Supplement of Facts and Legal Analysis

Erik Strindberg (Bar No. 4154) Lauren I. Scholnick (Bar No. 7776) Kathryn Harstad (Bar No. 11012) Rachel E. Otto (Bar No. 12191) STRINDBERG & SCHOLNICK, LLC 675 East 2100 South, Ste. 350 Salt Lake City, UT 84106 Telephone: (801) 359-4169 Facsimile: (801) 359-4313 [email protected] [email protected] [email protected] [email protected]

John Mejia (Bar No. 13965) Leah Farrell (Bar No. 13696) AMERICAN CIVIL LIBERTIES UNION OF UTAH FOUNDATION, INC. 355 N. 300 W. Salt Lake City, Utah 84103 Telephone: 801.521.9862 Facsimile: 801.532.2850 [email protected] Joshua A. Block* ACLU LGBT Project 125 Broad Street, Floor 18 New York, New York, 10004 Telephone: (212) 549-2593 Facsimile: (212) 549-2650 [email protected] *Admitted pro hac vice

Attorneys for Plaintiffs

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH

CENTRAL DIVISION

Based upon a material change in the facts presented to the Court by the Attorney

General’s Office in connection with Plaintiffs’ motion for a preliminary injunction, Plaintiffs

submit the following supplement to their Motion for a Preliminary Injunction.

JONELL EVANS, et al.

Plaintiffs

v.

STATE OF UTAH, et al.,

Defendants.

[PROPOSED] SUPPLEMENT TO MOTION FOR PRELIMINARY

INJUNCTION

Case No. 2:14-cv-55 DAK

Case 2:14-cv-00055-DAK Document 32-1 Filed 04/10/14 Page 1 of 6

FACTUAL SUPPELEMENT

1. As previously noted, almost immediately after they married, Plaintiffs Matthew

Barraza and Tony Milner filed a petition to adopt their son, J., which as assigned to Judge Stone

of the Utah State Court. Their attorney during those proceedings was Shane Marx. (Marx

Declaration, ¶2 attached hereto at Exhibit A).

2. Also as previously noted, the Attorney General for the State of Utah filed a

position statement in those adoption proceedings, opining that the state court should stay the

proceedings until the Tenth Circuit decided the appeal in Kitchen. (This brief is attached as

Addendum C to Exhibit 1 of the Marx Declaration,)

3. In that that brief, the Attorney General declined to intervene in the proceedings,

instead opining that the court stay the proceedings or that Mr. Milner and Mr. Barraza should

voluntarily dismiss them. (See id.)

4. On March 12, 2014, during oral argument before this Court on Plaintiffs’ motion

for preliminary injunction, counsel for Defendants emphasized they had not intervened in the

adoption proceedings and instead simply supplied legal analysis in response to Judge Stone’s

invitation.

5. Judge Stone rejected the Attorney General’s arguments and ordered that Mr.

Milner should be allowed to adopt J. (The court’s order is attached as included as Addendum A

to Exhibit 1 to the Marx Declaration.)

6. On April 1, 2014, Mr. Marx went to Utah’s Department of Health, Office of Vital

Records (the “Department”) to obtain a new birth certificate for J. based on the Decree of

Adoption. (Marx Declaration, ¶6.) He presented the certified decree of adoption and report of

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adoption certified by the clerk of the court, either of which, by Utah regulation, is the only record

needed to amend a birth certificate based on an adoption. (Marx Declaration, ¶5.) He presented

the certified decree of adoption and report of adoption certified by the clerk of the court, which,

by Utah regulation, are the only records needed to create a new birth certificate based on an

adoption. (Id.) See Utah Administrative Code Rule R436-5. “New Birth Certificates After

Legitimation, Court Determination of Paternity, or Adoption” (“Unless the court order of

adoption or report of adoption specifies that a new birth certificate is not to be prepared, the State

Registrar shall prepare new birth certificate for a child born in this state upon receipt of a court

order of adoption or a court report of adoption certified by the clerk of the court and payment of

the required fee. The full name of the child to be entered on the new birth certificate shall be as

specified in the court order.”)

7. The registrar at the Department asked Mr. Marx for a copy of Mr. Barraza and

Mr. Milner’s marriage certificate. (Marx Declaration, ¶7). Because that document is not one

that is required to obtain a new birth certificate based on an adoption, he did not have that record

with him at that time. (Id.)

8. The registrar told Mr. Marx that she could not issue the new birth certificate

without the marriage certificate. (Id., ¶8.) Mr. Marx insisted she was incorrect and again

requested the amended birth certificate. (Id.) The registrar then contacted two attorneys from

the Utah Attorney General’s office.

9. After some discussion in which Mr. Marx reiterated his request, those attorneys

instructed the registrar not to issue the amended birth certificate for J., but that they would

contact Joni Jones from the Utah Attorney General’s office and contact Mr. Marx later that day

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or the following morning. (Id., ¶9.)

10. Mr. Marx did not hear from the Utah Attorney General’s office. (Id., ¶10.)

Instead, the Department served Mr. Milner and Mr. Barraza with a “Petition for Emergency

Extraordinary Relief” on April 7, 2014, in the Utah Supreme Court.. (Id. That petition is

attached as Exhibit 1 to the Marx Declaration.)

11. In that petition, the Department requests that they be relieved from recognizing

Mr. Milner's parental rights and the duty to issue J. an amended certificate because, the

Department asserts, complying with the decree of adoption granting parental rights would

require the Department to recognize Mr. Milner's marriage to Mr. Barraza. (Marx Declaration,

¶11.)

12. Mr. Barraza and Mr. Milner are required to respond to the petition by April 10,

2014. (Id., ¶12.)

13. On information and belief, Defendants have filed similar “Petitions for

Emergency Extraordinary Relief” in numerous other cases in which Utah state court judges have

allowed married same-sex couples to complete stepparent adoption proceedings.

SUPPLEMENTAL LEGAL ANALYSIS

Plaintiffs are confident that the Department lacks standing to challenge J.’s adoption, and

that the emergency petition will be denied on that basis. Nevertheless, for several reasons, the

foregoing events are relevant to Plaintiffs’ motion for a preliminary injunction:

First, Judge Stone of the Utah State Court rejected Defendants’ arguments to stay the

adoption proceedings, which are essentially identical to those made here. While Judge Stone’s

order is not necessarily res judicata, it is certainly persuasive authority in the instant case, and

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highlights the substantial likelihood that Plaintiffs will prevail on their state law claims.

Second, Defendants’ recent actions mark a dramatic expansion of their policy to refuse to

recognize Plaintiffs’ legally valid marriages. Defendants now claim the power, not only to

refuse to treat Plaintiffs’ and other legally married same-sex couples as married, but also to

refuse to carry out court orders if a factual predicate for the order is Plaintiffs’ marital status.

Third, Defendants’ recent actions directly contradict their assertions at oral argument that

they did not seek to intervene in Plaintiffs’ adoption proceedings and were simply providing

legal analysis.

Finally, as mentioned, Plaintiffs are confident that the Department lacks standing to

challenge J.’s adoption, and that the emergency petition will be denied on that basis. Yet whether

the Defendants prevail or not, by actively seeking to interfere with the final steps of their valid

adoption of J., Defendants are striking a blow at Mr. Milner and Mr. Barraza’s child and at their

very family structure, further violating their fundamental rights under the Fourteenth

Amendment to family integrity. Accordingly, Defendants continue to impose irreparable harm

on Mr. Barraza and Mr. Milner.

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For all these reasons, the Court should grant the preliminary injunction that Plaintiffs

seek.

DATED this 10th day of April 2014.

__________/s/________________

John Mejia

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Documents

Supplement of Facts and Legal Analysis