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Tuesday, August 19, 2014

Ind. Decisions - How does today's ruling by Judge Young impact his dismissal of Love v. Pence? (Or, Governor scolded by Judge) [Corrected]

How does today's ruling by Judge Young impact his dismissal of Love v. Pence?

On July 28th the ILB wrote at length about the plaintiffs in Love v. Pence' motion for reconsideration of the order of dismissal with the federal district court. In his June 25th ruling in Baskin, J. Young wrote:

Governor Pence is sued in the Fujii and Lee cases. As the court found in Love v. Pence, another case challenging the constitutionality of Section 31-11-1-1, the Governor is not a proper party because the Plaintiffs’ injuries are not fairly traceable to him and cannot be redressed by him. (Love v. Pence, No. 4:14-cv-15-RLY-TAB, Filing No. 32 (S.D. Ind. June 24, 2014). Therefore, the court GRANTS the Governor’s motions for summary judgment (Fujii Filing No. 44) (Lee Filing No. 41).
In Love, Governor Pence was the only defendant, so the lawsuit was dismissed.

As the July 28th ILB post details, in their motion for reconsideration the plaintiffs quote at length from two memos from Governor Pence, the first ordering the state agencies to comply with the Baskin ruling, and then, when it was stayed, a second memo ordering the agencies “to execute their functions as though the U.S. District Court Order of June 25, 2014 had not been issued.” The Love plaintiffs' argument that the Governor therefore does have authority to enforce the marriage law is quite convincing.

It appears that Judge Young thinks so too
, although he has not yet (as far as I am aware) issued a ruling in the Love plaintiffs' motion to reconsider. Here is some of what he wrote today in Bowling re Governor Pence as a proper party defendant, sometimes echoing the Love motion for reconsideration [ILB emphasis]:

The Governor has repeatedly represented to this court that he does not have “any authority to enforce, or other role respecting, Indiana Code Section 31-11-11-1.” (Defendants’ Memorandum in Support of Their Motion for Summary Judgment, Filing No. 26, at ECF p. 17). Based on this representation and an absence of statutory authority allowing the governor to issue executive decrees telling other elected officials how to do their jobs, the court previously granted summary judgment in favor of the Governor. See Baskin, 2014 WL 2884868 at * 4; see also Love v. Pence, No. 4:14-cv-15-RLY-TAB, 2014 WL 2884569. The court found that the general authority to enforce the laws was insufficient to show the governor was a proper party defendant. See Love, 2014 WL 2884569. Additionally, the court concluded that because the governor could not enforce Indiana’s marriage laws, he could not redress the Plaintiffs’ injuries. See id. Since that time, the Governor issued memoranda, through his attorney, and did what he claimed he could not do by directing executive agencies on how to proceed in enforcing the law. (See Memorandum from General Counsel to Governor Mike Pence, July 7, 2014 (hereinafter “July 7 Memorandum”), Plaintiffs’ Exhibit 10). In light of this bold misrepresentation, the court must now revisit the issue.

In the July 7 Memorandum sent to “all executive branch agencies,” the general counsel to the Governor expresses that he sent a memorandum on June 25, 2014 (“June 25 Memorandum”), the day of the court’s order, directing all executive branch agencies to comply with the decision. (July 7 Memorandum). The memorandum also notes that after the Seventh Circuit issued a stay of the court’s order, “the Governor’s general counsel instructed all executive branch agencies to stop any processes they had commenced in complying with the District Court order of June 25.” (Id. at ¶ 3). On July 7, 2014, the Governor sent a memo stating that “Indiana Code § 31-11-1-1 is in full force and effect and executive branch agencies are to execute their functions as though the U.S. District Court Order of June 25, 2014 had not been issued.” (Id.).


The memoranda issued by the Governor clearly contradict his prior representations to the court. The Governor can provide the parties with the requested relief as was evident by his initial memorandum on June 25, 2014, and he can enforce the statute to prevent recognition as evident by his correspondence on June 27 and July 7. Thus, the court finds that this case is distinguishable from the cases cited by Defendants because it is not based on the governor’s general duty to enforce the laws. It is based on his specific ability to command the executive branch regarding the law. Therefore, the court finds that the Governor can and does enforce Section 31-11-1-1(b) and can redress the harm caused to Plaintiffs in not having their marriage recognized. * * *

IX. Conclusion

* * * [T]he court, after witnessing the Governor do what he claimed he could not do, reverses course and finds him to be a proper party to such lawsuits. The court wishes to reiterate that it finds the Governor’s prior representations contradicting such authority to be, at a minimum, troubling.

ILB: The final paragraph, re the availability of the two memos at issue, has been deleted, as of 1:17 PM, 8/20/14.

Posted by Marcia Oddi on August 19, 2014 06:56 PM
Posted to Ind Fed D.Ct. Decisions