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IN THE UNITED STATES DISTRICT COURT


FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

DEB WHITEWOOD, et al., : 1:13-CV-1861
:
Plaintiffs, : Hon. John E. Jones, III
:
v. :
:
MICHAEL WOLF, in his official :
Capacity as Secretary, Pennsylvania :
Department of Health, et al., :
:
Defendants. :

INTERVENORS REPLY IN SUPPORT OF MOTION TO INTERVENE
Proposed Intervenor-Defendant, Theresa Santai-Gaffney, in her official
capacity as Schuylkill County Clerk of the Orphans Court and Register of Wills
(Clerk Gaffney), by and through counsel, respectfully submits this Reply in
Support of Motion to Intervene.
ARGUMENT
I. Clerk Gaffney Is Entitled to Intervene as of Right.

Plaintiffs provide argument against only one of the elements required for
intervention as of rightthus implicitly conceding the remaining elements. Apart
from a passing and unsupported comment in a footnote, they never dispute that this
application is timely: it is made at an early enough stage in the litigation, is not at
all delayed, and does not risk prejudicing the parties. Opening Br. 6-10. They
Case 1:13-cv-01861-JEJ Document 147 Filed 06/16/14 Page 1 of 17
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never dispute that, assuming Clerk Gaffney has significantly protectable interests,
this Courts ruling will impair them. Id. at 15-16. Nor do they dispute that,
assuming such interests, the existing parties will not adequately represent them. Id.
at 16-18. Their entire argument rests on disparaging two of Clerk Gaffneys
significantly protectable interests and ignoring the third one. As explained below,
any of the three suffices for intervention as of right.
A. Clerk Gaffney Has Significantly Protectable Interests in the
Subject Matter of this Action.

Clerk Gaffney identified at least three significantly protectable interests that
she has in this action. First, Clerk Gaffney has the duty to issue marriage licenses.
Second, she has an interest in obtaining clarity regarding her official marriage-
related duties following this Courts ruling. Third, she has an interest in appealing
this Courts ruling concerning the constitutionality of Pennsylvanias Marriage
Laws. Ignoring this third interest, Plaintiffs argue that the first two interests are
not significantly protectable. Yet their attempts to dismiss Clerk Gaffneys
interests are unpersuasive and conflict with not only Pennsylvania statutes defining
her role, but also Third Circuit precedent.
1. Clerk Gaffney Has a Significantly Protectable Interest in
Her Duties When Issuing Marriage Licenses.

Clerk Gaffneys official duty to issue marriage licenses provides a concrete,
significant, and undeniable interest in the outcome of this case. Plaintiffs do not
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deny that Third Circuit precedent establishes that where a government officials
rights and duties as defined by state law may be affected directly by the
disposition of [the] litigation, that official has a sufficient interest to intervene as
of right in [the] action. Harris v. Pernsley, 820 F.2d 592, 597 (3d Cir. 1987).
That is exactly the situation here (notwithstanding Plaintiffs arguments to the
contrary). After all, until this Courts ruling on May 20, 2014, if anyone other than
one man and one woman asked Clerk Gaffney for a marriage license, she was
legally obligated to decline their request. But this Courts ruling threatens to
change Clerk Gaffneys duties by requiring her to issue marriage licenses to same-
sex couples. It is thus beyond question that Clerk Gaffney has a significantly
protectable interest in this litigation because her official rights and duties may be
affected directly by the disposition of [this] litigation. Id.
Resisting this conclusion, Plaintiffs argue that Clerk Gaffneys duty to issue
marriage licenses does not afford her a significant interest in this case because that
duty to issue marriage licenses is ministerial. Pls. Resp. at 4. But Plaintiffs
own actions in naming Clerk Petrille as a defendant devastates their argument. For
if Plaintiffs are correct that Clerk Gaffney has no interest in this case because her
affected duties are ministerial, then Clerk Petrille likewise would have no interest
because he too performs ministerial duties. Yet Plaintiffs (appropriately) named
Clerk Petrille as a defendant because he has the authority to provide them with the
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relief they seek (a marriage license). In light of this Courts claim to have the
authority to order Clerk Gaffney to cease enforcing the challenged state laws, see
Memorandum and Order at 8 (Dckt. No. 67) (If this Court renders a judgment in
Plaintiffs favor, all Clerks of Orphans Court would be subject to the legal
mandate.), Plaintiffs cannot have it both ways: Clerk Petrille cannot be a proper
defendant, while Clerk Gaffney lacks a sufficient interest for intervention. On the
contrary, because both Clerk Petrille and Clerk Gaffney are charged with issuing
marriage licenses and because both are arguably bound by this Courts May 20
ruling, Clerk Petrille is a proper defendant, and Clerk Gaffney has a significantly
protectable interest in this case.
Moreover, the discretionary/ministerial distinction is a red herring. Plaintiffs
cite no legal authority suggesting that a proposed government intervenor seeking to
be a defendant lacks a significantly protectable interest simply because her relevant
official duties are ministerial. Tellingly, all referenced marriage-related duties of
the relevant Department of Health official, Defendant Wolf, are ministerial. See 23
Pa.C.S.A. 1106(b) (requiring the Department of Health to prepare and furnish
marriage records); 35 Pa.C.S.A. 450.601 (same). So if that is a disqualifying
factor, then Defendant Wolf would not have a significant interest in this case
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either. Simply put, that the only marriage-related duties performed by the existing
defendants are ministerial betrays the emptiness of this argument.
1

Plaintiffs ministerial argument is also undermined by the many cases
concluding that government officials whose ministerial duties would be affected
by the outcome of a lawsuit have a significantly protectable interest supporting
their request for intervention as of right. See, e.g., Am. Assn of People with
Disabilities v. Herrera, 257 F.R.D. 236, 256 (D.N.M. 2008) (This direct effect on
what [a county official] can and cannot do as a county clerk is the direct and
substantial effect that is recognized as a legally protectable interest.); Bogaert v.
Land, No. 1:08-CV-687, 2008 WL 2952006, at *2-3 (W.D. Mich. July 29, 2009)
(permitting county officials to intervene where the plaintiffs sought an injunction
that might change the clerks ministerial duties). Plaintiffs do not even attempt to
address these decisions.
Furthermore, whether Clerk Gaffney is subject to the supervisory control of
another government agency or official (a point raised by Plaintiffs and addressed
below) is irrelevant to the question whether her duty to issue marriage licenses
affords her a significantly protectable interest in this litigation. A significantly
protectable interest exists here, as discussed above, because Clerk Gaffneys

1
Plaintiffs effort to dismiss the Third Circuits decision in Harris falls woefully
short. Pls Br. at 5. That case did not even discuss, let alone rest on, whether the
government officials duties were ministerial.
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rights and duties as defined by state law may be affected directly by the
disposition of [the] litigation. Harris, 820 F.2d at 597. It matters not whether she
is supervised in those duties. If the presence of supervision were sufficient to
destroy a government officials substantial interest in a case affecting her duties,
then Defendant Wolf arguably lacks such an interest because he, as a state
executive official, is under the supervision of the Governor.
2

2. Clerk Gaffney Has a Significantly Protectable Interest in
Obtaining Clarity Concerning Her Duties When Issuing
Marriage Licenses.
Clerk Gaffney has demonstrated that, unless she intervenes as a party, she
faces significant uncertainty regarding her duties when issuing marriage licenses.
Plaintiffs respond that [t]here is no uncertainty, Pls. Resp. at 6, because Clerk
Gaffney is under the [Health] Departments authority, id. at 8.
Plaintiffs are incorrect when they assert that the Department of Health (i.e.,
Defendant Wolf) directs Clerk Gaffney when she issues marriage licenses.

2
Undermining Plaintiffs argument further, sovereign-immunity jurisprudence
confirms that a government official with direct authority to enforce a challenged
law has a stronger interest in appearing as a party than that officials supervisor
does. See Planned Parenthood of Idaho, Inc. v. Wasden, 376 F.3d 908, 919 (9th
Cir. 2004) ([The] connection between a named [government] officer and
enforcement of a challenged state law . . . must be fairly direct; . . . general
supervisory power over the persons responsible for enforcing the challenged
provision will not subject an official to suit. (quotation marks and citation
omitted)); see also 1st Westco Corp. v. Sch. Dist. of Philadelphia, 6 F.3d 108, 113
(3d Cir. 1993) (General authority to enforce the laws . . . is not sufficient to make
government officials the proper parties to litigation challenging [a] law.).
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Authority to issue marriage licenses has been entrusted solely to the personnel of
the Orphans Court. 20 Pa.C.S.A. 711(19). No statute authorizes Defendant
Wolf or any other Department of Health official to supervise Clerk Gaffney when
she issues those licenses. The Department of Health, to be sure, has some record-
keeping duties pertaining to marriage records. It must, for example, prepare and
furnish marriage records to the clerks, see 23 Pa.C.S.A. 1106(b); 35 Pa.C.S.A.
450.601; and it must ensure that marriages records are properly registered, see 71
Pa.C.S.A. 534(c). But this authority involves the receipt, collection, and
maintenance of completed marriage records; it does not apply to Clerk Gaffneys
issuance of marriage licenses. Thus, the Department of Healths role in
maintaining a system of vital records does not give it any authority over Clerk
Gaffneys issuance of marriage licenses. That duty is entrusted to Clerk Gaffney, a
duly elected county official, without oversight by another.
3

Because Clerk Gaffney is not under the control of the Department of Health,
she is left in a position of uncertainty. And if she chooses the wrong course when
carrying out her official duties, she could be guilty of a misdemeanor and subject
to fines. 16 Pa.C.S.A. 3411. Surely, a proposed intervenor has a significantly

3
Much like Plaintiffs opposition papers, the Department of Healths recent
memorandum to clerks (Pls. Exhibit C) cites no law establishing its authority over
them. And the Pennsylvania Supreme Courts order in the Hanes case (see Pls.
Br. at 7) does not support Plaintiffs position because, using Plaintiffs own words,
that court granted Clerk Haness request only because no party in that case
opposed it. Pls. Br. at 5 n.5; see also Pls. Exhibit D.
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protectable interest when the potential for fines and a misdemeanor conviction
hangs over her head.
At bottom, all of Plaintiffs arguments are circular. They boil down to
asserting that Clerk Gaffney must act in a prescribed manner in obedience to the
mandate of legal authority. Pls. Resp. at 4 (internal quotation marks omitted).
But that claim simply begs the question of what the mandate of legal authority is
here and who ultimately decides the meaning of that lawthe Pennsylvania
legislature, a single district judge in an unappealed lawsuit against other parties, or
the federal appellate courts? Plaintiffs assert that because a single, non-
precedential, district court decision has recognized a constitutional right vis--vis
other defendants, and the defendants in that case decline to appeal it, the duties of
Clerk Gaffney and every other clerk in the Commonwealth are now pellucid
beyond dispute.
But a judgment cannot bind a nonparty. This suit was not styled as a class
action, and Clerk Gaffney was not named as a defendant. Thus, the entirety of
Plaintiffs argument hinges on treating her as an employee of the State Department
of Health, who would thus be bound by a ruling against her supposed superior.
But she is not a subordinate of any Defendant, and no state official can tell her
what to do. She is an independently elected official, and a county one at that, with
her own statutorily defined role and her own oath of office. Thus, she is not bound
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by this Courts May 20 ruling. She is thus entitled as of right to seek clarification
of duly enacted Pennsylvania law until either a court definitively resolves the
matter in a case to which she is a party or the appellate courts definitively rule on
the constitutionality of the law.
The Supreme Court itself has signaled the importance of allowing the
adversarial appellate process to run its course in these sorts of marriage cases.
Earlier this year, in Herbert v. Kitchen, the Court stayed a single district courts
ruling invalidating Utahs man-woman marriage law, and did so without a single
recorded dissent. 134 S. Ct. 893 (2014). By doing so, the Court sought to ensure
that a single district courts ruling would not short-circuit the ordinary appellate
process. Appeals by government officials charged with applying a states marriage
laws, the Court tacitly acknowledged, are essential to ensuring the definitive
resolution of the important constitutional questions presented by these cases. Cf.
Gaffney Stay Br. at 5-6. Only intervention followed by a timely appeal can ensure
an authoritative resolution of this matter.
B. Clerk Gaffneys Significantly Protectable Interests Are Not
Adequately Represented.

Plaintiffs argue that Clerk Gaffneys interests are fully and adequately
represented by Defendant Wolf. See Pls. Br. at 9. But their one-paragraph
argument boils down to reiterating that she has no significantly protectable
interests in the first place. Id. And they never deny that if Clerk Gaffney has a
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significantly protectable interest, the existing defendants are not adequately
representing it. Plaintiffs wholly ignore that Governor Corbett, on behalf of
Defendant Wolf, has publicly stated that he will not pursue an appeal. Yet without
an appeal, it is impossible for any of the existing defendants to adequately
represent Clerk Gaffneys interests. Plaintiffs, therefore, have failed to refute the
inadequacy-of-representation requirement.
II. This Court Should Grant Clerk Gaffneys Request for Permissive
Intervention.

Plaintiffs do not deny that Clerk Gaffney satisfies all the requirements for
permissive intervention. Nor do they argue that permissive intervention will
unduly delay or prejudice the adjudication of [their] rights. Fed R. Civ. P.
24(b)(3). Plaintiffs assert only that [t]here is no reason to permit Clerk Gaffney to
intervene in this case for all the reasons they stated in opposition to her request for
intervention as of right. Pls. Br. at 10. Yet those arguments fail to address the
distinct considerations relevant when evaluating a request for permissive
intervention, and thus, Plaintiffs have not rebutted Clerk Gaffneys compelling
case for permissive intervention.
Plaintiffs also claim that [i]ntervention by Clerk Gaffney would . . . be
pointless because, they believe, she lacks standing to pursue an appeal. Pls.
Br. at 10. Nothing could be further from the truth.
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Plaintiffs standing argument rests on a fundamental misreading of
Hollingsworth v. Perry, 133 S. Ct. 2652 (2013). That case reinforces (rather than
undermines) the axiomatic principle that a public official charged with enforcing a
challenged law is a proper defendant under Article III. See, e.g., Finberg v.
Sullivan, 634 F.2d 50, 54 (3d Cir. 1980) (en banc) (a public official is a proper
party when the officials performance of his duties affects the plaintiffs rights);
Bronson v. Swensen, 500 F.3d 1099, 1110 (10th Cir. 2007) (noting that Article III
standing principles are satisfied where the named defendants . . . possess authority
to enforce the complained-of provision). In Hollingsworth, the Court held that
nongovernment intervenors with no rolespecial or otherwisein the
enforcement of [the challenged laws] did not have standing to appeal because the
District Court had not ordered them to do or refrain from doing anything. 133 S.
Ct. at 2662-63. In this case, Clerk Gaffney is not a private party, but a public
official charged with enforcing the challenged statutes. And this Court has claimed
that it has the authority to order her to cease enforcing the challenged state laws.
See Memorandum and Order at 8 (Dckt. No. 67) (If this Court renders a judgment
in Plaintiffs favor, all Clerks of Orphans Court would be subject to the legal
mandate.). Thus, Clerk Gaffney has standing to appeal because, unlike the
nongovernment intervenors in Hollingsworth, she is a public official charged with
enforcing the challenged statutes and the Courts judgment purports to order[]
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[her] to . . . refrain from enforcing those statutes. See Hollingsworth, 133 S. Ct. at
2663.
Moreover, Plaintiffs suggestion that the ministerial nature of Clerk
Gaffneys duties somehow undermines her standing is foreclosed by binding Third
Circuit precedent. In Finberg, the Third Circuit, sitting en banc, held that
ministerial officers charged with enforcing a statute were proper defendants, even
if other state officials could also be proper defendants. 634 F.2d at 54-55. The
court explained that its conclusion about which government officials are proper
defendants was not altered by the fact that the duties of the [officials] are entirely
ministerial because the relevant inquiry is not into the nature of [the] officials
duties. Id. at 54. The court also remarked that those officials enforcement
duties, even if ministerial, provided a sufficient interest in the constitutionality of
the challenged statutes to support their role as proper parties. Id. The ministerial
nature of Clerk Gaffneys duties thus presents no obstacle to her standing to
appeal.
In short, this case presents one of the most important constitutional questions
of our time. To allow such a profound legal issue to go unaddressed on appeal
would deprive the officials and citizens of the Commonwealth of Pennsylvania of
the authoritative (and adversarially tested) precedent needed to bring closure to this
important issue. Clerk Gaffneys intervention ensures that the appellate process is
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not short-circuited. She thus respectfully requests that this Court grant her request
to intervene.
CONCLUSION
For the foregoing reasons, this Court should grant Clerk Gaffneys request to
intervene as a defendant in this case. Regardless, this Court should rule on that
request, as well as the motion for a stay, as soon as possible and in any case no
later than Wednesday, June 18. Doing so within the thirty-day period for filing a
notice of appeal would streamline resolution of this urgent matter, avoiding the
complications of having to file a protective notice of appeal before this Courts
rulings on the pending motions and a second notice of appeal after the issuance of
those rulings.
Respectfully Submitted,

DATED: June 16, 2014 By: /s/ Jeffrey A. Conrad
Jeffrey A. Conrad, Esquire
PA Bar No. 85156
CLYMER MUSSER & CONRAD, P.C.
408 w. Chestnut Street
Lancaster, PA 17903
Telephone: (717) 299-7101
Facsimile: (717) 299-5115
jeff.conrad@clymerlaw.com

James M. Smith, Esquire
PA Bar No. 82124
SMITH LAW GROUP, LLC
14133 Kutztown Road
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P.O. Box 626
Fleetwood, PA 19522
Telephone: (610) 944-8406
Facsimile: (610) 944-9408
jsmith@smithlawgrp.com

David W. Crossett, Esquire
PA Bar No. 313031
(Application to Admission to U.S. District
Court for the Middle District of PA pending)
SMITH LAW GROUP, LLC
14133 Kutztown Road
P.O. Box 626
Fleetwood, PA 19522
Telephone: (610) 944-8406
Facsimile: (610) 944-9408
dcrossett@smithlawgrp.com


Counsel for Intervenor-Defendant



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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

DEB WHITEWOOD, et al., : 1:13-CV-1861
:
Plaintiffs, : Hon. John E. Jones, III
:
v. :
:
MICHAEL WOLF, in his official :
Capacity as Secretary, Pennsylvania :
Department of Health, et al., :
:
Defendants. :

CERTIFICATE OF SERVICE
I hereby certify that on June 16, 2014, I electronically filed the foregoing
Intervenors Reply in support of Motion to Intervene with the Clerk of Court using
the ECF system, which will effectuate service of this filing on the following ECF-
registered counsel by operation of the Courts electronic filing system:
James D. Esseks
American Civil Liberties Union
Foundation
125 Broad Street
18th Floor
New York, NY 10004
212-549-2627
Email: jesseks@aclu.org
John S. Stapleton
Hangley, Aronchick, Segal & Pudlin
One Logan Square
27th Floor
Philadelphia, PA 19103-6933
215-496-7048
Fax: 215-568-0300
Email: jstapleton@hangley.com

Leslie Cooper
American Civil Liberties Union
Foundation
Mark A. Aronchick
Hangley, Aronchick, Segal & Pudlin
1 Logan Square, 27th Floor
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125 Broad Street
18th Floor
New York, NY 10004
212-549-2627
Email: lcooper@aclu.org

Philadelphia, PA 19103
(215) 496-7002
Email: maronchick@hangley.com
Mary Catherine Roper
American Civil Liberties Union of
Pennsylvania
P.O. Box 40008
Philadelphia, PA 19106
215-592-1513 ext 116
Email: mroper@aclupa.org

Molly M. Tack-Hooper
American Civil Liberties Union of
Pennsylvania
P.O. Box 40008
Philadelphia, PA 19106
215-592-1513
Email: mtack-hooper@aclupa.org
Rebecca S. Melley
Hangley, Aronchick, Segal, Pudlin &
Schiller
One Logan Square
27th Floor
Philadelphia, PA 19103
215-496-7374
Email: rsantoro@hangley.com

Seth F. Kreimer
3400 Chestnut Street
Philadelphia, PA 19104
215-898-7447
Email: skreimer@law.upenn.edu
Witold J. Walczak
American Civil Liberties Union of
Pennsylvania
313 Atwood Street
Pittsburgh, PA 15213
(412) 681-7864
Email: vwalczak@aclupa.org


Attorneys for Plaintiffs

William H. Lamb
Joel Frank
Maureen McBride
Lamb McErlane, PC
24 East Market Street
P.O. Box 565
West Chester, PA 19382-3151

Frank Chernak
Ballard Spahr, LLP
1735 Market Street
Philadelphia, PA 19103-7599
215.864.8234
Email: chernakf@ballardspahr.com

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610.430.8000
Email: wlamb@lambmcerlane.com
jfrank@lambmcerlane.com
mmcbride@lambmcerlane.com

Attorney for Defendants Sec. Wolf and
Sec. Mueser
Attorney for Donald Petrille, Jr.,
Register of Wills and Clerk of Orphans
Court of Bucks County


Respectfully Submitted:

Clymer Musser & Conrad, P.C.


/s/ Jeffrey A. Conrad
Jeffrey A. Conrad, Esquire
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