Plaintiffs,: Brief in Support of Plaintiffs' Motion For Class Certification

Case 5:13-cv-00077-MFU-RSB Document 27 Filed 08/16/13 Page 1 of 15 Pageid#: 111
In the United States Distr ict Cour t For the Wester n Distr ict of Vir ginia Harrisonburg Division
JOANNE HARRIS and JESSICA DUFF, and CHRISTY BERGHOFF and VICTORIA KIDD, on behalf of themselves and all others similarly situated, Plaintiffs, v. ROBERT F. MCDONNELL, in his official capacity as Governor of Virginia; JANET M. RAINEY, in her official capacity as State Registrar of Vital Records; THOMAS E. ROBERTS, in his official capacity as Staunton Circuit Court Clerk, Defendants.
No. 5:13-cv-00077
BRIEF IN SUPPORT OF PLAINTIFFS MOTION FOR CLASS CERTIFICATION Plaintiffs respectfully move this Court to enter an Order certifying this case as a class action pursuant to Fed. R. Civ. P. 23(b)(2). The Commonwealth of Virginia excludes all samesex couples from the freedom to marry and refuses to recognize the validity of the marriages entered into by same-sex couples in other jurisdictions. Named Plaintiffs Joanne Harris and Jessica Duff, and Christy Berghoff and Victoria Kidd (collectively, Named Plaintiffs), have brought suit on behalf of themselves and the Plaintiff Class, seeking declaratory and injunctive relief for the violation of Plaintiffs rights under the Fourteenth Amendment to the United States Constitution. For the reasons described herein, Plaintiffs case is well suited for class treatment and meets all the requirements of Fed. R. Civ. P. 23. Plaintiffs therefore respectfully ask the Court to certify this case as a class action.
I.
INTRODUCTION AND SUMMARY This case challenges the Commonwealths refusal, based on a series of statutes and a
constitutional amendment, to allow same-sex couples to marry or recognize marriages same-sex couples have entered into in other jurisdictions (marriage ban). Named Plaintiffs Joanne Harris and Jessica Duff with to be married, but cannot because of the marriage ban; named Plaintiffs Christy Berghoff and Victoria Kidd were validly married in the District of Columbia in 2011, but the Commonwealth, pursuant to the marriage ban, does not recognize their marriage. Both couples seek to bring a class action to vindicate their rights and the rights of all similarlysituated Virginia same-sex couples. II. ARGUMENT The Court should certify this case as a class action pursuant to Federal Rule of Civil Procedure 23(a) and (b)(2). As explained below, the requirements of Rule 23(a) are met: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. Furthermore, this action is maintainable as a class action under Rule 23(b)(2) because Defendants enforcement of the marriage ban applies generally to the class by precluding all class members from marrying or having a valid marriage from another jurisdiction recognized. The injunctive and declaratory relief sought is appropriate with respect to the class as a whole. A. Summary of Applicable Standards
The decision to certify a class must occur [a]t an early practicable time after a person sues or is sued as a class representative. Fed. R. Civ. P. 23(c)(1)(A). To be certified as a class
action, Plaintiffs must satisfy the requirements of Rule 23(a) as well as the additional requirements of one of three categories of class actions, Rule 23(b)(1), (b)(2), or (b)(3). Rule 23(a) has four requirements: (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class. Fed. R. Civ. P. 23(a)(1)-(4). Plaintiff must also satisfy the requirements of one of the three types of class actions under Rule 23(b). See Gariety v. Grant Thornton, LLP, 368 F.3d 356, 362 (4th Cir. 2004). A class action may be maintained pursuant to Rule 23(b)(2) when the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole. Fed. R. Civ. P. 23(b)(2). If a lawsuit meets these requirements, certification as a class action serves important public purposes. . . . Thus, federal courts should give Rule 23 a liberal rather than a restrictive construction, adopting a standard of flexibility in application which will in the particular case best serve the ends of justice for the affected parties and . . . promote judicial efficiency. Gunnells v. Healthplan Servs., Inc., 348 F.3d 417, 424 (4th Cir. 2003) (internal quotation marks omitted, first ellipses added). As discussed below, because Plaintiffs undoubtedly satisfy the requirements of Rule 23(a), and class certification is appropriate under Rule 23(b)(2), Plaintiffs motion for class certification should be granted.
B.
Proposed Class Definitions
An order certifying a class action must define the class. See Fed. R. Civ. P. 23(c)(1)(B). Plaintiffs propose a class consisting of two subclasses. The first subclass is defined as: all persons residing in Virginia who are unmarried, and either 1. wish to marry a person of the same sex, have applied for a marriage license in the Commonwealth with a person of the same sex, and have been denied the license; or 2. wish to marry a person of the same sex in the Commonwealth, but have not attempted to apply for a marriage license because the marriage ban would render such an attempt futile. The second sub-class is defined as: all persons residing in Virginia who are validly married to a person of the same sex in another jurisdiction, and wish to have their marriage recognized by the Commonwealth. See Compl. 74. Should the Court ultimately grant the injunctive and declaratory relief Plaintiffs seek, the Commonwealth will be obligated to grant licenses to all same-sex couples who seek to marry, and to recognize the marriages of all Virginians who have been married to a person of the same sex in another jurisdiction; there will be no difficulty ascertaining who those persons are when they seek the legal benefits granted by marriage. The definition proposed by Plaintiffs objectively captures the class of persons discriminated against by the Commonwealths marriage ban. Indeed, Plaintiffs seeking to maintain a class action under Rule 23(b)(2) need not meet the same level of definiteness and ascertainability as those seeking certification under Rule 23(b)(3). See Manual for Complex Litigation 21.222 (4th ed. 2004) ([B]ecause individual damage claims are likely, Rule 23(b)(3) actions require a class definition that will permit identification of individual class members, while Rule 23(b)(1) or (b)(2) actions may not.). [I]n Rule 23(b)(2) class actions, notice is not obligatory, and it is often the case that any 4
relief obtained on behalf of the class is injunctive and therefore does not require distribution to the class. Because defendants are legally obligated to comply [with any relief the court orders] . . . it is usually unnecessary to define with precision the persons entitled to enforce compliance. Therefore, it is not clear that the implied requirements of definiteness should apply to Rule 23(b)(2) class actions at all. 1 Newberg on Class Actions 3.7 (5th ed.) (internal quotation marks omitted). Therefore, while the lack of identifiability is a factor that may defeat Rule 23(b)(3) class certification, such is not the case with respect to class certification under Rule 23(b)(2). Shook v. El Paso Cnty, 386 F.3d 963, 972 (10th Cir. 2004) (citing Yaffe v. Powers, 454 F.2d 1362, 1366 (1st Cir. 1972)). In fact, many courts have found Rule 23(b)(2) well suited for cases where the composition of a class is not readily ascertainable. Shook, 386 F.3d at 972; see also Battle v. Pennsylvania, 629 F.2d 269, 271 n.1 (3d Cir. 1980) (stating that where class action seeks only injunctive or declaratory relief . . . the district court has even greater freedom in both the timing and specificity of its class definition). C. Plaintiffs Satisfy the Criteria of Rule 23(a). 1. Numerosity
Plaintiffs meet the numerosity requirement of Rule 23(a)(1). To be maintained as a class action, the class must be so numerous that joinder of all members is impracticable. Fed. R. Civ. P. 23(a)(1). This is clearly the case here; the 2010 Census reported that .5% of all Virginia householdsover 15,000were same-sex partner households. 1 See 1 Newberg on Class Actions at 3:13 ([A] good faith estimate of the class size is sufficient when the precise number
See U.S. Census Bureau, Households and Families: 2010, Apr. 2012, at 10, 16, available at http://www.census.gov/prod/cen2010/briefs/c2010br-14.pdf. A recent survey conducted by Pew Research found that sixty percent of lesbian, gay, bisexual, or transgendered (LGBT) respondents were either married or would like to marry. See Pew Research, A Survey of LGBT Americans, June 13, 2013, available at http://www.pewsocialtrends.org/2013/06/13/a-survey-oflgbt-americans/5/#chapter-4-marriage-and-parenting. Given the Census data, this survey suggests a plaintiff class of 9,000 same-sex couplesor 18,000 individuals. 5
of class members is not readily ascertainable.). No specified number is needed to maintain a class action. Brady v. Thurston Motor Lines, 726 F.2d 136, 145 (4th Cir. 1984) (quoting Cypress v. Newport News Gen. & Nonsectarian Hosp. Assn, 375 F.2d 648, 653 (4th Cir. 1967)). As a general guideline . . . a class of 40 or more members raises a presumption of impracticability of joinder based on numbers alone. 1 Newberg on Class Actions at 3:12; see also Brady, 726 F.2d at 145 (certifying a class of 74 plaintiffs); Dashiell v. Van Ru Credit Corp., 283 F.R.D. 319, 321 (E.D. Va. 2012) (Although a class of 65 is not large enough to satisfy the Rules numerosity requirement per se, it is large enough to create a presumption of numerosity.). Here, the presence of thousands of same-sex couples in the Commonwealth who are subject to the marriage ban easily meets the numerosity requirement of Rule 23(a)(1). 2. Commonality
Plaintiffs also satisfy the requirement that there are questions of law or fact common to the class. Fed. R. Civ. P. 23(a)(2). Commonality requires the plaintiff to demonstrate that the class members have suffered the same injury. Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011) (quoting Gen. Tele. Co. of Sw. v. Falcon, 457 U.S. 147, 157 (1982)). [F]or purposes of Rule 23(a)(2), [e]ven a single [common] question will do. Id. at 2556 (internal quotation marks omitted; first bracket added). The commonality requirement is satisfied if the question is capable of classwide resolutionwhich means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke. Id. at 2551. The commonality requirement is met here. This case presents common questions, such as:
whether the Commonwealths marriage ban violates guarantees of equal protection by treating individuals differently based on their sexual orientation and their sex in relation to the sex of their life partners;
whether the Commonwealths marriage ban violates federal due process guarantees, including the fundamental right to marry, and liberty interests in autonomy and family integrity and association; and the level of constitutional scrutiny applicable to governmental discrimination based on sexual orientation.
These legal issues are common both to the claims of the Named Plaintiffs and to the claims of the unnamed class members. The marriage ban applies in the same manner throughout Virginia, barring all same-sex couples from both the legal and social status that accompanies marriage in our society and the protections that marriage affords, as well as marking them and their children as inferior to the families of couples who may marry. Virginia law constrains the actions of state officials in a uniform manner, allowing no discretion for state officers to apply the marriage ban differently to different individuals, even if they have married under the law of another state. For all of these questions, class treatment here has the capacity to generate common answers apt to drive resolution of the litigation. Id. (quotation marks omitted). Unlike in WalMart, where the Court found that commonality did not exist because plaintiffs had not identified a common mode of [each supervisor] exercising discretion that pervades the entire company, id. at 2554-55, here the statutory and constitutional marriage bans affect all plaintiffs in the exact same mannerthey prevent them from marrying or having their marriages from other jurisdictions recognized in Virginia. Injunctive and declaratory relief will resolve all plaintiffs claims in one stroke. Id. at 2551. Plaintiffs easily satisfy the commonality requirement.
3.
Typicality
The third requirement of Rule 23(a) is that the claims or defenses of the representative parties are typical of the claims or defenses of the class. Fed. R. Civ. P. 23(a)(3). For the same reasons that Plaintiffs claims meet the commonality requirement, they also meet the typicality requirement. Indeed, the Supreme Court has noted that the typicality, adequacy of representation, and commonality requirements tend[] to merge. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 626 n.20 (1997) (quotation marks omitted). The essence of the typicality requirement is captured by the notion that as goes the claim of the named plaintiff, so go the claims of the class. Deiter v. Microsoft Corp., 436 F.3d 461, 466 (4th Cir. 2006) (quoting Broussard v. Meineke Discount Muffler Shops, Inc., 155 F.3d 331, 340 (4th Cir. 1998)). The representative partys interest in prosecuting his own case must simultaneously tend to advance the interests of the absent class members. For that essential reason, plaintiffs claim cannot be so different from the claims of absent class members that their claim will not be advanced by plaintiffs proof of his own individual claim. That is not to say that typicality requires that the plaintiffs claim and the claims of class members be perfectly or identically aligned. Deiter, 436 F.3d at 466-67. Here, there is no question that the Named Plaintiffs claims are in fact identically aligned with those of the unnamed class members. Named Plaintiffs Joanne Harris and Jessica Duff, on July 29, 2013, appeared in person at the Staunton Circuit Court to apply for a marriage license; their application was denied by Defendant Thomas Roberts on account of their sex and sexual orientation. See Ex. 1 (Decl. of Joanne Harris); Ex. 2 (Decl. of Jessica Duff). Joanne and Jessica seek injunctive and declaratory relief permitting them to obtain a marriage license in the Commonwealth of Virginia, and the relief they seek is identical to that sought by all of the unnamed class members who are currently unmarried and would like to marry in their home state. Injunctive and declaratory relief requiring that marriage licenses not be denied based on 8
the sexual orientation or sex of the intended spouses would resolve the claims of all class members who wish to marry in Virginia. Named Plaintiffs Christy Berghoff and Victoria Kidd were validly married in Washington, D.C. on August 20, 2011. They became engaged in 2005. After they moved to Winchester, Virginia, in 2007, they wished to get married there, but never applied for a license in Virginia because the marriage ban would have made it a futile exercise. Instead, once the District of Columbia granted same-sex couples the freedom to marry, Christy and Victoria got married there. See Ex. 3 (Decl. of Christy Berghoff); Ex. 4 (Decl. of Victoria Kidd). But the Commonwealth does not recognize their marriage because of the marriage ban. Christy and Victoria seek injunctive and declaratory relief ensuring that the Commonwealth of Virginia and its political subdivisions will recognize their valid marriage from another jurisdiction for all purposes, and the relief they seek is identical to that sought by all of the unnamed class members who are validly married elsewhere but not currently recognized as such by their home state. The claims of the Named Plaintiffs thus are entirely aligned with the unnamed class membersall seek to marry or have their out-of-state marriages recognized, and injunctive and declaratory relief will address all claims. The typicality requirement is plainly satisfied. 4. Adequacy of Representation
The final requirement of Rule 23(a) is that the representative parties will fairly and adequately protect the interests of the class, Fed. R. Civ. P. 23(a)(4), and this inquiry overlaps with the inquiry into commonality and typicality, see Amchem, 521 U.S. at 626 n.20. The adequacy inquiry under Rule 23(a)(4) serves to uncover conflicts of interest between named parties and the class they seek to represent. Id. at 625. A minor conflict is insufficient to cause the representatives to be deemed inadequate. For a conflict of interest to defeat the
adequacy requirement, that conflict must be fundamental. Ward v. Dixie Natl Life Ins. Co., 595 F.3d 164, 180 (4th Cir. 2010) (quoting Gunnells, 348 F.3d at 430). A conflict is not fundamental when . . . all class members share common objectives and the same factual and legal positions [and] have the same interest in establishing the liability of [defendants]. Id. at 180 (internal quotation marks omitted; alterations in original). And any purported conflict must be real, not speculative or hypothetical. Id. In Ward, the defendant contended that the plaintiff was inadequate because she would receive an award in the lawsuit large enough to offset the increase in insurance premiums attributable to the litigation, and therefore she could not adequately represent those class members whose damage awards were small and who could end up with a net loss because of the litigation. Id. at 179-80. The Court rejected this argument, holding that the named plaintiff and the unnamed class members shared common objectives and factual and legal positions sufficient to satisfy the adequacy requirement. Id. at 180. In this case, the Named Plaintiffs do not have any conflictlet alone a fundamental onewith the other members of the class. The injunctive and declaratory relief they seek will benefit the entire class in the same mannergranting the freedom to marry and the recognition of marriages obtained in another jurisdiction. Furthermore, the Named Plaintiffs are knowledgeable about the facts, the litigation, and the legal obstacles same-sex couples in Virginia face, and are dedicated to actively participating in the litigation on behalf of all Virginias same-sex couples who seek the freedom to marry or who seek to have marriages they entered in other jurisdictions recognized in Virginia. See Ex 1 (Decl. of Joanne Harris); Ex. 2 (Decl. of Jessica Duff); Ex. 3 (Decl. of Christy Berghoff); Ex. 4 (Decl. of Victoria Kidd). Only if the class representatives participation is so minimal that they virtually have abdicated to their attorneys the conduct of the case should they fail to meet the adequacy of representation
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requirement. Morris v. Wachovia Sec., Inc., 223 F.R.D. 284, 296 (E.D. Va. 2004) (quoting Kirkpatrick v. J.C. Bradford & Co., 827 F.2d 718, 728 (11th Cir. 1987)). Such is not the case here. The adequacy [requirement] also factors in competency and conflicts of class counsel. Amchem, 521 U.S. at 626 n.20. Class counsel in this case easily meet the adequacy requirement of Rule 23(a)(4). The adequacy of counsel prong of Rule 23(a)(4) asks whether counsel are qualified, experienced and generally able to conduct the litigation and whether counsel will vigorously prosecute the interests of the class. 1 Newberg on Class Actions at 3.72 (internal quotation marks and citations omitted). Plaintiffs are represented by attorneys from Lambda Legal Defense and Education Fund, Inc., the American Civil Liberties Union of Virginia Foundation, Inc., the American Civil Liberties Union Foundation, and Jenner & Block LLP. These organizations, and the counsel involved in this case, have extensive experience litigating complex matters and class actions, including class actions involving matters of federal constitutional law, and all have significant experience litigating on behalf of same-sex couples and gay and lesbian individuals seeking legal recognition of their civil rights, including at the local, state, and federal levels. See Ex. 5 (Decl. of Gregory R. Nevins), Ex. 6 (Decl. of James D. Esseks), and Ex. 7 (Decl. of Paul M. Smith). For the same reasons, class counsel satisfy the requirements of Rule 23(g), which requires that the Court appoint class counsel at the time of certification, and that in doing so the Court consider (1) the work counsel has done in identifying or investigating potential claims in the action, (2) counsels experience in handling class actions, other complex litigation, and the types of claims asserted in the action, (3) counsels knowledge of the applicable law, and (4) the resources that counsel will commit to representing the class. Fed. R. Civ. P. 23(g)(1)(A)(i)-(iv).
11
Plaintiffs have met their initial burden to demonstrate adequacy of representation, 3 Newberg on Class Actions at 7.24, and absent any evidence to the contrary, the Court must thus presume the adequacy requirement has been satisfied. Id. D. Class Certification is Appropriate Under Rule 23(b)(2)
The Court should certify the class pursuant to Rule 23(b)(2). A class action may be maintained pursuant to Rule 23(b)(2) when the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole. Fed. R. Civ. P. 23(b)(2). The Supreme Court has noted that certification under Rule 23(b)(2) is particularly appropriate in [c]ivil rights cases against parties charged with unlawful, class-based discrimination. Amchem, 521 U.S. at 614; Thorn v. Jefferson-Pilot Life Ins. Co., 445 F.3d 311, 329-30 & 330 n.24 (4th Cir. 2006) (noting that Rule 23(b)(2) was created to facilitate civil rights class actions.) (citing 7AA Charles Allen Wright, Arthur R. Miller & Mary Kay Kane, FEDERAL PRACTICE & PROCEDURE 1775 (3d ed. 2005)). The key to the (b)(2) class is the indivisible nature of the injunctive or declaratory remedy warrantedthe notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them, WalMart, 131 S. Ct. at 2557 (quoting Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L. REV. 97, 132 (2009)). Such is plainly the case here. First, this is exactly the type of civil rights action Rule 23(b)(2) was created to foster. See Thorn, 445 F.3d at 330 n.24. The Commonwealth has refused to issue marriage licenses to same-sex couples, or to legally recognize marriages samesex couples have entered in other jurisdictions, on the basis of the sex and sexual orientation of the individuals involved. The marriage ban applies statewide; no same-sex couple in the
12
Commonwealth may obtain a marriage license or have their marriage from another jurisdiction recognized. There are no differences among the thousands of same-sex couples in Virginia who seek to marry or to have marriages they have entered in other jurisdictions recognized in Virginia that make the marriage ban applicable to some, but not all, and therefore injunctive and declaratory relief is appropriate respecting the class as a whole. Fed. R. Civ. P. 23(b)(2). It is precisely the classs unifying featureits members sexual orientation and sex relative to their committed partnersthat the marriage ban targets. The Court should certify this action under Rule 23(b)(2). III. Conclusion Plaintiffs represent a unified class of several thousand Virginians, all affected by the same unconstitutional series of laws banning marriage for same-sex couples and refusing to recognize marriages same-sex couples have entered in other jurisdictions. Plaintiffs have met their burden to demonstrate satisfaction of the requirements of Rule 23(a) and (b)(2), and the Court should therefore certify this suit as a class action.
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Dated: August 16, 2013 Respectfully submitted,

AMERICAN CIVIL LIBERTIES UNION OF VIRGINIA FOUNDATION, INC. /s/ . Rebecca K. Glenberg (VSB No. 44099) 701 E. Franklin Street, Suite 1412 Richmond, Virginia 23219 Phone: (804) 644-8080 Fax: (804) 649-2733 rglenberg@acluva.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION James D. Esseks Amanda C. Goad Joshua A. Block 125 Broad Street, 18th Floor New York, New York 10004 Phone: (212) 549-2500 Fax: (212) 549-2650 jesseks@aclu.org agoad@aclu.org jblock@aclu.org JENNER & BLOCK LLP Paul M. Smith Luke C. Platzer Mark P. Gaber 1099 New York Avenue, NW Suite 900 Washington, D.C. 20001-4412 Phone: (202) 639-6000 Fax: (202) 639-6066 psmith@jenner.com lplatzer@jenner.com mgaber@jenner.com
LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. Greg Nevins 730 Peachtree Street, NE, Suite 1070 Atlanta, Georgia 30308 Phone: (404) 897-1880 Fax: (404) 897-1884 gnevins@lambdalegal.org Tara L. Borelli 3325 Wilshire Boulevard, Suite 1300 Los Angeles, California 90010 Phone: (213) 382-7600 Fax: (213) 351-6050 tborelli@lambdalegal.org
Counsel for Plaintiffs
14
CERTIFICATE OF SERVICE I hereby certify that on the 16th day of August 2013, I effected service upon counsel for Defendants Robert F. McDonnell and Janet M. Rainey by electronically filing the foregoing with the Clerk of the Court using the CM/ECF system, and that I also sent a filed courtesy copy of the same by U.S. Mail, postage prepaid. I also certify that I served the foregoing by U.S. Mail, postage prepaid, to Defendant Thomas Roberts, Staunton Circuit Court Clerk. E. Duncan Getchell, Jr. Solicitor General of Virginia Office of the Attorney General 900 East Main Street Richmond, Virginia 23219 (804) 786-7240 dgetchell@oag.state.va.us Rita W. Beale, Deputy Attorney General rbeale@oag.state.va.us Allyson K. Tysinger Senior Assistant Attorney General/Chief atysinger@oag.state.va.us Michael H. Brady Assistant Solicitor General mbrady@oag.state.va.us Counsel for Defendants Robert F. McDonnell and Janet M. Rainey Thomas Roberts Staunton Circuit Court Clerk 113 East Beverly Street Staunton, VA 24401 (540) 332-3874 Defendant
August 16, 2013
/s/ . Rebecca K. Glenberg (VSB No. 44099) 701 E. Franklin Street, Suite 1412 Richmond, Virginia 23219 Phone: (804) 644-8080 Fax: (804) 649-2733 rglenberg@acluva.org 15
Case 5:13-cv-00077-MFU-RSB Document 27-1 Filed 08/16/13 Page 1 of 4 Pageid#: 126
EXHIBIT 1
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA HARRISONBURG DIVISION
No. 5:13-cv-00077
DECLARATION OF JOANNE HARRIS
I, Joanne Harris, hereby declare as follows: 1. The testimony set forth in this Declaration is based on first-hand knowledge, about which
I could and would testify competently in open Court if called upon to do so. 2. I am a life-long Virginian, and have been in a loving relationship with Jessica Duff
(Jessi) for the past eleven years. 3. I am the Director of Diversity and Advocacy at Mary Baldwin College in Staunton,
Virginia, and am 37 years old. Together, Jessi and I live in Staunton with our four-year-old son J. H.-D.
4.
Jessi and I have wished to marry each other for a long time. In 2006, we decided to have
a commitment ceremony to publicly share our love, and to demonstrate our mutual commitmentsomething we each believe to be important prior to starting a family. It was one of the happiest days of our lives, but we both were well aware that despite our display of commitment, we would not be afforded any of the rights that come with being married. 5. For that reason, on July 29, 2013, I appeared in person with Jessi at the Staunton Circuit
Court to apply for a marriage license; our application was refused by Staunton Circuit Court Clerk Thomas E. Roberts based on our sexual orientation and sex in relation to each other. As a result, we filed this lawsuit seeking to have our constitutional rights recognized. 6. I am committed to actively participating in this lawsuit. This is no small matter for me.
My inability to marry Jessi affects both of our lives every day. As just one example, I am J. H.D.s biological mother; under Virginia law, Jessi has no legal relationship with him, as she would if our 2006 commitment ceremony had instead been a marriage ceremony. Jessi also is unable to adopt J. H.-D. as a co-parent under Virginia law. 7. I fear what might happen if J. H.-D. and I were in an accident and Jessi needed to
authorize medical care, because Jessi lacks clear legal authority to do so under Virginia law. I also fear that my parents might try to override Jessis role as J. H.-D.s mother should a tragedy occur. If we are able to become married under the law, these fears would be allayed because Jessi could secure her relationship to J. H.-D. by adopting him. 8. As a result, I have a deep and personal stake in this litigation. I will be an active
participant in the case, both for myself and on behalf of all other lesbian and gay Virginians who wish to marry. I understand and accept the responsibility that comes with seeking to represent this class.
EXHIBIT 2
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA HARRISONBURG DIVISION
No. 5:13-cv-00077
DECLARATION OF JESSICA DUFF
I, Jessica Duff, hereby declare as follows: 1. The testimony set forth in this Declaration is based on first-hand knowledge, about which
I could and would testify competently in open Court if called upon to do so. 2. I am a life-long Virginian, and have been in a loving relationship with Joanne Harris
(Joanne) for the past eleven years. 3. I work for child protective services, conducting child abuse investigations with
Shenandoah Valley Social Services, and am 33 years old. Together, Joanne and I live in Staunton with our four-year-old son J. H.-D.
4.
Joanne and I have wished to marry each other for a long time. In 2006, we decided to
have a commitment ceremony to publicly share our love, and to demonstrate our mutual commitmentsomething we each believe to be important prior to starting a family. It was one of the happiest days of our lives, but we both were well aware that despite our display of commitment, we would not be afforded any of the rights that come with being married. 5. For that reason, on July 29, 2013, I appeared in person with Joanne at the Staunton
Circuit Court to apply for a marriage license; our application was refused by Staunton Circuit Court Clerk Thomas E. Roberts based on our sexual orientation and sex in relation to each other. As a result, we filed this lawsuit seeking to have our constitutional rights recognized. 6. I am committed to actively participating in this lawsuit. This is no small matter for me.
My inability to marry Joanne affects both of our lives every day. As just one example, Joanne is J. H.-D.s biological mother; under Virginia law, I have no legal relationship with him, as I would if our 2006 commitment ceremony had instead been a marriage ceremony. I also am unable to adopt J. H.-D. as a co-parent under Virginia law. 7. I fear what might happen if Joanne and J. H.-D. were in an accident and I needed to
authorize medical care, because I lack clear legal authority to do so under Virginia law. I also fear that Joannes parents might try to override my role as J. H.-D.s mother should a tragedy occur. If Joanne and I could marry each other, these fears would be allayed because I could secure my relationship to J. H.-D. by adopting him. 8. As a result, I have a deep and personal stake in this litigation. I will be an active
participant in the case, both for myself and on behalf of all other lesbian and gay Virginians who wish to marry. I understand and accept the responsibility that comes with seeking to represent this class.
EXHIBIT 3
EXHIBIT 4
EXHIBIT 5
I N THE UNITED STATES DISTRICT C OURT F OR THE W ESTERN DISTRICT OF VIRGINIA HARRISONBURG DIVISION
No. 5:13-cv-00077
DECLARATION OF GREGORY R. NEVINS I, Gregory R. Nevins, hereby declare as follows: 1. I am the Supervising Senior Staff Attorney in the Southern Regional Office of Lambda
Legal. The testimony set forth in this Declaration is based on first-hand knowledge, about which I could and would testify competently in open Court if called upon to do so. This Declaration is submitted in support of Plaintiffs Motion for Class Certification. 2. I received a Bachelors Degree in economics, graduating summa cum laude from the
University of Memphis, and graduated cum laude from Harvard Law School in 1989. I joined Lambda Legal in 2002 after working as deputy city attorney with the San Francisco City Attorneys Office, where I submitted San Franciscos friend-of-the-court brief in a tragic case on
behalf of a lesbian whose partner was fatally mauled by her neighbors dogs. Prior to that, I was an attorney for ten years in the San Francisco office of Morrison & Foerster. 3. During my time at Lambda Legal I have successfully argued such cases as Glenn v.
Brumby, 663 F.3d 1312 (11th Cir. 2011) (transitioning employee held to have suffered sex discrimination); Miller v. Jenkins, 678 S.E.2d 268 (Va. Ct. App. 2009) (requiring interstate recognition of decree recognizing parental rights of nonbiological parent) and Prashad v. Copeland, 685 S.E.2d 199 (Va. Ct. App. 2009) (same), and was counsel in Roe v. City of Atlanta, 456 Fed. Appx. 820 (11th Cir. 2012) (reversing summary judgment for city in HIV discrimination case). I also was counsel in Perdue v. Mississippi State Bd. of Health (after the state refused to issue a new birth certificate with a four-year-old boys adoptive name and parents listed, securing a ruling ordering the state to do so), and Kaufman v. Virginia Dept of Social Services (prevailing in a challenge after the state blocked an exemplary mother from adopting a child from the District of Columbias foster care system solely because she is a lesbian). 4. I also recently authored amicus briefs for Lambda Legal in TerVeer v. Billington, U.S.
Dist. Court, Dist. of Columbia, Civil Action No. 12-1290 (CKK), which explained why sexual orientation discrimination is covered under Title VIIs prohibition of sex discrimination, and in EEOC v. Boh Brothers, No. 11-30770, United States Court of Appeals for the Fifth Circuit (en banc), explaining that Title VII is violated by any severe or pervasive harassment of an employee that would not have occurred but for his/her gender, and such violation is not vitiated by the targeted employees actual conformity with gender norms or self perception thereof. 5. The Southern Regional Office of Lambda Legal has won victories that include helping
overturn Georgias consensual sodomy law, helping end a ban on Georgia insurance companies
offering heath policies for domestic partners, preserving domestic partner benefits in Broward County, Florida, and extending Atlantas antibias law to lesbians and gay men. 6. Lambda Legal has been counsel for plaintiffs in the following marriage equality cases:
Sevcik v. Sandoval, 911 F. Supp. 2d 996 (D. Nev. 2012), appeal docketed, No. 12-578 (9th Cir. Dec. 4, 2012); Darby v. Orr, No. 12 CH 19718 (Cook County Chancery Court) (IL May 30, 2012); Garden State Equality v. Dow, No. MER L-1729-11 (Superior Ct. of New Jersey, Mercer Div. (N.J. June 29, 2011); Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009); Strauss v. Horton, 46 Cal. 4th 364 (Cal. 2009) (securing the validity of the 18,000 marriages entered in California before Proposition 8 was approved by voters); In re Marriage Cases, 43 Cal. 4th 757 (Cal. 2008); Anderson v. King County, 138 P.3d 963 (Was. 2006); Hernandez v. Robles, 855 N.E. 2d 1 (NY 2006); Lewis v. Harris, 188 NJ 2006); Baehr v. Lewin, NO. 91-1394 (Circuit Ct. of the First Circuit) (Haw. Dec. 3, 1996), appeal dismissed as moot sub nom., Baehr v. Miike, 92 Haw. 634 (Haw. 1999). Lambda Legal has also been involved as amici curiae in Hollingsworth v. Perry, 133 S. Ct. 2652 (2013); Kerrigan v. Commr of Public Health, 289 Conn. 135 (Conn. 2008) Conaway v. Deane, 932 A.2d 571 (Md. 2007); Goodridge v. Dept of Public Health, 798 N.E. 2d 941 (Mass. 2003); and Baker v. Vermont, 744 A.2d 864 (Vt. 1999). 7. Lambda Legal was also involved in the court challenges to Section 3 of the Defense of
Marriage Act in Golinski v. United States Office of Personnel Mgmt., 824 F. Supp. 2d 968 (N.D. Cal. 2012), appeal dismissed as moot, __ F.3d __ (9th Cir. 2013) (co-counsel for plaintiff); United States v. Windsor, 133 S. Ct. 2675 (2013) (counsel for amici curiae), Massachusetts v. United States Dept of Health and Human Svcs., 682 F.3d 1 (1st Cir. 2012) (counsel for amici curiae). And Lambda Legal was also co-counsel in both Romer v. Evans, 517 U.S. 620 (1996) and Lawrence v. Texas, 539 U.S. 558 (2003).
8.
Lambda Legal also has experience in putative class action cases, including as counsel for
defendant-intervenors in Protect Marriage Illinois v. Orr, 459 F. Supp. 2d 526, affd 436 F.3d 2004 (7th Cir. 2006) and as amicus in Baker v. Wade, 743 F.3d 236 (5th Cir. 1984), revd en banc, 769 F.2d 289 (1985). 9. The other Lambda Legal attorney involved in this case is Tara L. Borelli. Her biography
is attached hereto as Exhibit A. 10. Lambda Legal, and the specific members of this litigation team, are dedicated to
vigorously representing our clients, on behalf of the entire class, in this case.
I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge and ability.
August 14, 2013
/s Gregory R. Nevins Gregory R. Nevins
EXHIBIT A Brief Biography of Lambda Legal Attorney Tara L. Borelli Tara L. Borelli is a Staff Attorney with Lambda Legals Western Regional Office in Los Angeles, CA. Ms. Borellis work at Lambda Legal includes litigation seeking greater relationship recognition for same-sex couples, and strengthening antidiscrimination protections for LGBT people and those living with HIV. Ms. Borelli received her J.D. from Boalt Hall, the School of Law at the University of California, Berkeley in 2001, and her B.A. from the University of California, Davis. Ms. Borelli currently is co-counsel in Sevcik v. Sandoval, a federal case seeking marriage equality for same-sex couples in Nevada. Ms. Borelli was also co-counsel in Golinski v. U.S. Office of Personnel Management, obtaining a district court ruling that Section 3 of the federal Defense of Marriage Act is unconstitutional, and that classifications based on sexual orientation are entitled to heightened constitutional review. Ms. Borelli also was co-counsel in Young v. Lingle, a case seeking civil unions for same-sex couples in Hawaii, which the legislature approved after Lambda Legal filed its lawsuit. Ms. Borelli helped secure equal treatment for California registered domestic partners in Ellis v. Arriaga, obtaining a decision from California's Fourth Appellate District confirming that domestic partners have the same rights and responsibilities as heterosexual spouses. Ms. Borelli applied the same principle to same-sex spouses in California by negotiating on behalf of SkyWest Airlines employee Gilbert Caldwell to secure equal employment benefits for Caldwells spouse. Ms. Borelli coordinates Lambda Legals work on health care fairness, which includes litigation to obtain equal access to family health benefits and enforce antidiscrimination protections in health care settings. Ms. Borelli is lead counsel in Diaz v. Brewer, a federal challenge seeking to protect family health insurance for Arizona state employees after the legislature voted to strip that insurance from lesbians and gay men. Ms. Borelli also was co-counsel in Esquivel v. Oregon, a case resulting in settlement removing restrictions on transition-related care for all transgender employees of the State of Oregon. Ms. Borelli previously obtained equal family health coverage for Washington firefighter paramedics and a lead 911 dispatcher in deGroen v. City of Bellevue, and for police officers in Redmond, Washington. Ms. Borelli also represented an Eastern Washington man denied medical care because he is gay, resulting in a settlement agreement with strong protections to help prevent future discrimination. Ms. Borelli also has advocated on behalf of LGBT and allied students in California, Oregon and Washington who have faced bullying and harassment, unlawful restrictions on their Gay Straight Alliance activities, and unconstitutional limitations on their right to be openly gay in school. Ms. Borelli has been recognized by the Daily Journal as one of Californias Top 100 Lawyers (2012) and Top Women Lawyers (2012). She received a Legal Service Award from the Bay Area Lawyers for Individual Freedom for her work on Golinski v. OPM (2012), and was named one of the Best LGBT Lawyers Under 40 by the National LGBT Bar Association in 2011. Ms. Borelli is a member of the State Bars of California and Washington.
EXHIBIT 6
No. 5:13-cv-00077
DECLARATION OF JAMES D. ESSEKS I, James D. Esseks, hereby declare as follows: 1. I am the Director of the American Civil Liberties Union (ACLU) Lesbian, Gay,
Bisexual, Transgender Project (the LGBT Project). The testimony set forth in this Declaration is based on first-hand knowledge, about which I could and would testify competently in open Court if called upon to do so. This Declaration is submitted in support of Plaintiffs Motion for Class Certification.I have been Director of the LGBT Project at the ACLU since 2010. From 2001 through 2010, I was the LGBT Projects Litigation Director. In my current position at the ACLU, I oversee litigation, legislative lobbying, policy advocacy, organizing, and public education around the country that aims to ensure equal treatment of LGBT people by the government; equal protections for LGBT couples and families; protection from discrimination in
jobs, schools, housing, and public accommodations; and fair treatment of people living with HIV. 2. As Director and Litigation Director for the LGBT Project, I have supervised all of the
LGBT Projects litigation on LGBT rights issues around the country since 2001, which has included cases before the United States Supreme Court plus at least 11 federal circuit courts, 21
federal district courts, and the state courts of 34 states, including 18 state high courts. That litigation has been staffed by ACLU LGBT Project staff lawyers, by staff lawyers working for ACLU state affiliates (such as the ACLU of Virginia), as well as by lawyers in private firms working as cooperating attorneys for the ACLU.
3.
The ACLU has been an advocate for the rights of LGBT people since bringing its first
gay rights case in 1936. In 1970, the ACLU filed the first lawsuit seeking the freedom to marry for same-sex couples in the country, and has been actively involved in marriage-related litigation ever since. For example, the ACLU, together with private co-counsel, litigated United States v. Windsor, 570 U.S. __, 2013 WL 3196928 (June 26, 2013), the case in which the United States Supreme Court declared that Section 3 of the Defense of Marriage Act violates the equal protection guarantee of the federal Constitution. I was lead counsel for the ACLU in Windsor and was deeply involved in the litigation of that case in the district court, court of appeals, and Supreme Court, along with co-counsel from a private firm. 4. In addition, the ACLU (including myself individually) is currently or has in the past been
counsel in the following cases related to the freedom to marry for same-sex couples: Whitewood v. Corbett, No. 13cv1861 (M.D. Penn.) (pending federal constitutional challenge to marriage law); Fisher-Borne v. Smith, No. 1:12-cv-00589-UA-JEP (M.D.N.C.) (pending federal constitutional challenge to marriage and adoption laws); Griego v. Oliver, No. D-202-CV-201302757 (Second Judicial District Court, Bernalillo County, New Mexico) (pending state 2
constitutional challenge to marriage law); Lazaro v. Orr, No. 12 CH 19719 (Circuit Court of Cook County, Illinois) (pending state constitutional challenge to marriage law); In re Marriage Cases, 183 P.3d 384 (Cal. 2008) (state constitutional challenge to marriage law); Conaway v. Deane, 932 A.2d 571 (Md. 2007) (state constitutional challenge to marriage law); Hernandez v. Robles, 855 N.E.2d 1 (NY 2006) (consolidated with Samuels v. Dept of Health) (state constitutional challenge to marriage law); Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir. 2006) (federal constitutional challenge to Nebraskas state marriage amendment); and Li v. Oregon, 110 P.3d 91 (Or. 2004) (state constitutional challenge to marriage law). 5. ACLU state affiliates have also been counsel in other marriage cases, including in
Anderson v. King County, 138 P.3d 936 (Wash. 2006) (consolidated with Castle v. State) (state constitutional challenge to marriage law) and Kerrigan v. Commr of Public Health, 975 A.2d 407 (2008) (state constitutional challenge to marriage law). The ACLU affiliates litigating those cases consulted with us here at the ACLU LGBT Project about the cases as they progressed. 6. The ACLU has also been counsel in numerous other state and federal constitutional cases
about LGBT rights over many years. The ACLU was co-counsel with Lambda Legal in Romer v. Evans, 517 U.S. 620 (1996), in which the United States Supreme Court struck down an amendment to the Colorado constitution that barred civil rights protections just for lesbians and gay men, but not for heterosexual people. In addition, the ACLU (including myself individually) was counsel in constitutional challenges to bans on adoption or foster parenting by lesbians and gay men, achieving victories in courts in Florida, Florida Dept of Children & Families v. Adoption of X.X.G., 45 So.3d 79 (Fla. Dist. Ct. App. 2010); Arkansas, Arkansas Dept of Human Servs. v. Howard, 238 S.W.3d 1 (Ark. 2006); Arkansas Dept. of Human Services v. Cole, 380
S.W.3d 429 (Ark. 2001); and Missouri, Johnston v. Missouri Dept. of Social Services, 2006 WL 6903173 (Missouri Circuit Ct., Jackson County, Feb. 17, 2006). 7. The ACLU and I individually have extensive experience with class action litigation. I Lott v. Westinghouse Savannah River
have been counsel in the following class actions:
Company, 200 F.R.D. 539 (D.S.C. 2000); County of Suffolk v. Stone & Webster Engineering Corp., 106 F.3d 1112 (2d Cir. 1997); and District Council 37 v. New York City Dept. of Parks and Recreation, 113 F.3d 347 (2d Cir. 1997). The LGBT Project has further class action experience. In Collins v. United States, before the United States District Court for the District of New Mexico, the Project worked to obtain separation pay for a class of service members discharged under the now-defunct Dont Ask Dont Tell policy. In addition, the LGBT Project with other co-counsel is currently actively involved in a certified class action in the United States District Court for the Middle District of Alabama, Henderson v. Thomas. After a five-week trial last year, we obtained a favorable ruling on liability regarding the Alabama Department of Corrections practices of segregating and systematically discriminating against hundreds of HIVpositive prisoners. 913 F. Supp. 2d 1267 (M.D. Ala. 2012). And the ACLU more broadly is counsel to plaintiffs in class action cases on a routine basis, especially in the context of prison and other institutional reform litigation. 8. I graduated from Yale College in 1987 and Harvard Law School in 1991. In law school,
I was Editor-in-Chief of the Harvard Civil Rights-Civil Liberties Law Review. After law school, I clerked for the Honorable Robert L. Carter, United States District Judge for the Southern District of New York, and the Honorable James R. Browning, United States Circuit Judge for the Ninth Circuit. Before moving to the ACLU, I was a partner at Vladeck, Waldman, Elias &
Engelhard, P.C., in New York City, where I specialized in representing individuals in employment litigation. 9. The other ACLU attorneys involved in this case are LGBT Project staff lawyers Amanda
C. Goad and Joshua A. Block, plus Rebecca K. Glenberg, who is Legal Director of the American Civil Liberties Union of Virginia Foundation, Inc. Biographies of the ACLU team are attached hereto as Exhibit A. 10. The ACLU LGBT Project, the ACLU of Virginia Foundation, and the individual
members of this litigation team, are all dedicated to vigorously representing our clients. I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge and ability.
August 15, 2013
_/s/ James D. Esseks_____________ James D. Esseks
EXHIBIT A Brief Biographies of ACLU Attorneys Amanda C. Goad Amanda C. Goad is a Staff Attorney with the ACLUs LGBT Project. In this capacity, Ms. Goad has represented high school students seeking school recognition of Gay-Straight Alliance clubs and the ability to wear gender non-conforming attire to prom, transgender Idahoans seeking to obtain accurate identification documents, and several individuals subjected to discrimination in public accommodations and the workplace. In the class action Henderson v. Thomas, Ms. Goad participated in a trial resulting in findings that the Alabama Department of Corrections violated the Americans with Disabilities Act through its systemic practices of segregating HIV-positive prisoners. 913 F. Supp. 2d 1267 (M.D. Ala. 2012). With others on the Henderson team, she was nominated for the 2013 Public Justice Trial Lawyer of the Year Award. Ms. Goad is also representing a group of Michigan municipal employees and their same-sex partners who seek to regain access to family health insurance benefits in Bassett v. Snyder, 2013 WL 3285111 (E.D. Mich. 2013 June 28, 2013). Prior to her position at the ACLU, Ms. Goad worked as Senior Counsel for the New York City Law Department. In that capacity, she represented City agencies in a range of state and federal litigation. She worked on the federal multidistrict litigation In re Methyl Tertiary Butyl Ether (MTBE) Products Liabiltiy Litigation, in which the City of New York secured a $104 million judgment against ExxonMobil for groundwater contamination, and was part of the trial team nominated for the 2010 Trial Lawyer of the Year Award by the Trial Lawyers for Public Justice. Ms. Goad also received the New York City Bar Associations Municipal Affairs Award in 2010. She previously volunteered as legal coordinator for a clinic providing pro bono legal services to the transgender community in New York City. Ms. Goad graduated magna cum laude from Rice University in 2000 with a B.A., and cum laude from Harvard Law School in 2005. In her time at Harvard, Ms. Goad served as an Articles Editor for the Harvard Civil Rights-Civil Liberties Law Review, and received the Gary Bellow Student Public Service Award. She also volunteered for the Gay & Lesbian Advocates & Defenders, and worked as a Law Clerk for the National Center for Lesbian Rights. Ms. Goad is a member of the Bar of the State of New York. Joshua A. Block Joshua A. Block is a Staff Attorney with the ACLUs LGBT Project. In this capacity, Mr. Block has served as the lead attorney in challenges to censorship of LGBT-related speech in public schools, discriminatory denials of public accommodations, employment discrimination against gay and lesbian public employees, and the exclusion of same-sex couples from government pension benefits. He also was lead counsel in Collins v. United States, 101 Fed. Cl. 435 (2011), a class action challenging the militarys denial of full severance pay to service members
discharged pursuant to Dont Ask, Dont Tell. Mr. Block also recently served as a Visiting Lecturer in Law at Yale Law School, co-teaching the LGBT Rights Litigation Seminar. Mr. Block graduated magna cum laude from Amherst College in 2001 with a B.A., and from Yale Law School in 2005. While at Yale, Mr. Block was the Symposium Editor for the Yale Law Journal. After graduating from Yale, Mr. Block served as a Law Clerk to the Honorable Robert D. Sack of the United States Court of Appeals for the Second Circuit. Prior to joining the ACLU, Mr. Block was an Associate at Jenner & Block LLPs New York office. In that capacity, Mr. Block represented clients in an array of commercial litigation and white-collar matters in New York State and Federal courts and in commercial arbitration. Mr. Block received the Albert E. Jenner Pro Bono Award in recognition of his pro bono appellate litigation work. Mr. Block is a member of the Bar of the State of New York. Rebecca K. Glenberg Rebecca K. Glenberg is the Legal Director for the ACLU of Virginia. Ms. Glenberg graduated from the University of Chicago Law School with honors in 1997. Since becoming the Legal Director of the ACLU of Virginia in 1999, the bulk of Ms. Glenbergs practice has consisted of constitutional cases filed under 42 U.S.C. 1983 in federal court. Accordingly, Ms. Glenberg has substantial experience and expertise in 1983 litigation as well as with the practices and procedures of the United States District Court for the Western District of Virginia. Ms. Glenberg has worked on an array of cases, including: Libertarian Party of Virginia v. Judd, 718 F.3d 308 (4th Cir. 2013); Clatterbuck v. City of Charlottesville, 708 F.3d 549 (4th Cir. 2013); Ostergren v. Cuccinelli, 615 F.3d 263 (4th Cir. 2010); Educational Media Co. at Virginia Tech, Inc. v. Swecker, 602 F.3d 583 (4th Cir. 2010); White Tail Park, Inc. v. Stroube, 413 F.3d 451 (4th Cir. 2005); Simpson v. Chesterfield County Bd. of Sup'rs, 404 F.3d 276 (4th Cir. 2005); De'Lonta v. Angelone, 330 F.3d 630 (4th Cir. 2003); Mellen v. Bunting, 327 F.3d 355 (4th Cir. 2003); Patten v. Nichols, 274 F.3d 829 (4th Cir. 2001); Vollette v. Watson, 2013 WL 2385188 (E.D.Va. May 24, 2013); and Hudson v. Pittsylvania County, 2013 WL 1249091 (W.D. Va. March 27, 2013). Ms. Glenberg is also experienced in litigating cases seeking to protect LGBT rights, including: Miller-Jenkins v. Miller-Jenkins, 49 Va. App. 88, 637 S.E.2d 33 (2006) (providing that Virginia courts must recognize out-of-state court orders providing custody and visitation rights to same former same-sex partner of biological mom); Davenport v. Little-Bowser, 269 Va. 546, 611 S.E.2d 366 (2005) (providing that state division of vital records must issue birth certificates for out-of-state adoptions of Virginia children that include both same-sex parents); Stadter v. Siperko, 52 Va. App. 81, 661 S.E.2d 494 (2008) (seeking parental status for same-sex partner of biological mother); In re: Hunter, 81 Va. Cir. 275, 2011 WL 4867661 (Jan. 7, 2011) (granting name changes to lesbian couple so that they would have the same last name). Ms. Glenberg is a member of the Bar of the State of Virginia. 2
EXHIBIT 7
No. 5:13-cv-00077
DECLARATION OF PAUL SMITH I, Paul M. Smith, hereby declare as follows: 1. I am a partner at Jenner & Block LLP (Jenner) and counsel for Plaintiffs in the above-
captioned case. The testimony set forth in this Declaration is based on first-hand knowledge, about which I could and would testify competently in open Court if called upon to do so. This Declaration is submitted in support of Plaintiffs Motion for Class Certification. 2. Jenner became involved in this litigation to provide Jenners unique expertise in litigating
civil rights cases on behalf of LGBT persons specifically, and in litigating class action matters generally. 3. I chair Jenners Appellate and Supreme Court practice, and serve as co-chair of Jenners
Media and First Amendment, and Election Law and Redistricting practices. I have argued
fourteen cases before the United States Supreme Court, beginning with Celotex Corp. v. Cattrett, 477 U.S. 317 (1986). I also have extensive experience litigating complex cases and class actions in federal and state courts across the country, including major civil rights cases. My experience with civil rights litigation includes: (1) multiples cases in the 1980s involving the rights of residents of state mental health facilities; (2) a large gender bias case brought against Nassau County, NY in the 1990s; (3) constitutional challenges to state and federal laws that restrict freedom of expression; and (4) constitutional challenges to state and federal laws that discriminate on the basis of sexual orientation. In particular, I argued Lawrence v. Texas before the United States Supreme Court; Lawrence resulted in Texass sodomy law being struck down as unconstitutional. I also represented clients in cases successfully challenging the Defense of Marriage Act, leading to the First Circuit finding the law unconstitutional in Gill v. Office of Personnel Management and the United States District Court for the District of Connecticut doing the same in Pederson v. Office of Personnel Management. In 2010, I was awarded the Thurgood Marshall Award from the American Bar Association Section of Individual Rights and Responsibilities, and was named one of the Decades Most Influential Lawyers by The National Law Journal. In addition, I was Co-Chair of the Board of Directors of Lambda Legal and am a member of the Board of Directors of the Washington Lawyers Committee for Civil Rights and Urban Affairs. 4. My civil rights practice also includes representing the interests of voters in enforcing the
United States Constitution and the Voting Rights Act. I have litigated a number of such cases, including Balderas v. State of Texas, Texas v. United States, LULAC v. Perry, Crawford v. Marion County Election Board, and Vieth v. Jubelirer. I argued the LULAC, Crawford, and Vieth cases in the United States Supreme Court. I am nationally recognized as an expert on
voting rights and election law and am the co-author of The Realists Guide to Redistricting: Avoiding the Legal Pitfalls (2010). 5. I have had extensive experience with class actions, including litigating numerous cases in
the 1980s involving institutional reform of state prisons and facilities for persons with mental disabilities, litigating several major Title VII class actions in the 1990s, and litigating in the past few years a nationwide class action involving claims of discrimination by Native American farmers and ranchers against the U.S. Department of Agriculture. 6. The other Jenner attorneys involved in this case are Partner Luke C. Platzer and
Associate Mark P. Gaber. Biographies of the Jenner team are attached hereto as Exhibit A. 7. Jenner has a strong commitment to pro bono legal representation, and its work on this
case is part of that tradition. Jenner has consistently been ranked among the top firms in the country for its pro bono service, regularly winning awards for its service. Jenner was ranked the number one law firm for pro bono by The American Lawyer in 1998, 2008, 2009, 2010, and 2012, and has been among the top ten firms in that ranking every year since 1990. The District of Columbia Bar named Jenner the Pro Bono Law Firm of the Year in 2005. Jenners pro bono cases receive the same priority and attention as its other cases. Jenner will vigorously represent its clients in this class action lawsuit. I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge and that this Declaration was prepared in the District of Columbia on August 15, 2013.
_/s/ Paul M. Smith________________ Paul M. Smith
EXHIBIT A Brief Biographies of Jenner & Block Attorneys Paul M. Smith Paul M. Smith is a partner in the Firms Litigation Department. He is a member of the Firms Policy Committee. He is Chair of the Appellate and Supreme Court Practice and a Co-Chair of the Creative Content, Media and First Amendment, and Election Law and Redistricting Practices. Mr. Smith is AV Peer Review Rated, Martindale-Hubbells highest peer recognition for ethical standards and legal ability. Mr. Smith has had an active Supreme Court practice for two decades, including oral arguments in fourteen Supreme Court cases. These arguments have included Crawford v. Marion County Election Board (2008), the Indiana Voter ID case; LULAC v. Perry (2006), and Vieth v. Jubelirer (2003), two congressional redistricting cases; Lawrence v. Texas (2003), involving the constitutionality of the Texas sodomy statute; United States v. American Library Assn (2003), involving a First Amendment challenge to the Childrens Internet Protection Act; and Mathias v. WorldCom (2001), dealing with the Eleventh Amendment immunity of state commissions. His first argument was in Celotex Crop. v. Catrett in 1986. Mr. Smith also worked extensively on several other First Amendment cases in the Supreme Court, involving issues ranging from commercial speech to defamation to adult speech on the Internet. Mr. Smith also represents various clients in trial and appellate cases involving commercial and telecommunications issues, the First Amendment, intellectual property, antitrust, and redistricting and voting rights, among other areas. His recent trial work has included several cases involving congressional redistricting as well as challenges to state video game restrictions under the First Amendment. Mr. Smith graduated summa cum laude and Phi Beta Kappa from Amherst College in 1976 and received a J.D. from Yale Law School in 1979, where he served as Editor-in-Chief of the Yale Law Journal. The following year, Mr. Smith was a law clerk to Judge James L. Oakes of the United States Court of Appeals for the Second Circuit. From 1980-81, Mr. Smith was a law clerk to Supreme Court Justice Lewis F. Powell, Jr. Mr. Smith was a member of the Board of Governors of the District of Columbia Bar from 20022008. He is a former board member and former Chair of the National Board of Directors of The American Constitution Society, former Co-Chair of the Board of Directors of Lambda Legal, and a member of the Board of Directors of the Washington Lawyers Committee for Civil Rights and Urban Affairs. Since 2003, Chambers USA has named him one of the countrys leading lawyers in the areas of Appellate Litigation and Media & Entertainment Law. In 2007, 2008, 2009, and 2010, Chambers USA also named him one of the countrys leading lawyers in the area of First Amendment Litigation. Mr. Smith was recognized in the 2007, 2008, 2009, and 2010 Editions of Washington DC Super Lawyers for Appellate Law and as one of the Top 100 Lawyers in DC. 1
In 2010, Mr. Smith was named one of the Top 10 Lawyers in Washington, DC by Washington DC Super Lawyers and one of Washingtons Top Lawyers by Washingtonian magazine. Mr. Smith was also named one of the Decades Most Influential Lawyers by The National Law Journal in 2010. The Firm was also selected as 2010 Copyright Firm of the Year by Managing Intellectual Property magazine. In 2010, Mr. Smith was awarded the Thurgood Marshall Award from the American Bar Association Section of Individual Rights and Responsibilities. Mr. Smith is admitted to practice in Maryland, New York, and the District of Columbia. Luke C. Platzer Luke C. Platzer is a Partner in the Firms Washington, D.C. office and a member of the Firms Communications, and Content, Media & Entertainment Practices. Mr. Platzer is a 2000 graduate of Harvard University, and a 2003 Order of the Coif graduate of Stanford Law School, where he received the Nathan Abbott Scholar Award for graduating first in his class. After law school, Mr. Platzer clerked for the Honorable Judith W. Rogers of the United States Court of Appeals for the District of Columbia Circuit. Mr. Platzers practice focuses primarily on intellectual property and regulatory issues arising on the Internet and other new media platforms. He has successfully represented the Firm's entertainment industry clients before the federal district courts in several cases involving the protection of entertainment content, including Arista Records LLC, et al. v. Usenet.com, Inc., No. 07 Civ. 8822 (S.D.N.Y. 2009) and Atlantic Record Corporation, et al. v. XM Satellite Radio, Inc., No. 06 CV 3733 (S.D.N.Y. 2007), and is currently part of the team in Viacom International, Inc., et al. v. YouTube, Inc., et al., No. 13-1720 (2d Cir.). He also counsels the Firm's clients with respect to compliance and copyright issues involving their online properties. As a member of the Firm's telecommunications practice, Mr. Platzer represents the Firm's clients in proceedings before the FCC, state regulatory commissions, and the D.C. Circuit, principally in cases involving the intersection of telecommunications regulation with new technologies. Mr. Platzer has an active pro bono practice, particularly in the area of LGBT rights. Mr. Platzer has represented clients in cases successfully challenging the Defense of Marriage Act, leading to the First Circuit finding the law unconstitutional in Gill v. Office of Personnel Management and the United States District Court for the District of Connecticut doing the same in Pederson v. Office of Personnel Management. Mr. Platzer also represented the Gay & Lesbian Advocates & Defenders and Lambda Legal Defense & Education Fund, Inc. in its amicus brief in United States v. Windsor, in which the Supreme Court invalidated Section 3 of the Act. In 2012, Mr. Platzer was selected by the National LGBT Bar Association as one of the Best LGBT Lawyers Under 40. Mr. Platzer is a member of the Bars of the State of New York and the District of Columbia.
Mark P. Gaber Mark P. Gaber is an Associate in the Firms Washington, D.C. office. Mr. Gaber is a 2010 graduate of Stanford Law School, where he served as Senior Symposium Editor for the Stanford Law Review and earned the Gerald Gunther Award for Outstanding Performance in Constitutional Law, Torts, Legislation, and Employment Law, and, upon graduation, the Pro Bono Distinction Award. Mr. Gaber received a Bachelor of Arts Degree from St. Norbert College in 2005, graduating summa cum laude, and in 2004 he was selected as a Harry Truman Scholar, representing the State of Wisconsin. Prior to attending law school, Mr. Gaber worked as an Environmental Protection Specialist and Truman Fellow at the Federal Highway Administration in Washington, D.C. Mr. Gaber joined the Firm as an Associate in 2010. In his first year, Mr. Gaber worked on an array of cases, including defending an Internet Service Provider against putative class action lawsuits alleging violations of the Wiretap Act and the Computer Fraud and Abuse Act, among other claims. From 2011 to 2012, Mr. Gaber served as a Law Clerk for the Honorable Judith W. Rogers of the United States Court of Appeals for the District of Columbia Circuit. Mr. Gaber rejoined the Firm in 2011, and works on Media and First Amendment, Hospitality, and other litigation matters. Mr. Gabers pro bono service includes work on behalf of LGBT rights, human trafficking cases, and landlord-tenant clients. Mr. Gaber is also an Adjunct Professor of Legal Research and Writing at George Washington University Law School. Mr. Gaber is admitted to practice in California and the District of Columbia.

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Proposed Class Definitions

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Dated: August 16, 2013 Respectfully submitted,

Counsel for Plaintiffs

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August 16, 2013

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DECLARATION OF JOANNE HARRIS

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DECLARATION OF JESSICA DUFF

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August 14, 2013

/s Gregory R. Nevins Gregory R. Nevins

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have been counsel in the following class actions:

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August 15, 2013

_/s/ James D. Esseks_____________ James D. Esseks

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_/s/ Paul M. Smith________________ Paul M. Smith

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