Commonwealth Court President Judge Dan Pellegrini cut to the essentials in the threshold arguments for the case challenging the Montgomery County clerk who has been issuing marriage licenses to same-sex couples. The core issue is who decides, he said.

That distillation applies to two primary issues before him: which court, his or the Pennsylvania Supreme Court, has jurisdiction; and to what degree D. Bruce Hanes, in his role as issuer of marriage licenses in Montgomery County, has the discretionary power to decide how to issue them.

Hanes argued that, because he should be considered a judicial officer, the mandamus action filed by the Pennsylvania Department of Health seeking to stop him from issuing licenses to same-sex couples should be in the state Supreme Court, which is charged with hearing challenges to officers of lower courts.

The Department of Health cited statutory definitions that would mean Hanes is not a judicial officer. The lawyer representing Hanes, Raymond McGarry of the Montgomery County Solicitor's Office, however, argued that the case law that has developed since those definitions were set would trump them and qualify Hanes as an officer of the court.

Clerks of courts, said Gregory Dunlap of the Office of General Counsel, are defined as county officers and court personnel, not judicial officers, which would keep the case in the Commonwealth Court.

"But there are cases, and I think I wrote one, that call them judicial officers," Pellegrini said.

Historically, they've performed tasks that serve the functioning of the court, Dunlap said, but that doesn't change the supervisory structure set out by statute.

"This is really a classic action in mandamus," Dunlap said, with the Department of Health asking the court to compel Hanes to enforce Pennsylvania's marriage law as it is written, thereby conforming with the 66 other clerks across the state that do the same.

Earlier, Dunlap had said, "The law does not allow in a mandamus action the collateral attack on the constitutionality of the statute, either by the respondent or those whose interests are implicated," referring to the argument from Hanes and many of the couples who have been issued licenses and are asking to intervene in the case, bringing constitutional issues.

When the issue is one of public interest or when it is one on which the attorney general has opined, the law allows constitutional arguments in defense of a mandamus action, McGarry said.

Pellegrini questioned whether Attorney General Kathleen Kane's public statements from this summer, saying that Pennsylvania's law restricting marriage to opposite-sex couples is unconstitutional, would count. Her statement came on the heels of the filing of a separate federal suit challenging the constitutionality of Pennsylvania's marriage law head-on.

"She hasn't issued an opinion," Pellegrini said.

"The only time an attorney general's opinion has any legal effect is if it's an opinion and under the Commonwealth Attorneys Act it is something that has to be asked for by an executive department or an agency. … It's a statement, but not an opinion."

Leaving the issue of what would qualify as an official opinion opening the gate for a constitutional argument in the mandamus action, Pellegrini opened up to the larger issue he is wresting with.

"I guess what I'm trying to get to is: Can the register of wills decide on his own that the act is unconstitutional and not enforceable?" he asked.

"Under my example, the attorney general is silent … in fact, it's even before [United States v.] Windsor — can the register of wills decide that the act is unconstitutional and issue marriage licenses?"

There's no question that he decides on the legality of the proposed marriage, McGarry answered.

"That really goes to the core issue of who decides," Pellegrini said, briefly referencing the potential for a parallel situation in which sheriffs who are responsible for issuing gun permits make unilateral decisions on their issuance.

"This is not only this case, when we make the determination of whether or not he can decide, I'm looking at the ramifications not just for this case, but for all kinds of other cases. … There's a lot of constitutional officers in this commonwealth and I'm trying to decide if and when they can make a determination," Pellegrini said.

Hanes is arguing, first, that he does have the right to decide, but, failing that, that he at least has the right to argue the constitutionality of the act as a defense, McGarry said.

"What you're in effect saying is he can make a decision to issue the licenses and the sheriff can make a decision to issue gun permits," Pellegrini said. "That's a hard question."

"Isn't there a better way of getting this issue where someone like the intervenors … would be arguing the constitutionality?" Pellegrini asked. He had earlier asked Robert Heim of Dechert, who is representing the potential intervenors, if it wouldn't be better to file their own action.

That's always the issue in mandamus actions like this, McGarry said, and, referring to Dunlap's earlier characterization of the chaos that would come with an expansive ruling on the issue: "This court can tailor a decision in which you can raise the constitutionality defense where it would not create chaos — that's just a ruse."

"I guess the problem that I'm having with your argument is, first of all, it's being heard down the street," Pellegrini said, referring to the federal case filed in July.

Suggesting that the threshold issues throw up complex barriers to the heart of the actual dispute, Pellegrini said, "We can reach the issue you're trying to reach in a much more orderly fashion," if Hanes or the intervenors would file a declaratory action.

Hanes, who took an oath to uphold the Constitution, was presented with a same-sex couple who wanted to marry after the U.S. Supreme Court struck down the Defense of Marriage Act and Kane had announced that Pennsylvania's version of DOMA was unconstitutional, McGarry said, asking the court, what was he to do?

"We always get back to the issue of who decides," Pellegrini said. "It's a difficult case."

He said that he would issue a decision as fast as he can.

Saranac Hale Spencer can be contacted at 215-557-2449 or sspencer@alm.com. Follow her on Twitter @SSpencerTLI.