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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA NEW ALBANY DIVISION MELISSA LOVE, et al., Plaintiffs, v. MICHAEL RICHARD PENCE, in his official capacity as Governor of the State of Indiana, Defendant. ) ) ) ) ) ) No. 4:14-CV-15-RLY-TAB ) ) ) )

MEMORANDUM IN SUPPORT OF DEFENDANTS MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION Defendant, Michael Pence, in his official capacity as Governor of the State of Indiana, submits this memorandum in support of his Motion to Dismiss the Complaint. Pursuant to Article III of the United States Constitution, this Court lacks subject matter jurisdiction over this case because the asserted injuries of the Plaintiffs are not fairly traceable to the conduct of the Defendant. Furthermore, under the Eleventh Amendment and the doctrine of sovereign

immunity, adjudication of Plaintiffs claims against Defendant is barred. STATEMENT OF FACTS On March 7, 2014, Plaintiffs filed their Complaint challenging Indiana Code section 3111-1-11 (Indianas Defense of Marriage Act). Indianas Defense of Marriage Act provides that [o]nly a female may marry a male [and] [o]nly a male may marry a female. Ind. Code 3111-1-1(a). Additionally, [a] marriage between persons of the same gender is void in Indiana even if the marriage is lawful in the place where it is solemnized. Ind. Code 31-11-1-1(b).

In their Prayer For Relief, Plaintiffs ask the Court to enter a declaratory judgment declaring Indiana Code section 31-33-1-1 unconstitutional. Presumably, this was a mere typographical error.

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The Plaintiffs are two unmarried same-sex couples and two same-sex couples married in other jurisdictions. Complaint 1-9. Plaintiffs named the Governor of the State of Indiana as the sole defendant. Complaint 10-12. Plaintiffs claim that Indianas Defense of Marriage Act violates the United States Constitution by denying same-sex couples the rights, privileges, responsibilities, and immunities extended to similarly situated opposite-sex couples. Complaint 18. Specifically, Plaintiffs argue that the statute violates the Due Process Clause of the Fourteenth Amendment, the Equal Protection Clause of the Fourteenth Amendment, the First Amendment right to freedom of association, the Full Faith and Credit Clause, the Supremacy Clause, the Fourteenth Amendment right to travel, and the Establishment Clause of the First Amendment. Complaint 28-70. ARGUMENT I. Standards Applicable to Motions to Dismiss It is by now well established that a plaintiff must do better than putting a few words on paper that, in the hands of an imaginative reader, might suggest that something has happened to her that might be redressed by the law. Swanson v. Citibank, N.A., 614 F.3d 400, 403 (7th Cir. 2010) (emphasis in original). See also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563 (2007) (after puzzling the profession for 50 years, this famous observation [the no set of facts language] has earned its retirement.). [L]egal conclusions[, or t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements[] need not be accepted as true. Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009) (and noting that a plaintiff may not merely parrot the language of the claims that are being asserted) (quoting Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949-50 (2009)).

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The same basic rule applies when reviewing a motion to dismiss for lack of subject matter jurisdiction. [T]he district court must accept the complaints well-pleaded factual

allegations as true and draw reasonable inferences from those allegations in the plaintiffs favor. Transit Express, Inc. v. Ettinger, 246 F.3d 1018, 1023 (7th Cir. 2001). However, the federal courts are not required to accept legal conclusions that may be alleged in the complaint. Vaden v. Village of Maywood, Ill., 809 F.2d 361, 363 (7th Cir. 1987), cert. denied, 482 U.S. 908 (1987) (citing Reichenberger v. Pritchard, 660 F.2d 280, 282 (7th Cir. 1981)). II. Because the Governor Does Not Enforce Indiana Code Section 31-11-1-1, the Case is Not Justiciable Against Him and This Court Lacks Article III Jurisdiction Plaintiffs have sued to have Indianas Defense of Marriage Act, Indiana Code section 31-111-1, declared unconstitutional. Complaint at 15-16. In their Prayer for Relief, they generally demand the following: B. A preliminary and permanent injunctive order directing the State of Indiana to issue a marriage license to Plaintiffs . . . and prohibiting Defendants2 from refusing to issue marriage licenses to other same-sex couples based solely on their sex and/or sexual orientation[;] *** D. preliminary and permanent injunctions enjoining Defendants from denying the Plaintiff couples and all other same-sex couples the rights, burdens, and benefits associated with lawful marriage; [and] E. an order directing Defendants to recognize marriages validly entered into by the Plaintiff couples and other same-sex couples outside of the state of Indiana[.]

Complaint at 15. They allege that they have sued Governor Pence because he is the chief executive officer of the State and is responsible for the faithful execution of the laws of the State . . . including the laws that exclude same-sex couples from marrying or having their out-of-state

Plaintiffs Complaint repeatedly references Defendants despite having named Governor Pence as the sole defendant in this case. Presumably this was a mere typographical error.

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marriages recognized. Complaint 10. However, the Governor cannot provide Plaintiffs with any relief related to their marital status, which dooms this lawsuit under Article III standing principles. Standing turns not simply on whether the plaintiffs have a personal stake in the controversy, but more precisely on whether the dispute touches upon the legal relations of the parties having adverse legal interests. OSullivan v. City of Chicago, 396 F.3d 843, 853 (7th Cir. 2005) (quoting Baker v. Carr, 369 U.S. 186, 204 (1962)). Such considerations are

especially important when state laws or the actions of state officials are at stake because the federal courts must ensure that the principles of federalism are not contravened. Id. at 854. To have standing a plaintiff must demonstrate: (1) personal injury; (2) fairly traceable to the defendant; (3) that it is likely to be redressed in the event of a favorable ruling from the court. Plotkin v. Ryan, 239 F.3d 882, 884 (7th Cir. 2001); see also OSullivan, 396 F.3d at 854. The injury must be causally related to the defendants action and not the result of the independent action of a third party. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). Also, it must be likely, not just speculative, that a favorable ruling from the court will redress the plaintiffs injury. Id. at 561. The second and third elements of standing require that a federal court act only to redress injury that fairly can be traced to the challenged action of the defendant, and not injury that results from the independent action of some third party not before the court. Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 41-42 (1976). This is important because only the parties that actually enforce the challenged statute will be able to redress the asserted injury. General authority to enforce the laws of the state is not sufficient to make government officials the proper parties to litigation challenging the law. 1st Westco Corp. v. Sch. Dist. of

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Philadelphia, 6 F.3d 108, 113-14 (3d Cir. 1993) (holding that the school district officials, not the Attorney General or state Secretary of Education, were the proper defendants in a challenge to a contractor residency requirement). See also Hearne v. Bd. of Educ. of City of Chicago, 185 F.3d 770, 777 (7th Cir. 1999) ([T]he plaintiffs have not and could not ask anything of the governor that could conceivably help their cause . . . [because] the governor has no role to play in the enforcement of the challenged statutes, nor does the governor have the power to nullify legislation once it has entered into force.); Rubin v. City of Santa Monica, 308 F.3d 1008, 1019 -20 (9th Cir. 2002) (holding that federal courts lacked jurisdiction over a city ballot text dispute brought against the California Secretary of State because the city was not required to follow the Secretarys directions when running its municipal elections). In this regard, the Southern District of Indiana has held that it has no subject matter jurisdiction to adjudicate lawsuits against Indiana state officials who have no authority to provide the relief the plaintiffs seek. See Libertarian Party of IN v. Marion Cnty. Bd. of Voter

Registration, 778 F. Supp. 1458, 1461 (S.D. Ind. 1991) (holding that claims against the members of the Indiana State Election Board in a suit seeking to obtain copies of Marion County voter registration data were not justiciable because the Marion County Board could provide all requested relief and the State Election Board could not discipline or remove members of the county board.)3 The Ninth Circuit has further established that an officials supervisory role over those responsible for enforcement of a statute is insufficient to make him a proper party. In Southern

Implicitly confirming the point, this Court in Common Cause v. Indiana Secretary of State, No. 1:12-cv-01603RLY-DML (S.D. Ind. Sept. 6, 2013), permitted suit to go forward against the Governor in a suit challenging the constitutionality of the statutory process for judicial elections in Marion County, finding that it had authority to enjoin the Governor from issuing a commission to [a judge] elected pursuant to [the] statutory scheme. Entry on State Defs. MTD, Dkt. No. 30, at 13. The Court found such authority because the Governor is statutorily responsible for issuing commissions to all judges in Indiana under Indiana Code section 4-3-1-5(4). Id. at 7.

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Pacific Transportation Company v. Brown, 651 F.2d 613 (9th Cir. 1980), a group of railroad companies brought suit against the Oregon Attorney General challenging the constitutionality of statutorily created penalty provisions relating to the settlement of claims arising from workrelated accidents. Id. at 614. The court found the attorney generals connection with

enforcement of the statute was insufficient to create a justiciable controversy. Id. at 614-15. Specifically, the statute was enforced through prosecution by district attorneys who were not named as parties. Id. The court ultimately held that [t]he attorney generals power to direct and advise [the district attorneys] does not make the alleged injury fairly traceable to the Plaintiffs injury. Id. at 615. See also Snoeck v. Brussa, 153 F.3d 984, 986 (9th Cir. 1998) (a generalized duty to enforce state law or general supervisory power over the persons responsible for enforcing the challenged provision will not subject an official to suit.); Okpalobi v. Foster, 244 F.3d 405, 427, 428 (5th Cir. 2001) (en banc) ([A] state official cannot be enjoined to act in any way that is beyond his authority to act in the first place. . . . This is not to say that the administrators of [the statute] themselves could not be enjoined to do a particular act that was within their authority but these plaintiffs must sue those individuals authorized to exercise the orders of the injunction.). Governor Pence does not issue marriage licenses, and he does not perform any other function tantamount to recogniz[ing] marriages solemnized in other states. Indeed, Plaintiffs Complaint fails to specify anything the Governor could actually do to provide them with relief. In both the Complaint and Memorandum in Support of Motion for Preliminary Injunction, Plaintiffs list a number of circumstances impacted by marriage law, but aside from the unmarried Plaintiffs demand for Indiana marriage licenses (which the Governor cannot provide), they do

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not specifically claim injury to themselves related to any other impact of marriage law, much less connect that injury to some action or omission of the Governor. In short, an Article III case or controversy is lacking because the only injury Plaintiffs assertthe inability of the unmarried plaintiffs to procure Indiana marriage licensesis not fairly traceable to the sole Defendant in the case. The Governor has no authority to enforce, or other role respecting, the States Defense of Marriage Act, Indiana Code section 31-11-1-1, which is the only law Plaintiffs seek to have declared unconstitutional. III. Because the Governor Does Not Enforce Indiana Code Section 31-11-1-1, Sovereign Immunity and the Eleventh Amendment Separately Bar This Action For similar reasons, the Eleventh Amendment bars this action because the State of Indiana, as a sovereign entity, has not consented to be sued by the Plaintiffs. Under the doctrine of Ex Parte Young, officers of the state, [who] are clothed with some duty in regard to the enforcement of the laws of that state, and who threaten and are about to commence proceedings . . . to enforce against parties affected an unconstitutional act . . . may be enjoined by a Federal court of equity from such action. 209 U.S. 123, 155-56 (1908). The theory behind this exception is that, since the authority under which the officer acts is void, the officer is stripped of his official or representative character and is subject to the consequences of his official conduct. Id. at 160. Because Young presumes some ability of the defendant state official to enforce the law at issue, it does not apply where such responsibility is lacking. In Young itself the Court

acknowledged that the sovereign immunity exception it creates applies only when the named state officials have some connection with the enforcement of the act[.] Id. at 157. More recent decisions from various circuits have respected this limiting on Young. In 1st Westco Corp. v. Sch. Dist. of Philadelphia, 6 F.3d 108, 113 (3d Cir. 1993), the court held that Young does not 7

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apply when a defendant state official has neither enforced nor threatened to enforce an allegedly unconstitutional state statute. In Childrens Healthcare is a Legal Duty, Inc. v. Deters, 92 F.3d 1412 (6th Cir. 1996), the court observed that, for an officer of a state to be a proper defendant in a suit to declare an act unconstitutional, such officer must have some connection with the enforcement of the act. Id. at 1415-16. The requisite connection between the defendant official and the challenged statute is not satisfied by merely alleging that the official has a general duty to uphold the laws. Indeed, the Supreme Courts reasoning in Young is particularly instructive. There, the Court observed that if the constitutionality of a statute could be tested merely by bringing a suit against an officer of the state, then the constitutionality of every act passed by the legislature could be tested by a suit against the governor [or] the attorney general, based upon the theory that each is charged with the general duty to execute or enforce the laws. Young, 209 U.S. at 157. That would be a very convenient way for obtaining a speedy judicial determination of questions of constitutional law[,] the court concluded, but it is a mode which cannot be applied to the states of the Union consistently with the fundamental principle that they cannot, without their assent, be brought into any court at the suit of private persons. Id. Based on this instruction from Young, federal courts have rejected lawsuits against governors and other state officials based on their general duties. See, e.g., Shell Oil Co. v. Noel, 608 F.2d 208, 211 (1st Cir. 1979) ([t]he mere fact that a governor is under a general duty to enforce state law does not make him a proper defendant in every action attacking the constitutionality of a state statute.); Mendez v. Heller, 530 F.2d 457, 460 (2d Cir. 1976) (an attorney generals duty to support the constitutionality of challenged state statutes does not constitute enforcement of the statute in question); Okpalobi v. Foster, 244 F.3d 405, 424-25 (5th

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Cir. 2001) (en banc) ([N]othing argued or cited . . . suggests that there is any enforcement connection between . . . the Governor and the Attorney General . . and [the statute] that satisfies . . . Ex parte Young. It is clear therefore . . . that the defendants in this case enjoy Eleventh Amendment immunity from this suit.) (emphasis in original); Sherman v. Cmty. Consol. Sch. Dist. 21 of Wheeling Twp., 980 F.2d 437, 441 (7th Cir. 1992) (plaintiffs could not name the office of the Attorney General in an effort to obtain a judgment binding on the State as an entity under the Eleventh Amendment absent Congressional authority); Long v. Van de Kamp, 961 F.2d 151, 152 (9th Cir. 1992) (Absent a real likelihood that the state official will employ his supervisory powers against plaintiffs interests, the Eleventh Amendment bars federal court jurisdiction.). Indeed, very recently a district court in Louisiana dismissed a challenge to a traditional marriage definition that named only the Attorney General because the Attorney General had no official connection to enforcement of the law. Robicheaux v. Caldwell, 2013 WL 6198279, at *2 (E.D. La Nov. 27, 2013) (The Attorney Generals sweeping responsibility to enforce the laws of the State . . .lacks the Ex parte Young specificity nexus between the Attorney General and the alleged unconstitutional provisions [barring and precluding recognition of same-sex marriage] that is essential to defeat sovereign immunity.). As described above, the Governor has no specific authority to enforce the States Defense of Marriage Act and the Plaintiffs have named the Governor merely as a representative of the State of Indiana, which is insufficient to invoke the Young exception to the Eleventh Amendment prohibition of suits against the State and its officials. Accordingly, sovereign immunity and the Eleventh Amendment bar this action.

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CONCLUSION For the foregoing reasons, the Defendant respectfully requests that this Court grant his Motion to Dismiss and dismiss Plaintiffs Complaint.

Respectfully submitted,

GREGORY F. ZOELLER Attorney General of Indiana /s/ Thomas M. Fisher Thomas M. Fisher Solicitor General Office of the Attorney General Indiana Government Center South Fifth Floor 302 West Washington Street Indianapolis, IN 46205 (317) 232-6255 Attorneys for Governor Michael Pence


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CERTIFICATE OF SERVICE I hereby certify that on the 4th day of April, 2014, a copy of the foregoing pleading was filed electronically. Notice of this filing will be sent to the following parties by operation of the Courts electronic filing system. Parties may access this filing through the Courts system. Daniel J. Canon Laura E. Landenwich Shannon Fauver

s/ Thomas M. Fisher Thomas M. Fisher Solicitor General

Office of the Indiana Attorney General Indiana Government Center South, Fifth Floor 302 W. Washington Street Indianapolis, IN 46204-2770 Telephone: (317) 232-6255 Facsimile: (317) 232-7979