So who is Utah paying $2 Million To Appeal Their SSM Case to the Supreme Court?

January 1st, 2014

There were initial reports that Utah would spend $2 million to appeal their SSM case to the Supreme Court. As Ian Millhiser noted, this dwarfs what Paul Clement charged the states in the Obamacare challenge. Then there was a report that the governor of Utah had not approved of that amount.

In any event, who is helping the Utah AG, such that he thought $2 million was appropriate? Paul Clement? Michael McConnell? Chuck Cooper? Mike Carvin? Someone from Becket or Alliance Defending Freedom? Someone I’ve heard of?

No. Counsel of Record is Monte Neil Stewart of Stewart Taylor & Morris in Boise, Idaho. Stewart is the former U.S. Attorney for Nevada, and President of the Marriage Law Foundation. He clerked for Chief Justice Burger, though I can’t find any cases on Oyez that he argued before the Court. He filed briefs in the District Court and 9th Circuit in the Prop 8 litigation. I found one article he wrote in the Harvard JLPP, but that’s about it.

I don’t want to judge a lawyer I know nothing about, but so far Utah has bungled the entire appeals process in every way imaginable. They didn’t request a stay in their initial motion, and Judge Shelby wouldn’t entertain one at a late juncture.  They appealed to the 10th Circuit before the District Court. They took almost an entire week (!?) to appeal to the Supreme Court. The motion is 25 pages long. Nothing earth-shattering here. And he actually signed his name on the brief in pen, and then scanned it. I don’t think I’ve seen this on a SCOTUS brief before. That motion should have been ready to go on day one.

I hope Monte Stewart brings his A-game if he is actually arguing it before the Court.

I wonder if no one else wanted to take this case? Could it be? Does no one want to be on the losing end of this historic case? Does Clement not even want it? Recall that Chuck Cooper got his tail handed to him during the Perry arguments whenever he was asked to explain the rationales for banning gays from marrying. Using the phrase “responsible procreation” aint gonna cut it at One First Street. Perry was tossed on standing ground. But this time up, the issue is ripe.

Maybe the Court should joint appoint Paul Clement because Paul Clement. That way he can say, “Oh I only took it because the Court wanted me to!”

Update: Michelle Olsen points me to an actual request for proposals from the Utah AG for counsel.


The Office of the Utah Attorney General is accepting qualification and fee proposals for outside counsel to assist with the case of Kitchen et al. v. Herbert et al., case number 13-4178 pending before the U.S. Court of Appeals for the 10th Circuit and potentially the U.S. Supreme Court.

Proposals are due by 5:00 p.m., Mountain Standard Time, on January 7, 2014.  Written proposals shall be submitted to Chief Civil Deputy Brian Tarbet by email to[email protected] or by hand delivery to The Utah Attorney General’s Office, suite 230 in the Utah State Capitol, 350 North State Street, Salt Lake City, Utah.   The attorney(s) submitting is responsible for delivery to Brian Tarbet in the time allotted.

The Opening Brief at the 10th Circuit is due on January 27.

Utah Attorney General Sean Reyes will make the ultimate decision on the selection based on the proposal that is the most advantageous to the State.  The highest qualified attorney(s) that submits a reasonable cost proposal, as determined in the sole discretion of the Utah Attorney General, will be awarded the contract.

Proposals must include:

1.  A statement of qualifications describing the attorney’s appellate experience in the federal courts of appeal, particularly in the U.S. Court of Appeals for the 10th Circuit and U.S. Supreme Court, and expertise in federal constitutional law, preferably the Fourteenth Amendment to the U.S. Constitution and/or in a state’s right to define marriage.

2.  Proposals must include the following guaranteed maximum fee caps: a.  A fee cap for the appeal to the 10th Circuit Court of Appeals. b.  A separate fee cap if an appeal to the U.S Supreme Court is requested.

3.  A list of hourly rates for head counsel and any assistants, support staff and the like that are to be part of the billing.   The selected attorney(s) and staff will be paid the lesser of the hourly rates for work performed or the applicable fee cap.

4.  The selected attorney(s) will be under the oversight and control of the Attorney General.

5.  The selected attorney(s) will be required to execute a contract with the Attorney General.

6.  The contact may be terminated for convenience at the discretion of the Attorney General, with fees for work properly performed paid to the date of termination.  The contract may also be terminated for cause.

7.  A conflict of interest check must be performed.

This is a special procurement process under the emergency provision of the Utah Procurement Code and the administrative rule of the Utah Attorney General.  This is not a Request for Proposal process, but a modified process to meet the emergency conditions and intended to provide as much competition as possible under the circumstances.

If there are any questions, contact Chief Civil Deputy Brian Tarbet, Utah Attorney General’s Office.  No one else in Utah State Government is to be contacted.

This is remarkable–not your average SCOTUS beauty pageant.

These tweets elaborate.