Ansley v. Warren

• Decision Date: 20 September 2016
• Docket Number: DOCKET NO. 1:16-cv-00054-MOC-DLH
• Court: U.S. District Court — Western District of North Carolina
• Parties: KAY DIANE ANSLEY, et al., Plaintiffs, v. MARION WARREN, in his Official Capacity as Director of the North Carolina Administrative Office of the Courts, Defendant.

KAY DIANE ANSLEY, et al., Plaintiffs, v. MARION WARREN, in his Official Capacity as Directorof the North Carolina Administrative Office of the Courts, Defendant.

DOCKET NO. 1:16-cv-00054-MOC-DLH

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NORTH CAROLINA ASHEVILLE DIVISION

September 20, 2016

ORDER

THIS MATTER is before the court on the Motion to Dismiss (#38) by Defendant, which has been fully briefed and is ripe for review. The court heard oral arguments on the Motion on August 8, 2016. Defendant argues that this matter should be dismissed for lack of jurisdiction, improper venue, and Plaintiffs' failure to state a claim upon which relief can be granted. Having considered the Motion, the arguments of counsel, and the applicable law, the court enters the following findings, conclusions, and Order.

FINDINGS AND CONCLUSIONS

I. INTRODUCTION

The facts as alleged in this case are as follows. See Complaint (#1) at ¶¶ 18-85. In September 2011, the North Carolina legislature voted to hold a statewide ballot initiative, commonly called Amendment One, to amend the North Carolina Constitution to limit marriage to opposite-sex couples and prohibit the recognition of marriages between same-sex couples. The Amendment One referendum passed on May 10, 2012, amending the state constitution. On Friday, October 10, 2014, after the Supreme Court denied certiorari in Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014), this court declared Amendment One, and its corollary provisions in Chapter 51 of the General Statutes, unconstitutional. This court found that the ban on marriage between same-sex couples violated the Fourteenth Amendment under the Fourth Circuit's decision in Bostic. See Gen. Synod of the United Church of Christ v. Resinger, 12 F. Supp. 3d 790, 791 (W.D.N.C. 2014).

Following this Court's ruling in General Synod, thousands of marriage licenses were issued to same-sex couples in North Carolina, and those couples were subsequently married, some through ceremonies performed by magistrates. On Monday, October 13, 2014, Defendant Warren's predecessor as director of the Administrative Office of the Courts, Judge John W. Smith, issued a directive instructing state magistrates to immediately conduct marriages of all couples presenting a marriage license issued by the Register of Deeds. On Tuesday, October 14, 2014, General Counsel for the North Carolina Administrative Office of the Courts ("NCAOC") issued a legal memorandum stating that magistrates would violate their judicial oath to uphold the United States Constitution if they refused to marry same-sex couples. Also on October 14, 2014, the District Court for the Middle District of North Carolina issued an Order and Judgment also striking down Amendment One and corollary marriage laws prohibiting marriage equality. See Fisher-Borne v. Smith, 14 F. Supp. 3d 695, 698 (M.D.N.C. 2014). On October 24, 2014, various members of the North Carolina General Assembly, including Phil Berger, President Pro Tempore of the Senate, sent a letter to the Director of the NCAOC, voicing their criticisms of NCAOC's directives concerning the October 14 memorandum. The objecting members of the General Assembly "encourage[d] [the NCAOC] to revise the memorandum to include a comprehensive and correct statement of federal and state law on the doctrine of reasonable accommodation and management flexibility." Plaintiffs have alleged that some magistrates, including magistrates from countieswithin this judicial district, resigned in the face of this court's Order in General Synod and the directive from the NCAOC rather than uphold their oath of office and perform marriages for same-sex couples.¹

On January 28, 2015, the President Pro Tempore of the Senate filed the second bill of the new legislative session, Sess. Law 2015-75, Senate Bill 2, "An Act To Allow Magistrates And Registers Of Deeds To Recuse Themselves From Performing Duties Related To Marriage Ceremonies Due To Sincerely Held Religious Objection") (hereinafter "Senate Bill 2" or S.B. 2). Section 1 of the proposed bill created a new statute, N.C.Gen.Stat. § 51-5.5, that would grant magistrates the right to recuse themselves from conducting any marriages, and separately would grant assistant and deputy registers of deeds the right to recuse themselves from issuing marriage licenses, for six-month intervals, based upon "any sincerely held religious belief." See N.C.Gen.Stat. § 51-5.5. Plaintiffs have alleged that, given the timing of the law's enactment, the legislature acted in direct response to this court's ruling in General Synod to exempt magistrates who oppose same-sex marriages from fulfilling their mandatory judicial oath to support and uphold the United States Constitution. Section 2 of S.B. 2 amended N.C.Gen.Stat. § 14-230, which provides, inter alia, that any magistrate who should "willfully omit, neglect or refuse to discharge any of the duties of his office... shall be guilty of a Class 1 misdemeanor." S.B. 2 added subsection(b) to N.C.Gen.Stat. § 14-230, providing that "[n]o magistrate recusing in accordance with G.S. 51-5.5 may be charged under this section for recusal to perform marriages in accordance with Chapter 51 of the General Statutes." Senate Bill 2 thus expressly excludes a magistrate's refusal to perform marriage ceremonies as an act that "violated his oath of office" or that constituted a form of "misbehavior in office" or otherwise provided cause for removal from office on a Class 1 misdemeanor. Section 3 of S.B. 2 amended N.C.Gen.Stat. § 161-27, which provides penalties for a register of deeds who fails to perform his legal duties, to add a subsection (b), which expressly protects assistant and deputy registers of deeds from being charged with a Class 1 misdemeanor for "recusal to issue marriage licenses in accordance with Chapter 51 of the General Statutes." Section 4 of S.B. 2 added the following provision to N.C.Gen.Stat. § 7A-292, which lists the "additional powers of magistrates": "The authority granted to magistrates under G.S. 51-1 and subdivision (a)(9) of this section is a responsibility given collectively to the magistrates in a county and is not a duty imposed upon each individual magistrate. The chief district court judge shall ensure that marriages before a magistrate are available to be performed at least a total of 10 hours per week, over at least three business days per week." Under Section 5 of S.B. 2, "Any magistrate who resigned, or was terminated from, his or her office between October 6, 2014, and the effective date of this act may apply to fill any vacant position of magistrate." Such magistrates were not allowed to receive a salary or earn leave during that time, but would be "considered to have been serving as a magistrate during that period for purposes of determining continuous service, length of aggregate service, anniversary date, longevity pay rate, and the accrual of vacation and sick leave." Additionally, Section 5 of S.B. 2 provides that the "Judicial Department shall pay and submit both the employee and employer contributions to the Retirement Systems Division onbehalf of the magistrate as though that magistrate had been in active service during the period in question."

Plaintiffs have alleged that S.B. 2 also authorizes the expenditure of public funds to accomplish the goal of exempting magistrates from their oath of office on religious grounds in two ways. First, language in N.C.Gen.Stat. § 51-5.5 provides that if all of the magistrates in a given county recuse themselves due to a "sincerely held religious objection" from performing marriages, the NCAOC will arrange to bring a willing magistrate from another county to perform marriages. Second, under Section 5 of S.B. 2, any magistrate who had resigned his or her position, and then applied and was reappointed to that position within 90 days of the effective date of S.B. 2, would receive full credit towards retirement for that gap in service. To accomplish that end, Section 5 of S.B. 2 requires the "Judicial Department" to pay into the state retirement system on behalf of each reappointed magistrate both the employee's and employer's share of retirement contributions to cover that gap in service.

The House approved S.B. 2 on May 28, 2015. Governor McCrory vetoed it that same day, issuing a formal statement explaining the reason for his veto. That statement provided:

I recognize that for many North Carolinians, including myself, opinions on same-sex marriage come from sincerely held religious beliefs that marriage is between a man and a woman. However, we are a nation and a state of laws. Whether it is the president, governor, mayor, a law enforcement officer, or magistrate, no public official who voluntarily swears to support and defend the Constitution and to discharge all duties of their office should be exempt from upholding that oath; therefore, I veto Senate Bill 2.

See "Governor's Objections and Veto Message."² The legislature overrode the Governor's veto on June 11, 2015. On June 26, 2015, the U.S. Supreme Court ruled in Obergefell v. Hodges, 576U.S. ___, 135 S. Ct. 2584 (2015), that state bans on marriage between same-sex couples violated both the Equal Protection and Due Process clauses of the Fourteenth Amendment. The North Carolina legislature did not seek to modify S.B. 2 in the wake of the Supreme Court's decision in Obergefell.

Plaintiffs have alleged that since S.B. 2 became law, at least 32 magistrates across North Carolina who had previously performed marriages for opposite-sex couples invoked religious beliefs to recuse themselves from performing marriages because of their opposition to performing marriages for same-sex couples. They have also alleged that all of the magistrates in McDowell County recused themselves from performing marriages under S.B. 2 because of their opposition to marriage equality for same-sex couples. They have further alleged that Defendant Warren, in his Official Capacity as Director...