Welcome to Scribd, the world's digital library. Read, publish, and share books and documents. See more
Download
Standard view
Full view
of .
Save to My Library
Look up keyword
Like this
1Activity
0 of .
Results for:
No results containing your search query
P. 1
4:14-cv-00015 #26

4:14-cv-00015 #26

Ratings: (0)|Views: 8 |Likes:
Published by Equality Case Files
Doc 26 - Plaintiffs' Opposition to motion to dismiss
Doc 26 - Plaintiffs' Opposition to motion to dismiss

More info:

Published by: Equality Case Files on Apr 29, 2014
Copyright:Traditional Copyright: All rights reserved

Availability:

Read on Scribd mobile: iPhone, iPad and Android.
download as PDF, TXT or read online from Scribd
See more
See less

06/25/2014

pdf

text

original

 
IN THE UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF INDIANA NEW ALBANY DIVISION
 ELECTRONICALLY FILED
MELISSA LOVE,
et al 
))) CIVIL ACTION NO.)PLAINTIFFS) 4:14-cv-15-RLY-TABvs.)))MICHAEL RICHARD PENCE))))DEFENDANT)
* * * * * * *RESPONSE IN OPPOSITION TO DEFENDANT'S MOTION TO DISMISS
Defendant claims that Governor Pence is not a proper defendant to this action because theGovernor does not enforce the marriage ban at issue in this case. This argument ignores every aspect of Indiana’s governmental system and the effect IC § 31-11-1-1 has on its citizens. Defendant essentiallyclaims that in order for Plaintiffs to obtain prospective injunctive relief, they must name each elected or appointed official responsible for every marital benefit conferred by the State. Defendant makes noattempt to identify who the proper defendants are, likely because the argument’s practical implicationsoffend both the notion of a structured state government as well as judicial economy. Plaintiffs in thiscase seek two forms of relief. First, they seek an injunction forcing the various state agencies torecognize and extend marital benefits to same-sex couples with marriage licenses from othe jurisdictions. The second request is that the state be enjoined from withholding marriage licenses from1
Case 4:14-cv-00015-RLY-TAB Document 26 Filed 04/25/14 Page 1 of 15 PageID #: 277
 
same-sex couples who seek one within the state. For the reasons set forth below, the Governor is the proper – and perhaps the
only
 – party who can effectuate the relief sought by Plaintiffs.
I.THE GOVERNOR IS THE PROPER PARTY AS A MATTER OF BASIC CIVICSA. The Executive Branch
The Indiana constitution establishes three branches of government: the Executive, Legislative,and Judicial branches. The Indiana Constitution declares that “the executive power of the State shall bevested in a Governor.” Ind. Const. Art. 5 §1. His primary duty is to see that the laws of the state are“faithfully executed.” Ind. Const. Art. 5 § 16. In pursuit of these duties, the Governor is charged withorganizing the various state agencies “[t]o promote the better execution of the laws, the more effectivemanagement of the executive and administrative branch of the government and of its agencies andfunctions, and expeditious administration of the public business.” IC § 4-3-6-3.The Indiana Supreme Court thoroughly fleshed out the role the Governor plays in stategovernment in
Tucker v. State
, 35 NE 2d 270 (Ind. 1941). The Court concluded that, “the executive power is vested not in the ‘Executive including the Administrative’ department, but in one man, oneofficer, the Governor.”
 Id 
. at 280. The Court noted that Ind. Const. § 15 requires the Governor tomanage the officers of the “administrative department.
 Id.
 at 286. The Court made clear that theadministrative department is a department under the executive branch.
 Id.
 at 289. As to the issue of any other agency, the Governor is virtually granted plenary power to dowhatever he likes with those agencies (subject to the approval of the General Assembly), includingcreation of new agency heads and other officers, total reorganization, or even abolition of the agencyaltogether. See IC §§ 4-3-6-4, -5, and -6. These executive branch agencies are heavily implicated in thismatter, particularly on the issue of recognition of valid, out-of-state marriages, as discussed further  below. 2
Case 4:14-cv-00015-RLY-TAB Document 26 Filed 04/25/14 Page 2 of 15 PageID #: 278
 
B.The Administrative Department
Implicit in Defendant's Motion is the idea that the Circuit Court Clerk may be an appropriate defendant. The Clerk of the Circuit Court is identified as a county officer, and falls under the Administrative Department in Ind. Const. Art. 6. At one time there was some dispute as to the authorityof the Administrative Department, but that dispute was settled in
Tucker v. State
,
 supra
. Ind. Const. Art.5, § 15, directs the Governor to manage the officers of the Administrative Department. In
Tucker v. State
, the Indiana Supreme Court determined that the provision was included in anticipation that “administrative officers might assert independence and contend that they were elected by the people and could not be compelled to transact business with the Governor or to report to him in writing”.
Tucker, supra
, at 286.The Court went on to clearly define the structure of the executive and the administrative department: “More strictly and correctly, the word ‘administrative’ is synonymous with ‘ministerial.’”
 Id 
 at 290. The Court was clear in its view of the powers of administrative officers: “The administrative officers were vested with no powers. It is provided that: ‘They shall perform such
duties
 as may be enjoined by law. . . . ‘”
 Id 
. p.291 (emphasis in original). Since that time, the Governor has repeatedly exercised his power over the county clerks and Administrative Department by virtue of executive order,as evidenced by
Exhibit 1
, orders which unquestionably demonstrates the Governor's power to order the clerks to take specific actions.
II.WHO ENFORCES IC § 31-11-1-1?
As discussed above, it is a basic matter of civics that laws enacted by the legislative branch, such as IC 31-11-1-1, cannot be enforced but through the executive branch. Defendant obfuscates an issue that should be simple: who is a proper representative of the executive branch? And the answer Plaintiffs propose is equally simple: the Governor, i.e., the Executive Head of State. If the Defendant’s 3
Case 4:14-cv-00015-RLY-TAB Document 26 Filed 04/25/14 Page 3 of 15 PageID #: 279

You're Reading a Free Preview

Download
/*********** DO NOT ALTER ANYTHING BELOW THIS LINE ! ************/ var s_code=s.t();if(s_code)document.write(s_code)//-->