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Case 1:14-cv-00406-RLY-TAB Document 27 Filed 04/21/14 Page 1 of 5 PageID #: 118

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION OFFICER PAMELA LEE, CANDACE BATTEN-LEE, OFFICER TERESA WELBORN, ELIZABETH J. PIETTE, BATALLION CHIEF RUTH MORRISON, MARTHA LEVERETT, SERGEANT KAREN VAUGHN-KAJMOWICZ, TAMMY VAUGHN-KAJMOWICZ and J.S.V., T.S.V. and T.R.V., BY THEIR PARENTS AND NEXT FRIENDS, SERGEANT KAREN VAUGHN-KAJMOWICZ and TAMMY VAUGHN-KAJMOWICZ Plaintiffs, -vsMIKE PENCE, in his official capacity as Governor of the State of Indiana; BRIAN ABBOTT, CHRIS ATKINS, KEN COCHRAN, STEVE DANIELS, JODI GOLDEN, MICHAEL PINKHAM, KYLE ROSEBROUGH and BRET SWANSON, in their official capacities as members of the Board of Trustees of the Indiana Public Retirement System; and STEVE RUSSO, in his official capacity as Executive Director of the Indiana Public Retirement System, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No: 1:14) cv-406-RLY-TAB ) ) ) ) ) ) )

PLAINTIFFS MOTION FOR SUMMARY JUDGMENT Plaintiffs, by counsel, pursuant to FED. R. CIV. P. 56(a) and S.D. Ind. L.R. 56-1, hereby submit their Motion for Summary Judgment. Plaintiffs are also filing

contemporaneously a Memorandum of Law in support of this Motion (Memorandum), along with affidavits designated as Exhibits A-D, all of which are incorporated herein. 1. Plaintiffs are four married couples, all of whom were married in jurisdictions

other than Indiana, and the three minor children of one of the couples. All four of the

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married couples are same-sex couples. One member of each of the four couples is either currently employed as a police officer or is a retired firefighter, in the State of Indiana. 2. Generally, the spouses of police officers and firefighters in the State of

Indiana are eligible for certain pension benefits. Four of the Plaintiffs are members of the 1977 Police Officers' and Firefighters' Pension and Disability Fund ("Pension Fund"), which is administered by the Board of Trustees of the Indiana Public Retirement System ("INPRS"). If an officer dies in the line of duty, then his/her surviving spouse is entitled to receive for life a monthly benefit of 100% of the deceased officer's calculated monthly retirement benefit. A surviving spouse of an officer who dies in the line of duty will also be paid a lump sum of $150,000, tax free. If a Pension Fund member dies while on active duty but not in the line of duty, then the surviving spouse will receive a monthly benefit equaling 60% of the deceased's calculated monthly benefit. If a retired firefighter dies while receiving the monthly benefit, the surviving spouse is entitled to a monthly benefit. 3. The Plaintiffs who are members of the Pension Fund sought to designate

their spouses as beneficiaries of the foregoing benefits. But the INPRS refused or ignored these requests, claiming that the spouses are not qualified as spouse-beneficiaries pursuant to Indiana law. For this assertion, INPRS relies upon Ind. Code 31-11-1-1 (Indianas

Marriage Non-Recognition Law), to define who can be a surviving spouse. I.C. 31-11-11 provides: (a) (b) Only a female may marry a male. Only a male may marry a female. A marriage between persons of the same gender is void in Indiana even if the marriage is lawful in the place where it is solemnized.

Thus, INPRS takes the position that the lawfully executed marriages of the Plaintiffs are void and their spouses do not qualify as "spouses" for the purposes of the Pension Fund. 4. Plaintiffs filed their Complaint for Declaratory and Injunctive Relief on March 14, 2

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2014 (D. # 1), alleging that the INPRS refusal to accept the designation of the Plaintiffspouses as beneficiaries and Indianas Marriage Non-Recognition Law violate the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the United States Constitution. 5. Plaintiffs maintain that I.C. 31-11-1-1(b) is unconstitutional, both facially

and as applied, under the Equal Protection Clause under either 1) a strict scrutiny or 2) intermediate scrutiny because Indiana has a long history of respecting out-of-state marriages if valid in the place of celebration even if violative of Indiana law. There is no legitimate state interest advanced by this statute, let alone an important or compelling state interest. 6. Plaintiffs maintain that I.C. 31-11-1-1(b) is unconstitutional, both facially

and as applied, under the Due Process Clause under any level of review, because it burdens the exercise of a fundamental right, the right to remain married, without advancing even a legitimate state interest, let alone an important or compelling state interest. WHEREFORE, Plaintiffs, by counsel, respectfully request that a judgment and permanent injunction be entered that: 1) Declares the Marriage Non-Recognition Law as set forth in I.C. 31-11-1-

1(b) unconstitutional under the Equal Protection and Due Process Clauses of the Fourteenth Amendment of the U.S. Constitution; 2) Permanently enjoins INPRS and the Pension Fund from refusing to

recognize the same-sex marriages of the Plaintiffs and all other same-sex marriages of police officers and firefighters who are active members of the Pension Fund and who have validly entered into marriage in other states; 3) Permanently enjoins the State of Indiana from: (a) enforcing the Marriage Non-Recognition Law as set forth in I.C.

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31-11-1-1(b); (b) denying same-sex couples validly married in other jurisdictions the

rights, protections and benefits of marriage provided under Indiana law; and 4) Grants all other relief just and proper in the premises. Respectfully submitted, s/Karen Celestino-Horseman Karen Celestino-Horseman, #15762-49 Of Counsel, AUSTIN & JONES, P.C. One N. Pennsylvania St., Ste. 220 Indianapolis, IN 46204 Tel: (317) 632-5633 Fax: (317) 630-1040 E-mail: Karen@kchorseman.com s/William R. Groth William R. Groth, # 7325-49 FILLENWARTH DENNERLINE GROTH & & TOWE, LLP 429 E. Vermont St., Ste. 200 Indianapolis, IN 46202 Tel: (317) 353-9363 Fax: (317) 351-7232 E-mail: wgroth@fdgtlaborlaw.com

s/Mark W. Sniderman Mark W. Sniderman, # 26599-49 SNIDERMAN NGUYEN LLP 47 S. Meridian St., Ste. 400 Indianapolis, IN 46204 Tel: (317) 361-4700 Fax: (317) 464-5111 E-mail: mark@snlawyers.com

s/Kathleen M. Sweeney Kathleen M. Sweeney, # 2192-49 SWEENEY LAW GROUP, LLC 141 E. Washington St., Ste. 225 Indianapolis, IN 46204 Tel: (317) 491-1050 Fax: (317) 491-1043 E-mail: ksween@gmail.com

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CERTIFICATE OF SERVICE The undersigned hereby certifies that a copy of the foregoing Plaintiffs Motion for Summary Judgment was filed electronically on the 21st day of April, 2014. Notice of this filing will be sent to the following counsel by operation of the Courts electronic filing system. Parties and counsel may access this filing through the Courts System. Thomas M. Fisher Email: Tom.Fisher@atg.in.gov Solicitor General OFFICE OF THE ATTORNEY GENERAL 302 W. Washington St. IGCS 5th Floor Indianapolis, IN 46204-2770 /s/ William R. Groth William R. Groth FILLENWARTH DENNERLINE GROTH & & TOWE, LLP 429 E. Vermont St., Ste. 200 Indianapolis, IN 46202 Tel: (317) 353-9363 Fax: (317) 351-7232