County to state: dis­miss law­suit

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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.”

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