4:14-cv-00015 #31

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA

NEW ALBANY DIVISION

MELISSA LOVE, et al.,

Plaintiffs,
v.
MICHAEL RICHARD PENCE,
in his official capacity as Governor
of the State of Indiana,

Defendant.
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No. 4:14-CV-15-RLY-TAB

REPLY MEMORANDUM IN SUPPORT OF DEFENDANTS
MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION

I. The Governor Does Not Manage Separately-Elected Officers of the
Administrative Department and, Even if he Did, This Would be Insufficient to
Confer Article III Standing

Plaintiffs claim that the Governor is a proper party to this suit because he is charged with
manag[ing] the officers[, including Court Clerks,] of the Administrative Department. Pls.
Resp. in Opp. to Defs. Mot. to Dismiss at 3 [Doc. 26] (hereinafter, Pls. MTD Opp.). This is
false. The Governor does not manage separately elected officers of the Administrative
Department, each of whom has a constitutional mandate to perform such duties, as may be
directed by law. Ind. Const. art. 6, 6. Unlike the federal government, Indiana does not have a
unified executive branch. Our J acksonian system of government divides and limits power
among many executive and administrative officials, such that, for example, Governors do not
grant marriage licenses and Clerks do not grant pardons.
Plaintiffs claim that the Governor has repeatedly exercised his power over the county
clerks and Administrative Department by virtue of executive order, as evidenced by [Plaintiffs]
Exhibit 1, orders which unquestionably demonstrate[] the Governors power to order the clerks
Case 4:14-cv-00015-RLY-TAB Document 31 Filed 05/08/14 Page 1 of 18 PageID #: 386
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to take specific actions. Pls. MTD Opp. at 3. Plaintiffs, however, fail to point out that each of
those executive orders involved a specific statutory power of the Governor, not some general
supervisory authority. Executive Orders 10-03 (Pls. Ex. 1 at 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. And 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 section 1-1-3-2.
By contrast, 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 authorityas is
their burdento 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, such would be insufficient to justify a
lawsuit against the Governor. Article III authorizes plaintiffs to invoke the judicial power only
against those who can actually provide concrete relief to address their particularized harms. As
the en banc Fifth Circuit has held, a state official cannot be enjoined to act in any way that is
beyond his authority to act in the first place. . . . This is not to say that the administrators of [the
statute] themselves could not be enjoined to do a particular act that was within their authority
but the[] plaintiffs must sue those individuals authorized to exercise the orders of the injunction.
Okpalobi v. Foster, 244 F.3d 405, 427 (5th Cir. 2001) (en banc). See also Snoeck v. Brussa, 153
F.3d 984, 986 (9th Cir. 1998) (general supervisory power over those persons responsible for
3

enforcing the challenged provision will not subject an official to suit.); S. Pac. Trans. Co. v.
Brown, 651 F.2d 613 (9th Cir. 1980) (The attorney generals power to direct and advise [the
district attorneys charged with prosecuting violations of the challenged statute] does not make
the alleged injury fairly traceable to the Plaintiffs injury).
Simply put, Plaintiffs have failed to meet their burden. They point to no enumerated
powers, duties, or obligations of the Governor that correspond to their alleged harms. Because
the Governor cannot provide the Plaintiffs with relief, this lawsuit against him must be
dismissed.
II. Plaintiffs Inability to Name a Proper Defendant For Purposes of Seeking Marriage
Recognition Demonstrates a Lack of Any Cognizable Injury on that Score

One of the extraordinary aspects of Plaintiffs memorandum is its inclusion of a list of
government officials whom they did not sue but who might conceivably grant relief for a
hypothetical injury owing to Indianas definition of marriage. See Pls. MTD Opp. at 4-5. They
suggest as possible defendants: the Department of Health and the Circuit Court Clerk[,] . . . the
Department of Insurance[,] . . . the Department of Revenue[,] . . . the Indiana Retirement
System[,] . . . the Housing & Community Development Authority[,] . . . the Department of
Corrections[, and] . . . the Department of Labor . . . . Id.
Plaintiffs make this list by way of attempting to demonstrate that identifying the proper
defendant is too onerous a burden. See id. at 4 n.1, 5 ([N]aming the specific individual would
itself be a challenge[, and] . . . there is no need for such complicated musings . . . .). Indeed,
they criticize the State for failing to identify whom, exactly, they should sue, see id. at 10 (The
Governor has not proposed an alternative defendant[.]), and they worry that there could
potentially be hundreds of defendants they might have to sue. Id. at 13. But these statements
only underscore the non-justiciability of their Complaint.
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1. Identifying the proper defendant (if there is one) is not the States burden, but to
the extent some Plaintiffs are injured because they cannot get Indiana marriage licenses, see id.
at 8; Compl. 2-3, 8, the place to turn is surely the county clerks, whose job is to issue marriage
licenses in accordance with law. See Ind. Code 31-11-1-6. Even Plaintiffs list of hypothetical
defendants seems to concede this point. Pls. MTD Opp. at 4-5.
Plaintiffs protest going this route because a 2004 Attorney General Opinion addressing
the subject of clerks marriage license authority says that clerks have no authority to either
issue licenses that are not authorized by statutes nor refuse to issue marriage licenses
altogether[.] Id. at 4 (citing Pls. Ex. 2). And indeed, while clerks have authority to issue
marriage licenses generally, they may not unilaterally declare themselves open for business
issuing licenses forbidden by statute, including Indiana Code Section 31-11-1-1. See Pls. Ex. 2;
see also Sweigart v. State, 12 N.E.2d 134 (Ind. 1938). Yet, one would have thought that the
whole point of this lawsuit was to challenge the constitutionality of the law that prevents clerks
from issuing marriage licenses to same-sex couplesand to achieve a remedy directing clerks to
do just that. If so, the clerk of a county wherein a same-sex couple looking to get married resides
would, indeed, seem to be the proper defendant.
2. With respect to demands for recognition for out-of-state same-sex marriages,
however, the State is in no position to direct Plaintiffs to the proper government agency. As
Plaintiffs list of possible defendants demonstrates, while there is a single definition of marriage,
marriage has different real-world impacts for different people. So, for example, a couple seeking
joint tax filing status might seek relief against the Commissioner of the Department of Revenue
(though not in federal court, see Tax Injunction Act, 28 U.S.C. 1341), or a couple with a
history of state employment might seek retirement benefits on account of marriage from the
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board members of the Public Employees Retirement Fund.
1
Plaintiffs do not claim to have any
personal interest in any of these types of relief, however.
Plaintiffs also list other benefits that hypothetical same-sex couples might want, such as a
right to a civil cause of action for wrongful death, a cause of action for loss of consortium, or
even the privilege of marital communications. Pls. MTD Opp. at 5. But they do not allege
that they might have occasion to assert such rights. They have no way of knowing whether
tragedy might strike and give rise to circumstances where one of these causes of action would be
useful, or whether they might find themselves in a position to assert the marital privilege. Not
every potential impact of Indianas marriage law will necessarily give rise to a declaratory
judgment action in federal court. Where plaintiffs cannot allege that a particular negative impact
is likely to harm them personally in the future, federal courts may not adjudicate the underlying
government conduct merely on the hypothesis that the impact may occur. See City of Los
Angeles v. Lyons, 461 U.S. 95, 101-02 (1983) (holding that a plaintiff who seek[s] to invoke the
jurisdiction of the federal courts . . . must show that he has sustained or is immediately in danger
of sustaining some direct injury as the result of the challenged official conduct and the injury or
threat of injury must be both real and immediate, not conjectural or hypothetical. (internal
quotations omitted)).
With respect to some impacts of the marriage law, constitutional challenges will have to
await a concrete set of facts where a same-sex couple actually stands to suffer harm from the
definition of marriage. The constitutionality of the law can be sorted out in the course of the

1
Plaintiffs also complain that in future challenges to the constitutionality of statutes affecting multiple agencies,
every agency head and perhaps even the specific employees saddled with the hands-on task of doing the job . . .
would have to be named. Pls. MTD Opp. at 13. However, the head of a government agency whose actions or
omissions cause Article III injury is a sufficient party. See, e.g., ACORN v. United States, 618 F.3d 125, 133-35 (2d
Cir. 2010) (permitting suit against the Secretary of Defense and the Director of the OMB); Ameron, Inc. v. U.S.
Army Corps of Engrs, 787 F.2d 875, 878 (3d Cir. 1986) (Comptroller General); Halkin v. Helms, 690 F.2d 977, 981
(D.C. Cir. 1982) (heads of the CIA, FBI, Department of Defense, and Secret Service).

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underlying litigation.

For example, the plaintiff in Brennon v. Milby Productions, No. 49 A02-
1401-CT-20 (Ind. Ct. App.), has brought a wrongful death action for the death of a same-sex
partner in the 2011 Indiana State Fair stage collapse, and in so doing has challenged the validity
of Indianas definition of marriage.
The Governor is not a default defendant, a sort of J ohn Doe of state government who
stands in whenever a plaintiff cannot name precisely how they have been injured or who caused
the injury.
3. Plaintiffs enumeration of hypothetical injuries (and defendants) highlights
another fundamental problem with this lawsuit, at least as it relates to recognition of out-of-state
same-sex marriages: Lack of particularized injury. Under Article III, [s]tanding is not an
ingenious academic exercise in the conceivable. Lujan v. Defenders of Wildlife, 504 U.S. 555,
560, 566 (1992) (internal quotations and citations omitted). Plaintiffs, rather, must have
suffered an injury in factan invasion of a legally protected interest which is . . . concrete and
particularized . . . . Id. If Plaintiffs are unable to identify a proper defendant, that is probably
because, at least with respect to lack of recognition of their out-of-state same-sex marriages, they
have suffered no an actual, concrete injury fairly traceable to any government official.
The Plaintiffs seeking recognition claim only that Indiana Code Section 31-11-1-1
disqualifies same-sex couples from critically important rights and responsibilities, imposes
substantive and dignitary inequities, and inflicts particular harms to same-sex couples
children[.] Pls. MTD Opp. at 8. However, Plaintiffs have not actually alleged any tangible or
particular harms that they or their children will, in fact, sufferparticularly by virtue of actions
or omissions of the Governor. They hypothesize about how Indianas traditional definition of
marriage impacts same-sex couples generally in areas such as health insurance coverage, vital
7

records, tax obligations, state employee benefits programs, motor vehicles . . . , and regulation of
health professions[,] Pls. MTD Opp. at 7, but in no way assert how any of them would benefit
if they were to prevail in this lawsuit. Plaintiffs may not invoke the injuries and rights of others
not before the Court, but must instead sue based only on their own injuries. Warth v. Seldin, 422
U.S. 490, 499 (1975) (The Art. III judicial power exists only to redress or otherwise to protect
against injury to the complaining party, even though the courts judgment may benefit others
collaterally.); see also Massey v. Helman, 196 F.3d 727, 739 (7th Cir. 1999) (Among these
prudential concerns is the general rule that a litigant must assert his own legal rights and cannot
assert the legal rights of a third party.).
Furthermore, as the district court observed in Sevcik v. Sandoval, 911 F. Supp. 2d 996 (D.
Nev. 2012), [a]ny stigma arising out of the State's refusal to recognize same-sex relationships as
marriages simply cannot be removed by judicial decree. Id. at 1018. While such
ramifications may be very real to Plaintiffs as individuals, they neither constitute cognizable
Article III harm nor are traceable to the Governor. Plaintiffs allege no facts demonstrating that
the Governor has said or done anything to insult their dignity or stigmatize them.
In Valley Forge Christian College v. Americans United for Separation of Church &
State, Inc., the Court held that psychological consequences presumably produced by
observation of conduct with which one disagrees . . . is not an injury sufficient to confer standing
under Art. III, even though the disagreement is phrased in constitutional terms. 454 U.S. 464,
485-86 (1982). And the Seventh Circuit has squarely held that mere offense is insufficient to
create the controversy needed to confer Article III standing. In Harris v. City of Zion, the court
held that [t]he requirement that the plaintiff allege an injury-in-fact, whether economic or
noneconomic, excludes simple indignation as a basis for Article III standing. That the plaintiff
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may be offended by the defendants conduct is not enough to confer standing. 927 F.2d 1401,
1405 (7th Cir. 1991). Similarly, when considering the constitutionality of a crucifixion display
in Gonzales v. North Township of Lake County, the court stated that [o]ffense to moral . .
.sensitivities does not constitute an injury in fact and is insufficient to confer standing. 4 F.3d
1412, 1416 (7th Cir. 1993).
Windsor does nothing to make these asserted harms cognizable under Article III. While
Windsor alluded to the offense or indignity of the plaintiffs in that case, it neither declared those
reactions to be sufficient for Article III standing nor made them the object of relief. Rather, the
relief was favorable tax treatment, not simply an abstract directive to no one in particular to
recognize the plaintiffs same-sex marriages.
Finally, race and gender discrimination cases involving standing merely confirm that
standing may exist when there is direct, purposeful discrimination, but abstract, generalized
dignitary harm cannot give rise to standing. In Allen v. Wright, 468 U.S. 737, 755 (1984), for
example, the Supreme Court denied standing to black public school children complaining that
the IRS was giving tax-exempt status to racially discriminatory private schools that they had
never planned to attend because the children d[id] not allege a stigmatic injury suffered as a
direct result of having personally been denied equal treatment. See also Heckler v. Mathews,
465 U.S. 728, 739-40 (1984) (permitting social-security-benefits claimant to challenge sex-based
classification in the spousal-benefit provisions of the Social Security Act based on unequal
treatment occasioned by defendants enforcement of that Act); Trafficante v. Metro. Life Ins.
Co., 409 U.S. 205, 207-08 (1972) (permitting tenants to bring statutory housing discrimination
claim against landlord where injunction would stop the specific unequal treatment giving rise to
the stigma the tenants claimed to suffer).
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Here, Plaintiffs assert no way in which the Governor has subjected them to unequal
treatment, which is critical for Article III standing.
III. Plaintiffs Cannot Circumvent the Eleventh Amendment by Suing the Governor

Plaintiffs are also unable to explain why the Eleventh Amendment does not bar their suit
against the Governor. They cite Dean Foods Company v. Brancel, 187 F.3d 609 (7th Cir. 1999),
for the proposition that the Eleventh Amendment is no barrier to this lawsuit, but that case has
nothing to do with the need to identify the proper defendant in an Ex parte Young lawsuit.
There, the Plaintiffs sued the Wisconsin Secretary of Agriculture, Trade and Consumer
Protection in a challenge to state milk pricing regulations promulgated by the Secretary. Id. at
611. Defendants in that case, however, did not argue that the suit was misdirected under Ex
Parte Young, but only that federal courts were unable to enjoin a state officer from violating state
law. Id. Dean Foods demonstrates that there are times when some plaintiffs may sue one or
more state government officials in federal court. It does not, however, demonstrate that this is
one of those times.
Plaintiffs argue that they need only identify the law or policy challenged as a
constitutional violation and name the official within the entity who can appropriately respond to
injunctive relief. Pls. MTD Opp. at 6 (quoting Hartmann v. Cal. Dept. of Corr. & Rehab, 707
F.3d 1114, 1127 (9th Cir. 2013). This proposition is hardly helpful, however, as Plaintiffs have
provided no theory as to how the Governor can appropriately respond to any injunctive relief
Plaintiffs seek. They identify nothing that they want the governor to do or to refrain from doing.
Plaintiffs rely on Allied Artists Pictures Corporation v. Rhodes, 473 F. Supp. 2d 560
(S.D. Ohio 1979), where the district court held that the Governors general duty of enforcement
rendered him a proper defendant in a constitutional challenge to Ohios motion picture trade
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enforcement legislation. However, the court acknowledged that such reasoning may over-
extend[] an already illusory fiction or amount[] to a fiction upon a fiction. Id. at 565. Plaintiffs
also rely on Federal National Mortgage Association v. Lefkowitz, 383 F. Supp. 1294 (S.D. N.Y.
1974), where the district court held that the Governors constitutional mandate to take care that
the laws are faithfully executed constituted a sufficient connection with the enforcement of a
statute requiring mortgage investing institutions to pay interest on escrow accounts. Id. at 1298.
The Court denied the Governors motion to dismiss because the Attorney General, also named as
a defendant, was challenging th[e] courts jurisdiction, [and] it might well [have been]
prejudicial to the plaintiff to dismiss the Governor from the action. Id. at n. 3. This hardly
constitutes authority for the proposition that Ex Parte Young applies in all cases where state
officials are sued, regardless whether they have any role enforcing the challenged statute.
Confirming that these cases lack persuasive value on this subject, in Okpalobi v. Foster,
244 F.3d 405 (5th Cir. 2001) (en banc), the court declined to follow both Allied Artists and
Federal National Mortgage as not only not binding in the Fifth Circuit but also because they
had been rejected as binding authority in [their] own circuit. Okpalobi, 244 F.3d at 420 (citing
Childrens Healthcare is a Legal Duty, Inc. v. Deters, 92 F.3d 1412, 1414-15,1416 (6th Cir.
1996); Kelley v. Metro. Cnty. Bd. of Educ., 836 F.2d 986, 990-91 (6th Cir. 1987)).
Plaintiffs also cite South Carolina Wildlife Federation v. Limehouse, 549 F.3d 324, 333
(4th Cir. 2008), where the Fourth Circuit held that the Executive Director of South Carolinas
Department of Transportation was a proper defendant in an Ex parte Young suit . . . because [of
his] supervisory authority . . . . Pls. MTD Opp. at 10. But there [t]he Director and his agency
[were] deeply involved in the preparation of the challenged [Final Environmental Impact
Statement] and the procurement of permits to proceed with construction . . . . Limehouse, 549
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F.3d at 333. Similarly, in Luckey v. Harris, 860 F.2d 1012 (11th Cir. 1988), the Governor was a
proper defendant because he had the residual power to commence criminal prosecutions, and
has the final authority to direct the Attorney General to institute and prosecute on behalf of the
state. Id. at 1016 (internal quotation marks and citations omitted). Plaintiffs identify no similar
role the Governor plays with respect to enforcing Indianas marriage definition.
2

Plaintiffs also rely on Citizens for Equal Protection v. Bruning, 455 F.3d 859, 864 (11th
Cir. 2006), where the Eighth Circuit permitted suit against the Governor and Attorney General to
challenge a Nebraska constitutional amendment defining marriage. Pls. MTD Opp. at 11. In
Bruning, however, plaintiffs did not seek a right to same-sex marriage or recognition of out-of-
state same-sex marriages as such. Rather, they challenged the Nebraska constitutional
amendment as a barrier to favorable legislation. This contextual distinction was important to the
Eight Circuit, which found sufficient connection between that political process injury and the
actions of the Attorney General, who had issued an opinion asserting that a proposed bill
providing same-sex marriage or benefits would run afoul of [Nebraskas traditional definition of
marriage. Bruning, 455 F.3d at 864. That AG opinion effectively killed the legislation, thereby
confirm[ing] that [the Attorney Generals] broad powers include[d] policing compliance with
Nevadas constitutional amendment. Id. The court made no separate analysis with respect to the
Governors role other than to observe that the State of Nebraska itself had not challenged the
suitability of the Governor as a defendant, which, in its view, amounted to an implicit

2
Plaintiffs also cite Lytle v. Doyle, 197 F. Supp. 2d 481, 484 n.1 (E.D. Va. 2001), but on remand the district court
ultimately dismissed the Governor as an improper party where Plaintiff made no showing that he had any
enforcement authority over the challenged statute.

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concession that both the Attorney General and the Governor and some unnamed connection
with the enforcement of the constitutional amendment.
3

Here, in contrast, Plaintiffs are not asserting a political process injury. They are instead
asserting actual fundamental rights to same-sex marriage and recognition of out-of-state same-
sex marriage. And in that regard they have shown no connection between the statutory definition
of marriage that they challenge, any injury they suffer from its enforcement, and the Governor.
Nor have they named other defendants susceptible to suit so as to save the case from outright
dismissal. And where in Bruning the State partys silence on the subject was a tacit concession
of some connection with . . . enforcement, 455 F.3d at 864, here the State is neither silent nor
conceding any such thing. Bruning is therefore inapposite on this point.
Finally, Plaintiffs also assert that [e]lsewhere within the Seventh Circuit, examples of
governors being joined as defendants in cases seeking declaratory and injunctive relief based on
alleged violations of constitutional and other legal requirements are also commonplace. Pls.
MTD Opp. at 12 n. 2. But in none of the six cases they cite did the Governor challenge, or the
court address, Article III standing or Eleventh Amendment immunity. These cases cannot and
do not provide authority to override the jurisdictional barriers that so plainly apply based on
controlling Supreme Court and Seventh Circuit doctrine.
IV. Dismissal, Not Discovery, Leave to Amend, or Passive Acceptance, is the Proper
Judicial Response Here

When a Plaintiff fails to name an appropriate defendant, either as a matter of Article III
standing or as a matter of sovereign immunity and the Eleventh Amendment, dismissal of the
action is the proper procedural course of action. See Dommer v Crawford, 653 F.2d 289, 291
(7th Cir. 1981) (dismissing claims against prosecuting attorney because he had no

3
A group of amici states, led by Indiana, brought the question of justiciability to the Eighth Circuits attention.
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responsibilities that ma[d]e him a suitable defendant in this case). Yet as a last resort to avoid
dismissal, Plaintiffs propose several alternatives. They urge the Court to do one of the
following: (1) ignore the jurisdictional defects in their Complaint; (2) permit them to take
discovery of the Governor to discover what he really does, in the hope that they might discover
some way in which his official acts injure them as a couple seeking marriage recognition; or (3)
grant them leave to amend their complaint to name the appropriate defendant. No matter how
much Plaintiffs want to challenge Indianas marriage definition in federal court, however,
nothing can save their case from the only course of action available: dismissal.
1. Plaintiffs suggest that their lack of standing and the Governors immunity from
suit are irrelevant and unimportant because, with four other pending cases challenging the
constitutionality of Indianas traditional marriage definition, the constitutionality of the statute
will be decided one way or another, against one defendant or another, with the same practical
outcome. Pls. MTD Opp. at 12.
The likelihood that the Court will reach the merits of various constitutional challenges to
Indianas marriage definition in another case in no way creates jurisdiction here. First, Plaintiffs
identify no Article III or Eleventh Amendment me too exceptions. Federal courts exist to
resolve the concrete disputes of the parties before them, not to make abstract legal decrees.
Accordingly, the parties in every case must be suitable to permit the exercise of jurisdiction.
Second, with so many other cases pending, the development of the law will not be
harmed if these plaintiffs are unable to present their legal arguments as parties before the Court.
The constitutionality of Indianas traditional marriage definition should be resolved in a case
where the Court has proper subject matter jurisdiction and there are no Eleventh Amendment
barriers.
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Third, permitting Plaintiffs to litigate notwithstanding the jurisdictional defects of the
Complaint threatens harm to the State as an institutional litigator. Permitting a fatally flawed
claim to proceed simply because it looks sufficiently like other cases that will proceed to
judgment anyway could undermine the States ability to assert Article III and Eleventh
Amendment defenses in future cases. If the federalism and separation of powers provisions of
the Constitution are to retain their significance, courts must be vigilant in policing the boundaries
of federal court jurisdiction.
2. Plaintiffs, having failed to articulate a direct injury traceable to the Governor (or
for which the Governor can provide redress), also urge the Court to permit discovery so that they
might define [the Governors] executive function and force the Governor 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. Pls. MTD Opp. at 14.
Rarely is an effort to use litigation to launch an impermissible fishing expedition, or to
embarrass the target of the lawsuit through discovery, so completely transparent. There may be
cases when a plaintiff can identify and articulate an injury, but because of an unclear factual
chain of events must utilize discovery to identify the proper defendant. See Gillespie v. Civiletti,
629 F.2d 637, (9th Cir. 1980) ([S]ituations arise . . . where the identity of alleged defendants
will not be known prior to the filing of a complaint[, and] . . . plaintiffs should be given an
opportunity through discovery to identify unknown defendants[.]). But federal court discovery
is not a vehicle to discern whether there has been any injury at all. See Penalbert-Rosa v.
Fortuno-Burset, 631 F.3d 592, 596 (1st Cir. 2011) (explaining that even discovery requires a
minimum showing and fishing expeditions are not permitted). Federal court plaintiffs are not
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permitted to file lawsuits against government officials just to trigger the discovery process so
they might learn whether they have grievances against those officials. Id. at 594-96.
Furthermore, the Governor is not readily susceptible to depositionotherwise litigants
dissatisfied with the results of the most recent election could paralyze the government with
endless lawsuits and discovery demands.
4
High-ranking officials should not have to spend their
time giving depositions in cases arising out of the performance of their official duties unless
there is some reason to believe that the deposition will produce or lead to admissible evidence.
Stagman v. Ryan, 176 F.3d 986, 994-95 (7th Cir. 1999). Courts should refuse to compel officials
to be deposed when such depositions would serve little purpose other than to disrupt a busy
official who should not be taken away from his work to spend hours or days answering lawyers
questions. Id. at 995 (internal quotation marks omitted).
5

Indeed, there is wide agreement that high-ranking officials should not be subject to
depositions absent extraordinary circumstances. See, e.g., Bogan v. City of Boston, 489 F.3d
417, 423 (1st Cir. 2007); In re FDIC, 58 F.3d 1055, 1060 (5th Cir. 1995); In re United States,
197 F.3d 310, 313 (8th Cir. 1999). See also Kyle Engineering Co. v. Kleppe, 600 F.2d 226, 231
(9th Cir. 1979) (Heads of government agencies are not normally subject to deposition.). This
agreement reflects the Morgan Doctrine. See United States v. Morgan, 313 U.S. 409 (1941). In
Morgan, the Supreme Court condemned the district courts decision to compel the Secretary of
Agriculture to appear and testify in a case challenging the maximum rates established for market
agencies at the Kansas City Stockyards. Id. at 422. The court stated that the short business is

4
As for written discovery, it is difficult to understand what responses to interrogatories Plaintiffs might expect that
would differ from what the Governor has already said in the papers filed in this case.

5
Along these lines, in Indiana v. International Business Machines Corporation, 964 N.E.2d 206, 208 (Ind. 2012),
the Indiana Supreme Court recently held that Indianas executive privilege statute provides the Governor with
absolute privilege to be free from obeying any subpoena to testify precluded the trial courts order compelling the
deposition of the Governor.

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that the Secretary should never have been subjected to [such] examination, because it was not
the function of the court to probe the mental processes of the Secretary. Id. Other courts have
since viewed the Morgan Doctrine as a strong caution against the taking of depositions for high-
ranking government officials[,] because of the importance of protecting the decision-making
process of such officials. United States v. Sensient Colors, Inc., 649 F. Supp. 2d 309, 316 (D.
N.J . 2009).
In any event, issues concerning standing and Eleventh Amendment immunity are
questions of law, not of fact. See Perry v. Village of Arlington Heights, 186 F.3d 826, 828 (7th
Cir. 1999) ([s]tanding to sue is a question of law . . . .); Fields v. Wharrie, 672 F.3d 505, 510
(7th Cir. 2012) (issues involving sovereign immunity are questions of law . . . .). The powers
and duties of the Governor are transparent for all to see in the Constitution, statutes and
regulations of the State of Indiana. If Plaintiffs cannot, through review of Indiana law, identify
whether and how the Governor has injured them as couples seeking marriage recognition, no
amount of discovery will uncover relevant hidden powers that the Governor might use to their
benefit if enjoined to do so by the Court.
3. Finally, Plaintiffs assert that leave to amend their Complaint would be the appropriate
course of action if the Court has no jurisdiction over the current iteration of their lawsuit. This
suggestion is surprising, to say the least. Under Rule 15 of the Federal Rules of Civil Procedure,
Plaintiffs could have amended their Complaint as of right within 21 days of the States Motion to
Dismiss. Fed. R. Civ. Pro. 15(a)(1)(B). They did not do so, which can only give rise to the
inference that there are no other defendants they might plausibly substitute given their
circumstances (an inference supported, as it happens, by Plaintiffs wonder at whom else they
17

might sue and their misplaced criticism that the Governor has not identified the proper defendant
for them, Pls. Mem. in Opp. MTD. at 10, 13).
Nor have Plaintiffs filed their own motion for leave to file an Amended Complaint.
Doing so, of course, would require them actually to tender a proposed Amended Complaint and
to explain how and why they are amending it. S.D. Local Rule 15-1. Instead, they merely raise
the vague idea that they might avail themselves of the opportunity to amend if only the Governor
or the Court will tell them whom to sue. This is not how federal practice is supposed to work.
The Court should rule only on the motions actually before itnamely by dismissing the case for
lack of federal jurisdiction.
CONCLUSION
For the foregoing reasons, the Defendant respectfully requests that this Court grant the
Motion to Dismiss and dismiss Plaintiffs Complaint.

Respectfully submitted,

GREGORY F. ZOELLER
Attorney General of Indiana

/s/ Thomas M. Fisher
Thomas M. Fisher
Solicitor General

Office of the Attorney General
Indiana Government Center South
Fifth Floor
302 West Washington Street
Indianapolis, IN 46205
(317) 232-6255

Counsel for Governor Michael Pence
18

CERTIFICATE OF SERVICE
I hereby certify that on the 8th day of May, 2014, a copy of the foregoing pleading was
filed electronically. Notice of this filing will be sent to the following parties by operation of the
Courts electronic filing system. Parties may access this filing through the Courts system.

Daniel J . Canon
Laura E. Landenwich
L. J oe Dunman
CLAY DANIEL WALTON ADAMS PLC
dan@justiceky.com
laura@justiceky.com
joe@justiceky.com

Shannon Fauver
Dawn R. Elliott
FAUVER LAW OFFICE PLLC
shannon@fauverlaw.com
dawn@fauverlaw.com

s/ Thomas M. Fisher
Thomas M. Fisher
Solicitor General

Office of the Indiana Attorney General
Indiana Government Center South, Fifth Floor
302 W. Washington Street
Indianapolis, IN 46204-2770
Telephone: (317) 232-6255
Facsimile: (317) 232-7979
Tom.Fisher@atg.in.gov


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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

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