Case 5:13-cv-00077-MFU-RSB Document 31 Filed 08/30/13 Page 1 of 11 Pageid#: 191

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA NORFOLK DIVISION JOANNE HARRIS, et al., Plaintiffs, v. ROBERT F. McDONNELL, JANET M. RAINEY, and THOMAS E. ROBERTS, in their official capacities Defendants. ) ) ) ) ) ) ) ) ) ) )

Civil Action No. 5:13-cv-00077

REBUTTAL MEMORANDUM IN SUPPORT OF MOTION TO DISMISS GOVERNOR McDONNELL ON SOVEREIGN IMMUNITY GROUNDS COMES NOW, the Governor of Virginia, Robert F. McDonnell, in his official capacity, by counsel, in accordance with E.D. Va. Loc. R. 7(F)(1) and Fed. R. Civ. P. 6(d), and submits the following in rebuttal to Plaintiffs' Memorandum of Law in Opposition to the Governor's motion to dismiss their suit as to him on sovereign immunity grounds. (Doc. 28.) The basis for Ex parte Young jurisdiction asserted by Plaintiffs in support of their claim that Governor McDonnell does not enjoy Eleventh Amendment immunity from suit depends entirely on his general executive and appointment powers over officials obligated to observe Virginia's definition of marriage in the carrying out of their official duties, such as formulating marriage application materials, processing applications for the same, or determining whether a person is otherwise entitled to claim any of the rights or responsibilities flowing from the marital estate. See (Doc. 28 at 3-4, 7-8.) Plaintiffs' claim against the Governor is thus a classic example of bringing suit against a state officer who has no specific duty to enforce a state law. Because the Office of the Governor lacks any unique responsibility for enforcing Virginia's definition of

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marriageone that does not equally run to all other Virginia laws executed by the administrative agencieshe has no "special relation" that would strip him of Eleventh Amendment immunity from suit. ARGUMENT The Court's decision in Ex parte Young, 209 U.S. 123 (1908), "permits a federal court to issue prospective, injunctive relief against a state officer to prevent ongoing violations of federal law, on the rationale that such a suit is not a suit against the state for purposes of the Eleventh Amendment," McBurney v. Cuccinelli, 616 F.3d 393, 399 (4th Cir. 2010) (citing Young, 209 U.S. at 159-60), but only where there exists "a 'special relation' between the officer being sued and the challenged statute." Id. at 399 (quoting Young, 209 U.S. at 157). Plaintiffs' argument for permitting a suit against the Governor with regard to Virginia's marriage laws is premised on the theory that such a special relation exists whenever a law's observance implicates the duties of subordinate executive branch officials. If that were the law, the Young exception would swallow the Eleventh Amendment's rule, logically permitting the Governor to be subjected to suit in federal court every time someone sought injunction against enforcement of a Virginia law on the ground that it violated some federal right. As observed in Young itself, "[t]hat would be a very convenient way for obtaining a speedy judicial determination of questions of constitutional law which may be raised by individuals, but it is a mode which cannot be applied to the States of the Union consistently with the fundamental principle that they cannot, without their assent, be brought into any court at the suit of private persons." 209 U.S. at 157 (emphasis added). Accordingly, Plaintiffs' position should be rejected and the Governor of Virginia dismissed.

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Because the Governor of Virginia's only connection to the enforcement of Virginia's definition of marriage is that conferred by his general duty to see to it that executive branch officials faithfully execute the law, he lacks any specific duty to enforce Virginia's definition of marriage. It is now beyond question that pointing to a state governor's "'general authority to enforce the laws of the state'" does not satisfy a plaintiff's obligation to demonstrate a special relation between the governor and the state law or action that would justify stripping the governor of the state's Eleventh Amendment immunity from suit in federal court. McBurney, 616 F.3d at 399 (quoting S.C. Wildlife Fed'n v. Limehouse, 549 F.3d 324, 331, 333 (4th Cir. 2008)). As was said in Waste Management Holdings v. Gilmore, "although [Virginia's] Governor . . . is under a general duty to enforce the laws of Virginia by virtue of his position as the top official of the state's executive branch, he lacks a specific duty to enforce the challenged statutes," 252 F.3d 316, 331 (4th Cir. 2001), unlike the agency heads sued in Gilmore, id. at 324, or the State Registrar of Vital Records, Janet M. Rainey, sued here. See Va. Code 32.1-267(A), (E) (duty to file record of marriage and "furnish forms for the marriage license, marriage certificate, and application for marriage license used in the Commonwealth."); see also Va. Code 20-16.1, 20; id. 32.1-251, -252, -254(B), -255, -257(D), -268, -268.1, -271(D), (H), -272, -275. Plaintiffs claim, however, that the fact that the Governor has, in furtherance of his "general duty to enforce the laws of Virginia," a power to instruct these officials on the faithful execution of state law, supervise that execution, and remove them in the event they fail in their delegated tasks "make him an appropriate defendant for purposes of an Ex parte Young injunction." (Doc. 28 at 8.) If that were correct, Gilmore and all other cases holding that the Young exception did not apply when premised on a state official's general executive authority would be wrongly decided. All the powers and duties that Plaintiffs allege confer upon Governor McDonnell a "special 3

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relation" to Virginia's definition of marriage flow directly from the general "[e]xecutive and administrative powers" conferred upon his office by the Virginia Constitution, specifically Article V, Section 7's provision that he "shall take care that the laws be faithfully executed." Va. Const. art. V, 7. To enable him to perform this duty, the Governor is granted the "power to fill vacancies in all offices of the Commonwealth for the filling of which the Constitution and laws make no other provision"; he "may require information in writing, under oath, from any officer of any executive or administrative department, office, or agency, or any public institution upon any subject relating to their respective departments, offices, agencies, or public institutions; and he may inspect at any time their official books, accounts, and vouchers"; and he has the power to "appoint each officer serving as the head of an administrative department or division of the executive branch of the government, subject to such confirmation as the General Assembly may prescribe," which officer "shall serve at the pleasure of the Governor." Va. Const. art. V, 7, 8, 10; accord Va. Code 2.2-103 ("Except as otherwise provided by the Constitution or law, the Governor shall have the authority and responsibility for the formulation and administration of the policies of the executive branch, including resolution of policy and administrative conflicts between and among agencies." (emphasis added)); id. 2.2-106 (affirming the Governor's appointment authority over persons charged with supervising specific administrative department's execution of the laws). Thus, the Governor's "proximity to or responsibility for" Virginia's definition of marriage, McBurney, 616 F.3d at 399 (quoting Limehouse, 549 F.3d at 331 (4th Cir. 2008)), is no greater than his proximity to or responsibility for Virginia's definition of adulthood, or, for that matter, the degrees of consanguinity, all definitions that affect a great many things, including one's legal right to marry. See Va. Code Ann. 1-203 ("Adult"); id. 1-204 ("Age of

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majority"); id. 20-38.1(a)(2),(3) (prohibiting marriages between persons within certain degrees of family relation); id. 20-45.1(a) (voiding marriages entered into by persons "under the age of eighteen" without parental consent). And like the aspect of Virginia's marriage laws challenged by Plaintiffs, the age of majority and the prohibited degrees of consanguinity also "impose a broad, undifferentiated disadvantage that cuts across every component of state government." (Doc. 28 at 10.) Yet it is not plausible to suppose that the Governor of Virginia has any specific duty to enforce either of these provisions. Furthermore, the courts of appeals have consistently concluded that a mere "generalized duty to enforce state law or general supervisory power over the persons responsible for enforcing the challenged provision will not subject an official to suit." Snoeck v. Brussa, 153 F.3d 984, 986 (9th Cir. 1998) (emphasis added) (quotation marks omitted); see, e.g., Summit Med'l Assocs., P.C. v. Pryor, 180 F.3d 1326, 1342 (11th Cir. 1999) (noting that "federal courts have refused to apply Ex parte Young where the officer who is charged has no authority to enforce the challenged statute," and dismissing a suit against the Governor of Alabama as barred by the Eleventh Amendment on the ground that the Governor had "no authority to enforce" the challenged law); Children's Healthcare is a Legal Duty v. Deters, 92 F.3d 1412, 1416 (6th Cir. 1996) ("Holding that a state official's obligation to execute the laws is a sufficient connection to the enforcement of a challenged statute would extend Young beyond what the Supreme Court has intended and held."); Shell Oil Co. v. Noel, 608 F.2d 208, 211-12 (1st Cir. 1979) (noting that "it has been held that in an action attacking the constitutionality of a statute a governor . . . has not a sufficiently intimate connection with the statute to be a proper defendant if all that is shown is that the statute in question . . . sets the jurisdictional requirements for divorce . . . or enables local authorities to grant liquor licenses").

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Contrary to Plaintiffs' claim that "courts have repeatedly held that governors and other state officials are proper defendants for purposes of Ex parte Young when their supervisory powers give the power to respond to an injunction," (Doc. 28 at 8), no case in the Fourth Circuit where the matter was contested has held that a state governor was subject to suit notwithstanding the Eleventh Amendment's bar. See, e.g., H.B. Rowe Co., Inc. v. Tippett, 615 F.3d 233, 238, 240 (4th Cir. 2010) (noting that the district "court also dismissed [North Carolina Governor] Easley from the suit, holding that he had no role in implementing the challenged statutory scheme."); Lytle v. Doyle, 326 F.3d 463, 468 (4th Cir. 2003) (noting remand of the earlier appeal in which it was "contended the Governor was not a proper party to the litigation," Lytle v. Griffith, 240 F.3d 404 (4th Cir. 2001), and that, "[o]n remand, the district court dismissed the Governor."); Gilmore, 252 F.3d 316 (dismissing the Governor of Virginia on Eleventh Amendment grounds); Hoffman v. Hunt, 126 F.3d 575, 582 n.6 (4th Cir. 1997) (noting the issue, which was not raised by the parties, but not deciding whether the state governor could be subjected to suit). Tellingly, in the initial Lytle appeal, it was contended along the lines that Plaintiffs urge, that the Governor of Virginia had "a sufficient connection under Ex parte Young to the enforcement" of a statute challenged as facially violating the Constitution because of his duty to faithfully execute the law and appoint the head of an agency that had the power to enforce the statue. Lytle v. Griffith, 240 F.3d at 409. However, instead of finding a sufficient connection, the Fourth Circuit remanded to the district court for its initial consideration, id. at 411, over a strenuous dissent by then-Chief Judge Wilkinson, who argued the majority erred in not foregoing remand and simply holding the suit as to the Governor barred by sovereign immunity. Id. at 412-15. On remand, the district court promptly dismissed the claim against the Governor, a

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decision that was not appealed. See Doyle, 326 F.3d at 468; Lytle v. Doyle, 197 F. Supp. 2d 481, 484 n.1 (E.D. Va. 2001). Plaintiffs' lone supporting citation in the Fourth Circuit is noteworthy because the case did not involve a governor and did not involve any general executive duty akin to that of the Governor of Virginia. See Limehouse, 549 F.3d at 333. Rather, it involved an agency head, the Director of South Carolina's Department of Transportation, who was sued for his agency's alleged failure to comply with a federal environmental statute in its ongoing construction of a bridge. Id. at 328. The Fourth Circuit concluded that the requisite special relation existed between the agency's action, failure to comply with the environmental statute, and the agency's director because, "[u]nder South Carolina state law[,] the Director has supervisory authority over the state's participation in" complying with the environmental permitting scheme, and also over the agency responsible for complying, planning, and building the bridge whose construction was alleged not to have been approved in compliance with the federal law. Id. at 333. Supervising the building of transportation projects, in accordance with the relevant law, was a function expressly and uniquely delegated to the agency head in Limehouse; supervising the issuance of marriage licenses and the recognition of marriages in Virginia is not a function expressly or uniquely delegated to Virginia's Governor. Plaintiffs do cite two out-of-circuit cases allowing suits to proceed against state governors, but those decisions both rest on those governor's express authority to bring a relevant enforcement action that would injure the rights asserted by the plaintiffs in those cases. In Citizens for Equal Protection v. Bruning, the Eighth Circuit allowed a suit for declaratory and injunctive relief against Nebraska's Governor and Attorney General challenging that State's constitutional marriage amendment to proceed, notwithstanding the Eleventh Amendment's bar.

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455 F.3d 859, 863 (8th Cir. 2006). However, in that case the State did not contend that the Eleventh Amendment barred suit against the Governor and Attorney General, conceding the issue, and thus the Court considered no argument on that point. Id. at 864. Instead, the Eighth Circuit accepted the state officials' concession that the Governor and Attorney General had sufficient enforcement authority with respect to the amendment, pointing to the Governor and Attorney General's express statutory duty under Neb. Rev. Stat. 84-731 to compel faithful execution of state laws by executive agencies, including bringing suit "to compel implementation if the agency has not, within ten working days [of the order to begin applying the act], commenced implementation." See Bruning, 455 F.3d at 864. As Bruning implies, for Eleventh Amendment immunity not to apply in a proceeding against a state official with general executive authority, it is necessary to find that the state's executive official has express authority to institute enforcement actions in the relevant matter, a proposition recognized and affirmed in Ex parte Young itself.1 See 209 U.S. at 154 (explaining why suit was allowed to proceed against the attorney general of Nebraska in Smyth v. Ames, 169 U.S. 466 (1898), noting that although "[t]here was no special provision in the statute as to rates, making it the duty of the Attorney General to enforce it, . . . under his general powers he had authority to ask for a mandamus to enforce such or any other law"); see also McBurney, 616 F.3d at 400 (dismissing the Attorney General of Virginia from suit alleging that Virginia officials unconstitutionally denied non-residents Virginia public records on the ground that he had no special relation to that provision, lacking any "specific statutory duty to enforce the [the Virginia statute] against state officials").
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The Plaintiffs also quote Hartmann v. Cal. Dep't of Corr. & Rehab., 707 F.3d 1114, 1127 (9th Cir. 2013), but misapprehend it. (Doc. 28 at 8.) That case considered no claim of Eleventh Amendment immunity, but only whether certain agency officials were proper official-capacity defendants to an Establishment Clause claim. Hartmann, 707 F.3d at 1125, 1127. 8

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This distinction is confirmed by the only case cited by Plaintiffs to hold directly that Ex parte Young applied with respect to a governor, a decision that squarely rested on the conclusion that the state governor possessed the discretion to actually institute proceedings that exacerbated the injury alleged. See Luckey v. Harris, 860 F.2d 1012, 1016 (11th Cir. 1988); cf. Summit Medical, 180 F.3d at 1342 (contrasting that case with Luckey on the ground that that state governor was "responsible for law enforcement, ha[d] residual power to commence criminal prosecutions, and ha[d] final authority to direct the Attorney General to prosecute on behalf of the state"). Because Plaintiffs have not, and cannot, point to any statute, specific or general, conferring authority upon the Governor to enforce Virginia's definition of marriage against Virginia officials or private individuals, they have not shown that Governor McDonnell has any real "proximity to or responsibility for" its application and so the Eleventh Amendment immunizes him from suit in this matter. CONCLUSION For all the foregoing reasons, Governor McDonnell should be dismissed. Respectfully Submitted, ROBERT F. MCDONNELL, in her official capacity By: /s/ E. Duncan Getchell, Jr. Solicitor General of Virginia (VSB No. 14156) Office of the Attorney General 900 East Main Street Richmond, Virginia 23219 (804) 786-7240 Telephone (804) 371-0200 Facsimile dgetchell@oag.state.va.us

Kenneth T. Cuccinelli, II Attorney General of Virginia 9

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Rita W. Beale, VSB #37032 Deputy Attorney General E-mail: rbeale@oag.state.va.us Allyson K. Tysinger, VSB #41982 Senior Assistant Attorney General/Chief E-mail: atysinger@oag.state.va.us Michael H. Brady, VSB #78309 Assistant Solicitor General E-mail: mbrady@oag.state.va.us

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CERTIFICATE OF SERVICE I hereby certify that on the 30th day of August 2013, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will send notice of such filing to counsel who are registered CM/ECF users. /s/ E. Duncan Getchell, Jr.

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