Case 2:13-cv-05641-MAM Document 35 Filed 02/14/14 Page 1 of 9

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA CARA PALLADINO, and ISABELLE : BARKER, : Plaintiffs : : v. : : THOMAS CORBETT, in his official capacity : as Governor of Pennsylvania, and his : : successors in office; and KATHLEEN KANE, in her official capacity as Attorney General of : Pennsylvania, and her successors in office, : : : Defendants. :

No. 2:13-CV-5641 (Judge McLaughlin) Electronically Filed Document

DEFENDANT KATHLEEN KANES COMBINED REPLY BRIEF IN SUPPORT OF THE MOTION TO DISMISS ALL CLAIMS AGAINST HER AND BRIEF IN OPPOSITION TO PLAINTIFFS MOTION FOR SUMMARY JUDGMENT AGAINST GENERAL KANE I. STATEMENT OF THE CASE This is a civil rights action brought by a same-sex couple who was legally married in the Commonwealth of Massachusetts while residing there. Plaintiffs, who are now Pennsylvania residents, challenge the constitutionality of Pennsylvanias marriage law, 23 Pa. C.S. 1101, et seq., to the extent that it prohibits recognition of same-sex marriages legally entered into in jurisdictions outside of Pennsylvania. See 23 Pa.C.S. 1704. Plaintiffs allege that section 1704 of the marriage law violates the Full Faith and Credit Clause and the Fourteenth Amendment of the United States Constitution. Under the Fourteenth Amendment they assert violations of their right to travel, their right to due process and their right to equal protection. Defendants, Governor Thomas W. Corbett and Attorney General Kathleen Kane, have separately filed motions to dismiss the complaint against them. Defendant Kanes motion was

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filed pursuant to Fed.R.Civ.P. 12 (b)(1) and (6) alleging a lack of jurisdiction and failure to state a cause of action against her. The defendants briefed their motions to dismiss. Plaintiffs have moved for summary judgment and have filed a combined memorandum of law, opposing the defendants motions to dismiss and in support of Plaintiffs motion for summary judgment. (Doc. 27) Plaintiffs allege that the Defendants motions are without merit and specifically, regarding Defendant Kane, allege that Defendant Kane is responsible for enforcing 1704 as the chief law officer of Pennsylvania and that as a result of the general duties to uphold and defend the laws of the Commonwealth conferred upon her by the Commonwealth Attorneys Act, 71 P.S. 732-204(a)(3), they allege that she has the indirect causal relationship necessary to satisfy Article III standing. (Doc. 27, pg. 26) Plaintiffs additionally seek summary judgment in their favor alleging that section 1704 of the Marriage Law violates the Fourteenth Amendments Due Process and Equal Protection Clauses, and that section 1704 violates the Full Faith and Credit Clause and infringes upon Plaintiffs right to travel. This is Defendant Kanes combined reply brief in support of her motion to dismiss the claims against her and in opposition to Plaintiffs motion for summary judgment against her. Plaintiffs lack Article III standing and therefore the Attorney General is an improper party to the action.

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II.

ARGUMENT DEFENDANT KANE IS AN IMPROPER PARTY TO THE LITIGATION AND THEREFORE THE MOTION TO DISMISS HER SHOULD BE GRANTED AND SUMMARY JUDGMENT AGAINST DEFENDANT KANE SHOULD BE DENIED. As argued within her brief in support of the motion to dismiss, the Attorney General is

not a proper party to the current action. In order to proceed with their claims against Attorney General Kane, the Plaintiffs must first establish standing under Article III of the Constitution. They must show: (a) an injury in fact, (2) the injury is fairly traceable to the defendants conduct, and (3) the requested relief is likely to redress the injury. Planned Parenthood of Cent. New Jersey v. Farmer, 220 F.3d 127, 146-47 (3d Cir. 2000). Plaintiffs have failed to show that any injury to the Plaintiffs is fairly traceable to Defendant Kanes conduct. Therefore, Defendant Kanes motion to dismiss should be granted and the Plaintiffs motion for summary judgment against Defendant Kane should be denied. Within their complaint, Plaintiffs have failed to allege an injury in fact that is fairly traceable to the conduct of Defendant Kane. Plaintiffs claim that Pennsylvanias failure to acknowledge their out of state same-sex marriage has caused them injury with regards to inheritance and succession, spousal decision-making in the event of illness or infirmity, parental rights and adoption. (Doc. 1, 18-23). Plaintiffs allege that they are suing Defendant Kane because they seek recognition of their marriage within and by Pennsylvania. (Doc. 27, pg. 22 fn. 16). In support of their argument that they have established standing against Defendant Kane, Plaintiffs allege that the Attorney Generals duties under the Commonwealth Attorneys Act, 71 P.S. 732-204, to generally uphold the constitutionality of the laws of the Commonwealth indicate that she has an indirect causal relationship to the Plaintiffs injuries sufficient to establish standing against her. This is clearly not the case.

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Although an indirect causal relationship will suffice to establish standing, there still must be a fairly traceable connection between the alleged injury in fact and the conduct of the defendant. Toll Bros., Inc. v. Twp. of Readington, 555 F.3d 131, 142 (3d Cir. 2009). As argued within Defendant Kanes primary brief, there has not been an allegation of any conduct by Defendant Kane adverse to the Plaintiffs interests, nor has there been any allegation that Defendant Kane has any connection to the alleged injuries of Plaintiffs. To the contrary, it is clear that the alleged injuries of the Plaintiffs are related to laws administered by other government officials, and to which the Attorney General has no enforcement or administration authority. For example, it is the Department of Health, not the Attorney General, that is responsible for administering the Vital Statistics Law including the provisions governing the registration of births, 35 P.S. 450.101, 450.105, 450.201, including births to unmarried women. 28 Pa. Code 1.6. See Complaint 21. Likewise, it is not the Attorney General, but rather, the Department of Revenue that is responsible for settling and collecting all taxes owed to the Commonwealth, 72 P.S. 201, including the personal income tax, 72 P.S. 7301, 7302, 7338, and the inheritance tax, 72 P.S. 9101, 9102, 9103. Similarly, the Attorney General lacks enforcement or administration authority for the Marriage Law. Plaintiffs suggestion that the Marriage Law is self-executing ignores the authority of the Clerk of Orphans Court and the Secretary of Health specific to the enforcement and administration of the Marriage Law. See 20 Pa. C.S.A. 711(19) (Orphans Court division shall exercise jurisdiction over marriage licenses as provided by law.); 23 Pa. C.S. 1104 (marriage applications and licenses to be supplied and uniform as prescribed by the Department of Health); 23 Pa. C.S. 1106 (records of all marriage licenses issued shall be furnished to the Department of Health). Thus the Secretary of Health, Secretary of Revenue, or the Clerk of the

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Orphans Court, and not the Attorney General, are directly responsible for carrying out the law in ways that affect the Plaintiffs and would be proper parties to Plaintiffs constitutional challenge of the Marriage Law. See 1st Westco v. School District of Philadelphia, 6 F.3d 108, 113 (3d Cir. 1993)(citing Rode v. Dellarciprete, 845 F.2d 1195, 1209 N. 9 (3d Cir. 1988))(holding that plaintiffs challenging the constitutionality of a state statute may bring suit against the official who is charged with enforcing the statute). Furthermore, Plaintiffs reliance upon the general duties conferred upon Defendant Kane by the Commonwealth Attorneys Act, 71 P.S. 732-204, to substantiate that she is responsible for enforcing 1704 of the Marriage Law is wholly misplaced. As argued previously, the officials with authority for enforcement and administration of the Marriage Law are the Secretary of Health and the Clerk of Orphans Court. The fact that Defendant Kane is in fact the chief law officer of Pennsylvania in no way confers upon her the authority to enforce all administrative state statutes. Those general duties are likewise insufficient to make the Attorney General a proper party to every constitutional challenge to a statute. Rode, 845 F.2d at 1208. In Bishop v. Oklahoma, 333 Fed.Appx. 361 (10th Cir. 2009)1, the Tenth Circuit Court of Appeals considered whether the Governor and Attorney General of the State of Oklahoma were sufficiently connected to the enforcement of the Oklahoma Constitutions marriage provisions to establish Article III standing. The plaintiffs in Bishop, two same-sex couples, claimed that they desired to be married, but were prevented from doing so, or that they were married, but the Oklahoma marriage provision would not recognize their out of state marriage as valid and binding. Bishop, 333 Fed.Appx. at 365. The Court held that the Oklahoma officials generalized duty to enforce state law, alone, is insufficient to subject them to a suit challenging a
1

A copy of Bishop v. Oklahoma, 333 Fed.Appx. 361 (10th Cir. 2009) is attached hereto and marked as Exhibit A. 5

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constitutional amendment they have no specific duty to enforce. Id. The Court went on to hold that the plaintiffs claims were simply not connected to the duties of the Attorney General nor could the alleged injury be caused by any action of the Attorney General, nor would an injunction against them give the couples the legal status that they sought. Id. The Bishop case mirrors the current case. Like the Oklahoma officials, Defendant Kanes general duties under the Commonwealth Attorneys Act do not subject her to a suit challenging the Marriage Law, a statute that she has no specific duty to enforce. Further, the duties of Defendant Kane are in no way connected to the recognition of out of state same-sex marriages. The alleged injuries of the Plaintiffs were not, and could not be caused by any action of Defendant Kane; accordingly, the Plaintiffs have failed to establish standing against the Attorney General and the motion to dismiss of Defendant Kane should be granted and Plaintiffs motion for summary judgment against Defendant Kane should be denied. III. CONCLUSION For the reasons enumerated above, Defendant Kathleen Kanes motion to dismiss all claims against her should be granted and the Plaintiffs motion for summary judgment against Defendant Kane should be denied. Respectfully submitted,

KATHLEEN G. KANE Attorney General By: Office of Attorney General 15th Floor, Strawberry Square Harrisburg, PA 17120 6 s/ M. Abbegael Giunta M. ABBEGAEL GIUNTA Deputy Attorney General Attorney ID 94059

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Phone: (717) 787-1179 Fax: (717) 772-4526 mgiunta@attorneygeneral.gov Date: February 14, 2014

GREGORY R. NEUHAUSER Chief Deputy Attorney General Chief, Civil Litigation Section Counsel for Defendant Kane

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA CARA PALLADINO, and ISABELLE : BARKER, : Plaintiffs : : v. : : THOMAS CORBETT, in his official capacity : as Governor of Pennsylvania, and his : : successors in office; and KATHLEEN KANE, in her official capacity as Attorney General of : Pennsylvania, and her successors in office, : : : Defendants. :

No. 2:13-CV-5641 (Judge McLaughlin) Electronically Filed Document

CERTIFICATE OF SERVICE I, M. Abbegael Giunta, Deputy Attorney General for the Commonwealth of Pennsylvania, Office of Attorney General, hereby certify that on February 14, 2014, I caused to be served a true and correct copy of the foregoing document titled Defendant Kathleen Kanes Combined Reply Brief in Support of the Motion to Dismiss All Claims Against Her and in Opposition to Plaintiffs Motion for Summary Judgment Against General Kane to the following: VIA ELECTRONIC FILING Michael L. Banks, Esquire Eric Kraeutler, Esquire Vanessa Renee Brown, Esquire William O. Mandycz, Esquire Morgan Lewis & Bockius, LLP 1701 Market Street Philadelphia, PA 19103-2921 mbanks@morganlewis.com ekraeutler@morganlewis.com vbrown@morganlewis.com Counsel for Plaintiffs Benjamin L. Jerner, Esquire William H. Lamb, Esquire Joel L. Frank, Esquire Lamb McErlane, PC 24 East Market St. P.O. Box 565 West Chester, PA 19381 wlamb@lambmcerlane.com jfrank@lambmcerlane.com Counsel for Defendant Corbett

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Jerner & Palmer, PC 5401 Wissahickon Avenue Philadelphia, PA 19144 bjerner@jplaw.com Counsel for Plaintiffs

s/ M. Abbegael Giunta M. ABBEGAEL GIUNTA Deputy Attorney General

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