713661
draft
motion for preliminary injunction.
34932976
4387
Stoever, Thomas W.
10/08/14
0.00
325.00
3.00
975.00
2,385.00
3.00
2713661
32427295
4261
Lyman, L. James
10/08/14
0.00
262.40
8.50
5,440.00
2,230.40
8.50
2713661
32422585
7153
Golz, Rebecca A.
10/08/14
133.25
0.00
2.90
386.43
942.50
2.90
2713661
34932984
4387
Stoever, Thomas W.
10/09/14
0.00
325.00
1.00
325.00
795.00
1.00
2713661
32427297
4261
Lyman, L. James
10/09/14
Prepare
for upcoming
preliminary injunction hearing;
0.00
262.40
6.30
1,653.12
4,032.00
6.30
2713661
32422503
7153
Golz, Rebecca A.
10/09/14
0.00
133.25
3.70
1,202.50
493.03
3.70
2713661
Page: 1
0091738
Control
Group Line
Prebill Num
Print
Flag
2713661
2.00
2713661
2,112.00
865.92
3.30
2713661
3.30
865.92
2,112.00
3.30
2713661
0.00
325.00
4.00
1,300.00
3,180.00
4.00
2713661
0.00
262.40
7.60
1,994.24
4,864.00
7.60
2713661
262.40
0.00
10.50
2,755.20
6,720.00
10.50
2713661
0.00
325.00
5.00
1,625.00
3,975.00
5.00
2713661
Description
Legal Assistant Services for J. Lyman:
prepare draft pro hac vice motions for
co-counsel.
Prepare for hearing next week in
Casper.
0.00
133.25
1.10
146.58
357.50
1.10
0.00
325.00
2.00
650.00
1,590.00
0.00
262.40
3.30
0.00
262.40
7153
Golz, Rebecca A.
10/10/14
34933062
4387
Stoever, Thomas W.
10/10/14
32427345
4261
Lyman, L. James
10/10/14
32427303
4261
Lyman, L. James
10/12/14
Time/Unit
Value
Time/Unit
34933179
4387
Stoever, Thomas W.
10/13/14
34930515
4261
Lyman, L. James
10/13/14
34934614
Billed
Tran Date
34934578
34938704
Hourly
Rate
4261
Lyman, L. James
10/14/14
prepare for
upcoming hearing;
4387
Stoever, Thomas W.
10/14/14
Page: 2
0091738
Control
Group Line
34943464
7153
Golz, Rebecca A.
Billed
Tran Date
Description
Hourly
Rate
10/15/14
0.00
133.25
5.00
1,625.00
666.25
5.00
Time/Unit
Value
Time/Unit
Prebill Num
Print
Flag
2713661
revised
case files with recent court filings;
prepared package to court clerk
.
34949615
4387
Stoever, Thomas W.
10/15/14
325.00
0.00
5.00
1,625.00
3,975.00
5.00
2713661
34938705
4261
Lyman, L. James
10/15/14
0.00
262.40
12.00
7,680.00
3,148.80
12.00
2713661
34949624
4387
Stoever, Thomas W.
10/16/14
0.00
325.00
8.00
2,600.00
6,360.00
8.00
2713661
34943790
7153
Golz, Rebecca A.
10/16/14
0.00
133.25
0.50
162.50
66.63
0.50
2713661
34943401
4261
Lyman, L. James
10/16/14
0.00
262.40
9.80
6,272.00
2,571.52
9.80
2713661
34943992
4261
Lyman, L. James
10/17/14
262.40
0.00
1.40
367.36
896.00
1.40
2713661
0.00
133.25
0.60
195.00
79.95
0.60
2713661
34943899
7153
Golz, Rebecca A.
10/17/14
Page: 3
0091738
Control
Group Line
Hourly
Rate
Billed
Prebill Num
Print
Flag
2713661
1.00
2713661
97.50
39.98
0.30
2713661
1.60
419.84
1,024.00
1.60
2713661
Tran Date
Description
Time/Unit
Value
Time/Unit
0.00
262.40
2.70
1,728.00
708.48
2.70
0.00
325.00
1.00
325.00
795.00
0.00
133.25
0.30
0.00
262.40
34949784
4261
Lyman, L. James
10/20/14
34949340
4387
Stoever, Thomas W.
10/20/14
34955083
7153
Golz, Rebecca A.
10/21/14
34949597
4261
Lyman, L. James
10/21/14
34954769
4261
Lyman, L. James
10/22/14
0.00
262.40
0.40
256.00
104.96
0.40
2713661
34954985
4261
Lyman, L. James
10/23/14
0.00
262.40
1.00
640.00
262.40
1.00
2713661
34960609
4387
Stoever, Thomas W.
10/24/14
0.00
325.00
1.00
325.00
795.00
1.00
2713661
34964967
4261
Lyman, L. James
10/24/14
discussions with
county regarding stipulation for
permanent injunction.
Revisions to joint stipulation for
judgment;
.
Review county answer to complaint in
Guzzo v. Mead; attend to issues
relating to final settlement of Guzzo v.
Mead.
0.00
262.40
2.20
577.28
1,408.00
2.20
2713661
34974698
4261
Lyman, L. James
10/30/14
0.00
262.40
0.70
183.68
448.00
0.70
2713661
35006526
7153
Golz, Rebecca A.
11/05/14
133.25
0.00
1.10
146.58
357.50
1.10
2713661
4387
Stoever, Thomas W.
11/05/14
325.00
0.00
1.00
325.00
795.00
1.00
2713661
35011524
7153
Golz, Rebecca A.
11/10/14
0.00
133.25
0.20
26.65
65.00
0.20
2713661
35014261
4261
Lyman, L. James
11/11/14
262.40
0.00
1.80
472.32
1,152.00
1.80
2713661
Page: 4
0091738
Control
Group Line
Hourly
Rate
Time/Unit
Billed
Value
Prebill Num
Print
Flag
2713661
1.00
2713661
Tran Date
Description
Time/Unit
262.40
0.00
0.60
157.44
384.00
0.60
0.00
325.00
1.00
325.00
795.00
35027711
4261
Lyman, L. James
11/13/14
35034749
4387
Stoever, Thomas W.
11/14/14
35027715
4261
Lyman, L. James
11/14/14
0.00
262.40
0.50
131.20
320.00
0.50
2713661
35031576
7153
Golz, Rebecca A.
11/17/14
0.00
133.25
0.80
260.00
106.60
0.80
2713661
35040033
4261
Lyman, L. James
11/17/14
0.00
262.40
2.20
577.28
1,408.00
2.20
2713661
draft
stipulation; draft response to state
motion for judgment.
35034793
4387
Stoever, Thomas W.
11/19/14
0.00
325.00
1.00
325.00
795.00
1.00
2713661
35040232
4261
Lyman, L. James
11/21/14
262.40
0.00
0.90
236.16
576.00
0.90
2713661
35044275
7153
Golz, Rebecca A.
11/24/14
0.00
133.25
1.20
159.90
390.00
1.20
2713661
35060622
4261
Lyman, L. James
11/24/14
0.00
262.40
2.00
1,280.00
524.80
2.00
2713661
Page: 5
0091738
Control
Group Line
Tran Date
Description
Hourly
Rate
Time/Unit
Billed
Value
Time/Unit
Prebill Num
Print
Flag
35075048
7153
Golz, Rebecca A.
12/02/14
0.00
133.25
0.90
292.50
119.93
0.90
2713661
35085129
4387
Stoever, Thomas W.
12/08/14
0.00
325.00
1.00
325.00
795.00
1.00
2713661
35134560
7153
Golz, Rebecca A.
12/12/14
0.00
133.25
1.70
226.53
552.50
1.70
2713661
35151411
4387
Stoever, Thomas W.
01/05/15
325.00
0.00
1.00
325.00
835.00
Page: 6
0091738
Control
Group Line
Tran Date
Description
Hourly
Rate
Time/Unit
Billed
Value
Time/Unit
Prebill Num
Print
Flag
35201421
7153
Golz, Rebecca A.
01/29/15
0.00
133.25
0.10
34.00
13.33
35213797
7153
Golz, Rebecca A.
01/30/15
133.25
0.00
0.70
93.28
238.00
Fees Base
Page: 7
Fees Billed
Time
Value
159.90
41,139.62
Time
Value
Base
Control
Group Line
Timekeeper (Category)
Tran Date
Hourly
Rate
Description
Time/Unit
Billed
Value
Time/Unit
Prebill Num
Report Total
Disbursement Category
Numberof
of Entries
Entries
Number
Billed Value
147
Westlaw Research
12
579.02
1501
80.37
151
Travel Expenses
62.37
1511
Hotel
178.73
152
Travel Meals
76.80
153
Local Transportation
310.24
160
Duplicating
62
129.60
172
59.34
187
Filing Fees
1,100.00
194
Color copies
3.75
202
195.50
Disb Base
Page:
Page: 10
8
Disb Billed
Unit
Value
Unit
Value
869.00
2,775.72
869.00
2,775.72
Print
Flag
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Tracy L. Zubrod
ZUBROD LAW OFFICE, PC
219 East 18th Street
Cheyenne, WY 82001
Telephone: (307) 778-2557
Facsimile: (307) 778-8225
Email: [email protected]
L. James Lyman*
Thomas W. Stoever, Jr.
ARNOLD & PORTER LLP
370 Seventeenth Street, Suite 4400
Denver, Colorado 80202-1370
Telephone: (303) 863-1000
Facsimile: (303) 832-0428
Email: [email protected]
Qusair Mohamedbhai
RATHOD MOHAMEDBHAI LLC
1518 Blake Street
Denver, Colorado 80202
Telephone: (303) 578-4400
Facsimile: (303) 578-4401
Email: [email protected]
Shannon P. Minter*
Christopher F. Stoll*
NATIONAL CENTER FOR
LESBIAN RIGHTS
870 Market Street, Suite 370
San Francisco, CA 94102
Telephone: (415) 365-1335
Facsimile: (415) 392-8442
Email: [email protected]
Attorneys for Plaintiffs
*Admission Pro Hac Vice
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I am an attorney admitted pro hac vice before this Court and represent the Plaintiffs
in this action. I am a member in good standing of the California State Bar and am admitted to
practice law in California state and federal courts, several U.S. Courts of Appeals, and the Supreme
Court of the United States. I have personal knowledge of the matters stated in this Declaration
and could and would competently testify to these facts.
2.
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3.
I am a 1993 graduate of Cornell University School of Law, and have been a licensed
attorney since that year. Since 2000, I have been the Legal Director of the National Center for
Lesbian Rights (NCLR), which is a national legal organization committed to advancing the civil
and human rights of lesbian, gay, bisexual, and transgender people and their families. In particular,
NCLR is committed to litigating precedent-setting cases at the trial and appellate court levels
throughout the country. A more complete recitation of my experience and background in civil
rights cases is included below and in my curriculum vitae, a copy of which is attached hereto as
Exhibit A.
MY MOST RELEVANT GENERAL BACKGROUND
4.
NCLR maintains a diverse legal practice and I have litigated a variety of complex
cases in state and federal courts during my twenty-one year tenure at the organization. For
instance, I have litigated complex child custody, adoption, youth, immigration, employment
discrimination, and civil rights matters. I have also argued cases before trial and appellate courts,
including state supreme courts and federal circuit courts of appeal.
5.
(LGBT) people and frequently teach or lecture regarding these topics. For example, I have taught
courses on LGBT legal issues at Berkeley, Stanford, Santa Clara, American University
Washington College of Law, and several other laws schools.
6.
I have authored several treatises and publications on legal issues related to the
LGBT community, including in the areas of family law, constitutional rights, employment
discrimination, and immigration / asylum, and frequently lecture around the country and abroad
regarding LGBT civil and human rights. For example, in September of 2013, I traveled to El
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Salvador to meet with various governmental agencies about hate violence against LGBT people at
the request of the U.S. Department of State.
7.
I also have extensive experience litigating challenges to state laws that prohibit
NCLR was also lead counsel in Strauss v. Horton, 46 Cal. 4th 364, 207 P.3d 48
(Cal. 2009). I argued that case before the California Supreme Court, which held that the marriages
of same-sex couples who legally married in California before the enactment of Proposition 8 were
valid.
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9.
In 2012, NCLR litigated Port v. Cowan, 426 Md. 435, 44 A.3d 970 (Md. 2012). I
argued that case before the Maryland Court of Appeals, the highest state court in that state, which
held that Maryland must recognize the marriages of same-sex couples who validly married in other
jurisdictions.
10.
In 2011 through 2013, NCLR also successfully litigated Cozen OConnor, P.C. v.
Tobits, et al., No. 110045, 2013 WL 3878688 (E.D. Penn. Jul. 29, 2013) in the Eastern District
of Pennsylvania establishing the validity of a marriage of a same-sex couple. In that case, Jennifer
Tobits lost her wife to a four-year battle with cancer. When she sought distribution of her wifes
employee pension plan, the employer refused to distribute the funds based on the federal Defense
of Marriage Act. Relying on the U.S. Supreme Courts decision in United States v. Windsor, the
federal judge ruled that Jennifer was a legal spouse entitled to her wifes pension plan.
11.
New Mexicos failure to issue marriage licenses to same-sex couples. In that case, we secured a
unanimous decision from the New Mexico Supreme Court ruling that the New Mexico
Constitution requires the state to allow same-sex couples to marry and to recognize the valid
marriages of same-sex couples performed outside the state.
12.
In 2013, NCLR served as amicus counsel for the Leadership Conference on Civil
and Human Rights, the American Association of University Women, the Hispanic National Bar
Association, the Japanese American Citizens League, the League of United Latin American
Citizens, the Mexican American Legal Defense and Educational Fund, the Southern Poverty Law
Center and other civil rights organizations in United States v. Windsor, 133 S. Ct. 2675 (2013).
13.
I, along with Christopher Stoll, Amy Whelan, and other NCLR legal staff, also
served or are serving as Plaintiffs counsel in multiple marriage cases around the country, including
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in Utah, Idaho, Florida, Tennessee, South Dakota, North Dakota, and Alabama. We prevailed on
dispositive motions and/or motions for preliminary injunctive relief in Utah, Idaho, Florida,
Tennessee, South Dakota, and Alabama and have a summary judgment motion pending in North
Dakota. In addition, on behalf of our Utah and Idaho clients, we prevailed in appeals before the
Ninth and Tenth Circuits, where we had primary responsibility for drafting all briefs. Presently,
we represent the plaintiffs in a challenge to Tennessees refusal to recognize the lawful marriages
of same-sex couples entered into in other jurisdictions, in which the Supreme Court of the United
States has granted a writ of certiorari and requested briefing and argument on the merits. Because
of our extensive experience and expertise litigating these cases, we have also provided legal
assistance and research to numerous other attorneys around the country who are litigating marriage
cases in both state and federal courts.
SUMMARY OF THE LITIGATION AND THE
EXCELLENT RESULTS OBTAINED
14.
NCLR was retained in this litigation, along with co-counsel, on a fully contingent
basis to challenge Wyomings laws prohibiting the issuance of marriage licenses to same-sex
couples and prohibiting recognition of valid marriages of same-sex couples entered in other
jurisdictions. The attorneys at Arnold & Porter served as lead counsel, and NCLR, Ms. Zubrod,
Mr. Mohamedbhai, and Mr. Jahanian were actively involved in strategy, drafting of key briefs and
documents, and decision making for the case. All counsel worked hard to divide tasks so that their
effort was not duplicative. Plaintiffs counsel conducted much of their business during telephone
conferences and through email, which served as a cost-effective means to divide tasks between the
attorneys and staff while eliminating the need for expensive travel by NCLR and co-counsel.
15.
duplication of effort. Our co-counsel at Arnold & Porter took primary responsibility for preparing
5
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initial drafts of many of the pleadings and briefs, including the briefing regarding the dispositive
motions, which were reviewed and edited by co-counsel. Because of NCLRs long experience
with the important constitutional issues involved in this case, we provided co-counsel with
guidance on all substantive briefs and oral argument and contributed significantly to the overall
strategy in the case.
12.
The majority of the work in this case, including drafting and filing the complaint,
motions, oppositions, replies, and the oral argument, occurred within the month of October 2014.
13.
Plaintiffs counsel litigated this case efficiently by using legal research and briefing
from NCLRs other marriage cases around the country, where it was relevant and applicable. This
reduced the number of required hours significantly, making this motion extremely reasonable.
14.
Based on my extensive litigation experience, the results obtained in this case are
excellent. Plaintiffs prevailed on all of their claims, including that Wyomings laws violate their
rights to due process and equal protection of the laws, and also secured all of the relief requested.
BILLING RATES, RECORDS, REDUCTIONS, AND CHARTS
15.
As a non-profit litigation firm, NCLR does not charge our clients for legal services.
We do, however, seek reasonable attorneys fees and expenses in cases where there are fee-shifting
statutes and our clients are the prevailing parties. NCLR and our co-counsel have incurred all
costs in this matter and Plaintiffs have agreed that any awarded attorneys fees and costs shall
belong to and be paid to Plaintiffs counsel.
16.
and expenses in this case from the beginning of the case through February 25, 2015. That time
reflects our work on the following major categories of work: (1) review and editing of the
complaint; (2) preparation of Plaintiffs successful motion for preliminary injunction, including
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supporting affidavits and evidence and preparation for the hearing on that motion; and (3)
preparation of the motion for judgment on the pleadings; (4) work moving for reasonable
attorneys fees and costs in this case.
17.
I have been assisted in this case by NCLRs Senior Staff Attorney, Christopher F.
Stoll. Amy Whelan, another Senior Staff Attorney, also worked on the attorneys fees motion.
Mr. Stolls and Ms. Whelans resumes are attached hereto as Exhibit C.
18.
The current billing rates we seek in this case are as follows: $325 per hour for
myself, $300 per hour for Christopher Stoll, who has 20 years of litigation experience in complex
civil and constitutional cases, and $275 per hour for Amy Whelan, who has 14 years of litigation
experience in complex civil and constitutional cases. As the supporting declaration of Bruce T.
Moats shows, these rates are consistent with those charged in the Wyoming market for attorneys
with similar, extensive experience litigating complex constitutional cases. Our requested rates are
also reasonable because we could seek San Francisco billing rates for this case based on our
extensive expertise and experience, as well as Plaintiffs inability to find local counsel that
specialize in constitutional matters. See e.g. Reazin v. Blue Cross and Blue Shield of Kansas, Inc.,
899 F.2d 951, 983 (10th Cir. 1990) (affirming district courts award of higher rates for out-of-state
counsel based on their expertise and experience); Rocky Mountain Christian Church v. Bd. of
County Comrs of Boulder County, No. 06-CV-00554, 2010 WL 3703224, at *5 (D. Colo. Sept.
13, 2010) (awarding higher hourly rates for attorney with specialized knowledge and skills in the
areas of constitutional law.); Swisher v. U.S., 262 F.Supp.2d 1203, 1213-14 (D. Kan. 2003)
(awarding non-local hourly rates where Plaintiff was unable to find local counsel and where legal
issues were not routinely litigated in the court). My rate in the San Francisco market is $675 per
hour, Chris Stolls rate is $650 per hour and Amy Whelans is $500 per hour.
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19.
NCLR and our co-counsel performed work efficiently, effectively, with extreme
diligence, and without unnecessary duplication. Based on my experience litigating complex civil
rights cases, I believe the hours recorded by NCLR staff on this case to be extremely conservative.
We have nevertheless made billing judgment reductions for the purpose of eliminating any
possible duplication, overstaffing or overwork. For instance, we did not record significant
amounts of time we spent communicating about strategy and emailing with co-counsel about
various litigation-related issues and strategy. Also, we do not seek fees for the two paralegals in
our office who worked on this case. Finally, we are not requesting any of the time our attorneys
or legal staff spent on the related Courage v. Wyoming litigation in state court.
20.
Following the exercise of the billing judgment reductions described above, NCLRs
total claimed lodestar for merits work and fees-for-fees work through February 25, 2015 is
$20,562.50. We also seek $1,606.53 in travel expenses, for a total request of $22,169.03. See
Exhibit B. Travel expenses are typically charged to fee-paying clients and all of these expenses,
which were incurred by one attorney to attend the hearing on the motion for preliminary injunction
/ temporary restraining order, were necessary to the litigation. Chris Stoll was the only NCLR
attorney who traveled to Wyoming for the hearing, which was essential to Plaintiffs success. Mr.
Stoll assisted our co-counsel before and during the hearing by offering his knowledge and insights
concerning legal arguments, presentation of evidence, and overall strategy based on his experience
with dozens of similar hearings and trials in marriage equality cases around the country.
I declare under penalty of perjury that the foregoing is true and correct.
Executed in Washington, D.C. on this 26th day of February 2015.
EXHIBIT A
Preface, SOCIAL SERVICES WITH TRANSGENDERED YOUTH, Gary Mallon, ed. (2000).
Beyond Second-Parent Adoption: The Uniform Parentage Act and Intended Parents, (with
Kate Kendell) 2 GEORGETOWN JOURNAL OF GENDER AND THE LAW 29 (2000).
Do Transsexuals Dream of Gay Rights? Getting Real About Transgender Inclusion in the Gay
Rights Movement, 17 NEW YORK LAW SCHOOL JOURNAL OF HUMAN RIGHTS 589 (2000).
TRANSGENDER EQUALITY. Coauthored with Paisley Currah (National Gay & Lesbian Task
Force 2000).
Lesbians and Gay Men as Adoptive Parents: A Child Welfare Perspective, in ADOPTION
FACTBOOK III (National Council for Adoption, 1999).
Diagnosis and Treatment of Gender Identity Disorder in Children, in Matthew Rottnek, ed.,
SISSIES AND TOMBOYS: GENDER NONCONFORMITY AND HOMOSEXUAL CHILDHOOD (NYU
Press 1999).
Lesbians and Political Asylum: Sexual Orientation, Gender, and Lesbian Human Rights, in A
RESOURCE GUIDE FOR ATTORNEYS REPRESENTING LESBIANS AND GAY MEN IN ASYLUM
CASES (International Gay and Lesbian Human Rights Commission 1996).
Lesbian Rights in the United States, in Rachel Rosenbloom, ed., UNSPOKEN RULES: SEXUAL
ORIENTATION AND WOMEN'S HUMAN RIGHTS (Cassell 1996).
Sodomy and Public Morality Offenses Under U.S. Immigration Law: Penalizing Lesbian and
Gay Identity, 26 CORNELL INTERNATIONAL LAW JOURNAL 771 (1993).
SELECTED PRESENTATIONS
Keynote: Realizing the Dream of Equality for All, New Mexico Bar Association, May 1,
2013
Winning Cases, Losing Children: The Human Impact of Litigation in LGBT Impact Cases,
Roundtable Discussion, Law & Society Conference, San Francisco, June 3, 2011.
LGBT Legal Issues in Utah, State Judges Annual Judicial Conference, Homestead, Utah,
May 5, 2011
Plenary, What the LGBT and Disability Rights Movements Can Learn from One Another,
Jacobus tenBroek Disability Law Symposium, Bridging the Gap between the Disability Rights
Movement and Other Civil Rights Movements, April 14, 2011
Panel, How Does it Get Better? New Directions in LGBT Equality, "Gay Rights as Human
Rights" Conference at the Harvard Kennedy School, April 15, 2011
The Relevance of Martin Luther King To LGBT Advocacy, Martin Luther King Memorial,
3
EXHIBIT B
10/6/2014
DESCRIPTION
HOURS
BILLED
1.6
0.7
0.2
0.3
1
10/14/2014
10/14/2014
10/15/2014
1.3
10/17/2014
10/20/2014
1.3
1.8
10/7/2014
10/7/2014
10/8/2014
10/8/2014
10/9/2014
10/10/2014
10/13/2014
10/13/2014
10/14/2014
10/21/2014
10/23/2014
11/4/2014
11/5/2014
11/10/2014
11/11/2014
11/21/2014
12/8/2014
12/11/2014
1/29/2015
2/25/2015
0.5
1.4
1.3
1.5
0.3
0.6
1.2
0.2
1
0.6
0.8
0.2
0.8
0.2
0.2
0.4
0.2
0.2
19.8
10/6/2014
Confer with client and co-counsel re Supreme Court certiorari denials and
potential federal litigation.
1.6
10/7/2014
10/7/2014
0.8
1.4
10/8/2014
10/8/2014
10/9/2014
2.3
1.5
0.7
0.3
0.4
2.3
1.3
3.8
0.5
0.8
1.2
5.3
5.5
1.3
2.2
1.2
1
0.6
0.8
0.7
0.8
0.3
0.2
0.4
0.2
0.4
0.2
0.3
0.3
1.2
0.8
42.6
0.4
1
0.2
0.3
1.5
0.2
0.6
0.7
4.9
DESCRIPTION
Actual
Expenses
10/14/2014
10/14/2014
10/14/2014
10/14/2014
10/17/2014
$
62.08
$ 1,070.70
$ 152.00
$ 268.90
$
52.85
Total
$ 1,606.53
EXHIBIT C
CHRISTOPHER F. STOLL
Senior Staff Attorney
EDUCATION AND BAR ADMISSIONS
Harvard Law School, Cambridge, Massachusetts, J.D. magna cum laude, 1994
Harvard Law Review, Supreme Court Editor, 1992-94
DePauw University, Greencastle, Indiana, B.A. summa cum laude, 1991
Political Science/Russian Area Studies
Bar Admissions: California (1995); admitted to CA state and federal courts, several U.S.
Courts of Appeals, and U.S. Supreme Court
LEGAL EXPERIENCE
National Center for Lesbian Rights, San Francisco, California
Senior Staff Attorney, 2008-present
Oversee NCLRs general litigation, policy, and public education work.
Supervise and manage legal team members on complex civil cases around the
country.
Litigate numerous marriage equality cases, including in Florida, Idaho,
Tennessee, New Mexico, Utah, and Wyoming.
Litigate a variety of employment, discrimination, Title IX, First Amendment,
family law, and complex constitutional cases around the country.
Heller Ehrman LLP, San Francisco, California
Shareholder, 2003-2008, Associate, 1995-2002
Supervised case teams and personally handled all aspects of civil litigation,
including legal research and writing, discovery, depositions, oral argument,
trial, appeal, alternative dispute resolution and settlement. Prepared case
budgets and advised clients on litigation strategy.
United States Court of Appeals for the Ninth Circuit, San Francisco, California
Law Clerk to the Honorable James R. Browning, 1994-95
MEMBERSHIPS & HONORS
State Bar of California, American Bar Association, San Francisco Bar Association, Bay
Area Lawyers for Individual Freedom, Northern California SuperLawyers
COMMUNITY INVOLVEMENT
Board of Directors, Community United Against Violence, 1999-2006
Board of Directors, Positive Resource Center 1996-1999
REPRESENTATIVE LITIGATION ENGAGEMENTS, 2008-present
Kitchen v. Herbert (United States Court of Appeals, Tenth Circuit). Represent three same-sex
couples in a federal lawsuit challenging Utahs laws prohibiting same-sex couples from marrying
and refusing to respect the legal marriages of same-sex couples who married in other states.
Tanco v. Haslam (United States Court of Appeals, Sixth Circuit). Represent three legally married
same-sex couples challenging Tennessee laws that prevent the state from respecting their legal
marriages.
Pickup v. Brown (United States Court of Appeals, Ninth Circuit). Participated as amicus curiae
in case defending California state law that prohibits state-licensed therapists from trying to
change the sexual orientation or gender expression of a patient under 18 years old.
King v. Christie (United States District Court, District of New Jersey). Represent intervenor in
case defending New Jersey state law that prohibits state-licensed therapists from trying to change
the sexual orientation or gender expression of a patient under 18 years old.
Christian Legal Society v. Martinez (Supreme Court of the United States). Represented student
organization at Hastings College of the Law as intervener in First Amendment case challenging
Hastings Policy on Nondiscrimination. Prevailed before the U.S. Supreme Court.
Doe v. Anoka-Hennepin School District No. 11 and E.R. (United States District Court, District of
Minnesota). Represented students in lawsuit against the school district and school officials for
failure to stop daily harassment and bullying by their peers because of their actual or perceived
sexual orientation or gender expression. Obtained favorable lawsuit for plaintiff students.
Howe v. Haslam (Court of Appeals for Tennessee, Middle Section). Represent plaintiffs in
constitutional challenge of Tennessee law precluding localities from passing anti-discrimination
ordinances. Currently on appeal.
AMY WHELAN
Senior Staff Attorney
EDUCATION AND BAR ADMISSIONS
Northeastern University School Of Law, Boston, MA: Juris Doctor, May 2001
Princeton University, Princeton, NJ: Bachelor of Arts, June 1996
Senior Thesis: Gay Marriage: A Social Contract and Utilitarianism Analysis
Princeton Project 55 Fellowship (now Princeton AlumniCorps) at Disability Rights Advocates
Bar Admissions: California (2001); admitted to CA state and federal courts, several U.S. Courts
of Appeals, and U.S. Supreme Court
LEGAL EXPERIENCE
National Center for Lesbian Rights San Francisco, CA
Feb. 2011present
Senior Staff Attorney: Oversee NCLRs general litigation, policy, and public education work.
Supervise and manage legal team members in complex civil cases around the country. Litigate
numerous marriage equality cases, including in Florida, Idaho, Tennessee, Utah, and Wyoming,
as well as employment, discrimination, Title IX, First Amendment, family law, and complex
constitutional matters around the country.
Rosen Bien Galvan & Grunfeld, LLP San Francisco, CA
2001Jan. 2011
Associate: General and complex civil litigation firm, with an emphasis on civil rights, prisoners
rights, employment, and attorneys fees cases at the trial court and appellate levels. Perform all
litigation-related tasks for diverse cases and hire and manage paralegals and law student interns.
Highlights:
Member of 2008-2009 trial team in Coleman/Plata v. Schwarzenegger before federal
three-judge court and then U.S. Supreme Court, holding that California must reduce
prison overcrowding in order to meet the medical and mental health needs of prisoners.
Responsible for all matters of civil discovery including taking and defending
depositions, developing expert testimony, propounding and responding to written
discovery and drafting and arguing motions.
Hired, managed and supervised paralegal staff and law student interns.
David Coon, Heather Gray, and Amy Whelan, Presenters at 14th Annual Updates on Dementia
Conference, LGBT Aging Research and Practice: Updates and Implications for Care Panel, May
6 2012.
Amy Whelan & Julie Nice, Panelists at 2012 Summer Brown Bag Lectures In Public Interest Law,
The Season For Gay Rights? A Discussion of Emerging Constitutional Law, July 24 2012.
Cameo Speaker, Pacific Coast Labor & Employment Conference, April 26 2013.
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EXHIBIT 1
QUSAIR MOHAMEDBHAI
2701 Lawrence Street, Suite 100
Denver, Colorado 80205
PROFESSIONAL BACKGROUND
Qusair is a partner at RATHOD | MOHAMEDBHAI LLC. His practice is
exclusively in the areas of plaintiffs employment discrimination and
constitutional civil rights litigation. He advocates for the rights of employees in
the workplace, and for the civil rights of all individuals against governmental
and institutional abuses of power.
AWARDS
Colorado Trial Lawyers Association Case of the Year (2014); Super Lawyer Plaintiffs Employment Law
(2014-2015); Super Lawyer Rising Star Civil Rights / First Amendment (2011 - 2013); National Lawyers
Guild First Amendment Defender Democratic National Convention (2008).
PROFESSIONAL ASSOCIATIONS AND MEMBERSHIPS
University of Denver Sturm College of Law - Adjunct Faculty (2014); Plaintiff Employment Lawyers
Association Board Member (2014); Colorado Trial Lawyers Association Co-Chair Employment Law
Section (2010-present); National Institute for Trial Advocacy Faculty (2012); Civil Rights Education &
Enforcement Center, Litigation Committee (2013-present); General Counsel, Colorado Muslim Society
(2010Present); Servicios de la Raza Board Member (2011-Present); Colorado Bar Association (2004Present); Wyoming Bar Association (2004-Present); Denver Bar Association (2004Present), South Asian
Bar Association (2010-Present); The National Association for the Advancement of Colored People (2011Present); Islamic Society of North America, Arbitrator (2011-Present).
EDUCATION & BAR ADMISSIONS
Qusair graduated from the University of Wyoming School Of Law, Laramie, Wyoming in 2003. He received
his undergraduate degree in Biological Sciences from the University of Alberta, Edmonton, Alberta in 2000.
Qusair is admitted to practice law in Colorado, Wyoming, the United States District Court, District of
Colorado, and Tenth Circuit Court of Appeals.
PUBLICATIONS
The Colorado Anti-Discrimination Act, Chapter Update, Practitioners Guide to Employment Law, Colorado
Bar Association (January 2015); Municipal Liability: Strategies, Critiques, and a Pathway Toward Effective
Enforcement of Civil Rights (Denver University Law Review, Volume 91, Issue 3); Religious Minorities
Need Not Apply: Legal Implications of Faith-Based Employment Advertising, 43 The Colorado Lawyer 27
(April 2014); Ramadan at Guantanamo Bay, Front Range Muslim Newspaper (October 2011); Colorado
Muslims Support Libyan Students, Front Range Muslim Newspaper (June 2011); Peter T. King and the
Radicalization in the American Muslim Community, Front Range Muslim Newspaper (April 2011); and The
Rights of Muslims in the Workplace, Front Range Muslim Newspaper (December 2010).
ACADEMIC LECTURING
Remedies For Sexual Violence: What All Attorneys Need To Know CLE, CWBA (January 2015); Harassment
and Discrimination in the Workplace CLE, Sterling Education Services, Cheyenne, Wyoming (September
2014); Taking a CCRD Probable Cause Finding to the ALJ CLE, PELA (August 2014); Employment Law
for the Personal Injury and Medical Malpractice Attorney: Issue Spotting and Avoiding Pitfall CLE, CTLA,
(August 2014); Workplace Privacy CLE, Colorado Bar Association (March 2014); Workplace
Discrimination CLE, Program Chair, Colorado Bar Association (January 2014), Nuts and Bolts of the CADA
Remedies Bill CLE, Colorado Trial Lawyers Association (December 2013); Stock Options: Pitfalls and
Considerations to your Employment Practice CLE, Colorado Bar Association, (October 2013); The EEOCs
Systemic Initiative, Ogletree Deakins Annual Employment Law Seminar (October 2013); Go F*ck Yourself
Defending Your Case with the First Amendment CLE, Colorado Public Defenders Office Annual Conference
(September 2013); Hanging Your Own Shingle CLE, Colorado Bar Association (August 2013 & 2012);
Employment Law Discovery & Evidentiary Issues CLE, Colorado Trial Lawyers Association (August 2013);
Stereotyping in Employment Discrimination CLE, Colorado Bar Association (April 2013); Summer Trial
Institute, Faculty, University of Wyoming School of Law (2011-2013); Employment Issues in Workers
Compensation Cases CLE, Colorado Bar Association (March 2013); 1983 is Not the Introduction to an
Orwell Novel CLE; Colorado Criminal Defense Bar (December 2012); Civil Rights for the Criminal Defense
Attorney -Colorado Public Defenders Adams County Office (September 2012); Colorado Progressive
Coalition: Understanding Civil Rights (September 2012); Building Your Case With the Bill of Rights Federal Practice Series CLE (September 2012); See the Forest and the Trees When Evaluating an
Employment Discrimination Case CLE, Wyoming Bar Association Annual State Bar/Judicial Conference
(September 2012); Successfully Navigating the Criminal Justice System as Plaintiffs Employment Attorneys:
Representing the Victim/Witness of a Crime CLE, Plaintiffs Employment Law Association Annual Retreat
(August 2012); Religious Rights in the Workplace CLE, Colorado Bar Association (May 2012); Civil Rights
for the Criminal Defense Attorney, Colorado Public Defenders Denver Office (May 2012); National Institute
for Trial Advocacy, Faculty: Trial Skills (April 2012);10 Dos and Donts of Starting a law Firm, Colorado
Bar Association CLE (March 2012); Constitutional Litigation - University of Denver Law School (October
2012); Employment Discrimination, Guest Speaker, Denver Islamic Society (June 2011); Muslims and Law
Enforcement, Guest Speaker, Colorado Muslim Society (December 2010); First Amendment in Employment
CLE, Sterling Education Services, Cheyenne, Wyoming (November 2010); Panelist, First Amendment and
Academic Freedom, University of Wyoming, Laramie, Wyoming (April 2010).
REPRESENTATIVE CASES
Robert Dienes v. CVNA, 2014cv02132 (Disability Discrimination); Shelli Robins v. Adams 14 School District, 2014cv01794-WYD-KMT (Gender Discrimination)(2014); Wilson v. Pauling Management Co et al.,
2013-cv-035298 (Employment Discrimination); Hart v. VK Investment Group, LLC, 13-cv-02301 (Housing
Discrimination); Blair v. Resort Management Group, 13-cv-01298 (Employment Gender Discrimination);
Carpenter v. CenturyLink, 2013-cv-032401 (Wrongful Discharge); Hunter v. City and County of Denver et
al., 2012-cv-5623 (Prisoner Civil Rights); Morgan et al v. Colorado Department of Corrections et al., 12-cv0936 (Prisoner Civil Rights); Ortega et al. v. City and County of Denver, et al., 11-cv-02394 (Police
Brutality and Governmental Liability); Perry v. Red Peak et al., 11-cv-01900-WYD-CBS (Housing
Discrimination); Blake v. 23 LTD et al., 11-cv-8197 (Employment Gender Discrimination and Retaliation;
Shroff v. City and County of Denver et al., 604 F.3d 1179 (10th Cir. 2010) (False Arrest and Violation of
Bodily Integrity against Denver Police Officer); Martinez et al v. City and County of Denver et al, 11-cv00102-MSK -KLM (Home Invasion and Excessive Force Against Denver Police Officers); Rehberg v. City
of Pueblo et al, 10-cv-00261-LTB-KLM (Excessive Force and Unlawful Entry against Pueblo Police
Officers); Moore v. City and County of Denver et al,10-cv-00651-JLK -MJW (Excessive Force and False
Arrest against Denver Police Officers); Hardy v. Procter & Gamble Company; 10-cv-01867-MSK -MEH
(Disability Discrimination in Employment); Graber v. City & County of Denver et al, 09-cv-01029-JLKMJW (Excessive Force and False Arrest against Denver Police Officers); Duran v. City & County of Denver
et al, No. 10-cv-01569-REB-KMT (Excessive Force against Denver City Jail and Denver Deputy Sheriff);
Alpers v. Town of Erie,10-cv-01105-WDM-CBS (Excessive Force against Erie Police Department and K-9);
Kreck v. City & County of Denver, 10-cv-01474-LTB-MEH (First Amendment Retaliation Against Denver
Police Officer); Ayers v. University of Wyoming; 10-cv-00079-WFD (First Amendment Retaliation); Hall,
Aragon, Jordan, Appleberry, & Arnall v. Adams County, No. 09-cv-02836-WYD-BNB (Sexual Harassment,
Retaliation, and/or First Amendment Retaliation against Adams County Coroners Office); Trujillo v. City of
Lakewood, No. 08-cv-00149-WDM-CBS (Excessive Force against Lakewood Police Officers and K-9;
Chavez et al v. Fitzsimons Community Federal Credit Union, 07-cv-01529 (Race Discrimination in
Employment); McGuire-Mann v. Naked Juice Company, 2008 Arbitration, (Sexual Harassment in
2
EXHIBIT 2
ARASH JAHANIAN
wk (303) 578-4400
fax (303) 578-4401
[email protected]
PROFESSIONAL BACKGROUND
Arash Jahanian is an attorney at Rathod | Mohamedbhai LLC. His practice
includes advocating for the civil rights of employees in the workplace and
individuals suffering governmental and institutional abuses of power. Prior to
joining Rathod Mohamedbhai, Arash was an associate in Crowell & Moring
LLPs Washington, DC office and a judicial clerk for the Honorable Wiley Y.
Daniel, Chief Judge of the United States District Court for the District of
Colorado.
PRIOR EXPERIENCE
While at Crowell & Moring, Arash worked in the Labor & Employment and Litigation practice groups. His
Labor & Employment practice was focused on litigating employment discrimination claims and wage-and-hour
claims under the Fair Labor Standards Act (FLSA). His practice in the Litigation group focused on education
civil rights law and on bringing claims against foreign governments on behalf of victims of state-sponsored
terrorism. Through his pro bono practice, Arash helped victims of an immigration raid gain recourse for
constitutional civil rights violations by federal officers.
From 2003 to 2005, Arash taught in Chicago Public Schools as a Teach For America corps member. Dedicated
to closing the achievement gap in underprivileged schools, Arash taught math, language arts, and Spanish. He
also coached boys softball and led after-school tutoring programs.
EDUCATION
Arash graduated Cum Laude from Georgetown University Law Center, Washington, D.C. in 2008. He served as
Articles Editor for the Georgetown Journal of Gender and the Law and participated in the Center for Applied
Legal Studies, Georgetowns political asylum clinic. He also helped to found the Georgetown Journal of Law &
Modern Critical Race Perspectives, for which he served as Symposium Chair during the journals inaugural
year. Arash received his undergraduate degree, with Highest Honors, in Psychology and Journalism and Mass
Communication from the University of North Carolina at Chapel Hill in 2003.
REPRESENTATIVE CASES
Dienes v. Colorado Visiting Nurse Association, 14-cv-3132 (Disability Discrimination (2014)
Courage, et al. v. State of Wyoming, et al., Civil Action No. 182-262 (Marriage Equality) (2014)
Robins v. Adams County School District 14, 14-cv-01794-WYD-KMT (Gender Discrimination) (2014);
Carpenter v. CenturyLink, Inc. et al., 2013cv32401 (Retaliation in Employment) (2013)
Blair v. Resort Management Group, LLC Hunter v. City and County of Denver et al., 13-cv-01298WJM-CBS (Sexual Harassment) (2013)
Hunter v. City and County of Denver et al., 12-cv-02682-JLK (Prisoner Civil Rights) (2012)
Morgan et al. v. Colorado Department of Corrections et al., 12-cv-00936-RM-KMT (Prisoner Civil
Rights) (2012)
Ortega et al. v. City and County of Denver et al., 11-cv-02394-WJM-CBS (Police Brutality) (2011)
HONORS AND AWARDS
Super Lawyer Rising Star
PROFESSIONAL ASSOCIATIONS AND MEMBERSHIPS
Denver GLBT Commission, Commissioner
Colorado GLBT Bar Association, Board Member, Programming Committee Co-Chair
PUBLICATIONS
Religious Minorities Need Not Apply: Legal Implications of Faith-Based Employment Advertising,
The Colorado Lawyer, Co-Authors: Matthew J. Cron, Arash Jahanian, Qusair Mohamedbhai, and
Siddhartha H. Rathod, 2014
Municipal Liability: Strategies, Critiques, and a Pathway Forward Toward Effective Enforcement of
Civil Rights, University of Denver Law Review, Volume 91, Issue 3, Co- Authors: Matthew J. Cron,
Arash Jahanian, Qusair Mohamedbhai, and Siddhartha H. Rathod, 2014
True Endorsement: A Critical Race Approach to Bans on Same-Sex Marriage, Georgetown Journal of
Gender & the Law, 2008
The Foreign Sovereign Immunities Act: 2010 Year In Review, Co-Authors and Editors: Laurel Pyke
Malson, Katherine Nesbitt, Aryeh S. Portnoy, Lisa Savitt, Birgit Kurtz, David Bell, Arash Jahanian,
Jonathan Anastasia, Elizabeth Carter, Melanie Natasha Henry, Nicholas Fromherz, Julia Franklin, and
Dalal Hasan, 2011
The Foreign Sovereign Immunities Act: 2009 Year in Review, Co-Authors and Editors: Laurel Pyke
Malson, Katherine J. Nesbitt, Aryeh S. Portnoy, Birgit Kurtz, John Murino, Joshua Dermott, Beth
Goldman, Arash Jahanian, Marguerite Walter, Howard Yuan, Lisa Savitt, and David Bell, 2010
LANGUAGES
Spanish
Farsi
BAR ADMISSIONS
Colorado
New York
District of Columbia
U.S. District Court for the District of Colorado
U.S. District Court for the District of Maryland
EXHIBIT 3
Rathod Mohamedbhai LLC Time Entry Report for Guzzo, et al. v. Matthew H.
Mead, et al., Civil Action No. 182-262 (D. Wyo.)
Tuesday, October 7, 2014 to Thursday, February 26, 2015
DATE
ATTORNEY /
STAFF
DESCRIPTION
RATE
TIME
TOTAL
(6 min)
Jahanian
200
3.50
$700.00
Belzer
Research affidavit
requirements for
Preliminary Injunction
Motion.
140
$280.00
Jahanian
Continue researching
affidavit requirements
for preliminary
injunction motion; revise
motion.
200
1.00
$200.00
Belzer
Research affidavit
requirements for
preliminary injunction
motion.
140
3.00
$420.00
Strategize re subpoena;
prepare clients for
Mohamedbhai hearing.
300
2.80
$840.00
Prepare subpoena;
confer re pro hac vice
motions; draft motion
for summary judgment.
200
3.30
$660.00
Jahanian
2701 LAWRENCE ST., SUITE 100 DENVER, CO 80205 303.578.4400 (t) 303.578.4401 (f) www.RMLawyers.com
ATTORNEY /
STAFF
DESCRIPTION
RATE
TIME
(6
min)
TOTAL
Belzer
Research requirements
for and prepare
subpoena.
140
1.9
$266.00
Continue strategizing re
Mohamedbhai subpoena.
300
0.60
$180.00
Jahanian
200
2.60
$520.00
Belzer
140
3.00
$420.00
300
1.00
$300.00
Confer re motion to
quash subpoena and
reply to State
Defendants' response to
preliminary injunction
Mohamedbhai motion.
300
0.70
$210.00
Jahanian
Draft response to
motion to quash
subpoena; draft reply to
State Defendants'
response to preliminary
injunction motion.
200
8.20
$1,640.00
Belzer
140
1.90
$266.00
ATTORNEY /
STAFF
DESCRIPTION
RATE
TIME
(6
min)
TOTAL
300
3.00
$900.00
200
6.20
$1,240.00
140
1.70
$238.00
300
2.60
$780.00
200
6.00
$1,200.00
Jahanian
Jahanian
300
3.00
$900.00
Jahanian
200
3.00
$600.00
Review Court's
Preliminary Injunction
Order; confer re next
Mohamedbhai steps.
300
0.50
$150.00
ATTORNEY /
STAFF
DESCRIPTION
RATE
TIME
(6
min)
TOTAL
Jahanian
Review Court's
Preliminary Injunction
Order; confer re next
steps.
Jahanian
300
0.20
$60.00
Jahanian
200
0.40
$80.00
Jahanian
200
0.40
$80.00
Jahanian
200
0.20
$40.00
Jahanian
Continue reviewing,
revise draft stipulated
judgment.
200
0.50
$100.00
Jahanian
Review Defendants'
Answer to Complaint.
200
0.20
$40.00
Review, confer re
Defendants' motion for
judgment on the
Mohamedbhai pleadings.
300
0.20
$60.00
Jahanian
Review, confer re
Defendants' Motion for
Judgment on the
Pleadings.
200
0.50
$100.00
Jahanian
Review Preliminary
Injunction Hearing
Transcript.
200
0.40
$80.00
200
0.50
$100.00
200
0.20
$40.00
ATTORNEY /
STAFF
RATE
TIME
(6
min)
TOTAL
200
0.40
$80.00
200
200
2.60
0.60
$520.00
$120.00
200
3.40
$680.00
300
0.20
$60.00
Jahanian
200
1.00
$200.00
Jahanian
200
0.50
$100.00
Jahanian
200
0.10
$20.00
300
0.30
$90.00
Jahanian
Confer re fee petition.
Mohamedbhai Confer re fee petition.
Jahanian
Confer re fee petition.
200
300
200
0.30
0.40
0.40
$60.00
$120.00
$80.00
300
0.20
$60.00
Jahanian
200
0.20
$40.00
300
0.30
$90.00
200
1.20
$240.00
300
0.10
$30.00
DESCRIPTION
Jahanian
Jahanian
ATTORNEY /
STAFF
DESCRIPTION
RATE
TIME
(6
min)
TOTAL
Jahanian
200
0.40
$80.00
300
200
0.10
0.20
$30.00
$40.00
300
1.20
$360.00
200
7.20
$1,440.00
Jahanian
Revise affidavit in
Mohamedbhai support of fee petition.
300
0.50
$150.00
Jahanian
200
8.10
$1,620.00
300
4.00
$1,200.00
200
7.00
$1,400.00
Jahanian
TOTAL FEES
104.10 $22,600.00
EXHIBIT 4
DATE
10/9/2014
10/10/2014
10/14/2014
10/14/2014
10/15/2014
10/15/2014
10/15/2014
10/15/2014
10/15/2014
10/16/2014
10/16/2014
10/20/2014
12/17/2014
AMOUNT
100.00
80.00
5.91
1.60
16.52
155.12
3.14
3.57
142.52
155.12
21.10
16.52
42.60
$743.72
DESCRIPTION
Service of Subpoena
Service of Subpoena
Mailing
Mailing
Mailing
277 miles x $0.56 (Denver-Casper)
Internet
Food before hearing
Lodging for hearing
277 miles x $0.56(Casper-Denver)
Food after hearing
Mailing
Total Printing (284 pages x .15)
2701 LAWRENCE ST., SUITE 100 DENVER, CO 80205 303.578.4400 (t) 303.578.4401 (f) www.RMLawyers.com
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'i5 2.
NUMBER
2 4
<._
FILED
MAR - 5 2014 r)~
SANDY LANDERS
CLERK OF THE DISTRICT COURT
Defendants.
---------------------------------------
State is well-deserved. As often noted by the Wyoming courts, "the Wyoming Constitution
offers more robust protection against legal discrimination than the federal constitution." See
Allhusen v. State By and Through Wyoming Mental Health Professions Licensing Bd., 898 P.2d
878, 884 (Wyo. 1995).
2.
Wyoming has a long history of respecting marriages that were validly entered into
in other jurisdictions and affording those marriages all of the rights and privileges of a Wyoming
marriage. But in 1977, Wyoming singled out the marriages of same-sex couples by excluding
them from recognition.
3.
that excludes same-sex couples from marriage, and Wyoming's practice- in contravention of its
own law--of refusing to recognize the marriages of same-sex couples lawfully entered into in
other jurisdictions. See Wyo. Stat. 20-1-101; 20-1-111.
EXHIBIT B
4.
Wyoming, like other states, encourages and regulates marriage through hundreds
of laws that provide benefits to and impose obligations upon married couples. In exchange,
Wyoming receives the well-established benefits that marriage brings: stable, supportive families
that create loving homes for children and contribute to both the social and economic well-being
of Wyoming.
5.
Wyoming's refusal to marry same-sex couples and recognize the valid out-of-
state marriages of same-sex couples violates the guarantees of the Wyoming Constitution. This
Court should so declare and issue an injunction requiring defendants to issue marriage licenses to
the unmarried plaintiffs without regard to their status as same-sex couples, and to recognize the
existing marriages of the married plaintiffs.
6.
Plaintiffs are same-sex couples who live in Wyoming, and Wyoming Equality, a
non-profit organization dedicated to securing full equality for Wyoming's lesbian, gay, bisexual,
and transgender ("LGBT") community.
7.
The Plaintiff couples are active and contributing members of society, with diverse
backgrounds and educations. They are distinguished war veterans, counselors, professors, and
sheep ranchers, among other professions. Some are parents; others do not have children. The
situations faced by these couples are similar to those faced by many other same-sex couples in
Wyoming who are denied the basic rights, privileges, and protections of marriage for themselves
and their children.
8.
Plaintiffs Cora Courage and Wyoma "Nonie" Proffit, and Carl Oleson and Rob
Johnston (collectively the "Married Plaintiffs"), are legally married same-sex couples, having
wed in Iowa and Canada respectively. However, in their home state of Wyoming, they are
treated as legal strangers to their spouses.
9.
Although Wyoming law states that "[a]ll marriage contracts which are valid by
the laws ofthe country in which contracted are valid in this state," Wyo. Stat. 20-1-111, and
does not specifically exempt same-sex marriages from that recognition, it has been the practice
of Wyoming officials to refuse to recognize the lawful marriages of same-sex couples who
married in other jurisdictions and to deny those married couples any of the rights and protections
of marriage. By refusing to recognize the lawful marriages of the Married Plaintiffs and denying
them all of the rights and protections given to other legally married couples, Wyoming has
effectively nullified their legal status and their rights and responsibilities as married people.
10.
Plaintiffs Anne Marie Guzzo and Bonnie Robinson, and Ivan Williams and
Charles "Chuck" Killion (collectively the "Unmarried Plaintiffs" ), are unmarried same-sex
couples in committed relationships who desire to marry in Wyoming. The Unmarried Plaintiffs
meet all the requirements Wyoming imposes for the issuance of marriage licenses except that
they are same-sex couples.
11.
The Unmarried Plaintiffs wish to publicly declare their love and commitment
before their family, friends, and community; to join their lives together and enter into a legally
binding commitment to one another; and to share in the protections and security that marriage
provides. The Unmarried Plaintiffs have strong ties to Wyoming and getting married in their
home state of Wyoming is of immense personal importance to them.
12.
Like many other couples with a life-long commitment, the Unmarried Plaintiffs
are spouses in every sense except for their inability to legally marry under Wyoming law, which
provides that "[m]arriage is a civil contract between a male and a female person to which the
consent of the parties capable of contracting is essential." Wyo . Stat. 20-1-101. This provision
forbids the Unmarried Plaintiffs from marrying in Wyoming.
13.
the marriages of legally married same-sex couples adversely impact the Plaintiff couples, and
other Wyoming same-sex who are members of Wyoming Equality, in real and significant ways.
When Wyoming withholds a marriage license from a same-sex couple, or refuses to recognize a
same-sex couple 's valid marriage from another jurisdiction, it circumscribes the affected
individuals' basic life choices, classifies the affected individuals and couples in a manner that
denies them the public recognition and myriad benefits of marriage, prevents the couple from
making a legally binding commitment to one another and from being treated by the government
and by others as a family rather than as umelated individuals, and harms society by burdening
and disrupting committed families and preventing couples from being able to full y protect and
assume responsibility for one another and their children. The Plaintiff couples and their children
are stigmatized and relegated to second-class status.
14.
existing marriages undermines the Plaintiff couples' ability to achieve their life goals and
dreams, disadvantages them financially, and denies them "dignity and status of immense
import." United States v. Windsor, 133 S. Ct. 2675, 2692 (2013). Wyoming' s disparate
treatment of same-sex couples "tells those couples and all the world that their [relationships] are
unworthy" of recognition. !d. at 2694. By singling out same-sex couples and their families and
excluding them from any type of marital protection, Wyoming "humiliates ... children now
being raised by same-sex couples" and "makes it even more difficult for the children to
understand the integrity and closeness of their own family and its concord with other families in
their community and in their daily lives." !d.
15.
Seventeen states and the District of Columbia have extended the freedom to marry
to same-sex couples, and the institution of marriage continues to thrive. Marriage contributes to
the happiness, security, and peace of mind of countless couples and their families, and to the
stability and well-being of society.
16.
History has taught that the legitimacy and vitality of marriage do not depend on
upholding discriminatory marriage laws. Accordingly, our courts and society have discarded,
one by one, marriage laws that violated the mandate of equality guaranteed by the Constitution.
17.
In the not so distant past, the majority of states, including Wyoming, had laws
prohibiting marriage between people of different races. 1 The Supreme Court held such
exclusions from marriage to be unconstitutional in Loving v. Virginia, 388 U.S. 1, 12 (1967),
declaring: "The freedom to marry has long been recognized as one of the vital personal rights
essential to the orderly pursuit of happiness by free men" and women. This principle is equally
applicable to same-sex couples. Eliminating the remaining unconstitutional barriers to marriage
further enhances the institution and society, while protecting the fundamental rights of
individuals.
18.
respect the marriages of same-sex couples validly entered into in other jurisdictions, violate the
Due Process and Equal Protection guarantees in Article 1 of the Wyoming Constitution. Section
2 provides that "[i]n their inherent right to life, liberty and the pursuit of happiness, all members
of the human race are equal." Section 3 provides that "[s]ince equality in the enjoyment of
natural and civil rights is only made sure through political equality, the laws of this state
affecting the political rights and privileges of its citizens shall be without distinction of race,
color, sex, or any circumstance or condition whatsoever other than individual incompetency, or
l Wyoming eliminated all legal barriers to interracial marriage in 1965. See Kim Ibach and
William H. Moore, "The Emerging Civil Rights Movement: The 1957 Wyoming Public
Accommodations Statute as a Case Study," 73 Annals of Wyoming 8 (Winter 2001).
respect the marriages of same-sex couples validly entered into in other jurisdictions deprive the
Plaintiffs of their fundamental right to marry and infringe upon their constitutionally protected
interests in liberty, dignity, privacy, autonomy, family integrity, and intimate association.
Wyoming' s refusal to respect their marriages further deprives the Married Plaintiffs of their
constitutionally protected liberty interest in their marital status and their right to have their
marriage accorded the same recognition in Wyoming as it would be accorded in the state in
which it was entered. Wyoming's refusal to recognize valid same-sex marriages entered into in
other jurisdictions also discriminates against the class of legally married persons.
20.
because it burdens fundamental constitutional rights and because it discriminates on the basis of
sex and sexual orientation. Wyoming's treatment of the Plaintiff couples and other same-sex
couples cannot survive any level of constitutional scrutiny, however, because it does not
rationally further any legitimate government interest, but serves only to injure and humiliate
same-sex couples and their families.
21.
Plaintiffs bring this suit pursuant to Wyoming Statutes 1-37-103 for declaratory
relief, and Wyoming Statutes 1-28-101 through 104 for injunctive relief. Specifically,
Plaintiffs seek: (a) a declaration that Wyoming' s prohibition of marriage for same-sex couples
violates the Wyoming Constitution; (b) a declaration that Wyoming's refusal to recognize the
marriages of same-sex couples validly entered into in other jurisdictions violates Wyoming law
and the Wyoming Constitution; and (c) a permanent injunction (i) preventing Defendants from
denying the Unmarried Plaintiffs the right to marry, and (ii) directing Defendants to recognize
the marriages of the Married Plaintiffs that were validly entered into in other jurisdictions.
22.
Plaintiffs state the below causes of action against Defendants in their official
The declaratory and injunctive relief requested in this action is sought against
each Defendant; against each Defendant's officers, employees, and agents; and against all
persons acting in active concert or participation with any Defendant, or under any Defendant's
supervision, direction, or control.
This Court has subject matter jurisdiction over this equitable action pursuant to
Wyo. Const. Art. 5 10, Wyo. Stat. 1-28-101 et seq., and the Uniform Declaratory
Judgments Act, Wyo. Stat. 1-37-101 et seq.
25.
PARTIES
A.
The Plaintiffs
26.
Plaintiffs Cora Courage and Wyoma "Nonie" Proffit have been in a committed
relationship for nine years and reside in Evanston, Wyoming. They were legally married in Iowa
in December 2009. Cora is a decorated veteran of the armed services and a Major in the Army
Reserves. Nonie is a part-time librarian, and a sheep herder on her family 's ranch. Cora is the
Clinical Director of the Wyoming State Hospital. As an employee of the State of Wyoming,
Cora is entitled to enroll her spouse in her health and dental insurance coverage. Wyo. Stat. 93-209. Cora's application to add Nonie as her dependent spouse was denied by the Human
Resources Division of the Department of Administration and Information, under authority of
Defendants Urquidez and Fausset respectively, on September 18,2013, on grounds that Nonie
"does not qualify as a dependent as defined by the State of Wyoming." Had Cora's spouse been
a man, there is no question that Cora's spouse would have "qualified as a dependent as defined
by the State of Wyoming."
27.
Plaintiffs Carl Oleson and Rob Johnston have been in a committed relationship
for 16 years, and reside in Casper, Wyoming. They were legally married in Ontario, Canada, on
July 16,20 10. Carl manages a retail shop, and is very active in the United Church of Christ.
Rob, who has a master 's degree in counseling education, is the program director at Proj ect
ReGain, a life skills program for people recovering from addiction. Rob recently retired from
the Wyoming Department of Health, where he ran the HIV Prevention Program. Rob has a
pension from the State of Wyoming, which lists Carl as his spouse and beneficiary. But, even
though Rob and Carl are legally married, neither can have confidence that the state will
recognize this designation in the event of Rob's death and, based on Wyoming' s current practice
of denying recognition to same-sex spouses, have a strong basis for concern that the state will
not recognize Carl as a surviving spouse. Rob and Carl should not be deprived of the security
that other married couples enjoy and should not have to wait until Rob's death to determine
whether the State of Wyoming will honor this contract because any delay in Carl's receipt of
those benefits will have detrimental consequences. See Wyo. Stat. 1-37-101 et seq.
28.
Plaintiffs Anne Marie Guzzo and Bonnie Robinson have been in a committed
relationship for four years, and reside in Laramie, Wyoming. They meet all of Wyoming 's
qualifications for issuance of a marriage license, except that they are both women. Anne was
born and raised in Wyoming, and both A1me and Bonnie have a special connection to the state
and wish to get married here. Anne is a professor at the University of Wyoming. If Anne and
Bonnie were able to marry, Anne could add Bonnie to her state-offered health insurance plan.
Wyo. Stat. 9-3-209. Because they are unable to marry, however, the couple must purchase
insurance for Bonnie on the private market, at added cost. Like many other same-sex couples in
Wyoming, because they are unable to marry, Anne and Bonnie also must hire an attorney to draft
will and estate documents that would be unnecessary if their marriage was allowed.
29.
Plaintiffs Ivan Williams and Charles "Chuck" Killion have been in a committed
relationship for nearly two years, and reside in Cheyenne, Wyoming. They meet all of
Wyoming' s qualifications for issuance of a marriage license, except that they are both men.
Chuck was born and raised in Wyoming, and both Ivan and Chuck have a special connection to
the state and wish to get married here. Ivan is an employee of the State of Wyoming. Iflvan
and Chuck were able to marry, Ivan could add Chuck to his state-offered health insurance plan
Wyo. Stat. 9-3-209, and designate Chuck as the beneficiary of his pension. Because they are
unable to marry, however, Chuck bought into his employer's health insurance plan, which is
more expensive than Ivan's monthly premiums and provides fewer benefits. Additionally, Ivan
and Chuck hired a lawyer to prepare advanced healthcare directives, durable powers of attorney,
and other trust and estate documents that would be unnecessary if their marriage was allowed.
30.
dedicated to securing full equality for Wyoming's LGBT community. The organization has
many members throughout the state. Since its inception, the organization has represented the
interests of Wyoming's LGBT citizens through public education, coalition-building, advocacy,
and grassroots organizing. Wyoming Equality also coordinates public education campaigns and
events for policymakers, LGBT people, and the public at large on issues affecting the LGBT
community. Wyoming Equality's members include many same-sex couples througho ut
Wyoming, including residents of Laramie County who wish to marry and intend to apply for
marriage licenses if the Wyoming law and practice prohibiting same-sex couples from marrying
are declared unconstitutional as a result of this action. Wyoming Equality's members also
include same-sex couples who lawfully married in other jurisdictions and who wish to have those
marriages recognized by their state. Wyoming Equality brings this action in an associational
capacity on behalf of its members who desire to marry in Wyoming but are prevented from doing
so by enforcement of Wyoming's law and practice excluding same-sex couples from marriage,
or who have married in another state and whose marriages are not recognized by the State of
Wyoming.
B.
The Defendants
31 .
4, section 4 of the Wyoming Constitution states: "[The Governor] shall expedite all such
measures as may be resolved upon by the legislature and shall take care that the laws be
faithfully executed." Defendant Mead is responsible for upholding and ensuring compliance
with the state constitution and statutes prescribed by the legislature, including Wyoming' s Jaw
barring same-sex couples from marriage. Governor Mead also bears the authority and
responsibility for the formulation and implementation of policies of the executive branch.
Governor Mead' s official residence is in Cheyenne, within Laramie County. Governor Mead
was acting under color of state law at all times relevant to this complaint. He is sued in his
official capacity.
32.
Administration and Information, which is the agency responsible for oversight of the Human
Resources Division, which is in turn responsible for determining eligibility for benefits for state
employees. Mr. Fausset is responsible for ensuring that state employees are able to add their
spouses as dependents on their health and dental insurance policies. Mr. Fausset's official
residence is in Cheyenne, within Laramie County. Defendant Fausset was acting under color of
state law at all times relevant to this complaint. He is sued in his official capacity.
33.
Resources Division, which is responsible for determining eligibility for benefits for state
employees. Mr. Urquidez is responsible for ensuring that state employees are able to add their
spouses as dependents on their health and dental insurance policies. Mr. Urquidez's official
residence is in Cheyenne, within Laramie County. Defendant Urquidez was acting under color
of state Jaw at all times relevant to this complaint. He is sued in his official capacity.
34.
Under Wyoming law, as the Laramie County Clerk, Defendant Lathrop may issue a license to
marry, and must record returned marriage licenses. Wyo. Stat. 20-1-103(b); 20- l -107(b).
Defendant Latluop was acting under color of state law at all times relevant to this complaint.
She is sued in her official capacity.
35.
Defendants, through their respective duties and obligations, are responsible for
enforcing Wyoming's laws barring same-sex couples from marriage and Wyoming's policy of
refusing to recognize the valid marriages of same-sex couples entered into in other jurisdictions.
Each Defendant, and those subject to their supervision and control, have caused the harms
alleged, and will continue to injure Plaintiffs if not enjoined. Accordingly, the relief requested is
sought against all Defendants, as well as all persons under their supervision and control,
including their officers, employees and agents.
GENERAL ALLEGATIONS
Wyoming's Laws Barring Same-Sex Couples from Marriage and Refusing to Recognize the
Valid Out-of-State Marriages of Same-Sex Couples
36.
Wyoming law defines marriage as "a civil contract between a male and a female
person." Wyo. Stat. 20- 1-101. This definition on its face excludes same-sex couples.
37.
Generally, Wyoming recognizes marriages from other states or countries that are
valid under the other jurisdiction's laws. Wyoming Statute 20-1-111 provides that " [a]ll
marriage contracts which are valid by the laws of the country in which contracted are valid in
this state," and does not specifically exempt same-sex marriages from that recognition. For
example, although Wyoming does not recognize common-law marriages, it will recognize a
common-law marriage established under laws of another jurisdiction, and give such marriage the
same binding effect it would have in the state in which it was consummated. See Compton v.
Davis Oil Co., 607 F. Supp. 1221, 1229 (D. Wyo. 1985); see also Bowers v Wyoming State
Treasurer, ex. Rel. Workman 's Camp Div., 543 P.2d 182 (Wyo. 1979) ("As has been the law of
this state since 1876, marriages outside the state which are valid therein are valid in this state.").
38.
In contravention of its own statute, however, Wyoming does not recognize legal
marriages of same-sex couples performed in other jurisdictions. For example, Plaintiffs Cora
and Nonie were legally married in Iowa. But when Cora, who is a Wyoming state employee,
applied to add Nonie to Cora's health and dental insurance coverage, she was informed that
Nonie "does not qualify as a dependent as defined by the State of Wyoming."
Harms Caused by Wyoming's Laws Barring Same-Sex Couples from Marriage and
Refusing to Recognize Same-Sex Couples' Valid Out-of-State Marriages
39.
The Plaintiff couples are residents of Wyoming who experience the same joys and
challenges of family life as their neighbors, co-workers, and other community members who
may marry freely and whose legal marriages are respected under Wyoming law. The Plaintiff
couples, and other same-sex couples represented in interest by Wyoming Equality, are
productive, contributing citizens who support their families and nurture their children, but must
do so without the same legal shelter, dignity, and respect afforded by Wyoming to other families
through access to the universally celebrated status of marriage.
40.
enforcement of that exclusion, as well as Wyoming' s refusal to respect the marriages of legally
married same-sex couples from other jurisdictions, subject the Plaintiff couples to an inferior
"second class" status as Wyoming citizens relative to the rest of the community. These laws
deprive the Plaintiff couples and their children of equal dignity, security, and legal protections
afforded to other Wyoming families.
41.
Plaintiffs Cora and Nonie were manied in Iowa in 2009 and would be recognized
as such under Wyoming law but for the fact that they are a same-sex couple. Instead, they are
treated as legal strangers to one another under Wyoming law.
42.
Plaintiffs Carl and Rob were married in Canada on July 16, 2010, and would be
recognized as such under Wyoming law but for the fact that they are a same-sex couple. Instead,
they are treated as legal strangers to one another under Wyoming law.
43.
Plaintiffs Ivan and Chuck went to the Laramie County Clerk's office to apply for
a marriage license on February 27,2014. Defendant Lathrop, directly or through her authorized
agent, informed Ivan and Chuck that they could not apply for a marriage license because they
were a same-sex couple. On March 3, 2014, Defendant Lathrop called Ivan and Chuck to inform
them that they could apply for a marriage license, but that the application would likely be denied
because Ivan and Chuck are a same-sex couple. Ivan and Chuck applied for a license later that
day, but Defendant Lathrop did not issue them a license. Defendant Lathrop has acknowledged
that she has a duty to issue marriage licenses to qualified couples such as Ivan and Chuck, but
10
has not issued a license to Ivan and Chuck because Wyoming statute only allows marriage
between "a male and a female person." Wyo. Stat. 20-1-101.
44.
Plaintiffs Anne and Bonnie went to the Laramie County Clerk's office to apply
for a marriage license on February 27, 2014. Defendant Lathrop, directly or through her
authorized agent, informed Anne and Bonnie that they could not apply for a marriage license
because they were a same-sex couple. On March 3, 2014, Defendant Lathrop, directly or
through her authorized agent, called Anne and Bonnie to inform them that they could apply for a
marriage license, although the application would likely be denied because Anne and Bonnie are a
same-sex couple. Anne and Bonnie applied for a license on March 4, 2014, but Defendant
Lathrop would not issue a license. Defendant Lathrop has acknowledged that she has a duty to
issue marriage licenses to qualified couples such as Anne and Bonnie, but has not issued a
license to Anne and Bonnie because Wyoming statute only allows marriage between "a male and
a female person." Wyo. Stat. 20-1 -101.
45.
class citizens, Wyoming's prohibition on marriage by same-sex couples, and its refusal to
recognize valid marriages from other jurisdictions, deprive same-sex couples of critically
important rights and responsibilities that married couples rely upon to secure their marriage
commitment and safeguard their fami lies. By way of example, and without limitation, san1e-sex
partners are denied:
a. The right to spousal insurance coverage and benefits, when spousal benefits are
otherwise available. Wyo. Stat. 9-3-209.
b. The right to be provided for by their spouse during marriage. Wyo. Stat. 20-3101.
c. The right to a court-ordered equitable distribution of property upon the dissolution
of the marriage. Wyo. Stat. 20-2-114.
d. The right to inherit a share of the estate of a spouse who dies without a will.
Wyo. Stat. 2-4-10 1.
e. The right to receive a distribution of the property of a deceased spouse, free from
testamentary disposition. Wyo. Stat. 2-5-101 and 2-7-723.
f.
11
The right to have priority when making medical decisions for an ill or
incapacitated spouse without an advance health care directive. Wyo. Stat. 3522-406.
J.
The right to receive certain worker's compensation benefits for a deceased spouse
who died as a result of a work-related accident. Wyo. Stat. 27-14-403.
k. The right of one spouse to be protected from having to testify against the other.
Wyo. Stat. 1-12-104.
1.
Wyoming Statute 20-1-101 and all other sources of state law that preclude
marriage for same-sex couples violate the Due Process guarantees of the Wyoming Constitution,
both facially and as applied to the Plaintiff couples. Wyo. Const. art. 1, 6.
48.
The right to marry the unique person of one 's choice and to direct the course of
one's life without undue government restriction is one of the fundamental rights protected by
Due Process. Defendants' actions prohibiting the Plaintiff couples from entering marriage
directly and impermissibly infringe upon the Plaintiff couples' choice of whom to marry,
interfering with a core, life-altering, and intimate personal choice.
49.
Due Process also protects choices central to personal dignity, privacy, and
autonomy, including each individual's fundamental liberty interests in family integrity and
intimate association. Defendants' actions prohibiting the Plaintiff couples from entering
12
marriage directly and impermissibly infringe upon the Plaintiff couples' deeply intimate,
personal, and private decisions regarding family life, and preclude them from obtaining full
liberty, dignity, privacy, and security for themselves, their family, and their parent-child
relationships.
50.
and actions to enforce Wyoming's exclusion of same-sex couples from marriage, including those
actions taken pursuant to his responsibility for the policies and actions of the executive branch
relating to, for example and without limitation, health insurance coverage, vital records, tax
obligations, and state employee benefits programs, violate the Unmarried Plaintiffs' fundamental
right to marry and fundamental interests in liberty, dignity, privacy, autonomy, family integrity,
and intimate association. The actions of Defendant Fausset and Defendant Urquidez likewise
violate the Unmarried Plaintiffs' fundamental right to marry and fundamental interests in liberty,
dignity, privacy, autonomy, famil y integrity, and intimate association.
51.
compliance with Wyoming's exclusion of same-sex couples from marriage by, for example,
refusing to issue marriage licenses to same-sex couples. This violates the Unmarried Plaintiffs'
fundamental right to marry and fundamental interests in liberty, dignity, privacy, autonomy,
family integrity, and intimate association.
52.
exclusion of same-sex couples from marriage is not rationally related to any legitimate
governmental interest and thus cannot survive even rational basis review, much less the
heightened level of scrutiny that applies to deprivation of the fundamental right to marry and
interference with fundamental interests in liberty, dignity, privacy, autonomy, family integrity,
and intimate association.
53.
The Unmarried Plaintiffs have no adequate remedy at law to redress the wrongs
alleged herein, which are of a continuing nature and will cause them ineparable harm, and the
Unmarried Plaintiffs are entitled to declaratory and injunctive relief on this basis.
13
55.
Plaintiffs Cora and Nonie are lawfully married w1der laws of the state of Iowa.
56.
Plaintiffs Carl and Rob are lawfully married under the laws of Canada.
57.
rights, responsibilities, benefits, privileges, and protections attach to that status under state and
federal law regardless of where the married couple chooses to live within the United States.
Once a couple enters into a valid marriage, the couple has a libe1ty interest in their marital status
that is protected by Due Process.
58.
The Married Plaintiffs in this case have a protected liberty interest and property
interest in their lawful marital status and in the comprehensive protections and obligations that
marriage provides.
59.
While Wyoming law expressly states that " [a]ll marriage contracts which are
valid by the laws of the country in which contracted are valid in this state," Wyo. Stat. 20-1111 , in practice the legal marriages of the Married Plaintiffs have been treated as non-existent
and without any legal effect or status in Wyoming. This practice effectively strips the Married
Plaintiffs of a valuable and fundamental legal status that was conferred on them when they
entered into a valid marriage in another jurisdiction, and deems them legal strangers to each
other under Wyoming law.
60.
Plaintiffs also impermissibly burdens and interferes with their exercise of the fundamental right
to marry in violation of Due Process. Wyo. Canst. art. 1, 6.
61.
Plaintiffs, and Defendants ' actions effecting this refusal, impermissibly deprive the Married
Plaintiffs oftheir fundamental liberty and property interests in their marriages, and the
comprehensive protections afforded by marriage, in violation of Due Process.
62.
refusal to recognize legal same-sex marriages entered into in other jurisdictions is not rationally
related to any legitimate governmental interest and thus cannot survive even rational basis
review, much less the heightened level of scrutiny that applies to deprivation of the fundamental
right to marry and interference with fundamental interests in liberty, dignity, privacy, autonomy,
family integrity, and intimate association.
14
63.
The Married Plaintiffs have no adequate remedy at law to redress the wrongs
alleged herein, which are of a continuing nature and will cause them irreparable harm, and the
Married Plaintiffs are entitled to declaratory and injunctive relief on this basis.
Third Claim for Relief:
Wyoming's Ban on Marriage by Same-Sex Couples Deprives Plaintiffs of Their Rights to
Equal Protection of the Laws under the Wyoming Constitution
64.
Wyoming Statute 20-1 - 101 and all other sources of state law or practice that
preclude marriage by same-sex couples violate the equal protection guarantees of the Wyoming
Constitution both facially and as applied to the Plaintiffs. Wyo. Canst. art. 1, 2, 3.
66.
actions effecting this exclusion deny same-sex couples equal dignity and respect, and deprive
their families of a critical safety net of rights and responsibilities.
67.
Same-sex couples such as the Plaintiff couples are similar to opposite-sex couples
in all of the characteristics relevant to marriage. Committed same-sex couples make the same
commitment to one another as other couples. They build their lives together, plan their futures
together, and hope to grow old together, caring for one another physically, emotionally, and
financially. The Unmarried Plaintiffs seek to marry for the same types of reasons, and to provide
the same legal shelter to their families, as opposite-sex spouses.
69.
Same-sex couples such as the Plaintiff couples and their children are equally
worthy of the tangible rights and responsibilities-as well as the respect, dignity, and
legitimacy- that access to marriage confers on opposite-sex couples and their children. For the
many children being raised by same-sex couples, the tangible resources and societal esteem that
marriage confers on families is no less precious than for children of opposite-sex couples.
15
70.
the Plaintiffs with respect to the exercise of the fundamental right to marry the person of one's
choice, and with respect to their liberty interests in personal autonomy, and family integrity,
association, and dignity. Such discrimination is subject to heightened scrutiny. Wyoming's
disparate treatment of same-sex couples cannot survive such scrutiny, and indeed cannot survive
even rational basis review.
71.
discriminate against Wyoming couples as a class by excluding them from marriage or any other
form of relationship recognition on the basis of sexual orientation and sex.
72.
The Unmarried Plaintiffs have no adequate remedy at law to redress the wrongs
alleged herein, which are of a continuing nature and will cause them irreparable harm, and the
Unmarried Plaintiffs are entitled to declaratory and injunctive relief on this basis.
A.
73.
Wyoming couples as a class by excluding them from marriage or any other form of relationship
recognition on the basis of sexual orientation.
74.
Lesbians and gay men have suffered a long and painful history of discrimination
in Wyoming and across the United States. Laws that discriminate based on sexual orientation
should be subjected to heightened equal protection scrutiny for numerous reasons.
75.
Lesbian, gay, and bisexual persons are a discrete and insular minority, and strong
ongoing prejudice against them continues to seriously curtail the political processes that might
ordinarily be relied upon to protect them. In Wyoming, lesbian, gay, and bisexual persons lack
any express statutory protection against discrimination in employment, public accommodations,
and housing.
76.
contribute to society. Sexual orientation is a core, defining trait that is so fundamental to one's
identity and autonomy that a person may not legitimately be required to abandon or change it
(even if that were possible) as a condition of equal treatment under the law.
77.
discrimination based upon sexual orientation and is unlawful under the Wyoming Constitution
because it denies same-sex couples equal protection under the laws of Wyoming.
16
78.
cannot survive heightened equal protection scrutiny because the State of Wyoming crumot offer a
persuasive showing that the exclusion or practice is essential to achieving a compelling state
interest.
79.
Moreover, because the exclusion of same-sex couples from marriage does not
rationally advance any legitimate government interest at all, the exclusion violates the equal
protection guarantees of the Wyoming Constitution even under rational basis review.
B.
80.
the Plaintiff couples on the basis of sex, barring the Plaintiff couples from marriage solely
because each of the individual Plaintiffs wishes to marry a life partner of the san1e sex. The sexbased restriction is plain on the face of the Wyoming's law, which restricts marriage to "a male
and a female person." Wyo. Stat. 20-1-101.
81.
devoted life partner Bonnie because Bonnie is a woman; were Bonnie a man, she could marry
Anne. Likewise, Ivan is precluded from marrying his devoted life partner Chuck because Chuck
is a man; were Chuck a woman, he could marry I van.
82.
impermissible purpose of enforcing and perpetuating sex stereotypes by excluding the Plaintiff
couples from the benefits of marriage because the individual Plaintiffs do not conform to sexbased stereotypes that women should be attracted to, form intimate relationships with, and marry
men rather than other women, and that men should be attracted to, form intimate relationships
with, and marry women rather thru1 other men. The exclusion of same-sex couples from
marriage also perpetuates and enforces conformity to stereotypes concerning the roles that men
and women, respectively, should play within marriage and family life.
83.
Given that there are no longer significant legal distinctions between the duties of
husbands and wives under Wyoming law, there is no basis for the sex-based eligibility
requirements for marriage.
84.
The exclusion of the Plaintiff couples from marriage based on the individual
Plaintiffs' sex and the enforcement of gender-based stereotypes cannot survive the heightened
17
scrutiny required for sex-based discrimination, nor is it rationally related to any legitimate
governmental purpose.
Fourth Claim for Relief:
Wyoming's Failure to Recognize the Marriages of the Plaintiffs Who Are Lawfully
Married in Other Jurisdictions Violates Their Rights to
Equal Protection of the Laws under the Wyoming Constitution
85.
into in other jurisdictions is unlawful discrimination and violates the equal protection guarantees
of the Wyoming Constitution. Wyo. Const. ati. 1, 2, 3.
87.
While the states have traditionally had the authority to regulate marriage, that
authority "must respect the constitutional rights of persons," and is "subject to constitutional
guarantees." Windsor, 133 S. Ct. at 2691.
88.
Like many other couples, same-sex couples are often parents raising children.
If Cora and Nonie had devoted life partners who were men, there is no question
that their marriages would be recognized in Wyoming. Likewise, if Carl and Rob had devoted
life partners who were women, there is no question that their marriages would be recognized in
Wyoming. Wyoming's refusal to recognize the lawful marriages of the Married Plaintiffs
discriminates based on sex and sexual orientation.
91.
also discriminates against the class of legally married persons and discriminates against the
Married Plaintiffs with respect to the exercise of the fundamental right to marry the person of
one' s choice and fundamental liberty interests in personal autonomy, dignity, privacy, family
integrity, and intimate association.
18
92.
exclude their marriages from recognition cannot survive heightened scrutiny under the equal
protection provisions of the Wyoming Constitution because the State of Wyoming cannot offer a
persuasive showing that the exclusion or practice is essential to achieving a compelling state
interest.
93.
does not serve any legitimate government interest at all, the practice violates the equal protection
guarantees of the Wyoming Constitution even under rational basis review. A purpose to harm a
minority class of persons cannot justify disparate treatment of that group because it is not a
legitimate governmental interest. Romer v. Evans, 517 U.S. 620, 635 (1996) ; Windsor, 133 S.
Ct. at 2693.
94.
The Married Plaintiffs have no adequate remedy at law to redress the wrongs
alleged herein, which are of a continuing nature and will cause them irreparable harm, and the
Married Plaintiffs are entitled to declaratory and injunctive relief on this basis.
Generally Wyoming does not question the legitimacy of marriages from other
states that are valid under the other state's laws. Indeed, Wyoming Statute specifically provides
that marriages lawfully entered into in another state or country will be fully recognized in
Wyoming. Wyo. Stat. 20-1-111.
97.
lawfully entered into in Iowa (Cora and Nonie) and Canada (Carl and Rob) and would be treated
in these jurisdictions in a manner identical to opposite-sex marriages- violates Wyo. Stat. 201-111.
98.
The Married Plaintiffs have no adequate remedy at law to redress the wrongs
alleged herein, which are of a continuing nature and will cause them irreparable harm, and Cora
and Nonie are entitled to declaratory and injunctive relief on this basis.
19
RELIEF REQUESTED
WHEREFORE, Plaintiffs respectfully request that this Court enter judgment:
99.
laws excluding same-sex couples from marriage, including Wyoming Statute 20-1 -101 , and
any other sources of state law that exclude same-sex couples from marrying violate the
Unmarried Plaintiffs' rights under the Due Process and Equal Protection Clauses of the
Wyoming Constitution;
100.
recognize the valid out-of-state marriages of the Married Plaintiffs and other legally married
same-sex couples violates Plaintiffs' rights under the Due Process and Equal Protection Clauses
of the Wyoming Constitution;
101.
Declaring that the Married Plaintiffs' marriages are valid in the State of
101, and any other sources of state law, policy, or practice that exclude the Unmarried Plaintiffs
from marriage or that refuse recognition of the marriages of the Married Plaintiffs;
103.
Plaintiffs, pursuant to the same restrictions and limitations applicable to opposite-sex couples,
and to recognize the marriages validly entered into by the Married Plaintiffs;
104.
Awarding Plaintiffs their costs, expenses, and reasonable attorneys' fees pursuant
Granting such other and further relief as the Court deems just and proper.
Te~~.
BarNo.
ZUBROD LAW OFFICE, PC
1907 House Avenue
Cheyenne, WY 82001
Telephone: (307) 778-2557
Facsimile: (307) 778-8225
Email: [email protected]
20
6-2796
L. James Lyman*
Katherine Ross
Thomas W. Stoever, Jr.
ARNOLD & PORTER LLP
370 Seventeenth Street, Suite 4400
Denver, Colorado 80202-13 70
Telephone: (303) 863 -1000
Facsimile: (303) 832-0428
Email: [email protected]
21
Case No .
14 - CV- 200 - S
Casper , Wyoming
October 16 , 2014
10:07 a . m.
Plaintiff s ,
vs.
CERTIFIED COPY
MATTHEW H. MEAD , in his official
capacity as t h e Governor of
Wyoming; DEAN FAUSSET, in hi s
official capacity as Director of
the Wyoming Department of
Administration and Info rmat i on;
DAVE URQUIDEZ, in his offic i al
capacity as Administrator of the
State of Wyoming Human Resources
Division; and DEBRA K. LATHROP,
in h e r official capacity as
Laramie County Clerk,
Defendants .
APPEARANCES :
For the Plaintiffs :
~Ann e
MS . TRACY L . ZUBROD
Zubrod Law Office , PC
219 East 18th Street
Cheyenn e , Wyomi ng 82001
EXHIBIT C
APPEARANCES (Cont .)
MR . L. JAMES LYMAN
MR. THOMAS W. STOEVER , JR.
Arnold & Porter , LLP
370 Seventeenth Street , Suite 4400
Denver , Colorado 80202 - 1370
MR . ARASH JAHANIAN
MR . QUSAIR MOHAMEDBHAI
Rathod Mohamedbhai LLC
1518 Blake Street
Denver , Colorado 80202
MR . CHRISTOPHER F . STOLL
MS. JENNY HALL
National Center For Lesbian Rights
870 Market Street , Suite 370
San Francisco , California 94102
For State Defendants :
Court Reporter :
N D E X
OPENI NG STATEMENTS
Mr .
Mr .
Mr .
Mr .
PAGE
Stoever
Creceli u s
Haggerty
Jahan ian
5
13
18
21
PAGE
PLAINTIFFS '
EXHIBITS
DESCRIPTION
29
IDENTI FIED
RECEIVED
Affidavit
28
Affidavit
28
Affidavit
28
Aff i davit
28
Affidavit
28
27
235-3376
Hearing Proceedings
THE COURT:
Thank you.
Please be seated.
Court is
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MR . STOEVER:
MR. LYMAN :
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plaintiffs .
MR . MOHAMEDBHAI:
plaintiffs .
MR . JAHANIAN :
plaintiffs .
MR . STOLL :
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Thomas
MS . ZUBROD :
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of the plaintiffs .
MS . HALL :
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I note the
plaintiffs.
THE COURT:
Good morning.
State defendants.
Anne Bowline , RMR , CRR -------------------------------- ( 3 07) 23 5-3376
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MR . SCHELHAAS :
MR . HARDSOCG :
defendants .
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defendants.
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MR. ROBINSON:
St ate defendants.
MR . HAGGERTY:
And if it ' s
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we l l .
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THE COURT:
All right .
Thank you.
The matter is
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Let me b e gin
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evidence .
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Mr . Stoever .
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MR. STOEVER:
THE COURT :
MR . STOEVER :
Good morning .
My name is Tom Stoever , and I ' m here on
We
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of the state of Wyoming and have not had their val id marriages
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a preliminary injunction .
As we
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of Utah on October 6 .
The Court is
Circuit .
First , t hat
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Amendment .
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with the knowl edge that there are other cases coming up
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THE COURT:
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MR. STOEVER :
Tenth Circuit .
Tenth Circuit.
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As I said a
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the United States Supreme Court in the Elrond case and from
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the Tenth Circuit in the Awad case which says clearly that
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to do .
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papers .
it ' s i mportant to note for the record that our clients do not
But I do think
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they d i e i ntestate .
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partner or spouse.
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spouse.
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Our clients go to
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disab i l i ty .
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They worry
They are , in
235-3376
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as a matter of law .
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dignitary harms that our clients face every day as they walk
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a woman .
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They are
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inquiry .
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clients and balances that against any injury that the state or
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Honor .
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to present any evidence here today that would suggest that the
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business.
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State cannot show and certainly has not shown that they would
make her job easier because she would no longer -- I 'm sorry.
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THE COURT :
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I don ' t think so because what the clerk is looking for is some
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matter of law and by the facts set out in the affidavi t very
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The Wyoming Supreme Court has made it clear that the Wyoming
they wa n t
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We simply
equality .
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couples .
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THE COURT :
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MR. STOEVER :
Very well .
Thank you , Your Honor .
THE COURT:
MR. CRECELIUS:
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May it please
the Court.
THE COURT :
Counsel .
MR. CRECELIUS:
Counsel .
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that the State raised in their briefs , at least for the State
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them was that they ' re not confident that the State will
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a married set
In regard
THE COURT:
MR . CRECELIUS:
A test case .
Correct , correc t .
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Urquidez .
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against them from the St a t e ' s perspective because they ' re just
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State is that while those p arties should not have been named
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def e ndants, they wou l d have -- the State of Wyoming would have
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test.
c hallenges t ha t were set forth when the Kitchen and the Bishop
And
It was a
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two - to - one dec i sion; and , fra n kly , we fee l that t h e two - to- one
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dec i sion exceeded its auth ority in ca l ling same - sex marriage a
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fu ndamenta l right.
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fundame nta l right , and in the Baker case, that case actually
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THE COURT :
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MR. CRECELIUS:
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THE COURT :
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So wh ile
I ' m sorry?
Yes .
Tha t ' s co r r e ct .
2 35- 3376
This
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road .
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extraordinary re q uest .
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The request
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in their
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Again,
li ke I ju s t said ,
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type of injunction is when they ' re asking for all the relief
granted immediately.
injunction.
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Court can look at the State 's pos i tion and see that t h e
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answer the petition , it ' s --why don ' t we just ask for the
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oppor t unity to have the same option set forth that Utah had in
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case on the merits and have the opportunity to de f end the case
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issues.
of these actions.
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we would ask the Court to give us some time , don ' t be hasty in
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THE COURT :
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Mr . Haggerty.
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MR. HAGGERTY:
I ' m Bernard
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defendant clerk .
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We don ' t
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l icen s e s , say ,
wou ldn ' t solve the problem for t he other cou n t y clerks or
Of course , that
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i ssuing t h e licenses.
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THE COURT :
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MR. HAGGERTY:
Yes , Judge.
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Court ' s
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excuse me - - no t page 8 .
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oath o f office .
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loss of the abil i ty to hold public office for the rest of her
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life .
235-3376
respect.
She ' s a
deliver the cle rk from the controve rsy that faces her.
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who are before this Court , but the clerk considers herself the
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that ' s revealed in one of the cler k' s aff i davits or not .
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think it probably is .
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I don ' t
know if
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quest i on .
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THE COURT :
All right .
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THE COURT:
MR. STOEVER :
You may.
Thank you.
ask Mr. Jahania n to address the stand ing issues that were
raised by counse l
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THE COURT:
All right .
MR . JAHANIAN:
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THE COURT:
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MR. JAHANIAN:
Good morning.
As has been acknowledged with respect
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no control over it, if the Court accepts that posit i on, then
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of the clerk is that the Court should issue the injuncti on and
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Plaintiff Johnston
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insurance and was told because the State does not recognize
and ,
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THE COURT :
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MR . JAHANIAN:
So one thing
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Wyoming .
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THE COURT :
235 - 3376
MR. JAHANIAN:
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for standing.
non-recognition.
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And
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THE COURT :
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MR . STOEVER :
All right.
Your Honor,
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Hearing Proceedings
irreparable harm.
would be changed.
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changes necessary.
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they would be treated with the same dignity and respect as any
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THE COURT:
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MR. STOEVER :
235-3376
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say.
THE COURT :
MR. STOEVER :
tell you that in other states where this very same issue has
And I can
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any poss ibility that a pension might not have been calcul ated
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appropria t ely.
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retu rn .
THE COURT:
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There would b e no
The
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filing of tax returns given that we don ' t have a state income
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t ax?
Anne Bowline , RMR , CRR-------------------------------( 307 ) 235 - 3376
Hearing Proceedings
MR . STOEVER :
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federal law .
THE COURT :
MR . STOEVER :
Okay .
So I would say that with respect to the
They
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action back in June , and the State asked for a stay in those
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disingenuous for the State to come before you today and say
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So it ' s a little
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THE COURT:
MR. STOEVER:
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into evidence.
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THE COURT:
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THE COURT:
And wi l l
admitted.
All right .
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THE COURT:
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that be identified as
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Plaintiffs' Exhib it 1?
MR. STOEVER :
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It is a marriage certificate
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Very wel l .
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would have those moved into the record as evidence that the
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THE COURT :
All right .
But ,
We would
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MR . CRECELIUS :
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THE COURT :
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Our
All right.
All right .
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admitted . )
Anne Bowline , RMR , CRR ------------------------------- (307) 235 - 3376
MR . STOEVER:
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With that I
THE COURT:
MS. ZUBROD:
All r i ght.
Ms . Zub r od.
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Ms . Lathrop will
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THE WI TNESS:
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Occupation,
Thank you .
DIRECT EXAMINAT I ON
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BY MS . ZUBROD :
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Q.
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A.
Ye s ,
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Q.
All r i ght .
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many years have you held the position as the Laramie County
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Clerk?
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A.
Jus t shy of 20 ye a rs .
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Q.
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t e rm?
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A.
Yes ,
I can .
You stated your name a n d your occupation.
How
I do .
Q.
A.
Yes , I do.
Q.
A.
the State of Wyoming , that I have not know i ngly violated any
d o ne by others.
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or caused it to be
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I have "
THE COURT :
of you?
Yes, sir.
over?
THE COURT :
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No .
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sentence back .
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A.
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Q.
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A.
Yes .
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Q.
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A.
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Q.
Thank you .
Isn ' t
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A.
No.
Q.
And can you explain to the Cour t why you did not .
A.
Q.
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A.
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Q.
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been other same - sex coup les that have requested a marriage
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license?
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A.
Yes .
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Q.
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A.
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Q.
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marriage licenses?
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A.
No .
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Q.
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A.
Ye s .
Hearing Proceedings
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MS . ZUBROD :
THE COURT :
MR. CRECELIUS :
Counsel .
Your Honor .
THE COURT :
MR . HAGGERTY :
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All right.
Mr . Haggerty.
Honor.
THE COURT :
All right .
You
may be excused.
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THE WITNE SS :
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THE COURT :
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MR . STOEVER :
Thank you .
Mr . Stoever.
Your Honor , I want to make one
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correc tion .
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And I want ed to make sure that that was correct in the record ,
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THE COURT :
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MR . STOEVER :
I was corrected .
In
All right .
I also wanted to clarify , Your Honor ,
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with respect to the affidavits that are being proffe red , those
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injunction .
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THE COURT :
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MR. STOEVER :
All right .
Your Honor , at this time we have no
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and in evidence.
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THE COURT :
All right.
MR . CRECELIUS:
THE COURT :
All right.
at this time.
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MR . STOEVER :
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legal issue.
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be changed .
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policy would requi r e you to wait ; but , again , they ' ve not
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recognize that these people who are either married or who wish
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state have .
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you that they really just want to take this issue up to the
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Tenth Circuit and that they are hopeful that they might be
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THE COURT :
MR . STOEVER:
Circuit , no.
THE COURT:
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review?
MR. STOEVER:
No , Your Honor .
instances .
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as a union between one man and one woman , to allow our clients
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State of Wyoming.
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along .
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But we think that the time has come , the law is clear ,
THE COURT :
In terms of Tenth
Hearing Proceedings
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shouldn' t say
not binding .
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MR. STOEVER :
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on that question .
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quest i on .
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reviewed all of the law and the policy around that decision
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The -- pardon me .
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what the Tenth Circuit has done , but the Supreme Court is
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certainly aware of the fact that there are these other cases
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The
235 - 3376
for wr i t of ce rt iorari .
does not
THE COURT:
lS
state law.
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government?
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MR. STOEVER:
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Cla u se and the Due Process Clause of the 14th Amendment to the
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sys t em?
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addressed in Kitchen .
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marriage .
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muster .
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t he Loving decision .
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Hearing Proceedings
like the Tenth Circuit , like the United States Supreme Court,
THE COURT:
MR. STOEVER:
10
MR . STOEVER:
11
thought t o that .
12
head, but it ' s not , and I don ' t want to misstate it.
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THE COURT :
Fair enough .
Anything else?
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MR . STOEVER :
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THE COURT :
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MR . CRECELIUS:
No , Your Honor.
Thank you , Counse l.
I t h ink the
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a nd early in this litiga tion that was just filed ten days ago
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1800s .
.'
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of Wyoming .
Wyoming.
This is
this
controlling authorities .
United States Supreme Court said that same- sex marriage is not
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Because
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denied , allow the State to defend its statute , and move on the
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merits of the case , and then see what happens from here , Your
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Ho nor .
Anne Bowline , RMR, CRR-------------------------------(307)
235-3376
' .
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Hearing Proceedings
THE COURT:
What distinction is
MR. CRECELIUS :
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MR . CRECELIUS:
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There may be a
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the opportunity to defend our statute the same way Utah had
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same as Oklahoma .
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THE COURT :
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matters?
Did the
MR. CRECELIUS :
showing such.
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Wyoming.
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Health.
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THE COURT :
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MR . CRECELIUS:
18
indi cated .
19
benef i ts however they see fit , and that was not a decision
20
made by any of the defendant s ' agenc i es tha t they ove rsee .
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THE COURT:
can issue
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MR . CRECELIUS :
25
THE COURT :
I ' m sorry.
235 -33 76
42
He aring Proceedings
Wyoming.
THE COURT :
Correct .
case that , yes , same - sex co up les who have been married in
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All right.
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MR . CRECELIUS :
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THE COURT :
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THE COURT :
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MR . CRECE LIUS :
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Than k you.
Anything further?
Thank
you .
MR. STOEVER :
Go ah ead .
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The clerk
supports the p l a inti f fs ' mot i o n, does not oppose the entry of
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Wyomi ng .
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with this .
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t h e denia l of t he licenses.
Any
Thank you .
21
THE COURT :
All right .
Th ank you .
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MR. STOEVER :
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about th is .
Hearing Proceedi n gs
7.
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footnote that the State of Utah didn ' t ade q uately rais e
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in any event .
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MR . STOEVER :
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binding .
The only -- the only court that can tell you whether
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THE COURT :
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MR . STOEVER :
25
THE COURT :
Thank you .
Thank you , Your Honor .
All right .
45
this matter?
MR. STOEVER :
THE COURT:
MR. CRECELIUS :
THE COURT :
No , Your Honor .
By defendants in th is matter?
No , Your Honor.
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They
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are l egal i ss ues , though , and the impact of this Court ' s
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under submission.
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October 16 , 2014 . )
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C E R T I F I C A T E
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transcript .
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and that
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ANNE BOWLINE
Registered Merit Reporter
Certified Realtime Reporter
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235 - 337 6