2:14-cv RMG Date Filed 11/03/14 Entry Number 27 Page 1 of 13

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1 2:14-cv RMG Date Filed 11/03/14 Entry Number 27 Page 1 of 13 Colleen Therese Condon and Anne Nichols Bleckley, Plaintiffs, v. Nimrata (Nikki Randhawa Haley, in her official capacity as Governor of South Carolina; Alan Wilson, in his official capacity as Attorney General; and Irvin G. Condon in his official capacity as Probate Judge of Charleston County, Defendants. UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA CHARLESTON DIVISION Civil Action 2:14-cv RMG ANSWER OF DEFENDANT PROBATE JUDGE IRVIN G. CONDON (JURY TRIAL DEMANDED The Defendant Irvin G. Condon, in his official capacity as Probate Judge of Charleston County, provides the following Answer to the Complaint in this matter: FOR A FIRST DEFENSE (GENERAL DENIAL 1. Defendant Probate Judge Irvin Condon denies he has taken any action in defiance of any law, including the United States Constitution, but instead avers that he was the only South Carolina probate judge accepting same-sex marriage license applications and planning to issue same-sex marriage licenses after the statutory 24-hour waiting period until the mandate of the Supreme Court of South Carolina. See State ex rel Wilson v. Irvin Condon, Order (Appellate Case No (S.C. Sup. Ct. filed October 9, 2014(2014 WL (Court held Respondent [Irvin Condon] and all other probate judges are hereby directed not to issue marriage licenses to same-sex couples pending a -1-

2 2:14-cv RMG Date Filed 11/03/14 Entry Number 27 Page 2 of 13 decision by the Federal District Court in Bradacs. Further, unless otherwise ordered by this Court, the issue of the constitutionality of the foregoing state law provisions shall not be considered by any court in the South Carolina Unified Judicial System while that issue remains pending before the Federal District Court.. Defendant has been sued in his official capacity as a probate judge and in that capacity is a member of the unified judiciary of South Carolina for most purposes. 1 S.C. Const. art. V, 1. As a member of that judiciary, Defendant Condon must follow the mandates of the Supreme Court of South Carolina. See City of Florence v. Berry, 62 S.C. 469, 40 S.E. 871, 873 (1902 (judgment of supreme court is binding authority in all subsequent similar cases until it is overruled by competent authority. Cf. Insurance Group Committee v. Denver & R. G. W. R. Co., 329 U.S. 607 (1947 (when matters are decided by an appellate court, its rulings, unless reversed by it or a superior court, bind the lower court; Strickland v. U.S., 423 F.3d 1335, 1338 n. 3 (C.A. Fed (ordinarily, a trial court may not disregard its reviewing court s precedent, subject to two narrow exceptions: if the circuit s precedent is expressly overruled by statute or by a subsequent appellate court decision; thus, a trial judge who believes an appellate court decision contravenes other precedent may do no more than criticize those opinions, urging en banc revision; Fujian Mach. & Equip. Imp. & Exp. Corp. v. United States, 178 F. Supp.2d 1305, 1313 (2001 (stating that a trial court may not disregard the controlling precedent of its appellate court where an 1 Probate judges are part of the unified judicial system except for the judicial retirement system; they are either part of the regular state retirement or may elect to participate in the South Carolina Police Officers Retirement System. S.C. Code Ann (1992. They are not part of the retirement system for judges and solicitors. Chapter 8 of Title 9, S.C. Code. -2-

3 2:14-cv RMG Date Filed 11/03/14 Entry Number 27 Page 3 of 13 intervening Supreme Court decision merely casts doubt on the continuing viability of that precedent, rather than directly overruling it. Defendant Condon also denies that he has wilfully violated controlling law in declining to issue a marriage license to the Plaintiffs. Otherwise, Defendant Condon admits the allegations of Paragraph Defendant Condon admits the allegations of Paragraph 2 which contains a quote from the final paragraph in Bostic v. Schaefer, 760 F.3d 352 (4th Cir Defendant Condon admits the allegations of Paragraph 3. Responding further, Defendant Condon adopts by reference the information in Paragraph 1, above, pursuant to Fed.R.Civ.P. 10(c. 4. Defendant Condon denies the allegations of Paragraph 4 insofar as it asserts that this Court must intervene to restrain him from declining to issue marriage licenses in light of the information in Paragraph 1, above, which is adopted by reference pursuant to Fed.R.Civ.P. 10(c. 5. On information and belief, Defendant Condon admits Paragraph On information and belief, Defendant Condon admits Paragraph On information and belief, Defendant Condon admits Paragraph On information and belief, Defendant Condon admits Paragraph Responding to Paragraph 9, Defendant Condon admits he is the elected probate judge for the County of Charleston, South Carolina. Defendant Condon also admits his duties include issuing marriage licenses that are valid only in South Carolina and maintaining records related to the licenses his office issues. Responding further, Defendant Probate Judge Condon is unaware of any provision of state or federal law that creates a duty to -3-

4 2:14-cv RMG Date Filed 11/03/14 Entry Number 27 Page 4 of 13 maintain records of marriages that take place in states other than South Carolina, including marriages where one or both parties to the marriage are South Carolina residents; Defendant Condon s duties are governed by S.C. Code Ann and , and, upon information and belief, do not include maintaining records of marriages that take place outside of South Carolina even where one or both of the parties to the marriage are residents of South Carolina. Cf. S.C. A.G. Op. Feb. 15, WL (probate court is not required by Section to record marriages conducted without statutorily required marriage license issued under Sections and where both parties are alive and not part of any other proceeding before the probate court. Responding further, Defendant Condon admits he must ensure compliance with relevant South Carolina as well as federal laws while performing the functions and duties of probate judge. 10. Defendant Condon admits Paragraph 10, subject to additional information stated in Paragraph 11, below, which is adopted by reference pursuant to Rule 10(b, Fed.R.Civ.P. 11. Defendant Condon responds specifically to Paragraph 10(b as follows. First, Defendant Condon adopts by reference the information in Paragraph 1, above, pursuant to Fed.R.Civ.P. 10(c. Second, Defendant Condon reiterates that as a member of the South Carolina unified judicial system he is bound by the mandate of the Supreme Court of South Carolina. 12. Defendant Condon admits the allegations of Paragraph Defendant Condon admits the allegations of Paragraph Defendant Condon admits the allegations of Paragraph 13. Responding further, -4-

5 2:14-cv RMG Date Filed 11/03/14 Entry Number 27 Page 5 of 13 Defendant Condon adopts by reference the information in Paragraph 1, above, pursuant to Fed.R.Civ.P. 10(c and requests the Court fashion any ruling giving due consideration to the mandate of the Supreme Court of South Carolina. 15. Defendant Condon admits the allegations of Paragraph On information and belief, Defendant Condon agrees that Plaintiffs seek the relief they describe in Paragraph 15. Responding further, Defendant Condon refers to the decision in Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014, review denied 10/6/14, as setting forth the correct analysis of Plaintiffs challenge to the referenced statutory provisions. 17. On information and belief, Defendant admits the allegations of Paragraph On information and belief, Defendant admits the allegations of Paragraph On information and belief, Defendant admits the allegations of Paragraph Defendant admits that the allegations of Paragraph 19 accurately reflect the holding in Bostic v. Schaefer and the contents of footnote 1 of that decision. 21. Defendant admits the allegations of Paragraph Defendant admits the allegations of Paragraph 21 insofar as it alleges the Defendant Wilson filed a Petition for Original Jurisdiction in the Supreme Court of South Carolina on October 8, 2014, seeking an order stopping Defendant Condon from issuing marriage licenses to Plaintiffs and other same-sex couples. The remainder of Paragraph 21 is an assertion of law requires no further response but insofar as a response is required, Defendant Condon admits that Defendant Wilson s actions support Plaintiffs claims under Ex Parte Young, 209 U.S. 123 ( Defendant Condon lacks any knowledge or information about the allegations in -5-

6 2:14-cv RMG Date Filed 11/03/14 Entry Number 27 Page 6 of 13 Paragraph 22 and therefore can neither admit nor deny those allegations. 24. Defendant admits the allegations of Paragraph 23. Responding further, Defendant Condon, adopts by reference the information in Paragraph 1, above, pursuant to Fed.R.Civ.P. 10(c. 25. On information and belief, Defendant Condon admits Paragraph Defendant Condon lacks any knowledge or information about the allegations in Paragraph 25 and therefore can neither admit nor deny those allegations. 27. Defendant Condon lacks any knowledge or information about the allegations in Paragraph 26 and therefore can neither admit nor deny those allegations. 28. Defendant Condon admits the allegations of Paragraph 27 that the Plaintiffs are seeking to marry each other, and further that their right is a fundamental liberty interest protected by the Due Process Clause of the United States Constitution as set forth in Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014, review denied 10/6/ Defendant Condon admits the allegations of Paragraph 28 that the Plaintiffs are being deprived of rights guaranteed under the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution as set forth in Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014, review denied 10/6/14. Responding further, Defendant Condon, adopts by reference the information in Paragraph 1, above, pursuant to Fed.R.Civ.P. 10(c. 30. Defendant Condon admits that Paragraph 29 accurately quotes a statement from the decision in Bostic v. Schaefer. 31. On information and belief, Defendant Condon admits Paragraph 30 insofar as it asserts -6-

7 2:14-cv RMG Date Filed 11/03/14 Entry Number 27 Page 7 of 13 that the Plaintiffs have been harmed and will continue to be harmed by their failure to obtain the license to marry. Responding further, Defendant Condon, adopts by reference the information in Paragraph 1, above, pursuant to Fed.R.Civ.P. 10(c. 32. Defendant Condon admits Paragraph 31 insofar as it accurately reflects the statutes and constitutional provision that exclude same-sex couples from marriage. Defendant Condon further agrees that the second sentence of Paragraph 31 accurately reflects the analysis that Bostic v. Schaefer applied in finding the Virginia laws unconstitutional, and that the Bostic Court cited to the South Carolina statutes and constitutional provision as being similar to the Virginia scheme. Responding further, Defendant Condon, adopts by reference the information in Paragraph 1, above, pursuant to Fed.R.Civ.P. 10(c. 33. Defendant Condon neither admits nor denies the allegations of Paragraph 32 pursuant to Canon 3(A(9, Rule 501, SCACR. 34. Defendant Condon neither admits nor denies the allegations of Paragraph 33 pursuant to Canon 3(A(9, Rule 501, SCACR. 35. Defendant Condon neither admits nor denies the allegations of Paragraph 34 pursuant to Canon 3(A(9, Rule 501, SCACR. 36. Defendant Condon neither admits nor denies the allegations of Paragraph 35 pursuant to Canon 3(A(9, Rule 501, SCACR. 37. On information and belief, Defendant Condon admits that Paragraph 36 accurately summarizes the analysis and holdings in Bostic v. Schaefer. 38. In responding to Paragraph 37, Defendant Condon incorporates by reference his responses to Paragraphs 1 through 36 pursuant to Fed.R.Civ.P. 10(c. -7-

8 2:14-cv RMG Date Filed 11/03/14 Entry Number 27 Page 8 of Defendant Condon admits Paragraph 38 in that Plaintiffs have sued him in his official capacity and that they are seeking declaratory and injunctive relief. 40. Defendant Condon admits that Paragraph 39 accurately quotes the Fourteenth Amendment to the United States Constitution. 41. On information and belief, Defendant Condon admits Paragraph 40 as accurately reflecting the holding in Bostic v. Schaefer. 42. On information and belief, Defendant Condon admits that Paragraph 41 accurately summarizes the holding of Bostic v. Schaefer, as applied to the state constitutional and statutory provisions set forth in Paragraph In responding to Paragraph 42, Defendant Condon admits that his actions are under color of State law. Defendant Condon further admits that pursuant to the analysis set forth in Bostic v. Schaefer, the Plaintiffs are being deprived of rights secured by the Due Process Clause of the Fourteenth Amendment of the United States Constitution, and that such action implicates 42 U.S.C Responding further, Defendant Condon, adopts by reference the information in Paragraph 1, above, pursuant to Fed.R.Civ.P. 10(c. 44. In responding to Paragraph 43, Defendant Condon incorporates by reference his responses to Paragraphs 1 through 42 pursuant to Fed.R.Civ.P. 10(c. 45. Defendant admits Paragraph 44 that the Plaintiffs are stating their cause of action against the Defendant in his official capacity for purposes of seeking declaratory and injunctive relief. 46. Defendant Condon admits that Paragraph 45 accurately quotes the Fourteenth Amendment to the United States Constitution. -8-

9 2:14-cv RMG Date Filed 11/03/14 Entry Number 27 Page 9 of On information and belief, Defendant Condon admits that the allegations of Paragraph 46 reflect the holding of Bostic v. Schaefer. 48. On information and belief, Defendant Condon agrees that Paragraphs 47 through 54 accurately reflect the findings, analysis and holdings of every federal circuit appellate court that has addressed the issue, including Bostic v. Schaefer. 49. On information and belief, Defendant Condon avers that Paragraph 55 is a conclusion that follows from the analysis and holdings in Bostic v. Schaefer. 50. On information and belief, Defendant Condon admits paragraph 56. Responding further, Defendant Condon, adopts by reference the information in Paragraph 1, above, pursuant to Fed.R.Civ.P. 10(c. 51. Defendant Condon agrees that Paragraphs 57 through 59 accurately reflect the findings, analysis and holdings of every federal circuit appellate court that has addressed the issue, including Bostic v. Schaefer. 52. In responding to Paragraph 60, Defendant Condon incorporates by reference his responses to Paragraphs 1 through 59 pursuant to Fed.R.Civ.P. 10(c. 53. Defendant Condon admits Paragraph 61 that an actual controversy exists. 54. Upon information and belief, Defendant Condon admits Paragraph 62 that Plaintiffs are seeking injunctive relief and that a favorable decision would prevent further harm. 55. Upon information and belief, Defendant Condon admits Paragraph 63 to the extent it asserts the burden on the Defendants is small in comparison to the hardships on the Plaintiffs. 56. Responding to the Prayer for Relief, Defendant Condon, adopts by reference the -9-

10 2:14-cv RMG Date Filed 11/03/14 Entry Number 27 Page 10 of 13 information in Paragraph 1, above, pursuant to Fed.R.Civ.P. 10(c. Responding further, Defendant Condon takes no position regarding the merits of the claims for relief, and adheres to the mandates of Canon 3(A(9, Code of Judicial Conduct, Rule 501, SCACR (prohibiting a judge from making any public comment that might reasonably be expected to affect the outcome or substantially interfere with of any pending proceeding except only where the judge is a litigant in a personal capacity. FOR A THIRD DEFENSE (PENDING CONTROLLING CASE IN THE DISTRICT 57. Responding further to the Complaint, Defendant Condon would point this Court to the pending case of Bradacs v. Haley, 3:13-CV JMC. Further, Defendant Condon advises the Court of two (2 other pending cases in the District: McEldowney v. SC Dept. of Motor Vehicles, 3:14-cv JMC, and Haas v. SC Dept. of Motor Vehicles, 6:16- cv jmc. Although the parties are not the same in these disputes, the issues before District Judge J. Michelle Childs in Bradacs sufficiently present the same issues raised in this lawsuit such that a decision in Bradacs will impact a decision in this case. Crossmotions for judgment are currently pending before Judge Childs in Bradacs. The other two pending cases have also been assigned to Judge Childs and are pending before her as well. Accordingly, the Court should put a decision in this matter on hold until Judge Childs issues a decision in Bradacs v. Haley, McEldowney v. SCDMV, or Haas v. SCDMV to avoid the possibility of inconsistent rulings before the judges of the District Court of South Carolina. -10-

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12 2:14-cv RMG Date Filed 11/03/14 Entry Number 27 Page 12 of 13 FED.R.CIV.P. 38(B, JURY TRIAL DEMAND The Defendant Irvin Condon demands a jury trial as to any issues triable to a jury. These include any claims for monetary relief. WHEREFORE, having fully responded to the Complaint, Defendant Condon requests that the Court enter the following relief: A. Hold this matter in abeyance pending a decision in Bradacs v. Haley; B. If the Court decides to retain the matter, then Defendant Condon takes no position on the merits pursuant to Canon 3(A(9, Rule 501, SCACR; C. Deny any claim for payment of fees and costs due to any actions by Defendant Condon that are required by direction of the Supreme Court of South Carolina; D. Deny any claim for payment of fees and costs since these issues will be decided imminently in Bradacs v. Haley such that this lawsuit was unnecessary; E. Award the Defendant Condon and his funding political subdivision, Charleston County, and the taxpayers of Charleston County, his fees and costs against the appropriate responsible party; F. Grant such other and further relief as the Court deems just and proper. Respectfully submitted, /s/ John S. Nichols John S. Nichols (Fed Ct. ID 2535 Bluestein, Nichols, Thompson & Delgado Post Office Box 7965 Columbia, South Carolina Telephone: ( Facsimile: ( jsnichols@bntdlaw.com -12-

13 2:14-cv RMG Date Filed 11/03/14 Entry Number 27 Page 13 of 13 Richard S. Rosen (Fed. ID Meeting Street, Suite 400 Charleston, SC Telephone: ( Facsimile: ( Attorneys for Defendant Probate Judge Irvin Condon -13-