UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF NORTH CAROLINA
















Case No. 1:12-cv-00589

























SUPPLEMENTAL MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT
COVINGTON’S MOTION TO DISMISS IN LIGHT OF BOSTIC V. SCHAEFER
MARCIE FISHER-BORNE, for herself and as
guardian ad litem for M.F.-B., a minor;
CHANTELLE FISHER-BORNE, for herself and as
guardian ad litem for E.F.-B., a minor; TERRI
BECK; LESLIE ZANAGLIO, for herself and as
guardian ad litem for T.B.Z. and D.B.Z., both
minors; SHANA CARIGNAN; MEGAN PARKER,
for herself and as guardian ad litem for J.C., a minor;
LEIGH SMITH; CRYSTAL HENDRIX, for herself
and as guardian ad litem for J.H.-S., a minor; DANA
DRAA; LEE KNIGHT CAFFERY, for herself and
as guardian ad litem for M.M.C.-D. and M.L.C.-D.,
both minors; SHAWN LONG; CRAIG JOHNSON,
for himself and as guardian ad litem for I.J.-L., a
minor;

Plaintiffs,
v.

JOHN W. SMITH, in his official capacity as the
Director of the North Carolina Administrative Office
of the Courts; THE HONORABLE DAVID L.
CHURCHILL, in his official capacity as Clerk of the
Superior Court of Guilford County; THE
HONORABLE ARCHIE L. SMITH III, in his
official capacity oas Clerk of the Superior Court for
Durham County; ROY COOPER, in his official
capacity as the Attorney General of North Carolina;
WILLIE COVINGTON, in his official capacity as
the Register of Deeds for Durham County; and JEFF
THIGPEN, in his official capacity as the Register of
Deeds for Guilford County;

Defendants.

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Defendant Willie Covington, in his official capacity as Register of Deeds of Durham
County, in response to the Court’s directive to supplement his position as to how this action
should proceed in light of Bostic v. Schaefer, Nos. 14-1167, 14-1169, 14-1173, ______ F.3d.
_____, 2014 WL 3702493, submits that the case should proceed in a fashion which results in the
dismissal of the action against Defendant Covington and offers this Supplemental Memorandum
of Law in Support of his Motion to Dismiss.
NATURE OF THE CASE
Plaintiffs have brought this action pursuant to 42 U.S.C. §1983, alleging North Carolina’s
prohibition against same sex marriages violates their rights to due process and equal protection
under the United States Constitution. They seek a declaration that North Carolina’s Amendment
One and N.C. Gen. Stat. §§51-1, 51-1.2 violate Plaintiffs’ rights to due process and equal
protection under the United States Constitution and 42 U.S.C. §1983, and that such laws are thus
void and unenforceable. Plaintiffs further seek an order directing Defendant Covington to accept
marriage applications from same-sex couples and to process such applications in a manner that is
consistent with the manner in which he accepts and processes applications from heterosexual
couples. Additionally, Plaintiffs seek an order directing Defendant Covington to register
marriage licenses of same sex couples in the same manner that he accepts and registers marriage
licenses of opposite-sex couples.
In furtherance of their claims for relief against Defendant Covington, Plaintiffs Shana
Carignan and Megan Parker filed a Motion for a Preliminary Injunction on April 9, 2014,
alleging that the state’s laws prohibiting the recognition of their out-of-state marriage prevents
Plaintiff Carignan from adopting Plaintiff Parker’s son (J.C.), and, as such, prohibits him from
receiving medical coverage under her health insurance plan. Plaintiffs further allege that this
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prohibition prevents J.C. from receiving the best medical care possible because he is currently
only eligible to receive medical coverage through Medicaid.
ARGUMENT

I. THE COURT LACKS SUBJECT MATTER JURISDICTION OVER THE
PLAINTIFFS CLAIMS AS THEY PERTAIN TO DEFENDANT COVINGTON
BECAUSE THE PLAINTIFFS HAVE FAILED TO ESTABLISH AN INJURY
TRACEABLE TO HIM AS OUTLINED IN BOSTIC V. SCHAEFER; AND,
THEREFORE, LACK STANDING TO BRING SUCH CLAIMS AGAINST HIM

On September 10, 2013 Defendant Covington moved to dismiss this action against him
due to a lack of standing, arguing the standing standard established by the U.S. Supreme Court in
Lujan v. Defenders of Wildlife, 504 U.S. 555, 590 (1992) had not been met. To establish standing
under Lujan a plaintiff must show that he has suffered (1) an “injury in fact” (2) that is fairly
traceable to the defendant’s action and (3) that the injury is likely to be “redressed by a favorable
decision” of the court. Id. In Bostic, , the Fourth Circuit Court of Appeals addressed the issue of
standing and the Court’s analysis and reasoning of that issue overwhelming support the dismissal
of this action as it pertains to Defendant Covington.
In Bostic, there are four Plaintiffs, amounting to two same-sex couples. On July 1, 2013
one couple applied for a marriage license from the Clerk for the Circuit Court for the City of
Norfolk. The clerk denied their application because they were both men. The other couple never
made a marriage request of the state or any of its political subdivisions. However, all Plaintiff’s
brought an action pertaining to the application denial and the Defendants asserted a lack of
standing as a defense. The Defendants grounded their argument on the idea that every plaintiff
must have standing as to every defendant. However, the court reasoned that “the Supreme Court
has made it clear that ‘the presence of one party with standing is sufficient to satisfy Article III’s
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case-or controversy requirement’”. Bostic v. Schaefer, Nos. 14-1167, 14-1169, 14-1173, ______
F.3d. _____, 2014 WL 3702493 (quoting Rumsfeld v. Forum for Academic & Institutional
Rights, Inc., 547 U.S. 47, 52 n.2 (2006); see also Dep’t of Commerce v. U.S. House of
Representatives, 525 U.S. 316, 330 (1999) (holding that a case is justiciable if some, but not
necessarily all, of the plaintiffs have standing as to a particular defendant); Vill. of Arlington
Heights v. Metro. Housing Dev. Corp., 429 U.S. 252, 263-64 (1977) (same). The court held that
Plaintiffs’ claims could survive the standing challenge as long as one couple satisfies the
standing requirements with respect to each defendant. Essentially, the Court held that the denial
of a marriage license to one couple by Defendant George Schaefer, Clerk for the Circuit Court
for the City of Norfolk [hereinafter, “Clerk”] was sufficient injury traceable to the Clerk to
establish standing for all the Plaintiffs against the Clerk.
In the present case there are twelve Plaintiffs, comprising six same-sex couples. Neither
Plaintiff, as an individual or a couple, has presented to Defendant Covington requesting a
marriage license or the registration of an out of state license. Therefore, neither has suffered an
injury traceable to him. In applying the standard outlined in Bostic it is logical to conclude that,
but for the denial of the license by the Clerk in that instance, there would not have been an injury
sufficient to establish standing against the Clerk and the action against him would have been
dismissed.
Notwithstanding, the Bostic court does address the establishment of the injury
requirement under Lujan in a different way as it pertains to state defendant, Janet Rainey.
Specifically, the court states that, “in equal protection cases—such as this case—‘[w]hen the
government erects a barrier that makes it more difficult for members of one group to obtain a
benefit than it is for members of another group, . . . . [t]he ‘injury in fact’ . . . is the denial of
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equal treatment resulting from the imposition of the barrier[.]’” Bostic v. Schaefer, Nos. 14-1167,
14-1169, 14-1173, ______ F.3d. _____, 2014 WL 3702493 (quoting Ne. Fla. Chapter of
Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 666 (1993). The
Court’s analysis of the injury requirement in this regard is not applicable to Defendant
Covington. Although he and Defendant Rainey do perform some of the same basic duties such as
ensuring compliance with the States’ laws relating to marriage in general, including the
dissemination of a marriage license application form for the state that does not allow same-sex
couples to obtain marriages, she also develops and distributes birth certificate forms, oversees
the rules relating to birth certificates, and furnishes forms relating to adoption so that Virginia
can collect the information necessary to prepare the adopted child’s birth certificate. Bostic v.
Schaefer Nos. 14-1167, 14-1169, 14-1173, ______ F.3d. _____, 2014 WL 3702493. A more
notable difference is that Defendant Rainey is an employee of the Commonwealth of Virginia,
the agency responsible for the creation of the marriage laws, and Defendant Covington is not an
employee of the State of North Carolina. In this instance Defendant Covington’s status is akin to
the Clerk for the Circuit Court for the City of Norfolk and not Defendant Rainey. Applying the
same analysis to Defendant Covington that the Court applied to the Clerk would result in a
dismissal of this action against him.






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CONCLUSION
The Complaint as it pertains to Defendant Covington should be dismissed as the
Plaintiffs lack standing to bring such an action and, likewise, the Plaintiffs’ have failed to state a
claim upon which relief can be granted.
This the 12
th
day August, 2014.


/s/ Kathy R. Everett-Perry
Kathy R. Everett-Perry
N.C. State Bar No.: 20958
Counsel for Willie Covington, in his Official
Capacity as Register of Deeds for Durham County
P.O. Box 3508
Durham, NC 27702
Telephone: (919) 560-0710
Fax: (919) 560-0719
E-mail: keverettperry@dconc.gov

















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CERTIFICATE OF SERVICE
The undersigned hereby certifies that the foregoing SUPPLEMENTAL
MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT COVINGTON’S MOTION TO
DISMISS IN LIGHT OF BOSTIC V. SCHAEFER was filed electronically with the Clerk of
Court using the CM/ECF system which will serve copies to counsel of record in this matter as
indicated below:
PLAINTIFFS:
Jonathan D. Sasser
Jeremy M. Falcone
Winters, LLP
P.O. Box 33550
Raleigh, NC 27636
Amy E. Richardson
Wiltshire & Grannis LLP
#6220
Raleigh, NC 27628


DEFENDANTS:
Grady L. Balentine, Jr.
Special Deputy Attorney General
NC Department of Justice
PO Box 629
Raleigh, North Carolina 27602

Olga E. Vysotskaya de Brito
Assistant Attorney General
OF COUNSEL:
Rose A. Saxe
James D. EsseksAmerican Civil Liberties
Union Foundation
125 Broad Street
New York, New York 10004-2400

NC Department of Justice
PO Box 629
Raleigh, North Carolina 27602
Charles Whitehead
Special Deputy Attorney General
NC Department of Justice
PO Box 629
Raleigh, North Carolina 27602


Elizabeth O. Gill
American Civil Liberties Union Foundation
39 Drumm Street
San Francisco, California 94111-4805
John Mark Payne
County Attorney’s Office
P. O. Box 3427
Greensboro, North Carolina 27402

Christopher A. Brook
ACLU of North Carolina
PO Box 28004
Raleigh, North Carolina 27611-8004

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This the 12
th
day of August, 2014.

/s/ Kathy R. Everett-Perry
Kathy R. Everett-Perry
Assistant County Attorney



















Garrard R. Beeney
Catherine M. Bradley
William R. A. Kleysteuber
David A. Castleman
Daniel W. Meyler
SULLIVAN & CROMWELL LLP
125 Broad Street
New York, New York 10004-2498




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