Obergefell et al v. Kasich et al
Filing
62
REPLY to Response to Motion re 53 MOTION for Permanent Injunction and Declaratory Judgment filed by Plaintiffs Robert Grunn, David Brian Michener, James Obergefell. (Attachments: # 1 Exhibit A-Whitewood Order, # 2 Exhibit B-Excerpt of Perry Trial Transcript) (Gerhardstein, Alphonse)
Case 1:13-cv-01861-JEJ Document 67 Filed 11/15/13 Page 1 of 10
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DEB WHITEWOOD, et al.,
:
:
Plaintiffs,
:
:
v.
:
:
MICHAEL WOLF, in his official
:
capacity as Secretary, Pennsylvania :
Department of Health, et al.,
:
:
Defendants.
:
1:13-cv-1861
Hon. John E. Jones III
MEMORANDUM AND ORDER
November 15, 2013
Pending before the Court are the following: (1) a Motion to Dismiss filed by
Donald Petrille in his official capacity as Register of Wills and Clerk of Orphans’
Court of Bucks County (Doc. 25), and (2) a Motion to Dismiss filed by Michael
Wolf in his official capacity as Secretary of the Pennsylvania Department of
Health, and joined by Dan Meuser, as the Pennsylvania Secretary of Revenue
(Doc. 27) (collectively “the Motions”). The Motions have been fully briefed by
the parties and are therefore ripe for our review. For the reasons that follow, the
Motions shall be denied in their entirety.1
1
During the briefing period, Plaintiffs voluntarily dismissed the following defendants
without prejudice, pursuant to civil procedural rule 41(a)(1)(A): Mary Jo Poknis, in her official
capacity as Register of Wills of Washington County; Kathleen Kane, in her official capacity as
Attorney General of Pennsylvania; and Thomas W. Corbett, in his official capacity as Governor
Case 1:13-cv-01861-JEJ Document 67 Filed 11/15/13 Page 2 of 10
I.
BACKGROUND
On July 9, 2013, Plaintiffs Fredia Hurdle, Lynn Hurdle, Edwin Hill, David
Palmer, Heather Poehler, Kath Poehler, Fernando Chang-Muy, Len Rieser, Dawn
Plummer, Diana Polson, Angela Gillem, Gail Lloyd, Helena Miller, Dara
Raspberry, Ron Gebhardtsbauer, Greg Wright, Marla Cattermole, Julia Lobur,
Maureen Hennessey, Deb Whitewood and Susan Whitewood, and minor children
A.W. and K.W., filed a Complaint seeking to invalidate as unconstitutional
provisions of Pennsylvania’s Marriage Law that (a) define a marriage as the union
of “one man and one woman,” 23 Pa. C. S. § 1102, and (b) declare as void in
Pennsylvania same-sex marriages legally entered into in other jurisdictions, 23 Pa.
C. S. § 1704. Thereafter, on November 7, 2013, Plaintiffs filed an Amended
Complaint that named additional Plaintiffs whose claims are the same or
substantially similar to those of the original Plaintiffs. (Doc. 64). As noted, the
caption as set forth on the Amended Complaint also reflects the voluntary
dismissal of several Defendants and the addition of Secretary Meuser.
In their claim for relief, Plaintiffs seek: (1) a declaratory judgment that 23
Pa. C. S. §§ 1102 and 1704 violate the Due Process Clause of the Fourteenth
Amendment to the United States Constitution; (2) a declaratory judgment that 23
of Pennsylvania. (Docs. 57-59). The caption has been adjusted accordingly.
2
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Pa. C. S. §§ 1102 and 1704 violate the Equal Protection Clause of the Fourteenth
Amendment to the United States Constitution; (3) a permanent injunction enjoining
Defendants from denying Plaintiffs and other same-sex couples the right to marry
in the Commonwealth of Pennsylvania, and directing Defendants to recognize
marriages validly entered into by Plaintiffs and other same-sex couples outside of
the Commonwealth; (4) costs of suit, including reasonable attorneys’ fees under 42
U.S.C. § 1988; and (5) all other relief that the Court deems just and warranted.
As noted above, Defendants have moved to dismiss this action, arguing that
the Court lacks subject matter jurisdiction over this case. See FED. R. CIV. P.
12(b)(1). Defendant Petrille additionally argues that the matter must be dismissed
for failure to join indispensable parties pursuant to civil procedural rules 12(b)(7)
and 19. We shall address each of these arguments seriatim.2
II.
DISCUSSION
2
Defendant Petrille also advances arguments regarding the level of scrutiny applicable to
Plaintiffs’ equal protection claim and contends that, under the Due Process Clause of the United
States Constitution, the right to marry a person of the same sex is not a fundamental right.
Insofar as Defendant Petrille seeks to reach the constitutional issues which lie at the heart of this
matter, we find that such efforts are entirely premature. In the Court’s view, it would be
inappropriate to decide these significant legal issues in a vacuum, without the benefit of
discovery to fully develop the claims and meaningfully inform the Court’s determination. Such
arguments, should Defendants elect to raise them, are appropriately reserved for the summary
judgment phase of this case.
3
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A.
Subject Matter Jurisdiction
Defendants’ predominant argument is that pursuant to the United States
Supreme Court’s holding in Baker v. Nelson, 409 U.S. 810 (1972), this action must
be dismissed due to a lack of federal subject matter jurisdiction.3 We disagree that
the holding of Baker precludes this action.
The Supreme Court’s single line opinion in Baker reads as follows: “The
appeal is dismissed for want of a substantial federal question.” Id. Baker arrived
before the Supreme Court on appeal from the Supreme Court of Minnesota, which
had held that a state law banning same-sex marriages did not violate the Due
Process and Equal Protection Clauses of the United States Constitution. While we
do not disagree that Baker is considered precedential, see Hicks v. Miranda, 422
U.S. 332, 344 (1975) (dismissal for lack of a substantial federal question is a
decision on the merits), we ultimately do not find it controlling due to the
significant doctrinal developments in the four decades that have elapsed since it
was announced by the Supreme Court. See id. at 344 (“[I]f the Court has branded a
question as unsubstantial, it remains so except when doctrinal developments
indicate otherwise[.]”).
3
Pursuant to rule of procedure 12(b)(1), a claim may be dismissed for lack of subject
matter jurisdiction “when the Court lacks the statutory or constitutional power to adjudicate the
case.” Home Builders Ass’n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir.
1998)(footnote and internal quotation marks omitted).
4
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The jurisprudence of equal protection and substantive due process has
undergone what can only be characterized as a sea change since 1972. The
Supreme Court has decided several cases since Baker which demonstrate that it no
longer views constitutional challenges based on sex or sexual identity
classifications as unsubstantial. For example, when Baker was decided,
“‘intermediate scrutiny’ was not yet in the Court’s vernacular” and “classifications
based on illegitimacy and sex were not yet deemed quasi-suspect.” Windsor v.
United States, 699 F.3d 169, 179 (2d Cir. 2012) (citing Craig v. Boren, 429 U.S.
190, 218 (1976) (Rehnquist, J., dissenting) (coining “intermediate level scrutiny”);
Lalli v. Lalli, 439 U.S. 259, 264-65 (1978) (applying intermediate scrutiny to a
classification based on illegitimacy, and describing how heightened scrutiny had
been used for such classifications since 1976); Frontiero v. Richardson, 411 U.S.
677, 682 (1973) (plurality) (identifying sex as a suspect class)). The Supreme
Court had also not yet ruled that “a classification [based on sexuality] undertaken
for its own sake” lacked a rational basis. Romer v. Evans, 517 U.S. 620, 635
(1996). Further, in 1972, governments could lawfully “demean [homosexual
persons’] existence or control their destiny by making their private sexual conduct
a crime.” Lawrence v. Texas, 539 U.S. 558, 578 (2003). Finally, in June of this
year, the Supreme Court held that a federal statute defining marriage as only
5
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between heterosexual couples violated the equal protection and due process rights
of same-sex couples who had married in states where same-sex marriage is legally
recognized. See United States v. Windsor, 570 U.S. – (2013).
The foregoing demonstrates significant doctrinal developments in the areas
of due process and equal protection that eviscerate any utility or controlling effect
that Defendants posit Baker v. Nelson may have relative to the case at bar.
Accordingly, we conclude that this Court has subject matter jurisdiction over
Plaintiffs’ challenge to Pennsylvania’s marriage laws.
B.
Joinder of Parties
As to joinder, Defendant Petrille maintains that complete relief cannot be
granted unless all Clerks of the Orphans’ Court are joined in this action. He
centrally contends that only he would be bound by a judgment in Plaintiffs’ favor,
and that every other Clerk would remain obligated to enforce the Commonwealth’s
Marriage Law, potentially leading to multiple actions on the same issue. He thus
concludes that, absent joinder, “the [C]ourt would be obliged to grant partial or
‘hollow’ relief rather than complete relief to the parties before the [C]ourt.”
General Refractories Co. v. First State Ins. Co., 500 F.3d 306, 315 (3d Cir. 2007)
(quoting Advisory Comm. Notes, FED. R. CIV. P. 19) (internal quotation marks
omitted). See generally 4 MOORE’S FEDERAL PRACTICE § 19.03 (Matthew Bender
6
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3d. ed.) (admonishing that part of Rule 19’s aim is to protect “society’s interest in
the comprehensive resolution of disputes and avoidance of duplicative litigation”
and ensure “that the courts do not enter partial or ‘hollow’ judgments”).
Relevantly, a person is a required party under Rule 19 if the Court cannot
afford complete relief among existing parties without that person. See FED. R. CIV.
P. 19(a)(1)(A). Completeness of relief is considered with respect to the persons
who are already parties – “not as between a party and the absent person whose
joinder is sought.” Angst v. Royal Maccabees Life Ins. Co., 77 F.3d 701, 705 (3d
Cir. 1996) (citation omitted). Only after determining that a party is required does a
Court consider – if it is not feasible to join the party – whether a case should
proceed among the existing parties or be dismissed. See FED. R. CIV. P. 19(b).
We find that complete relief may be accorded to the extant parties without
joinder of all of the Clerks of the Orphans’ Court. In terms of relief, Plaintiffs
pertinently seek a declaratory judgment that the state laws prohibiting same-sex
marriage are unconstitutional, as well as a permanent injunction enjoining the
named defendants from denying same-sex couples the right to marry. (Doc. 64,
pp. 56-57). In this Court’s view, in order to be afforded the entirety of the relief
they seek, Plaintiffs arguably need not join any – much less all – of the Clerks of
7
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Orphans’ Court as defendants to this suit.4 These Clerks are county officers, whose
positions are “purely ministerial,” Pa. Dept. of Health v. Hanes, No. 379 M.D.
2013, 2013 WL 5469566, at *7 (Pa. Cmwlth. Sept. 12, 2013) (quoting In re
Administrative Order No. 1-MD-2003, 936 A.2d 1, 9 (Pa. 2007)), meaning that
they must perform their duties “in a prescribed manner in obedience to the mandate
of legal authority and without regard to [their] own judgment or opinion
concerning the propriety or impropriety of the act to be performed.” Council of the
City of Phila. v. Street, 856 A.2d 893, 896 (Pa. Cmwlth. 2004) (citation and
internal quotation marks omitted). Hence, if this Court renders a judgment in
Plaintiffs’ favor, all Clerks of the Orphans’ Court would be subject to the legal
mandate. Accordingly, we find that the present parties to the action can fully
litigate the legal issues and be afforded meaningful relief as contemplated by Rule
19.5
4
Presumably, Mr. Petrille was included as a defendant because Plaintiffs Angela Gillem
and Gail Lloyd, and Sandy Ferlanie and Christine Donato, unsuccessfully applied for marriage
licenses in Bucks County, where he is the Register of Wills and the Clerk of Orphans’ Court.
(Doc. 64, ¶¶ 65, 88).
5
Although Defendant Petrille’s joinder argument is grounded in Rule 19(a)(1)(A)
(completeness of relief), in the interest of thoroughness we note that Rule 19 contains two
additional bases for joinder of required parties, namely: where the absentee claims an interest
related to the subject of the case and is so situated that resolving the case without the absentee
may, practically speaking, “impair or impede the person’s ability to protect the interest”; and
where the absentee claims an interest related to the subject of the case and is so situated that
resolving the case without the absentee may “leave an existing party subject to a substantial risk
of incurring double, multiple, or otherwise inconsistent obligations because of the interest.” See
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III.
CONCLUSION
In accordance with the foregoing reasoning, the Motions shall be denied in
their entirety.
NOW, THEREFORE, IT IS HEREBY ORDERED THAT:
1.
The Motion to Dismiss filed by Defendants Wolf and Meuser (Doc.
27) is DENIED.
2.
Defendant Petrille’s Motion to Dismiss (Doc. 25) is also DENIED.
FED. R. CIV. P. 19(a)(1)(B). Thus, notably, a predicate for required joinder on these grounds is
the absentee’s interest in the subject of the action and the risk that nonjoinder could result in
certain delineated harms.
Defendant Petrille does not argue, and we do not find, that the absent Clerks of Orphans’
Court possess a legally protected interest relative to whether marriage licenses are issued to
same-sex couples. See id.; Liberty Mut. Ins. Co. v. Treesdale, Inc., 419 F.3d 216, 230 (3d Cir.
2005) (stating that a required party must possess a “legally protected interest” in the action); cf.
Husbands v. Pennsylvania, 359 F. Supp. 925, 937 (E.D. Pa. 1973) (finding that absentee school
districts were not required parties to an action challenging a district reorganization plan because
they did not have the requisite interest in the matter; explaining that, although absentee districts
“may be affected by the results of this action,” they do not “necessarily have rights cognizable
under [Rule 19(a)(1)(B)],” and noting that the school districts “played no direct role” in the
formation of district boundaries and have no power to alter them). Indeed, as noted, the
authority of the Clerks of Orphans’ Court to issue marriage licenses is wholly ministerial, subject
to statutory (or, in this case, possibly judicial) directives. See Hanes, No. 379 M.D. 2013, 2013
WL 5469566, at *8.
9
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3.
The Court will hold a second case management conference, as
scheduled, on Friday, November 22, 2013, at 10 a.m. in Courtroom 2,
at which time all counsel shall be fully prepared to engage in a
discourse regarding the commencement date of a bench trial.
s/ John E. Jones III
John E. Jones III
United States District Judge
10
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