Case 4:14-cv-00015-RLY-TAB Document 26 Filed 04/25/14 Page 1 of 15 PageID #: 277

IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA NEW ALBANY DIVISION ELECTRONICALLY FILED

MELISSA LOVE, et al

PLAINTIFFS vs.

MICHAEL RICHARD PENCE

DEFENDANT

) ) ) ) ) ) ) ) ) ) ) ) )

CIVIL ACTION NO. 4:14-cv-15-RLY-TAB

******* RESPONSE IN OPPOSITION TO DEFENDANT'S MOTION TO DISMISS

Defendant claims that Governor Pence is not a proper defendant to this action because the Governor does not enforce the marriage ban at issue in this case. This argument ignores every aspect of Indianas governmental system and the effect IC 31-11-1-1 has on its citizens. Defendant essentially claims that in order for Plaintiffs to obtain prospective injunctive relief, they must name each elected or appointed official responsible for every marital benefit conferred by the State. Defendant makes no attempt to identify who the proper defendants are, likely because the arguments practical implications offend both the notion of a structured state government as well as judicial economy. Plaintiffs in this case seek two forms of relief. First, they seek an injunction forcing the various state agencies to recognize and extend marital benefits to same-sex couples with marriage licenses from other jurisdictions. The second request is that the state be enjoined from withholding marriage licenses from

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same-sex couples who seek one within the state. For the reasons set forth below, the Governor is the proper and perhaps the only party who can effectuate the relief sought by Plaintiffs.

I.

THE GOVERNOR IS THE PROPER PARTY AS A MATTER OF BASIC CIVICS A. The Executive Branch

The Indiana constitution establishes three branches of government: the Executive, Legislative, and Judicial branches. The Indiana Constitution declares that the executive power of the State shall be vested in a Governor. Ind. Const. Art. 5 1. His primary duty is to see that the laws of the state are faithfully executed. Ind. Const. Art. 5 16. In pursuit of these duties, the Governor is charged with organizing the various state agencies [t]o promote the better execution of the laws, the more effective management of the executive and administrative branch of the government and of its agencies and functions, and expeditious administration of the public business. IC 4-3-6-3. The Indiana Supreme Court thoroughly fleshed out the role the Governor plays in state government in Tucker v. State, 35 NE 2d 270 (Ind. 1941). The Court concluded that, the executive power is vested not in the Executive including the Administrative department, but in one man, one officer, the Governor. Id. at 280. The Court noted that Ind. Const. 15 requires the Governor to manage the officers of the administrative department. Id. at 286. The Court made clear that the administrative department is a department under the executive branch. Id. at 289. As to the issue of any other agency, the Governor is virtually granted plenary power to do whatever he likes with those agencies (subject to the approval of the General Assembly), including creation of new agency heads and other officers, total reorganization, or even abolition of the agency altogether. See IC 4-3-6-4, -5, and -6. These executive branch agencies are heavily implicated in this matter, particularly on the issue of recognition of valid, out-of-state marriages, as discussed further below.

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B.

The Administrative Department

Implicit in Defendant's Motion is the idea that the Circuit Court Clerk may be an appropriate defendant. The Clerk of the Circuit Court is identified as a county officer, and falls under the Administrative Department in Ind. Const. Art. 6. At one time there was some dispute as to the authority of the Administrative Department, but that dispute was settled in Tucker v. State, supra. Ind. Const. Art. 5, 15, directs the Governor to manage the officers of the Administrative Department. In Tucker v. State, the Indiana Supreme Court determined that the provision was included in anticipation that administrative officers might assert independence and contend that they were elected by the people and could not be compelled to transact business with the Governor or to report to him in writing. Tucker, supra, at 286. The Court went on to clearly define the structure of the executive and the administrative department: More strictly and correctly, the word administrative is synonymous with ministerial. Id at 290. The Court was clear in its view of the powers of administrative officers: The administrative officers were vested with no powers. It is provided that: They shall perform such duties as may be enjoined by law. . . . Id. p.291 (emphasis in original). Since that time, the Governor has repeatedly exercised his power over the county clerks and Administrative Department by virtue of executive order, as evidenced by Exhibit 1, orders which unquestionably demonstrates the Governor's power to order the clerks to take specific actions.

II. WHO ENFORCES IC 31-11-1-1? As discussed above, it is a basic matter of civics that laws enacted by the legislative branch, such as IC 31-11-1-1, cannot be enforced but through the executive branch. Defendant obfuscates an issue that should be simple: who is a proper representative of the executive branch? And the answer Plaintiffs propose is equally simple: the Governor, i.e., the Executive Head of State. If the Defendants 3

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argument is right, the answer is much more complicated. First, looking at the isolated issue of marriage licenses: the marriage license form is promulgated by the state Department of Health. IC 31-11-4-15. However, the Department of Health is not empowered to actually issue licenses, just the licensing forms. The task of issuing the license to couples who apply is given to the various Circuit Court Clerks.1 The Circuit Court Clerks then deposit the fees collected from issuing licenses into the state treasury. IC 33-32-5-1. So perhaps the Governor would argue that the proper defendant for this relief is both the Department of Health and the Circuit Court Clerk. However, the Indiana Attorney General might disagree. In 2004, the Attorney General issued an opinion regarding the authority of Circuit Court Clerks in issuing marriage licenses. The attorney general concluded that clerks have no authority to either issue licenses that are not authorized by statute nor refuse to issue marriage licenses altogether (No. 2004-4, attached as Exhibit 2). In fact, should the clerks issue a license in violation of the Indiana Code, they are subject to criminal penalties. IC 31-11-11-4-7. Much to the undersigneds surprise, one such obstinate clerk was actually prosecuted by the state for refusing to comply with the states residency requirements for female marriage license applicants. Sweigart v. State, 12 N.E.2d 134 (Ind. 1938). The threat of criminal prosecution for the County Clerks who defy state law indicates that they are not in a position to provide a remedy for these Plaintiffs.

1 The argument advanced by the Governor is that the specific government official who actually has hands-on involvement in executive branch enforcement is the proper party, and not the executive himself. Thus, the logical extension of this argument with regard to the clerks is that the elected Circuit Court Clerk of each county is not a proper defendant. Instead, the particular employee of the Clerk's office who actually takes an application from a same-sex couple and refuses to issue the license should be named. This argument is, of course, absurd when carried to this extreme. How could a functionary, who has no control over the details of who is issued a license or not, possibly be responsible for whether a statute is enforced or not? Moreover, naming the specific individual would itself be a challenge, as the employee on duty could change at any time, and the issuance of the license could have been denied by more than one employee, etc. But this argument is no more absurd than the one advanced by the Governor; indeed the arguments are essentially coequal. Indiana law is clear: an elected Circuit Clerk cannot dictate which statutes are enforced any more than any other executive-branch bureaucrat. The executive alone has the ultimate authority to do so. See Exhibit 2 and Sweigart v. State, 12 N.E.2d 134 (Ind. 1938), discussed infra.

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The recognition question is more difficult. The states enforcement of IC 31-11-1-1 implicates numerous governmental agencies. Since Plaintiffs are seeking every right and benefit extended to other married couples, the list of potential defendants is quite long. Plaintiffs want the Department of Insurance allow them to apply for family policies and benefits, the Department of Revenue to tax them equally, the Indiana Retirement System to recognize spousal benefits, the Housing & Community Development Authority to extend family status for family housing benefits, the Department of Corrections to recognize their familial relationship for visitation rights, the Health Department to recognize them when providing child and family services, and the Department of Labor to enforce rights to medical and bereavement leave. Furthermore, there are more nebulous rights bestowed not by a government agency, but just by the state. Who is the proper Defendant for Plaintiffs seeking right to a civil cause of action for wrongful death, or loss of consortium? What agency can bestow the privilege of marital communications? Under Defendants theory, if the entity is not included as a defendant in the suit, the citizens of the state are just stuck with unconstitutional policy, and the Governor is powerless to intervene. There is no need for such complicated musings, because there is one entity, one person, who has the authority to direct change in all of these avenues. That person is the Governor.

III.

THE ELEVENTH AMENDMENT DOES NOT BAR THIS ACTION

For many of the reasons discussed above, the Eleventh Amendment to the U.S. Constitution does not bar the Governor from being named in his official capacity. Seventh Circuit case law is clear: Under the longstanding doctrine of Ex Parte Young, a private party can sue a state officer in his or her official capacity to enjoin prospective action that would violate federal law. 209 U.S. 123, 159-160, 28 S. Ct. 441, 52 L. Ed. 714 (1908). There, the Supreme Court held that suing Minnesota's Attorney General to prevent him from enforcing a law limiting railroad rates did not trench on the Eleventh Amendment because: "the act to be enforced is alleged to be unconstitutional, and if it be so, the use of the name of the State to enforce an unconstitutional act to the injury of complainants is a proceeding without the authority of, and one which does not affect the state in, its sovereign or governmental capacity." Id.; see 5

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also David B. v. McDonald, 156 F.3d 780, 783 (7th Cir. 1998) (Young treats state officials violating federal law "as renegades acting ultra vires," and thus those individuals may be enjoined without implicating state sovereignty or violating the Eleventh Amendment). Dean Foods Co. v. Brancel, 187 F.3d 609, 613 (7th Cir. Wis. 1999). Young simply allows a legal loophole in the Eleventh Amendment so that citizens of a state may vindicate their federal constitutional rights. Its holding is not quite as narrow, nor as complicated, as Defendant would have this Court believe. A plaintiff seeking injunctive relief against the State is not required to allege a named officials personal involvement in the acts or omissions constituting the alleged constitutional violation. Rather, a plaintiff need only identify the law or policy challenged as a constitutional violation and name the official within the entity who can appropriately respond to injunctive relief. Hartmann v. Cal. Dept. of Corr. & Rehab., 707 F.3d 1114, 1127 (9th Cir. 2013) (citations omitted). For a state officer to be a proper defendant, [i]t is not necessary that his duty be declared in the act which is to be enforced. Shell Oil Company v. Noel, 608 F.2d 208, 212 (1st Cir. 1979). [T]he fact that the state officer by virtue of his office has some connection with the enforcement of the act is the important and material fact, . . .whether it arises out of the general law, or is specially created by the act itself[.] Lytle v. Griffith, 240 F.3d 404, 409 (4th Cir. Va. 2001) (quoting Ex parte Young, 209 U.S. at 157 (alterations in Lytle)). Under these principles, this case presents a classing Ex Parte Young scenario, for the specific reasons set forth below.

A.

The Mere Fact that Governor Pence has a General Duty to Enforce the Law is Not Dispositive

Governor Pences motion to dismiss rests on the false premise that Plaintiffs claims against him are based only on his general duty to enforce the law. In fact, Plaintiffs claims are based not only on this general duty but also on his direct supervisory responsibility for all executive agencies, including the power to reorganize, restaff, or abolish those agencies. Governor Pence is thus responsible for 6

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formulating and administering agency policies relating to health insurance coverage, vital records, tax obligations, state employee benefits programs, motor vehicles (including, for example, changing ones last name on a drivers license), and regulation of health professions (including, for example, implementation of laws governing medical decision-making by family members and requests for autopsies) all of which involve recognizing marital status. While it may be true that a general duty to enforce state law does not convert a state official into a proper defendant in every case, a complaint that seeks to enjoin the enforcement of a state prohibition against specific conduct is by definition not premised on a general duty. Shell Oil Company v. Noel, 608 F.2d 208, 211-212 (1st Cir. 1979). As a result, cases that involved attempts to add state officials as defendants in actions brought by citizens to enforce statutory rights against other citizens, like Mendez v. Heller, 530 F.2d 457, 460 (2nd Cir. 1976), are distinguishable from this case. Id. Moreover, there are cases where a general law enforcement duty will suffice as a basis to support inclusion of a state official as a defendant. Allied Artists Pictures Corp. v. Rhodes, 473 F.Supp. 560 (D.C.Ohio, 1979); Federal Nat. Mortg. Ass'n v. Lefkowitz, 383 F.Supp. 1294 (D.C.N.Y. 1974). In Allied Artists, the court found that the governors general duty to enforce the law was sufficient to provide the required connection under Ex parte Young because: the Act is drafted to be self-enforcing; thus the alleged impact upon plaintiffs is immediate and occurs without the active participation of or enforcement by state officers. In such a context a concrete case or controversy may exist, even absent overt adverse action by named defendants. In the Courts opinion an actual threat of enforcement by state officials is not required for justiciability where, as in this case, the statute is mandatory, selfenforcing, and results in immediate economic injury. Allied Artists, 473 F. Supp. at 570 (involving a constitutional challenge to a self-enforcing law governing the procedures by which distributors and exhibitors of motion pictures contract for the right to do so).

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B.

The State Has Not Designated or Proposed a Proper Defendant, and the Governor is the Most Logical Choice

As discussed above, Governor Pence has the capacity to order clerks to begin issuing marriage licenses, and to stop discriminating against same-sex couples in violation of the U.S. Constitution. This power alone makes him a proper defendant for Eleventh Amendment purposes, especially since the clerks themselves do not possess this power. But this case is not simply an issue of a clerk refusing to issue a marriage license. The complaint seeks a declaration that Indianas marriage bans are unconstitutional and an injunction against Defendant in his official capacity and all persons under his supervision, direction, or control to enjoin him from enforcing these unconstitutional enactments, and to compel him to allow same-sex couples to marry and to recognize the marriages of same-sex couples from other jurisdictions, on the same terms as different-sex couples. As detailed in Plaintiffs complaint, Indianas statute does not simply prohibit state officials from issuing marriage licenses to same-sex couples. The marriage ban also prohibits the state and its political subdivisions from recognizing the marriages of same-sex couples for any purpose, even if those marriages were validly entered into in other jurisdictions. Indiana's statute, which can only be enforced through the executive branch, disqualifies same-sex couples from critically important rights and responsibilities that opposite-sex couples rely upon to secure their commitment to each other and to safeguard their families. In addition to these tangible harms, the substantive and dignitary inequities imposed on committed same-sex couples include particular harms to same-sex couples children, who are equally deserving of the stability, permanence, and legitimacy that are enjoyed by children of different-sex couples who marry. The bans also impose immediate dignitary harms on same-sex couples and their children by using the imprimatur of the government to instruct all persons with whom same-sex couples interact, including those couples own children, that same-sex couples are unfit for the dignity, respect, and stature afforded to married different-sex couples.

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Although in typical cases where a specific challenged law is enforced by a specific agency or prosecuting office it may not be necessary or appropriate to include the Governor as an officialcapacity defendant, when a state takes the unusual step of imposing a broad, undifferentiated disadvantage that cuts across every component of state government, the Governors responsibility for formulating and administering executive branch policy makes him the most appropriate defendant for purposes of an Ex parte Young injunction. Like the laws struck down in Romer v. Evans, 517 U.S. 620 (1996), and United States v. Windsor, 133 S. Ct. 2675 (2013), Indianas ban on recognizing the marriages of same-sex couples for any purpose identifies persons by a single trait and then denies them protection across the board, Romer, 517 U.S. at 633, and is a system-wide enactment with no identified connection to any particular state program, Windsor, 133 S. Ct. at 2694. These types of laws singling out a certain class of citizens for disfavored legal status or general hardships are rare. Romer, 517 U.S. at 633. Because Indianas marriage bans impose a broad, undifferentiated disadvantage that cuts across every component of state government, the Governors responsibility for formulating and administering executive branch policy and his supervisory control over all executive branch agencies establish his proximity to and responsibility for the challenged state action (emphasis in original), and guarantee that [any] federal injunction will be effective with respect to the underlying claim. S.C. Wildlife Fed'n v. Limehouse, 549 F.3d 324 (4th Cir. S.C. 2008). Hence, a permanent injunction against Governor Pence in his official capacity and all others within his direction, supervision, or control, see Fed. R. Civ. P. 65(d)(2)(B) would remedy the constitutional violations and ensure that the marriages of Plaintiffs and other same-sex couples are recognized consistently and on equal terms throughout the executive branch and its agencies. Cf. Perry v. Schwarzenegger, 704 F. Supp. 2d. 921, 1004 (N.D. Cal. 2010) (in challenge to Californias constitutional marriage ban, Proposition 8, issuing permanent injunction prohibiting the Governor and 9

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other official-capacity defendants from applying or enforcing Proposition 8 and directing the official defendants that all persons under their control or supervision shall not apply or enforce Proposition 8), affd on other grounds sub nom. Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012), vacated and remanded on other grounds sub nom. Hollingsworth v. Perry, 133 S. Ct. 2652 (2013). The Governor has not proposed an alternative defendant, and with good reason: ultimately, no one but the executive can dictate executive branch behavior.

C.

Case Law Suggests that the Governor is a Proper Party Under These Circumstances

Applying the principles discussed above, courts have repeatedly held that governors and other state officials are proper defendants for purposes of Ex parte Young when their supervisory powers give the power to respond to an injunction by halting the unconstitutional practices of persons under their control. For example, in Limehouse the Fourth Circuit held that the Executive Director of South Carolinas Department of Transportation was a proper defendant in an Ex parte Young suit alleging that the Department had failed to comply with the National Environmental Policy Act because a state statute gave the Director supervisory authority over the states participation in the [Final Environmental Impact Statement] process. Limehouse, 549 F.3d at 333. See also Papasan v. Allain, 478 U.S. 265, 282 n.14 (1986) (holding that Mississippi Secretary of State was a proper defendant in Ex parte Young suit challenging adequacy of school funding because state statute gave Secretary of State power over general supervision of local schools); Luckey v. Harris, 860 F.2d 1012, 1015-16 (11th Cir. 1988) (holding that Georgia governors supervisory powers over state prosecutions made governor a proper defendant in Ex parte Young suit challenging adequacy of indigent defense funding). In contrast, when governors and other government officials have been dismissed as Ex parte Young defendants, it is because their duties are so far removed from enforcing a challenged statute that an injunction against them would not meaningfully redress the plaintiffs claims. For example, in 10

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McBurney, the Fourth Circuit held that the Attorney General was not a proper defendant in a constitutional challenge to the Indiana Freedom of Information Act (VFOIA) because the Attorney General had no role enforcing compliance with VFOIA. Although the plaintiffs sought to rely on a provision in VFOIA that allowed the attorney for the Commonwealth to petition for an injunction against a state official for a violation of [VFOIA], the Fourth Circuit explained that phrase attorney for the Commonwealth referred not to the Attorney General, but rather to the Commonwealths Attorneys, who are elected local prosecutors. McBurney, 616 F.3d at 400. Cf. Hearne v. Bd. of Educ. of City of Chi., 185 F.3d 770, 777 (7th Cir.1999) (governor was not a proper defendant because the plaintiffs have not and could not ask anything of the governor that could conceivably help their cause); L.A. Branch NAACP v. L.A. Unified Sch. Dist., 714 F.2d 946, 953 (9th Cir. 1983) (governor is not a proper defendant where the Governor lacks the power to provide relief). This case is distinguishable from these cases, and from the other cases cited by Defendant, because this is not merely an issue of a specific official enforcing a specific provision of law, especially where that official is granted the discretion to do so. In contrast, the scope of enforcement of IC 31-111-1 permeates the entire executive branch. The cases cited by Defendant involve enforcement of school district residency requirements (1st Westco Corp. v. Sch. Dist. Of Philadelphia, 6 f.3d 108 (3d Cir. 1993), a city ballot tax, and a labor dispute with a school board (Hearne v. Bd of Educ. Of City of Chicago, 185 F.3d 770 (7th Cir. 1999). These cases involve a discrete governmental entity; a department or subdepartment of an administrative agency. It is apparent in these cases that relief can be obtained through the school board or city taxing authority, and not the governor. See Citizens for Equal Prot. v. Bruning, 455 F.3d 859, 864 (8th Cir. 2006) (holding that Governor was proper defendant under Ex parte Young for purposes of challenging similarly sweeping marriage ban in Nebraska). In addition, it is worthwhile to note that Indiana has previously entertained cases where the Governor was a defendant in suits over violations of the Indiana Constitution. Bayh v. Indiana State 11

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Bldg. and Const. Trades Council, et al., 674 N.E.2d 176 (Ind. 1996); Welsh v. Sells, 197 N.E.2d 753 (Ind. 1963) (action brought for judgment declaring unconstitutional a statute imposing an excise tax on retail sales transactions); see also Bonner v. Daniels, et al., 885 N.E.2d 673 (Ind.Ct.App. 2008), overruled on other grounds 907 N.E.2d 516 (Ind. 2009). In Bayh, Governor Evan Bayh and other named defendants appealed a trial courts judgment enjoining enforcement of a particular portion of the Indiana Code. The trial court found that the 1995 amendments had been enacted in violation of the Indiana Constitution. The Governor appealed directly to the Indiana Supreme Court. Neither the Governor nor the Attorney General challenged the fact that the Governor was identified as a defendant.2 It must be acknowledged that case law regarding the Eleventh Amendment under these circumstances varies across jurisdictions, and is anything but perfectly consistent, but the majority of well-reasoned opinions on the subject suggest that the Governor is a proper party.

D.

The Concept of Official Capacity is a Legal Fiction Which Should Not Affect the Outcome of this Case

Turning to the issue of policy reasons implicated in the Court's decision on this matter, there is simply no practical reason for the Court to grant the Defendant's Motion. As shown above, the Governor is perfectly capable of granting the relief sought by Plaintiffs. And, as evidenced by the four similar cases filed subsequent to this one, the constitutionality of the statute will be decided one way or another, against one defendant or another, with the same practical outcome. Furthermore, chances are very good that the proper defendant, whoever the Court determines it to be, will be represented by Mr. Fisher, the same counsel that filed this motion. There is no utility to forcing Plaintiffs to file anew
2 Elsewhere within the Seventh Circuit, examples of governors being joined as defendants in cases seeking declaratory and injunctive relief based on alleged violations of constitutional and other legal requirements are also commonplace. Jorgensen v. Blagojevich, 811 N.E.2d 652 (Ill. 2004); see e.g., Tully v. Edgar, 171 Ill.2d 297 (1996); Chicago National League Ball Club, Inc. v. Thompson, 108 Ill.2d 357, (1985); People ex rel. Illinois Federation of Teachers v. Lindberg, 60 Ill.2d 266, 326 N.E.2d 749 (1975); Livingston v. Ogilvie, 43 Ill.2d 9 (1969); People ex rel. Engle v. Kerner, 33 Ill.2d 11, 210 N.E.2d 165 (1965)

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against an arbitrarily designated clerk and/or other executive branch officials; it serves simply to delay the entire process. On the other hand, granting the Motion would at least imply what Defendant appear to argue: in future challenges to the constitutionality of statutes affecting multiple executive agencies, every agency head and perhaps even the specific employees saddled with the hands-on task of doing the job which violates the Constitution would have to be named. In the instant case, this could potentially be hundreds of defendants, none of which have any power over executive branch policy, or discretion as to whether the laws are enforced whatsoever. To accept Defendant's argument would be to take the often derided legal fiction of the individual officer suit to an absurd extreme. See, e.g., Wasserman, Howard, REJECTING SOVEREIGN IMMUNITY IN PUBLIC LAW LITIGATION, (2012). Res Gestae, Paper 13, arguing that plaintiffs should be able to sue the government (or relevant government department or agency) by name when seeking to enjoin the enforcement of unconstitutional laws, thus bringing the case caption in line with reality.3 This case is not about the governor, or any individual officer. It is about the constitutionality of a discriminatory statute in effect statewide. There is, frankly, no need to add unnecessary layers of procedural or jurisdictional confusion.4

3 Professor Wasserman opines: It is clear to everyoneincluding government officials themselvesthat even a suit for an anti-enforcement injunction is one against the government. Although not subject by name to the injunction, it is the government that will be limited in its future enforcement conduct and thus in its sovereign authority. If the governor is enjoined from enforcing the state prohibition on same-sex marriage, then the State of California is enjoined from enforcing that prohibition. If the Secretary of Homeland Security is enjoined from enforcing the DOMA-dictated limitation on recognizing same-sex marriages in immigration matters, the DHSand thus the United Statesis enjoined from making certain decisions about the status of married persons. This demonstrates the largely symbolic nature of sovereign immunity (at least in actions not directly seeking monetary remedies), which achieves little beyond making constitutional litigation more analytically and procedurally complex. 4 Undersigned counsel is also counsel in the Kentucky marriage equality cases, i.e., Love v. Beshear, No. 3:13-cv-00750JGH (W.D.Ky.), and Bourke v. Beshear, No. 14-5291 (6th Cir. 2014), both of which are defended solely by the Governor of Kentucky. Curiously, the result urged by the Governor here would seem to indicate that Governor Beshear's appeal currently pending before the Sixth Circuit should be dismissed for lack of subject matter jurisdiction, since the Attorney General elected not to appeal and the Governor is the only appellant. One doubts that the Governor of Kentucky would agree with Defendant's position in this matter. This issue has also arisen in Kitchen v. Herbert, the Utah marriage case, and the Governor has made the polar opposite argument to the one made by Pence in this case. See Lang, Marissa, Utah same-sex marriage case could be thrown out on a technicality, Salt Lake Tribune, Apr 18, 2014 (available at http://www.sltrib.com/sltrib/news/57836336-78/utah-case-court-county.html.csp) (recounting the oral argument in

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IV.

IN THE ALTERNATIVE, PLAINTIFFS SHOULD BE ALLOWED TO CONDUCT DISCOVERY

Defendant's entire Motion is premised upon the unlikely argument that the Governor is essentially powerless to perform executive functions in the state of Indiana. They do not seek to define his executive function, or to explain how he has no authority over executive branch agencies, or to explain how the executive cannot control the actions of the executive branch. To the extent that the assertion of the Governor's powerlessness is made by Defendant, Plaintiffs vigorously dispute it, and are entitled to discovery, or at the very lest an evidentiary hearing on the matter. See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (U.S. 1986) ([T]he plaintiff must present affirmative evidence in order to defeat a properly supported motion for summary judgment.5 This is true even where the evidence is likely to be within the possession of the defendant, as long as the plaintiff has had a full opportunity to conduct discovery.)(emphasis added). V. IN THE ALTERNATIVE, PLAINTIFFS SHOULD BE ALLOWED TO AMEND THEIR PLEADINGS

Finally, under Federal Rule of Civil Procedure 15, a party may amend its pleading with the written consent of the other parties or the Court's leave should be freely given "when justice so requires."Fed. R. Civ. P. 15(a)(2). If the Court is inclined to grant Governor Pence's Motion, Plaintiffs respectfully submit that justice would require a brief period of time in which they may be allowed to amend their Complaint to include the defendants this Court deems proper. No prejudice will result to

Kitchen) ('You sued the clerk of court,' [10th Cir. Judge] Holmes said, referring to Swensen. 'But the clerk of court is not on the appeal, and, it would seem to me that creates a fundamental basis for concern about where jurisdiction lies in this case.' [Governor's counsel] Tomsic argued that because the governor and the attorney general have authority over the county clerks in Utah unlike in other states where clerks who issue marriage licenses are members of the judicial branch of government they are, ultimately, the proper authorities.) If the Kitchen case is allowed to go forward, a contrary opinion by this Court on the issue of the Governor's powers could create a genuine circuit split (if such outcome is not already practically assured). This illustrates the absurd complications inherent in deciding this case based upon a fictional technicality rather than dealing with the proverbial meat of Plaintiffs' contentions, i.e., whether the challenged statute violates the Constitution. 5 Plaintiffs believe that the facts presented by Defendant regarding executive impotence are conclusively refuted by the statutes and constitution of the state of Indiana, but insofar as there are issues of fact presented, Defendant's Motion should be construed as one for summary judgment.

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the Defendant, or any potential defendants, as a result of allowing an amendment.

Respectfully submitted,

s/Daniel J. Canon___________________ DANIEL J. CANON LAURA E. LANDENWICH L. JOE DUNMAN CLAY DANIEL WALTON ADAMS, PLC Meidinger Tower, Suite 101 462 S. Fourth Street Louisville, KY 40202 (502) 561-2005 Dan@justiceky.com Laura@justiceky.com Counsel for Plaintiffs SHANNON FAUVER DAWN ELLIOTT FAUVER LAW OFFICE, PLLC 1752 Frankfort Ave. Louisville, KY 40206 (502) 569-7710 Shannon@fauverlaw.com Counsel for Plaintiffs

CERTIFICATE OF SERVICE I hereby certify that on April 25, 2014, I electronically filed the foregoing with the clerk of the court by using the CM/ECF system, which will send a notice of electronic filing to all having entered their appearance in this case.

/s/ Daniel J. Canon

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Indiana Register STATE OF INDIANA EXECUTIVE DEPARTMENT INDIANAPOLIS EXECUTIVE ORDER: 10-03 FOR: SPECIAL ELECTION TO ALL TO WHOM THESE PRESENTS MAY COME, GREETINGS WHEREAS, The Honorable Mark Souder of the County of Allen, State of Indiana, was duly elected in the general election of November 4, 2008, to the House of Representatives of the United States Congress, to represent the people of the Third Congressional District, Indiana; and WHEREAS, a vacancy exists in the office of United States Representative, Third Congressional District, Indiana, due to the resignation of the Honorable Mark Souder; and WHEREAS, the United States House of Representatives is in session and the people of the Third Congressional District of Indiana are and will be without equal representation in the United States House of Representatives. IT IS HEREBY DECREED, under the provisions of the United States Constitution and under the provisions of the Indiana Code, Title 3, Article 10, Chapter 8, that a need for a special election exists in the Third Congressional District, Indiana; NOW, THEREFORE, I, Mitchell E. Daniels, Jr., by virtue of the authority vested in me as Governor of the State of Indiana, do hereby call a special election to be held in the Third Congressional District, Indiana, as constituted on November 4, 2008, to fill the vacancy created by the resignation of the Honorable Mark Souder, as a member of the House of Representatives of the United States Congress. Nominations shall be made pursuant to the provisions of Indiana Code 3-10-8-5, 3-13-1-4, 3-8-7-15, and 3-8-6-13 at least 50 days before the date of such election. Said special election shall be held on the 2nd day of November 2010. The candidate elected by the voters of said district in said special election shall serve for the remainder of the term of the office vacated by the Honorable Mark Souder. I DO HEREBY ORDER the Clerks of the Elkhart, LaGrange, Steuben, Kosciusko, Noble, Dekalb, Whitley, and Allen County Circuit Courts, by this Writ of Election, to hold such special election for the vacated office of the Third Congressional District, Indiana, as constituted on November 4, 2008, on the 2nd day of November 2010, in accordance with the laws of the State of Indiana. IN TESTIMONY WHEREOF, I, Mitchell E. Daniels, Jr., have hereunto set my hand and caused to be affixed the great seal of the State of Indiana, at the Capitol, in the City of Indianapolis, this 28th day of May 2010. Mitchell E. Daniels, Jr. Governor of Indiana SEAL ATTEST: Todd Rokita Secretary of State Posted: 06/09/2010 by Legislative Services Agency An html version of this document.

Date: Apr 22,2014 11:03:38AM EDT

DIN: 20100609-IR-GOV100352EOA

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Executive Orders
STATE OF INDIANA EXECUTIVE DEPARTMENT INDIANAPOLIS EXECUTIVE ORDER: 04-16 FOR: DECLARING A DISASTER EMERGENCY IN THE STATE OF INDIANA DUE TO SEVERE STORMS, TORNADOES AND FLOODING. TO ALL TO WHOM THESE PRESENTS MAY COME, GREETINGS: WHEREAS, a series of severe storms swept through the southern and central parts of Indiana on May 27, 2004, and WHEREAS, the same weather system generated more severe storms and tornadoes throughout the entire state over Memorial Day weekend, and WHEREAS, many roads in Indiana were made impassable, several water rescues were performed, and homes and businesses were affected by flood waters and WHEREAS, tornadoes destroyed or damaged many more homes and businesses; and WHEREAS, all state resources available are being directed to assist victims of this intemperate weather; NOW, THEREFORE, I, Joseph E. Kernan, by virtue of the authority vested in me as Governor of the State of Indiana, do hereby DECLARE a state of disaster emergency exists in Indiana; and ORDER the state Emergency Management Agency, having already implemented the State Emergency Plan, to provide needed emergency services to the damaged areas of Indiana affected by the storms and to coordinate assistance with appropriate federal and state agencies. This declaration of disaster emergency was in effect beginning May 27, 2004 and continues. IN TESTIMONY WHEREOF, I have hereunto set my hand and caused to be affixed the Great Seal of Indiana on this 31st day of May 2004 BY THE GOVERNOR OF INDIANA Joseph E. Kernan Governor of Indiana SEAL ATTEST: Todd Rokita Secretary of State

STATE OF INDIANA EXECUTIVE DEPARTMENT INDIANAPOLIS PROCLAMATION FOR: PROMULGATION OF THE ACTS OF THE SECOND REGULAR SESSION OF THE ONE HUNDREDTHIRTEENTH GENERAL ASSEMBLY OF THE STATE OF INDIANA

WHEREAS, It has been made to appear that the Acts of the Second Regular Session of the One Hundred-Thirteenth General Assembly (2004) of the State of Indiana have been transmitted to, received by and filed with the several Clerks of the Circuit Courts of the State of Indiana in fulfillment of the requirements of Article 4, Section 28 of the Constitution of the State of Indiana and in

Indiana Register, Volume 27, Number 11, August 1, 2004 3772

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Executive Orders
accordance with IC 2-6-1.5-5; and WHEREAS, It has also been made to appear that the transmittal took place by private courier on March 30, 2004; and WHEREAS, It has also been made to appear that certification has been made, as provided by IC 1-1-3-1, of the receipt of said laws by each of the several Clerks of the Circuit Courts of the State of Indiana, with each certification listing by number all of said laws so received; and WHEREAS, It has also been made to appear that the final distribution and receipt of said laws took place on the13th day of April, 2004, at the hour of 2:03 p.m, in the office of the Clerk of the Circuit Court of White County, Indiana; NOW, THEREFORE, I, Joseph E. Kernan, Governor of the State of Indiana, by virtue of the power and authority vested in me by the Constitution and laws of this State, and pursuant to IC 1-1-3-2, do hereby make proclamation announcing the above date and time, to wit: The 13th day of April, 2004, at the hour of 2:03 p.m., as the date and hour at which the last receipt and distribution of said Acts took place with each of the several Clerks of the Circuit Courts of the State of Indiana; and declaring said distribution of said Acts to have been completed at said hour and said date, and proclaiming that all such Acts so published and circulated in the several counties of the State, by proper authority, may take effect as provided in IC 1-1-3-3; that such Acts of the Second Regular Session containing no effective date shall become effective on July 1, 2004; and that any such Acts containing a provision specifying a particular time of effectiveness after the above proclaimed day and hour may take effect at the time specified in the Act without declaration of emergency. IN TESTIMONY WHEREOF, I, Joseph E. Kernan, have hereunto set my hand and caused to be affixed this great seal of the State of Indiana on this 18th day of May, 2004. Joseph E. Kernan Governor of the State of Indiana SEAL ATTEST: Todd Rokita Secretary of State

Indiana Register, Volume 27, Number 11, August 1, 2004 3773

Indiana General Assembly - Indiana Register

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-IR- Database: Indiana Register

STATE OF INDIANA EXECUTIVE DEPARTMENT INDIANAPOLIS EXECUTIVE ORDER: 08-01 FOR: SPECIAL ELECTION TO ALL TO WHOM THESE PRESENTS MAY COME, GREETINGS; WHEREAS, The Honorable Julia Carson of the County of Marion, State of Indiana, was duly elected in the general election of November 7, 2006, to the House of Representatives of the United States Congress, to represent the people of the Seventh Congressional District, Indiana; and WHEREAS, a vacancy exists in the office of United States Representative, Seventh Congressional District, Indiana, by reason of the death of The Honorable Julia Carson; and WHEREAS, the United States House of Representatives is in session and the people of the Seventh Congressional District of Indiana are and will be without equal representation in the United States House of Representatives; IT IS HEREBY DECREED, under the provisions of the United States Constitution and under the provisions of the Indiana Code, Title 3, Article 10, Chapter 8, that a need for a special election exists in the Seventh Congressional District, Indiana; AND THAT I, MITCHELL E. DANIELS, JR., GOVERNOR OF THE STATE OF INDIANA, do hereby call a special election to be held in the Seventh
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Indiana General Assembly - Indiana Register

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Congressional District, Indiana, as constituted on November 7, 2006, to fill the vacancy created by the death of The Honorable Julia Carson, as a member of the House of Representatives of the United States Congress. Nominations shall be made pursuant to the provisions of Indiana Code 310-8-5, 3-13-1-4, 3-8-7-15 and 3-8-6-13 at least 50 days before the date of such election. Said special election shall be held on the 11th day of March, 2008. The candidate elected by the voters of said district in said special election shall serve for the remainder of the term of the office vacated by The Honorable Julia Carson. I DO HEREBY ORDER the Clerk of the Marion County Circuit Court, by this Writ of Election, to hold such special election for the vacated office of the Seventh Congressional District, Indiana, as constituted on November 7, 2006, on the 11th day of March, 2008, in accordance with the laws of the State of Indiana. IN TESTIMONY WHEREOF, I, Mitchell E. Daniels, Jr., have hereunto set my hand and caused to be affixed the great seal of the State of Indiana, at the Capitol, in the City of Indianapolis, this 7th day of January, 2008. Mitchell E. Daniels, Jr. Governor of Indiana SEAL ATTEST: Todd Rokita Secretary of State Posted: 01/16/2008 by Legislative Services Agency DIN: 20080116-IR-GOV080014EOA Composed: Apr 22,2014 11:02:19AM EDT A PDF version of this document.

http://www.in.gov/legislative/iac/20080116-IR-GOV080014EOA.xml.html

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STATE OF INDIANA

OFFICE OF THE ATTORNEY GENERAL

302
STEVE CARTER
ATTORNEY GENERAL

INDIANA GOVERNMENT CENTER SOUTH, FIFTH FLOOR W. WASHINGTON STREET INDIANAPOLIS, IN 46204-2770 TELEPHONE (317)

232-6201

April 29, 2004 OFFICIAL OPINION 2004-4 The Honorable Kathy Richardson Indiana House of Representatives Third Floor, State House Indianapolis, Indiana 46204 Re: Official Duties Dear Representative Richardson: This letter is in response to your request for an opinion regarding the following question: Pursuant to Title 31, article 11 of the Indiana Code, individuals must obtain a marriage license from the clerk of the circuit court in the county of residence of either of the individuals seeking the license. What are the requirements of a clerk of court in the performance of this duty and what may result if a clerk of court knowingly disregards state law regarding the issuance of marriage licenses? ANALYSIS Pursuant to Article 6, section 2 of the Indiana Constitution, each county elects a clerk of the circuit court.1 While the office was created by the Constitution, the duties and authority of the clerk are prescribed by statute.2 A constitutional officer may have his or her duties increased
There shall be elected, in each county by the voters thereof, at the time of holding general elections, a Clerk of the Circuit Court, Auditor, Recorder, Treasurer, Sheriff, Coroner and Surveyor, who shall severally, hold their offices for four years; and no person shall be eligible to the office of Clerk, Auditor, Record, Treasurer, Sheriff, or Coroner more than eight years in any period of twelve years. IND. CONST. art. VI, 2. 2 State v. Market, 302 N.E.2d. 528, 533-34 (Ind. App. 1973).
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Representative Kathy Richardson April 29, 2004 Page 2

or diminished by statute, but the officer has only such power as is enumerated within the four corners of the statutory enactment defining his duties, and he has no residual common law rights or powers.3 Clerks of the circuit court derive their power solely from statute and may exercise only those powers delegated by the legislature.4 As a public officer, the clerks execution of statutory duties is an exercise of the sovereign power of the state.5 The clerk of the circuit court takes an oath to faithfully support the Constitutions of the United States and the State of Indiana and to faithfully discharge the duties of the office.6 A clerk must execute a bond conditioned upon the faithful discharge of the duties of the office.7 The performance of the states sovereign power by the clerk is for the publics benefit and the office may not be used in order to further the officials own private interests which may be in conflict with the public interest.8 If a statute directs a public officer to perform duties in a specific manner, the officers actions in direct violation of the law are void.9 Public officers may not bind the State to illegal actions if the performance of such actions violates the law.10 State laws governing marriage in Indiana at Indiana Code title 31, article 11 require individuals who intend to marry to apply for a marriage license from the clerk of the circuit court of the county of residence of either of the individuals or, if the individuals are not residents of Indiana, from the clerk of the circuit court in the county where the marriage is to be solemnized.11 The law vests the clerk of the circuit court with the statutory duty to issue marriage licenses to individuals who apply for the license and who have the authority to marry each other under the states laws governing marriage.12 The clerks duties under Article 11 include verifying statutorily required information contained on the application for marriage, witnessing the signatures on a consent to marriage, recording the application for a marriage license, distributing information concerning communicable diseases, and recording marriage certificates after the solemnization of a marriage.13 The clerk also issues licenses as authorized by the circuit or superior court of the county.14 Additionally, a clerk of the circuit court may solemnize marriages.15 The clerk is instructed by statute to refuse to issue the marriage license if the applicants for licensure do not have a right to marry under state law, if either applicant has been adjudged
Id; see also Monts v. State, 496 N.E.2d 37, 39 (Ind. 1986). State ex rel. Young v. Niblack, 99 N.E.2d 839, 841 (Ind. 1951); see generally IND. CODE ch. 33-17-1. 5 Union Township of Montgomery Co. v. Hays, 207 N.E.2d 223, 224 (Ind. App. 1965). 6 IND. CONST. art 15, 4; IND. CODE 5-4-1-1. 7 IND. CODE 33-17-1-3. 8 Mosby v. Bd. of Commrs of Vanderburgh Co., 186 N.E.2d 18, 20 (Ind. App. 1963); Indiana Ethics Commn v. Nelson, 656 N.E.2d 1172, 1175 (Ind. Ct. App. 1995). 9 Campbell v. Brackett, 90 N.E. 777, 778 (Ind. App. 1910). 10 State ex rel. Socialist Labor Party v. State Election Bd., 241 N.E.2d 69, 75 (Ind. 1968) (citing Julian v. State, 39 N.E. 923 (Ind. 1895)). 11 IND. CODE 31-11-4-3. 12 IND. CODE 31-11-4-2. 13 IND. CODE ch. 31-11-2, -4, 5-2. 14 IND. CODE 31-11-1-6. 15 IND. CODE 31-11-6-1.
4 3

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mentally incompetent, or if either applicant is under the influence of alcohol or narcotic drugs.16 Upon request from those applicants who have been refused a license, the clerk may certify the refusal to the circuit court and notify the applicants of the submission to the court.17 Pursuant to statute, applicants who have been refused a marriage license by the clerk are entitled to a hearing before the circuit court regarding whether a marriage license should be issued.18 The court makes the final determination concerning the issuance of the license, and the clerk must comply with the courts order.19 Notably, the statutes do not provide the clerks with discretion as to whether to issue a marriage license. If an applicant fulfills the statutory prerequisites, or if the court orders the clerk to issue a licensee, the clerk must issue the marriage license. Conversely, if an applicant does not fulfill all of the statutory requirements, or seeks a license to solemnize a marriage prohibited by statute, the clerk has no discretion to issue the license. More particularly, the clerk whether relying on advice of counsel or independent of counsel does not have the authority to determine the constitutionality of any statute providing for or prohibiting the issuance of marriage licenses. Thus, a clerk may not decide to ignore particular statutory prohibitions, for example the prohibition against issuing licenses to same-sex couples, simply because the clerk believes that this prohibition is either ill-advised or, in the clerks opinion, unconstitutional. Nor may a clerk decide not to issue any licenses to any couples simply because the clerk believes it unfair or unconstitutional to issue marriage licenses to opposite-sex couples but not same-sex couples. The statutes dictate the clerks duties and clerks are not free to deviate from those duties based on their personal views of the law. The State of Indiana may seek an injunction and penalties against a clerk who issues marriage licenses that are not authorized by statute. For example, in 1938, the state took action against the clerk of the Lake County circuit court as a result of the improper issuance of marriage licenses by the clerk.20 The laws of the state at the time required marriage licenses be obtained and issued in the county where the female applicant resided.21 The clerk, contrary to statutory requirements at the time, had issued several thousand marriage licenses to women who were not residents of Lake County. After the clerk refused to issue licenses only in compliance with the law, the State sought and received a temporary injunction and a penalty provided by statute for violation of the law. The Indiana Supreme Court, upholding the trial courts injunction, noted a court may enjoin a public officer who is acting in breach of trust, unlawfully, or without authority.22

IND. CODE 31-11-4-2, -11. IND. CODE 31-11-4-12. 18 Id. 19 Id. 20 Sweigart v. State, 12 N.E.2d 134 (Ind. 1938). 21 Id. at 136-37. (Act of 1939, ch. 100 1, p. 513 revised the requirement and allowed for a license to be issued by a clerk in the county where either of the applicants reside.) 22 Id. at 137.
17

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Current Indiana law imposes criminal penalties for actions associated with obtaining and issuing unauthorized marriage licenses.23 A clerk of the circuit court may be charged with a Class B misdemeanor if the clerk, or a deputy of the clerk, issues a marriage license knowing that the information concerning the physical condition of the applicant is false.24 Additionally, a clerk who solemnizes a marriage in violation of Article 11 commits a Class C infraction, or a Class B misdemeanor if the individuals are prohibited from marrying under Indiana Code chapter 31-11-1.25 Finally, the failure to comply with a statutory duty may be prosecuted under the official misconduct provision of Indiana Code section 35-44-1-2. That subsection provides that a public servant who knowingly or intentionally performs an act he or she is forbidden by law to perform commits a Class A misdemeanor. County officers may be impeached, resulting in suspension or removal from office, for the commission of any misdemeanor in office.26 Furthermore, a clerk who refuses to issue marriage licenses at all may be subject to an impeachment or removal action for refusing to perform official duties.27 Additionally, there is the possibility of immediate judicial action in the form of the issuance of a temporary restraining order, followed by a preliminary injunction or an order of mandate, when public officials do not act in accordance with their statutory duties. CONCLUSION Clerks of the county circuit courts are public officials whose duties include the issuance of marriage licenses. Public officials must perform their duties in accordance with their given statutory authority and in compliance with state statutes. The act of issuing a marriage licenses is prescribed by statute and the clerk of the circuit court must carry out the act as required by statute to be performed. Clerks have no authority to undertake their own evaluations of the constitutionality of these statutes. And they may neither issue licenses that are not authorized by statute nor refuse to issue marriage licenses altogether. Sincerely,

Stephen Carter Attorney General

Rebecca Walker Deputy Attorney General

23 24

IND. CODE ch. 31-11-11. IND. CODE 31-11-11-4. 25 IND. CODE 31-11-11-5, -7 26 IND. CODE 5-8-1-1; IND. CONST. art VI, 8 27 IND. CODE 5-8-1-35; Beesley v. State, 37 N.E.2d 540 (Ind. 1941).

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IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA NEW ALBANY DIVISION ELECTRONICALLY FILED

MELISSA LOVE, et al

PLAINTIFFS vs.

MICHAEL RICHARD PENCE

DEFENDANT

) ) ) ) ) ) ) ) ) ) ) ) )

CIVIL ACTION NO. 4:14-cv-15-RLY-TAB

*******

ORDER Defendant having moved to dismiss the action in its entirety, and the Court being sufficiently advised, IT IS HEREBY ORDERED that Defendant's Motion is DENIED.