Former U.S. Attorney reacts to ‘Kitchen v. Herbert’ judge panel

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The Tenth Circuit Court of Appeals has announced that Judges Jerome Holmes, Paul Kelly, and Carlos Lucero will be the panel of three who will hear Utah’s Kitchen v. Herbert and Kentucky’s Bishop v. Smith marriage equality cases on April 10th and 17th, respectively.  The cases, which will cover much of the same ground and share a number of amicus briefs, will be heard separately.

Brett Tolman, former United States Attorney for the District of Utah, spoke with this reporter about the case and this particular panel of judges.  Tolman, currently a shareholder with the Salt Lake City firm of Ray Quinney & Nebeker, has argued cases before both judges Kelly and Lucero.

Tolman confirmed QSaltLake‘s earlier assessment of the panel, labeling Judge Lucero as the most liberal of the three and Judge Kelly as the most conservative, leaving Judge Holmes as the swing vote.  Tolman added that this panel could prove to be “very challenging” for the attorneys involved, as both Judge Lucero and Judge Kelly tend to dominate proceedings with difficult legal questions. He added that attorneys on both sides could leave the courtroom “feeling like they’ve been put through the wringer.”

With the obvious importance of these cases, he noted that it will be interesting to see how much weight the judges give to recent U.S. District Court rulings, which have overwhelmingly favored marriage equality.  Given the relatively thin case history on this issue at the appellate level and with these specific judges, however, it is very difficult to speculate on the final outcome of the case.

Tolman, however, did indicate that he anticipates a 2-1 decision affirming Judge Robert Shelby’s ruling of Dec. 20, 2013 which declared Utah’s same-sex marriage ban unconstitutional.  He predicted Judge Kelly would be the dissenting voice on the court.

QSaltLake will be in the Denver courtroom for this historic case and will provide continuous updates to this developing story.


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