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UNITED STATES DISTRICT COURT


for the Eastern District of Louisiana Jonathan P. Robicheaux et al Plaintiff/Petitioner v. Civil Action No. 13-CV-05090 James D. Caldwell in his official capacity as the Louisiana Attorney General Defendant/Respondent District Judge: Martin Leach-Cross Feldman Magistrate Judge: Alma L. Chasez MEMORANDUM IN OPPOSITION TO THE ATTORNEY GENERALS MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION
MAY IT PLEASE THE COURT: This matter comes on for cause on James D. Caldwell, the Louisiana Attorney Generals Motion to Dismiss your Respondents Complaint and Amended Complaint and Second Amended Complaint for lack of subject matter jurisdiction invoking sovereign immunity and the Ex Parte Young rules. In this regard, the Attorney General specifically states that he has not made a general appearance. To begin, your Plaintiffs and Respondents herein draw the Courts attention to the words of the Ex Parte Young Court on this Courts duty to hear cases such as the one at hand. The Ex Parte Young Court stated as follows in laying the foundation for its holding. The question of jurisdiction, whether of the Circuit Court or of this court, is frequently a delicate matter to deal with, and it is especially so in this case, where the material and most important objection to the jurisdiction of the Circuit Court is the assertion that the suit is, in effect, against one of the States of the Union. It is a question, however, which we are called upon, and which it is our duty, to decide. Under these circumstances, the language of Chief Justice Marshall in Cohen v. Virginia, 6 Wheat. 264-404, is most apposite. In that case, he said:

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"It is most true that this court will not take jurisdiction if it should not; but it is equally true that it must take jurisdiction if it should. The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the Constitution. We cannot pass it by because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given than to usurp that which is not given. The one or the other would be treason to the Constitution. Questions may occur which we would gladly avoid, but we cannot avoid them. All we can do is to exercise our best judgment, and conscientiously to perform our duty." Ex Parte Young, 209 U.S. 123, 143 (1908). The Louisiana Attorney General cites in his Memorandum in Support this Courts ruling in Doe v. Jindal in an unpublished opinion on Governor Jindals Motion to Dismiss invoking the Sovereign Immunity of the 11th Amendment in which your Honor dismissed Governor Jindal, but the Attorney General fails to note this Courts ruling as it applied to the Attorney General and to note this Courts ruling in an unpublished and related ruling in Doe v. Caldwell in which this Court denied the Louisiana Attorney Generals Motion to Dismiss under the same theory of law. It is respectfully submitted that your Honor has specifically set forth the law and standard in this latter opinion, which, when applied, results in denial of the Motion to Dismiss at hand. Citing and quoting your Honor, the following language applies: II. Sovereign Immunity The defendants contend that sovereign immunity bars the plaintiffs claims; they say that the plaintiffs have failed, in part, to request relief that is properly characterized as prospective, and, to the extent that they do request prospective relief, defendants contend that plaintiffs fail to plead an ongoing violation of federal law such that the Ex parte Young exception to sovereign immunity is inapplicable. The Court disagrees.

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Sovereign immunity is the privilege of the sovereign not to be sued without its consent. Virginia Office for Protection and Advocacy v. Stewart, 131 S.Ct. 1632, 1637 (2011)(holding that Ex parte Young exception to sovereign immunity permitted suit by independent state agency dedicated to advocacy for persons with disabilities against certain state officials sued in their official capacities, alleging violations of federal law by refusing agency access to records to which it was entitled under federal enabling statutes). The Eleventh Amendment bars suits by private citizens against a state in federal court. K.P. v. LeBlanc, 627 F.3d 115, 124 (5th Cir. 2010)(citing Hutto v. Finney, 437 U.S. 678, 700 (1978)). This immunity protects state actors in their official capacities. Id. There is, of course, an important limit on the sovereign immunity doctrine: the iconic Ex parte Young exception rests on the premise...that when a federal court commands a state official to do nothing more than refrain from violating federal law, he is not the State for sovereign-immunity purposes. Stewart, 131 S.Ct. at 1638; K.P., 627 F.3d at 124 (Ex parte Young is based on the legal fiction that a sovereign state cannot act unconstitutionally[; t]hus, where a state actor enforces an unconstitutional law, he is stripped of his official clothing and becomes a private person subject to suit.); see also Will v. Michigan Dept of State Police, 491 U.S. 58, 71 n.10 (1989)(noting [o]f course a state official in his or her official capacity, when sued for injunctive relief, would be a person under 1983 because.official-capacity actions for prospective relief are not treated as actions against the State). Of course, as this Court previously noted, the Ex parte Young exception applies when the plaintiff demonstrates that the state officer has some connection with the enforcement of the disputed act. See Doe v. Jindal, No. 11-388, 2011 WL 3925042, at *5 (E.D. La. Sept. 7, 2011)(citing K.P., 627 F.3d at 124 (citing Ex parte Young, 209 U.S. at 160), and noting that the purpose of the connection requirement is to prevent litigants from misusing the exception)). The Fifth Circuit U.S. Court of Appeals instructs: Ex Parte Young gives some guidance about the required connection between a state actor and an allegedly unconstitutional act. The fact that the state officer, by virtue of his office, has some connection with the enforcement of the act, is the important and material fact, and whether it arises out of the general law, or is specially created by the act itself, is not material so long as it exists. Id. (quoting Ex parte Young, 209 U.S. at 157). . . . . [I]n determining whether the doctrine of Ex parte Young avoids an Eleventh Amendment bar to suit, a court need only conduct a straightforward inquiry into

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whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective. Stewart, 131 S.Ct. at 1639 (quoting Verizon Md. Inc. v. Public Serv. Commn of Md., 535 U.S. 635, 645 (2002)). The plaintiffs lawsuit satisfies this inquiry: they allege an ongoing violation of federal law pursuant to 1983 (by alleging that the defendants continue to fail to remedy the Equal Protection violation conduct focused in Doe I). They do also seek relief that is indeed prospective in nature: declaratory relief that their continued subjection to sex offender registration and notification requirements violates the Equal Protection clause; that they be removed from the registry; and that the records documenting that they are sex offenders be expunged. Doe v. Jindal. Case 2:12-cv-01670-MLCF-ALC Document 55 Filed 12/20/12 pp. 13-17. PERTINENT FACTS We ask this Honorable Court to take judicial notice of the fact that the Louisiana Attorney General is quintessentially the official responsible for enforcing the laws of Louisiana. Rule 5.1 of the Federal Rules of Civil Procedure requires litigants challenging the constitutionality of a state statute to serve the states Attorney General with Citation. Fed. R. Civ. P. 5.1 (a)(2). In IN RE ANGELA MARIE COSTANZA and CHASITY SHANELLE BREWER, 15th Judicial District Court, Parish of Lafayette, State of Louisiana, Division C, Civil Action No. 2013-33539 and the case on appeal, No. 13-01049-CA, in the Louisiana Third Circuit Court of Appeal, the trial court dismissed the lawsuit sua sponte finding no cause of action and the Louisiana Attorney General represents the State of Louisiana in both. The issue before the state court is similarly situated to the case of the Plaintiffs herein, Courtney and Nadine Blanchard. More particularly, the plaintiffs in that matter are Angela Marie Contanza and Chastity Shanelle Brewer, two adult women who by their lawful marriage in California compose a contemporary family unit, domiciled in Lafayette, Louisiana, and who claim that any statutes, administrative

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rule, jurisprudence, or any other source of law in and for the State of Louisiana that denies the recognition and full faith and credit of a valid foreign Certificate of Marriage lawfully issued to persons of the same sex should be held invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom a state, by its marriage laws, sought to protect in personhood and dignity; by seeking to displace this protection and treating those persons as living in marriage less respected than others, said source(s) of law are in violation of the Fifth and Fourteenth Amendments to the Constitution of the United States; and a ruling that such denial of full faith and credit violates Article IV, Section 1 of the Constitution of the United States. As such, the plaintiffs are praying for an order declaring any statute, administrative rule, jurisprudence, or any other source of law in and for the State of Louisiana that denies the recognition and/or full faith and credit of a valid marriage between persons of the same sex be invalidated, unenforceable and unconstitutional and that the order the appropriate state agencies, including but not limited to, the Clerk of Court in an for the Parish of Lafayette, Louisiana to take all appropriate measures to facilitate the recognition of the marriage between the Petitioners listed herein. Finally, in 2006, Frank Perez, General Counsel with the Department of Health and Hospitals in Louisiana requested a legal opinion from the Louisiana Attorney General on the recognition of same-sex marriage in another state on adoptions. In Opinion Number 06-0325, the Attorney General provided the following opinion: Dear Mr. Perez: This office is in receipt of your request for an Opinion from the Attorney General concerning whether citizens from another state can demand the Vital Records Registrar accept an out-of-state adoption judgment (which would require the Vital

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Records Registrar to seal an original Louisiana birth certificate and create a new birth certificate listing two fathers as opposed to a mother and a father or a single parent) based upon the Full Faith and Credit Clause of the United States Constitution. Your concerns and the Attorney Generals responses to those concerns are presented as follows: If a Louisiana adoption can only be had by a single person or a married couple, and if the Vital Records Laws (LA. REV. STAT. 40:32, et seq.) require the completion of a birth certificate by listing the names of the mother and father of the child, must the Vital Records Registrar give full faith and credit to an out-ofstate adoption judgment obtained by two unmarried individuals adopting jointly? The answer to this question is no. The Louisiana Childrens Code provides a single person, eighteen years or older, or a married couple jointly may petition to adopt a child through an agency. Similarly, only a single person, eighteen years or older, or a married couple jointly may petition to privately adopt a child. Finally, only a stepparent, stepgrandparent, great-grandparent, grandparent, aunt, great aunt, uncle, great uncle, sibling, or first cousin may petition to intrafamilially adopt a child if certain elements are met. Accordingly, only single persons over the age of eighteen, married couples, and family members (who meet certain criterion) may adopt children in Louisiana. There is no provision allowing for two unmarried persons (whether of the same sex or not) to adopt a child jointly. You are now confronted by a situation wherein two unmarried individuals (who happen to be of the same sex) are demanding the Vital Records Registrar accept an out-of-state adoption judgment (which would require the Vital Records Registrar to seal an original Louisiana birth certificate and create a new birth certificate listing two fathers) based upon the Full Faith and Credit Clause of the United States Constitution. But Louisiana is not required to accept such an out-ofstate judgment under the Full Faith and Credit Clause of the United States Constitution if it violates Louisiana public policy. Louisiana has a strong public policy against unmarried persons adopting jointly (as evidenced by the restrictive parameters in LA. CH. CODE arts. 1198 and 1221). To that end, the Vital Records Registrar is not required to accept an out-ofstate adoption judgment which names two unmarried persons as the adoptive parents. And we are accordingly of the opinion that if and when the Vital Records Registrar refuses to accept such an out-of-state judgment, he would not be violating the Full Faith and Credit Clause of the United States Constitution. Op.Atty.Gen., No. 06-0325 (April 18, 2007), 2007 WL 1438453.

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ARGUMENT It is respectfully submitted that the Ex parte Young exception to Sovereign Immunity exists in the matter at hand. In your Honors own words: the iconic Ex parte Young exception rests on the premise...that when a federal court commands a state official to do nothing more than refrain from violating federal law, he is not the State for sovereign-immunity purposes. Your plaintiffs herein are asking your Honor to command the Attorney General to refrain from violating federal law by enforcing provisions in the Louisiana Constitution and the Louisiana Civil Code that directs officials and the courts of Louisiana to specifically not recognize what Louisiana describes as a purported marriage between two members of the same-sex who were legally married in another state. Unlike Governor Jindal in Doe v. Jindal, Attorney General Caldwell is the enforcing arm of Louisiana laws. He is the advocate and the defender of the laws. He is actively seeking the Third Circuit Court of Appeal to enforce a Lafayette District Judges sua sponte dismissal of a same-sex married couples efforts to have both parents recognized in the life of their child. He instructs, among others, the Department of Health and Hospitals on the recognition of same-sex unmarried couples and the effect that it has on vital records. He is both the enforcer and the advisor to the enforcers. In this capacity, he does not have the privilege of sovereign immunity. He is subject to this Courts authority and jurisdiction to refrain from violating the United States Constitution. Finally, as this action includes a 42 USC 1983 claim seeking an injunction, the immunity cannot apply (see Will v. Michigan Dept of State Police, 491 U.S. 58, 71 n.10 (1989)(noting [o]f course a state official in his or her official capacity, when sued for injunctive

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relief, would be a person under 1983 because official-capacity actions for prospective relief are not treated as actions against the State).

CONCLUSION Based upon the foregoing, it is respectfully suggested that the Attorney Generals Motion to Dismiss under 11th Amendment Sovereign Immunity is without merit. WHEREFORE, petitioner prays for oral argument and that after due proceedings are had that the Attorney Generals Motion be dismissed with prejudice. Respectfully submitted:

SCOTT J. SPIVEY (#25257) 815 Dauphine St, Ste D New Orleans, LA 70116 (504) 684-4904 (office phone) (888) 502-3935 (office fax)
Scott@SpiveyESQ.com Attorney for Plaintiffs

CERTIFICATE OF SERVICE I hereby certify that I have served upon Defense counsel of record a copy of the foregoing Memorandum by electronic mail on Angelique Duhon Freel and Jessica MP Thornhill at freela@ag.state.la.us and thornhillj@ag.state.la.us and that on November 8, 2013, I electronically filed the foregoing with the Clerk of Court by using the CM/EMF system, which will send a notice of filing to all counsel of record. _________________________ Scott J. Spivey, Esq.

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Case 2:13-cv-05090-MLCF-ALC Document 26-1 Filed 11/08/13 Page 1 of 2

UNITED STATES DISTRICT COURT


for the Eastern District of Louisiana Jonathan P. Robicheaux et al Plaintiff/Petitioner v. Civil Action No. 13-CV-05090 James D. Caldwell in his official capacity as the Louisiana Attorney General Defendant/Respondent District Judge: Martin Leach-Cross Feldman Magistrate Judge: Alma L. Chasez REQUEST FOR ORAL ARGUMENT ON THE ATTORNEY GENERALS MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION
Now into Court, through undersigned counsel, come plaintiffs/respondents herein and request this Honorable Court for Oral Argument on the Attorney Generals Motion to Dismiss for Lack of Subject Matter Jurisdiction with the Notice of Submission for hearing before the Honorable Martin L.C. Feldman, United States District Court Judge, Eastern District of Louisiana, 500 Poydras Street, New Orleans, Louisiana on the 27th day of November 2013 at 10 a.m. Respectfully submitted:

SCOTT J. SPIVEY (#25257) 815 Dauphine St, Ste D New Orleans, LA 70116 (504) 684-4904 (office phone) (888) 502-3935 (office fax)
Scott@SpiveyESQ.com Attorney for Plaintiffs

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CERTIFICATE OF SERVICE I hereby certify that I have served upon Defense counsel of record a copy of the foregoing Memorandum by electronic mail on Angelique Duhon Freel and Jessica MP Thornhill at freela@ag.state.la.us and thornhillj@ag.state.la.us and that on November 8, 2013, I electronically filed the foregoing with the Clerk of Court by using the CM/EMF system, which will send a notice of filing to all counsel of record. _________________________ Scott J. Spivey, Esq.

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