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Commonwealth v. Hanes/Opinion comparison

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The following is a (perhaps incomplete) list of differences between the initial opinion and the amended opinion in Commonwealth v. Hanes. Text present in the original opinion but deleted in the amended opinion is indicated as such: deleted text. Text not present in the original opinion but inserted into the amended opinion is indicated as such: inserted text.

Section I.A.Edit

Paragraph 1:

On June 26, 2013, in a case involving the marital exemption from the federal estate tax under Section 2056(a) of the Internal Revenue Code, 26 U.S.C. §2056(a), the United States Supreme Court held that the federal Defense of Marriage Act’s definition of “marriage” as only as a legal union between a man and a woman, and the definition of “spouse” as only as a person of the opposite sex who was a husband or wife, found in 1 U.S.C. §7, was were unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment to the United States Constitution. See Windsor v. United States, ___ U.S. ___, ___, 133 S. Ct. 2675, 2693-2996 (2013). Nevertheless, as the Supreme Court explained:

Section I.B.Edit

Paragraph 1:

To declare Seeking a declaration that the prohibition of same sex marriages in Pennsylvania was unconstitutional, on July 9, 2013, the American Civil Liberties Union of Pennsylvania filed a federal civil rights lawsuit on behalf of a number of same-sex couples against several Commonwealth officials including the Governor; the Department’s Secretary; the Attorney General; the Register of Wills of Washington County; and the Register of Wills and Clerk of Orphans’ Court of Bucks County. See Whitewood v. Corbett (No. 13-1861) (M.D. Pa.). [...]

Paragraph 2:

On July 11, 2013, the Attorney General issued a press release announcing that her office would not defend the provisions of the Marriage Law in challenged in Whitewood because she deemed them to be “wholly unconstitutional” and that it was her duty under the Commonwealth Attorneys Act4 to authorize the Office of General Counsel5 to defend the State in the litigation. See Press Release, Office of Attorney General, Attorney General Kane will not defend DOMA (July 11, 2013), http://www.attorneygeneral.gov/press.aspx?id=7043. On July 23, 2013, D. Bruce Hanes (Hanes), Clerk of the Orphans’ Court of Montgomery County, issued a press release announcing that he had “decided to come down on the right side of history and the law” and was prepared to issue a marriage license to a same-sex couple based upon the advice of his solicitor, his analysis of the law, and the Attorney General’s belief that the Marriage Law is unconstitutional. See http://mainlinemedianews.com/articles/2013/07/23/main_line_times/news/doc51eecae35360b015385105.txt.

Section I.C.Edit

Paragraph 1:

On August 5, 2013, the Department filed the instant Petition and Application, seeking a writ of mandamus to compel Hanes, in his official capacity as Clerk of the Orphans’ Court of Montgomery County, to perform his duties as established by Section 2774(a) of the Judicial Code, 42 Pa. C.S. §§2774(a)6 and accordingly comply with all provisions of the apply the Marriage Law. The Department contends that this Court has jurisdiction over the action pursuant to Section 761(a) (1) and (2) of the Judicial Code, 42 Pa. C.S. §761(a)(1), (2),7 because Hanes is a “commonwealth officer.”

Paragraph 3:

Hanes filed a Response to the Department’s Application in which he raised in New Matter that the Application for mandamus should be denied for the reasons set forth in his Preliminary Objections filed that same day. First, Hanes alleges that he is a “judicial officer” under Section 2777 of the Judicial Code, 42 Pa. C.S. §2777, and that his issuance of a marriage license is a “judicial act,” so that exclusive jurisdiction over the instant mandamus action lies with the Supreme Court under Section 721(2) of the Judicial Code, 42 Pa. C.S. §721(2), as he is a “court[] of inferior jurisdiction,”10 and this Court does not have jurisdiction to issue a writ of mandamus to a “court of inferior jurisdiction” under Section 761(c), 42 Pa. C.S. §761(c),11 in the absence of a pending appeal.12

Paragraph 4:

Second, Hanes asserts that the Department does not have standing to seek mandamus relief, because only the Attorney General, the Montgomery County District Attorney, or a private citizen who has suffered a special injury may seek to enforce an officer’s public duty,13 and the Attorney General did not authorize the Department to bring suit under Section 204(c) of the Commonwealth Attorneys Act.

Paragraph 5:

Finally, Hanes contends that the Department fails to state a claim for which mandamus relief may be granted, because the Department fails to state a claim for which mandamus relief may be granted because the Department failed to show that a Clerk of the Orphans Court does not have a the discretion to determine the constitutionality of the Marriage Act. Hanes argues that the Department must show that Sections 1102 and 1704 of the Marriage Law are constitutional in order to establish a clear right to relief, and furthermore, that the Department cannot do so because the Marriage Law’s exclusion of same-sex marriages violates the inalienable right to marry solely based on gender in violation of the Fourteenth Amendment to the United States Constitution and Article 1, Sections 1, 26 and 28 of the Pennsylvania Constitution.14

Section IIEdit

Paragraph 1:

Relying on several cases, Hanes first argues that this Court cannot decide this case because jurisdiction properly lies with the Supreme Court under Section 721(2) of the Judicial Code, 42 Pa. C.S. §721(2), which provides that “[t]he Supreme Court shall have original but not exclusive jurisdiction of all cases of … (2) Mandamus or prohibition to courts of inferior jurisdiction.” (Emphasis added). He argues that because he is a “judicial officer,” and his issuance of a marriage license under the Marriage Law is a “judicial act” because he is issuing a marriage license on behalf of the Orphans’ Court division of the Court of Common Pleas of Montgomery County, that makes and, therefore, this mandamus action is one directed to a “court of inferior jurisdiction” conferring jurisdiction to the Supreme Court.

Paragraph 2:

Hanes is clearly a county officer, because he serves as Register of Wills and Clerk of Orphans’ Court, and as such performs only ministerial duties. Article 9, Section 4 of the Pennsylvania Constitution provides that “County officers shall consist of commissioners, controllers or auditors, district attorneys, public defenders, treasurers, sheriffs, registers of wills, recorders of deeds, prothonotaries, clerks of the courts, and such others as may from time to time be provided by law.” Pa. Const. art. IX, §4. In counties of the second class such as Berks County (such as Montgomery County) or second class A, one person holds the offices of both Register of Wills and Clerk of Orphans’ Court pursuant to Section 1302 of the Second Class County Code, 16 P.S. § 4302 §4302. Under Section 711(9) of the Probate, Estates and Fiduciaries Code (Probate Code), 20 Pa. C.S. §711(9), “[t]he jurisdiction of the court of common pleas over the following shall be exercised through its orphans’ court division: … Marriage licenses, as provided by law.” Marriage Thus, marriage licenses are issued by the Clerk of Orphans’ Court. However, Section 901 of the Probate Code, 20 Pa. C.S. §901, gives to the Register of Wills “[j]urisdiction of the probate of wills, the grant of letters to a personal representative, and any other matter as provided by law.”

Paragraph 3:

Courts of the Commonwealth have held that the Register of Wills, when accepting a will for probate, is acting in judicial capacity. See Commonwealth ex rel. Winpenny v. Bunn, 71 Pa. 405, 412 (1872) (“In nothing said herein do we mean to say that the acts of the register are in no case judicial. They are always so[.]”); In re Sebik’s Estate, 300 Pa. 45, 47, 150 A. 101, 102 (1930) (“[A] register is a judge, and the admission of a will to probate is a judicial decision, which can only be set aside on appeal, and is unimpeachable in any other proceeding.” (citing Holliday v. Ward, 19 Pa. 485, 489 (1852))); Walsh v. Tate, 444 Pa. 229, 236, 282 A.2d. 284, 288 (1971). (“[T]he Register of Wills performs a judicial function and is closely integrated into the judicial branch of government….);”) Cole v. Wells Cole v. Wells, 406 Pa. 81, 90-91, 177 A.2d 77, 81 (1962) (“The decree of probate by the Register of Wills constitutes a judicial decree in rem[.]”); Mangold v. Neuman, 371 Pa. 496, 500, 91 A.2d 904, 906 (1952) (“judicial decree of the register of wills”); (“[T]he Register of Wills performs a judicial function and is closely integrated into the judicial branch of government”).

Paragraph 4:

However, the courts have not held that the Clerk of Orphans’ Court acts in a judicial capacity when keeping records. For example, in Miller’s Estate, 34 Pa. Super. 385 (1907), the appellant’s contention that the authority of an Orphans’ Court clerk to grant or refuse a marriage license is a judicial and not a ministerial act was rejected by the Superior Court. Another case that Hanes cites to us is the unpublished single-judge opinion in Register of Wills & Clerk of the Orphans’ Court of Philadelphia License Marriage Bureau v. Office of Open Records (Pa. Cmwlth., No. 1671 C.D. 2009, filed March 26, 2010). Because it is an unpublished single-judge opinion, it is not precedential, Internal Operating procedure Procedure §414, but it is illustrative of how the definitions in the applicable act determine whether the Clerk of Orphans’ Court and/or Register of Wills can be considered a “judicial officer” in some circumstances and not others. In that case, we were considering whether the Register of Wills was a “judicial agency” for the purpose of determining whether the Office of Open Records had jurisdiction over records withheld by the Register of Wills Office under the Right-to-Know Law (RTKL).17 We noted that Section 102 of the RTKL, 65 P.S. §67.102, defines “judicial agency” as “[a] court of the Commonwealth or any other entity or office of the unified judicial system,” and that Section 102 of the Judicial Code, 42 Pa. C.S. §102, includes “administrative staff” within the definition of “personnel of the system,” which also includes clerks of court and prothonotaries. Based on the definitions in the RTKL, we held that the Office of Open Records could not order the release of judicial records held by the Register of Wills and Clerk of the Orphans’ Court of Philadelphia. Moreover, while “personnel of the system” are deemed to be part of a “judicial agency” for purposes of the RTKL, we made an explicit distinction between the “judicial function” of the Register of Wills with respect to the probate of wills and the non-judicial function of the Clerk of Orphans’ Court with respect to the issuance of marriage licenses. Id.18

Footnote 18:

18 See also Retail Clerks International Association Int'l Ass'n, Local 1357 v. Leonard, 450 F.Supp. 663, 666 (E.D. Pa. 1978) (“The powers and duties of the Register of Wills are set forth in [Section 901 of the Probate, Estates and Fiduciaries Code, 20 Pa. C.S.] §901: (t)he register shall have jurisdiction of the probate of wills, the grant of letters to a personal representative, and any other matter as provided by law. It is apparent that the Register’s judicial duties are confined to matters relative to the probate of wills. Sebik’s Estate[.] Thus, we find that the hiring and firing of employees is functionally not within the purview of his judicial duties and therefore not within the ambit of those acts which entitle him to judicial immunity….”).

Paragraph 5:

As we looked to the definitions contained in the RTKL in Register of Wills & Clerk of the Orphans’ Court of Philadelphia License Marriage Bureau, we look to the definitions in the Judicial Code in deciding whether the Supreme Court has exclusive jurisdiction of this matter under Section 721(2) as a mandamus action to a “court of inferior jurisdiction.” 42 Pa. C.S. §721(2). Section 102 of the Judicial Code defines “court” as “[i]nclud[ing] any one or more of the judges of the court who are authorized by general rule or rule of court, or by law or usage, to exercise the powers of the court in the name of the court.” 42 Pa. C.S. §102. Section 102 also defines “judicial officers” as “[j]udges, district justices and appointive judicial officers.” In contrast, “county staff” is defined as “[s]ystem and related personnel elected by the electorate of a county…The term does not include judicial officers.” Id. In turn, “system and related personnel” is defined as including Registers of Wills and Clerks of the Orphans’ Court division. Id. Thus, Hanes, as the Clerk of the Orphans’ Court and Register of Wills, is “county staff” and is not a judge or judicial officer. Accordingly, he is not within the definition of “court” within the meaning of Section 721(2) of the Judicial Code, and the Supreme Court does not have jurisdiction of this mandamus action against him.

Paragraph 6:

Finally, Moreover, this is an action by the Department of Health, part of the Executive Branch of the Commonwealth government. As such, the Department, with counsel designated by the Office of General Counsel, may bring this action in the Commonwealth Court pursuant to Section 761(a)(2) of the Judicial Code, which grants the Commonwealth Court “original jurisdiction of all civil actions or proceedings:…(2) By the Commonwealth government ….” 42 Pa. C.S. § 761(a)(2).

Section IIIEdit

Paragraph 1:

Hanes next argues that the Department does not have standing20 under the former Mandamus Act of 1893 and the related cases21 to initiate the instant mandamus proceedings seeking to compel him to perform his public duty, because only the Attorney General, the Montgomery County District Attorney or a private citizen with an interest independent of the public at large has such standing. Because the Department is not the Attorney General or a private citizen, he contends that it does not have standing to maintain this action.

Footnote 20:

20 The concept of “standing,” in its accurate legal sense, is concerned only with the question of who is entitled to make a legal challenge to the matter involved. Pennsylvania Game Commission v. Department of Environmental Resources Pa. Game Comm'n v. Dep't of Envtl. Res., 521 Pa. 121, 127, 555 A.2d 812, 815 (1989). Standing may be conferred by statute or by having an interest deserving of legal protection. Id. at 128, 555 A.2d at 815. As a general matter, the core concept of standing is that a person who is not adversely affected by the matter he seeks to challenge is not aggrieved thereby and has no right to obtain a judicial resolution of his challenge. Id.

Paragraph 3:

Moreover, the Department of the Health has standing in its own right to bring this action. As the Supreme Court has explained:
[W]hen the legislature statutorily invests an agency with certain functions, duties, and responsibilities, the agency has a legislatively conferred interest in such matters. From this it must follow that, unless the legislature has provided otherwise, such an agency has an implicit power to be a litigant in matters touching upon its concerns. In such circumstances the legislature has implicitly ordained that such an agency is a proper party litigant, i.e., that it has “standing”….
Pennsylvania Game Commission, 521 Pa. at 128, 555 A.2d at 815. See ; see also Commonwealth v. Beam, 567 Pa. 492, 497-500, 788 A.2d 357, 361-62 (2005) (holding that the Department of Transportation had the implicit authority under the Aviation Code, 74 Pa. C.S. §§5101-6505, to initiate an action in equity to enjoin the operation of an unlicensed airport where the injunctive relief sought was a restrained and supervised form of administrative action and the operation of the unlicensed airport was injurious to the public interest).

Paragraph 4:

Section 2104(c) of the Administrative Code of 1929 (Administrative Code)22 empowers the Department “[t]o see that laws requiring the registration of … marriages … are uniformly and thoroughly enforced throughout the State, and prompt returns of such registrations made to the department.” Thus, the General Assembly has specifically conferred upon the Department the duty to ensure the uniform and thorough enforcement of all provisions of the Marriage Law, including Section 1102, defining marriage as “[a] civil contract by which one man and one woman take each other for husband and wife,” and Section 1704 which makes same-sex marriages entered into in foreign jurisdictions void within the Commonwealth. 23 Pa. C.S. §§1102, 1704. In addition, the General Assembly has empowered the Department to enforce Section 1301(a), which prohibits persons from being joined in marriage until a license is obtained, and Section 1302, which requires a written and verified application by both parties before a license is issued requiring the disclosure “[a]ny other facts necessary to determine whether legal impediment to the proposed marriage exists.” 23 Pa. C.S. §§1301(a), 1302(a) (b) (6). Further, Section 1104 requires that “[m]arriage licenses … shall be uniform throughout this Commonwealth as prescribed by the department…,” in a form that states, under Section 1310, that “[y]ou are hereby authorized to join together in holy state of matrimony, according to the laws of the Commonwealth of Pennsylvania, (name) and (name)….” 23 Pa. C.S. §§1104, 1310. Finally, the Department has the duty to uniformly enforce the provisions of Section 1307, which states that “[t]he marriage license shall be issued if it appears from properly completed applications on behalf of each of the parties to the proposed marriage that there is no legal objection to the marriage….” 23 Pa. C.S. §1307.23

Paragraph 5:

Based on the foregoing, it is clear that the Department is the proper party with standing to initiate the instant mandamus proceeding to compel Hanes to discharge his duties in compliance with the Marriage Law, because the Department possesses a substantial, direct, and immediate interest in the subject matter of this litigation pursuant to its authority under the Administrative Code and the Marriage Law.

Section IVEdit

Paragraph 2:

The same applies to the clerks of the Orphans’ Court orphans’ court division of the courts of common pleas, because they are also created and vested with the same powers by the same constitutional provision, Section 15 of the Schedule to Article 5 of the Constitution.24 Likewise, the statutory powers conferred upon the clerk of the Orphans’ Court orphans’ court division under Section 2777 of the Judicial Code25 are identical to those conferred upon the prothonotary under Section 2737, 42 Pa. C.S. §2737, and the clerk of courts under Section 2757, 42 Pa. C.S. §2757. Thus, the powers granted under Section 2777 to Hanes as the Clerk of the Orphans’ Court:
[a]re clearly ministerial in nature. Nothing in this grant of authority suggests the power to interpret statutes and to challenge actions of the court that the clerk perceives to be in opposition to a certain law. Thus, the clerk of courts, as a purely ministerial office, has no discretion to interpret rules and statutes….
In re Administrative Order No. 1-MD-2003, 594 Pa. at 361, 936 A.2d at 9; see also Council of the City of Philadelphia v. Street, 856 A.2d 893, 896 (Pa. Cmwlth. 2004), appeal denied, 583 Pa. 675, 876 A.2d 397 (2005) (“A ministerial act is defined as ‘one which a public officer is required to perform upon a given state of facts in a prescribed manner in obedience to the mandate of legal authority and without regard to his own judgment or opinion concerning the propriety or impropriety of the act performed.’”) (citations omitted).

Paragraph 3:

Nor was is any discretion given to the clerk when issuing the license under the Marriage Law, which requires the clerk to issue a marriage license only if certain criteria are met. Section 1302(a) provides that “[n]o marriage license shall be issued except upon written and verified application made by both of the parties intending to marry,” and Section §1302(b) outlines the contents thereof. 23 Pa. C.S. §1302(a), (b).26 Section 1303(a) provides that no marriage license shall be issued prior to the third day after application unless the Orphans’ Court authorizes a waiver of the time period pursuant to subsection (b). 23 Pa. C.S. §1303(a), (b). 27 Section 1304(b) prohibits the issuance of a license if either of the applicants is under 16 years of age unless the Orphans’ Court determines that it is in the best interest of the applicant, and it prohibits issuance of a license if either of the applicants is under 18 years of age unless consented to by the custodial parent. 23 Pa. C.S. §1304(b) (1), (2). Section 1304 further prohibits issuing a marriage license to incompetent persons unless the Orphans’ Court decides that it is in the best interest of the applicant or society, to applicants under the influence of alcohol or drugs, or to applicants within the prohibited degrees of consanguinity. 23 Pa. C.S. §1304(c), (d), (e). Under Section 1306, Hanes is required to examine each applicant in person as to: (1) the legality of the contemplated marriage; (2) any prior marriages and their dissolution; (3) any of the Section 1304 restrictions; and (4) all information that must be furnished on the application as prepared and approved by the Department. 23 Pa. C.S. §1306(a). Finally, under Section 1307, Hanes is required to issue the marriage license subject to the Section 1303(a) three-day waiting period, “[i]f it appears from properly completed applications on behalf of each of the parties to the proposed marriage that there is no legal objection to the marriage.” 23 Pa. C.S. §1307. Under Section 1308(a), 23 Pa. C.S. §1308(a), an applicant can appeal Hanes’ refusal to issue a marriage license to the Orphans’ Court.

Section VEdit

Paragraph 1:

Hanes also argues that the Application should not be granted because the Department has to establish a clear right to relief, and to do that, the Department must show that the provisions in the Marriage Law limiting marriage to a man and a woman are constitutional. The Department asserts that this is the same as raising a counterclaim which is prohibited under the rules governing mandamus actions. See Pa. R.C.P. No. 1096 (“No counterclaim may be asserted.”). Until a court has decided that an act is unconstitutional, Hanes must enforce the law as written, and it is not a defense to a mandamus action that the law may be unconstitutional. A Only a court can arrive at the that conclusion.

Footnote 28:

28 See also Rose Tree Media School District Sch. Dist. v. Department of Public Instruction Dep't of Pub. Inst., 431 Pa. 233, 237, 244 A.2d 754, 755-56 (1968) (“[O]nce the Department has approved the amount of reimbursable transportation costs there is no discretion left to the Department in arriving at the actual amount which must be paid to the school district. After approval, the Department is mandated by statute to remit an amount which is to be determined by applying the mechanical formula of multiplying the cost of the approved reimbursable pupil transportation incurred during the school year by the district’s aid ratio. The application of that formula does not involve any discretion but merely involves the ministerial duty of making proper computations in accordance with the directives of the statute….”); Lockyer v. City and County of San Francisco, 33 Cal. 4th 1055, 1081-82, 95 P.3d 459, 472-73 (2004) (“[U]nder the statutes reviewed above, the duties of the county clerk and the county recorder at issue in this case properly are characterized as ministerial rather than discretionary. When the substantive and procedural requirements established by the state marriage statutes are satisfied, the county clerk and the county recorder each has the respective mandatory duty to issue a marriage license and record a certificate of registry of marriage; in that circumstance, the officials have no discretion to withhold a marriage license or refuse to record a marriage certificate. By the same token, when the statutory requirements are not met, the county clerk and the county recorder are not granted any discretion under the statutes to issue a marriage license or register a certificate of registry of marriage….”) (emphasis in original).

Section V.A.Edit

Paragraph 1:

All that a democratic form of government means is that we will be governed democratically - is a the process does not guarantee any particular outcome. The citizens of the Commonwealth have consented to be governed under the terms of our Constitution, and the it provides how the Pennsylvania democracy works. Under Article 2, Section 1, the legislative power of the Commonwealth, is vested in the General Assembly. Pa. Const. art. II, §1. The legislative power is the power “to make, alter and repeal laws….” Jubelirer v. Rendell, 598 Pa. 16, 41, 953 A.2d 514, 529 (2008). When the legislature enacts a law, under Article 4, Section 2, it is up to the Governor “to take care that the laws be faithfully executed.” Pa. Const. art. IV, § 2 §2. In addition, Article 5, Section 1 of the Constitution states:
The judicial power of the Commonwealth shall be vested in a unified judicial system consisting of the Supreme Court, the Superior Court, the Commonwealth Court, courts of common pleas, community courts, municipal and traffic courts in the City of Philadelphia, such other courts as may be provided by law and justices of the peace. All courts and justices of the peace and their jurisdiction shall be in this unified judicial system.
Pa. Const. art. V, §§1, 2(a) §1. Under our Constitution then, only the courts have the power to determine the constitutionality of a statute. In re Investigation by Dauphin County Grand Jury, 332 Pa. 342, 352-53, 2 A.2d 804, 807 (1938); Hetherington v. McHale, 311 A.2d 162, 167 (Pa. Cmwlth. 1973), rev’d on other grounds, 458 Pa. 479, 329 A.2d 250 (1974).29

Footnote 29:

29 As a corollary to this claim, Hanes contends that the Department cannot possess a clear legal right to force him to abandon his oath of office and violate the United States and Pennsylvania Constitutions while discharging the duties of his office. See Article 6, Section 3 of the Pennsylvania Constitution, Pa. Const. art. IV, §3 (“[A]ll county officers shall, before entering on the duties of their respective offices, take and subscribe the following oath or affirmation before a person authorized to administer oaths. ‘I do solemnly swear (or affirm) that I will support, obey and defend the Constitution of the United States and the Constitution of this Commonwealth and that I will discharge the duties of my office with fidelity.’….”). However, his oath of office requires him to follow the law until a court decides it is unconstitutional. See, e.g., State ex rel. Atlantic Coast Line Railroad Co. R.R. v. State Board Bd. of Equalizers, 84 Fla. 592, 595-96, 94 So. 681, 683-84 (1922) (“The contention that the oath of a public official requiring him to obey the Constitution places upon him the duty or obligation to determine whether an act is constitutional before he will obey it is, I think without merit. The fallacy in it is that every act of the Legislature is presumptively constitutional until judicially declared otherwise, and the oath of office ‘to obey the Constitution’ means to obey the Constitution, not as the officer decides, but as judicially determined. The doctrine that the oath of office of a public official requires him to decide for himself whether or not an act is constitutional before obeying it will lead to strange results, and set at naught other binding provisions of the Constitution.”).

Paragraph 2:

Governmental officials carry out the functions assigned to the office and no more because when decisions are reached that follow these and other constitutional procedures, it fosters acceptance of a statute or decision even by those who even strongly disagree. When public officials don’t do not perform their assigned tasks, it creates the type of “complication” caused by the United States Attorney General’s decision not to defend DOMA, which led the Supreme Court of the United States in Windsor to spend as much time addressing that “complication” as it did on the merits of the case. In this case, a clerk of courts has not been given the discretion to decide that a law whether the statute he or she is charged to enforce is a good idea or bad one, constitutional or not. Only courts have the power to make that decision.

Section V.B.Edit

Footnote 30:

30 See also The Crossings at Fleming Island Community Development District Dev. Dist. v. Echeverri, 991 So. 2d 793, 799 (Fla. 2008) (holding that there is no “defensive posture” exception to the historical rule that a public official acting in his or her official capacity does not have standing to challenge the validity of a statute); Li v. State, 338 Or. 376, 396-98, 110 P.3d 91, 101-02 (2005) (holding that while executing his or her official duties, a governmental official must take care to consider the meaning of the state and federal constitutions, but that does not grant official powers to take actions and fashion remedies that would constitute ultra vires acts); Lockyer, 33 Cal. 4th at 1082, 95 P.3d at 473 (holding that a local public official charged with the ministerial duty of enforcing a statute does not have the authority to refuse to enforce the statute on the basis of the official’s view that it is unconstitutional in the absence of a judicial determination of unconstitutionality).

Paragraph 3:

We note that in two other cases involving public officers with discretionary powers, our Supreme Court addressed challenges to the constitutionality of a statute as a defense in a mandamus action. In Commonwealth ex rel. Brown v. Heck, 251 Pa. 39, 95 A. 929 (1915), our Supreme Court considered the constitutionality of a statute altering the counties of a judicial district, an issue that was raised as a defense in a mandamus action seeking to compel a common pleas court judge to perform his judicial duties to administer an estate,. without addressing or distinguishing The Supreme Court did not address or distinguish James. In Commonwealth ex rel. Carson v. Mathues, 210 Pa. 372, 59 A. 961 (1904), the Supreme Court affirmed a common pleas order granting mandamus to compel the state treasurer to pay warrants for judicial salaries. The Supreme Court did not address the trial court’s analysis of James or the trial court’s holding that the treasurer’s standing as “a high constitutional officer of the Commonwealth” who exercises “discretion” permitted him to defend on the purported unconstitutionality of the statute setting the salaries. James, is, nonetheless, controlling because the instant case also involves a mandamus action to compel a court clerk with no discretionary authority to perform his mandatory ministerial duty, whereas the foregoing cases involved constitutional officers with discretionary authority.

Paragraph 4:

Because only the General Assembly may suspend its own statutes, and because only courts have the authority to determine the constitutionality of a statute, and because all statutes are presumptively constitutional, a public official “[i]s without power or authority, even though he is of the opinion that a statute is unconstitutional, to implement his opinion in such a manner as to effectively abrogate or suspend such statute which is presumptively constitutional until declared otherwise by the Judiciary.” Hetherington, 311 A.2d at 168. Based on the foregoing, it is clear that Hanes does not have standing to assert the purported unconstitutionality of the Marriage Law as a defense to the instant Petition.

Section VIIEdit

Paragraph 2:

As outlined above, Hanes has admittedly failed to comply with his mandatory ministerial public duty under the Marriage Law by issuing marriage licenses to same-sex couples, by accepting the marriage certificates of same-sex couples, and by waiving the mandatory three-day waiting period, all in violation of the express provisions of the Marriage Law. Even if Hanes is correct in his view that portions of the Marriage Law are unconstitutional, as noted above, the instant mandamus action is not the proper forum in which such a determination may be made. Barge. The proper method for those aggrieved is to bring a separate action in the proper forum raising their challenges to the Marriage Law. Unless and until either the General Assembly repeals or suspends the Marriage Law provisions or a court of competent jurisdiction orders that the law is not to be obeyed or enforced, the Marriage Law in its entirety is to be obeyed and enforced by all Commonwealth public officials.

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