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 2 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 Case 1:13-cv-01861-JEJ Document 147 Filed 06/16/14 Page 2 of 17 3 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 Case 1:13-cv-01861-JEJ Document 147 Filed 06/16/14 Page 3 of 17 4 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 Case 1:13-cv-01861-JEJ Document 147 Filed 06/16/14 Page 4 of 17 5 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. Case 1:13-cv-01861-JEJ Document 147 Filed 06/16/14 Page 5 of 17 6 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.). Case 1:13-cv-01861-JEJ Document 147 Filed 06/16/14 Page 6 of 17 7 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. Case 1:13-cv-01861-JEJ Document 147 Filed 06/16/14 Page 7 of 17 8 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 Case 1:13-cv-01861-JEJ Document 147 Filed 06/16/14 Page 8 of 17 9 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 Case 1:13-cv-01861-JEJ Document 147 Filed 06/16/14 Page 9 of 17 10 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. Case 1:13-cv-01861-JEJ Document 147 Filed 06/16/14 Page 10 of 17 11 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[] Case 1:13-cv-01861-JEJ Document 147 Filed 06/16/14 Page 11 of 17 12 [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 Case 1:13-cv-01861-JEJ Document 147 Filed 06/16/14 Page 12 of 17 13 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 Case 1:13-cv-01861-JEJ Document 147 Filed 06/16/14 Page 13 of 17 14 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
Case 1:13-cv-01861-JEJ Document 147 Filed 06/16/14 Page 14 of 17 15
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 Case 1:13-cv-01861-JEJ Document 147 Filed 06/16/14 Page 15 of 17 16 125 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
Case 1:13-cv-01861-JEJ Document 147 Filed 06/16/14 Page 16 of 17 17 610.430.8000 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 Case 1:13-cv-01861-JEJ Document 147 Filed 06/16/14 Page 17 of 17
Teresa L. Johnston v. Ardmore Independent School District No. 19, A Political Subdivision Robert "Bob" Haynes, An Individual, 153 F.3d 727, 10th Cir. (1998)