SUPPLEMENTAL MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT COVINGTONS MOTION TO DISMISS IN LIGHT OF BOSTIC V. SCHAEFER MARCIE FISHER-BORNE, for herself and as guardian ad litem for M.F.-B., a minor; CHANTELLE FISHER-BORNE, for herself and as guardian ad litem for E.F.-B., a minor; TERRI BECK; LESLIE ZANAGLIO, for herself and as guardian ad litem for T.B.Z. and D.B.Z., both minors; SHANA CARIGNAN; MEGAN PARKER, for herself and as guardian ad litem for J.C., a minor; LEIGH SMITH; CRYSTAL HENDRIX, for herself and as guardian ad litem for J.H.-S., a minor; DANA DRAA; LEE KNIGHT CAFFERY, for herself and as guardian ad litem for M.M.C.-D. and M.L.C.-D., both minors; SHAWN LONG; CRAIG JOHNSON, for himself and as guardian ad litem for I.J.-L., a minor;
Plaintiffs, v.
JOHN W. SMITH, in his official capacity as the Director of the North Carolina Administrative Office of the Courts; THE HONORABLE DAVID L. CHURCHILL, in his official capacity as Clerk of the Superior Court of Guilford County; THE HONORABLE ARCHIE L. SMITH III, in his official capacity oas Clerk of the Superior Court for Durham County; ROY COOPER, in his official capacity as the Attorney General of North Carolina; WILLIE COVINGTON, in his official capacity as the Register of Deeds for Durham County; and JEFF THIGPEN, in his official capacity as the Register of Deeds for Guilford County;
Defendants.
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Defendant Willie Covington, in his official capacity as Register of Deeds of Durham County, in response to the Courts directive to supplement his position as to how this action should proceed in light of Bostic v. Schaefer, Nos. 14-1167, 14-1169, 14-1173, ______ F.3d. _____, 2014 WL 3702493, submits that the case should proceed in a fashion which results in the dismissal of the action against Defendant Covington and offers this Supplemental Memorandum of Law in Support of his Motion to Dismiss. NATURE OF THE CASE Plaintiffs have brought this action pursuant to 42 U.S.C. 1983, alleging North Carolinas prohibition against same sex marriages violates their rights to due process and equal protection under the United States Constitution. They seek a declaration that North Carolinas Amendment One and N.C. Gen. Stat. 51-1, 51-1.2 violate Plaintiffs rights to due process and equal protection under the United States Constitution and 42 U.S.C. 1983, and that such laws are thus void and unenforceable. Plaintiffs further seek an order directing Defendant Covington to accept marriage applications from same-sex couples and to process such applications in a manner that is consistent with the manner in which he accepts and processes applications from heterosexual couples. Additionally, Plaintiffs seek an order directing Defendant Covington to register marriage licenses of same sex couples in the same manner that he accepts and registers marriage licenses of opposite-sex couples. In furtherance of their claims for relief against Defendant Covington, Plaintiffs Shana Carignan and Megan Parker filed a Motion for a Preliminary Injunction on April 9, 2014, alleging that the states laws prohibiting the recognition of their out-of-state marriage prevents Plaintiff Carignan from adopting Plaintiff Parkers son (J.C.), and, as such, prohibits him from receiving medical coverage under her health insurance plan. Plaintiffs further allege that this Case 1:12-cv-00589-WO-JEP Document 103 Filed 08/12/14 Page 2 of 8 3
prohibition prevents J.C. from receiving the best medical care possible because he is currently only eligible to receive medical coverage through Medicaid. ARGUMENT
I. THE COURT LACKS SUBJECT MATTER JURISDICTION OVER THE PLAINTIFFS CLAIMS AS THEY PERTAIN TO DEFENDANT COVINGTON BECAUSE THE PLAINTIFFS HAVE FAILED TO ESTABLISH AN INJURY TRACEABLE TO HIM AS OUTLINED IN BOSTIC V. SCHAEFER; AND, THEREFORE, LACK STANDING TO BRING SUCH CLAIMS AGAINST HIM
On September 10, 2013 Defendant Covington moved to dismiss this action against him due to a lack of standing, arguing the standing standard established by the U.S. Supreme Court in Lujan v. Defenders of Wildlife, 504 U.S. 555, 590 (1992) had not been met. To establish standing under Lujan a plaintiff must show that he has suffered (1) an injury in fact (2) that is fairly traceable to the defendants action and (3) that the injury is likely to be redressed by a favorable decision of the court. Id. In Bostic, , the Fourth Circuit Court of Appeals addressed the issue of standing and the Courts analysis and reasoning of that issue overwhelming support the dismissal of this action as it pertains to Defendant Covington. In Bostic, there are four Plaintiffs, amounting to two same-sex couples. On July 1, 2013 one couple applied for a marriage license from the Clerk for the Circuit Court for the City of Norfolk. The clerk denied their application because they were both men. The other couple never made a marriage request of the state or any of its political subdivisions. However, all Plaintiffs brought an action pertaining to the application denial and the Defendants asserted a lack of standing as a defense. The Defendants grounded their argument on the idea that every plaintiff must have standing as to every defendant. However, the court reasoned that the Supreme Court has made it clear that the presence of one party with standing is sufficient to satisfy Article IIIs Case 1:12-cv-00589-WO-JEP Document 103 Filed 08/12/14 Page 3 of 8 4
case-or controversy requirement. Bostic v. Schaefer, Nos. 14-1167, 14-1169, 14-1173, ______ F.3d. _____, 2014 WL 3702493 (quoting Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47, 52 n.2 (2006); see also Dept of Commerce v. U.S. House of Representatives, 525 U.S. 316, 330 (1999) (holding that a case is justiciable if some, but not necessarily all, of the plaintiffs have standing as to a particular defendant); Vill. of Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S. 252, 263-64 (1977) (same). The court held that Plaintiffs claims could survive the standing challenge as long as one couple satisfies the standing requirements with respect to each defendant. Essentially, the Court held that the denial of a marriage license to one couple by Defendant George Schaefer, Clerk for the Circuit Court for the City of Norfolk [hereinafter, Clerk] was sufficient injury traceable to the Clerk to establish standing for all the Plaintiffs against the Clerk. In the present case there are twelve Plaintiffs, comprising six same-sex couples. Neither Plaintiff, as an individual or a couple, has presented to Defendant Covington requesting a marriage license or the registration of an out of state license. Therefore, neither has suffered an injury traceable to him. In applying the standard outlined in Bostic it is logical to conclude that, but for the denial of the license by the Clerk in that instance, there would not have been an injury sufficient to establish standing against the Clerk and the action against him would have been dismissed. Notwithstanding, the Bostic court does address the establishment of the injury requirement under Lujan in a different way as it pertains to state defendant, Janet Rainey. Specifically, the court states that, in equal protection casessuch as this case[w]hen the government erects a barrier that makes it more difficult for members of one group to obtain a benefit than it is for members of another group, . . . . [t]he injury in fact . . . is the denial of Case 1:12-cv-00589-WO-JEP Document 103 Filed 08/12/14 Page 4 of 8 5
equal treatment resulting from the imposition of the barrier[.] Bostic v. Schaefer, Nos. 14-1167, 14-1169, 14-1173, ______ F.3d. _____, 2014 WL 3702493 (quoting Ne. Fla. Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 666 (1993). The Courts analysis of the injury requirement in this regard is not applicable to Defendant Covington. Although he and Defendant Rainey do perform some of the same basic duties such as ensuring compliance with the States laws relating to marriage in general, including the dissemination of a marriage license application form for the state that does not allow same-sex couples to obtain marriages, she also develops and distributes birth certificate forms, oversees the rules relating to birth certificates, and furnishes forms relating to adoption so that Virginia can collect the information necessary to prepare the adopted childs birth certificate. Bostic v. Schaefer Nos. 14-1167, 14-1169, 14-1173, ______ F.3d. _____, 2014 WL 3702493. A more notable difference is that Defendant Rainey is an employee of the Commonwealth of Virginia, the agency responsible for the creation of the marriage laws, and Defendant Covington is not an employee of the State of North Carolina. In this instance Defendant Covingtons status is akin to the Clerk for the Circuit Court for the City of Norfolk and not Defendant Rainey. Applying the same analysis to Defendant Covington that the Court applied to the Clerk would result in a dismissal of this action against him.
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CONCLUSION The Complaint as it pertains to Defendant Covington should be dismissed as the Plaintiffs lack standing to bring such an action and, likewise, the Plaintiffs have failed to state a claim upon which relief can be granted. This the 12 th day August, 2014.
/s/ Kathy R. Everett-Perry Kathy R. Everett-Perry N.C. State Bar No.: 20958 Counsel for Willie Covington, in his Official Capacity as Register of Deeds for Durham County P.O. Box 3508 Durham, NC 27702 Telephone: (919) 560-0710 Fax: (919) 560-0719 E-mail: keverettperry@dconc.gov
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CERTIFICATE OF SERVICE The undersigned hereby certifies that the foregoing SUPPLEMENTAL MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT COVINGTONS MOTION TO DISMISS IN LIGHT OF BOSTIC V. SCHAEFER was filed electronically with the Clerk of Court using the CM/ECF system which will serve copies to counsel of record in this matter as indicated below: PLAINTIFFS: Jonathan D. Sasser Jeremy M. Falcone Winters, LLP P.O. Box 33550 Raleigh, NC 27636 Amy E. Richardson Wiltshire & Grannis LLP #6220 Raleigh, NC 27628
DEFENDANTS: Grady L. Balentine, Jr. Special Deputy Attorney General NC Department of Justice PO Box 629 Raleigh, North Carolina 27602
Olga E. Vysotskaya de Brito Assistant Attorney General OF COUNSEL: Rose A. Saxe James D. EsseksAmerican Civil Liberties Union Foundation 125 Broad Street New York, New York 10004-2400
NC Department of Justice PO Box 629 Raleigh, North Carolina 27602 Charles Whitehead Special Deputy Attorney General NC Department of Justice PO Box 629 Raleigh, North Carolina 27602
Elizabeth O. Gill American Civil Liberties Union Foundation 39 Drumm Street San Francisco, California 94111-4805 John Mark Payne County Attorneys Office P. O. Box 3427 Greensboro, North Carolina 27402
Christopher A. Brook ACLU of North Carolina PO Box 28004 Raleigh, North Carolina 27611-8004
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This the 12 th day of August, 2014.
/s/ Kathy R. Everett-Perry Kathy R. Everett-Perry Assistant County Attorney
Garrard R. Beeney Catherine M. Bradley William R. A. Kleysteuber David A. Castleman Daniel W. Meyler SULLIVAN & CROMWELL LLP 125 Broad Street New York, New York 10004-2498
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