Case: 12-17668

04/02/2014

ID: 9042054

DktEntry: 194

Page: 1 of 2

STEWART TAYLOR & MORRIS PLLC

Monte Neil Stewart stewart@stm-law.com

12550 W. Explorer Drive, Suite 100 Boise, ID 83713 Telephone (208) 345-3333 Facsimile (208) 345-4461

LAWYERS

Monte Neil Stewart Craig G. Taylor Thomas C. Morris Daniel W. Bower Gabriel M. Haws Chad E. Bernards Richard S. Bower Ammon C. Taylor

April 2, 2014 Via CM/ECF Electronic Filing System Molly C. Dwyer, Clerk of the Court Ninth Circuit Court of Appeals Re: Sevcik v. Sandoval, Case No. 12-17668; Reply regarding Notice of Authority

Dear Clerk: Because of the undoubted public importance of this case and the nature of the points (procedure, abuse, and fairness) raised by the Plaintiffs-Appellants in their Response (Dkt. No. 193) to the Notice of Authority (Dkt. No. 192) filed by Defendant-Appellee Coalition for the Protection of Marriage (Coalition), the Coalition deems this brief Reply warranted. 1. Procedure. The Response argues that an amicus curiae brief filed in another circuit court cannot qualify as an authority within the meaning of F.R.A.P. 28(j). But the Response cites to no case so stating and our own search reveals none. Federal courts not infrequently use amicus curiae briefs in much the same way they use court decisions in addressing issues of public policy. See, e.g., Grutter v. Bollinger, 539 U.S. 306, 322-23, 330-31 (2003). That reality sustains the procedural validity of the Coalitions Notice. 2. Abuse. The Response argues that treating an amicus curiae brief filed in another circuit court as a Rule 28(j) authority could invite abuse. Whether that is a conceptual possibility, there neither is nor can be a suggestion that abuse is at work in this instanceeither on the part of Professors Hawkins and Carroll, who had no role in the Notice of their brief, or on the Coalitions part, with its well-founded belief (see the previous point) that the brief qualifies as an authority. Moreover, both this Court and the parties

Case: 12-17668 Ninth Circuit Clerk April 2, 2014 Page 2

04/02/2014

ID: 9042054

DktEntry: 194

Page: 2 of 2

have consistently shown an intent to assure that all relevant aspects of this cases ultimate and monumental issue are well and fully ventilated. 3. Fairness. As to the Responses fairness pointthat Plaintiffs-Appellants could not address in their Reply Brief the Hawkins and Carroll briefthe remedy for that is to allow the Plaintiffs-Appellants, if they choose to do so, to file a Supplemental Reply Brief, much like the Coalition was allowed to file a Supplemental Answering Brief (Dkt. Nos. 175-2, 176). The Coalition (the only active party on the defense side) supports that remedy, and there is certainly time for it given that oral argument has not yet been scheduled in this case. Sincerely, ___/s/___ Monte Neil Stewart