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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

CARA PALLADINO, and ISABELLE

BARKER,

:

:

Plaintiffs :: No. 2:13-CV-5641

v. :

: (Judge McLaughlin)

THOMAS CORBETT, in his official capacity

as Governor of Pennsylvania, and his

successors in office; and KATHLEEN KANE,

in her official capacity as Attorney General of

Pennsylvania, and her successors in office,

:

:

:

:

:

:

:

Electronically Filed Document

Defendants. :

DEFENDANT KATHLEEN KANES COMBINED REPLY

BRIEF IN SUPPORT OF THE MOTION TO DISMISS ALL

CLAIMS AGAINST HER AND BRIEF IN OPPOSITION TO

PLAINTIFFS MOTION FOR SUMMARY JUDGMENT

AGAINST GENERAL KANE

I. STATEMENT OF THE CASE

This is a civil rights action brought by a same-sex couple who was legally married in the

Commonwealth of Massachusetts while residing there. Plaintiffs, who are now Pennsylvania

residents, challenge the constitutionality of Pennsylvanias marriage law, 23 Pa. C.S. 1101, et

seq., to the extent that it prohibits recognition of same-sex marriages legally entered into in

jurisdictions outside of Pennsylvania. See 23 Pa.C.S. 1704. Plaintiffs allege that section 1704

of the marriage law violates the Full Faith and Credit Clause and the Fourteenth Amendment of

the United States Constitution. Under the Fourteenth Amendment they assert violations of their

right to travel, their right to due process and their right to equal protection.

Defendants, Governor Thomas W. Corbett and Attorney General Kathleen Kane, have

separately filed motions to dismiss the complaint against them. Defendant Kanes motion was

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filed pursuant to Fed.R.Civ.P. 12 (b)(1) and (6) alleging a lack of jurisdiction and failure to state

a cause of action against her. The defendants briefed their motions to dismiss. Plaintiffs have

moved for summary judgment and have filed a combined memorandum of law, opposing the

defendants motions to dismiss and in support of Plaintiffs motion for summary judgment.

(Doc. 27)

Plaintiffs allege that the Defendants motions are without merit and specifically,

regarding Defendant Kane, allege that Defendant Kane is responsible for enforcing 1704 as the

chief law officer of Pennsylvania and that as a result of the general duties to uphold and defend

the laws of the Commonwealth conferred upon her by the Commonwealth Attorneys Act, 71 P.S.

732-204(a)(3), they allege that she has the indirect causal relationship necessary to satisfy

Article III standing. (Doc. 27, pg. 26)

Plaintiffs additionally seek summary judgment in their favor alleging that section 1704 of

the Marriage Law violates the Fourteenth Amendments Due Process and Equal Protection

Clauses, and that section 1704 violates the Full Faith and Credit Clause and infringes upon

Plaintiffs right to travel.

This is Defendant Kanes combined reply brief in support of her motion to dismiss the

claims against her and in opposition to Plaintiffs motion for summary judgment against her.

Plaintiffs lack Article III standing and therefore the Attorney General is an improper party to the

action.


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II. ARGUMENT

DEFENDANT KANE IS AN IMPROPER PARTY TO THE LITIGATION

AND THEREFORE THE MOTION TO DISMISS HER SHOULD BE

GRANTED AND SUMMARY JUDGMENT AGAINST DEFENDANT

KANE SHOULD BE DENIED.

As argued within her brief in support of the motion to dismiss, the Attorney General is

not a proper party to the current action. In order to proceed with their claims against Attorney

General Kane, the Plaintiffs must first establish standing under Article III of the Constitution.

They must show: (a) an injury in fact, (2) the injury is fairly traceable to the defendants conduct,

and (3) the requested relief is likely to redress the injury. Planned Parenthood of Cent. New

Jersey v. Farmer, 220 F.3d 127, 146-47 (3d Cir. 2000). Plaintiffs have failed to show that any

injury to the Plaintiffs is fairly traceable to Defendant Kanes conduct. Therefore, Defendant

Kanes motion to dismiss should be granted and the Plaintiffs motion for summary judgment

against Defendant Kane should be denied.

Within their complaint, Plaintiffs have failed to allege an injury in fact that is fairly

traceable to the conduct of Defendant Kane. Plaintiffs claim that Pennsylvanias failure to

acknowledge their out of state same-sex marriage has caused them injury with regards to

inheritance and succession, spousal decision-making in the event of illness or infirmity, parental

rights and adoption. (Doc. 1, 18-23). Plaintiffs allege that they are suing Defendant Kane

because they seek recognition of their marriage within and by Pennsylvania. (Doc. 27, pg. 22

fn. 16). In support of their argument that they have established standing against Defendant Kane,

Plaintiffs allege that the Attorney Generals duties under the Commonwealth Attorneys Act, 71

P.S. 732-204, to generally uphold the constitutionality of the laws of the Commonwealth

indicate that she has an indirect causal relationship to the Plaintiffs injuries sufficient to

establish standing against her. This is clearly not the case.


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Although an indirect causal relationship will suffice to establish standing, there still

must be a fairly traceable connection between the alleged injury in fact and the conduct of the

defendant. Toll Bros., Inc. v. Twp. of Readington, 555 F.3d 131, 142 (3d Cir. 2009). As argued

within Defendant Kanes primary brief, there has not been an allegation of any conduct by

Defendant Kane adverse to the Plaintiffs interests, nor has there been any allegation that

Defendant Kane has any connection to the alleged injuries of Plaintiffs. To the contrary, it is

clear that the alleged injuries of the Plaintiffs are related to laws administered by other

government officials, and to which the Attorney General has no enforcement or administration

authority. For example, it is the Department of Health, not the Attorney General, that is

responsible for administering the Vital Statistics Law including the provisions governing the

registration of births, 35 P.S. 450.101, 450.105, 450.201, including births to unmarried

women. 28 Pa. Code 1.6. See Complaint 21. Likewise, it is not the Attorney General, but

rather, the Department of Revenue that is responsible for settling and collecting all taxes owed to

the Commonwealth, 72 P.S. 201, including the personal income tax, 72 P.S. 7301, 7302,

7338, and the inheritance tax, 72 P.S. 9101, 9102, 9103.

Similarly, the Attorney General lacks enforcement or administration authority for the

Marriage Law. Plaintiffs suggestion that the Marriage Law is self-executing ignores the

authority of the Clerk of Orphans Court and the Secretary of Health specific to the enforcement

and administration of the Marriage Law. See 20 Pa. C.S.A. 711(19) (Orphans Court division

shall exercise jurisdiction over marriage licenses as provided by law.); 23 Pa. C.S. 1104

(marriage applications and licenses to be supplied and uniform as prescribed by the Department

of Health); 23 Pa. C.S. 1106 (records of all marriage licenses issued shall be furnished to the

Department of Health). Thus the Secretary of Health, Secretary of Revenue, or the Clerk of the


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Orphans Court, and not the Attorney General, are directly responsible for carrying out the law in

ways that affect the Plaintiffs and would be proper parties to Plaintiffs constitutional challenge

of the Marriage Law. See 1st

Westco v. School District of Philadelphia, 6 F.3d 108, 113 (3d Cir.

1993)(citing Rode v. Dellarciprete, 845 F.2d 1195, 1209 N. 9 (3d Cir. 1988))(holding that

plaintiffs challenging the constitutionality of a state statute may bring suit against the official

who is charged with enforcing the statute).

Furthermore, Plaintiffs reliance upon the general duties conferred upon Defendant Kane

by the Commonwealth Attorneys Act, 71 P.S. 732-204, to substantiate that she is responsible

for enforcing 1704 of the Marriage Law is wholly misplaced. As argued previously, the

officials with authority for enforcement and administration of the Marriage Law are the

Secretary of Health and the Clerk of Orphans Court. The fact that Defendant Kane is in fact the

chief law officer of Pennsylvania in no way confers upon her the authority to enforce all

administrative state statutes. Those general duties are likewise insufficient to make the Attorney

General a proper party to every constitutional challenge to a statute. Rode, 845 F.2d at 1208.

InBishop v. Oklahoma, 333 Fed.Appx. 361 (10th Cir. 2009)1, the Tenth Circuit Court of

Appeals considered whether the Governor and Attorney General of the State of Oklahoma were

sufficiently connected to the enforcement of the Oklahoma Constitutions marriage provisions to

establish Article III standing. The plaintiffs in Bishop, two same-sex couples, claimed that they

desired to be married, but were prevented from doing so, or that they were married, but the

Oklahoma marriage provision would not recognize their out of state marriage as valid and

binding. Bishop, 333 Fed.Appx. at 365. The Court held that the Oklahoma officials

generalized duty to enforce state law, alone, is insufficient to subject them to a suit challenging a

1A copy ofBishop v. Oklahoma, 333 Fed.Appx. 361 (10

thCir. 2009) is attached hereto and

marked as Exhibit A.


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constitutional amendment they have no specific duty to enforce. Id. The Court went on to hold

that the plaintiffs claims were simply not connected to the duties of the Attorney General nor

could the alleged injury be caused by any action of the Attorney General, nor would an

injunction against them give the couples the legal status that they sought. Id.

TheBishop case mirrors the current case. Like the Oklahoma officials, Defendant

Kanes general duties under the Commonwealth Attorneys Act do not subject her to a suit

challenging the Marriage Law, a statute that she has no specific duty to enforce. Further, the

duties of Defendant Kane are in no way connected to the recognition of out of state same-sex

marriages.

The alleged injuries of the Plaintiffs were not, and could not be caused by any action of

Defendant Kane; accordingly, the Plaintiffs have failed to establish standing against the Attorney

General and the motion to dismiss of Defendant Kane should be granted and Plaintiffs motion

for summary judgment against Defendant Kane should be denied.

III. CONCLUSION

For the reasons enumerated above, Defendant Kathleen Kanes motion to dismiss all

claims against her should be granted and the Plaintiffs motion for summary judgment against

Defendant Kane should be denied.

Respectfully submitted,

KATHLEEN G. KANE

Attorney General

By: s/ M. Abbegael Giunta

M. ABBEGAEL GIUNTA

Office of Attorney General Deputy Attorney General

15t

Floor, Strawberry Square Attorney ID 94059

Harrisburg, PA 17120


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Phone: (717) 787-1179

Fax: (717) 772-4526 GREGORY R. NEUHAUSER

[email protected] Chief Deputy Attorney General

Chief, Civil Litigation Section

Date: February 14, 2014

Counsel for Defendant Kane


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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

CARA PALLADINO, and ISABELLE

BARKER,

:

:

Plaintiffs :: No. 2:13-CV-5641

v. :

: (Judge McLaughlin)

THOMAS CORBETT, in his official capacity

as Governor of Pennsylvania, and his

successors in office; and KATHLEEN KANE,

in her official capacity as Attorney General of

Pennsylvania, and her successors in office,

:

:

:

:

:

:

:

Electronically Filed Document

Defendants. :

CERTIFICATE OF SERVICE

I, M. Abbegael Giunta, Deputy Attorney General for the Commonwealth of

Pennsylvania, Office of Attorney General, hereby certify that on February 14, 2014, I caused to

be served a true and correct copy of the foregoing document titled Defendant Kathleen Kanes

Combined Reply Brief in Support of the Motion to Dismiss All Claims Against Her and in

Opposition to Plaintiffs Motion for Summary Judgment Against General Kane to the following:

VIA ELECTRONIC FILING

Michael L. Banks, Esquire

Eric Kraeutler, Esquire

Vanessa Renee Brown, Esquire

William O. Mandycz, Esquire

Morgan Lewis & Bockius, LLP

1701 Market StreetPhiladelphia, PA 19103-2921

[email protected]

[email protected]

[email protected] for Plaintiffs

William H. Lamb, Esquire

Joel L. Frank, Esquire

Lamb McErlane, PC

24 East Market St.

P.O. Box 565

West Chester, PA [email protected]

[email protected]

Counsel for Defendant Corbett

Benjamin L. Jerner, Esquire


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Jerner & Palmer, PC

5401 Wissahickon Avenue

Philadelphia, PA 19144

[email protected] for Plaintiffs

s/ M. Abbegael Giunta

M. ABBEGAEL GIUNTA

Deputy Attorney General


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