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UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA -NORFOLK DIVISIONTIMOTHY B. BOSTIC, et al. Plaintiffs, v. JANET M. RAINEY, et al. Defendants. BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT NOW COMES Defendant George E. Schaefer, III, in his official capacity as the Clerk of Court for Norfolk Circuit Court (hereinafter Clerk Schaefer), by counsel, and files this Brief in Support of Motion for Summary Judgment pursuant to Fed. R. Civ. Pro. R. 56, L.R. 7 and L.R. 56 as follows: Procedural Posture Plaintiffs Timothy B. Bostic and Tony C. London (hereinafter Bostic and London) are two men who have been unable to obtain a marriage license to marry each other in Virginia. On July 18, 2013, Bostic and London filed their Complaint pursuant to 42 U.S.C. 1983 against Governor Robert F. McDonnell, Attorney General Kenneth T. Cuccinelli, and Clerk Schaefer. (NEF Doc. 1.) The Complaint sought declaratory and injunctive relief regarding the treatment of same-sex marriages in the Commonwealth of Virginia under the Virginia Constitution and the Virginia code. The Governor and the Attorney General filed motions to dismiss, which were dismissed as moot because Plaintiffs voluntarily dismissed those Defendants. (NEF Doc. 19.) Plaintiffs have amended their Complaint to add two additional Plaintiffs, Carol Schall and Mary Townley (hereinafter Schall and Townley), and one new Defendant, Janet Rainey in her Page 1 of 15 Case No.: 2:13cv395

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official capacity as State Registrar of Vital Records (hereinafter Registrar Rainey). (NEF Doc. 18.) The Amended Complaint seeks the same relief but included additional facts related to the new Plaintiffs and Defendants. The parties agreed to submit this case to the Court on cross motions for summary judgment pursuant to a set schedule. (NEF Doc. 17.) Statement of Uncontested Facts For the purposes of this Motion for Summary Judgment1, Clerk Schaefer contends there is no genuine issue regarding the following undisputed facts: 1. Bostic and London are two gay men residing in the City of Norfolk, Virginia. (NEF Doc. 18 11-12 and 258.) 2. Schall and Townley are two lesbian women residing in Chesterfield County, Virginia. (NEF Doc. 18 13-14 and 29.) 3. Clerk Schaefer is the Clerk of Court for the Norfolk Circuit Court. (NEF Doc. 18 15.) 4. Bostic and London attempted to apply for a marriage license at the Norfolk Circuit Clerks office, but they could not apply for and receive a marriage license because they are the same sex. (NEF Doc. 18 26.) 5. Bostic and London had no direct interaction with Clerk Schaefer and did not submit an actual application for marriage. Rather, on July 1, 2013 when they attempted to obtain a marriage license, they only dealt directly with staff or other persons working in the Norfolk Circuit Court Clerks office. (NEF Doc. 18 26; NEF Doc. 23 26.)

In the event this case continues beyond the summary judgment stage, Clerk Schaefer reserves the right to contest any facts not specifically admitted in his Answer to the Amended Complaint.

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6. The Amended Complaint makes no allegations that Clerk Schaefer or any person under his control and direction took any action or omission whatsoever regarding Schall and Townley. Thus, Clerk Schaefer has not deprived Schall and Townley of any Constitutional or civil right while acting under color of state law. (NEF Doc. 18 at passim.) Argument The issues raised in Plaintiffs Amended Compliant are a political and social hot button. The idea of same sex marriage, when compared to the historical, traditional view of marriage is relatively novel. It was not until this century that any state government recognized a marriage between two persons of the same sex. This area of the law and society is rapidly changing, and the various states have addressed it in many different ways. However, only a minority of states currently recognize a marriage between two persons of the same sex.2 Certainly, recent years have shown a change in the public perception of same sex marriage. Changes in the law affecting such broad social policies are a proper function of the legislative body. Indeed, several states have legislatively passed laws allowing or recognizing same sex marriage. Moreover, the current state of Supreme Court jurisprudence upholds state bans on same sex marriage. The recent opinions from the Supreme Court did not change this precedent. See United States v. Windsor, __ U.S. __, 133 S. Ct. 2675 (2013); Hollingsworth v. Perry, __ U.S. __, 133 S. Ct. 2652 (2013). Plaintiffs Amended Complaint seeks declaratory and injunctive relief under 42 U.S.C. 1983, and they ask this Court to find Va. Const. Art. I, 15-A and Va. Code 20-45.245.3 unconstitutional under the Due Process Clause of the Fourteenth Amendment and under the

Same sex marriages are only allowed in 13 states. In contrast, 35 states have a prohibition on same sex marriage through a state constitutional amendment and/or state law.

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Equal Protection Clause of the Fourteenth Amendment. Va. Const. Art. I, 15-A, entitled Marriage states: That only a union between one man and one woman may be a marriage valid in or recognized by this Commonwealth and its political subdivisions. This Commonwealth and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effects of marriage. Nor shall this Commonwealth or its political subdivisions create or recognize another union, partnership, or other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage. Va. Code 20-45.2 provides: A marriage between persons of the same sex is prohibited. Any marriage entered into by persons of the same sex in another state or jurisdiction shall be void in all respects in Virginia and any contractual rights created by such marriage shall be void and unenforceable. Similarly, Va. Code 20-45.3 states: A civil union, partnership contract or other arrangement between persons of the same sex purporting to bestow the privileges or obligations of marriage is prohibited. Any such civil union, partnership contract or other arrangement entered into by persons of the same sex in another state or jurisdiction shall be void in all respects in Virginia and any contractual rights created thereby shall be void and unenforceable.

These are the provisions of Virginia law Plaintiffs ask this Court to declare unconstitutional and unenforceable. I. Standard of review. Summary judgment is appropriate in the absence of any genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. R. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary

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judgment; the requirement is that there be no genuine issue of material fact. Id. at 247-48 (emphasis in original). Genuineness means that the evidence must create fair doubt; wholly speculative assertions will not suffice. Brown v. Appalachian Mining, No. 97-1202, 1998 U.S. App. LEXIS 8081, at *8 (4th Cir. Apr. 27, 1998) (quoting Ross v. Comms. Satelite Corp., 759 F.2d 355, 364 (4th Cir. 1989)). Although the courts generally view the facts in the light most favorable to the non-movant, [w]hen opposing parties tell two different stories, one which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for the purposes of ruling on a motion for summary judgment. Scott v. Harris, 550 U.S. 372, 380 (2007). II. Plaintiffs lack standing to bring suit against Clerk Schaefer and fail to state a claim

upon which relief may be granted. In order for a litigant to have Article III standing in Federal court, a plaintiff must allege (1) an injury that is (2) fairly traceable to the defendant's allegedly unlawful conduct and that is (3) likely to be redressed by the requested relief. Lujan v. Defenders of Wildlife, 504 U.S. 555, 590 (1992). The injury must be a concrete, particularized, and actual or imminent. Davis v. Federal Elect. Comm., 554 U.S. 724, 733 (2008). Each party must have standing for each claim asserted and each form of relief sought. Id. at 733-34. Prospective injury will not provide standing unless the threatened injury is real, immediate, and direct. Id. at 733. Additionally, having an interest in a matter as a concerned citizen is not sufficient to provide standing under the principle of prudential standing, i.e. the Federal courts self-imposed limitation against deciding generalized grievances. See Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 12 (2004). Under this backdrop of prudential standing, the Federal courts are hesitant to grant standing to individuals challenging laws regarding domestic relations

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because such issues are delicate and belong to the laws of the Stats and not to the laws of the United States. Id. at 12. Without such limitations--closely related to Art. III concerns but essentially matters of judicial self-governance--the courts would be called upon to decide abstract questions of wide public significance even though other governmental institutions may be more competent to address the questions and even though judicial intervention may be unnecessary to protect individual rights. Id. (quoting Warth v. Seldon, 422 U.S. 490, 500 (1975)). Here, Bostic and London lack Article III standing because they did not submit an actual application to obtain a marriage license. By not completing, submitting and otherwise fully qualifying for a marriage license (except for both applicants being the same sex), Bostic and London have not suffered an injury for purposes of Article III standing. We do not know if Bostic and London intend to complete the entire procedure to apply for a marriage license and actually solemnize such marriage in Virginia. Additionally, we do not know if Bostic and London meet all of the other requirements to qualify for a marriage license in Virginia. Having two persons of the opposite sex who wish to be married ask for a marriage license is not the only requirement. There are several other types of unlawful or void marriages in Virginia. See e.g. Va. Code 20-38.1. In order to obtain a marriage license, the applicants must also submit a license tax, state under oath or affidavit that all information on the application is correct. Va. Code 20-1516. Additionally, it is unknown if Bostic and London would have completed the marriage process by solemnizing the marriage prior to the expiration of the license as required by Va. Code 20-14.1. Even if Bostic and Londons injuries meet Article III standing requirements, this Court should defer to the Virginia General Assembly under prudential standing principals. Bostic and London are more akin to concerned citizens who would like to see the challenged provisions of Page 6 of 15

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Virginia law overturned. The issue of same-sex marriage in the Commonwealth is a question best left to the General Assembly. The question of same-sex marriage is of broad and significant public importance. There are innumerable other laws impacted if same-sex marriages are permitted such as adoption statutes, estate laws, and tax laws. The General Assembly is better equipped than the judiciary to make such sweeping changes to multiple areas of the law. It was the General Assembly which created the prohibition on same-sex marriage, and if public perception and opinion has changed on this issue, the General Assembly can allow same-sex marriage. Schall and Townley have not alleged any injury created by or even tangentially related to any act or omission by Clerk Schaefer.3 Therefore, they lack standing to bring any claim against Clerk Schaefer. Moreover, the relief requested would not correct the harm which Schall and Townley do allege. Schall and Townley have not attempted to obtain any recognition of their California marriage by Clerk Schaefer. They have not attempted to obtain a marriage license from Clerk Schaefer in Norfolk. If Clerk Schaefer were ordered to issue marriage licenses to same sex couples, it would have no effect on Schall and Townley who are already married under the laws of California. Thus, they lack standing to bring any claims against Clerk Schaefer. Schall and Townleys claims also fail to state a claim for relief because they have not alleged any act or omission by Clerk Schaefer causing them harm under 42 U.S.C. 1983. Wright v. Collins, 766 F.2d 841, 850 (4th Cir. 1985) (finding there must be an affirmative showing an official took some action which deprived the plaintiff of his or her civil rights). In other words, Clerk Schaefer was not acting under color of state law to deprive Schall and Townley of any civil right, and their allegations against him fail to state any claim.

Schall and Townley make numerous factual allegations relating to their relationship, their child, and their marriage in California. However, none of these allegations relate in any way to Clerk Schaefer.

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III.

Clerk Schaefer is required to follow the law currently in place when carrying out his

responsibilities and obligations as a constitutional officer. Clerk Schaefer is an elected official whose position is created by the Virginia Constitution. Va. Const. Art. VII, 4. He is thus considered a constitutional officer, independent of local and state governments. Sherman v. Richmond, 543 F. Supp. 447, 449 (E.D. Va. 1982). Prior to taking office, he was required to take the following oath: I do solemnly swear (or affirm) that I will support the Constitution of the United States, and the Constitution of the Commonwealth of Virginia, and that I will faithfully and impartially discharge all the duties incumbent upon me as ..........., according to the best of my ability (so help me God). Va. Const. Art. II, 7. Clerk Schaefer is bound by all applicable laws when carrying out the functions of his elected office. If Clerk Schaefer does not properly perform his functions, he is subject to removal from office, imprisonment and fines. Va. Code 20-33 (confinement in jail for up to one year and fine up to $500 for issuing a marriage license contrary to law); Va. Code 24.2240 et seq. (removal from office). Similarly, until there is a legislative change in the law, court order or binding case law precedent finding Virginias prohibition of same-sex marriages unconstitutional or otherwise unenforceable, Clerk Schaefer must follow the letter of the law, regardless of his personal opinions or the personal opinions of his staff. Clerk Schaefer does not have the power or authority to declare any state law as unconstitutional. Under current Supreme Court precedent, state laws preventing or otherwise limiting same-sex marriages have not been found unconstitutional. Rather, the Supreme Court has found such issues to be matters for states which do not invoke a substantial federal question. Baker v. Nelson, 191 N.W.2d. 185 (Minn. 1971), appeal dismissed 409 U.S. 810 (1972).

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In Baker, the plaintiffs were two men who attempted to obtain a marriage license, but their application was denied because they were both men. Id. at 311. The trial court directed the clerk of court not to issue a license to the plaintiffs. Id. Minnesota had a statute which indicated marriage was only between a man and a woman, and the Minnesota Supreme Court explicitly held that statute did not allow same sex marriages. Id. at 312. The plaintiffs in Baker argued the prohibition on same sex marriage was unconstitutional, that they were denied a fundamental right, and their rights under the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment, inter alia, were violated. Id. Citing well known arguments that limiting marriage to people of the opposite sex is based upon tradition, family values, procreation and child rearing, the Minnesota Supreme Court found the Due Process and Equal Protection Clauses of the Fourteenth Amendment were not violated. Id. at 312-15. On appeal to the United States Supreme Court, the appeal was dismissed for want of substantial federal question. Baker v. Nelson, 409 U.S. 810 (1972). The holding of Baker v. Nelson remains binding precedent because the summary dismissal was a ruling on the merits of the case. Hicks v. Miranda, 422 U.S. 332, 344 (1975) ([v]otes to affirm summarily, and to dismiss for want of a substantial federal question, it hardly needs comment, are votes on the merits of a case (quoting Ohio ex rel. Eaton v. Price, 360 U.S. 246, 247 (1959))). In other words, the doctrine of stare decisis requires this Court to follow the holding of Baker v. Nelson. Hogge v. Johnson, 526 F.2d 833, 835 (4th Cir. 1975). Other courts have recently followed Baker v. Nelson when presented with the question of the constitutionality of same sex marriage regulation. Jackson v. Abercrombie, 884 F. Supp. 2d 1065, 1070-71 (D. Haw. 2012); Walker v. State, No. 3:04CV140LS, 2006 U.S. Dist. LEXIS 98320, at *1-7 (S.D. Miss. Apr. 10, 2006); Wilson v. Ake, 354 F. Supp. 2d 1298, 1304-05 (M.D. Fla. 2005).

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The Supreme Courts recent refusals to rule on the issue of whether a states prohibition on same-sex marriages reinforces the idea that domestic relation issues are best left to the states. United States v. Windsor, __ U.S. __, 133 S. Ct. 2675 (2013); Hollingsworth v. Perry, __U.S. __, 133 S. Ct. 2652 (2013). The majority opinion in Windsor recognized the notion that defining marriage is an area that has long been regarded as a virtually exclusive province of the States. Id. at 2691. The deference provided to the states on domestic relations issues is so strong, the Federal courts as a general rule, do not adjudicate issues of marital status even when there might otherwise be a basis for federal jurisdiction. Id. In Windsor the Supreme Court ruled a definition of marriage in the Defense of Marriage Act (DOMA) was unconstitutional, in part because that Federal definition of marriage departed from the Courts long history of reliance on state law to define marriage. Id. at 2692. The issues presented in Baker were nearly identical to those raised by Plaintiffs in the case at bar. The Minnesota statutes prevented persons of the same sex from obtaining a marriage license. The Baker plaintiffs claimed such a ban on same sex marriage violated their Constitutional rights to Due Process and Equal Protection under the Fourteenth Amendment. These are the same Constitutional claims being asserted against Virginia laws prohibiting samesex marriage by Bostic, London, Schall and Townley. Therefore, under the doctrine of stare decisis, this Court is bound to follow the ruling in Baker. IV. Even if Baker v. Nelson is not binding, Virginias definition of marriage is

constitutional under rational basis review. The Equal Protection and Due Process Clauses of the Fourteenth Amendment provide: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor Page 10 of 15

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shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Const. Am. XIV, 1. Plaintiffs allege their rights under both Clauses have been violated. A state law which does not affect a fundamental right or suspect classification is subject to rational basis review. Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997). Plaintiffs right to substantive due process has not been violated because marriage to another person of the same sex is not a fundamental right: the right to marry has not been held to mean there is a fundamental right to marry someone of the same gender. Virtually every court to have considered the issue has held that same-sex marriage is not constitutionally protected as fundamental in either their state or the Nation as a whole. The idea that same-sex marriage is even possible is a relatively new one. Until a few decades ago, it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex. . . . The right to marry is unquestionably a fundamental right. The right to marry someone of the same sex, however, is not deeply rooted; it has not even been asserted until relatively recent times.

Donaldson v. State, 2012 MT 288, P29 (Mont. 2012) (citations omitted); See also Glucksberg, 521 U.S. at 720-21; Jackson v. Abercrombie, 884 F.Supp.2d at 1093-98. Because the right to a same-sex marriage is not a fundamental right, it is subject to a rational-basis review for the purposes of Due Process. Id. A state law regulating marriage like the ones at issue in this case should be analyzed under the lowest level of scrutiny, i.e. the rational relationship test. Windsor, 133 S. Ct. at 2706 (J. Scalia dissenting). There is no binding precedent providing any stricter level of scrutiny. When conducting a rational-basis review, the courts have been very reluctant, as they should be . . . to closely scrutinize legislative choices as to whether, how and to what

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extent those interests should be pursued. Id. at 2717 (J. Alito dissenting (quoting Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432, 441-42 (1985))). Just like the Due Process claim, Plaintiffs equal protection claim must be reviewed under the rational basis test. Jackson v. Abercrombie, 884 F.Supp.2d at 1093-98. The discrimination at issue in evaluating a same-sex marriage prohibition is not gender discrimination. Id. Similarly, discrimination based upon homosexuality is not a suspect class. Id. at 1099; See also Veney v. Wyche, 293 F.3d 726, 732 (4th Cir. 2002). The recent decisions by the Supreme Court did not find discrimination against homosexuality to be a suspect or quasi-suspect class. Rather, the Supreme Court in Windsor carefully defined the class discriminated against when deciding whether DOMAs definition of a marriage as between one man and woman violated Equal Protection rights. The Court found the class discriminated against were those couples married in a state which validly recognized their marriage but their marriage was not recognized under federal law. Windsor, 133 S. Ct. at 2695-96. The Court did not define the class as gay or lesbian couples. Id. The rational basis review of a state law will uphold the law as long as the state law bears a rational relationship to a legitimate end. Romer v. Evans, 517 U.S. 620, 631 (1996). Under this standard, a law will be sustained if it can be said to advance a legitimate government interest, even if the law seems unwise or works to the disadvantage of a particular group, or if the rationale for it seems tenuous. Id. at 632. In the case at bar, there are certainly arguments on both sides as to the providence of allowing or prohibiting same sex marriages in a state. This topic has invoked passionate and heated debate in the courts, legislative bodies and the media. However, when the Virginia General Assembly passed the code sections and constitutional amendment challenged by

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Plaintiffs, they had at least some basis to encourage the traditional definition of marriage as being between one man and one woman. For example, promoting the ability for opposite-sex couples to procreate with each other has a long history and tradition throughout society, because without procreation, we would eventually disappear as a species. Another often stated reason for defining marriage as between one man and one woman is to promote rearing of children in a household where both a mother and father are both present. Other Federal courts have found just such reasoning to be legitimate and to pass rational basis scrutiny, and this Court should as well. Jackson v. Abercrombie, 884 F.Supp.2d at 1114. [L]aws limiting the state-recognized institution of marriage to heterosexual couples are rationally related to legitimate state interests and therefore do not violate the Constitution of the United States. Citizens for Equal

Protection v. Bruning, 455 F.3d 859, 870-71 (8th Cir. 2006). Additionally, Congress has authorized states to pass laws which do not recognize the marriages or civil unions of same sex couples entered into in other states: No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship. 28 U.S.C. 1738C. This Court does not have to endorse or agree with all of the rationale for Virginias definition of marriage being limited to opposite sex couples, but it should recognize there was some legitimate basis for the definition. Thus, Va. Const. Art. I, 15-A and Va.

Code 20-45.245.3 do not violate Plaintiffs rights under the Due Process Clause or the Equal Protection Clause of the Fourteenth Amendment.

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Conclusion Wherefore, for the foregoing reasons, Defendant George E. Schaefer, III, in his official capacity as Clerk of Court for Norfolk Circuit Court respectfully requests this Court grant his Motion for Summary Judgment, dismiss all claims against him, and for such further relief deemed necessary and just. Respectfully submitted this 30th day of September, 2013. GEORGE E. SCHAEFER, III, in his official capacity as Clerk of Court for Norfolk Circuit Court

By: _________/s/_____________ David B. Oakley, Esq. Virginia Bar Number 72226 Jeffrey F. Brooke, Esq. Virginia Bar Number 28699 POOLE MAHONEY PC 860 Greenbrier Circle, Suite 401 Chesapeake, VA 23320 Phone: 757-962-6625 Fax: 757-962-6180 Counsel for Defendant George E. Schaefer, III in his official capacity as Clerk of Court for Norfolk Circuit Court

CERTIFICATE OF SERVICE I hereby certify that on the 30th day of September, 2013, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will then send a notification of such filing (NEF) to the following: Thomas B. Shuttleworth, Esq., tshuttleworth@srgslaw.com Charles B. Lustig, Esq., clustig@srgslaw.com Erik Porcaro, Esq., eporcaro@srgslaw.com and E. Duncan Getchell, Jr. dgetchell@oag.state.va.us

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And I hereby certify that I will mail the document by U.S. Mail to the following nonfiling user at his last known address: Robert E. Ruloff, Esq., VSB # 13471 Shuttleworth, Ruloff, Swain, Haddad & Morecock, P.C. 4525 South Blvd., Ste. 300 Virginia Beach, VA 23452

By: /s/ David B. Oakley, Esq. Virginia Bar Number 72226 Jeffrey F. Brooke, Esq. Virginia Bar Number 28699 POOLE MAHONEY PC 860 Greenbrier Circle, Suite 401 Chesapeake, VA 23320 Phone: 757-962-6625 Fax: 757-962-6180 Email: doakley@poolemahoney.com

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