New Utah AG: Cost to defend same-sex marriage ban worthwhile

Utah Attorney General Sean Reyes, sworn into office Monday, barely had time to repeat the oath of office before having to field a flurry of questions about what strategy the state will pursue in its effort to defend a ban on same-sex marriage.

An application for stay likely will be filed Tuesday with the U.S. Supreme Court, Reyes said about five minutes after he officially became the state's top law officer. The state had hoped to make the request by Monday but was still evaluating additional outside counsel to assist the legal effort. Reyes declined to name the firm or firms the state is considering hiring.

Brian Tarbet, who served as interim Attorney General until Monday, also declined to name who the state is considering hiring but on Monday said its negotiations may resolve over night.

However, Tarbet revealed that Monte N. Stewart, a Boise attorney and founding president of the Utah-based Marriage Law Foundation, has helped the state craft its legal theory so far and will be the attorney of record on the stay application. Stewart also will assist the state with its appeal to the 10th Circuit Court of Appeals in what could be an estimated $2 million legal battle over Amendment 3.

This will be the state's fifth attempt to stay the Dec. 20 ruling by U.S. District Court Judge Robert J. Shelby, which found Utah's ban on same-sex marriage to be unconstitutional. The state made three requests to the 10th Circuit Court of Appeals and one request to Shelby, which were all turned down.

Reyes, selected by Utah Gov. Gary Herbert as the state's Attorney General last week, replaces John Swallow, who resigned under allegations of wrongdoing.

Reyes said that whatever the price tag, the expense of defending Amendment 3, approved by 66 percent of voters in 2004, will be worth it.

"We're willing to spend whatever it takes to protect the laws and the will of the people," he said. "Our commitment to the people is if we don't have [expertise] internally, we'll find the best to represent the state."

Herbert met with Reyes Monday afternoon to review the state's options and strategy. He said it was important to ensure that whatever money is spent is "well spent" and "appropriate.

"This issue deserves a good discussion and good airing," Herbert said. "The important thing is we have a democratic process, a judicial process, that needs to be complete. All people on all sides of this issue want to have it complete so it's resolved. Whether it is resolved the way we all want, who knows?"

Reyes said he anticipates the support of Herbert and the Utah State Legislature as he continues through the judicial process.

The application for a stay will be handled by Justice Sonia Sotomayor, who oversees the 10th Circuit. She now will decide whether to make a decision on her own or refer the request to the entire court — which some legal experts say is more likely.

If Sotomayor makes a decision on her own, the losing party could then ask for reconsideration from another justice, who would then by custom refer it to the whole nine-member court. It takes five "yes" votes for a stay to be granted.

On Monday, the 10th Circuit posted a revised briefing schedule for Utah's appeal. The state has until Jan. 27 to file its brief, while the plaintiffs who challenged the same-sex marriage ban have until Feb. 18 to respond. The state will then have until Feb. 25 to reply to the plaintiff's arguments. The court said it "strongly discouraged" any requests for time extensions, which it said "will be considered only under extraordinary circumstances."

Reyes said recent cases heard by the U.S. Supreme Court will aid the state because they give "tremendous deference to the state in making those decisions about what the definition of the family is."

Yet, he added, "I don't think the Supreme Court in those cases that were referenced [Proposition 8 and Windsor] did us a tremendous service by failing to squarely address this issue," he said.

"And because of that, they left open interpretation not only by Judge Shelby but other federal judges," Reyes said. "So whether Judge Shelby ruled as he did or if he would have ruled against the plaintiffs, one side or the other would have appealed because I think everybody benefits from having the process takes its course through the appellate process and hopefully getting a final word from the Supreme Court on this issue that will give us all some closure."

In the 1990s, the Utah Attorney General's Office also sought help from outside counsel in several other high-profile cases. It spent more than three years and $1 million-plus to defend the state's 1991 abortion law, which banned most abortions and required spousal notification, with help from Utah attorney Mary Anne Wood. Then Gov. Michael Leavitt withdrew an appeal to the 10th Circuit Court of Appeals in 1994 because of the cost to taxpayers.

It also spent more than $4 million on an antitrust investigation of the University of Utah during that time period, and about $2 million to hire outside counsel on a state trust-lands case.

Tribune reporter Robert Gehrke contributed to this story.

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Who is Monte Stewart?

A deputy Utah Attorney General said Monday that Boise attorney Monte N. Stewart has and will continue to help craft its legal arguments in defense of the state's ban on same-sex marriage.

Stewart, 66, is with the firm Stewart, Taylor & Morris in Idaho. He graduated from Brigham Young University's law school in 1973 and clerked for U.S. Supreme Court Justice Warren E. Berger.

Stewart is the founding president of the Marriage Law Foundation, a former U.S. District Attorney for Nevada and a former Utah special assistant attorney general who advised former Gov. Michael Leavitt on placement of high-level nuclear waste. Among high-profile case he handled as an attorney: prosecution of polygamy Tom Green.

He received a post-graduate degree from Oxford University in 2004, where his thesis focused on "Judicial Redefinition of Marriage."

Stewart was a co-chairman of Utahns for a Better Tomorrow, which helped sponsor Amendment 3, which constitutionally banned same-sex marriage and recognition of such unions in Utah. He also has filed briefs or helped litigation same-sex marriage cases in approximately nine states and in the Eighth Circuit Court of Appeals, according to a bio on his firm's website.