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Sixteen days later, pre-empting his own time frame by two weeks, Shelby granted summary judgment in favor of the plaintiffs.
Magleby was out of state when an email popped up on his iPad screen with two words: "We won!"
Career highlights for James Magleby and Peggy Tomsic include:
» Won $134 million verdict in USA Power v. PacifiCorp, et al, 21st-largest verdict in nation in 2012 (Tomsic and Magleby)
» Successfully defended Portland General in $1 billion claim in Bonneville Pacific bankruptcy (Tomsic)
» Achieved $4.7 million verdict in Haug v. La Caille, breach of partnership and fiduciary duty (Magleby)
» Reached $45 million settlement in ClearOne v. UBS, a securities dispute (Magleby)
With dozens of cases pending, he thought, "Oh, good, we won something." Then emails were bing, bing, binging onto his screen one after another and Magleby realized it was the Kitchen v. Herbert case.
Tomsic was back at the office, hard at work on a new case, when an email also sprang up on one of the three monitors on her desk. The subject line said, in all capital letters, "YOU WON, YOU WON, YOU WON!" Scrolling down her inbox, she found the email with the court’s order and quickly clicked to the last page of the 60-page decision "because you always want to know what the end is."
"It was the most amazing day I’ve ever felt in my life in my legal practice," Tomsic said. "Reading that decision and realizing that Judge Shelby had the courage and the integrity to follow the U.S. Constitution in a state where he knew it would be a very unpopular decision ... made me believe more in our system. It doesn’t mean you always win, but if people do the best they can do to follow the law and follow the facts, you cannot ask for anything more than that."
Tomsic’s next move: She texted her partner, Cindy Bateman, with whom she is rearing a son privately placed a decade ago when he was 3 years old, and asked, "Will you marry me?"
Magleby, 47, and Tomsic, 61, are graduates of the University of Utah’s law school — Tomsic was editor of the Utah Law Review — and have worked together so long and so closely they banter like a married couple. Tomsic hired Magleby while a managing shareholder at Berman, Tomsic & Savage. Magleby hired Tomsic in 2009 after she closed her own firm.
They specialize in commercial litigation involving, as Magleby describes it, complicated problems "in fields we generally are not experts in, and we learn it, and we master it, and we win." For Magleby, that has meant learning about brine shrimp driers, polypropylene plants and how to build a chemical manufacturing facility. Tomsic has toured coal mines and power plants and learned how source code is programmed.
"That’s the fun part for us," she said, "because you have to learn things you never thought you’d have to."
In the Amendment 3 case, Tomsic drew on firsthand expertise: her own life.
Tomsic grew up in Moab and came out — more accurately, was outed — when she was 21 years old. It was a dangerous time to identify as gay, given the discrimination and outright physical violence such revelations often triggered. Salt Lake City’s former Sun Tavern and the lesbian bar Sisters were places "people felt safe" because of a shared "no-one-is-going-to-tell-on-you attitude."
Still, security offered escorts to cars to protect patrons from attacks. Customers often returned to their vehicles to find windows shattered.
"It was not unusual," Tomsic recalled, "for men to come in and call us ‘sweat hogs,’ bring boards and try to hit us."
Magleby, a straight man married almost 20 years with five children, said: "Marriage equality was not on the radar." People were just looking to not get beaten, he said. And when it happened, Tomsic chimed in, "nobody dared report it."
Fast-forward to Dec. 20, hours after Shelby rejected Utah’s ban on same-sex marriage as unconstitutional.
"Going down to the county recorder’s office and having bands playing and people singing and people crying and people cheering," Tomsic said. "That was extraordinary."
Added Magleby: "The great thing about being a lawyer is you can make a fundamental, life-changing difference in somebody’s life that they can’t get for themselves. The Kitchen case is just the pinnacle of that."
It’s up to the 10th Circuit — and possibly the Supreme Court — to decide if that difference was fleeting or forever.
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