LOVE et al v. PENCE
Filing
38
ENTRY on Plaintiff's Motion to Reconsider - In light of the new evidence, the court reinstates the married Plaintiffs' claims that Section 31-11-1-1(b) are unconstitutional. The claims brought by the unmarried Plaintiffs remain dismissed, because the Governor cannot remedy the harms alleged by them. 35 Motion for Reconsideration is GRANTED in part and DENIED in part. As a resulte, the court also VACATES its 33 Entry on Plaintiff's Motion for Preliminary and Permanent Injunctive Relief, which had denied that motion as moot. See Entry for details. Signed by Judge Richard L. Young on 9/16/2014. (LBT)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
NEW ALBANY DIVISION
MELISSA LOVE, ERIN BROCK,
MICHAEL DRURY, LANE STUMLER,
JO ANN DALE, CAROL UEBELHOER,
JENNIFER REDMOND, and JANA
KOHORST,
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Plaintiffs,
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vs.
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MICHAEL RICHARD PENCE, in his
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official capacity as Governor of the State of )
Indiana
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Defendant.
4:14-cv-00015-RLY-TAB
ENTRY ON PLAINTIFFS’ MOTION TO RECONSIDER
Plaintiffs filed suit against Defendant, Michael Richard Pence, in his official
capacity as Governor of the State of Indiana, challenging the constitutionality of Indiana
Code Section 31-11-1-1 (“Section 31-11-1-1”). Section 31-11-1-1 prohibits same-sex
marriages from being celebrated or recognized in Indiana. On June 25, 2014, the court
dismissed Plaintiffs’ complaint (the “Entry”) for lack of subject matter jurisdiction.
Plaintiff now asks the court to reconsider its Entry due to newly discovered evidence.
For the reasons set forth below, the court GRANTS in part and DENIES in part
Plaintiffs’ motion.
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I.
Background
On March 7, 2014, Plaintiffs filed their Complaint challenging Indiana Code § 31-
11-1-1, entitled “Same sex marriages prohibited,” otherwise known as Indiana’s Defense
of Marriage Act. In pertinent part, the challenged statute provides:
(a) Only a female may marry a male. Only a male may marry a female.
(b) A marriage between persons of the same gender is void in Indiana even
if the marriage is lawful in the place where it is solemnized.
The Plaintiffs are two unmarried same-sex couples and two same-sex couples
married in other jurisdictions. (Complaint ¶¶ 1-9). Plaintiffs allege that Indiana’s
Defense of Marriage Act violates the United States Constitution by denying same-sex
couples the “rights, privileges, responsibilities, and immunities extended to similarly
situated opposite-sex couples.” (Id. ¶ 18). Specifically, Plaintiffs argue that the statute
violates the Due Process Clause of the Fourteenth Amendment, the Equal Protection
Clause of the Fourteenth Amendment, the First Amendment right to freedom of
association, the Full Faith and Credit Clause, the Supremacy Clause, the Fourteenth
Amendment right to travel, and the Establishment Clause of the First Amendment.
Plaintiffs named the Governor of the State of Indiana as the sole defendant, alleging that,
“[b]y implementing and enforcing the statutes discussed below, Defendant has deprived,
and continues to deprive, Plaintiffs of rights guaranteed by the United States
Constitution.” (Id. ¶ 12).
The Governor moved to dismiss this case for lack of subject matter jurisdiction.
The court granted that motion to dismiss on June 25, 2014. Since that time, the
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Governor, through his general counsel, has issued two memoranda on the issue of samesex marriages. In light of these memoranda, Plaintiffs ask the court to reconsider its
Entry pursuant to Federal Rule of Civil Procedure 59(e).
II.
Standard
A court may grant a Rule 59(e) motion to alter or amend the judgment if the
movant presents newly discovered evidence or if the movant clearly establishes a
manifest error of fact or law. See Matter of Prince, 85 F.3d 314, 324 (7th Cir. 1996). For
new evidence to be considered, the moving party must “show not only that this evidence
was newly discovered or unknown to it until after the hearing, but also that it could not
with reasonable diligence have discovered and produced such evidence during the
pendency of the motion.” Caisse Nationale de Credit Agricole v. CBI Industries, Inc., 90
F.3d 1264, 1269-70 (7th Cir. 1996).
III.
Discussion
A.
Is Reconsideration Warranted?
Plaintiffs present two memoranda issued by the general counsel to the Governor to
all executive branch agencies. These memoranda were issued on June 26, 2014, and July
7, 2014. Plaintiffs argue that the memoranda could not have been discovered until after
the court’s order on June 25, 2014, and thus constitutes new evidence warranting
reconsideration. The Governor asserts that the motion to reconsider is merely an attempt
to rehash an argument that the court rejected in its Entry dismissing the case, which is an
inappropriate use of the Rule 59(e) motion.
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As the Governor states, the court previously found that “[e]ven if the Governor did
exercise some measure of managerial authority over clerks or others who may administer
some aspect of marriage law, that authority would be insufficient to justify a suit against
the Governor for two interrelated reasons.” Those two reasons were: (1) the complainedof injury is not fairly traceable to the Governor because he lacks the authority to enforce
the challenged statute against them, and (2) because the Governor cannot enforce the
challenged statute, he cannot redress Plaintiffs’ injury. Clearly the Governor’s
representation that he does not have “any authority to enforce, or other role respecting,
Indiana Code Section 31-11-1-1” played a central role in the court’s conclusion. The
memoranda show that the court’s conclusion was based on an inaccurate premise – that
the Governor played no role in enforcing the statute. Thus, the court must revisit its prior
decision and the motion for reconsideration should be considered on its merits.
B.
Reconsidering the Entry
1.
Did the Governor Enforce the Statute?
Plaintiffs allege that the memoranda show that the Governor is able to enforce the
statute and is, in fact, enforcing the statute. The Governor counters that the memoranda
are simply providing an update and giving guidance. The court disagrees with the
Governor that the sole purpose of the memoranda was to be informative. Rather, the text
of the memoranda show that the Governor’s counsel issued them to serve two purposes –
to explain the court’s decision and to instruct the executive branch agencies on what to
do following the orders. (See July 7 Memorandum, stating “I issue the following
explanation and instructions. . . .”).
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The court agrees with Plaintiffs that the memoranda clearly show that the
Governor has the ability to direct the executive agencies to take action in regard to
Section 31-11-1-1, and that he did take such action. In the July 7 Memorandum sent to
“all executive branch agencies,” the general counsel to the Governor expresses that he
sent a memorandum on June 25, 2014, the day of the court’s order, directing all executive
branch agencies to comply with the decision. The July 7 memorandum also notes that
after the Seventh Circuit issued a stay of the court’s order, “the Governor’s general
counsel instructed all executive branch agencies to stop any processes they had
commenced in complying with the District Court order of June 25.” (Id. at ¶ 3). The
memorandum further states that “Indiana Code § 31-11-1-1 is in full force and effect and
executive branch agencies are to execute their functions as though the U.S. District Court
Order of June 25, 2014, had not been issued.” (Id.). Nevertheless, the Governor states
that “the State will comply with the Court of Appeal’s individual order recognizing the
marriage of Amy Sandler and Nikole Quasney.” (Id.). It is clear that through these
memoranda, the Governor is issuing instructions to state agencies regarding compliance
with court orders.
2.
Is the Governor a Proper Defendant?
a.
Recognition of Out-of-State Marriages
The memoranda issued by the Governor clearly contradict his prior representations
to the court. The Governor can provide the parties with the requested relief as was
evident by his initial memorandum on June 25, 2014, and he can enforce the statute to
prevent recognition as evident by his correspondence on June 27 and July 7. Thus, the
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court finds that this case is distinguishable from the cases cited by the Governor, because
it is not based on the Governor’s general duty to enforce the laws. It is based on his
specific ability to command the executive branch regarding the law. Therefore, the court
finds that the Governor can and does enforce Section 31-11-1-1(b) and can redress the
harm caused to Plaintiffs in not having their marriages recognized.
The next question is whether the Eleventh Amendment bars suit against the
Governor. Under the Eleventh Amendment, a citizen cannot sue their state in federal
court unless the state consents. However, the Supreme Court created an important
exception to that immunity in Ex Parte Young. 209 U.S. 123 (1908). Under that
doctrine, “a private party can sue a state officer in his or her official capacity to enjoin
prospective action that would violate federal law.” Ameritech Corp. v. McCann, 297
F.3d 582, 585-86 (7th Cir. 2002) (quoting Dean Foods Co. v. Brancel, 187 F.3d 609, 613
(7th Cir. 1999)). Because Plaintiffs seek an injunction to enjoin actions which violate
federal law, Ex parte Young applies. Nevertheless, the court must determine “whether
the connection is sufficiently intimate to meet the requirements of Ex parte Young.” See
Shell Oil Co. v. Noel, 608 F.2d 208, 211 (1st Cir. 1979).
The court previously did not consider this connection because a general duty to
enforce the laws is not enough. See id. As noted above, however, the Governor has
shown that he is willing and able to take affirmative action to enforce the statute as
shown in his July 7 Memorandum. The Governor’s actions are similar to those of the
governor of Utah as discussed by the Tenth Circuit in Kitchen v. Herbert, issued just
hours after the court issued its opinion in Baskin v. Bogan, No. 1:14-cv-355, 2014 WL
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2884868 (S.D. Ind. June 25, 2014), aff’d Baskin v. Bogan, No. 14-2386, 2014 WL
4359059 (7th Cir. Aug. 26, 2014) 1. In finding the Governor to be a proper party, the
Tenth Circuit noted that “state agencies with responsibility for the recognition of out-ofstate marriages are being directed by the Governor . . . .” No. 13-4178, 2014 WL
2868044, * 6 (10th Cir. June 25, 2014). The exercise of his authority along with the
executive power being vested in the Governor, provided the requisite connection to
satisfy Ex parte Young.
The Governor is vested with the executive authority in Indiana and has exercised
his authority to declare how state executive agencies should act. Thus, in accordance
with Kitchen, the court finds that there is a sufficient connection to meet the Ex parte
Young exception to Eleventh Amendment immunity.
3.
Right to Marry
Notably, the memoranda issued by the Governor are addressed to executive branch
agencies. These agencies still cannot provide the unmarried plaintiffs with the relief they
seek – to be able to marry in Indiana. The Plaintiffs have not shown that the Governor
has the authority to direct the county clerks; rather, under Indiana statute, the county
clerk’s serve the courts of that county. See Ind. Code § 33-32-2-1. Therefore, the
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Although the Seventh Circuit affirmed this court’s decision in Baskin, it did not expressly
consider whether the Governor was a proper party. Additionally, the facts regarding the role of
the Governor have changed since the time this court considered Baskin, making this matter
distinguishable. Thus, the court does not feel bound by its prior decision in Baskin that the
Governor was an improper party. Further, the court notes that the Seventh Circuit also affirmed
Wolf v. Walker, 982 F. Supp. 2d 982 (W.D. Wisc. 2014), which found the Governor to be a
proper party.
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Governor is not a proper party to challenge Indiana Code Section 31-11-1-1(a), and that
claim remains dismissed.
IV.
Conclusion
In light of the new evidence, the court reinstates the married Plaintiffs’ claims that
Section 31-11-1-1(b) are unconstitutional. The claims brought by the unmarried
Plaintiffs remain dismissed, because the Governor cannot remedy the harms alleged by
them. Thus, the court GRANTS in part and DENIES in part Plaintiffs’ motion (Filing
No. 35). As a result, the court also VACATES its Entry on Plaintiffs’ motion for
preliminary and permanent injunctive relief (Filing No. 33), which had denied that
motion as moot.
SO ORDERED this 16th day of September 2014.
s/ Richard L. Young________________
__________________________________
RICHARD L. YOUNG, CHIEF JUDGE
RICHARD L. YOUNG, CHIEF JUDGE
United States District Court
United States District Court
Southern District of Indiana
Southern District of Indiana
Distributed Electronically to Registered Counsel of Record.
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