Case 3:13-cv-24068 Document 100 Filed 03/14/14 Page 1 of 7 PageID #: 3713

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA Huntington Division 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. REPLY TO PLAINTIFFS COMBINED OPPOSITION TO DEFENDANTS CROSSMOTIONS FOR SUMMARY JUDGMENT Defendants Karen S. Cole, by counsel, Jenkins Fenstermaker, PLLC, Lee Murray Hall and Sarah A. Walling, and Defendant Vera J. McCormick, by counsel, Bailey & Wyant, PLLC, Charles R. Bailey and Michael W. Taylor, jointly reply to Plaintiffs Combined Opposition to Defendants Cross-Motions for Summary Judgment as follows: ARGUMENT I. A. This Court Cannot Afford Plaintiffs Complete Relief. Any Order Entered By This Court Is Not Binding Statewide. As discussed at length in Defendant Clerks Joint Response to Plaintiffs Memorandum of Law in Response to Courts Order of January 29, 2014, Ms. Cole and Ms. McCormick lack privity with the State, and cannot represent the States interest in this action. Therefore, any Order entered by this Court would enjoin only Ms. Cole and Ms. McCormick from following 1 CIVIL ACTION NO. 3:13-cv-24068

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current, validly enacted West Virginia law. Plaintiffs assert that the proper remedy is simply to extend the coverage of the statute to include same-sex couples and insist that the Defendant Clerks can simply apply gender-neutral language to the marriage license forms. However, Plaintiffs must still obtain a judgment against an official in privity with the State to extend such coverage statewide or to require county clerks other than Ms. Cole and Ms. McCormick to interpret the marriage license forms as containing gender-neutral language. Although Plaintiffs insist that this Court may afford statewide relief despite their failure to join parties that would render such relief binding on parties other than Ms. Cole and Ms. McCormick, they do not cite to any case law that directly supports this proposition. In fact, the cases cited by Plaintiffs are thoroughly distinguishable from the present case either they were filed in state court, named at least one state-level official as a defendant to render the judgment binding statewide, or sought relief for a class of plaintiffs who all resided in the same county. First, in Varnum v. Brian, 763 N.W.2d 862 (Iowa 2009), the plaintiffs filed suit against the County Registrar and County Recorder of Polk County, Iowa in the Polk County District Court. Varnum was appealed to the Supreme Court of Iowa to allow the state supreme court to interpret state law. Likewise, in Griego v. Oliver, 316 P.3d 865 (N.M. 2013), the plaintiffs filed suit against the Clerk of Bernalillo County, New Mexico and the Clerk of Santa Fe County, New Mexico, in the District Court of Bernalillo County. While Defendant Clerks believe that the Legislature is the proper forum to debate and potentially revise West Virginias marriage statutes, Defendant Clerks do not dispute that the West Virginia Supreme Court of Appeals could interpret the existing provisions and enter an order that would bind the Clerks of all West Virginia counties (assuming all the proper parties are in the case). Defendant Clerks have

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consistently maintained throughout this case that West Virginia state courts have proper jurisdiction over this matter, and that abstention by this Court is proper. B. Plaintiffs Failed To Join Necessary Parties. Contrary to Plaintiffs assertion, Defendant Clerks do not attempt to hide behind the State Registrars supervisory power. Instead, Defendant Clerks argued in their Memorandum in Support of Motion for Summary Judgment that Plaintiffs failed to join parties specifically the State Registrar and/or the Secretary of State necessary to afford Plaintiffs complete relief. The cases cited by Plaintiffs in their Combined Reply in Support of Plaintiffs Motion for Summary Judgment and Opposition to Defendants Cross-Motions for Summary Judgment support Defendant Clerks position that joinder of a state-level official is necessary. For example, in Bostic v. Rainey, 2014 WL 561978 (E.D.Va. 2014), the plaintiffs joined the Virginia State Registrar of Vital Records as a defendant. In Perry v. Schwarzenegger, 704 F. Supp.2d 921 (N.D.Cal. 2010), the plaintiffs named the Governor of California, the California Attorney General, and the State Registrar of Vital Statistics as defendants in addition to the County Clerk for the County of Los Angeles. As Plaintiffs correctly stated, Lee v. Orr, Civil Action No. 1:13-cv-08719, named only a county clerk as a defendant. However, in Orr, all of the named Plaintiffs (and presumably all members of the Plaintiff Class, who the Complaint described as similarly situated) were residents of Cook County, Illinois. The plaintiffs in Lee filed suit against the County Clerk of Cook County, seeking to expedite the effective date of a law already passed by the Illinois legislature permitting same-sex couples to marry. Plaintiffs were not asking the district court in Lee to overturn existing, unaltered Illinois law, but merely asked the court to declare unconstitutional Illinois prior prohibition on same-sex marriage to allow terminally ill Cook

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County residents to marry a person of the same sex prior to the statutory effective date for new legislation. Furthermore, Plaintiffs statement that Defendant Clerks asserted a defense based upon supervision by the Registrar or Secretary of State mischaracterizes the arguments presented by Defendant Clerks in their Cross Motion for Summary Judgment. As discussed in the States Reply Supporting its Motion to Dismiss for Lack of Subject-Matter Jurisdiction, the State Registrar and the Secretary of State do not supervise Defendant Clerks with respect to creation of marriage forms or regulation of state-authorized marriage celebrants. The Registrar and the Secretary of State are wholly and independently responsible, respectively, for the creation of the marriage license application and the regulation of marriage celebrants. They do not supervise Defendant Clerks, as Defendant Clerks play no role in this process. Defendant Clerks have never claimed that they were just following marching orders. Rather, Defendant Clerks argued that their Oaths of Office bind them to follow valid, currently existing West Virginia law. West Virginia statutes subject them to fines, removal from office, and incarceration for failure to do so, and Defendant Clerks should not be faced with a decision to break that oath and be subjected to penalties or face the threat of civil suit, particularly where they lack any discretion to change the law or even to revise the state-mandated forms they must use. Plaintiffs rely upon Kennedy v. City of Cincinnati in their Combined Reply in Support of Plaintiffs Motion for Summary Judgment and Opposition to Defendants Cross-Motions for Summary Judgment. 595 F.3d 327 (6th Cir. 2010). In Kennedy, the Sixth Circuit held that a defendant police officer was not immune from liability where he followed his supervisors orders and removed an individual from a public place without reasonable suspicion that he planned to

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commit a crime. However, Plaintiffs reliance on Kennedy ignores the second prong of the Sixth Circuits analysis. The Court stated that after a plaintiff establishes violation of a constitutional right, a court must consider whether that right was clearly established, which generally, although not always, requires a finding of binding precedent by the Supreme Court, its court of appeals or [the district court]. Id. In Kennedy, the Court found that any competent

government official should have recognized that removal of the plaintiff from a public place violated his constitutional rights. Here, the Defendant Clerks maintain that they did not violate Plaintiffs constitutional rights. However, even if this Court determines that a constitutional violation did occur, unlike in Kennedy the Defendant Clerks did not violate a clearly established constitutional right that any competent government official should have recognized, as evidenced by the plethora of cases filed across the country, the defense of state marriage laws by state attorney generals and other officials, and the extensive public debate regarding same-sex marriage. II. Joinder In Defendant-Intervenors Joint Reply Supporting Motions for Summary Judgment The West Virginia Attorney Generals Office filed Defendants and DefendantIntervenors Joint Reply Supporting Their Motions for Summary Judgment. Ms. Cole and Ms. McCormick defer to the Attorney General, as the States counsel, in articulating the constitutionality of the challenged statutes and the rational bases supporting those statutes. Ms. Cole and Ms. McCormick hereby join in, adopt, and incorporate by reference the discussions set forth in the Attorney Generals Defendants and Defendant-Intervenors Joint Reply Supporting Their Motions for Summary Judgment.

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CONCLUSION As set forth in Defendant Clerks Response to Plaintiffs Motion for Summary Judgment and Cross-Motion for Summary Judgment and as discussed above, no genuine issue of material fact exists as to Defendant Clerks liability in this matter. Defendant Clerks followed current, validly enacted West Virginia law, as they are required to do by statute and by their Oaths of Office. Furthermore, this Court cannot afford Plaintiffs complete relief in this matter, as

Plaintiffs refuse to join parties necessary for entry of an Order that will bind any parties other than Ms. Cole and Ms. McCormick. Ms. Cole and Ms. McCormick therefore respectfully request that this Court enter an Order denying Plaintiffs Motion for Summary Judgment and grant Ms. Cole and Ms. McCormicks Joint Motion for Summary Judgment. Respectfully submitted,

DEFENDANT KAREN S. COLE By counsel /s/ Lee Murray Hall____________________ Lee Murray Hall, Esquire (WVSB # 6447) Sarah A. Walling, Esquire (WVSB #11407) JENKINS FENSTERMAKER, PLLC Post Office Box 2688 Huntington, WV 25726-2688 Telephone: (304) 523-2100 Fax: (304) 523-2347 lmh@jenkinsfenstermaker.com saw@jenkinsfenstermaker.com

DEFENDANT VERA J. MCCORMICK By counsel

/s/ Charles R. Bailey ____________ Charles R. Bailey (WV Bar #0202) Michael W. Taylor (WV Bar #11715) BAILEY & WYANT, PLLC 6

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500 Virginia Street, East, Suite 600 Post Office Box 3710 Charleston, West Virginia 25337-3710 T: 304.345.4222 F: 304.343.3133 cbailey@baileywyant.com mtaylor@baileywyant.com

Case 3:13-cv-24068 Document 100-1 Filed 03/14/14 Page 1 of 2 PageID #: 3720

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA Huntington Division 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. CERTIFICATE OF SERVICE I, Sarah A. Walling, certify that on March 14, 2014, I electronically filed the Reply to Plaintiffs Combined Opposition to Defendants Cross-Motions for Summary Judgment by using the CM/ECF system, which will send notification of such filing to the participants listed below: John H. Tinney, Jr., Esq. Heather Foster Kittredge, Esq. Tinney Law Firm, PLLC P.O. Box 3752 Charleston, West Virginia 25311 Telephone: (304) 720-3310 Counsel for Plaintiffs Elizabeth L. Littrell, Esq. LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. 730 Peachtree Street N.E. Suite 1070 Atlanta, GA 30308-1210 Counsel for Plaintiffs CIVIL ACTION NO. 3:13-cv-24068

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Karen L. Loewy, Esq. Camilla B. Taylor, Esq. LAMBDA LEGAL DEFENSE AND EDUCATION LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC. FUND, INC. th 120 Wall Street, 19 Floor 105 West Adams, 26th Floor New York, New York 10005-3904 Chicago, IL 60603-6208 Counsel for Plaintiffs Counsel for Plaintiffs

Paul M. Smith, Esq. (pro hac vice pending) Luke C. Platzer, Esq. ((pro hac vice pending) Lindsay C. Harrison, Esq. (pro hac vice pending) R. Trent McCotter, Esq. (pro hac vice pending) 1099 New York Avenue, NW Suite 900 Washington, D.C. 20001-4412 Counsel for Plaintiffs

Charles R. Bailey, Esq. Michael W. Taylor, Esq. Bailey & Wyant, PLLC 500 Virginia Street, East, Suite 600 P.O. Box 3710 Charleston, WV 25337-3710 Counsel for Defendant Vera J. McCormick

Elbert Lin, Esq. Julie Ann Warren, Esq. Assistant Attorney General Office of the Attorney General State Capitol Building 1, Room E-26 Charleston, WV 25305

/s/ Sarah A. Walling _______________ Lee Murray Hall, Esquire (WVSB # 6447) Sarah A. Walling, Esquire (WVSB #11407) JENKINS FENSTERMAKER, PLLC Post Office Box 2688 Huntington, WV 25726-2688 Telephone: (304) 523-2100 Fax: (304) 523-2347