Gene Schaerr Leads the Utah Appeal of Kitchen v. Herbert

Citing the importance of the appeals process of Kitchen v. Herbert to both sides of the Amendment 3 debate, Utah Attorney General Sean Reyes selected Utahn Gene Schaerr to lead the team of lawyers that will represent Utah in the appeal of the case that overturned Utah’s Amendment 3.

Currently a partner at Winston & Strawn where he chairs the Appellate and Critical Motions practice, Schaerr will leave his firm to focus exclusively on the appeal. In a press release, Reyes’ office cited Schaerr’s experience, win rate, and willingness to take on the case for a discounted rate. According to Reyes, Schaerr has an 80 percent win rate in the 10th Circuit and a 75 percent win rate for dozens of federal appeals that he has argued in the past five years.

It’s notable that Schaerr served as law clerk to US Supreme Court Chief Justice Warren E. Burger and Justice Antonin Scalia and is regularly rated as one of the best attorneys in the country, including recognition by U.S. News & World Report and Best Lawyers® 2014. He was also named in Best Lawyers in America in the specialty of appellate law in 2009-2011.

The price tag for the appeal, estimated to run to as high as $2 million, has drawn criticism. Schaerr has agreed to limit his fees to $200,000 for the 10th Circuit Court stage of the appeal. It is anticipated that the appeal will eventually end up before the Supreme Court.

“After reviewing the proposals, we also saw that there are very qualified individuals who are willing to offer their services to support the case. Because of this, we have built a dynamic team that Mr. Schaerr will lead, all for a fraction of the cost of their commercial rates and various costs,” said Attorney General Reyes. “This will also free up several attorneys from within our office to return to their regularly assigned caseload.”

In addition to Reyes’ executive team, John Bursch of Warner Norcorss & Judd and Monte Neil Stewart of Stewart Taylor & Morris will support Schaerr and two lawyers from the Utah Attorney General’s office in the appeal.

Profiles of the legal team:

Gene Schaerr (according to his firm’s website) is a litigation partner in the firm’s Washington, D.C. office and chair of the firm’s nationwide appellate, critical motions, and constitutional litigation practice. He has handled more than 100 cases in federal and state appellate courts, including cases before the Supreme Courts (or equivalent) of the United States, California, Illinois, West Virginia, Maryland, Oklahoma, Washington, and Washington, D.C.; the intermediate appellate courts of New York, California, and Illinois; and every federal circuit court. He has handled numerous appeals challenging or defending decisions of trial courts as well as federal regulatory agencies. He has personally argued six cases before the United States Supreme Court and dozens of cases in federal courts of appeal and state appellate courts.Schaerr served as a law clerk to United States Supreme Court Chief Justice Warren E. Burger and Justice Antonin Scalia. He also served as a law clerk to the Hon. Kenneth W. Starr of the U.S. Court of Appeals for the D.C. Circuit. In addition, he served for two years as associate counsel to President George H.W. Bush.
Schaerr received a B.A. from Brigham Young University in 1981. He received a J.D. in 1985, an M.A. (economics) in 1985, and an M.Phil. (economics) in 1986 from Yale University.

Find his LinkedIn profile here.
John Bursch (who, like myself, is a bow tie guy) is the former Solicitor General of Michigan and current Partner at Warner Norcross & Judd. He has personally argued five U.S. Supreme Court cases in 2013 alone and offers extensive experience arguing in the federal circuits.As Solicitor General he argued for Schuette v. Coalition to Defend Affirmative Action, known as one of the most significant 14th Amendment on the Supreme Court’s docket. After serving three years as Michigan’s Solicitor General, where, according to his firm’s website, he created one of the busiest U.S. Supreme Court practices in the nation; according to the Wall Street Journal, John’s eight arguments as SG made up more than 6% of all the cases the Court heard during his tenure.
The list of cases he has argued is extensive and broad, and he brings with him extensive experience. Bursch will cap his fees for the 10th Circuit appeal at $50,000.
Monte Neil Stewart of Stewart Taylor & Morris is a former clerk for Chief Justice Warren E. Burger of the United States Supreme Court. He successfully assisted the prosecution of Utah’s application for a stay to the U.S. Supreme Court in Kitchen vs. Herbert. He and his firm provided the defense leading to the federal district court decision upholding Nevada’s laws defining marriage in Sevcik vs. Sandoval.He has extensive experience in the federal appellate court system and has previously worked with Utah in legal proceedings involving the proposed placement of high level nuclear waste in Skull Valley. Stewart will cap his fees for the 10th Circuit appeal at $50,000.