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}

Th e L aw Offices of

PHILLIPS BORDALLO

A Professional Corporation

410WestO Brien Drive, Suite 102

Hagfttna,

Guam96910-5044

wSM Tel:

(671) 477-ABCD

(2223) •

Fax: (671)

477-2FAX (2329)

jM IErensia, Lina Ia , Espiritu-ta

At to rneys fo r Defendan t s

UNITED

ST TES

DISTRICT COURT

OF GUAM

^IAY 4

2 5^

JEANNE G.

QUINATA

CLHRK OF

COURT

DISTRI T

OURT

OF GU M

KATHLEEN M

AGUERO and

LORETTA

M

PANGELINAN

Plaintiffs,

EDDIE

BAZA CALVO

in

his

official

Capacity as Governor of Guam; and

CAROLYN GARRIDO i n here official

Capacity as Registrar in the Office of Vital

Statistics,Departmentof Public Health

and Social Services,

Defendants

CIVIL CASE NO 15 00009

MEMORANDUM OF POINTS

AND AUTHORIT IES IN

SUPPORT

OF MOTION TO

HOLD

CASE IN ABEYANCE

I.

INTRODUCTION.

Defendants EDDIEBAZA

CALVO,

Governor of Guam, andCAROLYN GARRIDO,

Registrar in

the

Office

of Vital Statistics DHPSS,

in

their

official capacities,

respectfully

move this Court for an Order staying further proceedings in this matter pending a decision

Case 1:15-cv-00009 Document 17 Filed 05/04/15 Page 1 of 10

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from the United States Supreme Court in the case of

DeBoer

v.

Snyder 2

F.3d 388 (6th Cir.

2014), cert, granted, - S.Ct. - Nos. 14-556,

14-562,

14-571, 14-574 , 2015WL213650 (Jan.

16,2015). Defendants do not takea position regarding anyof Plaintiffs' legal arguments. 10

GCASection3207(h), until changed by theLegislature or struckdown by the courts, removes

any discretion byofficers of

the

executive branch of the government ofGuam.

In the

alternative,

and

pursuant

to CVLR

7(g),

Defendants respectfully

request

for an

extension

of

time

of no

less than

14

days

from May 4 (or at least

May

18, 2015) to

file

a

response

to

the

Plaintiffs Complaint, motion for summary judgment,

and

request

for

preliminary injunction.

BACKGROUND

On October 7,2014,

the Ninth

Circuit Court ofAppeals issued an opinion holding that

the laws

of

Idaho and Nevada

which limited

marriage to

opposite-sex

couples

unconstitutionally

violated the Equal Protection Clause of the Fourteenth Amendment. Latta

v Otter,

111

F.3d 496 (9th Cir. 2014). Based upon

the Ninth

Circuit s

opinion in

Latta,

the

Plaintiffs

in this

action have asked this

Court

to declare

the laws

of Guam which prohibit

the

licensure

of same-sex marriages as being similarly violative of

the Equal

Protection clause of

the Fourteenth Amendment.

The

Plaintiffs have

also asked

the

Court to declare

that Guam s

marriage laws are

violative of the Due Process

clause of

the Fourteenth

Amendment

On

January

16,

2015,

the

Supreme

Court

granted certiorari to

hear four

same-sex

marriage

cases

from the Sixth Circuit

Court

of

Appeals which

challenge

either a

state s

refusal to recognize same-sex marriages

from

other jurisdictions or

a

state s refusal to license

same-sex

marriages,

or

both.1

The Supreme Court

has consolidated the

four cases and

1 The four consolidated cases are Obergefell v Hodges, 14-556 (Ohio); Taco v. Haslam, 14-562

(Tennessee);

DeBoer

v.

Snyder, 14-571 (Michigan); and Bottrke

v

Beshear, 14-574 (Kentucky).


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identifies

them

as Obergefell v. Hodges

although

popular reference identifies the

consolidated cases as

DeBoer v. Snyder.

Oral

argument

was

heard

by the Supreme Court on

April 28, 2015, in Washington D.C., and the issues were

limited

to the

following

two

questions: (1) Does the

Fourteenth

Amendment require a state

to

license a

marriage between

two people of the same sex?; and (2) Does

the Fourteenth Amendment require

a state

to

recognize

amarriage between two

people

of the same sex when

their marriage

was lawfully

licensed

and performed

out-of-state? The

Supreme

Court is expected to

issue

its decision

before its current Term ends in late June 2015.

III. LEGAL

DISCUSSION.

A. The

Court is Authorized to Issue a

Stay

of Proceedings Pending

Resolution ofaSeparate

Action

that will have aDispositive

Impact

on

the

Issues .

Afederal

district

court has the authority and

discretion to

issue a stay of proceedings

and

hold a

case

in abeyance

pending the

outcome

of

another case in

an

alternative proceeding

that

it

believes

will impact the

applicable

law, and

control

the

outcome

of

the

case

for which

the stay is sought.

[A] court

may,

with propriety,

find it is

efficient

for

its own docket

and

the

fairest

course

for the parties

to enter a

stay of an action

before

it, pending resolution of

independent

proceedings

which bear upon the case. Mediterranean

Enterprises,

Inc v

Ssangyong Corp

708 F.2d

1458,

465

(9th Cir. 1983),

citing

Leyva

v Certified

Grocers of

California, Ltd., 593 F.2d 857,864 (9th

Cir

1979).

The

decision to stay proceedings is inherent and entirely within the Court s discretion.

[T]he powerto stay proceedings is incidental to the power

inherent

in every court to

control

the disposition of the causes on

its

docket with economy of time

and

effort for itself, for

counsel, and for litigants.

Landis v

North

Am Co.,

299 U.S.

248,

254-255 (1936)


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(recognizing

a

court s inherent power

to

slay proceedings pending

a

decision

by the

Supreme

Court in another case).

B. Good Cause

Exists

to Grant a Stay.

1. Same

issues as DeBoer

The

primary theory

upon

which the

Plaintiffs

seek relief is identical

to the first

question posed in the DeBoer petition.2

That

is, whether the

Fourteenth

Amendment

requires

a

state to license

a

marriage between two people

of the same

sex. Because the Supreme Court

is already considering

this

question,

it

is prudent and reasonable

to

temporarily stay the instant

proceedings until

the

Supreme Court

ends

the

legal debate

and

issues

a

decision.

The

Plaintiffs will likely

argue that

the licensure

of

same-sex

marriages

is

permitted

in

all of the

U.S.

States covered by the Ninth Circuit. This is true. On October 13, 2014, the

Ninth Circuit dissolved a stay of

proceedings that

it had earlier imposed in the Latta case to

enjoin the

states

of Idaho and Nevada from

enforcing

laws which banned same-sex marriage.

Latta

v

Otter,

14-3520 14-3521, DktEntry

No.

196

(9th

Cir. Oct.

13,

2014).

Upon

dissolving

the Latta

stay,

the

Ninth Circuit stated that its decision to impose the stay in

the

first place was

based

upon the Supreme Court s

stay in

Herbert v Kitchen, 143

S.Ct.

893

(2014), the Utah same-sex marriage case. However, on Monday, October 6, the Supreme

Court

denied

certiorari and vacated

stays

in

all

seven

of

the

same-sex marriage cases that

were

pending

before, including Herbert. Latta v Otter, 14-3520 14-3521,

DktEntry No.

197

at6 (9th

Cir.

Oct. 15,2014).

2

The Plaintiffs

are not

seeking

relief

on

the second

question in

DeBoer concerning

whether

a

state

must

recognize a same-sex marriage performed

out-of-state.

This is because in Guam, same-sex marriages

licensed out-of-state are already recognized

as

legal. 19 G.C.A

§

3107 ( All marriages contracted outside

of

the territory

of

Guam, which would

be valid by the

laws

of

the

country in which

the

same were

contracted,

are

valid

inthe

territory

ofGuam. )


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Inother words, the Ninth Circuit

believed that

theSupreme Court'sdenial of

certiorari

in theHerbert case on October 6, 2014, was a

legal

development that militates strongly in

favor ofdissolution of

the stay. Id.

The

Ninth

Circuit

noted

that

the

denial of

certiorari in

Herbert paved

the

way for same-sex marriage in fourteen states to proceed.

Id.

at pp. 8-9, and

fn 1

When it dissolved the stay in

Latta

on October

13,

2014,

the

Ninth Circuit

essentially permitted

same-sex

marriages

to

be

licensed in those

states

which had

litigations

pending before it.

At

the time of this decision, neither

the

Ninth

Circuit

nor anyone else could

have

predicted that

just

three

weeks later

on

November

6,

2014,

the

Sixth Circuit Court

of

Appeals would issue a

decision

in DeBoer

that

was very different from Latta, thus causing a

federal

circuit

court

split.

After the Sixth Circuit s decision in

DeBoer

on November 6,

2014,

however, the Ninth

Circuit decided

to put

on

hold the appellate

proceedings

pending

before it

from

three

different

states, with

no

action to be taken until after the Supreme

Court

rules in

De oer

On December

2, 2014, and again

on

April 3, 2015, the

Ninth Circuit

agreed

to

order a

stay of

Arizona's

same-sex marriage

law

appeal until

the

Supreme

Court

ruled on the DeBoer

petition.

Majors

v

Jeanes,

14-17276,

DktEntry No. 4

(9lh Cir.

Dec.

2, 2014);

DktEntry

No.

11 (9th Cir. Apr.

3,2015).

In addition

to the

Arizona appeal,

the Ninth

Circuit also ordered that appellate

proceedings

from the

states

of

Alaska

and

Montana be stayed until

DeBoer is

resolved.

In

Alaska,

the Ninth

Circuit

ordered that appellate proceedings

be stayed

until

14

days

after

the

decision

issues in DeBoer or

until

June 30,

2015, whichever

occurs first. See, Hamby v.

Walker, 14-35856, DktEntry No. 20 (9th Cir.

Alaska

Feb. 27, 2015). In Montana, the

Ninth


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Circuit

ordered

a stay of appellate proceedings until August 28, 2015.

See Rolando

v. Fox

14-35987, DktEntry8 (9th Cir. Mont. Feb. 9,2015).

Thus, even though

the

Ninth

Circuit has notyet decided the appeals from the states of

Arizona, Alaska, and Montana,

it

still

took the

position

that

it is

appropriate

to

hold

in

abeyance any further

action

until after DeBoer is decided.

Once

the

timeline

is carefully

examined, itis

not an

unreasonable stretch to conclude that had

the

Sixth Circuit s decision in

DeBoer comeout beforeOctober 15,2014 when theNinth Circuit dissolved thestay in

Latta

it is possible that the Ninth Circuit would

not have

dissolved the stay at all. In

any

event, the

Ninth Circuit has made

it

more than clear that

it

does not

want

to entertain any further

litigation or appeals about same-sex marriage

until

after the Supreme Court has

had

a chance

to

rule

in

DeBoer and thus end any debate

on

the matter once and

for

all.

Bolstering

this is

the fact

that in anticipation of

a

ruling from

the

Supreme Court, other

circuit courts

have

also issued orders holding their appeals

in abeyance. The

Fourth

Circuit

Court

of

Appeals

has

stayed appeals

from North

Carolina

and

South Carolina,

and the

Eleventh

Circuit

has stayed appeals

from Alabama, Florida,

and

Georgia. See, Bleckley v

Wilson, 14-2241, Doc.

No.

24

(4lh Cir.

S.C.

Jan.

6, 2015); General Synod

of

the

United

Church of

Christ v Tillis,

14-2225,

Doc No.

35

(4th

Cir. N.C.

Feb.

10, 2015);

Searcy v

Atty.

Gen.,

State

ofAlabama,

15-10295 (11th

Cir. Ala. Feb.

4,

2015); Brenner v Armstrong,

14-

14061 (11th Cir. Fla. Feb.

4, 2015);

Inniss v Aderhold, 15-90002 (11th Cir. Ga.

Feb.

17,

2015).

2. A ShortStavisAppropriate to Promote Judicial Efficiency andEconomy.

Astay of

proceedings in

this

case would

not

be indefinite, but rather

would

last

only

until the DeBoer

opinion

is rendered no

later

than the end of June 2015, which will be in


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about eight weeks at the most. As of date of this filing, the time for filing a responsive

pleading to the Plaintiffs' Complaint has not yet passed, and oral arguments before the

Supreme Court have

just concluded. Proceeding

with litigation, including summary judgment

and/or a preliminary injunction whenthe highest court in the entire nation is onlyweeksaway

from a decision that will put finality to

the

issues and

theories

raised before theCourt

will

not

serve the interests of justice or judicial economy.

Rule 5.1 of the Federal Rules of Civil Procedure allows the attorney general to

intervene within 60 days after the notice drawing into question

the

constitutionality of a

federal

or

state

statute is

filed

or

after

the

court certifies

the constitutional

challenge

to the

s ta tu te

History is on the verge of

being

significantly

shaped

once more, and proceeding

with

this

case before the

Supreme Court has

had

achance

to

opine would be awaste of judicial

and

party

resources. It

appears virtually certain

the Supreme

Court s

rulings will bring closure to

this case and all related cases

C. In theAlternative, an Extension ofTime isAppropriate.

Federal

Rule of

Civil Procedure

6(b)(1)(A) provides that

when

an

act

must be done

within aspecified time, the court, with or

without

motion,

may

for good cause extend

the

time

if

arequest

is made before the

original

time extension expires.

Rule

6(b),

like all of the FRCP,

is

intended

to be liberally construed. Rodgers v. Watt,

722 F.2d

456,

459

(9th Cir.1983).

Consequently, requests for

extensions

of

time

made

before

the applicable deadline has passed

should normally

be

granted

in the

absence

of bad

faith. 4B Charles

Alan

Wright Arthur

R. Miller, Federal Practiceand Procedure § 1165

(3d

ed.2004).


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In this case, Defendant Carolyn Garrido wasserved with thePlaintiffs'

opening pleadings

on April

13,

2015. Defendant Governor Eddie Calvo

was

served

the

following day on April

14,

2015.

Under

Rule 12(a) and CVLR 7(f), the

time for

Defendants to

file

a response to the

Complaint

and the motions for summary judgment and

preliminary injunction

is

21

days

after

service, orMay4 and5, respectively.

During the

most of the time since

April 13,

Defendant Governor Calvo has been off-

island. Concurrently,

the

Office of

the

Attorney

General

advised

the

Defendants

that

itwould

not

be

able to

represent

them in these proceedings. As a

result of

these factors, as

well as

the press of

business, Defendants

have only

recently been

able

to

retain

independent

legal counsel

in

this

highly

complex and public case. On May 1,2015, Elizabeth

Barrett-Anderson,

Attorney General

of Guam,

appointed

myself as

a Special Assistant Attorney General for

the

purpose of

representing

Eddie

Baza

Calvo,

Governor

of Guam and

Carolyn Garrido, Registrar

in the

Office

of Vital Statistics in this matter

Defendants submit

that the

circumstances presented here

demonstrate

and

meet

the

good

cause

requirement of FRCP 6(b)(1). Defendants

request

that if the Court denies astay

of

these

proceedings,

then

in

the alternative, and pursuant to CVLR 7(g), that it grant Defendants an

extension

of time of

not less than 14 days

from

May

4

(or

at

least until May 18, 2014)

to

file

a

response

to the Plaintiffs

Complaint and motions. This request is not

being

made

to

delay these

proceedings,

but to

serve the

interests of

justice.

IV.

CONCLUSION.

Regardless of the outcome of

this motion

to stay or anything else that may happen

here, in the end

it will be

the United

States

Supreme Court

who will

have the

last say on

the

issues raised by

the Plaintiffs in their

Complaint.

Staying

this case

will promote judicial


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economy

because

there is no need for the

Court

to

decide a

question that is already under

consideration by

the

Supreme Court, and which will

very

shortly become

controlling, binding

authority on the Court, the parties, and

the

entire nation. Defendants will

follow

the orders of

thisCourt and those of the UnitedStates SupremeCourt.

For

all

of the foregoing reasons, Defendants respectfully request that

the

Court

exercise its discretion to stay the instant proceedings and

hold them

in abeyance. In the

alternative the Defendants request an extension of

time

of at

least up

until

May

18, 2015, to

file a response to

the

Plaintiffs Complaint

and

its accompanying motions

for

summary

judgment and

preliminary injunction.

Respectfully

submitted

this

4th day of May, 2015.

PHILLIPS

BORDALLO P.C.


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CERTIFICATE

OF SERVICE

I MICHAEL F.

PHILLIPS, hereby certify that

on May

4,

2015,1

caused to

be

served

personally a true

and correct copy of the

foregoing

Entry ofAppearance, Ex Parte Notice

and

Motion to

Hold

Case

in Abeyance, Memorandum ofPoints and Authorities

in

Support of

Motion to Hold Case in Abeyance

and

the Declaration ofMichael F. Phillips in Support of

Motion toHold

Case in

Abeyance to

the following

counsel:

Plaintiffs Kathleen M. Aguero and LorettaM. Pangelinan

Mitchell F.Thompson, Esq.

R. Todd Thompson, Esq.

Thompson Gutierrez

Alcantara,

P.C.

238Archbishop

Flores

Street, Suite

801

Hagatna, Guam96910

Tel: (671) 472-2089

Fax:

(671)

477-5206744-6476

William D. Pesch, Esq.

Guam FamilyLawOffice

173

Aspinall

Avenue, Suite 203

Hagatna, Guam 96910

Tel: (671)472-8472

Fax:(671)477-5873

Dated

this 4,h day ofMay, 2015.

PHILLIPS BORDALLO P.C.

By:

1

C 1 15 00009 D t 17 Fil d 05/04/15 P 10 f 10

1:15-cv-00009 #17

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