3:14-cv-04155-JMC

Date Filed 02/09/15

Entry Number 18

Page 1 of 3

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Julie A.A. McEldowney f/k/a
Julie Ashmore,

)
)
)
Plaintiffs,
)
)
v.
)
)
South Carolina Department of Motor
)
Vehicles, Kevin S. Shwedo, in his official )
capacity as Director of the South Carolina )
Department of Motor Vehicles, and Nikki )
Haley, in her official capacity as Governor )
of South Carolina,
)
)
Defendants.
)
________________________________
)

Civil Action No. 3:14-cv-4155-JMC

MOTION FOR
SUMMARY JUDGMENT

The Defendants hereby move for summary judgment herein pursuant to Rule 56, FRCP,
in that, for the following reasons, the pleadings and any affidavits hereinafter submitted, show
that there is no genuine issue as to any material fact as to the defenses herein and that the
Defendants are entitled to judgment as a matter of law for the following reasons that are
supported by the attached memorandum and any other reasons in their Answer:
1.

Since November 20, 2014, Defendant Department of Motor Vehicles has allowed

name changes on drivers licenses based upon same-sex marriages provided that the applicants
otherwise meet the requirements of State law. The change in DMV policy allowing changes of
names based upon same-sex marriages was made for reasons unrelated to the instant case and

3:14-cv-04155-JMC

Date Filed 02/09/15

Entry Number 18

Page 2 of 3

was prior to any decision of the Court in this case. 1 Plaintiff changed her name on her drivers
0F

license on December 9 pursuant to the above DMV policy.

2.

This case is moot for the above reasons.

3.

The Plaintiff lacks standing to pursue her claims in this action.

4.

This case presents no case or controversy.

5.

Plaintiff has an adequate remedy and is not entitled to injunctive relief.

The Full Faith and Credit Clause of the United States does not apply to or require

recognition of marriages entered out-of-state regardless of whether such marriages are of

opposite-sex or same-sex individuals.
7.

The Court lacks subject matter jurisdiction of this action.

Respectfully submitted,
ALAN WILSON
Attorney General
Federal ID No.10457
ROBERT D. COOK
Solicitor General
Federal ID No. 285
Email: BCook@SCAG.Gov
[Signature block continues next page]

The Defendants acknowledge the decisions of the United States District Court for the
District of South Carolina declaring unconstitutional South Carolina law prohibiting same-sex
marriages (Condon v. Haley, 21 F.Supp.3d 572 (D.S.C. Nov. 12, 2014)) and prohibiting
recognition of same-sex marriages in other states (Bradacs v. Haley, No. 3:13-CV-02351-JMC,
2014 WL 6473727(D.S.C. Nov. 18, 2014)). The Attorney General has appealed those decisions,
but the appeals have been consolidated and stayed pending a final decision by the United States
Supreme Court regarding the petitions for writ of certiorari in Bourke v. Beshear from the Sixth
Circuit Court of Appeals. Now that the Supreme Court has granted certiorari in Bourke, it will
decide the constitutional issues related to same-sex marriage once and for all this Term. The
Attorney General does not waive any defenses regarding those suits or to any other challenge to
South Carolina law.
2.

3:14-cv-04155-JMC

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Entry Number 18

Page 3 of 3

/s/ J. Emory Smith, Jr.

J. EMORY SMITH, JR.
Deputy Solicitor General
Federal ID No. 3908
Email: ESmith@SCAG.Gov
Post Office Box 11549
Columbia, South Carolina 29211
Phone: (803) 734-3680
Fax: (803) 734-3677
Counsel for Defendants

February 9, 2015

3:14-cv-04155-JMC

Date Filed 02/09/15

Entry Number 18-1

Page 1 of 6

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Julie A.A. McEldowney f/k/a
Julie Ashmore,

)
)
)
Plaintiffs,
)
)
v.
)
)
South Carolina Department of Motor
)
Vehicles, Kevin S. Shwedo, in his official )
capacity as Director of the South Carolina )
Department of Motor Vehicles, and Nikki )
Haley, in her official capacity as Governor )
of South Carolina,
)
)
Defendants.
)
________________________________
)

Civil Action No. 3:14-cv-4155-JMC

MEMORANDUM IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT

Plaintiffs case is moot because she has already obtained the result that she requests in
this action, and that relief came as a result of Court orders in other cases and independent agency
decisions rather than this suit. The Defendants Motion for Summary Judgment should be
granted for this reason as discussed below.

BACKGROUND
Plaintiff s October 24, 2014 Complaint alleged that the Department of Motor Vehicles
would not permit her to change her name in accordance with her same-sex marriage performed
in another jurisdiction. She brought this suit although the South Carolina Supreme Court had
issued an order two weeks earlier directing that Probate Judges not issue marriage licenses to
same-sex couples pending a decision by United States District Court Judge J. Michelle Childs in
Bradacs v. Haley, 3:13-CV-02341-JMC regarding the validity of South Carolina law on the
subject. State ex rel. Wilson v. Condon, 410 S.C. 331, 331, 764 S.E.2d 247 (2014); S.C. Code

3:14-cv-04155-JMC

Date Filed 02/09/15

Entry Number 18-1

Ann 20-1-10 and 20-1-15; S.C. Const. art. XVII, 15.

Page 2 of 6

Not content to wait on this Court to

rule in Bradacs or the District Court to decide another same-sex marriage case, Condon v. Haley,
2:14-cv-04010-RMG or the State Supreme Court to lift its directive, Plaintiff proceeded with the
instant suit.
Plaintiffs action was almost immediately rendered moot after she brought it. Less than
three weeks after she filed this suit, United States District Court Judge Richard Gergel declared
unconstitutional South Carolina laws prohibiting same-sex marriages and staying his decision to
November 20. Condon v. Haley, 21 F.Supp.3d 572 (D.S.C. Nov. 12, 2014)). Six days later,
Judge Childs declared that the State must recognize those marriages performed out-of state.
Bradacs v. Haley, 2014 WL 6473727 (D.S.C. Nov. 18, 2014) (finding prohibitions
unconstitutional to the extent that they prohibit the recognition of valid same-sex marriages
entered in other states,). 1 The State Supreme Court lifted its injunction the following day. State
0F

ex rel. Wilson v. Condon, 410 S.C. 554, 555, 765 S.E.2d 834 (November 19, 2014). The next
day, on November 20, the same day the Condon v. Haley stay was lifted, and less than four

The Attorney General has appealed those decisions, but the appeals have been consolidated and
stayed pending a final decision by the United States Supreme Court regarding the petitions for
writ of certiorari in Bourke v. Beshear from the Sixth Circuit Court of Appeals. Now that the
Supreme Court has granted certiorari in Bourke it will decide the constitutional issues once and
for all this Term. The Attorney General does not waive any defenses regarding those suits or
South Carolina law.
He also notes that in Bradacs, Judge Childs denied Plaintiffs' motion for summary
judgment as to the Full Faith and Credit clause pursuant to the restrictions placed on Full Faith
and Credit by Section 2 of the Defense of Marriage Act. Bradacs , 2014 WL 6473727, at *10.
The Attorney General also argued in that case that marriage is not a judgment enforceable under
that Clause. See, eg, Restatement (Second) of Conflict of Laws 92 (1971); Jeffrey L.
Rensberger, Same-Sex Marriages and the Defense of Marriage Act: , 32 Creighton L. Rev.
409, 421 (1998); Patrick J. Borchers, Baker v. General Motors: Implications for
Interjurisdictional Recognition of Non-Traditional Marriages, 32 Creighton L. Rev. 147, 164
(1998). Therefore, Plaintiffs have no claim under the Full Faith and Credit Clause. He reserves
those defenses as well.
2

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Page 3 of 6

weeks after Plaintiff sued, DMV changed its policy to permit name changes resulting from samesex marriages. See attachment to Answer to Complaint.

Plaintiff then waited nearly three

weeks to apply to change her name on her drivers license to her same-sex married name on
December 9, 2014, and her request was granted that day. 2 Had Plaintiff not filed this suit, the
1F

result would be no different. She was permitted to change her name as early as November 20,
and did so as a result of orders in cases pending when she brought her own suit.
STANDARDS FOR GRANTING SUMMARY JUDGMENT
Summary judgment is appropriate when the pleadings, depositions, answers to
interrogatories, and admissions on file, together with affidavits, if any, show that
there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(a). To prevail on a motion for
summary judgment, the movant must demonstrate that: (1) there is no genuine
issue as to any material fact; and (2) that he is entitled to judgment as a matter of
law. In determining whether a genuine issue has been raised, the court must
construe all inferences and ambiguities against the movant and in favor of the
non-moving party. See United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
Lemons v. KIA Motors, Inc., No. 4:09-CV-02736-JMC, 2012 WL 591694, at *1 (D.S.C. Feb. 22,
2012).

Summary Judgment should be granted here because absolutely no fact issue exists

regarding the mootness of this case, and the Defendants are entitled to judgment as a matter of
law.
THIS CASE IS MOOT AND, THEREFORE, PLAINTIFF LACKS STANDING TO
PURSUE THIS ACTION AND PRESENTS NO JUDICIABLE CONTROVERSY
Plaintiff only requested that this Court declare South Carolina law banning recognition of
same-sex marriages unconstitutional and issue injunctive relief so that her name would be
2

The Defendants respectfully request that the Court take judicial notice of this fact in lieu of
their producing copies of Plaintiffs application for a name change. Fed. R. Evid. 201(The
court may judicially notice a fact that is not subject to reasonable dispute because it . . . (2) can
be accurately and readily determined from sources whose accuracy cannot reasonably be
questioned.) If the Court prefers, the Defendants can submit documentation regarding her name
change.

3:14-cv-04155-JMC

Date Filed 02/09/15

changed on her drivers license.

Entry Number 18-1

Page 4 of 6

DMV made that name change shortly after this action was

filed but not due to this suit. DMV made the made name change pursuant to a revision of its
policy in response to the Condon and Bradacs rulings. This Court can do no more for her in the
instant case. Plaintiff has no right to attorneys fees because she is not a prevailing party in that
her case is moot and no justiciable controversy exists.
Doctrines like standing, mootness, and ripeness are simply subsets of Article III's
command that the courts resolve disputes, rather than emit random advice. Bryant v. Cheney,
924 F.2d 525, 529 (4th Cir. 1991). As this Court has stated:
Federal courts lack jurisdiction to decide moot cases because their constitutional
authority extends only to actual cases or controversies under Article III of the
Constitution. Iron Arrow Honor Soc'y v. Heckler, 464 U.S. 67, 70 (1983). A
case becomes moot when the issues presented are no longer live or the parties
lack a legally cognizable interest in the outcome. Warren v. Sessoms & Rogers,
P.A., 676 F.3d 365, 370 (4th Cir.2012) (internal quotation marks omitted).
Alexander v. Barnwell Cnty. Hosp., 498 B.R. 550, 556 (D.S.C. 2013); see also, Incumaa v.
Ozmint, 507 F.3d 281, 286 (4th Cir. 2007
To qualify as a case fit for federal-court adjudication, an actual controversy must be
extant at all stages of review, not merely at the time the complaint is filed. Preiser v. Newkirk,
422 U.S. 395, 401 (1975) (quoting Steffel v. Thompson, 415 U.S. 452, 459, n. 10, 94 S.Ct. 1209,
1216, n. 10, 39 L.Ed.2d 505 (1974)) (internal quotation marks omitted). Arizonans for Official
English v. Arizona, 520 U.S. 43, 67 (1997). [M]ootness has been described as the doctrine of
standing set in a time frame: The requisite personal interest that must exist at the commencement
of the litigation (standing) must continue throughout its existence (mootness). Townes v.
Jarvis, 577 F.3d 543, 546-47 (4th Cir. 2009), quoting Arizonans, 520 U.S. 43, 68 n. 22 (1997).
mootness can arise at any stage of litigation . . . . Calderon v. Moore, 518 U.S. 149, 150 (1996)

3:14-cv-04155-JMC

Date Filed 02/09/15

Entry Number 18-1

Page 5 of 6

The instant case is moot because DMV changed its policy and Plaintiff has changed her
name on her license as a result of other Court decisions in South Carolina rather than the instant
suit. Therefore, the issues are no longer live and the plaintiff lacks a legally cognizable
interest in the outcome. Alexander, supra. Accordingly, no justiciable controversy is present,
and Plaintiff lacks standing to pursue this matter.
Cardona v. Shinseki, 26 Vet. App. 472, 472 (2014), found the appeal of the denial of
spousal benefits to a same-sex spouse to be moot. In that case, pursuant to a Presidential
directive following United States v. Windsor, U.S. , 133 S.Ct. 2675, 2695 (2013), the
Secretary of Veterans Affairs reversed its decision regarding such benefits thereby enabling the
spouse to receive benefits.

Similarly, following the Condon and Bradacs decisions, DMV has

revised its policy regarding name changes on drivers licenses due to same-sex marriages.
Therefore, this suit is now moot.
The name change that Plaintiff received will not be reversed absent her request.
Federal courts do not, as a rule, enjoin conduct which has been discontinued with no real
prospect that it will be repeated. Ragsdale v. Turnock, 841 F.2d 1358, 1366 (7th Cir. 1988); see
also, Pashby v. Delia, 709 F.3d 307, 316 (4th Cir. 2013)([M]ootness does not result from a
defendant's voluntary cessation of his allegedly illegal conduct unless it is clear that the behavior
is unlikely to recur.) In other words, this case is moot because no real prospect exists that
Plaintiffs name change would be reversed by DMV. First, DMV is not free to reinstate its
former policy regarding a name change in the absence of a ruling in Bourke that upholds the
validity of same sex-marriage bans and the reversal of the Condon and Bradacs decisions.
Second, in the event of a reversal in Condon and Bradacs, Plaintiff will keep her name change
although she would have no legal right to a name change then, because DMV has no capacity to

3:14-cv-04155-JMC

Date Filed 02/09/15

Entry Number 18-1

track and reverse name changes should those opinions be set aside.

Page 6 of 6

(see attached Shwedo

affidavit). Therefore, Plaintiff is highly unlikely to be faced with a reversal of her name change.

CONCLUSION
Plaintiff has already received the relief that she requested in this suit, but her name
change has come as a result of court rulings in other cases rendered shortly after this action was
filed. No real prospect exists that her name change would be reversed even if same-sex marriage
bans are upheld by the Supreme Court and on appeal in Condon and Bradacs. Therefore, no fact
or legal question exists regarding the conclusion that this case is moot, and this suit presents no
justiciable controversy. Summary Judgment should be granted for the Defendants.
ALAN WILSON
Attorney General
Federal ID No.10457
ROBERT D. COOK
Solicitor General
Federal ID No. 285
Email: BCook@SCAG.Gov
/s/ J. Emory Smith, Jr.
J. EMORY SMITH, JR.
Deputy Solicitor General
Federal ID No. 3908
Email: ESmith@SCAG.Gov
Post Office Box 11549
Columbia, South Carolina 29211
Phone: (803) 734-3680
Fax: (803) 734-3677
Counsel for Defendants

February 9, 2015

3:14-cv-04155-JMC

Date Filed 02/09/15

Entry Number 18-2

ATTACHMENT
To Motion for Summary Judgment
McEldowney v. SCDMV

Shwedo Affidavit

Page 1 of 3

3:14-cv-04155-JMC

Date Filed 02/09/15

Entry Number 18-2

Page 2 of 3

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

GREENVILLE DIVISION

Judith Am Haas (aka Judith Ann

Civil Action No. 6:14-4246-JMC

Morales), Damari Indart (aka Daman

Crespo) and Brandon Lee Velez (aka
Brandon Lee Coleman),
Plaintiffs,
AFFIDAVIT OF KEVIN A. SHWEDO

v.

South Carolina Department of Motor

Vehicles and Kevin Shwedo, in his
official capacity as Executive Director of
the South Carolina Department of Motor

<[

Vehicles

Defendants.

Personally appeared before me, Kevin A. Shwedo, duly sworn, who deposes and
says the following;
1.

I am over 21 years old and am personally familiar with the matters set forth

herein.

2.
I am the Executive Director of the South Carolina Department of Motor Vehicles,
and have held that position since early 201 1 .
3.
My duties are set by statute,
responsibilities of the entire agency.

and

include

overseeing

the

functions

and

4.

DMV has reviewed the issue of what would happen with regard to drivers'
licenses issued in the name of the individual's partner in a same sex marriage in the event
that a court ultimately upholds South Carolina's constitutional prohibition of marriage
between persons of the same sex.

5.

DMV has concluded that even if such a court decision were to be issued, it would
be impossible for DMV to determine whether any particular driver's license issued prior
to any such decision contained a name used as a result of a same sex marriage.

3:14-cv-04155-JMC

6.

Date Filed 02/09/15

Entry Number 18-2

Page 3 of 3

As a result, even if a court at some point in the future upholds South Carolina's

constitutional prohibition of marriage between persons of the same sex, DMV will not

seek to change the names that were on drivers' licenses prior to any such court decision,
DMV also would not seek to change the names on those licenses in the event of a
renewal of those licenses.
7.

This affidavit addresses only matters involving DMV name changes on drivers'

licenses and does not address any other legal consequences to these Plaintiffs if South
Carolina's prohibitions on same-sex marriages are upheld.

FURTHER AFFIANT SAYETH NOT.

in A, Shwedo
> *-

SWORN TO BEFORE ME THIS ""

DAY OF

, 20 MjU,

ARY PUBLIC FOR SOUTH CAROLINA

MY COMMISSION EXPIRES: