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Case No. 12-17668 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT BEVERLY SEVCIK, et al. Plaintiffs-Appellants, v. BRIAN SANDOVAL, et al., Defendants-Appellees, and COALITION FOR THE PROTECTION OF MARRIAGE, Intervenor-Defendant-Appellee. On Appeal from the United States District Court for the District of Nevada Case No. 2:12-CV-00578-RCJ-PAL The Honorable Robert C. Jones, District Judge. PLAINTIFF-APPELLANTS MOTION TO HAVE CASES HEARD TOGETHER Jon W. Davidson Tara L. Borelli Peter C. Renn Shelbi Day LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 3325 Wilshire Blvd., Ste. 1300 Los Angeles, CA 90010 Tel.: (213) 382-7600 Carla Christofferson Dawn Sestito Melanie Cristol Rahi Azizi OMELVENY & MYERS LLP 400 S. Hope St. Los Angeles, CA 90071 Tel.: (213) 430-6000 Kelly H. Dove Marek P. Bute SNELL & WILMER LLP 3883 Howard Hughes Parkway, Ste. 1100 Las Vegas, NV 89169 Tel.: (702) 784-5200

Attorneys for Plaintiffs-Appellants

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INTRODUCTION Plaintiffs-Appellants are eight committed and devoted same-sex couples who are challenging the constitutionality of Nevada state and local officials refusal to allow them to marry, or to recognize the valid marriages some of them have entered in other jurisdictions. This case involves a number of issues closely related to those raised in another appeal pending before this Court that concerns the constitutionality of Hawaiis similar exclusion of same-sex couples from marriage: Natasha N. Jackson, et al., v. Neil Abercrombie, et al., Case Nos. 1216995 and 12-16998.1 For the reasons more fully described below, PlaintiffsAppellants respectfully request that this appeal be placed on a parallel briefing schedule with and be heard with the appeal in Jackson v. Abercrombie in order to promote judicial and party economy, and that the Court deem amicus briefs filed in one of these two cases as filed in the other case as well, in order to eliminate the likelihood of significant redundancy in amicus filings between the cases. BACKGROUND Plaintiffs-Appellants Beverly Sevcik and Mary Baranovich; Antioco Carrillo and Theodore Small; Karen Goody and Karen Vibe; Fletcher Whitwell and Greg Flamer; Mikyla Miller and Katrina Miller; Adele Terranova and Tara Newberry;

After two separate notices of appeal were filed by the non-prevailing parties in Jackson v. Abercrombie, and docketed as Case Nos. 12-16995 and 12-16998, the Court issued an order consolidating them.

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Caren Cafferata-Jenkins and Farrell Cafferata-Jenkins; Megan Lanz and Sara Geiger are eight loving, committed same-sex couples challenging their exclusion from marriage in Nevada as a violation of the Equal Protection Clause of the Fourteenth Amendment to the federal constitution. Nevada, both by statute and amendment to its state constitution, bars same-sex couples from marrying, or from having their valid marriages from other jurisdictions recognized. Nev. Const. art. 1, 21. Instead, Nevada relegates same-sex couples to the inferior and novel status of registered domestic partnership, which provides virtually all the same state law rights and responsibilities of spouses but withholds the honored designation of marriage. Nev. Rev. Stat. 122.020(1). As this Court has held, civil marriage plays a unique role in society as the universally recognized and celebrated hallmark of a couples commitment to build family life together. Perry v. Brown, 671 F.3d 1052, 1078-79 (9th Cir. 2012) (holding that Proposition 8, Californias law barring same-sex couples from marriage, violates equal protection), cert. granted (U.S. Dec. 7, 2012) (No. 12144). Plaintiffs-Appellants in the instant case sought a declaration that their exclusion from marriage based on their sexual orientation and sex denies them equal protection. Plaintiffs-Appellants also sought to permanently enjoin Defendants-Appellees Governor Brian Sandoval and three county clerks, all sued in their official capacity, from denying same-sex couples (i) access to marriage, or

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(ii) for those couples who validly have married in another jurisdiction, recognition of their marriages. The Coalition for the Protection of Marriage, a Nevada advocacy group that campaigned for the passage of Nevadas state constitutional amendment barring marriage for same-sex couples, was permitted to intervene as a Defendant-Intervenor. In an order dated November 26, 2012, the District Court granted in part a motion to dismiss, granted summary judgment for Defendants, and denied Plaintiffs motion for summary judgment. In granting the motion to dismiss, the District Court held that part of Plaintiffs equal protection claims were foreclosed by Baker v. Nelson, 409 U.S. 810 (1972) (mem.), a summary dismissal of claims by a same-sex couple seeking to marry in Minnesota forty years ago. In granting summary judgment, the District Court held that Nevadas exclusion of Plaintiffs from marriage was subject only to rational basis review under the Equal Protection Clause and that the exclusion serves a legitimate government interest, because it is conceivable that a meaningful percentage of heterosexual persons would choose not to marry if same-sex couples were permitted to do so. Order at 102. The Court expressly relied on Jackson in reaching its conclusions: The Court finds Judge Kays conclusions [in Jackson] concerning the rational bases for Hawaiis marriage-civil union regime equally persuasive as applied to Nevadas marriage-

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domestic partnership regime. Order at 32. Plaintiffs-Appellants noticed this appeal on December 3, 2012.2 The Jackson appeal, which was noticed less than three months prior to this one, presents many closely related issues. Like Nevada, Hawaii bars same-sex couples from marriage and instead relegates them to a novel and inferior status civil unionswhich provides the state law rights and responsibilities of spouses but withholds the designation of marriage. Haw. Rev. Stat. 572-1, 572B-9. Jackson also granted a motion to dismiss on the grounds that Baker purportedly foreclosed the claims of the Plaintiffs in that case that Hawaiis exclusion of same-sex couples from marriage violates the U.S. Constitution. Jackson v. Abercrombie, Civ. No. 11-00734 ACK-KSC, 2012 U.S. Dist. LEXIS 111376, at *4 (D. Haw. Aug. 8, 2012). As in Sevcik, Jackson granted summary judgment to the Defendants in that case on the grounds that only rational basis review applies and that the law survives such review. Id. at *7-10. Two appeals were noticed in Jackson on September 7, 2012 (one by Plaintiffs-Appellants and another by Governor Neil Abercrombie, who was named

On December 5, 2012 Defendant-Intervenor-Appellee Coalition for the Protection of Marriage (Coalition) filed a petition for a writ of certiorari before judgment with the U.S. Supreme Court. Dkt. 3. Plaintiffs-Appellants intend to oppose the petition, and do not anticipate that the briefing on that petition would affect the relief requested here. See id. (correspondence from the Coalition informing the Court about its petition, and making no request to alter the schedule previously set in this appeal because of uncertainty about when and how the Supreme Court will act on its petition).

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as a defendant in that case but argued that Hawaii law is unconstitutional), and this Court consolidated both of the appeals in Jackson on October 29, 2012. The Defendant-Intervenor-Appellee in Jackson filed a motion to stay the cases pending the Supreme Courts disposition of pending certiorari petitions in Perry v. Brown, among other cases. This Court has stayed the Jackson appeal until December 17, 2012, directing that the parties may seek a further stay on or before that date. No merits briefing has occurred in Jackson and no oral argument has been scheduled. If no further stay is granted, the opening brief in Jackson is due January 16, 2013 and the answering brief is due February 15, 2013. ARGUMENT I. HEARING THIS CASE WITH JACKSON WILL PROMOTE JUDICIAL ECONOMY AND PRECEDENTIAL UNIFORMITY. Because Jackson and this case raise many related issues, hearing them together would promote efficiency for both the Court and the parties, and reduce the risk of inconsistent rulings. There are multiple overlapping issues between Jackson and this case. In both, this Court will be called upon to decide the threshold question of whether the 1972 summary dismissal in Baker forecloses the constitutional challenges to the marriage laws challenged in the two cases. Both appeals also raise the common question of whether it violates equal protection for the government to bar same-sex couples from marriage while simultaneously providing them with access to the

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rights and responsibilities of spouses through a second-class status, such as registered domestic partnerships (in Nevada) or civil unions (in Hawaii). The Plaintiffs-Appellants in both cases contend that sexual orientation-based classifications, such as the marriage restrictions in their respective states, warrant heightened scrutiny under the Equal Protection Clause, because, among other things, lesbians and gay men have faced a history of discrimination and sexual orientation is unrelated to ones ability to contribute to society. In both cases, Plaintiffs-Appellants argue that the restriction of same-sex couples from marriage also warrants heightened review as impermissible discrimination based on sex. Defendant-Appellees in both cases argue that only rational basis review applies to the respective states marriage exclusions. And in both appeals, the Court will be called upon to interpret the degree to which Perry v. Brown governs the equal protection claims of Plaintiffs-Appellants, including after disposition of that case by the Supreme Court. Although this case and Jackson are not identical, they share a common core of closely related legal and factual issues. Having two separate panels of this Court hear these cases, or having these cases heard at different times, would be significantly less efficient than a full airing of the issues at the same time before the same panel, when any briefing and argument relevant to both cases may be considered simultaneously. Furthermore, given the common issues between these

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cases, Plaintiffs-Appellees in both appeals anticipate significant overlap between the amicus briefs that likely will be filed in their support and in support of the Defendants-Appellees in the two cases. To avoid the redundancy and inconvenience of having largely similar amicus briefs filed in each case, PlaintiffsAppellees request that the Court order that any amicus brief filed under a case number assigned to Jackson (12-16995 or 12-16998) be deemed to have been filed under Sevciks case number (12-17668), and vice versa. Specifically, to address the efficiency concerns described above, PlaintiffsAppellees request that: 1. 2. Sevcik be assigned to the same panel as Jackson; Sevciks briefing schedule be conformed to Jacksons schedule,

including any additional stay orders entered in Jackson; 3. 4. Sevcik be set for hearing on the same day as Jackson; and The Court order that any amicus brief filed under a case number

assigned to Jackson (12-16995 or 12-16998) be deemed to have been filed under Sevciks case number (12-17668), and any amicus brief filed in Sevcik be deemed to have been filed in Jackson. Granting the requests would not only promote efficiency, but also maximize uniformity between rulings and reduce the risk of inconsistent results. See Goelz & Watts, Rutter Group Practice Guide: Federal Ninth Circuit Civil Appellate

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Practice 9:59 (The Rutter Group 2012) (Certain areas of jurisprudence tend to generate a number of cases presenting similar issues . . . The court tries to cluster these cases for argument and hearing, to promote uniformity in its precedent.). II. THE CASES MAY BE HEARD TOGETHER WITHOUT DELAY OR PREJUDICE TO ANY PARTY. The procedural posture of the cases also weighs in favor of hearing them together. Because the notices of appeal were filed less than three months apart, both this case and Jackson are at a similar stage, and there has been no merits briefing or argument in either case. Indeed, the Jackson appeal has been stayed as of October 29, 2012, and the Court provided that the parties in Jackson may move for further appropriate relief. To facilitate coordination of the cases, PlaintiffsAppellants in the instant case would agree to be bound by the current stay in Jackson, as well as any future stay that might be issued, so that the two cases could be considered simultaneously. If no further stay is issued, the Plaintiffs-Appellants in the instant case would agree to comply with the current briefing schedule in Jackson, setting January 16, 2013 as the deadline for their opening brief. OPPOSING COUNSELS POSITION Plaintiffs-Appellants have conferred with all other counsel in this case and in Jackson about this request. Nearly all parties either take no position on the relief requested, do not oppose it, or have indicated their consent.

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Among the parties in Sevcik, Defendant-Appellee Governor Sandoval, Defendant-Appellee Carson City Clerk-Recorder Alan Glover, DefendantAppellee Clark County Clerk Diana Alba, and Defendant-Appellee Washoe County Clerk Amy Harvey take no position on the relief requested. DefendantIntervenor Appellee Coalition for the Protection of Marriage opposes this motion because it believes this request is likely to increase delay in this case. In Jackson, the Plaintiffs-Appellants have consented to this motion. Defendant-Appellant Governor Abercrombie, who is aligned with the Plaintiffs in that case, does not oppose this request. Defendant-Appellee Director of Health Loretta J. Fuddy and Defendant-Intervenor-Appellee Hawaii Family Forum object based on their belief that this motion is unnecessary.3 Three Appellees in Sevcikincluding Governor Sandoval and Carson City Clerk-Recorder Glover, and Defendant-Intervenor Coalition for the Protection of Marriagehave indicated that they intend to file substantive briefs in this

Director Fuddy and the Hawaii Family Forum base their objection on part one of the Circuit Advisory Committee Note to Rules 34-1 to 34-3. This note, however, contemplates that when other pending cases raise the same legal issues, the court may advance or defer the hearing of an appeal so that related issues can be heard at the same time. Id. Providing the parties with greater certainty at the outset regarding the briefing schedule, and setting them for argument on the same day, would be more efficient than having the Court later vacat[e] submission after oral argument in either case. Id.

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proceeding.4 Under the current schedule in Jackson, Appellees briefs are due February 15, 2013. Counsel for Governor Sandoval and Carson City ClerkRecorder Glover have indicated that they take no position with respect to filing briefs by a February 15, 2013 deadline. Counsel for the Coalition for the Protection of Marriage have indicated that they favor the briefing schedule currently set in Jackson. CONCLUSION For the reasons stated above, Plaintiffs-Appellants respectfully request that this Court (1) assign this case to the same panel as Jackson v. Abercrombie (Nos. 12-16995, 12-16998), (2) conform the briefing schedule in this case with that in Jackson, including any additional stay orders entered in Jackson, (3) order this case set for hearing on the same day as Jackson, and (4) deem any amicus brief filed in either case as filed in both. /// /// ///

The remaining two Appellees, Clark County Clerk Alba and Washoe County Clerk Harvey, declined to file briefs in the District Court. Counsel for the former has indicated that she does not intend to file a brief here; counsel for the latter has indicated that she has not yet decided whether to file a brief before this Court.

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DATE: December 11, 2012

Respectfully submitted, Jon W. Davidson Tara L. Borelli Peter C. Renn Shelbi Day LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. Carla Christofferson Dawn Sestito Melanie Cristol Rahi Azizi OMELVENY & MYERS LLP Kelly H. Dove Marek P. Bute SNELL & WILMER LLP

By: s/ Tara L. Borelli Tara L. Borelli Attorneys for Plaintiffs-Appellants

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CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on December 11, 2012. Participants in the case who are registered CM/ECF users will be served by the appellate CM/ECF system. I have mailed the foregoing document by FirstClass Mail, postage prepaid, or have dispatched it to a third party commercial carrier for delivery within 3 calendar days to the following non-CM/ECF participants: Randal R. Munn CARSON CITY DISTRICT ATTORNEY'S OFFICE #2030 885 East Musser Street Carson City, NV 89701 s/ Tara L. Borelli

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