McGee v. Cole

• Decision Date: 29 January 2014
• Docket Number: Civil Action No. 3:13–24068.
• Citation: 993 F.Supp.2d 639
• Court: U.S. District Court — Southern District of West Virginia
• Parties: Casie Jo McGEE and Sarah Elizabeth Adkins; Justin Murdock and William Glavaris; and Nancy Elizabeth Michael and Jane Louise Fenton, individually and as next friends of A.S.M., minor child, Plaintiffs, v. Karen S. COLE, in her official capacity as Cabell County Clerk; and Vera J. McCormick, in her official capacity as Kanawha County Clerk, Defendants. and State of West Virginia, Intervenor Defendant.

993 F.Supp.2d 639

Casie Jo McGEE and Sarah Elizabeth Adkins; Justin Murdock and William Glavaris; and Nancy Elizabeth Michael and Jane Louise Fenton, individually and as next friends of A.S.M., minor child, Plaintiffs,

v. Karen S. COLE, in her official capacity as Cabell County Clerk; and Vera J. McCormick, in her official capacity as Kanawha County Clerk, Defendants.andState of West Virginia, Intervenor Defendant.

Civil Action No. 3:13–24068.

United States District Court, S.D. West Virginia.

Jan. 29, 2014.

Camilla B. Taylor, Lambda Legal Defense & Education Fund, Inc., Chicago, IL, Elizabeth L. Littrell, Lamba Legal Defense & Education Fund, Inc., Atlanta, GA, Karen L. Loewy, Lambda Legal Defense & Education Fund, Inc., New York, NY, Lindsay C. Harrison, Luke C. Platzer, Paul M. Smith, R. Trent McCotter, Jenner & Block, Washington, DC, Heather Foster Kittredge, John H. Tinney, Jr., The Tinney Law Firm, Charleston, WV, for Plaintiffs.

Lee Murray Hall, Sarah A. Walling, Jenkins Fenstermaker, Huntington, WV, Charles R. Bailey, Michael W. Taylor, Bailey & Wyant, Charleston, WV, for Defendants.

MEMORANDUM OPINION AND ORDER

ROBERT C. CHAMBERS, Chief Judge.

Pending before the Court is a motion by Defendant Vera J. McCormick to dismiss the complaint (ECF No. 26), a motion by Defendant Karen S. Cole to dismiss the complaint (ECF No. 31), and a motion by Intervenor Defendant the State of West Virginia to dismiss the complaint (ECF No. 34). Also pending are a motion by Defendant McCormick and Defendant Cole (collectively “Defendant Clerks”) to strike Plaintiffs' notice of supplemental authority (ECF No. 45) and a motion by Intervenor Defendant the State of West Virginia to amend the deadline to respond to Plaintiffs' motion for summary judgment (ECF No. 53).

For the reasons stated below, the motion to strike (ECF No. 45) is GRANTED in part; the Court will consider the two exhibits attached to Plaintiffs' notice of supplemental authority but will not consider legal argument presented in the memorandum accompanying those exhibits. The Court DENIES in part Defendant Clerks' motions to dismiss (ECF Nos. 26, 31) and RESERVES ruling as to abstention arising from the issue of whether the existing Defendants are sufficient to bind state authorities and all county clerks, should a ruling on the merits be made in favor of Plaintiffs. The Court DIRECTS Plaintiffs, by February 12, 2014, to either 1) seek joinder of whatever additional parties they deem necessary to create greater certainty as to the effect of a ruling in this case, or 2) file a responsive pleading explaining why the existing Defendants in this lawsuit are sufficient to bind state authorities and all county clerks should a ruling on the merits be made in favor of Plaintiffs and why joinder of additional parties is not necessary. Defendants may file a response within seven days of Plaintiffs taking either action, and Plaintiffs may file a reply within three days of any response from Defendants.

The Court GRANTS the State's motion to dismiss (ECF No. 34) and accordingly DISMISSES Plaintiffs' claims pertaining to West Virginia Code Section 48–2–603 (the nonrecognition provision); Plaintiffs' claims as to the other portions of the marriage ban may proceed. However, the Court ORDERS that Plaintiffs may amend their Complaint by February 12, 2014. Lastly, the Court ORDERS that Defendants shall have 14 days from entry of this Memorandum Opinion and Order to file any responses to Plaintiffs' motion for summary judgment. The Court accordingly DENIES as moot the State's motion to amend the deadline (ECF No. 53).

I. Statement of Facts

Plaintiffs in this case seek to overturn West Virginia Code Sections 48–2–104, 48–2–401, and 48–2–603, as well as “any other sources of West Virginia law that exclude same-sex couples from marriage or from recognition of marriages entered into in another jurisdiction” (collectively called the “marriage ban”). Compl. 28, ECF No. 8.

West Virginia Code Section 48–2–104 specifies the required contents for marriage license applications. Among other requirements, “[t]he application for a marriage license must contain a statement of the full names of both the female and the male parties” and “must contain the following statement: ‘Marriage is designed to be a loving and lifelong union between a woman and a man.’ ” W. Va.Code § 48–2–104(a) & (c). Section 48–2–401 governs persons authorized to perform marriages and states in part, “Celebration or solemnization of a marriage means the performance of the formal act or ceremony by which a man and woman contract marriage and assume the status of husband and wife.” Lastly, Section 48–2–603 prohibits a same-sex marriage performed outside of West Virginia from being recognized as a valid marriage within West Virginia: “A public act, record or judicial proceeding of any other state, territory, possession or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of the other state, territory, possession, or tribe, or a right or claim arising from such relationship, shall not be given effect by this state.”

Six of the plaintiffs are gay and lesbian West Virginians, comprising three same-sex adult couples: Casie Jo McGee and Sarah Elizabeth Adkins; Justin Murdock and William Glavaris; and Nancy Elizabeth Michael and Jane Louise Fenton. The seventh plaintiff, A.S.M., is the minor child of Ms. Michael and Ms. Fenton. Plaintiffs bring this action pursuant to 42 U.S.C. § 1983 against Karen S. Cole, in her official capacity as Cabell County Clerk, and against Vera J. McCormick, in her official capacity as Kanawha County Clerk. Defendant Clerks are responsible for issuing marriage licenses and recording marriages that take place in jurisdictions outside of West Virginia. Their responsibilities include ensuring that marriage licenses and records of out-of-state marriages conform with West Virginia law, including the West Virginia marriage ban. Plaintiffs argue that Defendant Clerks are violating Plaintiffs' due process rights and equal protection rights guaranteed by the Fourteenth Amendment to the United States Constitution. Plaintiffs accordingly request that this Court declare the marriage ban to be unconstitutional and enjoin enforcement of the marriage ban.

The State of West Virginia filed a motion to intervene as a defendant, pursuant to 28 U.S.C. § 2403(b)¹ and Federal Rules of Civil Procedure 5.1(c) and 24(a), to defend the constitutionality of the marriage ban. ECF No. 25. The Court granted this motion, allowing the State to proceed as an Intervenor Defendant. ECF No. 28.

Defendant Clerks and the State have each filed a separate motion to dismiss. ECF Nos. 26, 31, 34. Plaintiffs have filed a notice of supplemental authority in opposition to Defendant Clerks' motions to dismiss. ECF No. 44. Defendant Clerks jointly move for the Court to strike the notice of supplemental authority. ECF No. 45. All of these motions are now ripe for resolution and will be addressed in this Memorandum Opinion and Order.

Plaintiffs have also filed a motion for summary judgment. ECF No. 40. Defendant Clerks and the State jointly moved to stay briefing on Plaintiffs' motion for summary judgment until resolution of the motions to dismiss. ECF No. 43. In an Order dated January 17, 2014, the Court directed that Defendants' responses to Plaintiffs' motion for summary judgment would be due seven days after the entry of a Memorandum Opinion and Order resolving the motions to dismiss. ECF No. 52. The State has filed a motion to amend that deadline. ECF No. 53.

In Section II, the Court discusses the motion to strike. Section III examines whether the Court should abstain from exercising jurisdiction over this matter. Section IV discusses whether Plaintiffs have failed to state a claim for relief. Section V analyzes whether Plaintiffs have standing to challenge West Virginia Code Section 48–2–603, the non-recognition statute. Section VI discusses the State's motion to extend the deadline to respond to Plaintiffs' motion for summary judgment.

II. Motion to Strike

On January 3, 2014, Plaintiffs filed a notice of supplemental authority in opposition to the motions to dismiss filed by Defendant Clerks. ECF No. 44. Plaintiffs attached two recent decisions to this notice that they believe should be considered by the Court in ruling on the motions to dismiss. The first is a decision by the District Court for the District of Utah in Kitchen v. Herbert, holding that Utah's prohibition on same-sex marriage is unconstitutional. 961 F.Supp.2d 1181, No. 2:13–CV–217, 2013 WL 6697874 (D.Utah Dec. 20, 2013). The second is a decision by the District Court for the Southern District of Ohio in Obergefell v. Wymyslo, holding that Ohio must recognize valid same-sex marriages from other states on Ohio death certificates. 962 F.Supp.2d 968, No. 1:13–CV501, 2013 WL 6726688 (S.D.Ohio Dec. 23, 2013).

Defendant Clerks filed a joint motion to strike this notice of supplemental authority. ECF No. 45. They argue that pursuant to Local Rule of Civil Procedure 7.1(a)(7),² Plaintiffs were required to seek leave of the Court before filing this supplemental memorandum, which Plaintiffs did not do. Defendant Clerks argue that, in essence, this filing is an impermissible surreply and that, even had leave to file a surreply been requested, there would be no basis to grant that leave. Defendant Clerks point out that the two cases are outside the Fourth Circuit and rely upon case law that may conflict with Fourth Circuit precedent, making the decisions of limited value here. Furthermore, Defendant Clerks suggest that Plaintiffs did not timely bring these decisions to the Court's attention. Kitchen v. Herbert was issued three days before Plaintiffs filed a response to Defendant Cole's motion to dismiss, and Obergefell v. Wymyslo—issued the same day that Plaintiffs filed their response to Defendant Cole's motion to...