State officials in Utah same-sex marriage appeal ask Tenth Circuit for 10-day extension to file opening brief
January 17, 2014
State officials in Utah are asking the Tenth Circuit Court of appeals for a 10-day extension to file their opening brief in the Kitchen v. Herbert appeal. The request was anticipated by some, since the opening brief is due in ten days, and the state only hired its outside counsel for the marriage litigation yesterday. The appeal is on a very fast track in the Tenth Circuit, and briefing was expected to be completed late next month. The Tenth Circuit has said that any request for extension of time “are very strongly discouraged, and will be considered only under extraordinary circumstances.”
Citing the “requirements of state procurement law,” the state says in its request that it could only hire counsel yesterday. The state adds that “the Clerk of the Court indicated to Plaintiffs and State Defendants that the Court is considering extending each of the existing briefing deadlines by 2 or 3 days” and that would mean that even with an extension of time to file an opening brief, only 7-8 days would be added to the briefing schedule.
The request also notes the recent decision in district court in Oklahoma, striking down that state’s same-sex marriage ban. Bishop v. United States is on appeal, also to the Tenth Circuit. The state suggests the possibility that the Tenth Circuit may want to put the cases on a similar track, pointing out that “the Court may want to place the Utah and Oklahoma appeals on similar briefing and argument tracks to conserve judicial resources and the resources of amici who will have the same interests in both matters.”
EqualityOnTrial has also noted before that the Tenth Circuit posted a briefing schedule that allows briefing to be wrapped up shortly before the Tenth Circuit’s March oral argument schedule. The appeals court hears arguments from March 17-21. Today, the argument calendar for March 17-20 has been posted, and Kitchen v. Herbert is not yet listed. Presumably, the court could list it for March 21; otherwise, they’d hear the case in May.
If the 10-day extension request is granted, it may not affect the timing of oral arguments: briefs would still be filed well before March 21, the end of the March calendar.
Thanks to Kathleen Perrin for these filings
For more information on Kitchen v. Herbert from The Civil Rights Litigation Clearinghouse, click here.
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