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DISTRICT COURT, ADAMS COUNTY, COLORADO
Adams County Justice Center, 1100 Judicial Center Drive
Brighton, CO 80601

Plaintiffs: REBECCA BRINKMAN and MARGARET BURD,
v.
Defendants: KAREN LONG, in her official capacity as Clerk and Recorder of
Adams County; STATE OF COLORADO





















COURT USE ONLY
Consolidated with:
DISTRICT COURT, CITY AND COUNTY OF DENVER, COLORADO
Case No. 14-CV-30731
Plaintiffs: G. KRISTIAN MCDANIEL-MICCIO and NAN MCDANIEL-
MICCIO, SANDRA ABBOTT and AMY SMART, WENDY ALFREDSEN and
MICHELLE ALFREDSEN, KEVIN BEMIS and KYLE BEMIS, TOMMY
CRAIG and JOSHUA WELLS, JAMES DAVIS and CHRISTOPHER
MASSEY, SARA KNICKERBOCKER and JESSICA RYANN PEYTON,
JODI LUPIEN and KATHLEEN PORTER, and TRACEY MACDERMOTT
AND HEATHER SHOCKEY
v.
Defendants: STATE OF COLORADO; JOHN W. HICKENLOOPER, JR., in
his official capacity as Governor for the state of Colorado; DEBRA JOHNSON,
in her official capacity as Clerk and Recorder for the City and County of Denver
Attorneys for Denver County Action Plaintiffs:
John M. McHugh, #45456; jmchugh@rplaw.com
Anthony L. Giacomini, # 26057; agiacomini@rplaw.com
Amy R. Gray, #40814; agray@rplaw.com
Michael Kotlarczyk, # 43250; mkotlarczyk@rplaw.com
Tess Hand-Bender, #42681; thandbender@rplaw.com
Jason M. Lynch, #39130; jlynch@rplaw.com
REILLY POZNER LLP
1900 Sixteenth Street, Suite 1700
Denver, Colorado 80202
Phone: (303) 893-6100; Fax: (303) 893-6110
Marcus Lock, #33048; mlock@lawoftherockies.com
LAW OF THE ROCKIES
525 North Main Street
Gunnison, Colorado 81230
Phone: (970) 641-1903; Fax: (970) 641-1943
Ann Gushurst, #29187; ann@ggfamilylaw.com
GUTTERMAN GRIFFITHS PC
10375 Park Meadows Blvd., Suite 520
Littleton, Colorado 80124
Phone: (303) 858-8090; Fax: (303) 858-8181


Case No. 13-CV-32572
Ctrm/Div.: C

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Attorney for Debra Johnson in her official capacity as Clerk and Recorder
for the City and County of Denver
Wendy Shea, # 26253
Denver City Attorneys Office
1437 Bannock St.
Denver, CO 80202
Wendy.shea@denvergov.org
Phone: (720) 913-3100; Fax: (720) 913-3182
DENVER COUNTY PLAINTIFFS AND DEBRA JOHNSONS JOINT RESPONSE
IN OPPOSITION TO STATE OF COLORADOS PARTIALLY STIPULATED MOTION
FOR STAY IN THE EVENT OF JUDGMENT FOR THE PLAINTIFFS

The Denver County Plaintiffs and Debra Johnson, in her official capacity as Clerk and
Recorder for the City and County of Denver, hereby oppose the States premature motion for a
stay.
INTRODUCTION
The cases before this Court involve the most important relation in life, Maynard v. Hill,
125 U.S. 190, 205 (1888), and a right of fundmental importance for all individuals, Zablocki v.
Redhail, 434 U.S. 374, 384 (1978). Recognizing that this Court may find that the Marriage Bans
at issue here violate Plaintiffs constitutional due process and equal protection rights, the State
now asks this Court to stay enforcement of such a decision, and therefore prolong the irreparable
injury suffered by same-sex couples in Colorado. The State does so without citation to or
analysis of any controlling law. Instead, the State exclusively relies on a misrepresentation
regarding the procedural decisions of federal courts that are neither controlling nor persuasive.
Under controlling Colorado law, a stay is not warranted where, as here, the law is
unconstitutional. Because the State cannot meet its substantial burden to show that a stay is
appropriate, the States motion should be denied.

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ARGUMENT
I. The State Misrepresents the Status of Federal Cases
The State begins its motion by affirmatively misrepresenting the procedural posture of
the federal court marriage equality decisions. Contrary to the States assertion that [e]very
lower court . . . has either stayed its injunction or had the injunction stayed by a higher court,
(Mot. at 1): the orders from the Northern District of Illinois, the District of Oregon, the Middle
District of Pennsylvania, and the Southern District of Inidiana striking down those states
respective marriage bans were not stayed either by the district court or any appellate court. See
Lee v. Orr, -- F. Supp. 2d --, 2014 WL 683680, at *2 (N.D. Ill. Feb. 21, 2014); Geiger v.
Kitzhaber, -- F. Supp. 2d --, 2014 WL 2054264, at *16 (D. Or. May 19, 2014); Whitewood v.
Wolf, -- F. Supp. 2d --, 2014 WL 2058105, at *16 (M.D. Pa. May 20, 2014); Baskin v. Bogan,
No. 1:14-cv-00355-RLY-TAB, at 32 (S.D. Ind. June 25, 2014) (a copy of the Baskin opinion is
attached as Exhibit A). Most notably, the United States Supreme Court denied a request to stay
enforcement of the District of Oregons order. See Natl Org. for Marriage, Inc. v. Geiger, No.
13A1173, 2014 WL 2514491, at *1 (U.S. June 4, 2014).
II. A Stay Is Not Warranted under Colorado Law
All parties agree that federal law governing a stay is not controlling here . . . . Mot. at
2. After paying lip-service to this Courts independence, and contrary to its earlier exhortation to
not simply follow federal courts on these issues, (State Resp. to MSJ at 5), the State now asks
this Court to stay a decision that has not been entered based soley on its faulty claim regarding
procedural decisions made by federal courts. This Court will decide the summary judgment
motions before it. If this Court rules the bans unconstitutional, the question of whether a stay
should be implemented will be governed by Colorado, not federal, procedural law. See
McLaughlin v. BSNF Ry. Co., 300 P.3d 925, 935 (Colo. Ct. App. 2012) (a federal action
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adjudicated in state court is governed by state procedural law and federal substantive law); see
also Evans v. Romer, 854 P.2d 1270, 1286 (Colo. 1993) (Evans II) (affirming application of
state procedural laws regarding preliminary injunctions to claims brought under the federal
constitution).
In Colorado, Courts apply a four-factor test when considering whether to stay an order
denying or granting an injunction. Romero v. City of Fountain, 307 P.3d 120, 122 (Colo. App.
2011). Those factors are: (1) the moving partys probability of success on the merits;
(2) irreparable harm to the moving party; (3) harm to the moving party balanced against the harm
to the non-moving party; and (4) public interest. Id. at 123. The party requesting a stay bears
the burden of showing that the circumstances justify an exercise of that discretion. Id. at 122.
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All of these factors favor the denial of a stay here.
Under Colorado Supreme Court precedent affirming preliminary injuctions, however, a
finding that the Marriage Bans are unconstitutional may preclude entry of a stay. In Colorado,
the granting of a preliminary injunction is governed by the standard set forth in Rathke v.
MacFarlane, 648 P.2d 648, 653-54 (Colo. 1982).
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The Romero factors are included within the
Rathke factors. The Colorado Supreme Court has at least twice affirmed the granting of a
preliminary injunction simply because the law at issue was unconstitutional. See Evans II, 845
P.2d at 1286 (Colo. 1993) (affirming grant of preliminary injunction because Amendment 2 was
unconstitutional); Dallman v. Ritter, 225 P.3d 610, 640 (Colo. 2010) (affirming grant of
preliminary injunction because Amendment 54 was unconstitutional). Under Evans II and

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In ignoring these factors, the State fails to meet its burden of demonstrating that issuance of a stay is
appropriate. The States motion should be denied on that ground alone.

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Those factors are: (1) a reasonable probability of success on the merits, (2) a danger of real,
immediate, and irreparable injury which may be prevented by injunctive relief, (3) that there is no plain, speedy,
and adequate remedy at law, (4) that the granting of a preliminary injunction will not disserve the public interest,
(5) that the balance of equities favors the injunction, (6) that the injunction will preserve the status quo pending a
trial on the merits . . . . Id.
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Dallman, therefore, the Rathke factors favor Plaintiffs if the challenged law is found to be
unconstitutional. Thus, the State cannot carry its burden under Romero to show that a stay is
warranted.
A. Probability of Success on the Merits
The States burden is to show probability of success on the merits, not a mere
possibility of success. Romero, 307 P.3d at 123. The unanimity of opinions invalidating
marriage bans, including three state trial courts, 16 federal district court opinions, two state
supreme courts, and the Tenth Circuit, amply demonstrate the States inability to show a
probability of success on the merits. Simply put, no court has agreed with the States position on
the merits of the litigation since Windsor was decided a year ago. The States decision to file
this premature request for a stay, made the same day the Tenth Circuit issued its opinion in
Kitchen v. Herbert, indicates the States lack of confidence in the merits of its defense of the
Marriage Bans.
B. Irreparable Harm to the Moving Party
The State must also show a danger of real, immediate, and irreparable injury that may be
prevented by the requested relief. Romero, 307 P.3d at 123. In other words, the State must
show enforcement of a decision favorable to the Plaintiffs would immediately and irreparably
injure the State. The State has not and cannot make that showing. The State requests this stay to
avoid uncertainty, (Mot. at 2), but the State has previously argued that confusion,
misunderstanding, and human nature cannot be regulated; recognition of same-sex marriage
by . . . court decree will not solve these problems. State Resp. to MSJ at 4 (emphasis added).
Futher, the State makes no attempt to describe what uncertainty it is concerned about or how
that uncertainty would injure the State.
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To the extent the State is concerned about uncertainty regarding the validity of any
marriages issued pending appellate review, the harm associated with that uncertainty is carried
by the same-sex couples who choose to get married. Unlike the states involved in the stayed
federal decisions, Colorado already has a statutory regime in place to deal valid legal marriages
that are not recognized by Colorado. See C.R.S. 14-15-116 (A relationship between two
persons that does not comply with Section 31 of Article II of the State Constitution but that was
legally entered into in another jurisdiction is deemd in Colorado to be a civil union as set forth in
this Article.).
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C. Irreparable Harm to the Non-Moving Party
If the State could show irreparable harm, the Court must still weigh the harm to the State
in the absence of a stay against the harm suffered by non-moving parties if the stay is granted.
Romero, 307 P.3d at 123. As detailed in the Denver County Plaintiffs motion for summary
judgment, and uncontested by the State, the Marriage Bans cause real, immediate and irreparable
harm to the Plaintiffs. See Denver County Pls. MSJ App. B SUF 1-85. Further, any denial
of fundamental constitutional rights would be real, immediate, and irreparable injury. Evans v.
Romer, 1993 WL 19678, at *8 (Denver Dist. Ct. Jan. 15, 1993) (Evans I) affirmed by 845 P.2d
1270, 1286 (Colo. 1993).
D. Public Interest
Finally, the Court must analyze whether there are any policy considerations that bear on
the issue of whether the stay should be granted. Romero, 307 P.3d at 123. The public has no

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Assuming both that this Court grants Plaintiffs motions for summary judgment and is later reversed by an
appellate court, any marriage licenses issued between issuance of this Courts order and reversal would nevertheless
be legal marriages. See Evans v. Utah, -- F. Supp. 2d --, 2014 WL 2048343, at *9, 12 (D. Utah May 19, 2014)
(noting that for same-sex marriages entered in Utah between the district courts injunction and the Supreme Courts
stay, [t]he marriage bans were legal nullities at the time Plaintiffs were married and that Plaintiffs marriages
were authorized by law at the time they occurred); see also Straus v. Horton, 207 P.3d 48, 122 (Cal. 2009) (ruling
that same-sex marriages entered into between the California Supreme Court ruling the states marriage bans violated
the state constitution and the passage of Proposition 8 amending the state constitution were still valid marriages).
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interest whatsoever in having an unconstitutional amendment added to its Constitution. Evans
I, 1993 WL 19678, at *8.
III. The Federal Stays Are Not Controlling or Persuasive
As the State concedes, the federal decisions granting stays are not binding on this Court
because the decision to stay is a matter of state procedural law. Moreover, the courts granting
stays in these cases have largely done so by citing the Supreme Courts grant of a stay in Kitchen
v. Herbert without any independent analysis of the relevant factors. See, e.g., Kitchen v.
Herbert, No. 13-4178 (10
th
Cir. June 25, 2014) at 64-65 (granting stay [i]n consideration of the
Supreme Courts decision to stay the district courts injunction without any discussion of
factors); Latta v. Otter, No. 14-35420 (9
th
Cir. May 20, 2014) (attached as Exhibit B) (same);
Bostic v. Rainey, 970 F. Supp. 2d 456, 454 (E.D. Va. 2014) (same); De Leon v. Perry, 975 F.
Supp. 2d 632, 666 (W. D. Tex. 2014) (same); Bishop v. U.S. ex rel. Holder, 962 F. Supp. 2d
1252, 1296 (N.D. Okla. 2014) (same). Without any analysis, these opinions are not only non-
binding, they are not persuasive. As a dissenting member of the Sixth Circuit panel staying the
Deboer decision out of Michigan pointed out, the Supreme Courts order itself granted a stay
without a statement of reasons and therefore provides little guidance. See Deboer v. Snyder,
No. 14-1341 (6
th
Cir. Mar. 25, 2014) (unpublished) (White, J. dissenting) (attached as Exhibit
C); see also Herbert v. Kitchen, 134 S.Ct. 893 (2014). And, as a concurring panel member in the
Ninth Circuit Latta case also explained, he concurred in granting a stay solely because I believe
that the Supreme Court, in Herbert v. Kitchen, 134 S.Ct. 893 (2014), has virtually instructed
courts of appeals to grant stays in the circumstances before us today. If I were writing on a
cleaner slate, I would conclude that application of the familiar factors in Nken v. Holder, 556
U.S. 418, 434 (2009), counsels against the stay[.] See Ex. B at 2 (Hurwitz, J. dissenting). This
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Court is today writing on that cleaner slate, and should deny the requested stay based on
controlling Colorado procedural law.
CONCLUSION
The States premature motion for a stay should be denied.
DATED this 26th day of June, 2014.

s/ John McHugh
John M. McHugh, #45456; jmchugh@rplaw.com
Anthony L. Giacomini, # 26057; agiacomini@rplaw.com
Amy R. Gray, #40814; agray@rplaw.com
Michael Kotlarczyk, #43250; mkotlarczyk@rplaw.com
Tess Hand-Bender, #42681; thandbender@rplaw.com
Jason M. Lynch, #39130; jlynch@rplaw.com
REILLY POZNER LLP
1900 16th Street, Suite 1700
Denver, CO 80202

Marcus Lock, #33048; mlock@lawoftherockies.com
LAW OF THE ROCKIES
525 North Main St.
Gunnison, Colorado 81230

Ann Gushurst, #29187; ann@ggfamilylaw.com
Gutterman Griffiths PC
10375 Park Meadows Blvd., Suite 520
Littleton, Colorado 80124

ATTORNEYS FOR DENVER COUNTY PLAINTIFFS

s/ Wendy Shea
Wendy Shea
Denver City Attorneys Office
1437 Bannock St.
Denver, CO 80202

ATTORNEY FOR DEBRA JOHNSON IN HER
OFFICIAL CAPACITY AS CLERK AND RECORDER
FOR THE CITY AND COUNTY OF DENVER

Pursuant to C.R.C.P. 121, Section 1-26, a printed copy of this document with original
signatures will be maintained by Reilly Pozner LLP and made available for inspection upon
request.
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CERTIFICATE OF SERVICE
I hereby certify that on this 26th day of June, 2014 I electronically filed the foregoing
through ICCES which will send notification of such filing to the following:

Jack Finlaw
Benjamin Figa
Governors Office of Legal Counsel
121 State Capitol
Denver, CO 80203
Jack.finlaw@state.co.us
Ben.figa@state.co.us

Attorneys for Gov. John W. Hickenlooper, Jr.

Dan Domenico
Michael Francisco
Kathryn Starnella
Colorado Attorney Generals Office
1300 Broadway, 10
th
Floor
Denver, CO 80202
Dan.domenico@state.co.us
Michael.francisco@state.co.us
Kathryn.starnella@state.co.us

Attorneys for the State of Colorado

Wendy Shea
Denver City Attorneys Office
1437 Bannock St.
Denver, CO 80202
Wendy.shea@denvergov.org

Attorney for Debra Johnson, Clerk and
Recorder for the City and County of Denver
Ralph Ogden
M. Anne Wilcox
Wilcox & Ogden, P.C.
160 Lafayette Street
Denver, CO 80218

Professor Thomas Russell
1001 16
th
Street B180 # 175
Denver CO 80265

Attorneys for the Adams County Plaintiffs

s/ Janie Cohen
Janie Cohen

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