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Case 2:13-cv-05641-MAM Document 21 Filed 12/09/13 Page 1 of 5

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 COREBETT, in his official : capacity as Governor of Pennsylvania, : Electronically Filed Document : and his successors in office; and : KATHLEEN KANE, in her official : capacity as Attorney General of : Pennsylvania, and her successors in : office, Defendants. : ORDER AND NOW, this ______ day of ______________, 2013 upon consideration of defendant Kathleen Kanes Motion to Dismiss the claims against her, her brief in support thereof, and plaintiffs response thereto, it is hereby ORDERED and DECREED that said Motion is GRANTED. Plaintiffs claims against defendant Kathleen Kane are dismissed with prejudice.

______________________________ MARY A. MCLAUGHLIN United States District Judge

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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 COREBETT, in his official : capacity as Governor of Pennsylvania, : Electronically Filed Document : and his successors in office; and : KATHLEEN KANE, in her official : capacity as Attorney General of : Pennsylvania, and her successors in : office, Defendants. : DEFENDANT KATHLEEN KANES MOTION TO DISMISS THE COMPLAINT AGAINST HER Pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, Attorney General Kathleen Kane, by her counsel, moves this Court to dismiss all claims against her because plaintiffs lack standing to assert the claims against the Attorney General and because plaintiffs have failed to allege any involvement by the Attorney General in the violation of their rights. The Attorney General refers this court to her brief in support of this motion, which she incorporates by reference herein, and is being filed simultaneously with this motion.

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WHEREFORE, Attorney General Kane moves this Honorable Court to grant her Motion and dismiss the claims against her, with prejudice. Respectfully submitted, KATHLEEN G. KANE Attorney General By: Office of Attorney General 15th Floor, Strawberry Square Harrisburg, PA 17120 Phone: (717) 787-1179 Fax: (717) 772-4526 mgiunta@attorneygeneral.gov Date: December 9, 2013 s/ M. Abbegael Giunta M. ABBEGAEL GIUNTA Deputy Attorney General Attorney ID 94059 GREGORY R. NEUHAUSER Chief Deputy Attorney General Chief, Civil Litigation Section 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 COREBETT, in his official : capacity as Governor of Pennsylvania, : Electronically Filed Document : and his successors in office; and : KATHLEEN KANE, in her official : capacity as Attorney General of : Pennsylvania, and her successors in : office, Defendants. : CERTIFICATE OF SERVICE I, M. Abbegael Giunta, Deputy Attorney General for the Commonwealth of Pennsylvania, Office of Attorney General, hereby certify that on December 9, 2013, I caused to be served a true and correct copy of the foregoing document titled DEFENDANT KATHLEEN KANES MOTION TO DISMISS THE CLAIMS AGAINST HER to the following: VIA ELECTRONIC FILING Michael L. Banks, Esquire Eric Kraeutler, Esquire Vanessa Renee Brown, Esquire Elisa P. McEnroe, Esquire Morgan Lewis & Bockius, LLP 1701 Market Street Philadelphia, PA 19103-2921 William H. Lamb, Esquire Joel L. Frank, Esquire Lamb McErlane, PC 24 East Market St. P.O. Box 565 West Chester, PA 19381 wlamb@lambmcerlane.com
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mbanks@morganlewis.com ekraeutler@morganlewis.com vbrown@morganlewis.com emcenroe@morganlewis.com Counsel for Plaintiffs Benjamin L. Jerner, Esquire Jerner & Palmer, PC 5401 Wissahickon Avenue Philadelphia, PA 19144 bjerner@jplaw.com Counsel for Plaintiffs

jfrank@lambmcerlane.com Counsel for Defendant Corbett

s/ M. Abbegael Giunta M. ABBEGAEL GIUNTA Deputy Attorney General

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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 COREBETT, in his official : capacity as Governor of Pennsylvania, : Electronically Filed Document : and his successors in office; and : KATHLEEN KANE, in her official : capacity as Attorney General of : Pennsylvania, and her successors in office, Defendants. : BRIEF IN SUPPORT OF ATTORNEY GENERAL KATHLEEN KANES MOTION TO DISMISS THE COMPLAINT AGAINST HER 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

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they assert violations of their right to travel, their right to due process and their right to equal protection. Defendants are Governor Thomas W. Corbett and Attorney General Kathleen Kane. Plaintiffs name Governor Corbett in his official capacity as the chief executive officer of Pennsylvania and cite his responsibility under the state constitution to faithfully execute the laws of Pennsylvania. Complaint 29. Plaintiffs also name Attorney General Kane in her official capacity and generally cite 204 of the Commonwealth Attorneys Act, 71 P.S. 732-204. Complaint 29. Plaintiffs seek a declaratory judgment that 23 Pa.C.S. 1704 violates the Constitution and a permanent injunction requiring defendants to recognize plaintiffs marriage. Complaint, Prayer for Relief, pp. 22-23. Plaintiffs also request costs, attorneys fees and such other relief as the Court deems appropriate. Id. Defendant Kane has moved to dismiss the complaint for lack of jurisdiction and for failure to state a cause of action under Fed.R.Civ.P 12(b)(1) and (6). Defendant Kane submits this brief in support of her motion. II. FACTS The relevant facts set forth in the complaint are as follows. Pennsylvanias Marriage law, 23 Pa. C.S. 1101, et seq., governs marriage in the Commonwealth of Pennsylvania. In 1996, the General Assembly amended the law to define
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marriage as [a] civil contract by which one man and one woman may take each other for husband and wife. 23 Pa. C.S. 1102. The amendment also declared that definition to be the public policy of the Commonwealth, and it rendered samesex marriages entered into in other jurisdictions void in the Commonwealth. 23 Pa.C.S. 1704. Together, sections 1102 and 1704 currently prevent same sex couples from marrying in Pennsylvania, and prevent same sex marriages entered in other states from being acknowledged within the Commonwealth. Plaintiffs allege that they were married in Massachusetts and subsequently relocated to Pennsylvania. Complaint 3. As a result of Pennsylvanias refusal to recognize their marriage, they claim they have had to take numerous actions to protect themselves and their family that would not have been necessary if their marriage were considered valid. They claim they have had to engage attorneys to prepare estate and family planning documents to arrange for inheritance and succession. Compliant 18. To ensure that they can make decisions for each other in the event of sickness or infirmity they had powers of attorney, wills and letters of instruction drawn up. Complaint 19. They allege that when one of them bore a son, the Department of Health refused to list both plaintiffs as the parents and instead listed only the birth mother. Complaint 21. They then proceeded with a second parent adoption to ensure that the child would be legally recognized as the son of both of them. Complaint 20-21, 23. Finally, they claim they have had to
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submit documents regarding their partnership and parentage to secure benefits. Complaint 17, 24. Plaintiffs also generally assert that same-sex couples who were married in another state, cannot file joint state tax returns, cannot own property in joint tenancy by the entirety or inherit a spouses estate without being taxed. Complaint 36. They also allege that they are denied benefits under certain federal laws, Complaint 37, and they and their families are generally stigmatized and demeaned. Complaint 38-40. The Attorney General Although the Pennsylvania Constitution designates the Attorney General as the chief law officer of the Commonwealth, her duties are prescribed by the General Assembly in the Commonwealth Attorneys Act (Act). Pa. Const. art. 4, 4.1.; 71 P.S. 732-101et seq. Among the duties 204 of the Act gives the Attorney General is the responsibility to provide, upon request, legal advice to the Governor or the head of an executive agency, pertaining to the exercise of their official powers or the performance of their duties. 71 P.S. 732-204(a)(1). In providing this advice, the Attorney General must uphold and defend the constitutionality of all statutes so as to prevent their suspension or abrogation in the absence of a controlling decision by a court of competent jurisdiction. 71 P.S. 732-204(a)(3). Plaintiffs do not
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allege that the Governor or any head of a Commonwealth agency head has asked the Attorney General for such advice regarding the marriage law. The only other duty of the Attorney General under 204 that arguably relates to this matter is her responsibility to defend the Commonwealth and its agencies in civil litigation. 71 P.S. 732-204(c). She may, however, delegate that responsibility to the Governors General Counsel when she deems it to be in the best interest of the Commonwealth. Id. Separate counsel represents the Governor in this case by virtue of the Attorney Generals delegation of that responsibility. III. ARGUMENT A. Plaintiffs lack standing to assert their claims against the Attorney General because their alleged injuries are not traceable to her.

As the Supreme Court articulated in Sprint Commcns Co. v. AP-CC Servs., Inc., 554 U.S. 269, 273 (2008): Article III, 2 of the Constitution restricts the federal judicial Power to the resolution of Cases and Controversies. That caseor-controversy requirement is satisfied only where a plaintiff has standing. See also Common Cause of Pennsylvania v. Com. of Pennsylvania, 558 F.3d 249, 257-58 (3d Cir. 2009); Planned Parenthood of Central New Jersey v. Farmer, 220 F.3d 127, 146-47 (3d Cir. 2000). To establish standing, a plaintiff must show: (a) an injury in fact, (2) the injury is traceable to the defendants conduct, and (3) the requested relief is likely to redress the injury. Planned Parenthood, 220 F.3d at
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146-47. Absent Article III standing, a federal court does not have subject matter jurisdiction to address a plaintiffs claims, and they must be dismissed. Common Cause of Pennsylvania, 558 F.3d at 257 (quoting Taliaferro v. Darby Tp. Zoning Bd., 458 F.3d 181 (3d Cir. 2006)). While the standing requirements for issuing a declaratory judgment are not as stringent as the requirements for entering an injunction, not even declaratory relief is available where the threat of a defendants action is imaginary, speculative or chimerical. Steffel v. Thompson, 415 U.S. 452, 468-474 (1974). Basically the question in each case is whetherthere is a substantial controversy between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment. Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273 (1941). In this case, plaintiffs lack standing to bring their claims against the Attorney General because there is no substantial controversy between them of sufficient immediacy and reality to require the Court to exercise its jurisdiction over those claims. There is no question that plaintiffs challenging the constitutionality of a state statute may bring suit against the official who is charged with enforcing the statute, but only if that official has either enforced the statute or threatened to enforce it against the plaintiffs. 1st Westco v. School District of Philadelphia, 6 F.3d 108,
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113 (3d Cir. 1993)(citing Rode v. Dellarciprete, 845 F.2d 1195, 1209 N. 9 (3d Cir. 1988))(emphasis added). In this case, the Attorney General is neither charged with the enforcement of section 1704 of the marriage law, nor has she enforced or threatened to enforce it against the Plaintiffs. In their complaint, the Plaintiffs have not identified any specific involvement by the Attorney General in the enforcement of the challenged section of the marriage law, or the marriage law as a whole. Instead, they rely completely upon her general authority under the Commonwealth Attorneys Act. Although the Attorney General is the chief law officer of the Commonwealth, that does not amount to a general obligation to uphold the laws of the Commonwealth, nor is it sufficient to make her a proper defendant here. See 1st Westco Corp., 6 F.3d at 113 (General authority to enforce the laws of the state is not sufficient to make government officials the proper parties to litigation challenging the law.); Rode, 845 F.2d at 1208. There are state officials who have direct responsibility for enforcing the marriage law as it affects plaintiffs and who would be appropriate parties to this action. As plaintiffs themselves note, the Department of Health 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. In addition, the
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Department of Revenue 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. Thus both the Secretary of Health and the Secretary of Revenue are directly responsible for carrying out the law in ways that affect the plaintiffs and would be proper defendants to this action. The Attorney General does play some role in the resolution of tax disputes, but that role depends entirely on enforcement actions taken in the first instance by the Department of Revenue and is too speculative and remote to render her a proper party in this action. As the Attorney General acknowledged in comments made on WHYY in a July 16, 2013 radio broadcast, her office is responsible for handling tax appeals. http://whyy.org/cms/radiotimes/2013/07/16/same-sexmarriage-in-pennsylvania/. She also explained that she would defend such appeals, consistent with the provisions of the Marriage Law, if they came to her Office. Expressing such general views about her responsibilities, fall far short of threatening to enforce the statute against specific parties such as the plaintiffs. 1st Westco, 6 F.3d at114. Moreover, plaintiffs have not alleged that they have taken any tax appeal or that they intend to do so. Even if they had made such allegations, the Attorney Generals role in the process is contingent on the actions of other state officials
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who must enforce the law in the first instance. As previously mentioned the Secretary of Revenue must first settle or collect the taxes before any appeal can be taken. The appeal must then be reviewed by the Department and if it is not resolved at that point it proceeds to the Board of Finance and Revenue. 72 P.S. 7240, 9702-9704, 10003.1. The Attorney Generals responsibilities only come into play if and when an appeal proceeds to Commonwealth Court. 2Pa.C.S. 702; 42 Pa.C.S. 763; see also Pa.R.App.P. 1571. Thus her potential involvement in any tax appeal that plaintiffs may choose to file is too remote to make her a proper defendant here. In short, because the Secretary of Revenue and the Secretary of Health are more immediately involved in enforcing the marriage law as it affects these plaintiffs, there is no need for the Court to strain its jurisdiction retain the Attorney General as a party. See Rode, 845 F.2d at 1209 (recognizing there was no need to keep the Governor in the case where officials more immediately involved in enforcing challenged regulations were available as defendants). Accordingly the claims against the Attorney General should be dismissed.

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B.

Plaintiffs have failed to state a claim against Attorney General Kane pursuant to 42 U.S.C. 1983 because the Attorney General has had no involvement in the conduct alleged to have violated Plaintiffs rights that forms the basis of the complaint.

Liability under 1983 may only be based upon a state actors involvement in conduct which violates a plaintiffs federally protected rights. Hampton v. Holmesburg Prison Officials, 546 F.2d 1077, 1082 (3d Cir.1976). To state a claim under 1983, the complaint must contain allegations that the defendant actually participated in or had actual knowledge of or acquiesced in actions proscribed by federal law which form the basis of the complaint. Rode at 1207. Liability cannot be imposed on the basis of respondeat superior or the position of the state actor. Parratt v. Taylor, 451 U.S. 527, 537 n.3 (1981). Allegations of personal involvement must be made with particularity. Rode at 1207. In this matter, Plaintiffs have failed to allege that the Attorney General personally directed the applications of the marriage law that are the bases of plaintiffs complaint or that she had actual knowledge of the violations at the time they occurred and acquiesced to them. The complaint is wholly without allegations as to any acts or omissions of the Attorney General in connection with the challenged section of the marriage law. It is clear that the Plaintiffs have named the Attorney General purely due to her position as a state actor. As argued above, the Attorney Generals general duties as chief law officer of the
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Commonwealth are insufficient to make her a proper defendant in this case. Rode at 1208. Accordingly, the claims against Attorney General Kane should be dismissed. IV. CONCLUSION For the reasons enumerated above, Defendant Kathleen Kanes motion to dismiss all claims against her should be granted. Respectfully submitted, KATHLEEN G. KANE Attorney General By: Office of Attorney General 15th Floor, Strawberry Square Harrisburg, PA 17120 Phone: (717) 787-1179 Fax: (717) 772-4526 mgiunta@attorneygeneral.gov Date: December 9, 2013 s/ M. Abbegael Giunta M. ABBEGAEL GIUNTA Deputy Attorney General Attorney ID 94059 GREGORY R. NEUHAUSER Chief Deputy Attorney General Chief, Civil Litigation Section Counsel for Defendant Kane

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