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Wednesday, August 20, 2014

Ind. Gov't. - State's response to the Love plaintiffs' motion for reconsideration

Federal Judge Richard Young has not yet ruled on the motion for reconsideration of the order of dismissal filed by plaintiffs in Love v. Pence, which the ILB discussed in detail here on July 28th.

However, the defendant in the lawsuit, Governor Pence, though his counsel, the Indiana Attorney General's office, did on August 8th file a memorandum in opposition to the motion for reconsideration. Here are some quotes, which have added interest in light of Judge Young's ruling yesterday in Bowling v. Pence:

Defendant Michael Pence, in his official capacity as Governor of the State of Indiana, submits this memorandum in opposition to the Plaintiffs’ Motion for Reconsideration of Order Dismissing. Plaintiffs allege that the Governor “made misrepresentations” about his authority to enforce Indiana’s traditional marriage definition based on two memoranda sent by the Governor’s general counsel in the wake of this Court’s ruling in Baskin v. Bogan, No. 1:14-cv- 355-RLY-TAB, Fujii v. Commissioner, No. 1:14-cv-404-RLY-TAB, and Lee v. Abbott, 1:14-cv- 406-RLY-MJD. These memoranda, however, do not demonstrate any additional authority of the Governor to enforce Indiana Code § 31-11-1-1.

As this Court recognized in its order of dismissal, the Governor’s authority is welldefined “in the Constitution, statutes, and regulations of the State of Indiana[,]” and Plaintiffs’ asserted injuries are not fairly traceable to the Governor’s actions and cannot be redressed by the Governor. Entry on Defs.’ Mot. to Dismiss at 7 [Doc. No. 32] (hereafter, “MTD Entry”). Accordingly, Article III does not grant this Court subject matter jurisdiction over this case, and e-mails from the Governor’s general counsel do not prove otherwise. * * *

The memoranda represent precisely the sort of statements that federal courts should expect Governors to make to agencies under their purview when any state law is declared invalid: respect the court’s decision, do not thwart the rule of law, and do not take actions rendering you susceptible to charges of contempt. Providing such basic advice is not the same as enforcing the statute at issue. See MTD Entry at 6 (citing Hearne v. Bd. of Educ. of City of Chicago, 185 F.3d 770 (7th Cir. 1999) (“[T]he governor has no role to play in the enforcement of the challenged statutes, nor does the governor have the power to nullify the legislation once it has entered into force.”). Declaring that statements such as this can render a governor susceptible to federal lawsuits would likely chill similar guidance in the future.

Because the Governor’s inability to enforce Indiana Code Section 31-11-1-1 or redress Plaintiffs’ injuries remains unchanged by the memoranda, the Court should deny Plaintiffs’ motion.

Plaintiffs have never established that the Governor has any “connection” with enforcement of the traditional marriage definition, and Mr. Ahearn’s e-mails do nothing to change that. Without any actual enforcement authority on the Governor’s part, this suit is merely an attempt to circumvent the Eleventh Amendment and sue the State of Indiana without its consent.

Posted by Marcia Oddi on August 20, 2014 11:42 AM
Posted to Indiana Government