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1:14-cv-00299 #56

1:14-cv-00299 #56

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Published by Equality Case Files
Doc 56 - Defendant (Catawba County) Register of Deeds' brief stating her position on the course of future proceedings following the 4th Circuit Bostic v. Schaefer decision
Doc 56 - Defendant (Catawba County) Register of Deeds' brief stating her position on the course of future proceedings following the 4th Circuit Bostic v. Schaefer decision

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Published by: Equality Case Files on Aug 14, 2014
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08/18/2014

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THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
1:14-CV-299 ELLEN W. GERBER, et al., Plaintiffs, v. ROY COOPER, in his official capacity as the Attorney General of North Carolina, et al.,
 
Defendants.
DEFENDANT CATAWBA COUNTY
REGISTER OF DEEDS’ BRIEF STATING
HER POSITION ON THE COURSE OF FUTURE PROCEEDINGS FOLLOWING THE DECISION OF THE COURT OF APPEALS FOR THE FOURTH CIRCUIT IN BOSTIC v. SCHAEFER
 NOW COMES Defendant, Donna Hicks Spencer in her official capacity as the Catawba County Register of Deeds, (hereinafter
“Defendant Spencer”)
 stating her position on the course of future proceedings in light of the decision of the Court of Appeals for the Fourth Circuit in Bostic v. Schaefer, ____ F.3d ____, 2014 WL 3702493 (4th Cir. 2014) and the extent to which Bostic applies or does not apply to the challenged North Carolina constitutional and statutory provisions, pursuant to Orders of the Court entered on June 2, 2014 (Doc. # 49) and July 30, 2014 (Doc. # 55).
I.
 
APPLICATION OF BOSTIC
On July 28, 2014, the Court of Appeals for the Fourth Circuit issued its decision in Bostic v. Schaefer
holding that Virginia’s laws prohibiting same
-sex marriage within the state and  prohibiting the recognition of out-of-state same-sex marriages violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the Constitution. Bostic, 2014 WL 3702493 * 17. As North Carolina is within the jurisdiction of the Court of Appeals for the Fourth Circuit, Bostic is controlling and applies to the constitutional provision and statutes at issue in this case. Accordingly, Section 6 of Article XIV of the North Carolina Constitution,
Case1:14-cv-00299-WO-JEPDocument56Filed08/06/14Pae1of8
 
 2
which states in pertinent part that “[m]arriage between one man and one woman is the only
domestic legal union that
shall be valid or recognized in this State,” and N.C. Gen. Stat. §§ 51
-1 and 51-1.2 relating to limiting marriage only to opposite-sex couples arguably have been rendered unconstitutional by Bostic, given that the language of the Virginia versions is substantially the same. However, Defendant Spencer is not the proper party to take a position on this issue because she is not a proper party to the case in any event.
II.
 
COURSE OF FUTURE PROCEEDINGS
 Notwithstanding Bostic
, Plaintiffs’ claims against Defendant S
 pencer should still be dismissed. Defendant Spencer is not a proper party because she has no role in recognizing out-of-state marriages or identifying spouses on death certificates, which are the reasons Plaintiffs state for bringing this action against her. (Doc. # 1 at 46). Further, the Plaintiffs lack standing to
 bring their claims against Defendant Spencer. Thus, it is Defendant Spencer’s position that
further proceedings are necessary to resolve the claims against her. Specifically, her motions to dismiss should be granted and the motion for preliminary injunction as to her should be denied.
A.
 
Defendant Spencer’s Motions to Dismiss Should be Granted
 1.
 
DEFENDANT SPENCER IS NOT A PROPER PARTY
Defendant Spencer, as Catawba County Register of Deeds, does not have the legal authority to offer Plaintiffs their requested forms of relief regarding recognizing out-of-state
marriages and the issuance of death certificates. According to Plaintiffs’ Complaint, the
Catawba County Register of Deeds is included
in this suit because of her role in “carry[ing] out
certain laws of the state, including recognizing out-of-state marriage licenses and issuing death certificates. Specifically, Defendant Spencer presides over whether a death certificate will list the spouse of an individual, including by recognizing an out-of-
state marriage license . . . .”
Case1:14-cv-00299-WO-JEPDocument56Filed08/06/14Pae2of8
 
 3
(Doc. # 1 at 46). However, Article 2, Chapter 161 of North Carolina General Statutes outlines the duties of the Register of Deeds. These duties do not include recognizing out-of-state marriage licenses or amending information on the original copy of a death certificate.
See, e.g.,
  N.C. Gen. Stat. § 161-14 (registration of instruments).
a.
 
The Catawba County Register of Deeds does not issue death certificates, which is the responsibility of local registrars pursuant to authority granted to them by the State of North Carolina
In North Carolina, local registrars are appointed by the State Registrar at the North Carolina Department of Health and Human Services and are responsible for furnishing instructions and certificate forms to be completed upon the birth or death of a person by the
relevant “responsible person” (typically a hospital official or funeral director) who is to complete
and submit the certificate to the local registrar. N.C. Gen. Stat. § 130A-97(2)-(5)
 Duties of local registrars
. In particular, the local registrar has the duty to: Examine each certificate when submitted to determine if it has been completed in accordance with the provisions of this Article and the rules. If a certificate is incomplete or unsatisfactory, the responsible person shall be notified and required to furnish the necessary information. All birth and death certificates shall be typed or written legibly in permanent black, blue-black, or blue ink;  N.C. Gen. Stat. § 130A-97(3). Local registrars act under the direction and authority of the State Registrar when creating the forms for birth and death certificates and do not act under the authority of the local Register of Deeds. N.C. Gen. Stat. § 130A-
95. (“The State Registrar shall
direct, control and supervise the activities of local registr 
ars.”). The contents of birth and death
certificates are regulated by federal rules and the State Registrar. N.C. Gen. Stat. § 130A-102
Contents of birth certificate
; N.C. Gen. Stat. § 130A-116
Contents of death certificate
(“The
certificate of death shall contain those items prescribed and specified on the standard certificate of death as prepared by the federal agency responsible for national vital statistics. The State
Case1:14-cv-00299-WO-JEPDocument56Filed08/06/14Pae3of8

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