6:14-cv-04246-JMC

Date Filed 02/18/15

Entry Number 17

Page 1 of 3

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION

Judith Ann Haas (aka Judith Ann

Morales), Damari Indart (aka Damari
Crespo) and Brandon Lee Velez (aka
Brandon Lee Coleman),
Plaintiffs,
v.
South Carolina Department of Motor
Vehicles and Kevin Shwedo, in his
official capacity as Executive Director of
the South Carolina Department of Motor
Vehicles
Defendants.
_________________________________

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Civil Action No.

6:14-4246-JMC

DEFENDANTS MOTION FOR

SUMMARY JUDGMENT

Defendants South Carolina Department of Motor Vehicles and Kevin Shwedo, in his
official capacity as Executive Director of the South Carolina Department of Motor Vehicles,
comprising both or all Defendants, hereby move for summary judgment on the ground that a
policy change by the Department of Motor Vehicles has rendered moot the Plaintiffs claims for
declaratory and injunctive relief. In addition, the Eleventh Amendment bars Plaintiffs claims
against the Department of Motor Vehicles, and also bars Plaintiffs damage claims against both
Defendants.1

The Defendants acknowledge the decisions of this Court declaring unconstitutional South
Carolina law prohibiting same-sex marriages (Condon v. Haley, 21 F.Supp.3d 572 (D.S.C. Nov.
12, 2014)) and prohibiting recognition of same-sex marriages in other states (Bradacs v. Haley,
No. 3:13-CV-02351-JMC, 2014 WL 6473727(D.S.C. Nov. 18, 2014)). The Attorney General
has appealed those decisions, but the appeals have been consolidated and stayed pending a final

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The bases for this motion are set forth in the accompanying memorandum and
attachment, as well as all other documents and filings properly before the Court in this case, or
other matters of which the Court may take notice.
Because this is a dispositive motion, it is exempt from the consultation requirements of
Local Rule 7.02.

DAVIDSON & LINDEMANN, P.A.

BY: s/ Kenneth P. Woodington
WILLIAM H. DAVIDSON, II, Fed. I.D. No. 425
KENNETH P. WOODINGTON, Fed. I.D. No. 4741
DAVIDSON & LINDEMANN, P.A.
1611 DEVONSHIRE DRIVE, 2ND FLOOR
POST OFFICE BOX 8568
COLUMBIA, SOUTH CAROLINA 29202-8568
wdavidson@dml-law.com
kwoodington@dml-law.com
T: 803-806-8222
F: 803-806-8855
and
ALAN WILSON
Attorney General
Federal ID No.10457
ROBERT D. COOK
Solicitor General
Federal ID No. 285
Email: BCOOK@SCAG.GOV
J. EMORY SMITH, Jr.
Deputy Solicitor General
decision by the United States Supreme Court regarding the petitions for writ of certiorari in
Bourke v. Beshear from the Sixth Circuit Court of Appeals. Now that the Supreme Court has
granted certiorari in Bourke, it will decide the constitutional issues related to same-sex marriage
once and for all this Term. The Attorney General does not waive any defenses regarding those
suits or to any other challenge to South Carolina law.
2

6:14-cv-04246-JMC

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Entry Number 17

Federal ID No. 3908

Email: ESMITH@SCAG.GOV
Office of the Attorney General
Post Office Box 11549
Columbia, South Carolina 29211
Phone: (803) 734-3680
Fax: (803) 734-3677
ATTORNEYS for Defendants

Columbia, South Carolina

February 18, 2015

Page 3 of 3

6:14-cv-04246-JMC

Date Filed 02/18/15

Entry Number 17-1

Page 1 of 6

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION

Judith Ann Haas (aka Judith Ann

Morales), Damari Indart (aka Damari
Crespo) and Brandon Lee Velez (aka
Brandon Lee Coleman),
Plaintiffs,
v.
South Carolina Department of Motor
Vehicles and Kevin Shwedo, in his
official capacity as Executive Director of
the South Carolina Department of Motor
Vehicles
Defendants.
_________________________________

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Civil Action No.

6:14-4246-JMC
MEMORANDUM IN SUPPORT OF
DEFENDANTS MOTION FOR
SUMMARY JUDGMENT

Defendants South Carolina Department of Motor Vehicles and Kevin Shwedo, in his
official capacity as Executive Director of the South Carolina Department of Motor Vehicles,
comprising both or all Defendants, have moved for summary judgment on the grounds that
Plaintiffs claims for declaratory and injunctive relief are moot, and that the Eleventh
Amendment bars Plaintiffs damage claims against both Defendants.
FACTS
Plaintiffs, who are couples in same sex marriages performed in other states, allege that
the Defendants should have issued drivers licenses to them using their name of choice. On
November 20, 2014, DMV, in response to recent decisions of this Court and of the Fourth

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Entry Number 17-1

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Circuit and the Supreme Courts of South Carolina and the United States,1 revised its policy to
remove any impediment to the use of names of choice by partners in same sex marriages. Exhibit
1, attached. On the following day, two of the three Plaintiffs (Haas and Velez) applied to DMV
for a name change, and the change was made by DMV. The third Plaintiff, Damari Indart (aka
Damari Crespo), has not requested such a name change.2
ARGUMENT
1.

Plaintiffs claims for declaratory and injunctive relief are moot.

In light of the DMV policy change shown by Exhibit 1, there can be no doubt that
Plaintiffs claims for declaratory and injunctive relief are now moot. An action becomes moot
when the issues presented are no longer live or the parties lack a legally cognizable interest in
the outcome. Murphy v. Hunt, 455 U.S. 478, 481 (1982).
Now that DMV has changed its policy to permit the very thing that Plaintiffs desire, the
issues pertaining to declaratory and injunctive relief are obviously no longer live. Moreover,
agency policy, which was changed as a result of decisions of this Court, the Fourth Circuit and
the Supreme Courts of South Carolina and the United States (and not as a result of this lawsuit),
is unlikely to change unless and until there is a subsequent change in the law. Even if there
should later be a change in the law, however, DMV Director has stated in his attached affidavit
that DMV has concluded that even if the governing law were later to change, it would be
1

In chronological order, the cases are Condon v. Haley, 21 F.Supp.3d 572 (D.S.C. Nov. 12,
2014)(declaring South Carolina laws prohibiting same-sex marriages unconstitutional) and
Bradacs v. Haley, 2014 WL 6473727 (D.S.C. Nov. 18, 2014)(finding prohibitions
unconstitutional to the extent that they prohibit the recognition of valid same-sex marriages
entered in other states). On November 20, 2014, the stay in Condon was lifted, and the Supreme
Court of South Carolina in turn lifted an injunction against the licensing of same sex marriages
by Probate Judges.
2

These facts are reflected in DMVs records, and appear to be not reasonably subject to
contradiction. If, however, Plaintiffs seek to controvert these facts of the name changes that were
made or not made, copies of the DMV records will be supplied to the Court in reply.
2

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impossible for DMV to determine whether any particular drivers license issued prior to any such
decision contained a name used as a result of a same sex marriage. Exhibit 1, 5. Director
Shwedo has further averred that As a result, even if a court at some point in the future upholds
South Carolinas constitutional prohibition of marriage between persons of the same sex, DMV
will not seek to change the names that were on drivers licenses prior to any such court decision.
DMV also would not seek to change the names on those licenses in the event of a renewal of
those licenses. Id., 6.
It is well settled that public officials are trusted more than private actors not to return to
their old ways when they discontinue challenged conduct. National Advertising Co. v. City of
Miami, 402 F.3d 1329, 1333-1334 (11th Cir. 2005), cert. denied, 546 U.S. 1170 (2006)(quoting
13A Wright, Miller & Cooper, Federal Practice and Procedure 3533.7 (2d ed. 2004): Courts
are more apt to trust public officials than private defendants to desist from future violations.).
Accord, e.g., Doe v. Shalala, 122 F. Appx 600, 603 (4th Cir. 2004)(challenge to withdrawn
administrative policy dismissed as moot where there was no evidence suggesting that the
Government is likely to revive the policy that is the subject of this lawsuit).
In this case, Defendant Shwedo has unequivocally stated that the agency does not plan to
reinstate the former names of same-sex partners on drivers licenses, even if the law
subsequently changes, and that moreover, it would be impossible as a practical matter to try to do
so. Plaintiffs therefore cannot viably claim that there are any issues pertaining to declaratory or
injunctive relief that are still live and remaining to be decided.
2.

Plaintiffs claims against the Department of Motor Vehicles are barred by

the Eleventh Amendment.

It is well settled that the Eleventh Amendment prohibits federal courts from entertaining
suits brought against the states. See, e.g., Alabama v. Pugh, 438 U.S. 781, 782 (1978) (per
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curiam) (citations omitted); Hans v. Louisiana, 134 U.S. 1, 1011 (1890). It is also well
established that this immunity extends to any state instrumentality that is considered an arm of
the State. Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997). State agencies and
state instrumentalities share this immunity when they are the alter egos of the state. Id. As result,
there can be no question that all of Plaintiffs claims against the Department of Motor Vehicles
are barred by the Eleventh Amendment.
3.

Plaintiffs damage claims against Defendant Shwedo in his official capacity

are barred by the Eleventh Amendment.

Defendant Shwedo, the Executive Director of DMV, is sued only in his official capacity.
See Complaint, Par. 8. To the extent that damages are claimed from this Defendant in this
capacity, such claims are barred by the Eleventh Amendment. The law in this area was recently
summarized in a Report and Recommendation in this District, which was adopted by the District
Court:
[Plaintiff] asserts claims of civil conspiracy pursuant to 42 U.S.C. 1983
and 1985 seeking monetary relief against the individual defendants
only in their official capacities. However, the Eleventh Amendment
states that [t]he Judicial power of the United States shall not be
construed to extend to any suit in law or equity, commenced or
prosecuted against one of the United States by Citizens of another State,
or by Citizens or Subjects of any Foreign State. U.S. Const. amend. XI.
Sovereign immunity protects both the State itself and its agencies,
divisions, departments, officials, and other arms of the State. See Will
v. Michigan Dep't of State Police, 491 U.S. 58, 70, (1989); see also
Regents of the Univ. of California v. Doe, 519 U.S. 425, 429 (1997) (
[I]t has long been settled that the reference [in the Eleventh
Amendment] to actions against one of the United States' encompasses
not only actions in which a State is actually named as the defendant, but
also certain actions against state agents and state instrumentalities.). As
arms of the state, these defendants, who were all employees of state
agencies, are entitled to sovereign immunity and cannot constitute
persons under 1983 in that capacity. See Will, 491 U.S. at 7071. . . .
Accordingly, these defendants are immune from suit with regard to these
claims. See Will, 491 U.S. at 7071; see also Quern v. Jordan, 440 U.S.
332, 343, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979) (recognizing that
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Congress did not override the Eleventh Amendment when it created the
remedy found in 42 U.S.C. 1983 for civil rights violations). Therefore,
the individual defendants are entitled to summary judgment on these
claims.
Christian v. South Carolina Dept. of Labor, Licensing, and Regulation, 2014 WL 4954681, 7
(D.S.C. 2014)(emphasis added). For precisely the same reasons, the damage claims against
Defendant Shwedo should be dismissed.
CONCLUSION
For the foregoing reasons, the Defendants respectfully submit that this action should be
dismissed in its entirety.
Respectfully submitted,
DAVIDSON & LINDEMANN, P.A.
BY: s/ Kenneth P. Woodington
WILLIAM H. DAVIDSON, II, Fed. I.D. No. 425
KENNETH P. WOODINGTON, Fed. I.D. No. 4741
DAVIDSON & LINDEMANN, P.A.
1611 DEVONSHIRE DRIVE, 2ND FLOOR
POST OFFICE BOX 8568
COLUMBIA, SOUTH CAROLINA 29202-8568
wdavidson@dml-law.com
kwoodington@dml-law.com
T: 803-806-8222
F: 803-806-8855
and
ALAN WILSON
Attorney General
Federal ID No.10457
ROBERT D. COOK
Solicitor General
Federal ID No. 285
Email: BCOOK@SCAG.GOV
J. EMORY SMITH, Jr.
Deputy Solicitor General
5

6:14-cv-04246-JMC

Date Filed 02/18/15

Entry Number 17-1

Federal ID No. 3908

Email: ESMITH@SCAG.GOV
Office of the Attorney General
Post Office Box 11549
Columbia, South Carolina 29211
Phone: (803) 734-3680
Fax: (803) 734-3677
ATTORNEYS for Defendants

Columbia, South Carolina

February 18, 2015

Page 6 of 6

6:14-cv-04246-JMC

Date Filed 02/18/15

Entry Number 17-2

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C/A Number: 6:14-4246-JMC

Defendants Motion for Summary Judgment

Exhibit 1, Shwedo Affidavit

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Date Filed 02/18/15

Entry Number 17-2

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6:14-cv-04246-JMC

Date Filed 02/18/15

Entry Number 17-2

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