Secretary, Pennsylvania Department of Health, et al.
No. 14-3048
PLAINTIFFS/APPELLEES MEMORANDUM OF LAW IN SUPPORT OF SUMMARY AFFIRMANCE AND DISMISSAL OF THE APPEAL OF THERESA SANTAI-GAFFNEY
I. INTRODUCTION The district court was unquestionably within its discretion to deny the post- judgment motion of Theresa Santai-Gaffney, Clerk of the Orphans Court for Schuylkill County (Clerk Gaffney) to intervene in this action. Clerk Gaffneys ministerial duty to issue marriage licenses under Pennsylvania law does not give her an interest in this action sufficient to support her proposed intervention. Clerk Gaffneys appeal of denial of intervention therefore does not present a substantial question and the order should be summarily affirmed pursuant to Local Appellate Rule 27.4 and Internal Operating Procedure 10.6. Moreover, and again because of the ministerial nature of her duties under Pennsylvania law and the corresponding lack of harm to her resulting from the district courts May 20, 2014 order enjoining the enforcement of Pennsylvanias Case: 14-3048 Document: 003111661491 Page: 1 Date Filed: 06/25/2014 2
statutes banning marriages of same-sex couples, Clerk Gaffney would lack standing to appeal that injunction, even if she were permitted to intervene. Accordingly, Plaintiffs ask this Court to summarily dismiss her appeal of the May 20, 2014 Order. II. FACTUAL AND PROCEDURAL HISTORY Plaintiffs eleven lesbian and gay couples, one widow, and two teenage children of one of the Plaintiff couples filed this action to challenge the constitutionality of Pennsylvanias laws excluding same-sex couples from marriage and voiding within Pennsylvania the marriages of same-sex couples entered into in other states (the Marriage Exclusion). The Amended Complaint named as defendants the Commonwealth of Pennsylvanias Secretary of Health, its Secretary of Revenue, and Donald Petrille, the register of wills of Bucks County, who had refused to issue marriage licenses to certain Plaintiffs. On February 20, 2014, by stipulation, Mr. Petrille elected not to participate in the litigation but agreed to remain a party and that he would be bound by any judgment entered. On May 20, 2014, J udge J ohn E. J ones, III of the U.S. District Court for the Middle District of Pennsylvania entered an Order granting Plaintiffs Motion for Summary J udgment and enjoining the enforcement of the Marriage Exclusion (the Summary J udgment Order). The next day, Governor Corbett announced that the Commonwealth would not appeal the decision. Case: 14-3048 Document: 003111661491 Page: 2 Date Filed: 06/25/2014 3
Two weeks later, on J une 6, 2014, Clerk Gaffney filed in the district court her Motion to Intervene (the Intervention Motion), seeking to intervene both as of right pursuant and permissively. After briefing by the parties, J udge J ones denied the Intervention Motion on J une 18, 2014 (the Intervention Opinion). J udge J ones concluded that Clerk Gaffney did not meet the requirements for intervention under either Rule 24(a) or Rule 24(b); instead, he found that we have before us a contrived argument by a private citizen who seeks to accomplish what the chief executive of the Commonwealth, in his wisdom, has declined to do. Intervention Op. at 9. 1 Later that same day, Clerk Gaffney filed this appeal. III. ARGUMENT A. Standard of Review An appellate courts review of a district courts decision to deny intervention, whether as of right or permissive, is deferential. United States v. Territory of Virgin Islands, 748 F.3d 514, 519 (3d Cir. 2014). Denial of permissive intervention is highly discretionary and such a denial has virtually never been reversed. Liberty Mut. Ins. Co. v. Treesdale, Inc., 419 F.3d 216, 227 (3d Cir. 2005) (quoting Catanzano v. Wing, 103 F.3d 223, 234 (2d Cir. 1996)). The Court of Appeals reviews a denial of intervention as of right for abuse of
1 Together with the Intervention Motion, Clerk Gaffney also filed a motion for a stay in the district court. After denying the Intervention Motion, J udge J ones denied the motion for a stay as moot. Case: 14-3048 Document: 003111661491 Page: 3 Date Filed: 06/25/2014 4
discretion and may reverse if the court has applied an improper legal standard or reached a decision that [it is] confident is incorrect. Harris v. Pernsley, 820 F.2d 592, 597 (3d Cir. 1987) (quoting United States v. Hooker Chems. & Plastics Corp., 749 F.2d at 968, 992 (2d Cir. 1984)). Local Appellate Rule 27.4 and Internal Operating Procedure 10.6 allow this Court to take summary action to resolve a pending appeal if it clearly appears that no substantial question is presented. I.O.P. 10.6; see also N.C.A.A. v. Governor of N.J., 520 F. Appx 61, 63 (3d Cir. 2013) (summarily affirming denial of intervention where proposed intervenors interest was insufficient to warrant intervention). B. The District Court Properly Denied Clerk Gaffneys Motion For Intervention As Of Right Under Rule 24(a). J udge J ones properly denied Clerk Gaffneys request to intervene as of right pursuant to Rule 24(a), finding that she failed to assert a sufficient interest in the proceeding that would be impaired or affected, for practical purposes, by the disposition of the underlying matter. 2 In the district court, Clerk Gaffney asserted
2 A person seeking leave to intervene must demonstrate that: (1) the application for intervention is timely; (2) the applicant has a sufficient interest in the litigation; (3) the interest may be affected or impaired, as a practical matter, by the disposition of the action; and (4) the interest is not adequately represented by an existing party in the litigation. Kleissler v. U.S. Forest Serv., 157 F.3d 964, 969 (3d Cir. 1998). The applicant bears the burden of demonstrating that he has met all four prongs of this conjunctive test. United States v. Alcan Aluminum, Inc., Case: 14-3048 Document: 003111661491 Page: 4 Date Filed: 06/25/2014 5
two purported interests: (1) her statutory role in administering marriage licenses; and (2) a purported lack of clarity regarding her legal obligations. 3 Intervention Mot. at 12-14. As J udge J ones correctly found, Clerk Gaffneys role in issuing marriage licenses is purely ministerial; her sole obligation is to follow the law, which is clear from the district courts injunction and the Defendants decision not to appeal. Moreover, the Secretary of the Department of Health, the Pennsylvania official with the duty to ensure that laws regarding marriage licenses are uniformly enforced throughout the Commonwealth, has already instructed all clerks in Clerk Gaffneys position of their obligation to perform their duties in accordance with the Summary J udgment Order. Accordingly, neither of these asserted interests supports intervention as of right. 1. Clerk Gaffneys ministerial duties under the Marriage Law do not give her an interest in whether same-sex couples may marry in Pennsylvania.
Clerk Gaffney seeks to intervene in her official capacity as the Clerk of Orphans Court for Schuylkill County. The scope of a government officials
25 F.3d 1174, 1181 n.9 (3d Cir. 1994); Sch. Dist. of. Phila. v. Pa. Milk Mktg. Bd., 160 F.R.D. 66, 68 (E.D. Pa. 1995). 3 Clerk Gaffney also claims a protectable interest in appealing the Injunction, noting that intervention for purposes of appeal is permissible. Intervention Mot. at 14-15. This does not and cannot constitute a separate interest permitting appeal. While it is true that an intervenor may intervene after judgment for purposes of appeal, such intervenor must first meet the requirements for intervention set forth above. Case: 14-3048 Document: 003111661491 Page: 5 Date Filed: 06/25/2014 6
interest in intervention is defined by the scope of his legal duties under state law. Harris, 820 F.2d at 597. Specifically, Clerk Gaffney must show that her rights and duties, as defined by Pennsylvania law, may be affected directly by the disposition of this litigation. Id. She must do more than show that . . . her interests may be affected in some incidental manner. Rather, [she] must demonstrate that there is a tangible threat to a legally cognizable interest to have the right to intervene. Id. at 601. Her Motion for Intervention did not and cannot meet this standard. Under Pennsylvania law, the Department of Health, not Clerk Gaffney, is responsible for deciding how the Commonwealths marriage laws should be enforced. See 71 P.S. 534(c) (The Department of Health shall have the power, and its duty shall be . . . [t]o see that the laws requiring the registration of births, deaths, marriages, and diseases, are uniformly and thoroughly enforced throughout the State, and prompt returns of such registrations made to the department.). The Commonwealth Court of Pennsylvania has made clear that county clerks authority to issue marriage licenses is purely ministerial and that they must perform their duties in a prescribed manner in obedience to the mandate of legal authority and without regard to [their] own judgment or opinion concerning the propriety or impropriety of the act to be performed. Intervention Op. at 5 (quoting Dept of Health v. Hanes, 78 A.3d 676, 686-88 (Pa. Commw. Ct. 2013); Council of the City Case: 14-3048 Document: 003111661491 Page: 6 Date Filed: 06/25/2014 7
of Phila. v. Street, 856 A.2d 893, 896 (Pa. Commw. Ct. 2004)); see also Whitewood v. Wolf, Memorandum and Order at 9 n.5, No. 13-1861, Dkt. No. 67 (Nov. 15, 2013) (in denying Mr. Petrilles Motion to Dismiss, finding that county clerks and registers of wills have no legally protected interest relative to whether marriage licenses are issued to same-sex couples). Clerk Gaffney and other clerks are not authorized to exercise any discretion or judgment in doing so. Hanes, 78 A.3d at 689. The law simply requires them to furnish and use the appropriate forms and to issue marriage licenses where applicants meet the applicable requirements. Id.; see also Hines v. DArtois, 531 F.2d 726, 737-38 (5th Cir. 1976) (drawing a distinction relevant to the intervention determination between (i) government officials who have their own decisional duties with respect to the challenged policy, and (ii) those whose duties are at the direction of others), cited in Intervention Mot. at 12. 4
4 Even Clerk Gaffney recognizes, as she must, the purely ministerial nature of her role. See Stay Mot. at 19-20. Clerk Gaffney makes much of the fact that Plaintiffs named Donald Petrille, the Bucks County Register of Wills, as a defendant in their Amended Complaint. Mr. Petrille was included as a defendant because he had enforced the Marriage Exclusion and denied a marriage license to certain Plaintiffs. He acknowledged that his role in issuing marriage licenses is purely ministerial, Stipulation and Order 11, Whitewood v. Wolf, No. 13-1861, Dkt. No. 102 (Feb. 24, 2014), and was treated as a nominal defendant, Intervention Op. at 7, n.3. That a clerk who has denied an application for a marriage license is a proper defendant in an action in which a plaintiff sues to challenge the Marriage Case: 14-3048 Document: 003111661491 Page: 7 Date Filed: 06/25/2014 8
Clerk Gaffney relies on this Courts statement in Harris that if a government officials rights and duties as defined by state law may be affected directly by the disposition of [the] litigation, the official would have a sufficient interest to intervene as of right in [the] action. See Stay Mot. at 19. But she overlooks the fact that in Harris, this Court denied the government officials request to intervene. 820 F.2d at 602. And Clerk Gaffneys interest in this case is far more attenuated than the interest the Court rejected in Harris. In Harris, this Court concluded that intervention was properly denied even though the decree at issue (a consent decree in litigation regarding overcrowding in the Philadelphia prisons) would have an effect on the district attorneys ability to perform his offices function. Id. The Court recognized that the decree may result in some people not appearing for their scheduled trial dates and some individuals not having to post bond before being released. Id. Although the district attorney argued that the proposed prison cap
Exclusion does not mean that clerks have a protectable interest in the litigation that would permit them to intervene. For a government official to be a proper defendant in a constitutional challenge seeking to enjoin enforcement of a law, a plaintiff need only show that the official had some connection to the enforcement of the law, not that the official has a protectable interest in the litigation. See Finberg v. Sullivan, 634 F.2d 50, 54 (3d Cir. 1980) (a government official is a proper defendant in a constitutional challenge to enjoin enforcement of a law as long as he or she has some connection with enforcement of the challenged law, even if the officials duties are entirely ministerial) For this reason, the fact that Mr. Petrille is a defendant in this action and the fact that county clerks have been defendants in litigation over marriage bans in other states, see Intervention Mot. at 11 n.1, are irrelevant. Case: 14-3048 Document: 003111661491 Page: 8 Date Filed: 06/25/2014 9
would hinder his ability to prosecute cases because some of the pre-trial detainees released will not appear for trial, 5 the Court nevertheless concluded that the by- product of the decree impacting prosecutions was not sufficient for intervention. Id. 6
Cases that Clerk Gaffney cites from other jurisdictions regarding various county officials speak neither to the scope of her duties under Pennsylvania law nor her corresponding interest in intervening in this action and therefore are of no help to her here. See, e.g., Am. Assn of People with Disabilities v. Herrera, 257 F.R.D. 236, 256 (D.N.M. 2008) (finding New Mexico county clerk to have a protectable interest because the injunction would actually prohibit her from performing certain electoral duties that New Mexico law requires); Bogaert v. Land, No. 08-0687, 2008 WL 2952006, at *2-3 (W.D. Mich. J uly 29, 2009)
5 Here, Clerk Gaffney does not even allege that the district courts injunction hinders her ability to do her job. Nor could she, as she has admitted that she can and will issue licenses in compliance with the Courts order: Santai-Gaffney said she will continue to follow J oness ruling unless it is overturned, although she wants to intervene in the case in order to clarify what her official duties are. Peter E. Bortner, Santai-Gaffney Seeks to Intervene in Gay Marriage Lawsuit, The Republican Herald (J une 7, 2014), http://republicanherald.com/news /santai- gaffney-seeks-to-intervene-in-gay-marriage-lawsuit-1.1699458, attached to Plaintiffs Opposition to the Intervention Motion as Exhibit A.
6 Unlike Clerk Gaffneys ministerial role in issuing marriage licenses, a district attorney exercises his or her discretion in choosing which cases to prosecute. See, e.g., United States v. Batchelder, 442 U.S. 114, 124 (1979) (Whether to prosecute and what charge to file or bring before a grand jury are decisions that generally rest in the prosecutors discretion.). Case: 14-3048 Document: 003111661491 Page: 9 Date Filed: 06/25/2014 10
(finding Michigan county clerk and election commission to have protectable interests because administering the recall election sought through the action might place them in violation of Michigan laws other than those challenged in the action).
As set out above, Pennsylvania law is clear concerning the duties and authority of clerks with respect to issuing marriage licenses. 7
In summary, as an official with purely ministerial duties under Pennsylvania law with respect to issuance of marriage licenses, Clerk Gaffney has no protectable interest at stake in the litigation over the marriage exclusion. Accordingly, the district court did not abuse its discretion by denying her Intervention Motion and this Court should affirm that order. 8
7 Clerk Gaffneys reliance on Bostic v. Rainey, No. 13-0395, Dkt. No. 91 (E.D. Va. J an 17, 2014), is also misplaced for the additional reason that the court allowed permissive intervention of a county clerk in a marriage case only because no party in that case opposed it. 8 Clerk Gaffney misconstrues the scope of the injunction issued by the district court in her Stay Motion, asserting that [t]he District Court ruled that Clerk Gaffney is bound by its Injunction, yet has denied her request to intervene for the purposes of appeal and to stay the enforcement of the Injunction pending appeal. Stay Mot. at 4. The injunction, however, binds only the parties to the case, including the Secretary of the Department of Health. Clerk Gaffney must issue marriage licenses to couples regardless of gender because the Department of Health, the agency responsible for uniform enforcement of the marriage laws, has acceded to the district courts injunction and instructed her to do so. Clerk Gaffney does not and cannot contest the Departments power to take these actions. Case: 14-3048 Document: 003111661491 Page: 10 Date Filed: 06/25/2014 11
2. Clerk Gaffney has no need to clarify her present obligations with respect to the issuance of marriage licenses.
In her Intervention Motion, Clerk Gaffney also asserted a protectable legal interest in clarity, contending that she is uncertain about the nature of her marriage-related duties going forward and the precise contours of her post- judgment responsibilities. Intervention Mot. at 13. But Clerk Gaffneys claimed uncertainty about her post-judgment responsibilities fails to state a protectable interest supporting this Courts overruling of the Intervention Opinion. To begin, there is no lack of clarity about Clerk Gaffneys responsibilities. The language of the Summary J udgment Order declaring that the exclusion of same-sex couples from marriage is unconstitutional and enjoining the defendants including the Secretary of Health from enforcing the challenged marriage laws is clear and unambiguous. The defendants have said that they will abide by the district courts decision and have not appealed. The decision of the Department of Health the government agency charged with ensuring compliance and uniform application of Pennsylvanias marriage law to accept the district courts decision leaves no doubt about the effect of the decision on Clerk Gaffneys obligations. As described in Part III.B.1, above, Pennsylvanias county officials responsible for issuing marriage licenses must do so in accordance with the Department of Healths direction because the Department is charged within ensuring uniform enforcement of the marriage law Case: 14-3048 Document: 003111661491 Page: 11 Date Filed: 06/25/2014 12
across the Commonwealth. The Department eliminated any possible confusion in its recent instruction to Clerks of Orphans Courts: The decision in Whitewood requires every government official who administers the Marriage Law including every clerk of the orphans court to perform his or her duties in accordance with the courts order. That means that a clerk of the orphans court must consider applications for the issuance of a marriage license without regard to the gender of the applicants.
Pa. Dept of Health, General Notice to All Clerks of the Orphans Court (J une 11, 2014), attached to Plaintiffs Opposition to the Intervention Motion as Exhibit C. 9
Moreover, the clarity Clerk Gaffney seeks is the epitome of an advisory opinion. See, e.g., Rhone-Poulenc Surfactants & Specialties, L.P. v. C.I.R., 249 F.3d 175, 182 (3d Cir. 2001) (This Court is without power to give advisory opinions. It has long been its considered practice not to decide abstract, hypothetical or contingent questions.) (quoting Ala. State Fedn of Labor v. McAdory, 325 U.S. 450, 461 (1945)). Clerk Gaffney does not allege an actual case
9 According to the Commonwealth, other than Clerk Gaffney, none of the clerks of the orphans courts serving in Pennsylvanias 67 counties have expressed to the Department of Health confusion or concerns about their obligations to comply with the Decision. Resp. of Secy Wolf & Secy Meuser to J une 18, 2014 Court Order at 5 n.3 (J une 25, 2014). Case: 14-3048 Document: 003111661491 Page: 12 Date Filed: 06/25/2014 13
or controversy, but rather asks, in the abstract, for her the precise contours of her post-judgment responsibility to be defined for her. Intervention Mot. at 13. 10
For these reasons, Clerk Gaffneys claimed uncertainty about her duties is baseless and, even if it were not, she is not entitled to an advisory opinion. * * * For the reasons discussed above, the district courts Intervention Order should be affirmed. 11 Then, because, in the absence of intervention, Clerk Gaffney is not a party and cannot appeal, her appeal should be dismissed. See, e.g., Pennsylvania v. Rizzo, 530 F.2d 501, 507-08 (3d Cir. 1976).
B. Clerk Gaffney Lacks Standing To Appeal.
Even if this Court were to conclude that the district courts denial of intervention was an abuse of discretion which, as discussed above, it was not Clerk Gaffneys appeal should be dismissed for lack of standing. An intervenors
10 Although Clerk Gaffney alleges that she faces potential fines and conviction of a misdemeanor for missteps in her official duties (Intervention Motion at 14), such potential punishment, arising from a hypothetical misstep[] does not create a justiciable case or controversy. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (injury for standing purposes must be actual or imminent, not conjectural or hypothetical). Moreover, as explained above, Clerk Gaffneys legal duties are perfectly clear. 11 For the same reasons that J udge J ones did not abuse his discretion in denying Clerk Gaffneys motion for intervention as of right, his denial of her motion for permissive intervention reviewed under an even less searching standard should likewise be affirmed. Indeed, as discussed below, because she lacks standing to appeal, such intervention would be futile. Case: 14-3048 Document: 003111661491 Page: 13 Date Filed: 06/25/2014 14
right to continue a suit in the absence of the party on whose side the intervention was permitted is contingent upon a showing by the intervenor that he fulfills the requirements of Article III. McLaughlin v. Pernsley, 876 F.2d 308, 313-314 (3d Cir. 1989) (quoting Diamond v. Charles, 476 U.S. 54, 68 (1986)). Clerk Gaffney cannot meet the standing requirements of Article III because she has no direct stake in the outcome of the case. Hollingsworth v. Perry, 133 S. Ct. 2652, 2662 (2013) (holding that intervenor-defendant lacked standing to appeal). The requirements for standing must be met by persons seeking appellate review, just as [they] must be met by persons appearing in courts of first instance. Arizonans for Official English v. Arizona, 520 U.S. 43, 64 (1997). Thus, to have standing to appeal, Clerk Gaffney must seek relief for an injury that affects [her] in a personal and individual way. Perry, 133 S. Ct. at 2662 (quoting Lujan, 504 U.S. at 560 n.1. Clerk Gaffney has suffered no such injury. As a ministerial official, responsible only for carrying out the Commonwealths marriage law, she has no protectable interest in determining what that law is. Like every citizen, the fact that she is compelled to comply with the laws that apply to her does not give her standing to challenge those laws unless and until she has suffered a concrete and particularized injury that is either actual or imminent. Massachusetts v. E.P.A., 549 U.S. 497, 517 (2007). Now that the Commonwealth has decided not to appeal Case: 14-3048 Document: 003111661491 Page: 14 Date Filed: 06/25/2014 15
the district courts injunction, Clerk Gaffneys attempt to maintain the litigation is, then, simply an effort to compel the State to enact a code in accord with [her] interests. Diamond, 476 U.S. at 65. Clerk Gaffneys lack of an injury is made manifest by her Stay Motion, filed in this Court the same day as her appeal. In attempting unsuccessfully to carry her burden to show irreparable harm, Clerk Gaffney focuses on harm that she alleges will be suffered by the Commonwealth and individuals. Stay Mot. at 14. Importantly, she nowhere alleges that she herself will suffer any harm at all. In addition to dooming her Stay Motion as discussed in Plaintiffs opposition to that motion, filed contemporaneously with this brief that glaring absence demonstrates her own lack of standing to pursue an appeal that the Commonwealth has elected to forego. She has suffered and will suffer no harm as a result of the injunction against the enforcement of the Marriage Exclusion. IV. CONCLUSION For the reasons set forth above, Clerk Gaffneys appeal of the Intervention Opinion presents no substantial question. Summary affirmance of the denial of intervention is appropriate and her appeal of the Summary J udgment Order should, accordingly, be dismissed. In addition, because it is clear from the face of the appeal that Clerk Gaffney lacks standing to appeal the Summary J udgment Order, dismissal would be appropriate even if Clerk Gaffney were permitted to intervene. Case: 14-3048 Document: 003111661491 Page: 15 Date Filed: 06/25/2014 16
By: /s/ Mark A. Aronchick Mark A. Aronchick J ohn S. Stapleton Dylan J . Steinberg Rebecca S. Melley One Logan Square, 27th Floor Philadelphia, PA 19103 (215) 568-6200
Helen E. Casale 401 DeKalb Street, 4th Floor Norristown, PA 19401 (610) 313-1670
ACLU FOUNDATION OF PENNSYLVANIA
By: /s/ Witold J . Walczak Witold J . Walczak 313 Atwood Street Pittsburgh, PA 15213 (412) 681-7736
Mary Catherine Roper Molly Tack-Hooper P.O. Box 40008 Philadelphia, PA 19106 (215) 592-1513
Case: 14-3048 Document: 003111661491 Page: 16 Date Filed: 06/25/2014 17
J ames D. Esseks Leslie Cooper AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street, 18th Floor New York, NY 10004 (212) 549-2500
Seth F. Kreimer 3400 Chestnut St. Philadelphia, Pa. 19104 (215) 898-7447
Counsel for Plaintiffs/Appellees Case: 14-3048 Document: 003111661491 Page: 17 Date Filed: 06/25/2014
CERTIFICATE OF SERVICE I hereby certify that on this 25th day of J une, 2014, I caused the foregoing Memorandum of Law in Support of Summary Affirmance and Dismissal of the Appeal of Theresa Santai-Gaffney to be filed electronically using the Courts electronic filing system, and that the filing is available to counsel for all parties for downloading and viewing from the electronic filing system.
/s/ Mark A. Aronchick Mark A. Aronchick
Case: 14-3048 Document: 003111661491 Page: 18 Date Filed: 06/25/2014