PLAINTIFFS' CONSOLIDATED REPLY BRIEF IN SUPPORT ...

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Mitchell F. Thompson, Esq. R. Todd Thompson, Esq. THOMPSON GUTIERREZ & ALCANTARA, P.C. 238 Archbishop Flores Street, Suite 801 Hagåtña, Guam 96910 Telephone: (671) 472-2089 Facsimile: (671) 477-5206 William D. Pesch, Esq. GUAM FAMILY LAW OFFICE 173 Aspinall Avenue, Suite 203 Hagåtña, Guam 96910 Telephone: (671) 472-8472 Facsimile: (671) 477-5873 Attorneys for Plaintiffs Kathleen M. Aguero and Loretta M. Pangelinan

IN THE DISTRICT COURT OF GUAM

TERRITORY OF GUAM KATHLEEN M. AGUERO and LORETTA ) CIVIL CASE NO. 15-00009 M. PANGELINAN, ) ) Plaintiffs, ) ) v. ) ) 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. ) )

PLAINTIFFS’ CONSOLIDATED REPLY BRIEF IN SUPPORT OF

MOTIONS FOR SUMMARY JUDGMENT AND PRELIMINARY INJUNCTIVE RELIEF

Case 1:15-cv-00009 Document 27 Filed 05/20/15 Page 1 of 13

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INTRODUCTION

This memorandum responds to the Defendants’ May 18, 2015 Memorandum of Points

and Authorities in Support of Defendants’ Opposition to a Preliminary Injunction and

Summary Judgment.

The time has come to resolve this case on the merits. By the date this matter is

scheduled to come on for hearing, June 5, 2015, the two courageous young women who

initiated this action, Plaintiffs Loretta Pangelinan and Kathleen Aguero (“Lo” and “Kate”), will

have been waiting nearly two full months since the date they attempted to turn in their marriage

license application at the DPHSS Office in Mangilao. Yet that does not tell the whole story. In

fact, Lo and Kate have been waiting to marry for several years. They have waited long enough.

So too have numerous other same-sex couples on Guam, who are legally entitled to nothing

more or less than what opposite sex couples here take for granted—to exercise the fundamental

right to marry the person they love on the island they love.

This Court has already considered and rejected the Defendants’ calls to “wait-and-see”

what the U.S. Supreme Court does, or does not do.1 Instead of delaying the case, this Court

made the decision to move the case forward, on an expedited basis, while granting the

Defendants’ alternative request for additional time to respond to the Plaintiffs’ Complaint and

motions for summary judgment and preliminary injunction. Defendants were granted an

additional 14 days to work on their answer and oppositions—for a total of 35 days. Yet,

1 First, Defendants sought a stay pending a ruling by the U.S. Supreme Court. Then, apparently

sensing defeat on that front, they volunteered an alternative suggestion (for the first time in their May 8, 2015 reply memorandum) that the Court issue a preliminary injunction but stay its ruling until the U.S. Supreme Court speaks. Reply Mem. at p. 3.


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despite the luxury of time, Defendants have come forward with little more than the same “wait-

and-see” arguments.

The time for delay is over. This Court’s May 8, 2015 Order made it plain that the Court

expected responses from Defendants on the merits of this controversy. Instead of such

responses, Defendants have provided what is tantamount to a “non-opposition” to the pending

motions, coupled with a suggestion that the Court enter declaratory relief in Plaintiffs’ favor

(but against unspecified persons other than themselves). The Defendants ignore the fact that

Plaintiffs have not filed any motion seeking mere declaratory relief (and neither have the

Defendants via a cross-motion). Instead, the motions now before the Court call for summary

judgment and, in the alternative, a preliminary injunction. Those motions remain unanswered.

Based on the Defendants’ failure to provide the Court any legitimate legal reason for

denying either of the two pending motions (or for disregarding the Ninth Circuit’s controlling

opinion in Latta v. Otter), Plaintiffs are filing the instant Reply ahead of schedule; and they

respectfully ask the Court to immediately GRANT Plaintiffs’ motion for preliminary injunctive

relief, as prayed for in their Complaint and motion papers, pending the June 5, 2015 hearing.

The Court should then GRANT their motion for summary judgment, either at the hearing or

expeditiously thereafter.

SUMMARY OF PROCEEDINGS

On May 8, 2015, the Court issued an Order (Doc. 24) denying Defendants’ motion for a

stay of these proceedings but granting Defendants an additional 14 days in which to respond to

the Complaint as well as to the Plaintiffs’ pending motions for summary judgment and

preliminary injunctive relief. The Order set an expedited briefing schedule on the motions and

set a hearing for June 5, 2015. Defendants responded on May 18, 2015, answering the


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Complaint and purportedly opposing summary judgment and preliminary injunctive relief.

This is the Plaintiffs’ reply brief with respect to the two pending motions.

LEGAL DISCUSSION

I.

DEFENDANTS HAVE FAILED TO SHOW WHY PRELIMINARY INJUNCTIVE RELIEF SHOULD NOT BE GRANTED IMMEDIATELY

A plaintiff seeking preliminary injunctive relief must establish “[1] that he is likely to

succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of

preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is

in the public interest.” Cutlip v. Deutche Bank Nat’l Trust Co. for Harborview Mortgage Loan

Trust Pass-Through Certificates 2007-7, 2015 WL 1928257, at *2 (N.D. Cal. Mar. 27, 2015)

citing Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20 (2008). See also

Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011) (“serious

questions going to the merits” and a balance of hardships that tips sharply towards the plaintiff

can support issuance of a preliminary injunction, so long as the plaintiff also shows that there is

a likelihood of irreparable injury and that the injunction is in the public interest).

As stated by a district court that recently granted a preliminary injunction under

virtually identical circumstances, “Defendants have not established they will suffer any harm,

let alone potential harm that outweighs the harm to Plaintiffs’ fundamental rights. Plaintiffs

have made a strong showing that their threatened injury outweighs any potential injury to

Defendants.” Guzzo v. Mead, 2014 WL 5317797, at *6 (D. Wyo. Oct. 17, 2014). For all the

reasons set forth in Plaintiffs’ April 13, 2015 memorandum supporting their motion for

preliminary injunctive relief, Plaintiffs have plainly met their burden under these standards.


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To briefly recap those reasons, based on the controlling law of this Circuit, as set forth

in Latta v. Otter, Plaintiffs “have shown a strong likelihood of success on the merits.” See

Guzzo v. Mead, 2014 WL 5317797, at *8 (D. Wyo. Oct. 17, 2014) (“Based upon [Tenth

Circuit rulings in] Kitchen and Bishop, Plaintiffs have shown a strong likelihood of success on

the merits.”).

As for “irreparable harm,” “[w]hen an alleged constitutional right is involved, most

courts hold that no further showing of irreparable injury is necessary.” Marie v. Moser, 2014

WL 5598128, at *20 (D. Kan. Nov. 4, 2014); quoting Kikumura v. Hurley, 242 F.3d 950, 963

(10th Cir. 2001) (quotation omitted).

In the instant case, the balance of harm manifestly tips in Plaintiffs’ favor. “[W]hen a

law is likely unconstitutional, the interests of those [whom] the government represents, such as

voters[,] do not outweigh a plaintiff’s interest in having [her] constitutional rights protected.”

Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1145 (10th Cir. 2013) (en banc)

(plurality) (internal alterations omitted), aff’d, 573 U.S. ––––, 134 S.Ct. 2751, 189 L.Ed.2d 675

(2014). Moreover, “[a]ll government officials have a duty to uphold the United States

Constitution . . .” Preferred Communications v. City of Los Angeles, 13 F.3d 1327, 1333 (9th

Cir. 1994).

As for the “public interest,” Plaintiffs cannot improve on the discussion of the matter

provided by another district court that recently granted an identical preliminary injunction

motion in a marriage ban case:

Last, the Court must determine whether granting an injunction would be adverse to the public interest. Here, competing considerations collide head-on. On one hand, “it is always in the public interest to prevent the violation of a party’s constitutional rights.” Hobby Lobby, 723 F.3d at 1145


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(quoting Awad, 670 F.3d at 1131–32). On the other hand, the public interest values enforcement of democratically enacted laws. This latter value must yield though, when binding precedent shows that the laws are unconstitutional.

Marie v. Moser, 2014 WL 5598128, at *21 (emphasis added). Clearly the public interest favors

following binding precedent, particularly when, as here, constitutional rights are at stake.

In opposing a motion for preliminary injunctive relief, Defendants had the obligation to

make similar showings to the contrary. Needless to say, Defendants failed to meet their burden

in this regard. Specifically, nothing in Defendants’ Opposition memorandum demonstrates

“[1] that Defendants are likely to succeed on the merits, [2] that Defendants are likely to suffer

irreparable harm by issuance of an injunction, [3] that the balance of equities tips in

Defendants’ favor, or [4] that an injunction is contrary to the public interest.” See e.g., Winter,

555 U.S. at 20.

This case has now been pending for more than a full month. Defendants have not

disputed or even attempted to distinguish authorities cited by Plaintiffs in which courts in

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 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

“[b]ecause Tenth Circuit precedent is binding on this Court . . . .”).


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Opponents of preliminary injunctions are not entitled to evidentiary hearings as a matter

of right. “Rather, . . . the purpose of Rule 65’s notice requirement is to provide the party

opposing the preliminary injunction with a ‘fair opportunity to oppose the application and to

prepare for such opposition.’” McDonald’s Corp. v. Robertson, 147 F.3d 1301, 1311 (11th Cir.

1998), quoting Granny Goose Foods, Inc. v. Brotherhood of Teamsters, 415 U.S. 423, 432 n. 7,

94 S.Ct. 1113, 39 L.Ed.2d 435 (1974). “So long as these goals are met, Rule 65 does not

require an evidentiary hearing.” Id. In the instant case, Defendants have had ample “notice

and opportunity” (more than 35 days as of this writing) to oppose the preliminary injunction

motion. They have come forward with nothing. In fact, their briefing to date has provided no

inkling whatsoever as to any evidence or argument Defendants might present at the June 5,

2015 hearing that could possibly affect the outcome of the preliminary injunction motion.

Having failed to address, much less meet, their burden of opposing preliminary

injunctive relief, there is absolutely no principled reason to delay granting injunctive relief in

the face of controlling Ninth Circuit precedent on point. Each day that passes is another day

that Plaintiffs, and those similarly situated, are denied the fundamental rights, privileges and

responsibilities of marriage. Plaintiffs respectfully ask this Court to grant them immediate

preliminary injunctive relief, as prayed for in their Complaint and motion papers, pending the

June 5, 2015 hearing or a subsequent ruling on their companion summary judgment motion.

II.

DEFENDANTS HAVE ALSO FAILED TO MEET THEIR BURDEN OF OPPOSING DEFENDANTS’ SUMMARY JUDGMENT MOTION

Summary judgment is appropriate when “there is no genuine issue as to any material

fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P.


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56(c). The movant bears the initial burden of demonstrating that summary judgment is

appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set

forth specific facts showing that there is a genuine issue for trial. Celotex Corp. v. Catrett, 477

U.S. 317, 322, 23 (1986). Defendants, as non-movants, have utterly failed to meet their burden

of opposing summary judgment in the instant case.

Everything Plaintiffs wrote in their April 13, 2015 memorandum supporting their

summary judgment motion remains true today. The material facts are undisputed. The

controlling law is undisputed. The issues could not be clearer. Frankly, neither could the

outcome. In opposing summary judgment, Defendants needed to come forward with disputed

questions of material fact or disputed legal issues. Yet Defendants offered nothing but rhetoric.

Tellingly, Defendants did not even dispute that Guam’s marriage license ban for same sex

couples is the functional equivalent of numerous similar bans struck down by the Ninth Circuit

and its subordinate district courts.

Defendants do not suggest that the factual record before the Court is insufficient to

allow for summary judgment at this time. Neither do they point to any specific disputed issues

material to a decision in this case for which any further evidence is necessary. Defendants do

not maintain that discovery is needed; and they failed to request any relief from summary

judgment based on FRCP Rule 56(d).2 Having failed to do any of these things, Defendants

2 Under Rule 56(d), a party seeking relief must show “(1) that they have set forth in affidavit

form the specific facts that they hope to elicit from further discovery, (2) that the facts sought exist, and (3) that these sought-after facts are ‘essential’ to resist the summary judgment motion.” State of California v. Campbell, 138 F.3d 772, 779 (9th Cir. 1998). The movant “must show how additional discovery would preclude summary judgment and why a party cannot immediately provide ‘specific facts’ demonstrating a genuine issue of material fact.” Mackey v. Pioneer Nat. Bank, 867 F.2d 520, 524 (9th Cir. 1989). Moreover, even newly filed complaints do not justify Rule 56(d) relief if the discovery sought would be futile or the party seeking it fails to make a sufficient showing of what he intends to


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cannot be heard to complain that summary judgment is now premature. Quite simply,

Defendants have completely failed to meet their burden of opposing summary judgment; and

accordingly summary judgment should be entered in Plaintiffs’ favor forthwith.

III.

DEFENDANTS’ SUGGESTION THAT THE COURT INSTEAD GRANT DECLARATORY RELIEF IS UNRESPONSIVE AND DISINGENUOUS

The motions currently before the court call for summary judgment and for preliminary

injunctive relief. As we have seen, Defendants essentially ignored those motions. Instead,

Defendants have suggested, at pages 2 and 3 of their Opposition memorandum, that the Court

grant only declaratory relief. Specifically, Defendants maintain: “[T]here does not appear to be

a reason why these proceedings could not have proceeded exclusively as a complaint for

declaratory relief and without requiring Defendants to agree or disagree with Plaintiffs’

contentions.” Id. The answer to this contention is threefold: (1) The motions before the court

do not seek mere declaratory relief, and Defendants have not cross-moved for such relief; (2)

Defendants admitted in their answer that they are responsible for enforcing Guam’s laws,

including marriage laws3; and (3) Defendants are, respectively, the person who refused to

accept Plaintiffs’ marriage license application on April 8, and the person who has subsequently

ordered DPHSS not to accept such applications from any same-sex couples “until further

accomplish. See Burlington Northern Santa Fe R. Co. v. Assiniboine and Sioux Tribes of Fort Peck Res., 323 F.3d 767, 774 (9th Cir. 2003).

3 See Defendants’ Answer (May 18, 2015) (Doc. 25) at ¶¶ 11, 12 (Admitting Governor’s capacity and responsibility as alleged in Complaint as responsible for upholding laws and overseeing agencies and Registrar’s responsibility for issuing marriage licenses).


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notice.” If Defendants are not defending Guam’s same-sex marriage ban, then who is?

Defendants fail to say.

Defendants cite no authority for the proposition that a sitting Governor and the

Registrar of the agency that issues marriage licenses are unnecessary parties to the resolution of

a marriage equality case. In fact, the Court can take judicial notice of the fact that many, if not

most, of the marriage ban cases cited in Plaintiffs’ briefs have included such officials as the

main defendants. See e.g. Latta v. Otter, 771 F.3d 456 (9th Cir. 2014) (Idaho Governor and

County Recorder named as primary defendants). Frankly, the Defendants’ suggestion to the

contrary is so disingenuous and unavailing that it is hard to know where to begin refuting it.

Perhaps, then, the best place to start is at the top, with the recent ruling of the U.S. Supreme

Court in Hollingsworth v. Perry, 570 U.S. —, 133 S. Ct. 2652, 186 L. Ed. 2d 768 (2013).

In Hollingsworth v. Perry, the Governor and Attorney General of California refused to

defend Proposition 8, the initiative that effectively banned marriage for California’s same-sex

couples. Finding that the private parties who intervened in that action lacked standing to

maintain the litigation, the Supreme Court stated that, “[w]e have never before upheld the

standing of a private party to defend the constitutionality of a state statute when state officials

have chosen not to. We decline to do so for the first time here.” Id., 133 S. Ct. at 2668.

In the instant case, it is notable that Attorney General Barrett-Anderson has publicly

refused to defend the Guam statute in question. Now, in their purported “Opposition” brief,

Guam’s Governor and Vital Statistics Registrar are also seemingly washing their hands of any

obligation to defend the statute.


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As the Hollingsworth court stated:

No one doubts that a State has a cognizable interest “in the continued enforceability” of its laws that is harmed by a judicial decision declaring a state law unconstitutional. Maine v. Taylor, 477 U.S. 131, 137, 106 S.Ct. 2440, 91 L.Ed.2d 110 (1986). To vindicate that interest or any other, a State must be able to designate agents to represent it in federal court. See Poindexter v. Greenhow, 114 U.S. 270, 288, 5 S.Ct. 903, 29 L.Ed. 185 (1885) (“The State is a political corporate body [that] can act only through agents”). That agent is typically the State’s attorney general. But state law may provide for other officials to speak for the State in federal court, as New Jersey law did for the State’s presiding legislative officers in Karcher. See 484 U.S., at 81–82, 108 S.Ct. 388.

Hollingsworth v. Perry, 133 S. Ct. at 2664. Based on Hollingsworth, it is apparent that the

Defendants proper parties to this action. Inasmuch as Defendants have appeared, answered the

Complaint, and do not deny their capacity as government actors responsible for enforcing

Guam’s marriage laws,4 then Defendants are clearly proper parties-defendant, who must either

contest this case or not. In fact, since Defendants failed to identify any other “agent” suitable

to defend the constitutionality of the statute, they are the only parties whose presence can afford

the complete relief Plaintiffs are seeking.5

During the pendency of the instant case, the Defendant Governor has been consistently

trumpeting his solemn obligation to defend the laws of Guam until such time as the Legislature

4 See Defendants’ Answer (May 18, 2015) (Doc. 25) at ¶¶ 11, 12 (Admitting capacity and

responsibility of Governor as alleged in Complaint as responsible for upholding laws and overseeing agencies).

5 Courts do not sit to grant declaratory relief in a vacuum. “[W]here a plaintiff seeks injunctive or declaratory relief and a third-party has an enforceable interest in the subject matter of the dispute, the court cannot grant complete relief in the third party’s absence.” Wright v. Incline Vill. Gen. Imp. Dist., 597 F. Supp. 2d 1191, 1206-7 (D. Nev. 2009).


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or the voters should decide to change them.6 It is on that purported basis that the Governor has

steadfastly refused to follow the advice the Attorney General and has instead instructed the

DPHSS Registrar to refuse to accept marriage license applications from any same-sex

applicants, an instruction that stands to this day.

Yet now, in their Opposition, the Defendants suddenly claim that they have no role to

play in the instant action. After all, they maintain, they did not “participate [ ] in the formation

of this local statute,” . . . “neither [of them] voluntarily chose to be involved in this dispute,”

and they “do not have personal knowledge of most facts allege [sic] . . .” Opposition at p. 2.

Yet, in reality—as nearly everyone on Guam now knows—it is only the Defendants who for

nearly two months have been standing between the Plaintiffs and the relief they seek in this

action. In fact, the Defendant Governor has publicly stated that absent a court order he will not

allow same-sex couples to marry.7 Given these facts, it is beyond disingenuous for Defendants’

counsel to suggest in court filings that his clients have no interest in the outcome of this case.

Defendants claim they should not be part of this action because they did not

“voluntarily cho[o]se to be involved in this dispute.” Actually, yes they did. If Defendants had

simply granted Plaintiffs a marriage license on April 8, then this action would have never been

6 KUAM.com, May 12, 2015 Calvo Maintains More Research Needed into the Same-Sex Marriage (“his obligation as the governor of Guam is to faithfully execute the laws of Guam to the best of his ability”); KUAM.com, April 15, 2015, Guam AG Clears the way for Same-Sex Marriages (“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, and the Guam Legislature[ ] can take action to change the law, or a referendum can be held giving the people of Guam a direct voice in this issue”); KUAM.com April 29, 2015, Governor to give District Court his position on same-sex marriage (“ . . . and right now we are in compliance with local law”).

7 See PacificNewsCenter.com, May 7, 2015, Governor Calvo: Marriage is Not Civil Right (“Governor Calvo says he will remain firm on his stance on gay marriage, noting that it’s the local laws of Guam he’s pressed to follow.”); KUAM.com, April 13, 2015, Same-sex couple wanting to marry files suit in District Court (Governor’s Office statement: “ . . . [U]nless the law is changed by the Legislature, or unless a judicial edict is issued declaring the Guam law to be inorganic or unconstitutional, he believes the Department of Public Health should continue to enforce the law as written.”).



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