Case 4:14-cv-00015-RLY-TAB Document 1 Filed 03/07/14 Page 1 of 17 PageID #: 1

IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA NEW ALBANY DIVISION
ELECTRONICALLY FILED

MELISSA LOVE 5503 Sweetgum Trace Jeffersonville, IN 47130
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ERIN BROCK 5503 Sweetgum Trace Jeffersonville, IN 47130
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MICHAEL DRURY 1905 Coachman Drive New Albany, IN 47150
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LANE STUMLER 1905 Coachman Drive New Albany, IN 47150
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JO ANN DALE P.O. Box 100 8309 Old State Road 3 Otisco, IN 47163
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CAROL UEBELHOER P.O. Box 100 8309 Old State Road 3 Otisco, IN 47163
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CIVIL ACTION NO.

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4:14-CV-15

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JENNIFER REDMOND

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1107 Pennsylvania Ave.

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Jeffersonville, IN 47130

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JANA KOHORST

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1107 Pennsylvania Ave.

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Jeffersonville, IN 47130

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Plaintiffs

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v.

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MICHAEL RICHARD PENCE,

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in his official capacity as Governor

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of the State of Indiana

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Serve: Governor Michael Pence

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200 W. Washington Street

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Room 206

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Indianapolis, IN 46204

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Serve: Greg Zoeller

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Indiana Attorney General

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Indiana Government Center South )

302 W. Washington Street

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5th Floor

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Indianapolis, IN 46204

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Defendants

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COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF * * * * * * * * * * * * INTRODUCTION
Plaintiffs bring this action to challenge the constitutionality of Indiana’s laws refusing to issue marriage licenses to same-sex couples and voiding or

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otherwise refusing to recognize the marriages of same-sex couples entered in other states. In United States v. Windsor, 133 S. Ct. 2675 (2013), the United States Supreme Court held that withholding federal recognition and benefits from legally married same-sex couples, as required by Section 3 of the Defense of Marriage Act (DOMA), violates the federal constitutional guarantees of equal protection and due process. Plaintiffs seek to apply this holding, and/or the reasoning underlying it, to invalidate and enjoin the enforcement of Indiana's state statutory provision refusing to issue marriage licenses to same-sex couples, prohibiting recognition of legally married same-sex couples from other states, as well as Section 2 of DOMA, and any other relevant provision which would allow Indiana's continued refusal to respect Plaintiffs’ rights.
THE PARTIES 1. All Plaintiffs are residents of the state of Indiana. 2. Plaintiffs Melissa Love and Erin Brock are both females, and are an unmarried couple who are engaged to be married and wish to be lawfully wed in the state of Indiana. 3. Plaintiffs Michael Drury and Lane Stumler are both males, and are an unmarried couple who wish to be lawfully wed in the state of Indiana. 4. Plaintiffs Jo Ann Dale and Carol Uebelhoer are both females, and are a married couple, having lawfully wed in the Commonwealth of Massachusetts in 2008. 5. Plaintiffs Jennifer Redmond and Jana Kohorst are both females, and are a married couple, having lawfully wed in the state of New York in 2013.
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6. For purposes of this Complaint, the unmarried Plaintiffs shall be referred to as the “Love Plaintiffs,” and the married Plaintiffs shall be referred to as the “Dale Plaintiffs.”
7. Like other couples who have made a lifetime commitment to each other, the Dale Plaintiffs are spouses in every sense, except that their marriages are currently not recognized by the State of Indiana.
8. Similarly, the Love Plaintiffs are no different from other Indiana couples who wish to be married, except that Indiana will not allow them to be married because they are a same-sex couple.
9. All Plaintiffs seek either to be married or to have their legal marriages recognized in the State of Indiana in order to have the same legal protections afforded to legally married opposite-sex couples, including those who married in other jurisdictions.
DEFENDANTS 10. Defendant MICHAEL RICHARD PENCE is the Governor of the State of Indiana. In his official capacity, Gov. Pence is the chief executive officer of the State and is responsible for the faithful execution of the laws of the State of Indiana, including the laws that exclude same-sex couples from marrying or having their out-of-state marriages recognized. 11. Defendant is, and at all relevant times has been, acting under color of state law, and is sued in his official capacity. 12. By implementing and enforcing the statutes discussed below, Defendant has deprived, and continues to deprive, Plaintiffs of rights guaranteed by
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the United States Constitution. JURISDICTION AND VENUE
13. Plaintiffs bring this action under 42 U.S.C. §§ 1983 and 1988 to redress the deprivation, under color of state law, of rights secured by the United States Constitution.
14. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343. 15. This Court has the authority to enter a declaratory judgment and to provide preliminary and permanent injunctive relief pursuant to Rules 57 and 65 of the Federal Rules of Civil Procedure, and 28 U.S.C. §§ 2201 and 2202. 16. Venue is proper in this district pursuant to 28 U.S.C. §1391(b) because the Defendants have offices within the district, because Plaintiffs reside in this district, and because the Plaintiffs’ injuries occurred, continue to occur, and will occur, in this district.
STATUTORY PROVISIONS CHALLENGED 17. Indiana's statute banning same-sex marriages and voiding valid out of state same-sex marriages is IC 31-11-1-1, commonly referred to as "Indiana's Defense of Marriage Act," which provides: "(a) Only a female may marry a male. Only a male may marry a female. (b) A marriage between persons of the same gender is void in Indiana even if the marriage is lawful in the place where it is solemnized.” 18. IC 31-11-1-1 violates the United States Constitution, insofar as it denies same-sex couples the rights, privileges, responsibilities, and immunities extended to similarly situated opposite-sex couples.
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19. To the extent that the federal Defense of Marriage Act (DOMA), 28 U.S.C. 1738C § 2 (2000), authorizes discriminatory treatment of legally married same-sex couples, it is also unconstitutional.
20. Section 2 of DOMA provides: “No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.”
21. To the extent that any other Indiana or federal statute or regulation discriminates against same-sex couples’ marital rights, its constitutionality is challenged in this lawsuit.
22. Legally married same-sex couples such as the Dale Plaintiffs are similarly situated to legally married opposite-sex couples in all of the characteristics relevant to recognition of their legal marriages.
23. Unmarried same-sex couples such as the Love Plaintiffs are similarly situated to opposite-sex couples in all of the characteristics relevant to recognition of their right to marry and to be issued a marriage license by the state of Indiana.
24. Indiana has no rational, legitimate, or compelling state interest in treating same-sex couples any differently from opposite-sex couples.
25. Indiana has no rational, legitimate, or compelling state interest in enforcing the statutes challenged by Plaintiffs in this case.
26. The refusal to allow or recognize same-sex marriages does not
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further or serve any identifiable state interest in an adequately tailored manner. 27. IC 31-11-1-1 was motivated by a constitutionally impermissible
desire to harm a politically unpopular group. CLAIMS FOR RELIEF
DEPRIVATION OF DUE PROCESS 28. The Fourteenth Amendment to the United States Constitution, enforceable pursuant to 42 U.S.C. § 1983, provides that no state shall “deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. 29. The right to marry is a fundamental right under the U.S. Constitution, and is protected by the Due Process Clause. 30. Same-sex couples who wish to marry have a protected and fundamental liberty and/or property interest in the ability to marry and to have their marriages recognized by the state, and the state's refusal to allow them to lawfully marry deprives them of that protected interest. 31. Same-sex spouses who have entered into legal marriages have a protected liberty and/or property interest in their marital status, and the government's refusal to recognize their marital status impermissibly deprives legally married same-sex spouses of that protected interest. 32. Same-sex spouses who have entered into legal marriages in other jurisdictions have a reasonable expectation that they will continue to be protected by the rights and protections conferred by marriage when they relocate to another state.
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33. Same-sex couples have a protected property and/or liberty interest in their marital status and in the comprehensive network of legal protections that marriage provides, including the accrual of certain marital benefits over time.
34. The Due Process Clause also protects choices central to personal dignity and autonomy, including each individual’s rights to family integrity and association.
35. IC 31-11-1-1 and DOMA § 2 violate the due process guarantees of the Fifth and Fourteenth Amendments facially and/or as applied to Plaintiffs by infringing upon their right to marry and to have their marriages recognized in the State of Indiana.
36. In addition, IC 31-11-1-1 conflicts with portions of the Indiana Constitution, thereby depriving same-sex couples of rights otherwise granted to all Indiana citizens and thus depriving them of Due Process rights under both the state and federal constitutions.
37. For example, Article I, Section 23 of the Indiana Constitution guarantees that “The General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities which, upon the same terms, shall not equally belong to all citizens,” and this right is infringed upon by IC 31-11-1-1.
EQUAL PROTECTION 38. The Fourteenth Amendment to the United States Constitution, enforceable pursuant to 42 U.S.C. § 1983, provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1.
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39. The State of Indiana has no legitimate interest in discriminating against citizens on the basis of sexual orientation.
40. The State of Indiana has no legitimate interest in discriminating against citizens on the basis of sex.
41. There is no rational basis for the State of Indiana to treat same-sex couples differently from opposite-sex couples.
42. There is no rational basis for the State of Indiana to treat Indiana citizens differently based solely on their sexual orientation.
43. Sexual orientation bears no relation to a person's ability to perform in or contribute to society.
44. By mandating that “only a female may marry a male,” and “only a male may marry a female,” the State of Indiana engages in sex-based discrimination without a rational, legitimate, or compelling basis.
45. Same-sex couples have experienced a history of discrimination in the United States and in the State of Indiana.
46. Sexual orientation, including homosexuality, is an immutable trait. 47. Same-sex couples represent a small minority of the population, and thus lack the political power to protect their rights to equal treatment under the law. 48. The purpose of IC 31-11-1-1 and DOMA § 2 is to impose restrictions and disabilities on same-sex couples. 49. IC 31-11-1-1 and/or DOMA § 2 are motivated by a desire to harm a politically unpopular group. 50. IC 31-11-1-1 also serves the impermissible purpose of enforcing and
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perpetuating sex stereotypes by excluding Plaintiffs from marrying and being recognized as validly married because Plaintiffs have failed to conform to sex-based stereotypes that men should marry women, and women should marry men.
51. IC 31-11-1-1 and DOMA § 2 violate the equal protection guarantees of the Fourteenth Amendment facially and/or as applied to Plaintiffs by infringing their right to marry and to have their legal marriages recognized in the State of Indiana.
FREEDOM OF ASSOCIATION 52. The First Amendment to the United States Constitution, enforceable pursuant to 42 U.S.C. § 1983, ensures the right to freedom of association. 53. IC 31-11-1-1 and DOMA § 2 violate the freedom of association guarantees of the First Amendment facially and/or as applied to Plaintiffs by discriminating against them and penalizing them based solely upon the sex of the person they choose to marry, and/or their own sex and/or sexual orientation.
FULL FAITH AND CREDIT 54. Article IV, Section 1, of the United States Constitution provides, in pertinent part: "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.” 55. Issuance of a marriage license involves creating a "record" under the Full Faith and Credit Clause. 56. The State of Indiana's failure to recognize valid out-of-state marriages between same-sex couples violates the Full Faith and Credit Clause of the U.S. Constitution.
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57. Should any of the Plaintiffs obtain a divorce or other judgment pertinent to their lawful out-of-state marriage, the State of Indiana would refuse to honor or otherwise recognize those judgments, also in violation of the Full Faith and Credit Clause.
58. In fact, the Dale Plaintiffs presently do not have the ability to seek a divorce in any jurisdiction without relinquishing their Indiana citizenship and relocating.
SUPREMACY CLAUSE 59. Article VI, Section II of the United States Constitution provides: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” 60. By virtue of the Supremacy Clause, state statutes and constitutions are limited by the contours of the United States Constitution. 61. IC 31-11-1-1 violates the Supremacy Clause by contravening the United States Constitution and the United States Supreme Court's holding in Windsor.
RIGHT TO TRAVEL 62. The Fourteenth Amendment protects the liberty of individuals to travel throughout the nation, uninhibited by statutes, rules, or regulations that unreasonably burden or restrict their movement.
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63. The right to travel prohibits both laws that affirmatively interfere with or prevent a citizen's travel, and also laws that penalize those who choose to migrate to another state.
64. The right extends not only to temporary visits to other states, but also to becoming a permanent resident of another state.
65. IC 31-11-1-1 and DOMA § 2 violate the right to travel as guaranteed by the Fourteenth Amendment facially and/or as applied to Plaintiffs by imposing a penalty on Plaintiffs for choosing to move to and/or reside in the State of Indiana, in that their residence in Indiana requires them to relinquish all rights, privileges, benefits and responsibilities of marriage.
ESTABLISHMENT CLAUSE 66. The First Amendment to the United States Constitution states, “Congress shall make no law respecting an establishment of religion . . .” 67. This prohibition is extended to the states through the Fourteenth Amendment. 68. IC 31-11-1-1 and/or DOMA § 2 were enacted for the purpose of establishing a definition of marriage based upon religious beliefs of the majority, and not for a secular legislative purpose. 69. The primary effect of the above legislation is to advance the religious beliefs of the legislative majority. 70. The above statutes result in an excessive government entanglement with religion, in violation of the Establishment Clause. HARM TO THE PLAINTIFFS AND NEED FOR INJUNCTIVE RELIEF
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71. This case presents an actual controversy because Defendant’s
present and ongoing denial of equal treatment to Plaintiffs subjects them to serious
and immediate harms, warranting the issuance of a declaratory judgment.
72. Indiana's laws deprive Plaintiffs of numerous legal protections that
are available to opposite-sex couples.
73. Same-sex couples have their lives burdened, by reason of
government decree, in visible and public ways. Indiana’s discrimination towards
these couples touches many aspects of married and family life, from the mundane to
the profound, including but not limited to the following:
a. A married person is exempt from inheritance tax on property left to her by an opposite-sex spouse, including the spouse's share of the couple's home, and, thus, protected against economic distress or loss of a home because of an estate tax bill, but a same-sex surviving spouse or partner is denied this exemption and must pay a higher rate, which applies to non-family-members.
b. The State requires opposite-sex spouses to support one another financially, but there is no similar support obligation for same-sex spouses.
c. Communications between opposite-sex spouses enjoy evidentiary privileges in both civil and criminal proceedings, and an opposite-sex spouse may not be compelled to testify against his or her spouse over that spouses' objection except in limited circumstances, but confidential communications between same-sex spouses are not afforded the same privilege or immunity.
d. Same-sex spouses and their children are excluded from benefiting under Indiana’s intestacy laws.
e. Same-sex spouses and their children are precluded from recovering loss of consortium damages in civil litigation following a wrongful death.
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f. Plaintiffs are prevented from receiving the same healthcare benefits, including insurance, afforded to opposite sex spouses.
g. Under Indiana Workers Compensation Law, the oppositesex spouse of someone who dies as a result of a workrelated injury is entitled to damages and may bring suit to enforce such rights (IC 22-3-3-18), but same-sex spouses or partners have no legal standing to sue as a result of their spouse's workplace injury.
h. Same-sex couples may be prohibited from making or participating in healthcare, end-of-life, or burial decisions for their partners and spouses without the procurement of additional, and expensive, legal documentation.
i. Same-sex couples who were married out-of-state may not seek a divorce and division of property from an Indiana state court.
j. Leave to care for an ailing family member under the federal Family and Medical Leave Act is not protected for employees who seek leave to care for their same-sex spouse, children or extended family.
k. Plaintiff Jana Kohorst, a woman, is legally identified as the father of her adopted children, because the State will not allow a child to have two mothers.
l. Same-sex couples who give birth to children are not listed as a parent upon the child’s birth, and thus are denied legal rights to the children until such time as legal adoptions could be effectuated. This includes access to infants in maternity wards in hospitals and Neonatal Intensive Care Units, thus limiting the parent’s ability to form important bonds with the child at birth.
74. The exclusion from the esteemed institution of marriage humiliates
children being raised by same-sex couples, making it more difficult for the children
to understand the integrity and closeness of their own family and its concord with
other families in their community and in their daily lives.
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75. If Plaintiffs were legally married opposite-sex couples, they would not suffer any of the harms or potential harms enumerated above.
76. Defendants' deprivation of Plaintiffs' constitutional rights under color of state law violates 42 U.S.C. § 1983.
77. Plaintiffs have no adequate remedy at law to redress the wrongs alleged herein, which are of a continuing nature and will continue to cause them irreparable harm.
78. The State will incur little to no burden in allowing same-sex couples to marry and in recognizing the valid marriages of same-sex couples from other jurisdictions on the same terms as different-sex couples, whereas the hardship for Plaintiffs of being denied equal treatment is severe, and subjects them to an irreparable denial of their constitutional rights.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request that this Court: A. Enter a declaratory judgment that IC 31-33-1-1 violates the Due Process, Equal Protection, Freedom of Association, Full Faith and Credit, Supremacy, and/or other clauses of the United States Constitution; B. A preliminary and permanent injunctive order directing the State of Indiana to issue a marriage license to Plaintiffs Melissa Love and Erin Brock, and Plaintiffs Michael Drury and Lane Stumler, and prohibiting Defendants from refusing to issue marriage licenses to other same-sex couples based solely on their sex and/or sexual orientation. C. A declaration that the state's continued denial of marriage licenses to
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same-sex couples is violative of the U.S. Constitution. D. Enter preliminary and permanent injunctions enjoining Defendants
from denying the Plaintiff couples and all other same-sex couples the rights, burdens, and benefits associated with lawful marriage;
E. Enter an order directing Defendants to recognize marriages validly entered into by the Plaintiff couples and other same-sex couples outside of the State of Indiana;
F. If necessary, enter a declaratory judgment that Section 2 of DOMA as applied to Plaintiffs and all other similarly situated same-sex couples violates the Due Process, Equal Protection, Freedom of Association, and/or Full Faith and Credit clauses of the United States Constitution;
G. Award costs of suit, including reasonable attorneys' fees under 42 U.S.C. § 1988; and
H. Enter all further relief to which Plaintiffs may be justly entitled.
Respectfully submitted, s/Daniel J. Canon_______________ Daniel J. Canon Laura E. Landenwich, #27709-22 CLAY DANIEL WALTON & ADAMS PLC 101 Meidinger Tower 462 South Fourth Street Louisville, KY 40202 (502) 561-2005 – phone (502) 415-7505 – fax dan@justiceky.com laura@justiceky.com Counsel for Plaintiffs
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Case 4:14-cv-00015-RLY-TAB Document 1 Filed 03/07/14 Page 17 of 17 PageID #: 17 Shannon Fauver FAUVER LAW OFFICE PLLC 1752 Frankfort Avenue Louisville, KY 40206 (502) 569-7710 shannon@fauverlaw.com Counsel for Plaintiffs
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 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
NEW ALBANY DIVISION

MELISSA LOVE, ERIN BROCK,

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MICHAEL DRURY, LANE STUMLER, )

JO ANN DALE, CAROL UEBELHOER, )

JENNIFER REDMOND, and JANA

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KOHORST,

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Plaintiffs,

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vs.

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MICHAEL RICHARD PENCE, in his

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official capacity as Governor of the State of )

Indiana

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Defendant.

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4:14-cv-00015-RLY-TAB

ENTRY ON PLAINTIFFS’ MOTION TO RECONSIDER Plaintiffs filed suit against Defendant, Michael Richard Pence, in his official capacity as Governor of the State of Indiana, challenging the constitutionality of Indiana Code Section 31-11-1-1 (“Section 31-11-1-1”). Section 31-11-1-1 prohibits same-sex marriages from being celebrated or recognized in Indiana. On June 25, 2014, the court dismissed Plaintiffs’ complaint (the “Entry”) for lack of subject matter jurisdiction. Plaintiff now asks the court to reconsider its Entry due to newly discovered evidence. For the reasons set forth below, the court GRANTS in part and DENIES in part Plaintiffs’ motion.
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I. Background On March 7, 2014, Plaintiffs filed their Complaint challenging Indiana Code § 31-
11-1-1, entitled “Same sex marriages prohibited,” otherwise known as Indiana’s Defense of Marriage Act. In pertinent part, the challenged statute provides:
(a) Only a female may marry a male. Only a male may marry a female. (b) A marriage between persons of the same gender is void in Indiana even if the marriage is lawful in the place where it is solemnized. The Plaintiffs are two unmarried same-sex couples and two same-sex couples married in other jurisdictions. (Complaint ¶¶ 1-9). Plaintiffs allege that Indiana’s Defense of Marriage Act violates the United States Constitution by denying same-sex couples the “rights, privileges, responsibilities, and immunities extended to similarly situated opposite-sex couples.” (Id. ¶ 18). Specifically, Plaintiffs argue that the statute violates the Due Process Clause of the Fourteenth Amendment, the Equal Protection Clause of the Fourteenth Amendment, the First Amendment right to freedom of association, the Full Faith and Credit Clause, the Supremacy Clause, the Fourteenth Amendment right to travel, and the Establishment Clause of the First Amendment. Plaintiffs named the Governor of the State of Indiana as the sole defendant, alleging that, “[b]y implementing and enforcing the statutes discussed below, Defendant has deprived, and continues to deprive, Plaintiffs of rights guaranteed by the United States Constitution.” (Id. ¶ 12). The Governor moved to dismiss this case for lack of subject matter jurisdiction. The court granted that motion to dismiss on June 25, 2014. Since that time, the
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Governor, through his general counsel, has issued two memoranda on the issue of samesex marriages. In light of these memoranda, Plaintiffs ask the court to reconsider its Entry pursuant to Federal Rule of Civil Procedure 59(e). II. Standard
A court may grant a Rule 59(e) motion to alter or amend the judgment if the movant presents newly discovered evidence or if the movant clearly establishes a manifest error of fact or law. See Matter of Prince, 85 F.3d 314, 324 (7th Cir. 1996). For new evidence to be considered, the moving party must “show not only that this evidence was newly discovered or unknown to it until after the hearing, but also that it could not with reasonable diligence have discovered and produced such evidence during the pendency of the motion.” Caisse Nationale de Credit Agricole v. CBI Industries, Inc., 90 F.3d 1264, 1269-70 (7th Cir. 1996). III. Discussion
A. Is Reconsideration Warranted? Plaintiffs present two memoranda issued by the general counsel to the Governor to all executive branch agencies. These memoranda were issued on June 26, 2014, and July 7, 2014. Plaintiffs argue that the memoranda could not have been discovered until after the court’s order on June 25, 2014, and thus constitutes new evidence warranting reconsideration. The Governor asserts that the motion to reconsider is merely an attempt to rehash an argument that the court rejected in its Entry dismissing the case, which is an inappropriate use of the Rule 59(e) motion.
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As the Governor states, the court previously found that “[e]ven if the Governor did exercise some measure of managerial authority over clerks or others who may administer some aspect of marriage law, that authority would be insufficient to justify a suit against the Governor for two interrelated reasons.” Those two reasons were: (1) the complainedof injury is not fairly traceable to the Governor because he lacks the authority to enforce the challenged statute against them, and (2) because the Governor cannot enforce the challenged statute, he cannot redress Plaintiffs’ injury. Clearly the Governor’s representation that he does not have “any authority to enforce, or other role respecting, Indiana Code Section 31-11-1-1” played a central role in the court’s conclusion. The memoranda show that the court’s conclusion was based on an inaccurate premise – that the Governor played no role in enforcing the statute. Thus, the court must revisit its prior decision and the motion for reconsideration should be considered on its merits.
B. Reconsidering the Entry 1. Did the Governor Enforce the Statute?
Plaintiffs allege that the memoranda show that the Governor is able to enforce the statute and is, in fact, enforcing the statute. The Governor counters that the memoranda are simply providing an update and giving guidance. The court disagrees with the Governor that the sole purpose of the memoranda was to be informative. Rather, the text of the memoranda show that the Governor’s counsel issued them to serve two purposes – to explain the court’s decision and to instruct the executive branch agencies on what to do following the orders. (See July 7 Memorandum, stating “I issue the following explanation and instructions. . . .”).
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The court agrees with Plaintiffs that the memoranda clearly show that the Governor has the ability to direct the executive agencies to take action in regard to Section 31-11-1-1, and that he did take such action. 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, the day of the court’s order, directing all executive branch agencies to comply with the decision. The July 7 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). The memorandum further states 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.). Nevertheless, the Governor states that “the State will comply with the Court of Appeal’s individual order recognizing the marriage of Amy Sandler and Nikole Quasney.” (Id.). It is clear that through these memoranda, the Governor is issuing instructions to state agencies regarding compliance with court orders.
2. Is the Governor a Proper Defendant? a. Recognition of Out-of-State Marriages
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
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court finds that this case is distinguishable from the cases cited by the Governor, 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 marriages recognized.
The next question is whether the Eleventh Amendment bars suit against the Governor. Under the Eleventh Amendment, a citizen cannot sue their state in federal court unless the state consents. However, the Supreme Court created an important exception to that immunity in Ex Parte Young. 209 U.S. 123 (1908). Under that doctrine, “a private party can sue a state officer in his or her official capacity to enjoin prospective action that would violate federal law.” Ameritech Corp. v. McCann, 297 F.3d 582, 585-86 (7th Cir. 2002) (quoting Dean Foods Co. v. Brancel, 187 F.3d 609, 613 (7th Cir. 1999)). Because Plaintiffs seek an injunction to enjoin actions which violate federal law, Ex parte Young applies. Nevertheless, the court must determine “whether the connection is sufficiently intimate to meet the requirements of Ex parte Young.” See Shell Oil Co. v. Noel, 608 F.2d 208, 211 (1st Cir. 1979).
The court previously did not consider this connection because a general duty to enforce the laws is not enough. See id. As noted above, however, the Governor has shown that he is willing and able to take affirmative action to enforce the statute as shown in his July 7 Memorandum. The Governor’s actions are similar to those of the governor of Utah as discussed by the Tenth Circuit in Kitchen v. Herbert, issued just hours after the court issued its opinion in Baskin v. Bogan, No. 1:14-cv-355, 2014 WL
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2884868 (S.D. Ind. June 25, 2014), aff’d Baskin v. Bogan, No. 14-2386, 2014 WL 4359059 (7th Cir. Aug. 26, 2014)1. In finding the Governor to be a proper party, the Tenth Circuit noted that “state agencies with responsibility for the recognition of out-ofstate marriages are being directed by the Governor . . . .” No. 13-4178, 2014 WL 2868044, * 6 (10th Cir. June 25, 2014). The exercise of his authority along with the executive power being vested in the Governor, provided the requisite connection to satisfy Ex parte Young.
The Governor is vested with the executive authority in Indiana and has exercised his authority to declare how state executive agencies should act. Thus, in accordance with Kitchen, the court finds that there is a sufficient connection to meet the Ex parte Young exception to Eleventh Amendment immunity.
3. Right to Marry Notably, the memoranda issued by the Governor are addressed to executive branch agencies. These agencies still cannot provide the unmarried plaintiffs with the relief they seek – to be able to marry in Indiana. The Plaintiffs have not shown that the Governor has the authority to direct the county clerks; rather, under Indiana statute, the county clerk’s serve the courts of that county. See Ind. Code § 33-32-2-1. Therefore, the
1 Although the Seventh Circuit affirmed this court’s decision in Baskin, it did not expressly consider whether the Governor was a proper party. Additionally, the facts regarding the role of the Governor have changed since the time this court considered Baskin, making this matter distinguishable. Thus, the court does not feel bound by its prior decision in Baskin that the Governor was an improper party. Further, the court notes that the Seventh Circuit also affirmed Wolf v. Walker, 982 F. Supp. 2d 982 (W.D. Wisc. 2014), which found the Governor to be a proper party.
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Governor is not a proper party to challenge Indiana Code Section 31-11-1-1(a), and that claim remains dismissed. IV. Conclusion
In light of the new evidence, the court reinstates the married Plaintiffs’ claims that Section 31-11-1-1(b) are unconstitutional. The claims brought by the unmarried Plaintiffs remain dismissed, because the Governor cannot remedy the harms alleged by them. Thus, the court GRANTS in part and DENIES in part Plaintiffs’ motion (Filing No. 35). As a result, the court also VACATES its Entry on Plaintiffs’ motion for preliminary and permanent injunctive relief (Filing No. 33), which had denied that motion as moot. SO ORDERED this 16th day of September 2014.
sR/_I_RC_iH_c_hA_aR_r_dD_L_L_.._YY_o_Ou_nU__gN___G___,__C___H___I_E__F____J__U__D____G___E_ URnIiCteHdASRtaDteLs.DYiOstUriNctGC, oCuHrtIEF JUDGE SUounittheedrnStDatiesstrDicisttorifctInCdoiuarnta Southern District of Indiana
Distributed Electronically to Registered Counsel of Record.
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 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
NEW ALBANY DIVISION

MELISSA LOVE,

)

ERIN BROCK,

)

MICHAEL DRURY,

)

LANE STUMLER,

)

JO ANN DALE,

)

CAROL UEBELHOER,

)

JENNIFER REDMOND, and

)

JANA KOHORST,

)

)

Plaintiffs,

)

)

vs.

)

)

MICHAEL RICHARD PENCE, in his

)

official capacity as Governor of the State of )

Indiana,

)

)

Defendant. )

4:14-cv-00015-RLY-TAB

ENTRY ON DEFENDANT’S MOTION TO DISMISS Michael Richard Pence, in his capacity as Governor of the State of Indiana, moves to dismiss the Plaintiffs’ Complaint for lack of subject matter jurisdiction. For the reasons set forth below, the court GRANTS the motion. I. Back ground On March 7, 2014, Plaintiffs filed their Complaint challenging Indiana Code § 3111-1-1, entitled “Same sex marriages prohibited,” otherwise known as Indiana’s Defense of Marriage Act. In pertinent part, the challenged statute provides: (a) Only a female may marry a male. Only a male may marry a female.
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(b) A marriage between persons of the same gender is void in Indiana even if the marriage is lawful in the place where it is solemnized. The Plaintiffs are two unmarried same-sex couples and two same-sex couples married in other jurisdictions. (Complaint ¶¶ 1-9). Plaintiffs allege that Indiana’s Defense of Marriage Act violates the United States Constitution by denying same-sex couples the “rights, privileges, responsibilities, and immunities extended to similarly situated opposite-sex couples.” (Id. ¶ 18). Specifically, Plaintiffs argue that the statute violates the Due Process Clause of the Fourteenth Amendment, the Equal Protection Clause of the Fourteenth Amendment, the First Amendment right to freedom of association, the Full Faith and Credit Clause, the Supremacy Clause, the Fourteenth Amendment right to travel, and the Establishment Clause of the First Amendment. Plaintiffs named the Governor of the State of Indiana as the sole defendant, alleging that, “[b]y implementing and enforcing the statutes discussed below, Defendant has deprived, and continues to deprive, Plaintiffs of rights guaranteed by the United States Constitution.” (Id. ¶ 12). II. Motion to Dismiss Standard A motion to dismiss for lack of standing is a challenge to the court’s subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure. See Scanlon v. Eisenberg, 669 F.3d 838, 841-42 (7th Cir. 2012). In ruling on a Rule 12(b)(1) motion to dismiss, the court must accept as true all well-pleaded factual allegations and draw all reasonable inferences in favor of the plaintiff. Id. (citation omitted). However, when faced with a challenge to its subject matter jurisdiction, the court may look beyond
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the complaint and review any other evidence to resolve the jurisdictional issue. Apex Digital, Inc. v. Sears, Roebuck & Co., 572 F.3d 440, 444 (7th Cir. 2009) (citations omitted). The burden is on the plaintiff to prove, by a preponderance of the evidence, that subject matter jurisdiction exists. Lee v. City of Chicago, 330 F.3d 456, 468 (7th Cir. 2003) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)). III. Discussion
Article III, § 2, of the United States Constitution limits the jurisdiction of federal courts to the resolution of “cases” or “controversies.” One aspect of the case-orcontroversy requirement is standing. Arizonans for Official English v. Arizona, 520 U.S. 43, 64 (1997) (citing Northeastern Fla. Chapter, Associated Gen. Contractors of America v. Jacksonville, 508 U.S. 656, 663–664 (1993) (standing to sue); Diamond v. Charles, 476 U.S. 54, 56 (standing to defend on appeal); O’Sullivan v. City of Chicago, 396 F.3d 843, 853 (7th Cir. 2005). “When standing is placed in issue in a case, the question is whether the person whose standing is challenged is a proper party to request adjudication of a particular issue and not whether the issue itself is justiciable.” Flast v. Cohen, 392 U.S. 83, 99-100 (1968).
The emphasis of Article III standing is on whether the plaintiffs have “‘a personal stake in the outcome of the controversy’”, and on “whether the dispute touches upon the ‘legal relations of the parties having adverse legal interests.’” O’Sullivan, 396 F.3d at 853 (quoting Flast, 392 U.S. 83, 101 (1968)). To have standing, a plaintiff must demonstrate: (1) an injury in fact that is concrete and particularized, as well as actual and imminent; (2) a causal connection between the injury and the conduct complained of,
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such that the injury is fairly traceable to the challenged action of the defendant; and (3) that it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable opinion. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (internal quotation marks and citations omitted).
According to Plaintiffs, they seek an injunction “directing the State of Indiana to issue a marriage license to Plaintiffs . . . and prohibiting [the State] from refusing to issue marriage licenses to other same-sex couples based solely on their sex and/or sexual orientation.” Second, they request the State be enjoined from “denying the Plaintiff couples and all other same-sex couples the rights, burdens, and benefits associated with lawful marriage.” Lastly, they seek “an order directing [the State] to recognize marriages validly entered into by the Plaintiff couples and other same-sex couples outside the state of Indiana[.]” (Id. ¶ 15). They sued the Governor because he is the “chief executive officer of the State and is responsible for the faithful execution of the laws of the State . . . including the laws that exclude same-sex couples from marrying or having their outof-state marriages recognized.” (Id. ¶ 10).
The Governor maintains that he is not the proper defendant because the injuries of which the Plaintiffs complain are not fairly traceable to him, and cannot be redressed by him. Plaintiffs respond that the Governor is the Executive Head of State; thus, he has managerial authority over the executive branch, including the power to order the circuit court clerks “to take specific actions” by executive order.
The executive orders Plaintiffs cite involved a specific statutory power of the Governor, not some general supervisory authority. Executive Orders 10-03 (Pls.’ Ex. 1 at
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1) and 08-01 (Pls.’ Ex. 1 at 4-5) involved ordering special elections to fill vacancies within the House of Representatives of the United States Congress, as directed by Indiana law. Ind. Code § 3-10-8-3. Executive Order 04-16 (Pls.’ Ex. 1 at 2) declared a state of emergency due to severe storms, tornadoes and flooding, as directed by Indiana law. Ind. Code § 10-14-3-12. In addition, the proclamation at pages 2-3 of Plaintiffs’ Exhibit 1 declares the publication and effect of certain Acts of the 113th General Assembly, pursuant to Indiana Code § 1-1-3-2. Notably, Plaintiffs point to no similar statutory powers the Governor might exercise in this case by way of issuing an executive order. They point to no gubernatorial authority – as is their burden – to issue executive decrees telling other elected officials how to do their jobs when it comes to laws affecting marriage.
Even if the Governor did exercise some measure of managerial authority over clerks or others who may administer some aspect of marriage law, that authority would be insufficient to justify a suit against the Governor for two interrelated reasons. First, Plaintiffs’ complained-of injury is not fairly traceable to the Governor because he lacks the authority to enforce the challenged statute against them. Okpalobi v. Foster, 244 F.3d 405, 426 (5th Cir. 2001) (“The requirements of Lujan are entirely consistent with the long-standing rule that a plaintiff may not sue a state official who is without any power to enforce the complained-of statute.”). The “[g]eneral authority to enforce the laws of the state is not sufficient to make government officials the proper parties to litigation challenging the law.” 1st Westco Corp. v. Sch. Dist. of Philadelphia, 6 F.3d 108, 113-14 (3d Cir. 1993) (holding that the school district officials, not the Attorney General or state
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Secretary of Education, were the proper defendants in a challenge to a contractor residency requirement). See also Snoeck v. Brussa, 153 F.3d 984, 986 (9th Cir. 1998) (stating that “[The] general supervisory power over those persons responsible for enforcing the challenged provision will not subject an official to suit.”); Shell Oil Co. v. Noel, 608 F.2d 208, 211 (1st Cir. 1979) (“The mere fact that a governor is under a general duty to enforce state law does not make him a proper defendant in every action attacking the constitutionality of a state statute.”).
Second, because the Governor cannot enforce the challenged statute, he cannot redress Plaintiffs’ injury. This point is illustrated in Hearne v. Bd. of Educ. of City of Chicago, 185 F.3d 770 (7th Cir. 1999). There, the Seventh Circuit held the governor was not a proper defendant in a case challenging an Illinois statute designed to reform the Chicago public school system, because “the governor has no role to play in the enforcement of the challenged statutes, nor does the governor have the power to nullify legislation once it has entered into force.” 185 F.3d 770, 777 (7th Cir. 1999). Similarly, the Northern District of Indiana recently held the governor was not a proper defendant in a case challenging Indiana’s “Right to Work” law. Sweeney v. Daniels, No. 2:12-cv-81PPS/PRC, 2013 WL 209047 (N.D. Ind. Jan. 17, 2013). The court, relying on Hearn, stated, “[P]laintiffs should name a state official who bears ‘legal responsibility for the flaws they perceive in the system’”, not a state official from whom they “‘could not ask anything . . . that could conceivably help their cause.’” Id. at *3 (quoting Hearn, 185 F.3d 777). See also Mexicana v. State of Indiana, No. 2:11-cv-482 JD, 2013 WL 4088690, at **5-6 (N.D. Ind. Aug. 13, 2013) (same, citing Hearne and Sweeney); Deida
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v. City of Milwaukee, 192 F.Supp.2d 899, 917 (E.D. Wisc. 2002) (dismissing attorney general because he had no power to enforce the challenged statute against plaintiff).
Plaintiffs have failed to establish that the Governor has the authority to enforce, or plays any other role respecting, Indiana’s Defense of Marriage Act. Thus, the injuries of which Plaintiffs complain – i.e., the recognition of out-of-state same sex marriages and the issuance of a valid marriage license to a same sex couple – are not fairly traceable to the actions of the Governor, and cannot be redressed by the Governor.
Rather than dismiss this lawsuit, Plaintiffs ask for additional discovery “to define [the Governor’s] executive function, or to explain how he has no authority over executive branch agencies, or to explain how the executive cannot control the actions of the executive branch.” This request is denied. The powers and duties of the Governor are provided for in the Constitution, statutes, and regulations of the State of Indiana. Additional discovery would not shed any additional light on the subject.
Plaintiffs also ask for leave to amend their Complaint under Federal Rule of Civil Procedure 15 “to include the defendants this Court deems proper.” This request is likewise denied. It is not the business of the court to inform Plaintiffs who they should sue as party defendants.
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IV. Conclusion The court finds there is no case or controversy between the Plaintiffs and
Governor Pence. As such, the case must be dismissed for lack of subject matter jurisdiction under Article III of the Constitution. The Defendant’s Motion to Dismiss for Lack of Subject Matter Jurisdiction (Filing No. 18) is therefore GRANTED. SO ORDERED this 25th day of June 2014.
s_/_R__ic_h__a_r_d_L__. _Y_o_u_n_g__________________________ RRIICCHHAARRDDLL. .YYOOUUNNG,GC, CHHIEIFEFJUJDUGDEGE UUnniitteeddSSttaatetessDDisitsrtircitcCt oCuorut rt SSoouutthheerrnnDDisistrtircitctofoIfnIdnidaniaana Distributed Electronically to Registered Counsel of Record.
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U.S. District Court Southern District of Indiana (New Albany) CIVIL DOCKET FOR CASE #: 4:14-cv-00015-RLY-TAB

CLOSED

LOVE et al v. PENCE Assigned to: Judge Richard L. Young Referred to: Magistrate Judge Tim A. Baker Related Cases: 1:14-cv-00355-RLY-TAB
1:14-cv-00404-RLY-TAB 1:14-cv-00406-RLY-MJD 1:14-cv-00405-RLY-TAB Cause: 42:1983 Civil Rights Act Plaintiff MELISSA LOVE
https://ecf.insd.uscourts.gov/cgi-bin/DktRpt.pl?585953524885321-L_1_0-1

Date Filed: 03/07/2014 Date Terminated: 03/20/2015 Jury Demand: None Nature of Suit: 950 Constitutional - State Statute Jurisdiction: Federal Question
represented by Dawn R. Elliott FAUVER LAW OFFICE PLLC 1752 Frankfort Avenue Louisville, KY 40206 502-569-7720 Fax: 502-899-2467 Email: dawn@fauverlaw.com ATTORNEY TO BE NOTICED
L. Joe Dunman CLAY DANIEL WALTON ADAMS PLC Meidinger Tower, Suite 101 462 South Fourth Street Louisville, KY 40202 502-442-1102 Fax: 502-415-7505 Email: joe@justiceky.com ATTORNEY TO BE NOTICED
Laura Elizabeth Landenwich CLAY DANIEL WALTON & ADAMS PLC 462 South Fourth Street Suite 101 Louisville, KY 40202 (502) 561-2005 Fax: (502) 415-7505 Email: laura@justiceky.com ATTORNEY TO BE NOTICED
Shannon Fauver FAUVER LAW OFFICE, PLLC 1752 Frankfort Avenue Louisville, KY 40206 (502) 569-7710 Fax: (502) 899-2467
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Fax: (502) 899-2467 Email: shannon@fauverlaw.com ATTORNEY TO BE NOTICED

Plaintiff ERIN BROCK

Daniel J. Canon CLAY DANIEL WALTON & ADAMS 462 S. Fourth Street Louisville, KY 40202 (502) 561-2005 Fax: (502) 589-5500 Email: dan@justiceky.com ATTORNEY TO BE NOTICED
represented by Dawn R. Elliott (See above for address) ATTORNEY TO BE NOTICED

L. Joe Dunman (See above for address) ATTORNEY TO BE NOTICED

Laura Elizabeth Landenwich (See above for address) ATTORNEY TO BE NOTICED

Shannon Fauver (See above for address) ATTORNEY TO BE NOTICED

Plaintiff MICHAEL DRURY

Daniel J. Canon (See above for address) ATTORNEY TO BE NOTICED
represented by Dawn R. Elliott (See above for address) ATTORNEY TO BE NOTICED

L. Joe Dunman (See above for address) ATTORNEY TO BE NOTICED

Laura Elizabeth Landenwich (See above for address) ATTORNEY TO BE NOTICED

Shannon Fauver (See above for address) ATTORNEY TO BE NOTICED

Daniel J. Canon (See above for address) ATTORNEY TO BE NOTICED

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Plaintiff LANE STUMLER

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represented by Dawn R. Elliott (See above for address) ATTORNEY TO BE NOTICED

L. Joe Dunman (See above for address) ATTORNEY TO BE NOTICED

Laura Elizabeth Landenwich (See above for address) ATTORNEY TO BE NOTICED

Shannon Fauver (See above for address) ATTORNEY TO BE NOTICED

Plaintiff JO ANN DALE

Daniel J. Canon (See above for address) ATTORNEY TO BE NOTICED
represented by Dawn R. Elliott (See above for address) ATTORNEY TO BE NOTICED

L. Joe Dunman (See above for address) ATTORNEY TO BE NOTICED

Laura Elizabeth Landenwich (See above for address) ATTORNEY TO BE NOTICED

Shannon Fauver (See above for address) ATTORNEY TO BE NOTICED

Plaintiff CAROL UEBELHOER

Daniel J. Canon (See above for address) ATTORNEY TO BE NOTICED
represented by Dawn R. Elliott (See above for address) ATTORNEY TO BE NOTICED

L. Joe Dunman (See above for address) ATTORNEY TO BE NOTICED

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Laura Elizabeth Landenwich (See above for address)
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Plaintiff JENNIFER REDMOND
Plaintiff JANA KOHORST

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ATTORNEY TO BE NOTICED
Shannon Fauver (See above for address) ATTORNEY TO BE NOTICED
Daniel J. Canon (See above for address) ATTORNEY TO BE NOTICED
represented by Dawn R. Elliott (See above for address) ATTORNEY TO BE NOTICED
L. Joe Dunman (See above for address) ATTORNEY TO BE NOTICED
Laura Elizabeth Landenwich (See above for address) ATTORNEY TO BE NOTICED
Shannon Fauver (See above for address) ATTORNEY TO BE NOTICED
Daniel J. Canon (See above for address) ATTORNEY TO BE NOTICED
represented by Dawn R. Elliott (See above for address) ATTORNEY TO BE NOTICED
L. Joe Dunman (See above for address) ATTORNEY TO BE NOTICED
Laura Elizabeth Landenwich (See above for address) ATTORNEY TO BE NOTICED
Shannon Fauver (See above for address) ATTORNEY TO BE NOTICED
Daniel J. Canon (See above for address) ATTORNEY TO BE NOTICED

V.

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Defendant
MICHAEL RICHARD PENCE in his ofﬁcial capacity as Governor of the State of Indiana

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represented by Thomas M. Fisher OFFICE OF THE ATTORNEY GENERAL 302 West Washington Street IGCS - 5th Floor Indianapolis, IN 46204 (317) 232-6255 Fax: (317) 232-7979 Email: tom.ﬁsher@atg.in.gov ATTORNEY TO BE NOTICED

Date Filed 03/07/2014
03/07/2014
03/07/2014
03/07/2014 03/07/2014 03/12/2014
03/18/2014
03/21/2014 03/25/2014
03/26/2014 03/27/2014

# Docket Text
1 COMPLAINT for Declaratory and Injunctive Relief against MICHAEL RICHARD PENCE, ﬁled by All Plaintiffs. (Filing fee $400, receipt number 0756-2982057) (Attachments: # 1 Civil Cover Sheet, # 2 Proposed Summons, # 3 Proposed Summons) (Canon, Daniel) (Entered: 03/07/2014)
2 NOTICE of Appearance by Daniel J. Canon on behalf of Plaintiffs ERIN BROCK, JO ANN DALE, MICHAEL DRURY, JANA KOHORST, MELISSA LOVE, JENNIFER REDMOND, LANE STUMLER, CAROL UEBELHOER. (Canon, Daniel) (Entered: 03/07/2014)
3 NOTICE of Appearance by Laura Elizabeth Landenwich on behalf of Plaintiffs ERIN BROCK, JO ANN DALE, MICHAEL DRURY, JANA KOHORST, MELISSA LOVE, JENNIFER REDMOND, LANE STUMLER, CAROL UEBELHOER. (Landenwich, Laura) (Entered: 03/07/2014)
4 Summons Issued as to MICHAEL RICHARD PENCE. (LBT) (Entered: 03/07/2014)
5 MAGISTRATE JUDGE's NOTICE of Availability to Exercise Jurisdiction issued. (LBT) (Entered: 03/07/2014)
6 NOTICE of Appearance by Shannon Fauver on behalf of Plaintiffs ERIN BROCK, JO ANN DALE, MICHAEL DRURY, JANA KOHORST, MELISSA LOVE, JENNIFER REDMOND, LANE STUMLER, CAROL UEBELHOER. (Fauver, Shannon) (Entered: 03/12/2014)
7 NOTICE of Appearance by L. Joe Dunman on behalf of Plaintiffs ERIN BROCK, JO ANN DALE, MICHAEL DRURY, JANA KOHORST, MELISSA LOVE, JENNIFER REDMOND, LANE STUMLER, CAROL UEBELHOER. (Dunman, L.) (Entered: 03/18/2014)
8 NOTICE of Appearance by Thomas M. Fisher on behalf of Defendant MICHAEL RICHARD PENCE. (Fisher, Thomas) (Entered: 03/21/2014)
9 NOTICE of Appearance by Dawn R. Elliott on behalf of Plaintiffs ERIN BROCK, JO ANN DALE, MICHAEL DRURY, JANA KOHORST, MELISSA LOVE, JENNIFER REDMOND, LANE STUMLER, CAROL UEBELHOER. (Elliott, Dawn) (Entered: 03/25/2014)
10 CERTIFICATE OF SERVICE by All Plaintiffs re 9 Notice of Appearance (Elliott, Dawn) (Entered: 03/26/2014)
11 SCHEDULING ORDER: A Telephonic Conference is set for 4/4/2014 at 2:00 PM (EST) before Judge Richard L. Young.The information needed to participate in this telephonic

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conference will be provided by a separate notiﬁcation. Signed by Judge Richard L. Young on 3/27/2014.(TMD) (Entered: 03/27/2014)

03/31/2014

13 NOTICE of Constitutional Challenge, ﬁled by Plaintiffs ERIN BROCK, JO ANN DALE, MICHAEL DRURY, JANA KOHORST, MELISSA LOVE, JENNIFER REDMOND, LANE STUMLER, CAROL UEBELHOER (Landenwich, Laura) (Entered: 03/31/2014)

03/31/2014

14 RETURN of Service, ﬁled by All Plaintiffs. MICHAEL PENCE served on 3/17/2014 via CMRRR. MICHAEL PENCE, c/o AG Greg Zoeller, served on 3/17/2014 via CMRRR. (Landenwich, Laura) Modiﬁed on 4/1/2014 to include dates of service in docket text (LBT). (Entered: 03/31/2014)

03/31/2014

15 MOTION for Immediate Preliminary and Permanent Injunction , ﬁled by Plaintiffs ERIN BROCK, JO ANN DALE, MICHAEL DRURY, JANA KOHORST, MELISSA LOVE, JENNIFER REDMOND, LANE STUMLER, CAROL UEBELHOER. (Attachments: # (1) Memorandum in Support, # (2) Exhibit 1. Afﬁdavit of Melissa Love, # (3) Exhibit 2. Afﬁdavit of Erin Brock, # (4) Exhibit 3. Afﬁdavit of Jo Ann Dale, # (5) Exhibit 4. Afﬁdavit of Carol Uebelhoer, # (6) Exhibit 5. Afﬁdavit of Jana Kohorst, # (7) Exhibit 6. Amicus Brief, APA, AMA, AAP, # (8) Exhibit 7. Amicus Brief, ASA, # (9) Text of Proposed Order)(Landenwich, Laura) Modiﬁed on 4/1/2014 (LBT). (Entered: 03/31/2014)

04/01/2014

16 BRIEF/MEMORANDUM in Support re 15 MOTION for Preliminary Injunction , ﬁled by Plaintiffs ERIN BROCK, JO ANN DALE, MICHAEL DRURY, JANA KOHORST, MELISSA LOVE, JENNIFER REDMOND, LANE STUMLER, CAROL UEBELHOER. (Landenwich, Laura) (Entered: 04/01/2014)

04/01/2014 17 Order regarding 4/04/14 telephonic conference - SEE ENTRY. Signed by Judge Richard L. Young on 4/1/2014.(TMD) (Entered: 04/01/2014)

04/04/2014 18 MOTION to Dismiss for Lack of Jurisdiction , ﬁled by Defendant MICHAEL RICHARD PENCE. (Fisher, Thomas) (Entered: 04/04/2014)

04/04/2014

19 BRIEF/MEMORANDUM in Support re 18 MOTION to Dismiss for Lack of Jurisdiction , ﬁled by Defendant MICHAEL RICHARD PENCE. (Fisher, Thomas) (Entered: 04/04/2014)

04/04/2014

20 MINUTE ORDER for Scheduling Conference held 4/04/2014 before Judge Richard L. Young. Dispositive Motions due by 4/21/2014. Signed by Judge Richard L. Young. (Court Reporter Judy Mason.)(TMD) (Entered: 04/04/2014)

04/17/2014

21 STIPULATION AS TO BRIEFING SCHEDULE ON PENDING MOTIONS, ﬁled by Defendant MICHAEL RICHARD PENCE. (Attachments: # 1 Text of Proposed Order proposed order)(Fisher, Thomas) Modiﬁed on 4/18/2014 to change to motion event (LBT). (Entered: 04/17/2014)

04/18/2014

22 MARGINAL ENTRY approving 21 Stipulation as to Brieﬁng Schedule on Pending Motions. Signed by Magistrate Judge Tim A. Baker on 4/18/2014. (LBT) (Entered: 04/18/2014)

04/18/2014

23 SCHEDULING ORDER: TELEPHONIC Status Conference is set for 4/21/2014 at 12:45 PM before Judge Richard L. Young. Signed by Judge Richard L. Young on 4/18/2014. (TMD) (Entered: 04/18/2014)

04/21/2014 28 Minute Entry for telephonic conference held 4/21/2014 before Judge Richard L. Young. (Court Reporter Judy Mason.) (TMD) (Entered: 04/28/2014)

04/23/2014

25 MOTION for Leave to File Excess Pages , ﬁled by Defendant MICHAEL RICHARD PENCE. (Attachments: # 1 Text of Proposed Order Proposed Order)(Fisher, Thomas) (Entered: 04/23/2014)

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04/25/2014
04/25/2014 04/30/2014 05/08/2014 05/08/2014 06/25/2014 06/25/2014 06/25/2014 07/22/2014
08/08/2014 08/21/2014 09/16/2014

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26 RESPONSE in Opposition re 18 MOTION to Dismiss for Lack of Jurisdiction , ﬁled by Plaintiffs ERIN BROCK, JO ANN DALE, MICHAEL DRURY, JANA KOHORST, MELISSA LOVE, JENNIFER REDMOND, LANE STUMLER, CAROL UEBELHOER. (Attachments: # 1 Exhibit Exhibit 1 - Executive Orders, # 2 Exhibit Exhibit 2 - AG Opinion, # 3 Text of Proposed Order)(Canon, Daniel) (Entered: 04/25/2014)
27 RESPONSE in Opposition re 15 MOTION for Preliminary Injunction AND PERMANENT INJUNCTIVE RELIEF, ﬁled by Defendant MICHAEL RICHARD PENCE. (Fisher, Thomas) (Entered: 04/25/2014)
29 ORDER granting 25 Motion for Leave to File Excess Pages. Defendant may ﬁle an oversized brief, not to exceed 60 pages, in opposition to Plaintiffs' Motion for Immediate Preliminary and Permanent Injunctive Relief. Signed by Magistrate Judge Tim A. Baker on 4/30/2014. (LBT) (Entered: 04/30/2014)
30 REPLY in Support of Motion re 15 MOTION for Preliminary Injunction , ﬁled by Plaintiffs ERIN BROCK, JO ANN DALE, MICHAEL DRURY, JANA KOHORST, MELISSA LOVE, JENNIFER REDMOND, LANE STUMLER, CAROL UEBELHOER. (Landenwich, Laura) (Entered: 05/08/2014)
31 REPLY in Support of Motion re 18 MOTION to Dismiss for Lack of Jurisdiction , ﬁled by Defendant MICHAEL RICHARD PENCE. (Fisher, Thomas) (Entered: 05/08/2014)
32 ENTRY ON DEFENDANT'S MOTION TO DISMISS - 18 Motion to Dismiss for Lack of Jurisdiction is GRANTED. See Entry for details. Signed by Judge Richard L. Young on 6/25/2014. (LBT) (Entered: 06/25/2014)
33 **VACATED PER NO. 38** ENTRY ON PLAINTIFFS' MOTION FOR PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF - 15 Motion for Preliminary and Permanent Injunction is DENIED as moot. Signed by Judge Richard L. Young on 6/25/2014. (LBT) Modiﬁed on 9/16/2014 (LBT). (Entered: 06/25/2014)
34 CLOSED FINAL JUDGMENT - Comes now the court, having this day granted the Defendant's Motion to Dismiss, and now enters judgment in his favor, and against the Plaintiffs herein. Signed by Judge Richard L. Young on 6/25/2014.(LBT) (Entered: 06/25/2014)
35 MOTION for Reconsideration re 32 Order on Motion to Dismiss/Lack of Jurisdiction , ﬁled by Plaintiffs ERIN BROCK, JO ANN DALE, MICHAEL DRURY, JANA KOHORST, MELISSA LOVE, JENNIFER REDMOND, LANE STUMLER, CAROL UEBELHOER. (Attachments: # 1 Memorandum in Support, # 2 Exhibit 1 - Executive Order, # 3 Exhibit 2 - Executive Order, # 4 Text of Proposed Order)(Canon, Daniel) (Entered: 07/22/2014)
36 RESPONSE in Opposition re 35 MOTION for Reconsideration re 32 Order on Motion to Dismiss/Lack of Jurisdiction , ﬁled by Defendant MICHAEL RICHARD PENCE. (Fisher, Thomas) (Entered: 08/08/2014)
37 REPLY in Support of Motion re 35 MOTION for Reconsideration re 32 Order on Motion to Dismiss/Lack of Jurisdiction , ﬁled by Plaintiffs ERIN BROCK, JO ANN DALE, MICHAEL DRURY, JANA KOHORST, MELISSA LOVE, JENNIFER REDMOND, LANE STUMLER, CAROL UEBELHOER. (Landenwich, Laura) (Entered: 08/21/2014)
38 ENTRY on Plaintiff's Motion to Reconsider - In light of the new evidence, the court reinstates the married Plaintiffs' claims that Section 31-11-1-1(b) are unconstitutional. The claims brought by the unmarried Plaintiffs remain dismissed, because the Governor cannot remedy the harms alleged by them. 35 Motion for Reconsideration is GRANTED in part and DENIED in part. As a resulte, the court also VACATES its 33 Entry on Plaintiff's

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Motion for Preliminary and Permanent Injunctive Relief, which had denied that motion as moot. See Entry for details. Signed by Judge Richard L. Young on 9/16/2014. (LBT) (Entered: 09/16/2014)

09/17/2014

39 ORDER REOPENING CASE as the Court has granted Plaintiffs' Motion to Reconsider on 9/16/2014 and now vacates its prior entry of ﬁnal judgment in favor of Defendant. Signed by Judge Richard L. Young on 9/17/2014.(CBU) (Entered: 09/17/2014)

10/10/2014

40 MOTION for Summary Judgment , ﬁled by Plaintiffs JO ANN DALE, JANA KOHORST, JENNIFER REDMOND, CAROL UEBELHOER. (Attachments: # 1 Exhibit Memorandum in Support, # 2 Text of Proposed Order)(Canon, Daniel) (Entered: 10/10/2014)

10/15/2014

41 BRIEF/MEMORANDUM in Support re 40 MOTION for Summary Judgment , ﬁled by Plaintiffs JO ANN DALE, JANA KOHORST, JENNIFER REDMOND, CAROL UEBELHOER. (Canon, Daniel) (Entered: 10/15/2014)

11/07/2014

42 Joint MOTION for Extension of Time to 12/10/2014 to ﬁle response to 40 MOTION for Summary Judgment AND PLAINTIFFS REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, ﬁled by Defendant MICHAEL RICHARD PENCE. (Attachments: # 1 Text of Proposed Order)(Fisher, Thomas) (Entered: 11/07/2014)

11/24/2014

43 ORDER granting 42 Motion for Extension of Time to 12/10/2014 to File Response re 40 MOTION for Summary Judgment. Plaintiffs shall ﬁle their reply memorandum in support of their Motion for Summary Judgment on or before 1/9/2015. Signed by Magistrate Judge Tim A. Baker on 11/24/2014. (LBT) (Entered: 11/24/2014)

12/02/2014

44 Unopposed MOTION for Extension of Time to 1/9/2015 to ﬁle response to 40 MOTION for Summary Judgment , ﬁled by Defendant MICHAEL RICHARD PENCE. (Attachments: # 1 Text of Proposed Order)(Fisher, Thomas) (Entered: 12/02/2014)

12/16/2014

45 ORDER granting 44 Defendant's Unopposed Second Motion for Enlargement of Time. The Defendant shall ﬁle his memorandum in response to 40 MOTION for Summary Judgment on or before 1/9/2015.. Signed by Magistrate Judge Tim A. Baker on 12/16/2014. (JLM) (Entered: 12/16/2014)

01/09/2015

46 Third MOTION for Extension of Time to 02/09/2015 to ﬁle response to 40 MOTION for Summary Judgment , ﬁled by Defendant MICHAEL RICHARD PENCE. (Attachments: # 1 Text of Proposed Order)(Fisher, Thomas) (Entered: 01/09/2015)

01/22/2015

47 ORDER granting 46 Motion for Extension of Time to 2/9/2015 for Defendant to File his Response re 40 MOTION for Summary Judgment . Signed by Magistrate Judge Tim A. Baker on 1/22/2015. (LBT) (Entered: 01/22/2015)

02/09/2015

48 Fourth MOTION for Extension of Time to 2/23/2015 to ﬁle response to 40 MOTION for Summary Judgment , ﬁled by Defendant MICHAEL RICHARD PENCE. (Attachments: # 1 Text of Proposed Order)(Fisher, Thomas) (Entered: 02/09/2015)

02/13/2015

49 ORDER granting 48 Defendant's Unopposed Fourth Motion for Enlargement of Time The Defendant shall ﬁle his memorandum in response to 40 Motion for Summary Judgment on or before 2/23/2015. Signed by Magistrate Judge Tim A. Baker on 2/12/2015. (JLM) (Entered: 02/13/2015)

02/23/2015

50 NOTICE of Voluntary Dismissal, ﬁled by Plaintiffs ERIN BROCK, JO ANN DALE, MICHAEL DRURY, JANA KOHORST, MELISSA LOVE, JENNIFER REDMOND, LANE STUMLER, CAROL UEBELHOER. (Landenwich, Laura) (Entered: 02/23/2015)

03/20/2015 51 CLOSED DISMISSED with prejudice, each party to bear own costs and fees. Signed by Judge Richard L. Young on 3/20/2015.(TMD) (Entered: 03/20/2015)

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