Defendants’ Answer to Plaintiffs’ Complaint Page 1 of 22 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’ Answer to Plaintiffs’ Complaint
Page 1 of 22
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
Defendants’ Answer to Plaintiffs’ Complaint
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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.
3. Paragraph 3 consists of arguments, legal claims or conclusions of
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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Defendants’ Answer to Plaintiffs’ Complaint
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allegations in Paragraph 5 consist of arguments, legal claims or conclusions of
law which do not require a response and therefore are denied.
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.
7. Paragraph 7 consists of arguments, legal claims or conclusions of
law which do not require a response and therefore are denied.
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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Defendants’ Answer to Plaintiffs’ Complaint
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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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Defendants’ Answer to Plaintiffs’ Complaint
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12. Defendants lack knowledge or information sufficient to form a
belief about the truth of the allegations contained in Paragraph 12 and on that
basis the allegations are denied.
13. Defendants lack knowledge or information sufficient to form a
belief about the truth of the allegations contained in Paragraph 13 and on that
basis the allegations are denied.
14. Defendants lack knowledge or information sufficient to form a
belief about the truth of the allegations contained in Paragraph 14 and on that
basis the allegations are denied.
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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Defendants’ Answer to Plaintiffs’ Complaint
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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.
19. Defendants lack knowledge or information sufficient to form a
belief about the truth of the allegations contained in Paragraph 19 and on that
basis the allegations are denied.
20. Defendants lack knowledge or information sufficient to form a
belief about the truth of the allegations in Paragraph 20 and on that basis the
allegations are denied.
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Defendants’ Answer to Plaintiffs’ Complaint
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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
allegations are denied.
22. Defendants lack knowledge or information sufficient to form a
belief about the truth of the allegations in Paragraph 22 and on that basis the
allegations are denied.
23. Defendants lack knowledge or information sufficient to form a
belief about the truth of the allegations in Paragraph 23 and on that basis the
allegations are denied.
24. Defendants lack knowledge or information sufficient to form a
belief about the truth of the allegations in Paragraph 24 and on that basis the
allegations are denied.
25. Defendants lack knowledge or information sufficient to form a
belief about the truth of the allegations in Paragraph 25 and on that basis the
allegations are denied.
26. Defendants admit the allegations in Paragraph 26.
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Defendants’ Answer to Plaintiffs’ Complaint
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B. Chase Weinhandl and Benjamin Milano
27. Defendants lack knowledge or information sufficient to form a
belief about the truth of the allegations in Paragraph 27 and on that basis the
allegations are denied.
28. Defendants lack knowledge or information sufficient to form a
belief about the truth of the allegations in Paragraph 28 and on that basis the
allegations are denied.
29. Defendants lack knowledge or information sufficient to form a
belief about the truth of the allegations in Paragraph 29 and on that basis the
allegations are denied.
30. Defendants lack knowledge or information sufficient to form a
belief about the truth of the allegations in Paragraph 30 and on that basis the
allegations are denied.
C. Susan Hawthorne and Adel Johnson
31. Defendants lack knowledge or information sufficient to form a
belief about the truth of the allegations in Paragraph 31 and on that basis the
allegations are denied.
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Defendants’ Answer to Plaintiffs’ Complaint
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32. Defendants lack knowledge or information sufficient to form a
belief about the truth of the allegations in Paragraph 32 and on that basis the
allegations are denied.
33. Defendants lack knowledge or information sufficient to form a
belief about the truth of the allegations in Paragraph 33 and on that basis the
allegations are denied.
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
35. Defendants lack knowledge or information sufficient to form a
belief about the truth of the allegations in Paragraph 35 and on that basis the
allegations are denied.
36. Defendants lack knowledge or information sufficient to form a
belief about the truth of the allegations contained in Paragraph 36 and on that
basis the allegations are denied.
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Defendants’ Answer to Plaintiffs’ Complaint
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37. Defendants lack knowledge or information sufficient to form a
belief about the truth of the allegations contained in Paragraph 37 and on that
basis the allegations are denied.
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
conclusions of law which do not require a response and therefore are denied.
40. Paragraph 40 consists of arguments, legal claims, or conclusions of
law which do not require a response and therefore are denied.
F. Plaintiffs’ Allegations of Harm
41. Paragraph 41 consists of arguments, legal claims, or conclusions of
law which do not require a response and therefore are denied.
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Defendants’ Answer to Plaintiffs’ Complaint
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42. Paragraph 42 consists of arguments, legal claims, or conclusions of
law which do not require a response and therefore are denied.
43. Paragraph 43 consists of arguments, legal claims, or conclusions of
law which do not require a response and therefore are denied.
44. Paragraph 44 (a through o) consists of arguments, legal claims, or
conclusions of law which do not require a response and therefore are denied.
45. Paragraph 45 consists of arguments, legal claims, or conclusions of
law which do not require a response and therefore are denied.
46. Paragraph 46 consists of arguments, legal claims, or conclusions of
law which do not require a response and therefore are denied.
47. Paragraph 47 consists of arguments, legal claims, or conclusions of
law which do not require a response and therefore are denied.
G. Plaintiffs’ Allegations Regarding the Interests Served by Montana’s
Recognition of Marriage as Between One Man and One Woman
48. Paragraph 48 consists of arguments, legal claims, or conclusions of
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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Defendants’ Answer to Plaintiffs’ Complaint
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Nelson, 409 U.S. 810 (1972), that limiting marriage to opposite-sex couples
does not raise a substantial federal question.
49. Paragraph 49 consists of arguments, legal claims, or conclusions of
law which do not require a response and therefore are denied.
50. Paragraph 50 consists of arguments, legal claims, or conclusions of
law which do not require a response and therefore are denied. To the extent
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.
52. Paragraph 52 consists of arguments, legal claims, or conclusions of
law which do not require a response and therefore are denied. To the extent
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.
53. Paragraph 53 consists of arguments, legal claims, or conclusions
which do not require a response and therefore are denied.
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Defendants’ Answer to Plaintiffs’ Complaint
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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.”
57. Paragraph 57 consists of an argument, legal claim, or conclusion of
law which does not require a response and therefore is denied. Defendants,
however, admit and affirmatively allege that in Montana marriage is between
one man and one woman.
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Defendants’ Answer to Plaintiffs’ Complaint
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58. Paragraph 58 consists of an argument, legal claim, or conclusion of
law which does not require a response and therefore is denied.
59. Paragraph 59 consists of an argument, legal claim, or conclusion of
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.