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3:13-cv-24068 #100

3:13-cv-24068 #100

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Published by Equality Case Files
Doc 100 - Joint Reply of defendants County Clerks Karen Cole (Cabell County) and Vera McCormick (Kanawha County) in support of summary judgment
Doc 100 - Joint Reply of defendants County Clerks Karen Cole (Cabell County) and Vera McCormick (Kanawha County) in support of summary judgment

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Published by: Equality Case Files on Mar 17, 2014
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04/18/2014

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UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA Huntington Division CASIE JO MCGEE and SARAH ELIZABETH ADKINS; JUSTIN MURDOCK and WILLIAM GLAVARIS; and NANCY ELIZABETH MICHAEL and JANE LOUISE FENTON, individually and as next friends of A.S.M., minor child. Plaintiffs, v. CIVIL ACTION NO. 3:13-cv-24068 KAREN S. COLE, in her official capacity as CABELL COUNTY CLERK; and VERA J. MCCORMICK, in her official capacity as KANAWHA COUNTY CLERK, Defendants. REPLY TO PLAINTIFFS’ COMBINED OPPOSITION TO DEFENDANTS’ CROSS-MOTIONS FOR SUMMARY JUDGMENT
Defendants Karen S. Cole, by counsel, Jenkins Fenstermaker, PLLC, Lee Murray Hall and Sarah A. Walling, and Defendant Vera J. McCormick, by counsel, Bailey & Wyant, PLLC, Charles R. Bailey and Michael W. Taylor, jointly reply to Plaintiffs’ Combined Opposition to Defendants’ Cross-Motions for Summary Judgment as follows:
ARGUMENT I. This Court Cannot Afford Plaintiffs Complete Relief. A. Any Order Entered By This Court Is Not Binding Statewide.
As discussed at length in Defendant Clerks’ Joint Response to Plaintiffs’ Memorandum of Law in Response to Court’s Order of January 29, 2014, Ms. Cole and Ms. McCormick lack  privity with the State, and cannot represent the State’s interest in this action. Therefore, any Order entered by this Court would enjoin only Ms. Cole and Ms. McCormick from following
Case 3:13-cv-24068 Document 100 Filed 03/14/14 Page 1 of 7 PageID #: 3713
 
2 current, validly enacted West Virginia law. Plaintiffs’ assert that the proper remedy “is simply to extend the coverage of the statute” to include same-sex couples and insist that the Defendant Clerks can simply apply gender-neutral language to the marriage license forms. However, Plaintiffs must still obtain a judgment against an official in privity with the State to “extend such coverage” statewide or to require county clerks other than Ms. Cole and Ms. McCormick to interpret the marriage license forms as containing gender-neutral language. Although Plaintiffs insist that this Court may afford statewide relief despite their failure to join parties that would render such relief binding on parties other than Ms. Cole and Ms. McCormick, they do not cite to any case law that directly supports this proposition. In fact, the cases cited by Plaintiffs are thoroughly distinguishable from the present case – either they were filed in state court, named at least one state-level official as a defendant to render the judgment  binding statewide, or sought relief for a class of plaintiffs who all resided in the same county. First, in
Varnum v. Brian
, 763 N.W.2d 862 (Iowa 2009), the plaintiffs filed suit against the County Registrar and County Recorder of Polk County, Iowa in the Polk County District Court.
Varnum
 was appealed to the Supreme Court of Iowa to allow the state supreme court to interpret state law. Likewise, in
Griego v. Oliver 
, 316 P.3d 865 (N.M. 2013), the plaintiffs filed suit against the Clerk of Bernalillo County, New Mexico and the Clerk of Santa Fe County, New Mexico, in the District Court of Bernalillo County. While Defendant Clerks believe that the Legislature is the proper forum to debate and potentially revise West Virginia’s marriage statutes, Defendant Clerks do not dispute that the West Virginia Supreme Court of Appeals could interpret the existing provisions and enter an order that would bind the Clerks of all West Virginia counties (assuming all the proper parties are in the case). Defendant Clerks have
Case 3:13-cv-24068 Document 100 Filed 03/14/14 Page 2 of 7 PageID #: 3714
 
3 consistently maintained throughout this case that West Virginia state courts have proper  jurisdiction over this matter, and that abstention by this Court is proper.
B. Plaintiffs Failed To Join Necessary Parties.
Contrary to Plaintiffs’ assertion, Defendant Clerks do not attempt to “hide” behind the State Registrar’s supervisory power. Instead, Defendant Clerks argued in their Memorandum in Support of Motion for Summary Judgment that Plaintiffs failed to join parties – specifically the State Registrar and/or the Secretary of State – necessary to afford Plaintiffs complete relief. The cases cited by Plaintiffs in their Combined Reply in Support of Plaintiffs’ Motion for Summary Judgment and Opposition to Defendants’ Cross-Motions for Summary Judgment support Defendant Clerks’ position that joinder of a state-level official is necessary. For example, in
 Bostic v. Rainey
, 2014 WL 561978 (E.D.Va. 2014), the plaintiffs joined the Virginia State Registrar of Vital Records as a defendant. In
 Perry v. Schwarzenegger 
, 704 F. Supp.2d 921 (N.D.Cal. 2010), the plaintiffs named the Governor of California, the California Attorney General, and the State Registrar of Vital Statistics as defendants in addition to the County Clerk for the County of Los Angeles. As Plaintiffs correctly stated,
 Lee v. Orr 
, Civil Action No. 1:13-cv-08719, named only a county clerk as a defendant. However, in
Orr 
, all of the named Plaintiffs (and presumably all members of the Plaintiff Class, who the Complaint described as “similarly situated”) were residents of Cook County, Illinois. The plaintiffs in
 Lee
 filed suit against the County Clerk of Cook County, seeking to expedite the effective date of a law already passed by the Illinois legislature permitting same-sex couples to marry. Plaintiffs were not asking the district court in
 Lee
 to overturn existing, unaltered Illinois law, but merely asked the court to declare unconstitutional Illinois’ prior prohibition on same-sex marriage to allow terminally ill Cook
Case 3:13-cv-24068 Document 100 Filed 03/14/14 Page 3 of 7 PageID #: 3715

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