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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS AUSTIN DIVISION

Shannon ZAHRN, Catherine Zahrn, Alexius Augustine, and Andrew Simpson, on behalf of themselves and all others similarly situated, Plaintiffs, v. Rick PERRY, in his official capacity as Governor of Texas; Greg Abbott, in his official capacity as Attorney General of Texas; and Dana DeBeauvoir, in her official capacity as County Clerk of Travis County, Texas, Defendants.

Civil Action No. 1:13-CV-00955

Plaintiffs Motion for Class Certification

Plaintiffs Shannon Zahrn, Catherine Zahrn, Alexius Augustine, and Andrew Simpson seek a declaratory judgment that Texas laws (a) prohibiting same-sex marriage in Texas, and (b) refusing to give effect to same-sex marriages legally created in other states, are unconstitutional. Plaintiffs seek this judgment on behalf of themselves and all others similarly situated, under Rule 23 of the Federal Rules of Civil Procedure. The proposed class is comprised of all individuals who (a) reside in Texas and want to marry a person of the same sex in Texas, or (b) were legally married to a person of the same sex in another state and reside in Texas. Because Rule 23s requirements are satisfied, Plaintiffs respectfully ask the Court to certify the class.
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Material Facts
The facts giving rise to Plaintiffs individual claims are simple. Shannon Zahrn and Catherine Zahrn are two women who want to get married. Each is legally eligible to marry in Texas, but Texas law prohibits same-sex marriage. See Tex. Fam. Code 2.001, 6.204; Tex. Const. Art. I, 32. Shannon and Catherine tried to apply for a marriage license but were denied the right to marry based on their sexual orientation or, in other words, based on the same-sex nature of their relationship. Affidavit of Shannon Zahrn (Ex. A); Affidavit of Catherine Zahrn (Ex. B). Alex Augustine and Andy Simpson are two men who were legally married to each other in Maine. Affidavit of Alexius Augustine (Ex. C); Affidavit of Andrew Simpson (Ex. D). Typically Texas recognizes and gives effect to out-of-state marriages, but Texas law refuses to recognize or give effect to same-sex marriages. Tex. Fam. Code 6.204(c). And Defendant Governor Perry, on the official website for the Office of the Governor, has declared that Texas does not legally recognize a same-sex marriage . . . regardless of the jurisdiction in which it is created. Defense of Marriage Act, Office of the Governor, http://goo.gl/z4y82E. Thus, according to Texas law and to statements made by Texas officials, Alex and Andy have been summarily deprived of their legally-married status based on their sexual orientationor, in other words, based on the same-sex nature of their relationship. Plaintiffs seek declaratory and injunctive remedies for the denial and deprivation of their marriage rights, and seek to represent a class of individuals in Texas who suffer the same harm under Texas law.

Class Action Requirements


Rule 23 entitles plaintiffs to pursue claims as a class action if the Rules requirements are satisfied. In re TWL Corp., 712 F.3d 886, 894 (5th Cir. 2013). Thus, the
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Court must perform a rigorous analysis to determine whether Rule 23 is satisfied. Wal-Mart Stores v. Dukes, ___ U.S. ___, 131 S. Ct. 2541, 25512552 (2011). Rule 23(a) requires a proposed class to satisfy five criteria. The first, known as ascertainability, is an implied prerequisite. Union Asset Management Holding A.G. v. Dell, Inc., 669 F.3d 632, 639640 (5th Cir. 2012). The other four are explicitly stated in the Rule and are known as numerosity, commonality, typicality, and adequacy. Fed. R. Civ. P. 23(a)(1)(4). In addition to satisfying these criteria, a proposed class must fit into one of three categories outlined in Rule 23(b). Rule 23(b)(2), for example, permits a class action where defendants have acted or refused to act on grounds generally applicable to the class, making injunctive or declaratory relief appropriate for the entire class. Plaintiffs proposed class satisfies Rule 23(a) and 23(b)(2); therefore it should be certified. Notably, a similar class was recently certified in the Western District of Virginia. Harris v. Rainey, No. 5:13cv077, 2014 WL 352188 (W.D. Va. Jan. 31, 2014).

Rule 23(a): Ascertainability


Rule 23 implicitly requires that the proposed class be ascertainablemeaning the Court must be able to determine, by objective criteria, whether any given individual is a member of the proposed class. Union Asset, 669 F.3d at 639640. Here, Plaintiffs seek to represent a class comprised of two subclasses: (1) all individuals who reside in Texas, who wish to marry someone of the same sex in Texas; and (2) all individuals who reside in Texas, who have been legally married in another state to someone of the same sex.

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See Plaintiffs Complaint for Declaratory and Injunctive Relief at 100.1 Whether a person currently resides in Texas is an objective question. Whether a person wishes to marry someone of the same sex in Texas is an objective question (determinable either by an affirmative answer to the question or by an actual attempt to marry). And whether a person has been legally married in another state, to a person of the same sex, is an objective question. Thus, the proposed class is readily ascertainable, because its membership can be determined by objective criteria. See Harris, 2014 WL 352188, at *8*9 (finding a similar class in Virginia was ascertainable).

Rule 23(a)(1): Numerosity


A proposed class must be so numerous that joinder of all members is impracticable. Fed. R. Civ. P. 23(a)(1). There is no defined size that satisfies this requirement, but a class of more than 100 members who are geographically dispersed will generally suffice. Mullen v. Treasure Chest Casino LLC, 186 F.3d 620, 624 (5th Cir. 1999) (noting authority for the proposition that a class of more than forty members raises a presumption of numerosity); see also Zeidman v. J. Ray McDermott & Co., Inc., 651 F.2d 1030, 1038 (5th Cir. 1981) (citing authority for the proposition that a class of 2530 may satisfy numerosity). Here, it is obvious that many individuals in Texas are members of the proposed class. Plaintiffs have no burden to show what the precise number is; they need only provide a reasonable estimate. Zeidman, 651 F.2d at 1038. According to one source, the LGBT (lesbian, gay, bisexual, and transsexual) population in Texas is 3.3% of the total The court for the Western District of Virginia, in Harris, excluded from the class those individuals who had already filed a similar lawsuit in the Eastern District of Virginia. 2014 WL 352188. at *1. Plaintiffs ask this Court to likewise exclude from the proposed class those who have already filed similar cases in this District (McNosky v. Perry, No. A13-CV-0631, and DeLeon v. Perry, No. 5:13-CV-982).
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population. Gallup Special Report: New Estimates of the LGBT Population in the United States, The Williams Institute (Feb. 2013), http://goo.gl/y6VgYI. Given Texass population of roughly 26 million, this would mean the Texas LGBT population is roughly 858,000. Of course, not all LGBT individuals wish to marry someone of the same sex, or are already legally married to someone of the same sex. But according to federal census data, there are 92,802 individuals in Texas who are part of a same-sex coupleor, in other words, there are 46,401 same-sex couples in Texas. Texas Census Snapshot: 2010, The Williams Institute, http://goo.gl/tzv9OM (PDF). And of these same-sex couples in Texas, 8,397 have identified themselves as being in a spousal relationship. Id. From this, it is reasonable to estimate that there are at least 16,794 and as many as 92,802 members of the proposed class being harmed by Texas law. According to another source, there are over 7,761 same-sex couples (married or unmarried) in the metropolitan statistical areas of Texas (including Austin, San Antonio, Houston, and Dallas) who are raising children together. PolitiFact Texas (Feb. 9, 2011), http://goo.gl/40hYQN. It is reasonable to infer that couples raising children together are likely (a) to want to get married or (b) to already be married. Thus, from this it is reasonable to estimate that at least 7,761 couplesor 15,522 individualsare members of the proposed class being harmed by Texas law. At the very least, from this data it is reasonable to estimate that the proposed class has many, many more than 100 members. And these individuals are geographically dispersed, insofar as they reside throughout the state. See Texas Census Snapshot: 2010, http://goo.gl/tzv9OM (PDF). Joinder of these thousands of putative class members is therefore impracticable, and Rule 23s numerosity requirement is satisfied.

Rule 23(a): Commonality


Rule 23(a)(2) requires that there be questions of law or fact common to the class.
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Fed. R. Civ. P. 23(a)(2). To satisfy this requirement, even a single common question will do. Dukes, 131 S. Ct. at 2556 (internal quotation omitted). But the crux of the matter is really whether the classwide proceeding can generate common answers apt to drive the resolution of the litigation. Id. at 2551 (emphasis in original; internal quotation omitted). Here, the questions that determine class membership (see above) are also the only fact questions material to Plaintiffs claims. Thus, by definition, all of the fact questions material to Plaintiffs claims are common to the class. Moreover, Defendants do not dispute that Shannon Zahrn and Catherine Zahrn currently reside in Texas and want to marry each other in Texas, or that Andy Simpson and Alex Augustine currently reside in Texas and were legally married to each other in another state. See Joint Scheduling Proposal (Dkt. 22) at 2 (agreeing there are no fact issues). Presumably the State also would not dispute these facts as they pertain to other putative class members. Thus, the only fact questions that exist in this case are questions common to the classand the answers are likewise common to the class, because there is no factual dispute. Furthermore, Plaintiffs legal claims, asserted as five separate causes of action, see Complaint at 6789, are all claims that Texas state law violates Plaintiffs rights under the U.S. Constitution. Whether it is unconstitutionalunder any of the theories asserted in Plaintiffs Complaintfor the State to refuse to allow Plaintiffs to get married in Texas, or to refuse to recognize Plaintiffs out-of-state marriage, is a legal question common to the class. And the Courts answer to these constitutional questions will likewise be common to the class. Thus, Rule 23s commonality requirement is satisfied.

Rule 23(a): Typicality


The named plaintiffs in a putative class action must have claims that are typical of the class. Fed. R. Civ. P. 23(a)(3). In practice, the tests for commonality and typicality
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tend to merge. Dukes, 131 S. Ct. at 2551 n.5. But whereas commonality focuses on whether there are common questions and answers to justify class treatment, typicality focuses on whether the named plaintiffs are appropriate representatives of the proposed class. Thus, typicality focuses on the similarity between the named plaintiffs legal and remedial theories and the theories of those whom they purport to represent. Mullen, 186 F.3d at 625. Like commonality, the test for typicality is not demanding. Id. As long as the proposed class representatives are members of the proposed class, and their claims arise from the same events or course of conduct as the classs claims, and they have the same interests and the same injury as other class members, the typicality requirement is satisfied. General Tel. Co. v. Falcon, 457 U.S. 147, 156 (1982). Here, Shannon and Catherine are members of the proposed subclass of individuals who want to marry someone of the same sex in Texas. Their injurybeing denied the right to marryis the same as the subclasss injury. And their claims arise from the States enactment and enforcement of state laws against same-sex marriagethe same events and course of conduct underlying the subclasss claims. Thus, Shannon and Catherine are typical representatives of subclass (a). Similarly, Alex and Andy are members of the proposed subclass of individuals who were legally married in another state to someone of the same sex. Their injurybeing deprived of their legally-married statusis the same as the subclasss injury. And their claims arise from the States enactment and enforcement of state laws against same-sex marriagethe same events and course of conduct underlying the subclasss claims. Thus, Alex and Andy are typical representatives of subclass (b).

Rule 23(a): Adequacy


The proposed class representatives also must show that they will fairly and
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adequately protect the interests of the class. Fed. R. Civ. P. 23(a)(4). This inquiry serves (1) to uncover conflicts of interest between the proposed class representatives and the class they seek to represent, and (2) to determine the competence of the named plaintiffs counsel. Amchem Prods. v. Windsor, 521 U.S. 591, 625, 626 n.20 (1997); see also Fed. R. Civ. P. 23(g). Where named plaintiffs interests are identical to the interests of the proposed class, and their attorneys have experience litigating class actions and similar legal issues, the adequacy requirement is satisfied. Mullen, 186 F.3d at 625626. Here, Plaintiffs are members of the proposed class and their interests are identical to those of the class. Plaintiffs seek declaratory and injunctive relief that will apply to the class equallymeaning there are no conflicts of interest. Further, Plaintiffs counsel, Jason Steed and Jody Scheske, have extensive experience litigating class actions, as well as extensive experience litigating the constitutional issues relevant to this case. Mr. Scheske has over 20 years experience handling class actions and other complex litigation. Declaration of James J. Scheske (Ex. E). And Mr. Steed worked closely with Mr. Scheske in his class-action practice from 20092012. Affidavit of Jason Steed (Ex. F). Moreover, since 2010 Mr. Scheske and Mr. Steed have been counsel in two samesex divorce cases that have made their way to the Texas Supreme Court. See In the Matter of the Marriage of J.B. and H.B., No. 11-0024; Texas v. Naylor, No. 11-0114. These divorce cases have involved constitutional issues and arguments similar to those arising in this marriage casemeaning Mr. Steed and Mr. Scheske are thoroughly familiar with the legal issues relevant to the classs claims. See Ex. E, F. And Mr. Steed and Mr. Scheske are assisted by Leigh Jorgeson and Ian Pittmantwo lawyers experienced in family law. In sum, Plaintiffs interests are identical to the classs interests, Plaintiffs are committed to representing and pursuing those interests, and Plaintiffs counsel are

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competent and qualified to bring this class action involving these constitutional issues. Therefore, Rule 23s adequacy requirement is satisfied.

Rule 23(b): Class-based Discrimination


Finally, Rule 23(b)(2) provides a basis for class action where defendants have acted or refused to act on grounds generally applicable to the class, making injunctive or declaratory relief appropriate for the entire class. Fed. R. Civ. P. 23(b)(2). As the Supreme Court has noted: civil rights cases against parties charged with unlawful, class-based discrimination are prime examples of what (b)(2) is meant to capture. Dukes, 131 S. Ct. at 2557 (noting that Rule 23(b)(2)s antecedents were a series of [court] decisions involving challenges to racial segregation that remedied such unconstitutional conduct by a single classwide order). The Fifth Circuit has imposed two requirements for certifying a class under 23(b)(2): (1) the class members must have been harmed in the same way; and (2) the injunctive relief sought must be specific. M.D. v. Perry, 675 F.3d 832, 845 (5th Cir. 2012). Moreover, the conduct to be enjoined must be such that it can be declared unlawful as to all of the class members or as to none of them. Id. (internal quotations omitted). These requirements are satisfied. The class members are all harmed in the same way, having been denied the right to marry or deprived of their lawful marital status by Texas law. They seek specific relief, asking the Court to declare these Texas laws unconstitutional and to enjoin Defendants from enforcing them. And this will provide relief to all class membersor to none of them. This notion of providing constitutional protection to all class membersor to none of themis important, given the prominent role of county clerks in issuing marriage licenses. If class treatment is denied in this case, but Plaintiffs win on the merits as individuals, clerks in other counties plausibly might continue to refuse to issue marriage
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licenses to same-sex couplesarguing that the Courts injunction does not reach them. This is similar to what some county clerks did in Utah, after a district court ruled that Utahs laws against same-sex marriage were unconstitutional. See Utah County refuses to issue same-sex marriage licenses, Salt Lake Tribune (Dec. 23, 2013), http://goo.gl/tSNXyk. And it is similar to what happened in the racial segregation cases that became the basis for adopting Rule 23(b)(2) in the first place. See Dukes, 131 S. Ct. at 2557; Amendments to R. of Civ. P., Advisory Committees Note, 39 F.R.D. 69, 102 (1966) (citing, e.g., Potts v. Flax, 313 F.2d 284 (5th Cir. 1963)). In Potts, a district court issued an order categorically abolishing segregationist policies in Fort Worth ISD, but some school officials ignored the order and, on appeal, contended that, even if the courts order could enforce rights for the named plaintiffs, it could not extend[] such rights to all other persons similarly situated. 313 F.2d at 287288. Rule 23(b)(2) was adopted to prevent this sort of thing, and to enable the Court to enforce civil and constitutional rights for an entire identified class. And this case clearly fits the criteria of Rule 23(b)(2).

Conclusion
Given the straightforward basis for certification in this case, no hearing is necessary and Plaintiffs ask the Court to certify the proposed class as soon as practicable. See generally Fed. R. Civ. P. 23 (no hearing required); see Fed. R. Civ. P. 23(c)(1)(A) (court must determine class certification at an early practicable time); see also Harris, 2014 WL 352188 (certifying a similar class). Plaintiffs ask the Court to issue an order (1) certifying the proposed class, (2) defining the class claims as those alleged in Plaintiffs Complaint, and (3) appointing Plaintiffs counsel as class counsel. Cf. Fed. R. Civ. P. 23(c).

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Respectfully submitted, /s/ Jason P. Steed Jason P. Steed, SBN 24070671 Bell Nunnally & Martin LLP 3232 McKinney Ave., Suite 1400 Dallas, TX 75204 Phone: (214) 740-1411 Fax: (214) 740-5711 jasons@bellnunnally.com

James J. Scheske, SBN 17745443 James J. Scheske PLLC 5501-A Balcones #109 Austin, TX 78731 Phone: (512) 371-1790 Fax: (512) 323-2260 jscheske@austin.rr.com S. Leigh Jorgeson, SBN 24070026 (pro hac) Ian Pittman, SBN 24064131 (pro hac) Jorgeson Pittman LLP 4505 Spicewood Springs Rd., Suite 335 Austin, Texas 78759 Phone: (512) 320-0999 Fax: (512) 320-0025 leigh@jptexaslaw.com Attorneys for Plaintiffs Shannon Zahrn, Catherine Zahrn, Alexius Augustine, and Andrew Simpson

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Certificate of Service
I certify that Plaintiffs Motion for Class Certification was electronically filed on the CM/ECF system on February 28, 2014, which will automatically serve a Notice of Electronic Filing to all parties and counsel.

/s/ Jason P. Steed Jason P. Steed Counsel for Plaintiffs

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EXHIBIT A

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EXHIBIT B

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EXHIBIT C

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EXHIBIT D

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EXHIBIT E

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EXHIBIT F

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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS AUSTIN DIVISION

Shannon ZAHRN, Catherine Zahrn, Alexius Augustine, and Andrew Simpson, on behalf of themselves and all others similarly situated, Plaintiffs, v.

Civil Action No. 1:13-cv-00955

Order Granting
Rick PERRY, in his official capacity as Governor of Texas; Greg Abbott, in his official capacity as Attorney General of Texas; and Dana DeBeauvoir, in her official capacity as County Clerk of Travis County, Texas, Defendants.

Plaintiffs Motion for Class Certification

Having considered Plaintiffs motion for class certification, and the arguments and authorities of both Plaintiffs and Defendants, the Court finds Rule 23 is satisfied and therefore GRANTS the motion. The following class of persons will be bound by the final judgment in this case: a) all individuals who reside in Texas, who wish to marry someone of the same sex in Texas; and b) all individuals who reside in Texas, who have been legally married in another state to someone of the same sex. This class, however, does not include the plaintiffs in McNosky v. Perry, No. A13CV-0631, or DeLeon v. Perry, No. 5:13-CV-982, who are representing their own interests,

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unless these individuals opt in to this class by notifying this Court of their intent and desire to be included in the class. The class is certified to determine (1) whether Texas laws against same-sex marriage violate the Equal Protection Clause of the 14th Amendment to the U.S. Constitution; (2) whether Texas laws against same-sex marriage violate the Due Process Clause of the 14th Amendment to the U.S. Constitution; (3) whether Texas laws against same-sex marriage violate the federal constitutional right to travel; (4) whether Texas laws against same-sex marriage, and section 2 of the federal Defense of Marriage Act, violate the Full Faith and Credit Clause of Article IV of the U.S. Constitution; (5) whether Defendants have deprived Plaintiffs of their constitutional rights in violation of 42 U.S.C. 1983; and (6) whether Defendants must pay class counsel fees and costs. Plaintiffs seek declaratory and injunctive relief on behalf of the class, and the class will be bound by the judgment. Thus, in answer to each of the constitutional questions, Texas laws against same-sex marriage will be deemed unconstitutional and unenforceable as to all of the class membersor as to none of them. The Court appoints Jason P. Steed (SBN 24070671), James J. Scheske (SBN 17745443), S. Leigh Jorgeson (SBN 24070026), and Ian Pittman (SBN 24064131) as class counsel.

SIGNED on _________________________________, 2014.

___________________________________ The Honorable Sam Sparks