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Mitchell F. Thompson, Esq.

R. Todd Thompson, Esq.

Thompson Gutierrez &

Alcantara ,

P.C.

238 Archbishop Flores Street, Suite 801

Hagatfia, Guam 96910

Telephone:

(671)472-2089

Facsimile:

(671)477-5206

William D. Pesch, Esq.

Guam F am il y L aw Of f i ce

173 Aspinall Avenue, Suite 203

Hagatfia, Guam 96910

Telephone: (671) 472-8472

Facsimile: (671)477-5873

Attorneys for Plaintiffs Kathleen M. Aguero and

Loretta M. Pangelinan

DISTRI T

OURT

OF

GU^M

Y

0 7

2 5

JEANNE G.

QUINATA

Clerk o f c o u r t

IN T H E

D I ST R IC T C O U R T

O F G U A M

TERRITORY OF

GUAM

KATHLEEN M. AGUERO a nd LORETTA

M. PANGELINAN,

Plaintiffs,

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,

Defendants.

CIVIL

CASE

NO. 15-00009

P L A I N T I F F S

O P P O S I T I O N

T O D E F E N D A N T S

M O T I O N

F O R

A

S T A Y

ORIGIN LCase 1:15-cv-00009 Document 21 Filed 05/07/15 Page 1 of 23

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II. DEFENDANTS' REQUEST FOR A 14-

DAY EXTENSION IS

UNTIMELY

AND

DISINGENUOUS

15

CONCLUSION

17


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TABLE OF

AUTHORIT IES

CASES

PAGE(S)

Am. Trucking Ass ns

v.

Smith.

496 U.S. 167 (1990) 11

Armstrong v. Brenner.

135 S. Ct. 890 (U.S. Dec.

19,2014)

13

Berry v. Epps.

506 F.3d 402 (5th Cir. 2007)

Campaign for S. Equal, v. Bryant.

2014 WL 6680570 (S.D. Miss. Nov. 25, 2014) 10

Conde-Vidal v. Rius-Armendariz,

No. 14-2184 (1st Cir. Apr. 14, 2015) 12

Condon v. Haley.

2014 WL 5897175 (D. S.C. Nov. 12, 2014) 14

DeBoer v. Snyder.

772 F.3d 388 (6th Cir. 2014) 3,

11

Does v. City

of

Indianapolis.

2006 U.S. Dist. LEXIS 72865 (S.D. Ind. Oct. 5,2006) 9

Elrod v. Burns.

427 U.S. 347 (1976) 10

Front ie ro v . Richardson.

411 U.S. 677 (1973) 3

Guzzo

v.

Mead.

2014 WL 5317797 (D. Wyo. Oct. 17,2014) 14

In re Ford Motor Co. Speed Control Deactivation Switch

Products Liab. Litie.. 664 F. Supp. 2d 752 (E.D. Mich. 2009),

order

clarified

on reconsideration (Jan. 4.2010) 11

Klein v. City o f

San Clemente ,

584 F.3d 1196(9th Cir. 2009) 10


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4

Kook v. Cate.

2013 WL 4041363

(CD.

Cal. June 14,2013) 4

Landis

v.

N. Am. Co..

299 U.S. 248 (1936) 6,7

Latta

v.

Otter.

771 F.3d 456 (9th Cir. 2014), pet. for reh gen banc denied,

779 F.3d902 (9th Cir. Jan 9,2015) passim

Lawson v.

Kelly.

No. 14-3779 (8th Cir. Apr. 29,2015) 12

Leyva

v. Certified

Grocers

o f California. Ltd..

593 F.2d 857 (9th Cir. 1979) 6

Loving v. Virg inia .

388 U.S.

1(1967)

3

Majors v. Home.

141 F. Supp. 3d 1313 (D. Ariz. 2014) 14

Marie v. Moser.

2014 WL 5598128 (D. Kan. Nov.

4,2014)

15

Martin

v.

Naval Cr iminal Investigative Serv. . (NCIS),

2012 WL 1570840 (S.D. Cal. May 3,2012) 10

McClellan v. Young.

421 F.2d 690 (6th Cir. 1970) 4

Metrophones Telecommunications. Inc. v. GlobalCrossingTelecommunications. Inc..

2003 WL 25511850 (W.D. Wash. Dec. 16, 2003), affd in part,

rev d

in part on other grounds. 423 F.3d 1056 (9th Cir. 2005),

affd. 550 U.S. 45 (2007) 5,11

Nelson

v.

NASA.

530 F.3d 865 (9th Cir. 2008) 10

Newsome v. Albermar le Cntv. Sch. Bd..

354 F.3d 249 (4th Cir. 2003) 10

Obergefell v. Hodges,

Docket 14-556(U.S. 2015) 1,2,12, 13

iv


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Strange v. Searcy.

135 S. Ct. 940 (U.S. Feb. 9, 2015) 13

Stuart v. Huff.

834 F. Supp. 2d 424 (M.D.N.C. 2011) 10

Tanford

v.

Brand,

883 F. Supp. 1231 (S.D. Ind. 1995) 10

U.S. v. Windsor.

U.S. , 133 S.Ct. 2675 (2013)

11

United States v.

Guam,

No. CV 02-00022,2013 WL 5809289 (D. Guam Oct.

29,2013),

appeal dismissed (Dec. 13,2013), appeal dismissed, 596 F. App'x

562 (9th Cir. 2015) 7, 8

Watson v. Memphis.

373 U.S. 526 (1963)

4,14

Yong v.

I.N.S..

208 F.3d 1116(9th Cir. 2000) 4

Zvme

Solutions.

Inc.

v. InfoNow Corp..

2013

WL

6699997 (N.D. Cal.

Dec. 19,2013) 6, 7

OTHER AUTHORITIES PAGE(S)

Martin Luther King, Jr., Letter from Birmingham Jail (1963) 4


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IN TR ODUC TION

This memorandum responds to and opposes the Defendants' May 4, 2015 Motion to

HoldCase in Abeyance (hereinafter Motion to Stay ).

The instant action is a civil

rights

case alleging that Plaintiffs have been

denied equal

protection and due process under federal law by being denied the right to marry. The facts are

undisputed. The sole issue in the case is the

legal

question of whether a jurisdiction within the

Ninth Circuit may permissibly deny a same-sex couple the right to marry solely based on the

gender of the members

of

the couple. That issue has already been squarely addressed and

disposed

of

by controlling Circuit precedent holding that laws barring same-sex couples from

marriage violate the equal protection guarantee

of

the Fourteenth Amendment. Latta v. Otter.

771 F.3d 456, 464-65 (9th Cir. 2014),

pet. for reh g en banc denied,

779 F.3d 902 (9th Cir. Jan

9,2015).

Based on this indisputably controlling Circuit authority and the Defendants' failure to

dispute any of the facts, or even the applicability of that authority, the instant case is capable of

immediate resolution. Contrary to the Defendants' assertion, there is nothing complex about

this case. Indeed, scores

of

courts have addressed this issue; and the overwhelming majority

of

them have held laws such as

Guam s

to be unconstitutional. More importantly, the issue at

hand involves fundamental constitutional rights and, as such, any further delay is itself a harm

inflicted on Plaintiffs and all those similarly situated.

Unable to dispute the applicability of controlling Circuit precedent to the instant case,

Defendants have regrettably resorted to delay tactics. They request a stay

of

these proceedings

pending a ruling from the U.S. Supreme Court in Obergefell v. Hodges. Docket 14-556 (U.S.

2015). Yet Defendants have utterly failed to meet their burden to show that a stay is warranted

1


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sufficient to

overcome

settled Circuit law and the

immediate

irreparable

injury

posed to

Plaintiffs' and other similarly situated

same-sex

couples currently being denied the

fundamental right to marry.

For these and other reasons, set forth below, Plaintiffs oppose the issuance of any stay;

and they renew their request for expedited resolution of their pending motions for summary

judgment and preliminary injunction.

P R O C E DU R A L P O ST U RE O F

C A S E

The instant action was initiated by a Complaint filed on April 13, 2015, which was

accompanied by a motion for summary judgment and a motion for preliminary injunctive relief,

together with supporting memoranda of law. On April 16, 2015, Plaintiffs filed a First

Amended Request for an Expedited Ruling on the pending motions based on intervening

developments, namely, the Attorney General of Guam's memorandum to Defendant

Department

of Public Health and Social Services advising that the holding in Latta v. Otter is

controlling law rendering Guam's statute prohibiting same-gender marriages unenforceable

until

such

time that the Supreme Court of the United States alters the holding of the Ninth

Circuit Courtof Appeals.

Meanwhile,

as

noted

in Plaintiffs'

April

16,

2015 filing,

Defendants

continue to enforce Guam's statutes purporting to restrict issuance of marriage licenses to

opposite sex couples until further notice.

The Defendants have yet to

answer

the Complaint. Neither have they responded to

Plaintiffs'

motion

for

summary

judgment, motion for preliminary injunctive relief, or First

Amended Request for an Expedited Ruling on the

pending

motions. Instead, on the date they

should have answered and responded, Defendants merely filed a motion to stay these

proceedings

pending

the outcome of Obergefell. or in the alternative, for a continuance of

14

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we

would,

of course, still be waiting.

Id.

Like so

many

others

before

them, For years now

[Plaintiffs] have heard the word 'Wait' . . . [But hjuman progress never rolls in on wheelsof

inevitability

[and]

time

itself

becomes

an

ally

of

the

forces

of social stagnation.

Id.

citing

Martin Luther King, Jr.'s Letter from Birmingham Jail (1963)). Accordingly, any

deprivation of constitutional rights calls for prompt rectification. Watson v. Memphis. 373

U.S. 526, 532 (1963).

Defendants have utterly failed to meet—or even discuss—their burden

of

showing their

entitlement to a stay of the proceedings in this case. Nor have they shown good cause for an

extension

of

time. As a result, Defendants' requests should be denied.

A. Whi le District Courts

have

Inherent

Discret ion t o

Manage their

Dockets,

District

Cour ts Canno t

Disregard

Bind ing Circu it Authori ty

Regardless o f

any Other

Pending Proceedings

Contrary to the Defendants' urgings, courts do not abdicate ruling on constitutional

issues just because the Supreme Court is poised to address the issue at a later date. As the

Ninth Circuit has observed, once a federal circuit court issues a decision on point, the district

courts within that circuit are

bound

to follow it and have no

authority

to await a ruling

by

the Supreme Court before applying the circuit court s decision as binding authority.

Yone v. I.N.S.. 208 F.3d 1116, 1119, n. 2 (9th Cir. 2000); Kook v. Cate. 2013 WL 4041363, at

*6 (CD. Cal. June 14, 2013) (denying stay where Supreme Court had granted certiorari

regarding

controlling

Ninth

Circuit

case

on

point because

this

Court

has 'no authority to

await

a

ruling

by the Supreme Court'

before applying

the

Ninth

Circuit's holding . . . ) quoting

Yong). See also

McClellan v.

Young. 421 F.2d

690,

691

(6th Cir.

1970)

(holding that district

judge was without authority to

defer action

in habeas corpus actions pending before him in

order to await a rulingby the Supreme Court inanothercase); Berryv. Epps, 506 F.3d402,405

4


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(5th

Cir. 2007)

(denying stay of execution

and dismissing inmate s Section

1983

civil

rights

action

challenging the constitutionality of

lethal

injection procedures, despite

Supreme

Court s

grant

of

certiorari

in

another

lethal

injection

case, because

circuit

precedent

remains

binding

until the

Supreme

Court provides contrary guidance ).

This

is

certainly

not the first time

parties

have urged a

court

to disregard

circuit

precedent

based

on uncertainty

about

the final outcome of a

legal issue.

In such cases, courts

invariably follow

circuit

authority and decline the invitation to guess about what

the

Supreme

Court might do. For example, one court dealt with such contentions as follows:

The parties agree that Greene[v. Sprint

Communications Co.,

340 F.3d 1047, 1052 (9th Cir. 2003),] is the governing law in

the present case, and also recognize that the filing

of

a petition

for certiorari does not change the binding effect

of

the Ninth

Circuit's decision on this Court.

While plaintiff argues

that

the Ninth Circuit

made the wrong decision in Greene,

there

is no authority for this Court to simply ignore it. See Yong

v.

INS

208 F.3d 1116, 1119 n. 2 (9th Cir. 2000);

Wedbush

Noble, Cooke, Inc. SEC,

714 F.2d, 923, 924 (9th Cir. 1983).

Yet

plaintiff asks

the Court

to do

just

that, based on its

assertion that the law in this area

is

not settled and

because the r n decision is still being appealed. Yet the

Ninth Circuit has already denied a petition for rehearing en

banc.

Further,

this

Court

does

not presume

to

know, nor

will it hazard a guess, as to what the U.S. Supreme Court

will or will not do if presented with a petition for certiorari.

What is certain is that

Greene

is the current controlling law of

the Ninth Circuit, and that is the law this Court must follow.

The Ninth Circuit has definitively decided the issue, the

motion is ripe for decision,and plaintiffs claim for a private

right

of

action under § 276 is dismissed.

Metrophones

Telecommunications.

Inc. v. Global Crossing

Telecommunications.

Inc..

2003

WL25511850, at *3 (W.D. Wash. Dec. 16,2003) (emphasis added),

aff

d in part, rev'd in part

on other

grounds.

423 F.3d 1056 (9th Cir. 2005), affd, 550 U.S. 45 (2007). The words

highlighted above apply with equal force in the instant case.

5


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Plaintiffs recognize

that courts generally enjoy discretion to

enter

a stay in an action

pending resolution of independent proceedings

which

bear upon the case.

See Levva

v.

Certified Grocers of California.

Ltd..

593

F.2d 857,

863

(9th

Cir.

1979).

However,

as the

U.S.

Supreme Court

established nearly eighty

years

ago,

that

discretion is not

unbridled.

A

party

seeking a stay basedon the outcomeof another case must makeout a clear case

of

hardshipor

inequity in being required to go forward, if there is even a fair possibility that the stay for

which he prays will work damage to someone else. Landis v. N. Am. Co.. 299 U.S. 248, 255

(1936). The high court continued,

[o]nly in rare circumstances will a lit igant in one cause

be compelled to

stand

aside while a litigant in another settles

the

rule

of

law

that

will

define the rights of both.

Landis. 299 U.S. at 255 (emphasis added). Defendants cannot

maintain that Landis is somehow outdated or inapposite, as they themselves rely on Landis. on

pages

3 and 4 of their

memorandum

of

law,

for the general proposition that [t]he decision to

stay proceedings

is

inherent and entirely within

the Court's discretion.

Defendants would

simply havetheCourtoverlook thepart ofLandis that undermines theirargument.

In

fact,

it is well settled in this Circuit that the mere pendency of related appellate

proceedings does

not

per

se

warrant a

stay.

Instead, use of the power to stay

calls for

the

exercise

of judgment, which must weigh

competing

interests and maintain an even balance.

Zvme Solutions. Inc. v. InfoNow Corp., 2013 WL 6699997, at *4 (N.D. Cal. Dec. 19, 2013).

Courts should consider the competing interests

which

will be affected by the granting or

refusal to grant a stay Among those competing interests are the possible damage which

may

result

from the granting of a stay, the hardship or inequity which a party

may suffer

in

being required to go forward, and the orderly course of justice measured in terms of the

simplifying or complicating of issues, proof, and

questions

of law which could be expected to

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result from a stay. Id. Defendants have utterly failed to address any such competing

interests

in the instant case. Since it is the Defendants

who

bear the

burden

of showing

entitlement to a stay, their silence alone warrantsdenial of their motion.

B.

As

in

the

Ordot

Dump

Case, t he S tay Reque st ed here

would

be Harmful

to Guam Residents

and

Delay

the

Government s Compliance with t he Law

ThisCourt is

well aware

of thecontrolling considerations to be

weighed

in a motion for

a stay, as it recently

faced

a rather similar

request

by the Governor's Office for a stay of

proceedings in another high-profile case. In the case popularly known on Guam as the Ordot

Dump Case, this Court rejected the Lieutenant Governor's request for a stay. Citing Landis.

this Court cautioned that if there is even a fair possibility that the stay ... will work damage to

someone else[,]' then the movant 'must make out a clear case

of

hardship or inequity in being

required to go forward.' United States v. Guam. No. CV 02-00022, 2013 WL 5809289, at *8

(D. Guam Oct. 29, 2013) (Per Tydingco-Gatewood, C.J.), appeal dismissed (Dec. 13, 2013),

appealdismissed. 596 F. App'x 562 (9thCir. 2015);

citing

Landis. 299 U.S. at 255. ThisCourt

denied the government's stay request in the Ordot DumpCase because there was more than a

fair possibility that the stay would work damage against the environment, the peopleof

Guam

and the UnitedStates, and because the government failed to clearly show that it would suffer

hardship

or inequity if required to go

forward. Id.

Indeed, this Court said in its Opinion and

Order:

. . . [A]fter weighing the competing factors, the court finds

that a stay

of

these proceedings is unwarranted. A stay

would

result

in

further environmental harm

and

ongoing violation

of

the Clean Water Act since the Ordot Dump will continue to

discharge untreated leachate into the Lonfit River. A stay

would also mean that the leachate discharges and uncontained

landfill gas will remain a public health hazard for the

surrounding residents.

Despite

claims

to

the

contrary,

th e

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Government

of Guam

will

no t

su ffer any hardsh ip or

inequity if

the procurements were allowed to proceed since

the

Receiver

h as s ufficie nt mon ie s w it hi n

the bond

issue -

within the original estimates that were made—to complete the

closure

of

the Ordot Dump.

Finally, a stay

would

not

further the orderly

course

of

justice but

would instead

delay the Government of Guam s compliance with the

Consent

Decree.

Id., at *12, (emphasis added).

Remarkably similar considerations compel the same result in the instant case. As in the

Ordot Dump case, the Governor's request to stay in the instant case is unwarranted because it

would result in further harm and ongoing violation

of

the fundamental right to marry of

Plaintiffs and other Guam same-sex couples, who will continued to be denied the rights and

privileges of marriage for so longas a stay

would remain

in effect. Similarly, [djespite claims

to the contrary, the Government of Guam will not suffer any hardship or inequity if marriage

licenses must be issued to same-sex couples. Finally, a stay would not further the orderly

course

of justice but

would instead delay

the Government of Guam's compliance with the

Ninth Circu it s c lea r manda te in

Latta.

C.

Defendants Have Failed

to

Meet their

Burden o f

Justi fying a Stay

As Plaintiffs have already demonstrated in their pending motion for preliminary

injunction, the Defendants in the instant action can

hardly

establish that they are likely to

succeed on the merits in view of bindingCircuit precedent against them. Nor can they show

that theyare likely to suffer irreparable harm in the absence of a stay, as the relief Plaintiffs

request (an injunction against denial of marriage licenses for Plaintiffs and other otherwise


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qualified same sex couples), imposes no undue burdens and in no way harms Defendants,

irreparably

orotherwise.

More importantly, because the constitutional rights to marry and equal protection

of

the

laws are at the center of the instant case, and because the conduct being engaged in by the

Defendants is directly at odds with controlling Circuit precedent, the balance

of

equities tips

not in Defendants' favor but rather in favor

of

Plaintiffs and other same-sex couples seeking to

marry now. Defendants will not be harmed by having to conform to constitutional

standards[.] Does v. City

of

Indianapolis. 2006 U.S. Dist. LEXIS 72865, at *29 (S.D. Ind.

Oct. 5, 2006). However, holding this case in abeyance would injure Plaintiffs, other same-sex

couples, and their children by exposing them to irreparable and continuing insecurity,

vulnerability, and stigma. As the Ninth Circuit recognized in Latta, marriage laws . ..

preventing same-sex couples from marrying and refusing to recognize same-sex marriages

celebrated elsewhere, impose profound legal, financial, social and psychic harms on numerous

citizens o f those states.

Latta, 771 F.3d

at

476.

The very purpose of marriage is to provide security in the face of anticipated and

unanticipated hardships and crises—e.g., in the face

of

death, aging, illness, accidents,

incapacity, and the vicissitudes of life. Same-sex couples wishing to marry are subjected to

irreparable harm every day they are

forced

to live without the security that marriage provides.

That harm is not speculative, but immediate and real.

Moreover, Defendants can hardly argue that issuing a stay is in the public interest. To

the contrary, the public interest tips strongly

against

any stay because deprivation

of

1 Plaintiffs incorporate the

arguments

made

in their Memorandum in Support of Motion

for

Preliminary Injunction.


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constitutional rights, for even minimal periods of time, unquestionably constitutes irreparable

injury. Elrod v. Burns. 427 U.S. 347, 373 (1976); Klein v. City

of

San Clemente. 584 F.3d

1196, 1207-08 (9th Cir. 2009) ( Both this court and the Supreme Court have repeatedly held

that '[t]he loss

of

First Amendment freedoms, for even minimal periods of time,

unquestionably constitutes irreparable injury.' ); Nelson v. NASA, 530 F.3d 865, 872-73 (9th

Cir. 2008). Surely, upholding constitutional rights serves the public interest. Newsome v.

Albermarle Cntv. Sch. Bd.. 354 F.3d 249, 261 (4th Cir. 2003). See also Stuart v. Huff. 834 F.

Supp. 2d

424,433

(M.D.N.C. 2011) ( [I]t is in the public interest for statutes that likely violate

fundamental constitutional rights be to enjoined from being enforced. ); Martin v. Naval

Criminal Investigative Serv.. (NCIS). 2012 WL 1570840, at *4 (S.D. Cal. May 3, 2012) ( The

public has an interest in the timely adjudication

of

alleged government misconduct. ).

Compared to the substantial harms suffered by Plaintiffs, other same-sex couples, and

their families, the balance

of

harms tips decidedly in Plaintiffs ' favor. Allowing same-sex

couples to marry

presents no harm to anyone. Campaign for S. Equal, v. Bryant. 2014 WL

6680570, at *40 (S.D. Miss. Nov. 25, 2014). Because the marriage ban is unconstitutional on

its face, governmental compliance with the Constitution always serves the common good.

Tanford v. Brand. 883 F. Supp. 1231,1237 (S.D. Ind. 1995). In sum, continued enforcement

of

an unconstitutional statute can never be in the public interest.

Defendants' memorandum is remarkable more for what it does

not

say than for

anything it says. Defendants maintain that judgment is premature in the instant case, yet they

failed to address numerous authorities cited by Plaintiffs from within this Circuit and elsewhere

for the proposition that expedited disposition is appropriate where the Circuit has resolved the

marriage issue. Simply put, [a] District Court is bound by the rulings

of

the Circuit Court in

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which it sits. In re Ford Motor Co. Speed Control Deactivation Switch Products Liab. Litig..

664 F. Supp. 2d 752, 761 (E.D. Mich. 2009), order clarified on reconsideration (Jan. 4, 2010).

See also,

Metrophones.

supra,

2003 WL 2551850, *3 (declining to guess about what the

SupremeCourt will do or will not do. ). And where enforcement

of

[a] statute has properly

been invalidated as unconstitutional, then so is enforcement of all ident ical s tatutes in other

States, whether occurring before or after our decision. Am. Trucking Ass'ns v. Smith. 496

U.S. 167, 175 (1990) (Scalia, J. concurring); see also U.S. v. Windsor. U.S. , 133 S.Ct.

2675, 2691 (2013) (striking down a federal law that discriminated against legally married

same-sexcouples, the Supreme Court emphasized that [s]tate laws

regulating marriage, of

course, must respect the constitutional rightsofpersons. ). Plaintiffs seek from this Court only

what Latta requires, which is a ruling enjoining the enforcement

of

laws that prevent same-sex

couples from marrying. 771 F.3d at 476.

D. Defendants Request for a

Stay of

th e Proceedings

in

this Case is at Odds

with

the

Actions

of

the N inth

Circuit and the Supreme

Cour t

Denying

Similar

Requests.

espite

the

Supreme

Court s

Consideration

of Obersefell

Defendants' only reason for staying the proceedings in this case is their misguided

speculation that theNinthCircuit

might have gotten

it wrongin Lattaand that this Courtshould

take pause based on contrary Sixth Circuit authority. While Defendants now concede that,

licensure

of

same-sex marriages is permitted in all

of

the U.S. States covered by the Ninth

Circuit, and that the Ninth Circuit dissolved the stay it placed in Latta. Defendants

nevertheless seek to justify a stay in the instant case based on the remarkably speculative

assertion that, it is not an unreasonable stretch to conclude that had the Sixth Circuit's decision

in DeBoer come out before October 15, 2014, when the Ninth Circuit dissolved the stay in

Latta. it is possible that the Ninth Circuit would not have dissolved the stays at all. Mem. at

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pp. 4, 6. But not only is such argument contrary to clear precedent showing that this Court is

bound by Latta.

supra,

it is also misleading.

Defendants cite to no case in which speculation similar to theirs justified imposition

of

a

stay

of

proceedings. They also cite to no case anywhere in the nation in which a trial court

sitting in a Circuit that has mandated marriage equality has issued a stay

of

further proceedings

based on a Circuit split or pending Supreme Court ruling. The only stays mentioned in

Defendants' memorandum are stays issued by Circuit courts staying appeals

challenging

decisions striking down marriage bans similar to Guam s, as well as that Circuit's binding

precedent holding the same. In other words, the stay the Defendants seek in the instant action

would do the exact opposite

of

what the Circuit courts did in such cases—maintain a status quo

directly at odds with Circuit authority.

Defendants concede that the Ninth Circuit and Supreme Court vacated stays of Latta

and other Circuit court rulings that upheld marriage equality. If the Supreme Court did not see

fit to stay these marriage equality rulings—thus effectively allowing thousands of same-sex

couples to freely marry in the affected Circuits—then why should this Court stay the instant

action, which would effectuate the opposite result—to prevent such couples from marrying

despite binding Circuit authority to the contrary?

Defendants also provide the Court with an incomplete picture of the actions taken by

the Ninth Circuit and Supreme Court since the Supreme Court began considering Obergefell.

For example, despite the fact that the invalidation of Montana's marriage ban in Rolando v.

2 While the

First and

Eighth

Circuits

have recently

delayed

oral

arguments

in

appeals

of

decisions

by district courtswithin such circuits pending the

Supreme

Court's resolution in Obergefell. neither of

those courts are presented with binding circuit authority unlike this Court and the Ninth and Fourth

Circuits.

See, e.g.,

Order, Conde-Vidal v. Rius-Armendariz. No. 14-2184 (1st Cir. Apr. 14, 2015);

Lawson v. Kelly. No. 14-3779 (8th Cir. Apr. 29, 2015).

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Fox.23 F. Supp. 3d

1227

(D.

Mont.

2014), onNovember 19, 2014, occurred nearly two weeks

after

the Sixth's Circuit decision in DeBoeron November6,2014, the Ninth Circuit at no point

has stayed the enforcement of the decision. Such a result, that same-sex couples in Montana

can now marry despite the circuit split created by DeBoer, is directly at odds with Defendants'

rank speculation.

Furthermore, Defendants completely fail to inform the Court about actions taken by the

Supreme Court that are directly at odds with their request. For example, on December 19,

2014, the Supreme Court denied a stay

of

the decision invalidating Florida's marriage ban even

though the Supreme Court was at the time considering the petitions for certiorari filed in

Obergefell. et al. as a result

of

the circuit split created by the Sixth Circuit. Armstrong v.

Brenner. 135 S. Ct. 890 (U.S. Dec. 19, 2014). Likewise, on February 9, 2015, the Supreme

Court denied to stay the decision

of

the district court invalidating Alabama's marriage ban

despite the fact that the Supreme Court had already granted

certiorari

in Obergefell weeks

earlier.

See

Strange v. Searcy. 135 S. Ct. 940 (U.S. Feb. 9, 2015) (denying stay); Obergefell v.

Hodges. 135 S. Ct. 1039 (U.S. Jan. 16, 2015) (granting petition for

certiorari .

This

acquiescence may well be seen as a signal

of

the Court's intended resolution[.] Strange. 135

S. Ct. at 941 (Thomas, J., dissenting).

There can be no dispute that this Court is bound by Latta. Defendants' mere and

misguided speculation about what the Supreme Court might or might not do, or about what the

Ninth Circuit might or might not have done, cannot serve to delay this Court's application of

the Ninth Circuit's clear and binding precedent. We live in the here and now, not in some

speculative world as Defendants would have this Court believe. The actions

of

the Supreme

Court and Ninth Circuit with regard to the issue at hand could not be clearer. The Ninth Circuit

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has already held that marriage bans like Guam's violate the constitutional guarantee

of

equal

protection. Likewise, since October 6, 2014, the Supreme Court has at every turn refused to

delay the application of decisions upholding the equality and dignity

of

same-sex couples with

regard to marriage, while only intervening to grant review of the sole decision by a circuit court

holding otherwise. The basic guarantees ofour Constitution are warrants for the here and now

and, unless there is an overwhelmingly compelling reason, they are to be promptly fulfilled.

Watson. 373 U.S. at 533. This Court should reject Defendants' delaying tactics and act

promptly to vindicate the constitutional rights

of

Plaintiffs and other same-sex couples in

Guam.

E.

Defendants Fail to Show why Expedited Relief Should Not

Instead

be

Granted

As Plaintiffs have pointed out, instead

of staying

this case, this Court would find itself

in good company if it

expedited

the matter and granted preliminary injunctive relief.

See

Majors v. Home.

141

F. Supp. 3d

1313

(D. Ariz. 2014) (promptly granting summary judgment

motions challenging Arizona's ban on marriage for same-sex couples just ten days after

issuance of the Ninth Circuit's opinion in Latta and refusing to stay its ruling).

Defendants do not dispute or even attempt to distinguish authorities cited by Plaintiffs

in which courts facing marriage-ban cases granted injunctive relief less than one month after

issuance of binding circuit authority on point.

See

Condon v. Haley. 2014 WL 5897175 (D.

S.C. Nov. 12, 2014) (granting injunctive relief and summary judgment regarding South

Carolina marriage ban less than one month after initiation of action); Guzzo v. Mead. 2014 WL

5317797

(D.

Wyo.

Oct. 17, 2014) (granting preliminary injunction enjoining enforcement of

Wyoming's ban on marriage for

same-sex

couples a mere ten days after the filing of the

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original complaint); Marie v. Moser. 2014 WL 5598128 (D. Kan. Nov. 4, 2014) (enjoining

enforcement

of

Kansas's ban on marriage for same-sex couples less than one month after the

commencement of the action [bjecause Tenth Circuit precedent is binding on this

Court... ).

Likewise, in the instant case, there is absolutely no principled reason to delay granting

injunctive relief in the face of controlling Ninth Circuit precedent on point. This case should

not be stayed; it should be

expedited.

II .

DEFENDANTS

REQUEST

FOR

A

14-DAY

EXTENSION

IS

U N T I M E L Y

A N D D I SI N GE N U O U S

Defendants appear to have a three-pronged strategy with respect to this case: Delay,

delay, and delay. As we have seen, instead

of

answering the Complaint and responding to the

motions on file, Defendants have moved for a stay. In the alternative, they ask the Court to

grant a 14-day extension to respond to the motions. For many

of

the same reasons stated

above, this alternative request should likewise be denied.

The apparent basis for the 14-day continuance request is the unsupported assertion that

the Governor has been off-island much lately; and thus he has not had enough time to consult

with

legal

counsel concerning this

very

important

matter.

Defendants do not say whether

Codefendant Garrido was similarly preoccupied.

Additionally, Defendants

maintain

that

they need

the extra two weeks because the

Attorney General

only appointed

counsel on May 1, 2015 to

serve

as a Special Assistant

Attorney General for the purpose of representing the Defendants. As a result, they maintain

that they have had insufficient time to prepare an answer and to respond to the pending

motions.

Thisclaim is disingenuous at best.

Media

statements

issued

by the Governor's office

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have consistently stated that the Governor's legal team has been carefully reviewing and

researching this controversy, as well as the Attorney General's response, for three full

weeks.3

Yet

despite this presumably intensive and careful review, the

Defendants

suddenly

claim to be flatfooted and speechless on the matter.

Moreover, it is manifest that the Defendan ts new counsel had

sufficient

time

to

research and draft several filings in support of the instant motion, including a 9-page

memorandum of law. Since Defendants state that they, do not take a position regarding any

of

Defendants' legal arguments (Mem. at p. 2), just what exactly would Defendants' counsel

have done with his time had he been appointed two weeks earlier? Indeed, given the

Defendants' reluctance to take any position on the merits of the instant controversy—except

that they are bound to follow statutory law—then just what would they do with the additional

14 days

if

the Court were to grant their motion? Defendants fail to say. In all likelihood,

Defendants would simply spend the extra time coming up with additional purported reasons for

kicking the judicial can down the road.

3

See Pacific

Daily

News, April 15, 2015, Update: Calvo-Tenorio

Administration

Defers

Decision onGayMarriage

( The administration said it 'respects the opinion of the

Arty.

Gen. Elizabeth

Barrett Anderson and that his legal team is reviewing and conducting research on the issue.' ); Pacific

Daily News, April 17, 2015,

Update:

Calvo:

More

Information Needed

for

Gay Marriage Decision

( I've instructed my legal team to research the issue... ); Pacific Daily News, April 17, 2015,

Update:

No DecisionbyPublicHealth Adelup on GayMarriage Issue

( Our legal team continues to research

the issue. ); Marianas Variety, April 17, 2015 ( The governor said he respects the Atty. Gen.'s opinion

and he currently has his legal team the reviewing the AG s position and further researching the

issue... ); Marianas Variety, April 21, 2015, Officials Urged to Comply with Same-Sex Law ( Gov.

Eddie Calvo has issued a statement saying he respects the Atty. Gen.'s opinion and he currently has his

legal team reviewing the AG's position and further researching the issue. ); Pacific Daily News, April

21, 20,

Calvo Still

Looking

Into It

( Oyaol Ngirairkl, director of communications for the governor's

office, said that his legal team is continuing to review the lawsuit. ); Pacific Daily News, April 24,

2015, States Issue Marriage Licenses Despite Appeals ( The governor, who's currently in California,

has tasked his legal team researching the issue. ).

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Rather than spending time preparing an opposition to the pending motions, Defendants

calculated that their best move was not to defend against the matter but to devote their energy

to delaying the proceedings for as long as possible. Having made that calculation, Defendants

must now live with the consequences.

C O N C L U S I O N

District Courts have no authority to await a ruling by the Supreme Court before

applying the Circuit Court's decision as binding authority. Yong. 203 F.3d at 1119, n.2. In

view

of

binding Circuit precedent directly on point, Defendants have failed to show any

principled reason to delay granting either summary judgment or preliminary injunctive relief.

The instant action should not be stayed. To the contrary, it should be expedited because

Plaintiffs are entitled to immediate injunctive relief. Defendants' motion for a stay and, in the

alternative, for an additional 14 days to respond to Plaintiffs' motions, should be DENIED.

Instead, Plaintiffs' motion for summary judgment should be GRANTED; and in the alternative,

Plaintiffs' motion for a preliminary injunction should beGRANTED immediately.

Respectfully submitted

this

th day

ofMay, 2015.

THOMPSON GUTIERREZ

&

ALCANTARA, P.C.

Attorneys for Plaintiffs Kathleen M. Aguero and

Loretta M. Pangelinan

R A ND A LL T O

P151047.RTT

17

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Documents