IN THE COMMONWEALTH COURT OF PENNSYLVANIA : : : : : : : : : : : : PLAINTIFFS APPLICATION TO FILE AMENDED ANSWER TO APPLICATION TO DISMISS FOR MOOTNESS

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1 Received 06/16/2014 Commonwealth Court of Pennsylvania Filed 06/16/2014 Commonwealth Court of Pennsylvania 481 MD 2013 DECHERT LLP By Robert C. Heim (Pa ) Alexander R. Bilus (Pa ) William T. McEnroe (Pa ) Joanna L. Barry (Pa ) Nathaniel T. Hopkins (Pa ) Cira Centre 2929 Arch Street Philadelphia, PA (215) David S. Cohen (Pa ) 3320 Market Street Philadelphia, PA (215) Attorneys for Plaintiffs IN THE COMMONWEALTH COURT OF PENNSYLVANIA SASHA BALLEN, et al., v. Plaintiffs, MICHAEL WOLF, SECRETARY OF HEALTH OF THE COMMONWEALTH OF PENNSYLVANIA, Defendant. NO. 481 MD 2013 PLAINTIFFS APPLICATION TO FILE AMENDED ANSWER TO APPLICATION TO DISMISS FOR MOOTNESS

2 Due to new developments in Whitewood v. Wolf,No. 13-cv-1861, 2014 WL (M.D. Pa. May 20, 2014), Plaintiffs respectfully request that the Court grant leave to file the Amended Answer to Application to Dismiss for Mootness attached hereto as Exhibit A. On June 6, 2014 the same day that Plaintiffs filed their original Answer to the Application to Dismiss Theresa Santai-Gaffney, in her official capacity as Schuylkill County Clerk of the Orphans Court and Register of Wills, ( Clerk Gaffney ) filed both a motion to intervene in the Whitewood case and a motion to stay that court s decision enjoining the Commonwealth from enforcing Pennsylvania s Marriage Law, 23 Pa. C.S. 1102, Clerk Gaffney s motions create a new risk that Marriage Law could be reinstated, which changes Plaintiffs position regarding Defendant Wolf s Application to Dismiss for Mootness. Granting leave to amend would serve the interests of justice in this case and would not prejudice the opposing party. Accordingly, Plaintiffs request that this Court enter an order granting leave to file the Amended Answer to Application to Dismiss for Mootness and directing the Prothonotary to docket the same. 1

3 Respectfully submitted, /s/ Robert C. Heim Dated June 16, 2014 Robert C. Heim (Pa ) Alexander R. Bilus (Pa ) William T. McEnroe (Pa ) Joanna L. Barry (Pa ) Nathaniel T. Hopkins (Pa ) DECHERT LLP Cira Centre 2929 Arch Street Philadelphia, PA David S. Cohen (Pa ) Drexel University School of Law 3320 Market Street Philadelphia, PA Attorneys for Plaintiffs 2

4 CERTIFICATE OF SERVICE I certify that the foregoing Plaintiffs Amended Answer to Application to Dismiss for Mootness was served upon the interested parties listed below on June 16, 2014 via the PACFile system and prepaid First Class U.S. Mail, addressed as follows William H. Lamb 24 East Market Street P.O. Box 565 West Chester, PA (610) Counsel for Defendant Wolf Dated June 16, 2014 /s/ Nathaniel T. Hopkins Nathaniel T. Hopkins DECHERT LLP Cira Centre, 2929 Arch St Philadelphia, PA 19104

5 EXHIBIT A

6 DECHERT LLP By Robert C. Heim (Pa ) Alexander R. Bilus (Pa ) William T. McEnroe (Pa ) Joanna L. Barry (Pa ) Nathaniel T. Hopkins (Pa ) Cira Centre 2929 Arch Street Philadelphia, PA (215) David S. Cohen (Pa ) 3320 Market Street Philadelphia, PA (215) Attorneys for Plaintiffs IN THE COMMONWEALTH COURT OF PENNSYLVANIA SASHA BALLEN, et al., v. Plaintiffs, MICHAEL WOLF, SECRETARY OF HEALTH OF THE COMMONWEALTH OF PENNSYLVANIA, Defendant. NO. 481 MD 2013 PLAINTIFFS AMENDED ANSWER TO APPLICATION TO DISMISS FOR MOOTNESS

7 Plaintiffs oppose the Application to Dismiss for Mootness filed by Defendant Wolf because the Whitewood v. Wolf,No. 13-cv-1861, 2014 WL (M.D. Pa. May 20, 2014), case has not been finally resolved and even if it were there remains a legal controversy concerning whether Plaintiffs marriage licenses and marriages are valid. Under the mootness doctrine, courts lack jurisdiction if an actual case or controversy is not extant at all stages of review. Barbera v. Bureau of Prof l & Occupational Affairs,727 C.D. 2012, 2013 WL , at *3 (Pa. Cmwlth. Ct. Jan. 30, 2013) (quoting Pap s A.M. v. City of Erie,818 A.2d 591, 599 (Pa. 2002)). The requirements for an actual case or controversy include (1) a legal controversy that is real and not hypothetical, (2) a legal controversy that affects an individual in a concrete manner so as to provide the factual predicate for a reasoned adjudication, and (3) a legal controversy with sufficiently adverse parties so as to sharpen the issues for judicial resolution. Id. (quoting Mistich v. Com., Pa. Bd. of Prob. & Parole,863 A.2d 116, 119 (Pa. Cmwlth. Ct. 2004)). In this case, Plaintiffs challenged the constitutionality of Pennsylvania s Marriage Law, 23 Pa. C.S. 1102, 1704, because the Marriage Law did not permit same-sex couples to be married in Pennsylvania. See Am. Pet (Counts I-V of the Amended Petition, alleging that the Marriage Law violated Plaintiffs rights under both the Pennsylvania and United States Constitutions). 2

8 Plaintiffs further alleged that, notwithstanding the Marriage Law, they received marriage licenses in July and August of 2013 and were married pursuant to those licenses. See Am. Pet. for Rev. 7-8, Accordingly, in Count VI of their Amended Petition, Plaintiffs sought a declaration of the validity of their marriage licenses and marriages. See Am. Pet On May 20, 2014, the Honorable Judge John E. Jones, III held that the Marriage Law violates the U.S. Constitution and enjoined the Commonwealth from enforcing it. See Whitewood v. Wolf,No. 13-cv-1861, 2014 WL (M.D. Pa. May 20, 2014) (the May 20th Decision ). Plaintiffs concede that, if the May 20th Decision remains in force, Counts I through V of their Amended Petition would be moot. At this time, however, the May 20th Decision could still be stayed or reversed on appeal. On June 6, 2014, Theresa Santai-Gaffney, in her official capacity as Schuylkill County Clerk of the Orphans Court and Register of Wills, ( Clerk Gaffney ) filed both a motion to intervene in the Whitewood case and a motion to stay the May 20th Decision. See Mot. for Intervention (attached as Ex. A); Mot. for Stay (attached as Ex. B). If the federal court grants Clerk Gaffney s motion to intervene, she likely will appeal the May 20th Decision to the United States Court of Appeals for the Third Circuit, creating the risk that the Marriage Law will be reinstated. The Marriage Law will also come back into effect if the federal court grants Clerk Gaffney s motion for a stay of the May 20th Decision. 3

9 Because the May 20th Decision could still be stayed or reversed on appeal, Plaintiffs Counts I-V in the instant case are not moot. In addition, even if the court denies Clerk Gaffney s Whitewood motions, an actual controversy would still exists as to Count VI, which seeks a declaratory judgment that Plaintiffs marriage licenses and marriages are valid. See Am. Pet Judge Jones decision in Whitewood does not resolve the continuing dispute between Plaintiffs and Defendant Wolf regarding the validity of Plaintiffs marriage licenses and marriages because those marriage licenses were issued prior to the declaration in Whitewood that the Marriage Law is unconstitutional. Where, as here, a change in the law does not finally and conclusively dispose of the controversy, the case is not moot. Nat l Dev. Corp. v. Planning Comm n of Harrison Twp.,439 A.2d 1308, 1310 (Pa. Cmwlth. Ct. 1982). Because the Whitewood decision could still be stayed, and because the decision does not dispose of Plaintiffs Amended Petition in its entirety, the Court should deny Defendant Wolf s Application to Dismiss for Mootness. 4

10 Respectfully submitted, /s/ Robert C. Heim Dated June 16, 2014 Robert C. Heim (Pa ) Alexander R. Bilus (Pa ) William T. McEnroe (Pa ) Joanna L. Barry (Pa ) Nathaniel T. Hopkins (Pa ) DECHERT LLP Cira Centre 2929 Arch Street Philadelphia, PA David S. Cohen (Pa ) Drexel University School of Law 3320 Market Street Philadelphia, PA Attorneys for Plaintiffs 5

11 CERTIFICATE OF SERVICE I certify that the foregoing Plaintiffs Amended Answer to Application to Dismiss for Mootness was served upon the interested parties listed below on June 16, 2014 via the PACFile system and prepaid First Class U.S. Mail, addressed as follows William H. Lamb 24 East Market Street P.O. Box 565 West Chester, PA (610) Counsel for Defendant Wolf Dated June 16, 2014 /s/ Nathaniel T. Hopkins Nathaniel T. Hopkins DECHERT LLP Cira Centre, 2929 Arch St Philadelphia, PA 19104

12 EXHIBIT A

13 Case 113-cv JEJ Document 139 Filed 06/06/14 Page 1 of 7 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA DEB WHITEWOOD, et al., 113-CV-1861 Plaintiffs, Hon. John E. Jones, III v. MICHAEL WOLF, in his official Capacity as Secretary, Pennsylvania Department of Health, et al., Defendants. MOTION FOR INTERVENTION OF PROPOSED INTERVENOR- DEFENDANT, THERESA SANTAI-GAFFNEY, SCHUYLKILL COUNTY CLERK OF THE ORPHANS COURT AND REGISTER OF WILLS Proposed Intervenor-Defendant, Theresa Santai-Gaffney, in her official capacity as Schuylkill County Clerk of the Orphans Court and Register of Wills (hereinafter Proposed Intervenor Gaffney ), by and through her undersigned counsel, and pursuant to Rule 24(a)(2), or alternatively, Rule 24(b) of the Federal Rules of Civil Procedure, and Rule 7.1 of the United States District Court for the Middle District of Pennsylvania, files this Motion to Intervene of Right, or in the alternative, for Permissive Intervention, as defendant in this action ( Motion ). In support of this Motion, Proposed Intervenor Gaffney sets forth that 1

14 Case 113-cv JEJ Document 139 Filed 06/06/14 Page 2 of 7 1. This motion is timely and will not prejudice the interests of the other parties. 2. Proposed Intervenor Gaffney seeks to intervene as Intervenor- Defendant to file the accompanying motion for stay and thereafter file an appeal. 3. Intervention by Proposed Intervenor Gaffney in this matter is necessary because she has significant, distinctly protectable interests in this litigation and her ability to protect such interests may be impaired by the disposition of this case. 4. Concurrence was requested of all parties but no response was received at the time of filing. 5. In support of this Motion, Proposed Intervenor Gaffney relies on the Declaration of Proposed Intervenor-Defendant, Schuylkill County Clerk of the Orphans Court and Register of Wills Theresa Santai-Gaffney, and Proposed Intervenor-Defendant s Memorandum of Law filed contemporaneously herewith. 6. So as not to cause any delay, Proposed Intervenor Gaffney relies on, and adopts as her own, the substantive papers filed by the Defendants in this matter, including the Answer, Defendant s Motion for Summary Judgment, and Response to Plaintiffs Motion for Summary Judgment. 7. Because the appeal period has commenced and Proposed Intervenor Gaffney seeks intervention to stay and appeal this Court s May 20,

15 Case 113-cv JEJ Document 139 Filed 06/06/14 Page 3 of 7 Memorandum and Order, she respectfully requests that this Court order an expedited briefing schedule on this matter, which would enable the Court to decide these motions during the appeal period. Specifically, Proposed Intervenor Gaffney requests that this Court require any opposition to be filed by Wednesday, June 11, 2014, and any reply by Friday, June 13, A proposed order is attached. Respectfully submitted this 6 th day of June, By /s/ Jeffrey A. Conrad Jeffrey A. Conrad, Esquire PA Bar No CLYMER MUSSER & CONRAD, P.C. 408 W. Chestnut Street Lancaster, PA Telephone (717) Facsimile (717) jeff.conrad@clymerlaw.com James M. Smith, Esquire PA Bar No SMITH LAW GROUP, LLC Kutztown Road P.O. Box 626 Fleetwood, PA Telephone (610) Facsimile (610) jsmith@smithlawgrp.com David W. Crossett, Esquire PA Bar No (Application to Admission to U.S. District Court for the Middle District of PA pending) SMITH LAW GROUP, LLC Kutztown Road 3

16 Case 113-cv JEJ Document 139 Filed 06/06/14 Page 4 of 7 P.O. Box 626 Fleetwood, PA Telephone (610) Facsimile (610) dcrossett@smithlawgrp.com Counsel for Intervenor-Defendant 4

17 Case 113-cv JEJ Document 139 Filed 06/06/14 Page 5 of 7 CERTIFICATE OF CONCURRENCE Pursuant to Local Rule 7.1, I hereby certify that counsel for the movant has sought concurrence in the motion from each party. At the time of filing, no response was received. By /s/ James M. Smith James M. Smith, Esquire PA Bar No SMITH LAW GROUP, LLC Kutztown Road P.O. Box 626 Fleetwood, PA Telephone (610) Facsimile (610) jsmith@smithlawgrp.com Counsel for Intervenor-Defendant 5

18 Case 113-cv JEJ Document 139 Filed 06/06/14 Page 6 of 7 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA DEB WHITEWOOD, et al., 113-CV-1861 Plaintiffs, Hon. John E. Jones, III v. MICHAEL WOLF, in his official Capacity as Secretary, Pennsylvania Department of Health, et al., Defendants. CERTIFICATE OF SERVICE I hereby certify that on June 6, 2014,I electronically filed the foregoing Intervenor s Motion to Intervene with the Clerk of Court using the ECF system, which will effectuate service of this filing on the following ECF-registered counsel by operation of the Court s electronic filing system James D. Esseks jesseks@aclu.org Leslie Cooper lcooper@aclu.org Mary Catherine Roper mroper@aclupa.org Rebecca S. Melley rsantoro@hangley.com John S. Stapleton jstapleton@hangley.com Mark A. Aronchick maronchick@hangley.com Molly M. Tack-Hooper mtack-hooper@aclupa.org Seth F. Kreimer skreimer@law.upenn.edu 6

19 Case 113-cv JEJ Document 139 Filed 06/06/14 Page 7 of 7 Witold J. Walczak vwalczak@aclupa.org Attorneys for Plaintiffs William H. Lamb Joel Frank Maureen McBride wlamb@lambmcerlane.com jfrank@lambmcerlane.com mmcbride@lambmcerlane.com Attorney for Defendants Sec. Wolf and Sec. Mueser Frank Chernak Ballard Spahr, LLP chernakf@ballardspahr.com Attorney for Donald Petrille, Jr., Register of Wills and Clerk of Orphans Court of Bucks County Respectfully Submitted Clymer Musser & Conrad, P.C. /s/ Jeffrey A. Conrad _ Jeffrey A. Conrad, Esquire 7

20 EXHIBIT B

21 Case 113-cv JEJ Document 141 Filed 06/06/14 Page 1 of 5 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA DEB WHITEWOOD, et al., 113-CV-1861 Plaintiffs, Hon. John E. Jones, III v. MICHAEL WOLF, in his official Capacity as Secretary, Pennsylvania Department of Health, et al., Defendants. INTERVENOR S MOTION FOR STAY Intervenor, Theresa Santai Gaffney, moves pursuant to Fed. R.Civ. P. 62(b) and (c) for this Court to stay its Order dated May 20, 2014, until the final outcome of this case has been decided on appeal. 1. Concurrence was requested of all parties but no response was received at the time of filing. 2. In support of this Motion, Intervenor Gaffney relies on the Brief in Support filed contemporaneously herewith. 3. Intervenor Gaffney respectfully requests that this Court order an expedited briefing schedule on this matter. Specifically, she requests that this Court require any opposition to be filed by Wednesday, June 11, 2014, and any reply by Friday, June 13, 2014.

22 Case 113-cv JEJ Document 141 Filed 06/06/14 Page 2 of 5 4. A proposed order is attached. DATED June 6, 2014 By /s/ Jeffrey A. Conrad Jeffrey A. Conrad, Esquire PA Bar No CLYMER MUSSER & CONRAD, P.C. 408 W. Chestnut Street Lancaster, PA Telephone (717) Facsimile (717) jeff.conrad@clymerlaw.com James M. Smith, Esquire PA Bar No SMITH LAW GROUP, LLC Kutztown Road P.O. Box 626 Fleetwood, PA Telephone (610) Facsimile (610) jsmith@smithlawgrp.com David W. Crossett, Esquire PA Bar No (Application to Admission to U.S. District Court for the Middle District of PA pending) SMITH LAW GROUP, LLC Kutztown Road P.O. Box 626 Fleetwood, PA Telephone (610) Facsimile (610) dcrossett@smithlawgrp.com Counsel for Intervenor-Defendant

23 Case 113-cv JEJ Document 141 Filed 06/06/14 Page 3 of 5 CERTIFICATE OF CONCURRENCE Pursuant to Local Rule 7.1, I hereby certify that counsel for the movant has sought concurrence in the motion from each party. At the time of filing, no response was received. By /s/ James M. Smith James M. Smith, Esquire PA Bar No SMITH LAW GROUP, LLC Kutztown Road P.O. Box 626 Fleetwood, PA Telephone (610) Facsimile (610) jsmith@smithlawgrp.com Counsel for Intervenor-Defendant

24 Case 113-cv JEJ Document 141 Filed 06/06/14 Page 4 of 5 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA DEB WHITEWOOD, et al., 113-CV-1861 Plaintiffs, Hon. John E. Jones, III v. MICHAEL WOLF, in his official Capacity as Secretary, Pennsylvania Department of Health, et al., Defendants. CERTIFICATE OF SERVICE I hereby certify that on June 6, 2014,I electronically filed the foregoing Intervenor s Motion for Stay with the Clerk of Court using the ECF system, which will effectuate service of this filing on the following ECF-registered counsel by operation of the Court s electronic filing system James D. Esseks jesseks@aclu.org Leslie Cooper lcooper@aclu.org Mary Catherine Roper mroper@aclupa.org Rebecca S. Melley rsantoro@hangley.com John S. Stapleton jstapleton@hangley.com Mark A. Aronchick maronchick@hangley.com Molly M. Tack-Hooper mtack-hooper@aclupa.org Seth F. Kreimer skreimer@law.upenn.edu Witold J. Walczak vwalczak@aclupa.org

25 Case 113-cv JEJ Document 141 Filed 06/06/14 Page 5 of 5 Attorneys for Plaintiffs William H. Lamb Joel Frank Maureen McBride wlamb@lambmcerlane.com jfrank@lambmcerlane.com mmcbride@lambmcerlane.com Attorney for Defendants Sec. Wolf and Sec. Mueser Frank Chernak Ballard Spahr, LLP chernakf@ballardspahr.com Attorney for Donald Petrille, Jr., Register of Wills and Clerk of Orphans Court of Bucks County Respectfully Submitted Clymer Musser & Conrad, P.C. /s/ Jeffrey A. Conrad _ Jeffrey A. Conrad, Esquire