Case 2:13-cv-00395-AWA-LRL Document 110 Filed 01/24/14 Page 1 of 7 PageID# 857

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Norfolk Division TIMOTHY B. BOSTIC, et al., Plaintiffs, v. JANET M. RAINEY, et al., Defendants. ) ) ) ) ) ) ) ) )

Civil Action No. 2:13-cv-00395

STATUS REPORT ON BEHALF OF DEFENDANT JANET M. RAINEY The Attorney General of Virginia suggests that the Court answer the three questions posed in its Order of January 23, 2014 (Dkt. 99), as follows: 1. Should the Court hear oral argument on January 30th or rule promptly on the briefs without a hearing?

This case certainly could be decided without a hearing. The issues have been thoroughly briefed by the parties (and by two amici curiae) on cross-motions for summary judgment that have now been pending for some time. What is more, the ongoing, harmful denial of civil liberties to Virginias same-sex couples presents a compelling reason for the Court to decide this case as rapidly as its fair-minded consideration will permit. (Doc. 96-1 at PageID# 809.) The Attorney General submits, however, that the better course would be for the Court to proceed to decide this case promptly while permitting oral argument next week, as scheduled. That course is preferable for three reasons. First, the date that the Court set last month is now less than one week away. January 30th is so close that permitting argument to go forward then will not materially delay a ruling.

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Second, the decision here will be a landmark ruling in Virginia on one of the most important civil rights issues of our time. The gravity of the matter and the stakes involved make it reasonable to allow the parties to supplement their written submissions, though already comprehensive, with brief oral argument. Finally, the Courts ruling will almost certainly be appealed by the losing parties, whatever the Court may decide. Permitting oral argument both comports with the dignity and seriousness of the issues and will obviate any concern that the losing parties were not given a fair opportunity to be heard. Oral argument may also answer questions that emerge as the Court evaluates the issues. 2. How should the argument be structured and how much time allotted?

We propose allotting an equal amount of time to the arguments for and against the constitutionality of Virginias ban on same-sex marriage. Fifteen minutes on behalf of Defendant Rainey would be adequate, but the time allotted should be commensurate with the time allotted other parties. The scope would cover those matters of greatest importance to the parties and the Court, with due regard for the Courts admonition that duplicative or cumulative arguments are strongly discouraged. (Dkt. 99.) 3. Whether, in light of the change of position by Rainey, any other parties or entities have grounds to present argument that the laws denying the right to marry to same-sex couples should be construed as constitutional?

As to parties, the Plaintiffs have submitted declarations setting forth facts sufficient to establish their standing. (Docs. 26-1 through 26-4.) They are proper party-plaintiffs to contest the validity of Virginias ban on same-sex marriage. As for defendants, the relevant officials are (1) Clerk Schaefer, in his official capacity as the Clerk of the Circuit Court for the City of Norfolk, who denied the request by Plaintiffs Bostic and London for a marriage license; (2) Defendant Rainey, in her official capacity, as the State 2

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official most directly responsible for carrying out Virginias same-sex-marriage ban, including serving as the custodian of vital records and the official who directs, supervises and controls all matters relating to the operation of the state-wide system of maintaining vital records; and (3) Intervenor McQuigg, the Clerk of the Circuit Court of Prince William County. Under Virginia law, circuit court clerks are independent constitutional officers. See Va. Const. art. VII, 4. They are not among the State entities who are represented by the Attorney General under Code 2.2-507. See Va. Code Ann. 2.2-507(A) (2011); 1974-1975 Op. Va. Atty Gen. 68, 69 (construing predecessor statue). Accordingly, the clerks here are properly represented by their own counsel. Clerk Schaefer confirms that he will continue to defend the constitutionality of Virginias same-sex-marriage ban, noting that the issues presented in the claims against [him] are of great importance to society, and should be adjudicated fairly and promptly. (Doc. 105 at PageID# 842-43.) Clerk McQuigg has previously made plain her desire to defend the ban as well. Indeed, she moved to intervene after the November election on the ground that she believed that Attorney General-elect Mark R. Herring would not likely defend the bans constitutionality. (Doc. 73 at PageID# 671.) The Court permitted her intervention conditioned on McQuiggs assurance that she would take no steps to delay the adjudication of the pending motions. (Doc. 91 at PageID# 738.) In short, Clerk Schaefer and Clerk McQuigg both have standing to argue that Virginias same-sex-marriage ban is constitutional. No one other than the Attorney General, however, has standing to present the Commonwealths legal position as to whether Virginias same-sex-marriage ban violates the Fourteenth Amendment. As the Supreme Court explained in Hollingsworth v. Perry, 133 S. Ct.

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2652 (2013), a State must be able to designate agents to represent it in federal court. That agent is typically the States attorney general. Id. at 2664 (internal citation omitted). Virginia is typical in this regard. Virginia Code 2.2-507(A) provides that [a]ll legal service in civil matters for the Commonwealth [and listed State officials and entities] shall be rendered and performed by the Attorney General . . . . See also Va. Code Ann. 2.2-513 (2011) (The Attorney General shall represent the interests of the Commonwealth, its departments, boards, institutions and commissions in matters before or controversies with the officers and several departments of the government of the United States. ). We previously discussed the amicus brief filed by 44 State Attorneys General, including Virginia Attorney General Jerry Kilgore, in Colorado ex rel. Salazar v. Davidson, 79 P.3d 1221 (Colo. 2003). 1 It provided an excellent summary of the common law and statutory powers of State attorneys general. As the brief explained: The independence of the Attorney General is . . . critical to the preservation of ordered liberty. The state must speak with one voice in the courtroom, and that voice is of the Attorney General. 2 Permitting any other official to speak for the State would lead to a cacophony of voices that would undermine the Attorney Generals critical role in a system founded on the separation of powers: It is for the Attorney General to reconcile the interests of individual state officials with the interests of the state and of the people. Sometimes this responsibility requires the Attorney General to take positions to which individual state officials or agencies object. The exercise of these powers permits the Attorney General to independently assess the publics interest in any particular matter of
1

See Doc. 96-1 at PageID# 789 & n.2 (discussing Brief of Thurbert E. Baker, Attorney General of Georgia, and Lawrence E. Long, Attorney General of South Dakota, and the Attorneys General of 42 Other States and Territories as Amici Curiae in Support of Respt, Davidson v. Salazar, No. 03SA147, 2003 WL 23221412 (Colo. Jul. 10, 2003).)
2

2003 WL 23221412, at *2. 4

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law, act on behalf of that interest without parochial or partisan interference, and in so doing, establish and sustain a uniform and consistent legal policy for the state. Without these powers, the one voice of the states legal affairs would be replaced by a cacophony of divergent interests vying for control of [the states] legal policy. 3 That passage describes perfectly the function of the Virginia Attorney General under the express language of Code 2.2-507. Finally, no further amicus filings or intervenors should be permitted. The Court, in its December 3 Orders (Dkt. 70, 71), already allowed two separate amicus briefs to be received, both of which argued for the constitutionality of Virginias ban and were timely filed while briefing on the cross-motions for summary judgment was progressing. (Doc. 62-1 (Family Foundation of Virginia), 64-1 (amici professors).) At this late stage, no other amicus party should be allowed on either side of the issue. A court may not consider any legal issues or arguments [in an amicus brief] that were not raised by the parties themselves. Tafas v. Dudas, 511 F. Supp. 2d 652, 661 (E.D. Va. 2007). And untimeliness is a proper reason to deny leave to file. Id. at 659 ([a] motion for leave to file an amicus curiae brief . . . should not be granted unless the court deems the proffered information timely and useful) (citation and quotation omitted). 4

2003 WL 23221412, at *2-3. See also id. at *8 (stating that the Attorney General has the exclusive and absolute discretion to set state legal policy and to control all aspects of litigation for and against the State).

Yesterdays motion by Liberty Counsel to file an amicus brief (Doc. 103) is untimely. Not only did Liberty Counsel fail to include its proposed brief, thus making it impossible to evaluate whether the arguments would be either new or useful, but it also offered no excuse for having waited so long to appear. Liberty Counsel was informed on August 12, 2013, that the Office of the Attorney General did not then object to its filing an amicus brief. Yet Liberty Counsel has provided no explanation for its failure to act for more than five months. Cf. Tafas, 511 F. Supp. 2d at 658, 660 (granting leave to file amicus briefs that were filed a relatively short time [fewer than three weeks] after the case began). 5

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This Court was correct in ruling on McQuiggs intervention that it is difficult to see how any interests in this action . . . will not be represented fully and adequately protected by the existing parties. (Doc. 91 at 3.) As made clear yesterday, the Attorney General has no objection to this Courts considering the arguments raised by prior government counsel in support of Virginias same-sex-marriage ban. (Doc. 96-1 at PageID# 793.) We also do not object to Clerk McQuiggs adopting as her own the motion for summary judgment filed by prior government counsel. But the Courts action to ensure that McQuiggs intervention would not unduly delay or prejudice the adjudication of the original parties rights (Doc. 91 at PageID# 738) would be for naught if additional amici were allowed in, more than a month after McQuiggs already late appearance, and mere days before the January 30th oral argument. CONCLUSION The Court should proceed to decide this case promptly, including by hearing oral argument next Thursday as scheduled. It should allot equal time to the arguments for and against the constitutionality of Virginias ban. And no additional intervenors or amici should be permitted at this late stage, on either side of the legal issue. Respectfully submitted, /s/ Stuart A. Raphael, VSB #30380 Solicitor General of Virginia 900 East Main Street Richmond, Virginia 23219 (804) 786-7240 Telephone (804) 371-0200 Facsimile sraphael@oag.state.va.us Counsel for Defendant Rainey Mark R. Herring Attorney General of Virginia Cynthia E. Hudson Chief Deputy Attorney General 6

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H. Lane Kneedler, VSB #007722 Senior Counsel Trevor S. Cox, VSB #78396 Deputy Solicitor General E-mail: tcox@oag.state.va.us Rhodes B. Ritenour, VSB #71406 Deputy Attorney General E-mail: rritenour@oag.state.va.us Allyson K. Tysinger, VSB #41982 Senior Assistant Attorney General E-mail: atysinger@oag.state.va.us Catherine Crooks Hill, VSB #43505 Senior Assistant Attorney General E-mail: cchill@oag.state.va.us

CERTIFICATE OF SERVICE I hereby certify that on January 24, 2014, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will send a copy to counsel of record. /s/ Stuart A. Raphael