1

2
3
4
5
6
7

Mitchell F. Thompson, Esq.

R. Todd Thompson, Esq.
THOMPSON GUTIERREZ & ALCANTARA, P.C.
238 Archbishop Flores Street, Suite 801
Hagta, Guam 96910
Telephone: (671) 472-2089
Facsimile: (671) 477-5206
William D. Pesch, Esq.
GUAM FAMILY LAW OFFICE
173 Aspinall Avenue, Suite 203
Hagta, Guam 96910
Telephone: (671) 472-8472
Facsimile: (671) 477-5873

8
9

Attorneys for Plaintiffs Kathleen M. Aguero and

Loretta M. Pangelinan

10

IN THE DISTRICT COURT OF GUAM

11

TERRITORY OF GUAM

12

KATHLEEN M. AGUERO and LORETTA

M. PANGELINAN,

13
Plaintiffs,
14
v.
15
16
17

EDDIE BAZA CALVO in his official capacity as

Governor of Guam; and CAROLYN GARRIDO
in her official capacity as Registrar in the Office
of Vital Statistics, Department of Public
Health and Social Services,

18
Defendants.
19

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

CIVIL CASE NO. 15-00009

20
21
22

PLAINTIFFS FIRST
AMENDED REQUEST FOR
EXPEDITED RULING

23
24
Case 1:15-cv-00009 Document 11 Filed 04/16/15 Page 1 of 9

1
2

INTRODUCTION
COME

NOW,

Plaintiffs

KATHLEEN

M.

AGUERO

and

LORETTA

M.

PANGELINAN, by and through their attorneys, and move pursuant to Local Civil Rule 7(a) as

well as the Courts inherent authority to control its own docket, for this Court to expedite its

ruling in this matter. This is an amended request which supersedes Plaintiffs earlier filing in

order to address recent developments.

POSTURE OF THE CASE

Plaintiffs Kathleen M. Aguero and Loretta M. Pangelinan are legally qualified to marry

under the laws of Guam. Plaintiffs filed a Complaint for declaratory and injunctive relief on

10

April 13, 2015, seeking to secure the fundamental right to marry as guaranteed to them by the

11

Fourteenth Amendment to the United States Constitution as set forth in controlling Ninth

12

Circuit precedent, Latta v. Otter, 771 F.3d 456 (9th Cir. 2014), pet. for rehg en banc denied,

13

779 F.3d 902 (9th Cir. Jan 9, 2015). Upon filing the Complaint, Plaintiffs also moved for

14

summary judgment and a preliminary injunction, and requested expedited rulings thereon. On

15

April 13, Plaintiffs served Summons on Defendant Garrido. The next day, the Office of the

16

Governor accepted service on behalf of Defendant Governor.

17

DEVELOPMENTS SINCE INITIAL REQUEST FOR EXPEDITED RULING

18

As discussed below, the Defendants continue to refuse to accept or grant marriage

19

license applications from same-sex applicants, despite a directive from the Office of the

20

Attorney General advising the Government to immediately issue licenses to same-sex

21

applicants.

22

Specifically, the Attorney General of Guam, Elizabeth Barrett-Anderson issued a letter

23

on April 15, 2015 to Mr. Leo Casil, Acting Director, Department of Public Health and Social

24

Case 1:15-cv-00009 Document 11 Filed 04/16/15 Page 2 of 9

Services advising him, inter alia, to immediately begin processing of same gender marriage

applications, and to review such applications in the normal course of business. In plain terms,

the Attorney General said: [T]he holding in Latta v. Otter [is] controlling law rendering

Guams statute prohibiting same-gender marriages unenforceable until such time that the

Supreme Court of the United States the alters the holding of the Ninth Circuit Court of

Appeals. As the Attorney General further wrote: The Department is advised to treat all same

gender applicants with dignity and equality under the Constitution of our nation, and the ruling

of the Ninth Circuit Court of Appeals.1

Despite the fact that Guams chief legal officer and top law enforcement official has

10

acknowledged the binding nature of Latta within this jurisdiction, Defendants continue to

11

refuse to grant marriage licenses to same-sex applicants. Following the Attorney Generals

12

announcement yesterday, Public Health Acting Director Leo Casil said his office will not

13

accept applications from same-sex couples until further notice.2 In a statement released on

14

the evening of April 15, 2015, the Governors office said that it is further researching the

15

issue.3 However, it is remarkable that the statement failed to recognize Latta as controlling

16

authority. Instead the statement merely noted the possibility that the U.S. Supreme Court might

17

follow, not reverse, the Sixth Circuit cases pending before it and that, meanwhile, legislators or

18
19
20
21
22
23
24

Attorney General Elizabeth Barrett-Andersons letter to Mr. Leo Casil, Acting Director,
Department of Public Health and Social Services, April 15, 2015, posted on Pacific News Center
website as:
http://www.pacificnewscenter.com/government/item/3164-breaking-news-ag-approvessame-sex-marriage and attached as Exhibit A.
2
Pacific Daily News, April 16, 2015, AG: Allow gay marriage: Public Health refuses to lift
same-sex ban. http://www.guampdn.com/article/20150416/NEWS01/304160003/AG-Allow-gaymarriage-Public-Health-refuses-lift-same-sex-ban.
3
Pacific
Daily
News,
April
15,
2015,
http://www.guampdn.com/article/20150415/NEWS01/150415003/Guam-attorney-general-directsPublic-Health-to-immediately-begin-processing-gay-marriage-applications.

Case 1:15-cv-00009 Document 11 Filed 04/16/15 Page 3 of 9

voters should be the ones to effectuate marriage equality if they were inclined to do so. In-

pertinent part, the statement said:

The Ninth Circuit court ruled that state bans on marriages by
persons of the same gender are unconstitutional. Like many
other jurisdictions, weve been watching the Supreme Court,
where oral arguments are due to start next week and a
decision is expected by June. The Sixth Circuit appeal asks
the question of whether the definition of marriage should be
defined by the federal courts or by local legislatures.

3
4
5
6

Governor Calvo has stated that the Guam Legislature enacted

law that defines marriage for our people. While this current
legal issue is being reviewed, if it is the will of the people of
Guam to make same-sex marriage legal on Guam, then the
Guam Legislature, the people of Guams representatives, can
take action to change the law, or a referendum can be held
giving the people of Guam a direct voice in this issue.4

7
8
9
10
11

Thus, Defendants still refuse to recognize Latta as controlling authority and fail also to

12

recognize the rights to equality and liberty of the Plaintiffs and other same-sex couples in

13

Guam.

14

LEGAL DISCUSSION

15

BECAUSE EACH DAY PLAINTIFFS AND OTHER

SAME-SEX
COUPLES
ARE
DENIED
THE
FUNDAMENTAL
RIGHT
TO
MARRY
UNQUESTIONABLY CONSTITUTES IRREPARABLE
INJURY, THIS COURT SHOULD GRANT PROMPT
PRELIMINARY INJUNCTIVE RELIEF OR GRANT
SUMMARY JUDGMENT ON AN EXPEDITED BASIS

16
17
18
19

From their public statements and actions to date, it would appear that the Defendants

20

have lost sight of the truth expounded by the nations highest court over seventy years ago, and

21

repeated ever since, that [t]he very purpose of a Bill of Rights was to withdraw certain

22

subjects from the vicissitudes of political controversy, to place them beyond the reach of

23
24

Id.

Case 1:15-cv-00009 Document 11 Filed 04/16/15 Page 4 of 9

majorities and officials and to establish them as legal principles to be applied by the courts. . . .

[F]undamental rights may not be submitted to vote; they depend on the outcome of no

elections. W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943); Republican Party

of Minnesota v. White, 536 U.S. 765, 806, (2002); Perry v. Schwarzenegger, 704 F. Supp. 2d

921, 994-95 (N.D. Cal. 2010), vacated and remanded on standing grounds in Hollingsworth v.

Perry, 133 S. Ct. 2652, 2658 (2013) (citing Barnette in observing: That the majority of

California voters supported Proposition 8 is irrelevant, as fundamental rights may not be

submitted to [a] vote; they depend on the outcome of no elections.).

While the Defendants seem content to commit fundamental rights to the political

10

process, it is undeniable that this issue is no longer a political questionif it ever wasit is a

11

judicial one. It ceased being a political question the day two courageous young women went

12

down to Mangilao to obtain a marriage license and were denied it. It unquestionably became a

13

judicial question the day the same two women came to this honorable Court to file suit to

14

vindicate their Constitutional right to marry.

15

While the Defendants appear anxious to avoid making a decision on marriage

16

equalitydeferring to the Legislature, the voters, and, ultimately, the U.S. Supreme Court

17

they fail to recognize that it is this Court, not them, that is now charged with deciding the case

18

and controversy before it.

19

If the Defendants objective is to run out the clock, then they then they will fail.

20

Because the loss of constitutional freedoms, for even minimal periods of time, unquestionably

21

constitutes irreparable injury, Elrod v. Burns, 427 U.S. 347, 373 (1976), this Court should

22

enjoin Defendants and enter judgment in favor of Plaintiffs as expeditiously as possible. See

23

Klein v. City of San Clemente, 584 F.3d 1196, 1207-08 (9th Cir. 2009) (Both this court and

24

Case 1:15-cv-00009 Document 11 Filed 04/16/15 Page 5 of 9

the Supreme Court have repeatedly held that [t]he loss of First Amendment freedoms, for even

minimal periods of time, unquestionably constitutes irreparable injury.).

Plaintiffs renew their request an expedited ruling on the grounds that (1) they suffer

irreparable harm by any delay in the disposition of this matter due to the deprivation of their

Constitutionally-guaranteed rights; (2) the law of the case is well-established by binding

precedent of the Ninth Circuit Court of Appeals in Latta; (3) the harm to Plaintiffs caused by

delay far exceeds any likelihood of success by Defendants; (4) the facts of this case are simple,

well-known and undisputed, and there is no necessity for discovery or trial; and (5) an

expedited ruling serves both judicial economy and the public interest in resolving an important

10

issue.

11

Defendants might claim that the relief Plaintiffs seek is somehow premature in this

12

newly-filed case. They would be mistaken. In the following marriage-ban cases, courts

13

granted injunctive relief less than one month after issuance of binding circuit authority on

14

point. Condon v. Haley, 2014 WL 5897175 (D. S.C. Nov. 12, 2014) (granting injunctive relief

15

and summary judgment regarding South Carolina marriage ban less than one month after

16

initiation of action); Guzzo v. Mead, 2014 WL 5317797 (D. Wyo. Oct. 17, 2014) (granting

17

preliminary injunction enjoining enforcement of Wyomings ban on marriage for same-sex

18

couples a mere ten days after the filing of the original complaint); Marie v. Moser, 2014 WL

19

5598128 (D. Kan. Nov. 4, 2014) (enjoining enforcement of Kansass ban on marriage for same-

20

sex couples less than one month after the commencement of the action [b]ecause Tenth Circuit

21

precedent is binding on this Court . . .). Likewise, in the instant case, there is absolutely no

22

principled reason to delay granting injunctive relief in the face of controlling Ninth Circuit

23

precedent on point.

24

Case 1:15-cv-00009 Document 11 Filed 04/16/15 Page 6 of 9

District courts have likewise granted expedited summary judgments in favor of same-

sex plaintiffs. See Rolando v. Fox, 2014 WL 6476196, *4 (D. Mont. Nov. 19, 2014) (granting

summary judgment invalidating Montanas constitutional ban on same sex marriage because

Latta represents binding Ninth Circuit precedent and provides the framework that this Court

must follow); Majors v. Horne, 141 F. Supp. 3d 1313 (D. Ariz. 2014) (promptly granting

pending summary judgment motions challenging Arizonas same-sex marriage ban just ten

days after issuance of the Ninth Circuits opinion in Latta); Hamby v. Parnell, 2014 WL

5089399 (D. Alaska Oct. 12, 2014) (Latta is the controlling law of this Circuit).

Based on these authorities and other authorities more fully set forth in their April 13,

10

2015 memoranda supporting Plaintiffs Motions for Summary Judgment and Preliminary

11

Injunction, expedited treatment of this matter is appropriate based on the Ninth Circuits

12

controlling ruling in Latta. Rather than reiterate all those authorities at length, Plaintiffs hereby

13

incorporate them by this reference as if fully set forth herein.

14

Defendants have no legitimate justification to continue to deny or delay justice to

15

Plaintiffs, or similarly situated same-sex couples. This Court can rule expeditiously, as a

16

matter of law, that the purported Guam marriage license ban violates Plaintiffs fundamental

17

constitutional rights to marry the person they choose by faithful application of controlling law

18

as set out by the Ninth Circuit in Latta.

19

This case is ripe for review without further delay; and this Court should put an end to

20

the unnecessary suffering, humiliation, stigma, and anxieties attendant to Guams purported

21

marriage ban on Plaintiffs and all committed same-sex couples and their children who want,

22

and need, the security of marriage. As discussed below, every conceivable justification for

23
24

Case 1:15-cv-00009 Document 11 Filed 04/16/15 Page 7 of 9

same-sex marriage bans has been considered and rejected by the Ninth Circuit in Latta. Thus,

it would be a colossal waste of judicial resources to prolong this case.

CONCLUSION

There is no effective or meaningful remedy for the loss of Constitutional rights; the only

remedy of any value is swift justice. Plaintiffs respectfully request that the Court grant an

expedited ruling.

Respectfully submitted this 16th day of April, 2015.

THOMPSON GUTIERREZ & ALCANTARA, P.C.

Attorneys for Plaintiffs Kathleen M. Aguero and
Loretta M. Pangelinan

9
10

By

11
12

/s/
RANDALL TODD THOMPSON

P151032.RTT

13
14
15
16
17
18
19
20
21
22
23
24

Case 1:15-cv-00009 Document 11 Filed 04/16/15 Page 8 of 9

Case 1:15-cv-00009 Document 11 Filed 04/16/15 Page 9 of 9