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Case 3:10-cv-01750-VLB Document 88

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT ________________________________ ) JOANNE PEDERSEN, et al., ) ) Plaintiffs, ) ) v. ) No. 3:10-cv-1750 (VLB) ) OFFICE OF PERSONNEL ) MANAGEMENT, et al., ) ) Defendants. ) ________________________________ )

INTERVENOR-DEFENDANT THE BIPARTISAN LEGAL ADVISORY GROUP OF THE UNITED STATES HOUSE OF REPRESENTATIVES MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION TO STRIKE PLAINTIFFS SEPARATE STATEMENT OF NON-ADJUDICATIVE FACTS In connection with their motion for summary judgment in this matter, Plaintiffs sought and received leave of the Court to file a memorandum of law that exceeds normal page limitations by nearly half. See Pls. Mot. for Leave to File Mem. of Law of up to 60 Pages in Supp. of Mot. for Summ. J. (July 8, 2011) (ECF No. 57); Order Granting Pls. Mot. for Leave to File Mem. of Law of up to 60 Pages in Supp. of Mot. for Summ. J. (July 9, 2011) (ECF No. 58). Plaintiffs memorandum of law in support of their motion for summary judgment uses nearly all of those allotted pages. See Mem. of Law in Supp. of Mot. for Summ. J. (July 15, 2011) (ECF No. 63). Plaintiffs also have filed a statement of (alleged) material facts (allegedly) not in dispute. See Pls. L.R. 56(a)1 Statement in Supp. of Pls. Mot. for Summ. J. (July 15, 2011) (ECF No. 61).

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Without citing any authority permitting it, however, Plaintiffs additionally have filed an 87-paragraph, 18-page Separate Statement of Non-Adjudicative Facts (July 15, 2011) (ECF No. 62). As is evidenced by its title and separate filing, Plaintiffs disclaim any reliance on Rule 56 to permit this filing, see Separate Statement of Non-Adjudicative Facts (July 15, 2011) (ECF No. 62) at 2 (. . . Plaintiffs need not demonstrate the absence of dispute concerning legislative facts.), but claim their submission is intended to assist the Court, id. This document is composed almost entirely of vague generalities and policy statements, pure legal conclusions, and sweeping generalizations regarding legal history, all of which often are worded in an overtly argumentative manner. By way of example only, Plaintiffs argue that the same-sex marriage debate resemble[s] other marriage controversies such as that over interracial marriage, id. 8; that the biological link between parents and children is not the principal or sole reason why marriage is good for society, id. 11; and that outspoken denunciation by elected officials . . . would be unthinkable if directed toward most other social groups, id. 73. Plaintiffs also state as facts the very legal conclusions that the courts have found relevant in equal protection cases, claiming that sexual orientation has no inherent association with a persons ability to perform, contribute to, or participate in society, id. 38; purporting to define political power and declare to the Court what demonstrates it and what does not, id. 57-63; and claiming that sexual orientation is . . . immutable while citing only a letter from the United States Attorney General, id. 77. Plaintiffs submission also is pocked with other legal conclusions,

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including a purported 50-state survey of employment and publicaccommodations discrimination law, id. 70, and legal argumentation, such as a characterization of DOMA as a substantial deviation from all the prior history of federal-state relations in marriage regulation, id. 20. In sum, Plaintiffs statement of facts is essentially an 18-page legal brief on equal-protection issues. Plaintiffs are free to make such assertions, of course, but they should be limited to doing so in the sixty full pages that this Court granted them for their memorandum of law, rather than smuggling them in through an extra statement of facts. Courts in this District and Circuit regularly have recognized that a party may not evade page limits for legal memoranda set by the Court by filing additional argumentation under the guise of a separate, differently-titled document, and frequently have struck or disregarded such attempted supplementations. This is true whether the supplementation takes the form of an attorneys affidavit contain[ing] improper argument over and above the page limitation, Perkins v. S. New England Tel. Co., 669 F. Supp. 2d 212, 226 (D. Conn. 2009) (ellipsis and quotation marks omitted); see also Cooper Indus., Inc. v. Agway, Inc., No. 92-cv-0748, 1996 WL 550128, at *7 (N.D.N.Y. Sept. 23, 1996) (noting that permitting this essentially would permit the plaintiffs an unlimited number of pages), or a Rule 56 statement, see Dejesus v. Village of Pelham Manor, 282 F. Supp. 2d 162, 166 n.2 (S.D.N.Y. 2003) (inclusion of legal argumentation in Rule 56 statement meant parties ha[d] essentially submitted two memoranda of law in support of their motion and thereby violated page

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limits), or both, see Hous. Works, Inc. v. Turner, No. 00 Civ. 1122(LAK), 2003 WL 22096475, at *1 (S.D.N.Y. Sept. 9, 2003) (elaborate, detailed, lengthy and argumentative statement of facts in attorneys affidavit and overly long Rule 56 statement resulted in outright denial of motion for summary judgment). The fact that Plaintiffs here have invented a new title for their attempted additional briefing should not result in a different outcome, especially as Plaintiffs cite no authority whatsoever (and the House is aware of none) permitting such a submission. The courts observations in Goldstick v. The Hartford, Inc. regarding Rule 56 statements are equally applicable here: Whether parties choose to title their papers Rule 56 Statements or Separate Statements of Non-Adjudicative Facts, such statements are not argument. . . . They should not contain conclusions, and they should be neither the source nor the result of cut-and-paste efforts with the memorandum of law. No. 00 Civ. 8577(LAK), 2002 WL 1906029, at *1 (S.D.N.Y. Aug. 19, 2002). Accordingly, the Court should strike Plaintiffs Separate Statement of NonAdjudicative Facts from the record as a violation of this Courts order regarding page limits. In the alternative, the Court should disregard the Statement of NonAdjudicative Facts as denied by the House.

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Respectfully submitted, /s/ Paul D. Clement Paul D. Clement H. Christopher Bartolomucci Conor B. Dugan Nicholas J. Nelson BANCROFT PLLC 1919 M Street, Northwest, Suite 470 Washington, District of Columbia 20036 Telephone: (202) 234-0090 Facsimile: (202) 234-2806 Counsel for the Bipartisan Legal Advisory Group of the U.S. House of Representatives OF COUNSEL: Kerry W. Kircher, General Counsel Christine Davenport, Senior Assistant Counsel Katherine E. McCarron, Assistant Counsel William Pittard, Assistant Counsel Kirsten W. Konar, Assistant Counsel OFFICE OF GENERAL COUNSEL U.S. House of Representatives 219 Cannon House Office Building Washington, District of Columbia 20515 Telephone: (202) 225-9700 Facsimile: (202) 226-1360 August 22, 2011

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CERTIFICATE OF SERVICE I certify that on August 22, 2011, I served one copy of the IntervenorDefendant the Bipartisan Legal Advisory Group of the United States House of Representatives Memorandum of Law in Support of its Motion to Strike Plaintiffs Separate Statement of Non-Adjudicative Facts by CM/ECF and by electronic mail (.pdf format) on the following: Gary D. Buseck Janson Wu Mary L. Bonauto Gay & Lesbian Advocates & Defenders 30 Winter St., Suite 800 Boston, MA 02108-4720 617-426-1350 gbuseck@glad.org jwu@glad.org mbonauto@glad.org Karen L. Dowd Kenneth James Bartschi Horton, Shields & Knox 90 Gillett St. Hartford, CT 06105 860-522-8338 Fax: 860-728-0401 kdowd@hortonshieldsknox.com kbartschi@hsklawfirm.com David J. Nagle Richard L. Jones Sullivan & Worchester LLP One Post Office Square Boston, MA 02109 dnagle@sandw.com rjones@sandw.com

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Paul M. Smith Luke C. Platzer Daniel I. Weiner Matthew J. Dunne Jenner & Block 1099 New York Ave., N.W., Suite 900 Washington, DC 20001-4412 psmith@jenner.com lplatzer@jenner.com dweiner@jenner.com mdunne@jenner.com David Christopher Nelson U.S. Attorneys Office HTFD 450 Main St., Rm. 328 Hartford, CT 06103 david.c.nelson@usdoj.gov Judson O. Littleton UNITED STATES DEPARTMENT OF JUSTICE, CIVIL DIVISION 20 Massachusetts Ave., NW, Seventh Floor Washington, DC 20530 judson.o.littleton@usdoj.gov

/s/ Kerry W. Kircher Kerry W. Kircher