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Friday, June 27, 2014

Ind. Gov't. - Some observations about carrying out Judge Young's orders [Updated at 5:11 PM]

In this June 25th post, the ILB quoted the end of federal Judge Young's order in Baskin. Let's take another look at it, now that a few days have gone by:

Specifically, this permanent injunction requires the following, and the court ORDERS the following:

1. The Defendant Clerks, their officers, agents, servants, employees and attorneys, and all those acting in concert with them, are PERMANENTLY ENJOINED from denying a marriage license to a couple because both applicants for the license are the same sex. Thus they must act pursuant to their authority under Indiana Code Chapter 31-11-4 and issue marriage licenses to couples who, but for their sex, satisfy all the requirements to marry under Indiana law;

2. The Attorney General, Greg Zoeller, his officers, agents, servants, employees and attorneys, and all those acting in concert with them, are PERMANENTLY ENJOINED from prosecuting or assisting in the prosecution, using his authority from Indiana Code § 4-6-1-6, of the following:

a. same-sex couples who fill out the current marriage license application where the spaces provided only allow for a male and female (Ind. Code §§ 31-11-11-1 and 31-11-11-3),

b. clerks who grant the marriage licenses to qualified same-sex couples (Ind. Code § 31-11-11-4), or

c. those who choose to solemnize same-sex marriages (Ind. Code §§ 31- 11-11-5 and 31-11-11-7).

3. William C. Vanness II, M.D., the Commissioner of the Indiana State Department of Health, his officers, agents, servants, employees and attorneys, and all those acting in concert with them, are PERMANENTLY ENJOINED to:
a. Act pursuant to their authority under Indiana Code § 16-37-1 to change the death certificate form to allow for same-sex spouses,

b. Act pursuant to their authority under Indiana Code § 16-37-3 to issue death certificates listing same-sex spouses, and

c. Act pursuant to their authority under Indiana Code § 31-11-4-4 to revise the marriage license application to allow for same-sex applicants.

4. The Commissioner of the Indiana State Department of Revenue, his officers, agents, servants, employees and attorneys, and all those acting in concert with them, are PERMANENTLY ENJOINED to exercise their authority under Indiana Code § 6-8.1-3 to revise the filing guidelines to allow and process joint tax returns for same-sex married couples as they do for opposite-sex married couples.

5. The Board of Trustees of the Indiana Public Retirement System and Steve Russo, the Executive Director of the Indiana Public Retirement System, and their officers, agents, servants, employees and attorneys, and all those acting in concert with them, are PERMANENTLY ENJOINED to administer the Pension Fund pursuant to Indiana Code Chapters 5-10.5-3, 5-10.5-4, and 5- 10.5-6, so as to provide the same benefits for all married couples, regardless of whether the couples are of the opposite sex or the same sex.

This Order does not apply to Governor Pence, who the court found was not a proper party. This Order takes effect on the 25th day of June 2014.

[Bold emphasis by ILB]

Who are the defendants captioned in the three cases which were the subject of Wednesday's ruling?

Taking the items in Judge Young's order one by one:
#1 applies specifically to the clerks of the fivecounties named in the lawsuits, Boone, Porter, Lake, Hamilton and Allen. They are specifically ordered to issue marriage licenses to same-sex applications.

#2 applies to Zoeller, he is not to prosecute clerks, same-sex couples, or those who officiate at same-sex weddings. This order does not apply just to the five named counties.

#3 applies to the state health commissioner, who is appointed by the governor. The commissioner is to adapt the death certificates to take into account same-sex marriage. The commissioner is also to revise the marriage license application to allow for same-sex applicants.

#4 applies to the revenue commissioner, who is appointed by the governor. The revenue commissioner is to revise the tax filing guidelines to allow and process joint tax returns for same-sex married couples as they do for opposite-sex married couples.

#5 applies to the heads of the retirement boards, who are appointed by the governor, and requires them to provide the same benefits for all married couples, regardless of whether the couples are of the opposite sex or the same sex.

So it is odd to the ILB that the governor was dismissed as a party to the law suits, since it is the governor who heads the executive branch and it is the governor who is responsible for seeing that Indiana's laws are properly executed. The governor did take ownership of these obligations yesterday in his memorandum to the state agencies detailing their responsibilities in implementing Judge Young's order.

Also notable is that the order specifically directs the health commissioner, whose responsibility under IC 31-11-4-4(c) is to:

develop uniform forms for applications for marriage licenses. The state department of health shall furnish these forms to the circuit court clerks. The state department of health may periodically revise these forms.
"... to revise the marriage license application to allow for same-sex applicants."

Many news stories have reported that the clerks have had difficulties getting revised forms. But according to the order, these forms are the responsibility of the state department of health, which is in turn responsible to the governor.

Further confusing the matter, however, is that despite the statute, somehow the court's JTAC project and the state library have become involved in the marriage license process. From a webpage on the court's JTAC site:

Marriage License E-File System Overview

The Judicial Technology and Automation Committee (JTAC), Indiana State Department of Health (ISDH) and Indiana State Library have automated the process for issuing Marriage Licenses at local Circuit Court Clerks' offices. The goal is to collect all the information required just one time and store records electronically so information is easy to retrieve and transmit for state agencies as required by Indiana Code. The database is also searchable.

Every year, about 45,000 couples marry in Indiana and each must go to the clerk’s office for a license. When the project began, the bride’s and groom’s names were each handwritten three times in a cumbersome, paper record book. That means names were written 270,000 times a year, equal to one name being written every other minute, every day of the year. That doesn’t include the time it took to enter the records into ISDH or ISL databases.

The Marriage License E-file System is a web-based application available free of charge through JTAC’s secure extranet, INcite (Indiana Court Information Technology Extranet). Clerks use the system to automate and expedite functions previously done by hand. As of Spring 2013, 88 counties were using the system and had issued nearly 120,000 marriage licenses, which accounts for more than 93% of all marriage licenses issued in Indiana.

The electronic Marriage License Application captures the information entered by the Clerk, who then prints an application for the couple to sign, attesting to the accuracy of the personal information. A Marriage License form for the Officiant to sign upon solemnization is also created. The officiant simply returns the license after the ceremony, and the clerk electronically enters the officiant’s information, date and location of the marriage. Benefits of the System

The new system gives clerks the ability to print a marriage license directly from the web-based system, eliminating the need to purchase costly paper record books.

Wrapping up, we have been faced this week with a question of who is running the show with respect to marriage licenses. It looks like in practice it is the court's JTAC technology, not the county clerks, and not the state health department. But the federal court's order "to revise the marriage license application to allow for same-sex applicants" is directed at who is statutorily responsible, and that is the state health department.

[Updated at 5:11 PM] Charles Wilson of the AP has just posted a story headed "Some Indiana counties not issuing gay marriage licenses because of gender wording on form." A few quotes:

INDIANAPOLIS — A handful of county clerks across Indiana weren't issuing marriage licenses to gay couples Friday, two days after a federal judge struck down the state's prohibition on same-sex unions.

Some were holding off, mostly because of the wording of the state's online application form, which is printed out and used by most clerks. The form posted at the state courts website uses the words "male" and "female" and "bride" and "groom," and some clerks were wary of altering that wording.

Janet Chadwell, clerk of Decatur County in southeastern Indiana, said her county attorney advised her that changing the form would be perjury.

"If I change it, then I'm altering the state form," Chadwell said.

In Marion County, the home of Indianapolis, officials at the clerk's office chose to cross out "bride" and "groom" on the printed form and substitute "spouse" and "spouse."

"I believe my job is to comply with the law and I also believe strongly that this is the right thing to do," Marion County Clerk Beth White said. * * *

But some clerks seemed confused about where to turn for advice. On the day of the ruling, the state attorney general's office urged clerks to respect the court order. But when the online form wasn't changed, some clerks asked the Indiana Supreme Court Division of State Court Administration what to do, since the form appears on the state courts website.

Supreme Court spokeswoman Kathryn Dolan said the forms were posted in collaboration with the Indiana State Department of Health, which was faced with the dilemma. State courts officials told clerks to consult their county attorneys.

Officials at the health department were working to change the online form to comply with Young's order, spokesman Ken Severson said Friday.

"I don't have a time line on when that will be done," he said.

Posted by Marcia Oddi on June 27, 2014 03:30 PM
Posted to Indiana Government