The state attorney general shouldn’t be dismissed from a case challenging Pennsylvania’s ban on same-sex marriage unless the governor is dismissed from the case also, lawyers for the Corbett administration argued in one of the three state-court cases over the law.
The couples who brought the suit in September, represented by Robert Heim of Dechert, filed a joint petition with Attorney General Kathleen Kane last month seeking to dismiss her as a defendant since she “is an unnecessary party,” according to the short petition filed with the Commonwealth Court.
The Corbett administration, represented by lawyers from Lamb McErlane, fired back, saying in a response filed this week, “Joint petitioners argue that a discontinuance of the action against the attorney general would not cause unreasonable inconvenience, vexation, harassment, expense or prejudice to the governor. This is completely untrue.”
The lawyers for Gov. Tom Corbett, a Republican, argued that dismissing only Kane, who is a Democrat, “implies a motive to inconvenience, harass and/or prejudice the governor with no legitimate justification.”
Corbett, Kane and Michael Wolf, the state’s secretary of health, are named as defendants in the action, which was brought by couples who got married this summer after getting licenses issued by D. Bruce Hanes, the Montgomery County clerk who began giving marriage licenses to same-sex couples in July. Hanes started issuing them shortly after Kane announced that she wouldn’t defend the state’s marriage law in the first suit to challenge the law that was filed in federal court in July. That move prompted sparring between the Attorney General’s Office and the Office of General Counsel, which is an extension of the executive branch.
Kane had announced that in the wake of the U.S. Supreme Court’s decision in United States v. Windsor striking down the federal Defense of Marriage Act’s definition of marriage as being between one man and one woman, Pennsylvania’s version of DOMA is unconstitutional.
“The publicly stated views of the governor and the attorney general as to the constitutionality of the marriage law and its defense against challenge in this case are not relevant to the discrete legal question properly before the court: Are the governor and the attorney general necessary parties in this case?
“Because neither official is a necessary party for the same legal reason, both should be dismissed from this case at the same time,” according to the administration’s response filed this week.
The plaintiffs in the first federal suit, represented by lawyers from the American Civil Liberties Union and Hangley Aronchick Segal Pudlin & Schiller, agreed in November to dismiss Corbett from their case after he launched a vigorous protest to his inclusion in the suit. They added Dan Meuser, the secretary of revenue, making the two official defendants Meuser and Wolf and shifting the focus of the case to grievances related to tax-filing status and death certificates.
In the recently filed response in the state suit, the Corbett administration argued that Wolf is the appropriate state official to be named and Corbett himself isn’t required as a defendant.
“All of the claims that petitioners have made directly implicate the statutory responsibilities and executive interests of the secretary of health as head of the Department of Health,” according to the response filed this week.
Beyond that, the administration argued, “joint petitioners say that they seek to discontinue this action against the attorney general because ‘she is an unnecessary party to the action.’ At the same time, petitioners inexplicably refuse to accord the same amicable disposition to the governor.”
“Inasmuch as the governor as a matter of law is no more necessary to this action than is the attorney general, the attorney general should not be dismissed as a respondent in this matter, unless the governor also is dismissed,” the response said.