COLORADO SUPREME COURT

Colorado State J udicial Building

2 East 14th Avenue
Denver, CO 80203







COURT USE ONLY


________________________

Case No. 2014SA000212



Appeal from District Court, Adams County,
Colorado
Hon. C. Scott Crabtree
Case No. 13CV32572
APPELLANTS: STATE OF COLORADO, et al,

APPELEES: REBECCA BRINKMAN, et al.

Attorneys for Jefferson County:
J EFFERSON COUNTY ATTORNEY
ELLEN G. WAKEMAN, #12290
Writer Mott, #33148
David Wunderlich, #39365
Assistant County Attorney
J efferson County Attorney's Office
100 J efferson County Parkway, #5500
Golden, CO 80419-5500
Phone: 303-271-8932
Fax: (303) 271-8901
wmott@co.jefferson.co.us
dwunderl@co.jefferson.co.us


JEFFERSON COUNTY CLERK AND RECORDERS, DOUGLAS
COUNTY CLERK AND RECORDERS, LA PLATA COUNTY CLERK
AND RECORDERS, ARAPAHOE COUNTY CLERK AND RECORDERS,
AND MESA COUNTYS CLERK AND RECORDERS AMICUS BRIEF IN
RELATION TO THE ATTORNEY GENERALS EMERGENCY MOTION
FOR INJUCTION PENDING APPEAL


DATE FILED: July 16, 2014 2:43 PM
FILING ID: EE3F13ED3BBE1
CASE NUMBER: 2014SA212
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Interested Third Parties, J efferson County Clerk and Recorder Pam
Anderson, Douglas County Clerk and Recorder J ack Arrowsmith, La Plata County
Clerk and Recorder Tiffany Lee Parker, Arapahoe County Clerk and Recorder
Matt Crane, and Mesa County Clerk and Recorder Sheila Reiner (collectively, the
Interested Clerks), by and through counsel, respectfully request this Court issue
an order on the Attorney Generals Emergency Motion for Injunction Pending
Appeal (the Injunction Motion) providing guidance to the County Clerks
regarding the issuance of marriage licenses for same-sex couples in Colorado.
The legal landscape governing the rights of same-sex couples to be married
in Colorado has dramatically shifted in the last few months in light of the trial
courts decision in this case, the decision of the Tenth Circuit Court of Appeals in
Kitchen v. Herbert, No. 13-4178, 2014 WL 2868044 (10th Cir. 2014) (striking
down Utahs ban on same-sex marriages), and the decision of the Boulder District
Court denying the Attorney Generals request to enjoin the Boulder County Clerk
and Recorder from issuing same-sex marriage licenses in Colorado v. Hall, No.
14CV30833 (Boulder Cnty. Dist. Ct. J uly 10, 2014). These decisions have created
uncertainty amongst the county clerks about the propriety and legality of issuing
same-sex marriage licenses and have resulted in a patchwork of inconsistent
policies and procedures, with some county clerks issuing same-sex marriage
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licenses and others waiting for more definitive and binding precedent to resolve
this constitutional issue.
The Interested Clerks are separately elected County Officials who are
statutorily responsible for issuing marriage licenses in accordance with State law.
See Colo. Const. Art. 14, Sec. 8 (creating the office of County Clerk and
Recorder); C.R.S. 14-2-106 (establishing a non-discretionary duty upon county
clerks to issue marriage licenses if certain state requirements are met). The county
clerks in issuing marriage licenses act in a ministerial role enforcing state law. See
Echols v. Parker, 909 F.2d 795, 801 (5th Cir. 1990) (A county official pursues his
duties as a state agent when he is enforcing state law or policy.); Bethesda
Lutheran Homes & Services, Inc. v. Leean, 154 F.3d 716, 718 (7th Cir. 1998)
(When the municipality is acting under compulsion of state or federal law, it is the
policy contained in that state or federal law, rather than anything devised or
adopted by the municipality, that is responsible for the injury.). See also
Injunction Motion, pg. 8 (By definition, the issuance of marriage licenses is a
ministerial act. Under the Uniform Marriage Act, County Clerks are given the
power to issue licenses by the State on behalf of the State, but only if the
requirements set by the state are met.).
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The Interested Clerks are now confronted with several State and Federal
Court decisions, including the trial court decision in this case, holding Colorados
constitutional and statutory prohibitions against same-sex marriage to be
unconstitutional, casting doubt on the continued legality and enforcement of
Colorados same-sex marriage ban. However, none of these reported decisions
constitute a final, binding order on the county clerks on this issue as all of the
decisions have been stayed pending appeal.
The Interested Clerks, therefore, seek affirmative guidance from this Court
and are hopeful that this Court will provide clear direction to the county clerks
regarding whether they should begin issuing same-sex marriage licenses or
whether they should, as advocated by the Attorney General, be enjoined from
issuing same-sex marriage licenses pending a final determination on the merits of
this appeal. An order addressing this single issue will allow the county clerks to
once again uniformly and consistently issue marriage licenses throughout the State
and would provide much needed clarification on this important issue of state and
constitutional law.
The Injunction Motion provides this Court with the important and historic
opportunity to provide direction and clarity to the county clerks, as well as to the
public at large, as to whether the county clerks should or should not be issuing
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same-sex marriage licenses in Colorado. The Interested Clerks respectfully request
that this Court, in its order addressing the Injunction Motion, provide explicit
direction to the county clerks to either begin issuing same-sex marriage licenses or,
in the alternative, cease issuing marriage licenses pending final determination of
the merits of this appeal challenging the constitutionality of Colorados ban on
same-sex marriage.

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Dated this 16th day of J uly, 2014.

J EFFERSON COUNTY ATTORNEY
ELLEN G. WAKEMAN


s/ David Wunderlich
David Wunderlich, #39365
Writer Mott, #33148
Assistant County Attorney
100 J efferson County Parkway, Suite 5500
Golden, CO 80419
Telephone: 303-271-8932
dwunderl@co.jefferson.co.us
wmott@co.jefferson.co.us

MESA COUNTY ATTORNEY


s/ Andrea Nina Atencio
Andrea Nina Atencio, #33351
Assistant County Attorney
P.O. Box 20,000
Grand J unction, CO 81502
Telephone: 970-244-1612
Nina.atencio@mesacounty.us

DOUGLAS COUNTY ATTORNEY
LANCE INGALLS

s/ Kelly Dunnaway
Kelly Dunnaway, #31896
Deputy County Attorney
100 Third Street
Castle Rock, CO 80104
Telephone: 303-660-7414
KDunnawa@douglas.co.us
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LA PLATA COUNTY ATTORNEY
SHERYL ROGERS

Sheryl Rogers
Sheryl Rogers, #20962
County Attorney
1099 Main Ave, Suite 313
Durango, CO 81301
Telephone: 970-382-8600
rogers@lpcattorney.org

ARAPAHOE COUNTY ATTORNEY
RON CARL

s/ John Cristofferson
J ohn Cristofferson, #35292
Assistant County Attorney
5334 S. Prince Street
Littleton, CO 80120


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CERTIFICATE OF SERVICE

I hereby certify that on the 16th day of J uly, 2014, I filed the foregoing
JEFFERSON COUNTY CLERK AND RECORDERS, DOUGLAS
COUNTY CLERK AND RECORDERS, LA PLATA COUNTY CLERK
AND RECORDERS, ARAPAHOE COUNTY CLERK AND RECORDERS,
AND MESA COUNTYS CLERK AND RECORDERS AMICUS BRIEF IN
RELATION TO THE ATTORNEY GENERALS EMERGENCY MOTION
FOR INJUCTION PENDING APPEAL via ICCES and served as follows:

Michael Francisco
Leeann Morrill
Dan D. Domenico
Attorney Generals Office
1300 Broadway, 10th Floor
Denver, CO 80203
Michael.francisco@state.co.us
Leeann.morrill@state.co.us
Dan.domenico@state.co.us

Ralph Ogden
M. Anne Wilcox
Wilcox & Ogden, P.C.
160 Lafayette Street
Denver, CO 80218
irishcorky@aol.com

Professor Thomas Russell
1001 16
th
St. B180 #175
Denver, CO 80265
Tdrlaw@comcast.net

J ohn J . McHugh
Anthony L. Giacomini
Amy R. Gray
Michael Kotlarczyk
Tess Hand-Bender
J ason M. Lynch
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Reilly Pozner LLP
1900 16th Street, Suite 1700
Denver, CO 80202
jmchugh@rplaw.com
agiacomini@rplaw.com
agray@rplaw.com
mkotlarczyk@rplaw.com
thandbender@rplaw.com
jlynch@rplaw.com

Marcus Lock
Law of the Rockies
525 North Main Street
Gunnison, CO 81230
mlock@lawoftherockies.com

Ann Gushurst
Gutterman Griffiths P.C.
10375 Park Meadows Blvd., Suite 520
Littleton, CO 80124
ann@ggfamilylaw.com

Heidi M. Miller
J ennifer D. Stanley
Adams County Attorneys Office
4430 South Adams County Parkway
5th Floor, Suite C5000B
Brighton, CO 80601-8206
hmiller@adcogov.org

J ack Finlaw
Benjamin Figa
Governors Office of Legal Counsel
121 State Capitol
Denver, CO 80203
J ack.finlaw@state.co.us
Ben.figa@state.co.us

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Wendy J . Shea
Denver City Attorneys Office
Litigation Section
201 West Colfax Avenue, Dept. No. 1108
Denver, CO 80202-5332
Wendy.shea@denvergov.org

Michael J . Norton
Alliance Defending Freedom
7951 E. Maplewood Avenue, Suite 100
Greenwood Village, CO 80111
mjnorton@alliancedefendingfreedom.org

Byron J . Babione, Pro Hac Vice
David Austin R. Nimocks, Pro Hac Vice
Alliance Defending Freedom
15100 N. 90th Street
Scottsdale, AZ 85260
Facsimile: 480-444-0025

/s/ Briana McCarten

Briana McCarten, Paralegal