Obergefell et al v. Kasich et al

Filing 78

NOTICE by Plaintiffs John Arthur, Robert Grunn, David Brian Michener, James Obergefell of filing transcripts (Attachments: # 1 Exhibit A. July 22nd Hearing Transcript, # 2 Exhibit B. October 30th Hearing Transcript, # 3 Exhibit C. December 18th Hearing Transcript) (Gerhardstein, Alphonse)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF OHIO

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WESTERN DIVISION

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- - -

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JAMES OBERGEFELL, et al.,

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Plaintiffs,

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- v -

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CAMILLE JONES, et al.,

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Defendants.

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CASE NO. 1:13cv501
Cincinnati, Ohio
Wednesday, October 30, 2013
1:30 p.m.
MOTION TO DISMISS

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- - -

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TRANSCRIPT OF PROCEEDINGS
BEFORE THE HONORABLE TIMOTHY S. BLACK, JUDGE
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APPEARANCES:

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For the Plaintiffs:

ALPHONSE A. GERHARDSTEIN, ESQ.
JACKLYN GONZALES MARTIN, ESQ.
Gerhardstein & Branch Co. LPA
432 Walnut Street, Suite 400
Cincinnati, OH 45202

For the Defendant Wymyslo:

BRIDGET C. COONTZ, ESQ.
ZACHARY KELLER, ESQ.
Ohio Attorney General's Office
Constitutional Offices
30 East Broad Street, 16th Floor
Columbus, OH 43215

For the Defendant Jones:

AARON M. HERZIG, ESQ.
City of Cincinnati
Law Department
801 Plum Street, Room 214
Cincinnati, OH 45202

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Courtroom Deputy:

Mary Rogers

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Court Reporter:

Jodie D. Perkins, RMR, CRR

Proceedings reported by stenotype.
Transcript produced by computer-aided transcription.

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AFTERNOON SESSION, Wednesday, October 30, 2013

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(Proceedings commenced at 1:30 p.m.)

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THE COURT:

Good afternoon, ladies and gentlemen.

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Here on the record in the open courtroom in the case of James

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-- I'm terrible on pronunciation -- Obergefell, et al.,

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versus -- and I'll be bipartisan in mispronouncing -- Jones, et

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al.

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We're set for oral argument on -- here we go -Defendant, Doctor Theodore Wymyslo's motion to dismiss.

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I would like the attorneys to enter their appearances

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for the record.

Help me with who is present with you and then

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we'll proceed to oral argument.

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Who appears on behalf of the plaintiffs?

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MR. GERHARDSTEIN:

Good afternoon, Judge.

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Gerhardstein for the plaintiff.

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Al

And with me is James

Obergefell, Robert Grunn, who are plaintiffs.

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And Jackie Martin, co-counsel.

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And behind me is Adam Gerhardstein, admitted in the

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State of Minnesota and will be taking the Ohio Bar in due

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course.

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THE COURT:

Congratulations across the board.

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on behalf of the plaintiffs.

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Who appears on behalf of the defendants?

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MS. COONTZ:

Welcome

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Good afternoon, Your Honor.

Coontz with the Ohio Attorney General's Office.

Bridget

Also with me

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is Zack Keller with the Ohio Attorney General's Office.

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THE COURT:

Good afternoon to both of you.

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MR. HERZIG:

Good afternoon, Your Honor.

Aaron Herzig

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for the City of Cincinnati.

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THE COURT:

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Ms. Coontz, I sort of regret dragging you down from

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Columbus for 15 minutes of oral argument, but I think I gave

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you the option to appear by phone and, in the spirit of full

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disclosure, I'm actually grateful and comfortable that you're

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Good afternoon, Counsel.

here live.

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MS. COONTZ:

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THE COURT:

Thank you, Your Honor.
I would say this to anyone in any civil

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case:

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community, I express my condolences upon your loss.

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Mr. Obergefell, on behalf of the Court and the

We're here for oral argument.

Typically, the Court

hears first from the movant, who gets to go first and last.
I've asked that you try and limit your arguments to

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15 minutes.

I've identified three issues I would like to hear

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argued in part.

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If you go longer than 15 minutes, so be it.

You're welcome to argue whatever you choose.

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On behalf of the movant, do you wish to be heard?

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MS. COONTZ:

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THE COURT:

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MS. COONTZ:

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May it please the Court, Mr. Gerhardstein, Counsel.

Yes, Your Honor.

Thank you.

Very well.
Good afternoon, Your Honor.

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The Court has asked us here today to answer three questions.

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And the first is whether the Court can consider plaintiff's

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declaration in this facial challenge to standing.

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simple answer is no.

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And the

No one can dispute that the plaintiff has to plead

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standing with specificity, but Mr. Grunn did not do that in the

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second amended complaint, and he admits that he didn't.

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On page five of his response to the defendant's motion

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to dismiss, he states that he could not allege specific facts

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that demonstrate standing because the specific facts did not

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exist at the time the second amended complaint was filed.

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that's not only telling, but it is dispositive of his claim

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because the plaintiff has to have standing at all stages of

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this litigation.

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when the complaint was filed.

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THE COURT:

And

And he's admitting that he didn't have it

That's interesting.

I was prepared to

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launch on you.

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court, in its discretion, can ask for an amendment of the

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pleadings or affidavits to clarify standing.

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I have a Supreme Court case that says that the

MS. COONTZ:

And certainly, the Court does have the

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discretion to request amendments to pleadings and the plaintiff

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has the ability --

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THE COURT:

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MS. COONTZ:

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It talks about affidavits too.
The Court does talk -- is the Court

referring to Warth versus Seldin?

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THE COURT:

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Yes, a Supreme Court case.

MS. COONTZ:

And in Warth versus Seldin, what the

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Court said is that affidavits can be offered in a factual

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challenge to standing to offer further particularized

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allegations of standing.

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fact to support standing presupposes that there are some

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allegations in the complaint supportive of standing, and we

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simply don't have that in this situation.

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Further particularized allegations of

What we have is a plaintiff who filed a defective

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complaint who later went out and established the facts in order

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to support his standing, filed declarations after the fact to

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try to somehow amend the complaint without getting leave from

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the court to do so --

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THE COURT:

Well, leave to amend the complaint is

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freely granted if justice so requires it.

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leave to amend the complaint.

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MS. COONTZ:

I can just grant him

Well, at this point, the Court can

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certainly grant leave to amend the complaint if the Court is so

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inclined. But the plaintiff offers no authority for the

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proposition that he can file the complaint, get the facts to

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support standing after the fact, file the declarations and

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essentially use the complaint as a placeholder.

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what the complaint is.

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THE COURT:
attention.

That's not

And that's the piece that's now caught my

You're telling me that at the time that the second

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amended complaint was filed, he didn't have the factual basis

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for standing, went out and created it thereafter, and put it in

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an affidavit explaining what has now occurred?

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MS. COONTZ:

On page five of his response, plaintiff

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alleges that he could not allege the specific facts to

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demonstrate standing because the specific facts did not exist.

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The specific facts present in the declarations did not exist

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when the second amended complaint was filed.

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THE COURT:

And under that theory, what newly

developed facts now exist, post-filing of the complaint?

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MS. COONTZ:

The facts as stated in the declaration is

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moot.

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the funeral director, and the client relationship that are set

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forth in the declarations.

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the declarations, are insufficient to confer standing.

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It is the relationship between Mr. Arthur and Mr. Grunn,

Which, even if the Court considers

Which takes us to the Court's second question, which

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goes to the -- whether a close relationship exists between

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Mr. Grunn and the parties whose rights he's trying to

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vindicate.

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So even if the Court considers these declarations in

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conjunction with this complaint, they still don't establish

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this close relationship.

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And, you know, the Sixth Circuit has not looked

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favorably upon third-party standing, which is why prospective

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and hypothetical relationships are insufficient to sustain

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third-party standing.

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Mr. Grunn does not allege that he has a close

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relationship with anyone whose rights he's trying to vindicate,

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much less this hypothetical class of clients that he purports

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to represent, because that's essentially what this is.

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an end run around Civil Rule 23, an end run around class

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certification.

This is

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If Mr. Grunn went for class certification, he would

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have to prove numerosity, and he can't do that when he can't

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even identify one client with whom he has this close

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relationship.

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What he's really asking for is relief that's broad and

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narrow.

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him, but he wants it broad because he wants it to apply to all

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of this hypothetical class of clients that he purports to

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represent.

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He wants it narrow, because he wants it to apply to

THE COURT:

Who better to raise this issue as to the

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death certificate of the same-sex couple than a funeral

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director who services, in large part, the gay community?

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MS. COONTZ:

The individual plaintiffs who are

applying for the death certificate.
THE COURT:

So you do it one by one.

As people die,

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they rush into court within 24 hours and that's the only way we

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can surface whether or not -- what presents presents?

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MS. COONTZ:

And I think the Court's question goes to

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two different issues:

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and pleading those facts with specificity.

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issue that we have here is -- if the Court's position is that

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Mr. Grunn is in the best position to represent --

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THE COURT:

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MS. COONTZ:

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those interests?

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The prudential limitations on standing
And that's the

I'm asking.
Is he in the best position to represent

complaint.

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No, and he has not alleged that he is in the

Third-party standing requires not only this close

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relationship and, again, in this situation we're talking about

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hypothetical clients --

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THE COURT:

Speculative future clients.

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MS. COONTZ:

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THE COURT:

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MS. COONTZ:

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But what's notably absent from both the declarations,

-- speculative future clients.
Like the lawyer cases.
Correct, like the lawyer cases.

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as well as the complaint, is any allegation of hinderance.

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close relationship alone is not enough.

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and the complaint and the attempt to fix this third-party

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standing problem are all geared toward this relationship, which

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is why the plaintiff cites Craig and cites the cases in which

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close relationship is found.

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The

And the declarations

But if we look at the Smith versus Jefferson County

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Board of Commissioners case from the Sixth Circuit, where the

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teachers were found to have a close relationship with the

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students whose rights they were attempting to vindicate, but

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the failure to allege or assert or prove or provide any factual

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basis for establishing that those students or parents had any

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hindrance, there was any obstacle, to prevent them from

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vindicating their own rights, was fatal to the claim of

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third-party standing.

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here.

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And that's the situation that we have

The declarations that were filed after the fact are an
obvious attempt to fix this third-party standing problem, but
they still don't address the hindrance.
THE COURT:

The hindrance?

I mean, I respect you.

I

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mean, aren't you -- a person who has a spouse die and needs a

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death certificate, within 24 hours or so, faces no hindrance if

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the only way to get an accurate one is to come to court within

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those 24 hours during a period of intense grief?

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MS. COONTZ:

Well, that's certainly not what the

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complaint alleges and that's certainly not what the

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declarations -- what the declarations allege.

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Is it a tough time period?

Is it a time

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of grief?

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there's no allegation in the declarations that these

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individuals whose rights Mr. Grunn is attempting to vindicate

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can't do that.

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demonstrate that they can.

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Yes.

Absolutely.

But there's no allegation in the complaint and

And the existing plaintiffs in this case

THE COURT:

Well, Mr. Obergefell could do it because

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his partner was dying slowly from a terminal disease and they

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could see it coming and they had time to plan it and they went

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out and hired a lawyer and they brought it to the Court's

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attention.

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The new plaintiff, the only reason he was able to do

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what he did was the case was in place.

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doesn't cause me a great deal of pause.

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relationship, I'm working on.

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MS. COONTZ:

The hindrance argument
The close

And the close relationship -- whether the

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Court focuses on the close relationship or the hindrance, both

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are problematic for the plaintiffs in their ability to provide

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or to demonstrate third-party standing because the Sixth

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Circuit is specific.

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It's not hypothetical future clients.

And I think the courts -- the Eastern District of

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Michigan decision from October of 2012, the Suciu versus

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Washington case, is very instructive on this point.

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situation, you had attorneys who were challenging, on a

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constitutional basis, the Michigan's prison system's new

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restricted hours on visiting inmates, and the allegation was

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this violated their First and Sixth Amendment rights.

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In that

And what the court said, focusing on Kowolski, is the

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fact that there were no existing clients.

Just like Mr. Grunn,

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the attorneys in the Suciu case did not identify any existing

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client with whom they had to -- with whom they had a close

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relationship whose rights they had to vindicate.

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And the Court specifically held that a close

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relationship exists only between the plaintiffs and existing

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clients.

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had failed to demonstrate third-party standing.

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And without those existing clients, the plaintiffs

We have an identical situation in this particular

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case.

The plaintiff does not allege that there's a close

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relationship with anybody whose rights he has to vindicate.

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He's attempting to vindicate these rights in the abstract and

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the Sixth Circuit demands more.

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THE COURT:

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MS. COONTZ:

So we never get to the issue?
It's not that we'll never get to the

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issue, it's that the Court should restrain from getting to this

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issue in a situation, in this particular case, in the abstract

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where there is no close relationship.

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It is not that no one will ever get to this issue.

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It's that we can only reach this issue when the close

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relationship exists.

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anything with specificity to demonstrate that that close

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relationship exists.

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THE COURT:

And the plaintiff has failed to plead

But you're never going to have a close

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relationship with a funeral director except at the moment of

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death.

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MS. COONTZ:

But if that's what's required for

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standing, then that is what is required for standing.

As harsh

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as it may sound, if that's what the Sixth Circuit requires,

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that close relationship, as opposed to the hypothetical

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relationship.

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an attorney-client relationship, and I'm cognizant of that

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fact.

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existing close relationship exists.

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what the Sixth Circuit has set out for us with respect to the

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close relationship.

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THE COURT:

You know, it is harsher than in the context of

It's hard to say that somebody has to die before that
But that's, I believe,

And then you have to act on it within 24

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hours and find the lawyers capable of drafting pleadings to

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that effect in that period of time, and a judge who responds

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that quickly?

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MS. COONTZ:

For prudential limitations on standing,

yes, for that close relationship --

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THE COURT:

Okay.

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MS. COONTZ:

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The Court's other question that the Court wanted -- or

-- to exist.

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that you asked the parties to address today relates to whether

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Mr. Grunn can state a first-party 1983 claim based on his own

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rights.

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first-party standing because he's not alleged an injury in

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fact.

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complaint that he fears prosecution.

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declarations that he fears prosecution.

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fears he'll be prosecuted by Doctor Wymyslo for listing

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same-sex couples as married.

And he can't in this situation.

He has no Article III

Mr. Grunn does not allege in the second amended
He alleges in the
And he states that he

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This statement is still insufficient for two reasons:

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Number one, Doctor Wymyslo is not responsible for prosecuting

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violations of the section of Ohio law that Mr. Grunn fears

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being prosecuted under.

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THE COURT:

You have to find a county prosecutor

willing to do it.

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MS. COONTZ:

Exactly.

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THE COURT:

And you think that would be a challenge?

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MS. COONTZ:

Whether it would be a challenge is not

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necessarily an issue for Doctor Wymyslo.

It is not something

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that he's ever, to my knowledge, referred anybody for

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prosecution.

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prosecute this case -- prosecute such a violation independent

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of Doctor Wymyslo.

A county prosecutor would have the ability to

This is a situation that's very analogous to the COAST

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case in the Sixth Circuit where the Ohio Elections Commission

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would refer violations, upon a finding of probable cause, to

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the county prosecutor for prosecution.

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Doctor Wymyslo has only the authority to refer

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violations to the county prosecutor.

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prosecutor, as in the COAST case, there is no injury in fact.

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There is no credible threat of prosecution in this particular

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case.

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THE COURT:

And absent that county

But in the COAST cases, one of which

originated out of my courtroom, the folks were not saying that

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they were going to file false statements, they weren't going to

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violate the statute.

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Here, Mr. Grunn said outright, I believe, that if he

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has a same-sex couple come to him, he's going to list that

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they're married and list the surviving spouse.

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distinguish it?

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MS. COONTZ:

Doesn't that

But I think the Court's question raises

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some interesting issues within the context of this particular

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statute.

There are no annotations analyzing this particular

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statute as to whether the activity that Mr. Grunn intends to

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engage in is a violation of that particular statute.

And

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that's a decision for the county prosecutor to make.

This is a

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section of Ohio law that has not been enforced against anyone,

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to the State's knowledge.

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THE COURT:

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MS. COONTZ:

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Has anybody been violating it?

question, Your Honor.

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THE COURT:

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MS. COONTZ:

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Has anybody -- I can't answer that

prosecuted for it?

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I simply don't know the answer.

Mr. Grunn says he's done it.
Has Mr. Grunn done it?

Not to my knowledge.

Yes.

Has he been

He has not.

So the interpretation of Ohio law -- he's interpreting

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this to be a violation of Ohio law.

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law?

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Doctor Wymyslo to decide.

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Is it a violation of Ohio

That's for the county prosecutor to decide, not for

THE COURT:

Is the State in the position to disavow

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the intention to prosecute people if they say that a gay

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couples' surviving spouse is their gay partner?

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MS. COONTZ:

That's not Doctor Wymyslo's decision.

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Doctor Wymyslo doesn't have the authority to prosecute someone

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criminally for that.

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prosecutors.

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THE COURT:

MS. COONTZ:

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THE COURT:

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MS. COONTZ:

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Could the Attorney General answer that

question?

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I can't answer for the 88 county

In an opinion?
Yeah.
An Attorney General Opinion could be

sought with respect to that issue.
THE COURT:

I mean, the State does not disavow any

intent to criminally prosecute.
MS. COONTZ:

The Attorney General doesn't have the

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authority to prosecute.

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authority to prosecute.

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Doctor Wymyslo doesn't have the

Can the State affirmatively disavow any intent to

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refer anybody for a violation of 3705.29?

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disavow any such intention.

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THE COURT:

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MS. COONTZ:

No, the State cannot

Very well.
So going back to why Mr. Grunn has failed

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to state a first-party claim based on his own right, the mere

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possibility of a criminal sanction does not amount to a case of

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controversy, and that's essentially what we have, is Mr. Grunn

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saying that I fear that I'm going to be criminally prosecuted

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in this situation.

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Again, there's no authority for the proposition that

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this is something that a county prosecutor would actually take

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up and prosecute.

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has the authority to make.

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Wymyslo controls.

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That is not a decision that Doctor Wymyslo
That is not a decision that Doctor

There is, as I'm sure the Court is aware, a long chain

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of speculative events listed in the plaintiff's brief that

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would have to happen for Mr. Grunn to be prosecuted for the

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facts that he's alleged in the complaint.

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But because he's not alleged a credible threat of

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prosecution by Doctor Wymyslo, and that's what he has to

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allege, that the defendant is going to take some action against

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the litigant to demonstrate an injury in fact.

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from Morrison versus Board of Education of Boyd County from the

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Sixth Circuit.

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Doctor Wymyslo, is going to take any action against Mr. Grunn,

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in the complaint or in the declarations.

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And that is

There is no allegation that the defendant, that

Because he's not alleged that Doctor Wymyslo is going

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to take any action against him -- excuse me.

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that Doctor Wymyslo is going to take any action against him.

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And in his reply, he actually admits that prosecution is

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certainly not impending.

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He's not alleged

And again, the Sixth Circuit demands more, demands

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credible threat of prosecution.

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admitting that prosecution is certainly not impending, he can't

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demonstrate first-party injury in fact.

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Finally --

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THE COURT:

When the plaintiff is

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Moreover, he doesn't allege any

constitutional violation of his own.

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MS. COONTZ:

Correct.

Correct.

And that's the next

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point that I'm going to get to with respect to the equal

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protection claim and the possibility of an equal protection

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claim.

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claim in the complaint, in the declarations, or anywhere,

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because he doesn't allege that he's being treated differently

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from anyone.

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Mr. Grunn doesn't state any sort of equal protection

He also does not allege that he actually fits into the

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classification at issue, that is, the same-sex couples married

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in other jurisdictions that recognize same-sex marriage.

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What he's asking the Court for is actually an order

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that allows him to be treated differently than any other

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funeral director in the state of Ohio.

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order that allows him to write down same-sex marriages on death

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certificates but is not asking that that be granted to any

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other funeral director.

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THE COURT:

He's asking for an

I thought he was asking that all funeral

directors in Ohio be directed to do that.
MS. COONTZ:

In the complaint, what he's asking for is

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declaratory judgment.

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THE COURT:

Okay.

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MS. COONTZ:

So you know, we have some issues there

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with respect to the merits brief which, admittedly, I have not

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gotten all the way through since having received it yesterday,

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and the complaint, because in the complaint, this is a

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declaratory judgment action and he's not asking for injunctive

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relief.

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some form of injunctive relief.

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But in the merits brief, he seems to be asking for

But what he wants is an order that says any same-sex

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couple that comes to his funeral home can get something that no

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one else in the state can be afforded.

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And just to re-affirm, the plaintiff has to plead

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standing with specificity and he hasn't done so in this case.

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That's why these declarations were filed.

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cannot file an after-the-fact declaration to fix the many

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problems within his complaint.

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to allow him to file these declarations after the fact and

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grant the motion to dismiss.

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THE COURT:

He cannot fix -- he

And this Court should decline

And what happens if the Court grants the

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motion to dismiss?

What happens to this litigation?

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die along with Mr. Arthur?

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MS. COONTZ:

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THE COURT:

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MS. COONTZ:

Does it

No, it does not.
What happens?
Plaintiffs' merits brief was filed

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yesterday.

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obviously then, if there's any additional responsive briefing.

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But this case will still be very much alive and pending in this

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courtroom.

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The defendant has the intention to respond and,

THE COURT:

The question will be whether the Court's

order becomes a permanent injunction as to these two couples?
MS. COONTZ:

Correct.

At this point, we're just at

the temporary injunctive relief phase.
THE COURT:

And, you know, the death certificate

becomes an issue pursuant to the Court's order.
MS. COONTZ:

In my knowledge, it has never happened.

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But it is my understanding that by Ohio law, death certificates

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are amendable.

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aware of any situation in which that has happened.

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I'm not saying that that would happen.

I'm not

But I stood before this Court back in July and made

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the argument that a death certificate is amendable.

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because that's the position that the State has, and that's what

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Ohio law provides for, Mr. Arthur's death does not affect the

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future of this litigation.

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THE COURT:

MS. COONTZ:

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THE COURT:

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I don't know whether I'm

allowed to say it, but you're a good lawyer.

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Very well.

And

Thank you, Your Honor.
Very well.

Do you want some rebuttal

time, having chewed up 22 minutes?
MS. COONTZ:

Twenty-two?

Wow.

20

1

THE COURT:

2

MS. COONTZ:

3

THE COURT:

4

up.

Perhaps?
Perhaps.
Let see how much the other lawyer chews

It's been helpful to the Court.

I'm glad you came.

5

MS. COONTZ:

6

MR. GERHARDSTEIN:

7

THE COURT:

8

MR. GERHARDSTEIN:

9

Judge, let me start with first-party standing, the

10

Thank you, Your Honor.
Good afternoon, Judge.

Good afternoon.
Counsel.

issue that chewed up probably ten of those minutes.

11

THE COURT:

Okay.

12

MR. GERHARDSTEIN:

Because there really is a fear of

13

prosecution that's real and immediate.

14

affidavits that were filed.

15

And forget the extra

Let's just go with the complaint.

Paragraphs 41 and 47 say that Mr. Grunn is a licensed

16

funeral director.

17

to say he has the duty to obtain personal information.

18

statutory recorder.

19
20
21
22
23

And under 3705.16(B), the complaint goes on
He's a

And under Paragraph 46, it says that includes whether
the decedent is married and who his surviving spouse is.
Paragraph 42, we say that he has to sign the death
certificate.
Paragraphs 43 to 45, we say that he has served

24

same-sex couples who are married in the past and that he will

25

do so in the future.

21

1

Paragraph 49, he says that he's going to be listing

2

these couples as married and listing their surviving spouses by

3

name.

4

Paragraph 39, he says that when this identical issue

5

arose with respect to the death of William Ives, Defendant

6

Jones, and I'll quote, requested through her counsel that she

7

be given direction from this Court on how to respond.

8

Court subsequently issued the temporary restraining order.

The

9

And then, not to bring in things outside the

10

complaint, but she did admit that allegation when she answered

11

in document 36.

12

So, we have an allegation that was placed in the

13

second amended complaint because the funeral director is just

14

like Doctor Jones, which is something that Doctor Wymyslo has

15

totally failed to address.

16

Mr. Grunn are both statutory reporters with duties set out in

17

3705.16.

18

They're both -- Doctor Jones and

And like Jones, Mr. Grunn is so concerned about the

19

tension between accurately reporting what his clients bring to

20

him -- we are married in another jurisdiction, I want my

21

marriage on the death certificate and I'm the surviving spouse,

22

I want my name there -- he's so concerned about accurately

23

serving his clients and the criminal penalties associated with

24

false reports, that he needs a court order to protect him from

25

prosecution.

22

1

And that is the same argument that Defendant Jones

2

made in her response to the original TRO request, and that's at

3

pages two and three of document 10.

4

So if a defendant views this problem as imminent

5

enough to require court direction, certainly another mandatory

6

reporter, the funeral director, has standing to raise the same

7

argument.
And that is just like Babbitt, a Supreme Court case

8
9

where the farm worker protesters said, well, we aren't really

10

intending to give false statements when we go out and protest,

11

but that's a pretty broad statute and we're not sure what to do

12

so we need court protection in order to make sure that we don't

13

have to face prosecution for exercising our rights.

14

long as --

15
16

THE COURT:

How do you square that and these COAST

cases?

17
18

And as

MR. GERHARDSTEIN:

Well, I think there is a continuum

of the types of conduct that are involved.

19

But you actually asked the best question to sort that

20

out.

And that is:

Okay.

Is the state going to disavow

21

prosecution?

22

you need 88 prosecutors to get onboard with that, the fact is

23

that under 3710.57, Director Wymyslo has the duty to institute

24

any criminal prosecution.

25

through which any criminal prosecution gets.

And while counsel was very careful to say that

So Director Wymyslo is the gate

23

1

THE COURT:

How?

2

MR. GERHARDSTEIN:

Well, it says -- 3710.57 says:

3

prosecutions, quote, shall be instituted by the director of

4

Any

health.

5

I think that's more than just a referral.

It's like,

6

you don't get to first base unless the director of health says

7

to one of those 88 prosecutors, we have a violation hearing.

8
9

And so he's the gatekeeper.

And the director has

not -- let me go back to Babbitt because your question is how

10

do I parse that out with COAST.

11

said the state has not disavowed any intention of invoking the

12

criminal penalties.

13

way or the other, I'll give it to the plaintiff who fears

14

prosecution because the other side is hiding the ball.

15

In Babbitt, the Supreme Court

So it's like, well, if I have to err one

And here, Director Wymyslo, and you've just heard in

16

your dialogue with counsel, has similarly not disavowed any

17

intention of invoking, or of triggering, of instituting, to use

18

the words of the statute, any criminal prosecution.

19

And I think that settles it.

And when you combine

20

that with Doctor Jones feeling the same way as another

21

mandatory reporter, as another statutory reporter?

22

we've had argument, we had 46 pages of briefing, and then we

23

had statements saying:

24

prosecute.

25

happen.

I mean,

Well, I guess we can't promise not to

But it is speculative to think that it will ever

Well, you can't have it all of those ways.

And I

24

1

think that that does settle the issue of whether the

2

prosecution is imminent enough.

3
4
5

THE COURT:

So you think that settles the question of

injury in fact?
MR. GERHARDSTEIN:

Well, there's two other things we

6

have to establish:

7

is the source of this fear of prosecution, and it is.

8

Jones agrees with that as well.

9

One is whether the marriage recognition ban
Doctor

And then, third, we have to show that a court ruling

10

will solve the problem.

11

Mr. Ives died.

12

court, said, well, I need protection, and the TRO was issued in

13

part because of that.

14

And that's exactly what happened when

Doctor Jones contacted counsel, went to the

So -- so the Court ruling does solve the problem.

It

15

does say that the marriage recognition ban will be declared

16

unconstitutional as applied to these movants and, therefore,

17

the TRO was issued.

18

So, yes, all three of those things together, the fear

19

of prosecution, the connection to the marriage recognition ban,

20

and the fact that a court ruling solves the problem, gives him

21

first-party standing.

22

THE COURT:

Well, the problem with first-party

23

standing is not injury in fact, it is that he hasn't alleged

24

any constitutional violations as to him.

25

MR. GERHARDSTEIN:

Well, he is, though, because the

25

1

combination of these statutes present him with a criminal

2

prosecution for something that is constitutionally protected,

3

that is, the right for same-sex couples' marriages to be

4

recognized.

5

So if he's going to be prosecuted by declaring that

6

right in the course of his duties, that's a constitutional

7

violation.

8
9
10

THE COURT:

Forgive me, help me through it.

constitutional right would be violated by being prosecuted
for

--

11

MR. GERHARDSTEIN:

12

THE COURT:

13

MR. GERHARDSTEIN:

14
15
16
17

What

Well, first of all --

-- unconstitutional --- he will be articulating that --

if we are pursuing this line, which I'm happy to do -THE COURT:

Well, we have to for first-party standing,

don't we?
MR. GERHARDSTEIN:

Then he's saying that these

18

statutes are vague as applied to him because, in fact, he's got

19

a situation where he's told he has to provide accurate

20

information or he'll be prosecuted.

21

by submitting this accurate information about marriages in

22

another state and then he gets whacked.

23

And then he goes to do it

So, that's -- that's a vague statute.

He shouldn't be

24

prosecuted under that.

And while I have not briefed it in our

25

merits brief, if that's a central issue, I'm happy to, because

26

1

we're focused on marriage recognition.

2

certainly do that.

3
4

THE COURT:

But you know, we can

Well, can't we just proceed with third-

party standing and not get into that mess?

5

MR. GERHARDSTEIN:

We can, but he has to be injured to

6

have third-party standing, and we have shown the injury.

7

with respect to third-party standing, you know, he's on solid

8

footing.

9
10
11

THE COURT:

And

I thought the law disfavored third-party

standing.
MR. GERHARDSTEIN:

Well, it does.

But this is just

12

the kind of situation where the doctrine got created.

13

do a lot of abortion cases, and this is reminiscent of that in

14

the sense that you have a core injured party that comes and

15

goes very quickly.

16

goes to the court to get that need satisfied, goes to a doctor

17

in that situation to get it satisfied, and then is gone.

18

know, there's just no ongoing relationship.

19

I also

A plaintiff who is in a crisis, has a need,

You

Similarly, here you have to show three things for

20

third-party standing:

21

was injured by operation of law, which we just did; there's a

22

close relationship; and then you have the hindrance.

23

That the person asserting the standing

Now, we certainly have a close relationship here.

You

24

can't get a death certificate without going to somebody

25

recognized in the statute, and the funeral director is one of

27

1

those reporters, who will then -- he even has a special

2

database in his office provided by the State to provide the

3

personal information needed to get the death certificate.

4

And it's a close relationship, both in terms of the

5

way the statute is set up, but also in terms of the service

6

that's provided.

7

people are grieving.

8
9
10

It's regulated by the State because these

THE COURT:
relationship.

But there's no existing vendor-vendee

There are no clients yet, so how can we have a

close relationship with a hypothetical client?

11

MR. GERHARDSTEIN:

Well, it is not hypothetical.

It

12

is certain to happen.

13

already.

14

notice pleading once upon a time -- so he alleges in the

15

complaint that he served same-sex couples in other states

16

before and that he's going to do it in the future, that should

17

be enough.

18

He's had three experiences with this

He alleged in his complaint -- and I thought we had

Just in case there was any question, yes, we did

19

provide additional information.

Most of that, by the way, came

20

after our conference.

21

counsel had been getting along real well.

22

that there's going to be a motion to dismiss one of the

23

plaintiffs that had been proposed, so, yes, we did provide

24

additional information before they ever filed their motion, in

25

the interest of getting as much information out there as

And up until that telephone conference,
And then we learned

28

1
2

possible.
And one of those facts is, in fact, that he has

3

serviced same-sex couples in the past.

4

director in the state that's better situated to say he's going

5

to see this again.

6

gay bar that people had a great time in.

7

He's well connected in the gay community.

8

is going to be referring him to all of his friends, and he

9

knows a lot of people who are married in other states, and

10
11

There is no funeral

I mean, his place of business is in an old
He is gay himself.
And Mr. Obergefell

everybody dies.
So, at some point, we know this is going to happen.

12

It is not speculation, nothing like the lawyer-visiting cases.

13

You may never get another prisoner, that prisoner may never be

14

in that prison.

15

do everything by mail.

16

You may not want to see him, you may want to

Everybody dies.

Everybody needs a death certificate

17

and they need it now.

They need it when they're in their

18

moment of crisis.

19

don't have this figured out before people come in.

So there's certainly a hindrance if you

20

And the prospect of having every one of those

21

individual surviving spouses have to jump through a court hoop

22

in order to get this relief is outrageous.

23

is a particularly appropriate third-party standing case.

24
25

And that's why this

And the other thing, I think we need to step back and
rather than deal with it as an algebra problem, also think

29

1

about what we're trying to do.

2

the party in front of the Court is going to be a vigorous

3

advocate for this physician, that has enough stake in the

4

position that he's going to be a zealous advocate and do a

5

vigorous job.

6

We're trying to make sure that

Mr. Grunn certainly wants to do that, for his own

7

personal reasons as alleged originally in the complaint, and

8

for his business reasons.

9

appropriately.

He wants to serve everybody

He doesn't want to be the face of the State to

10

these people and say, by the way, you're going to have to wait

11

for a long time because I don't know what to do with you since

12

you were married somewhere else.

13

He's a perfect candidate to meet the purpose of

14

third-party standing.

15

appropriate.

16

And in that sense, it is totally

You know, this whole case, Judge, is a situation that

17

we came to the Court in its equity status to solve what is

18

essentially a dynamic problem.

19

spouses that have died so far and found their way to the Court

20

to seek help with their death certificates.

21

Court changed the last record of their life on this earth, and

22

but for the orders of this Court, the State of Ohio would be

23

forcing married couples to be treated as strangers with respect

24

to their deaths.

25

We have two married same-sex

The orders of this

And we know that more married couples are going to

30

1

reach this point.

I mean, everybody dies.

2

So, they should not

have to file a federal lawsuit.

3

And that was an interesting exchange.

I mean, counsel

4

basically admitted that everybody has to come to court

5

separately and file federal lawsuits in order to get an

6

adequate record of their life on earth.

7

We ought to be more creative, flexible and sensitive to the

8

needs of people at the point of their spouse's death to solve

9

this problem in a more comprehensive way.

That can't be right.

And recognizing the

10

standing of the plaintiff, Robert Grunn, is the solution to

11

that problem.

12

So, we would ask that you deny the motion to dismiss.

13

And whether you consider the affidavits or not, you

14

can deny their motion to dismiss, but I think you have

15

everything you need to do so.

16

THE COURT:

17

MR. GERHARDSTEIN:

18

THE COURT:

You're a good lawyer, too.

Thank you.

Thank you, Judge.

You came all the way from Columbus.

19

Typically, there is a brief rebuttal or reply, if you wish.

20

not, so be it.

21
22

MS. COONTZ:

Yes, Your Honor.

If

And I will not chew up

much time.

23

THE COURT:

All right.

24

MS. COONTZ:

25

able to sue in this context.

Not everyone has to come to court to be
But what Article III prudential

31

1

standing requires is that for an individual to assert

2

third-party standing, they need to do so with an existing

3

client with whom they have that close relationship -- not that

4

everybody has to come to court individually.

5

order for Mr. Grunn to have third-party standing, he has to

6

have an existing client.

7

THE COURT:

It's that in

But if they're going to get their death

8

certificate to reflect what they think the law should require,

9

they're going to have to come to court.

10

MS. COONTZ:

Absolutely.

And if Mr. Grunn is here --

11

either the individual plaintiffs come through court on the

12

first-party standing, or Mr. Grunn comes to court with an

13

existing client with whom he has that close relationship.

14

we simply don't have that in this situation in this case.

15
16
17

THE COURT:

And

So if you're not an existing client of

Mr. Grunn's, you have no recourse?
MS. COONTZ:

Once you have the standing, once you have

18

the injury in fact, you have recourse.

19

have that in this situation with hypothetical future clients.

20

THE COURT:

But we simply don't

So after your spouse dies, if you get

21

hooked up with Mr. Grunn, then you can run to court in the 24

22

hours of immediate grief?

23
24
25

MS. COONTZ:

Or the individual can come to court on

their own, yes.
THE COURT:

What do you mean, pro se?

32

1

MS. COONTZ:

No, in terms of on their own asserting

2

their first-party rights like the other plaintiffs in this case

3

have.

4

And I just wanted to briefly draw the Court's

5

attention to 3701.57 with respect to prosecution of these

6

offenses.

7

THE COURT:

8

MS. COONTZ:

9

Yes.
What that statute says is all

prosecutions and proceedings by the Department of Health -- and

10

it has a laundry list of violations of Ohio law -- not all of

11

those violations of Ohio law are criminal statutes.

12

actually civil statutes.

13

Some are

And the interpretation of that is there can be a civil

14

prosecution for a Department of Health violation or Department

15

of Health rule.

16

attorney shall prosecute violations of 3705.29.

17

specific is going to control the general.

18

3701.58 specifically says that the prosecuting
And the

And the reference to prosecution doesn't necessarily

19

mean criminal prosecution.

20

is evidenced by 3701.571, which talks about the director of the

21

Department of Health getting administrative fines from license

22

holders for individuals with violations of ODH rules.

23

It can mean civil prosecution, as

And the statute says:

On the request of the director,

24

the Attorney General shall bring and prosecute to judgment a

25

civil action.

33

1

So the use of the word "prosecution" doesn't mean

2

criminal prosecution in 3701.57.

3

controls, and only the 88 county prosecutors have the authority

4

to prosecute 3705.29.

5

THE COURT:

The specific statute

And forgive me, is your client prepared to

6

disavow any intention to refer to the county prosecutors'

7

events such as these?

8
9

MS. COONTZ:

I have not asked my client that question,

Your Honor.

10

THE COURT:

Very well.

11

MS. COONTZ:

12

THE COURT:

13

Well, oral argument actually has been very helpful.

Thank you.
Thank you.

14

It's helping me get focused.

15

by 5 o'clock today but I will act expeditiously.

16
17
18

I am not going to have a decision

I think we've accomplished what we can do.
of help to me.

The Court prepares to recess.

THE COURTROOM DEPUTY:

All rise.

19

(The proceedings concluded at 2:13 p.m.)

20

- - -

21
22
23
24
25

It's been

34

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2

C E R T I F I C A T E
I, Jodie D. Perkins, RMR, CRR, the undersigned,

3

certify that the foregoing is a correct transcript from the

4

record of proceedings in the above-entitled matter.

5
6
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8
9
10
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12
13
14
15
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s/Jodie D. Perkins
Jodie D. Perkins, RMR, CRR
Official Court Reporter