County to state: dismiss lawsuit
Lawyers for the county filed their response Aug. 19 to the state health department’s lawsuit against the register of wills in the issuance of same- sex marriage licenses.
Essentially, the 49- page document, authored by county First Assistant Solicitor Joshua Stein, asks the Commonwealth Court of Pennsylvania to dismiss the lawsuit filed by the Pennsylvania Department of Health or at least file the lawsuit in the right court.
The response was due a week from the health department’s issuance of its own brief, which seeks relief from the court in the form of a writ of mandamus. Calling Register of Wills and Clerk of the Orphan’s Court D. Bruce Hanes’ actions the spurring of “administrative legal chaos,” the health department’s petition asks the court to compel Hanes and his office to “cease and desist” from defying a state mandate by issuing marriage certificates to same- sex couples.
Under Pennsylvania law, a marriage is constituted as a civil contract between one man and one woman. By close of business Aug. 19, 137 same- sex marriage licenses had been issued by the county.
But the solicitor’s office, on behalf of Hanes and the county, is asking the court to dismiss the case altogether, based on several propositions. Among them, the county argues that the suit was filed outside of its judicial jurisdiction. The brief claims “there is no appellate matter pending before this court to which the instant matter is ancillary,” and contends that the matter should be heard before the state Su-
preme Court, rather than the Commonwealth Court. It also alleges the health department has not met its burden, nor does it have proper standing to seek a writ of mandamus.
The solicitor calls the Pennsylvania Defense of Marriage Act “arbitrary and suspect,” and cites more than 60 cases supporting the logic behind the county’s argument.
“Importantly, a plain reading of the procedure required prior to the issuance of a marriage license reveals the reality that the issuance is not merely ministerial,” the brief reads.
“Prior to the issuance of a marriage license, Respondent [Hanes] conducts an oral examination of the applicants, uses his discretionary judgment and interpretation of the marriage laws to make an independent determination as to whether any legal impediment exists to the marriage, and, as the [health] department so aptly points out in its petition, insures proper consideration of the application for the marriage license prior to issuance.”
Hanes has all along contested that he is breaking no law by issuing the licenses, but that the U. S. and Pennsylvania constitutions trump the DOMA statute in affording equal rights for all citizens.
In its legal brief filed last week, the health department contended that the only branch of government having the power to declare a law unconstitutional is the judiciary.
But Stein argued that Hanes — acting in his capacity as the clerk of the Orphan’s Court — is a judicial agency. He cited the federal case Bell v. Manspeaker, wherein a federal clerk of court “sometimes must exercise judgment that is functionally comparable to those of judges, because they, too, exer- cise discretionary judgment as part of their function.”
“The Respondent is not merely a rubber stamp, handing out forms and issuing licenses as a matter of course,” the brief reads.
“Instead, he must carefully weigh all of the evidence presented to him upon receipt of the application and only after proper consideration, issue a marriage license ... This is the essence of a judicial act and in the performance of a judicial act, the Respondent is a judicial officer of an inferior court, therefore jurisdiction lies with the Supreme Court of this commonwealth.”