4:14-cv-00040 #9

Defendants’ Answer to Plaintiffs’ Complaint

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TIMOTHY C. FOX Montana Attorney General MARK W. MATTIOLI Chief Deputy Attorney General JON BENNION Deputy Attorney General Justice Building 215 North Sanders P.O. Box 201401 Helena, MT 59620-1401 (406) 444-2026 Fax: (406) 444-3549 [email protected] [email protected] COUNSEL FOR DEFENDANTS

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA

GREAT FALLS DIVISION

ANGELA ROLANDO and TONYA ROLANDO; CHASE WEINHANDL and BENJAMIN MILANO; SUSAN HAWTHORNE and ADEL JOHNSON; and SHAUNA GOUBEAUX and NICOLE GOUBEAUX,

Plaintiffs, v.

TIM FOX, in his official capacity as Attorney General of the State of Montana; MICHAEL KADAS, in his official capacity as the Director of the Montana Department of Revenue; and FAYE McWILLIAMS, in her official capacity as Clerk of Court of Cascade County,

Defendants.

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Cause No. 4:14 CV 00040-BMM DEFENDANTS’ ANSWER TO PLAINTIFFS’ COMPLAINT

Case 4:14-cv-00040-BMM Document 9 Filed 07/17/14 Page 1 of 22


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Defendants Fox, Kadas and McWilliams, by and through their counsel of

record, answer Plaintiffs’ Complaint for Declaratory and Injunctive Relief as

follows:

I.

INTRODUCTION

1. Paragraph 1 of Plaintiffs’ complaint consists of arguments, legal

claims or conclusions of law which do not require a response and therefore are

denied. To the extent Paragraph 1 alleges that marriage in Montana consists of a

marriage between one man and one woman, Defendants admit the allegation.

2. Paragraph 2 consists of arguments, legal claims or conclusions of

law which do not require a response and are therefore denied. To the extent

Paragraph 2 alleges that marriage in Montana is confined to marriage between

one man and one woman, the allegation is admitted.


law which do not require a response and therefore are denied.

4. Paragraph 4 consists of an argument, legal claim or conclusions of

law which does not require a response and therefore is denied.

5. Responding to the last sentence in Paragraph 5, Defendants admit

that same-sex marriage has been recognized as lawful or has been determined by

courts to be lawful in 19 states and in the District of Columbia. The remaining



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allegations in Paragraph 5 consist of arguments, legal claims or conclusions of


6. Defendants admit that Plaintiffs are same-sex couples who are

seeking to marry in Montana or who seek to have Montana recognize marriages

occurring in other jurisdictions. The remainder of Paragraph 6 consists of

arguments, legal claims or conclusions of law which do not require a response

and therefore are denied. Defendants affirmatively allege that Montana’s

recognition of marriage as between one man and one woman does not constitute

or impose an unconstitutional stigma or second-class citizenship on persons in

same-sex relationships.



II.

JURISDICTION AND VENUE

8. Defendants admit that Plaintiffs, as asserted in Paragraph 8, have

sued under 42 U.S.C. Sections 1983 and 1988. Defendants deny that this Court

has jurisdiction under 28 U.S.C. Sections 1331 and 1343(a)(3) because,

according to Baker v. Nelson, 409 U.S. 810 (1972), Plaintiffs’ complaint does

not present or raise a substantial federal question.



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9. Defendants admit that the allegation in the first sentence of

Paragraph 9 and the allegation in the second sentence of Paragraph 9 that all

Defendants reside in the State of Montana. Defendants lack knowledge or

information sufficient to form a belief about the truth of the allegations in the

third sentence of Paragraph 9 and on that basis the allegation is denied.

Defendants, however, do not contest venue in this district.

10. Defendants admit the allegation in Paragraph 10 that this case is

appropriately filed in the Great Falls Division and that two of the Plaintiffs

attempted to obtain a license to marry in Cascade County. Defendants lack

knowledge or information sufficient to form a belief about the truth of the

allegation that two of the Plaintiffs are legal residents of Great Falls, Montana,

and on that basis the allegation is denied.

III.

PARTIES

The Plaintiffs

11. Defendants lack knowledge or information sufficient to form a

belief about the truth of the allegations contained in Paragraph 11 and on that

basis the allegations are denied.



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The Defendants

15. Defendants admit that Attorney General Fox is the chief legal

officer for the State of Montana and that the Attorney General’s Office provides

advice to state agencies. The remainder of Paragraph 15 consists of arguments,

legal claims, or conclusions of law which do not require a response and

therefore are denied.

16. Defendants admit that as the Clerk of Court of Cascade County

Faye McWilliams has authority to issue marriage licenses. The remainder of



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Paragraph 16 consists of arguments, legal claims, or conclusions of law which

do not require a response and therefore are denied.

17. Defendants admit that Michael Kadas, as Director of the Montana

Department of Revenue, has authority to enforce the Montana revenue code.

The remainder of Paragraph 17 consists of arguments, legal claims, or

conclusions of law which do not require a response and therefore are denied.

IV.

PLAINTIFFS’ GENERAL ALLEGATIONS

18. Paragraph 18 consists of arguments, legal claims, or conclusions of

law which do not require a response and therefore are denied. To the extent

Paragraph 18 contains allegations of fact, Defendants lack knowledge or

information sufficient to form a belief about the truth of Paragraph 18 and on

that basis the allegations are denied.





belief about the truth of the allegations in Paragraph 20 and on that basis the

allegations are denied.



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A. Angela Rolando and Tonya Rolando

21. Defendants admit that Angela Rolando works for the Child and

Family Services Division of the Department of Public Health and Human

Services. Defendants lack knowledge or information sufficient to form a belief

about the truth of the remaining allegations in Paragraph 21 and on that basis the














26. Defendants admit the allegations in Paragraph 26.



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B. Chase Weinhandl and Benjamin Milano













C. Susan Hawthorne and Adel Johnson






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34. Defendants admit that marriage in Montana consists of a marriage

between one man and one woman. Defendants lack knowledge or information

sufficient to form a belief about the truth of the remaining allegations in

Paragraph 34 and on that basis the allegations are denied.

D. Shauna Goubeaux and Nicole Goubeaux









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38. Defendants admit that marriage in Montana consists of a marriage

between one man and one woman. Defendants lack knowledge or information

sufficient to form a belief about the truth of the remaining allegations contained

in Paragraph 38 and on that basis the allegations are denied.

E. Montana Law

39. To the extent Paragraph 39 alleges that marriage in Montana

consists of a marriage between one man and one woman, the allegation is

admitted. The remainder of Paragraph 39 consists of arguments, legal claims, or




F. Plaintiffs’ Allegations of Harm





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44. Paragraph 44 (a through o) consists of arguments, legal claims, or








G. Plaintiffs’ Allegations Regarding the Interests Served by Montana’s

Recognition of Marriage as Between One Man and One Woman


law which do not require a response and therefore are denied. Defendants

affirmatively allege, however, that the Supreme Court has not held that sexual

orientation is a suspect class, SmithKline is distinguishable, and Plaintiffs’

claims ignore and conflict with the Supreme Court’s determination in Baker v.



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Nelson, 409 U.S. 810 (1972), that limiting marriage to opposite-sex couples

does not raise a substantial federal question.





Plaintiffs’ Paragraph 50 claim attempts to incorporate state-law claims or assert

violations of state law, Defendants affirmatively assert that such claims are

barred by Eleventh Amendment sovereign immunity. Any such state-law claims

must be dismissed.

51. Paragraph 51 consists of arguments, legal claims, or conclusions

which do not require a response and therefore are denied.



Plaintiffs’ Paragraph 52 claim attempts to incorporate state-law claims or assert

violations of state law, Defendants affirmatively assert that such claims are

barred by Eleventh Amendment sovereign immunity. Any such state-law claims

must be dismissed.


which do not require a response and therefore are denied.



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V.

PLAINTIFFS’ CLAIMS FOR RELIEF

COUNT I: Plaintiffs’ Fourteenth Amendment Due Process Claim

54. Defendants reallege the foregoing paragraphs of this Answer as

though fully set forth herein.

55. Defendants admit the allegation in Paragraph 55.

56. Paragraph 56 consists of an argument, legal claim, or conclusion of

law which does not require a response and therefore is denied. Defendants,

however, affirmatively allege that the Due Process Clause does not protect the

right of same-sex couples to marry. Rather, in Baker v. Nelson, 409 U.S. 810

(1972), the Supreme Court determined that deprivation of marriage to same-sex

partners did not raise a substantial federal question and in United States v.

Windsor, 133 S. Ct. 2675, 2689-90 (2013), the Court reaffirmed that the

“definition and regulation of marriage” is “within the authority and realm of the

separate states.”



however, admit and affirmatively allege that in Montana marriage is between

one man and one woman.



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law which does not require a response and therefore is denied. Defendants

affirmatively allege, however, that Plaintiffs have not alleged specific actions by

the Attorney General or Director of the Department of Revenue which Plaintiffs

claim have violated due process or otherwise harmed them. Plaintiffs have

failed to allege that the Attorney General or Director have “violated the

Constitution” by their “own individual actions.” Ashcroft v. Iqbal, 556 U.S.

662, 676 (2009).

COUNT II:

Plaintiffs’ Fourteenth Amendment Equal Protection Claim

(Alleging Sexual Orientation Discrimination)



61. Defendants admit the allegation in Paragraph 61.







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law which do not require a response and therefore are denied. Defendants



claim have discriminated against them based upon their sexual orientation or

have otherwise harmed them. Plaintiffs have failed to allege that the Attorney

General or Director have “violated the Constitution” by their “own individual

actions.” Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009).

COUNT III

Plaintiffs’ Fourteenth Amendment Equal Protection Claim

(Alleging Sex Discrimination)



68. Defendants admit Paragraph 68.





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however, affirmatively allege that Plaintiffs cannot state a claim based upon sex

discrimination because men and women, regardless of sexual orientation or

preference, are treated the same. Neither men nor women can marry persons of

the same gender.




which do not require a response and therefore are denied. Defendants



claim have discriminated against them based upon gender or have otherwise

harmed them. Plaintiffs have failed to allege that the Attorney General or

Director have “violated the Constitution” by their “own individual actions.”

Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009).



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VI.

PRAYER FOR RELIEF

73. Paragraph 73 is Plaintiffs’ prayer for relief and does not contain

factual allegations which require a response.

ADDITIONAL DEFENSES

In addition to the defenses asserted in paragraphs 1 through 73, above,

Defendants assert the following additional defenses. Other defenses, not known

to Defendants at this time, may be asserted. Consequently, Defendants reserve

the right to amend this answer or otherwise assert additional defenses.

GENERAL DENIAL

Except as expressly admitted herein, Defendants deny each and every

allegation of the Complaint for Declaratory And Injunctive Relief.

FIRST DEFENSE

The complaint fails to state a claim upon which relief can be granted.



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SECOND DEFENSE

The complaint should be dismissed for lack of subject matter jurisdiction

because it fails to raise a substantial federal question. Baker v. Nelson, 409 U.S.

810 (1972).

THIRD DEFENSE

Plaintiffs’ claims, to the extent they are based on state law, are barred by

the Eleventh Amendment of the United States Constitution.

FOURTH DEFENSE

Plaintiffs’ claims against the Montana Attorney General and Director of

the Montana Department of Revenue are legally deficient because Plaintiffs

have failed to state specific, individual actions of the Montana Attorney General

and Director of the Department of Revenue which have allegedly violated

Plaintiffs’ constitutional rights.

FIFTH DEFENSE

Defendants Tim Fox and Michael Kadas are not proper defendants

because the alleged violations are not fairly traceable to their actions.



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SIXTH DEFENSE

Under the Eleventh Amendment of the United States Constitution, and the

doctrine of Ex Parte Young, all relief is barred except prospective injunctive

relief directed at a Defendant state official with authority to carry out the relief

that may be ordered.

SEVENTH DEFENSE

Defendants did not subject Plaintiffs, or cause Plaintiffs to be subjected,

to any violation of rights secured by the United States Constitution.

EIGHTH DEFENSE

Plaintiffs’ claims are barred by the Tenth Amendment of the United States

Constitution because the State of Montana has the sovereign power and

prerogative to define and regulate marriage. “[T]he states, at the time of the

adoption of the Constitution, possessed full power over the subject of marriage

and divorce . . .[and] the Constitution delegated no authority to the Government

of the United States on the subject of marriage and divorce.” United States v.

Windsor, 133 S. Ct. 2675, 2691 (2013) (quoted cases omitted).



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NINTH DEFENSE

Plaintiffs’ claims are barred by the Anti-Tax Injunction Act, 28 U.S.C.

§ 1341, which precludes federal subject matter jurisdiction over issues involving

eligibility to file joint tax returns.

TENTH DEFENSE

28 U.S.C. Section 1738C provides that “[n]o State . . . shall be required

to give effect to any public act, record, or judicial proceedings of any other

State . . . respecting a relationship between persons of the same sex that is

treated as a marriage.” This federal statute, which is not challenged by

Plaintiffs, provides that Montana is not required to recognize same-sex

marriages entered into and recognized in other states.

PRAYER FOR RELIEF

Defendants respectfully request that this Court:

1. Enter judgment in favor of Defendants and against Plaintiffs on all

of Plaintiffs’ claims;

2. Order that Plaintiffs take nothing by their Complaint;

3. Dismiss the Complaint with prejudice;



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4. Award Defendants their costs and disbursements incurred in their

defense; and

5. Order such other and further relief to Defendants as the Court

deems just and proper.

Respectfully submitted this 17th day of July, 2014.

TIMOTHY C. FOX

Montana Attorney General

215 North Sanders

P.O. Box 201401

Helena, MT 59620-1401

By: /s/ Mark W. Mattioli

MARK W. MATTIOLI

Chief Deputy Attorney General

/s/ Jon Bennion

JON BENNION

Deputy Attorney General

Attorneys for Defendants



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CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing document with the

clerk of the court for the United States District Court for the District of

Montana, using the cm/ecf system. Participants in the case who are registered

cm/ecf users will be served by the cm/ecf system.

DATED: July 17, 2014 /s/ MARK W. MATTIOLI

Chief Deputy Attorney General


4:14-cv-00040 #9

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