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Please begin with an informative title:

The Commonwealth Court heard oral arguments in Commonwealth v. Hanes yesterday in Harrisburg, PA on a motion to intervene filed by same-sex couples who were issued marriage licenses by Montgomery County Recorder of Wills, D. Bruce Hanes.  A write-up is here.

This is a mandamus action filed to force Hanes to stop issuing marriage licenses to same-sex couples.  For those who are not familiar with a mandamus action, it is:

an extraordinary writ commanding an official to perform a ministerial act that the law recognizes as an absolute duty and not a matter for the official's discretion
Follow me below the fold for a recap of the action and some analysis.
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First of all, the Commonwealth sued Hanes in the Commonwealth Court.  In Pennsylvania, that is the court reserved for disputes where an agency of the state government is a defendant.  Normally, in a case such as this, the Attorney General would handle the matter for the Commonwealth, but here, AG Kathleen Kane refused to enforce a law she deemed unconstitutional.  With her abdication, the Office of General Counsel took the reins for the Commonwealth.

As mentioned above, the purpose of the lawsuit is to force Hanes, in his capacity as a government official, to follow the Pennsylvania DOMA law and stop issuing marriage licenses to same-sex couples.

The Court issued an Order certifying the questions to be addressed at oral argument.  The most interesting ones (to me, at least) are:

1.  Whether this Court lacks subject matter jurisdiction because Respondent Hanes is a judicial officer?

2.  Whether Respondent's issuance of a marriage license is a judicial act? and

5.  Whether the constitutionality of the act sought to be enforced can be raised as a defense to a mandamus action?

Judge Dan Pellegrini focused on the key question:  Who decides?

As a threshold question, Judge Pellegrini heard argument on the rather esoteric question of whether the Commonwealth Court has jurisdiction over the matter.  For those who do not operate with the law on a regular basis, there are some courts of general jurisdiction, or courts that can hear pretty much any dispute.  In Pennsylvania, that is the Court of Common Pleas.  The Commonwealth Court is a court of limited jurisdiction and requires that the defendant be an agent of the government.

That requirement would seem to be satisfied here in that Hanes is being sued in his capactiy as an agent of the Montgomery County government.  However, and this is the esoteric part, state law requires that judicial officers be sued in the Supreme Court as the court of original jurisdiction.  Hanes argued that he is actually a judicial officer, and the Commonwealth Court therefore has no jurisdiction to hear the case.

The Commonwealth posited that statutory definitions state that officers in Hanes's position are not judicial officers.  Hanes countered that caselaw decided on those very statutes qualify him as an "officer of the court."  Hanes found a sympathetic ear in Pelligrini:

...there are cases, and I think I wrote one, that call them judicial officers.
Even if Hanes prevails on this point, the case is not over.  It will be litigated in the PA Supreme Court, instead.  It delays adjudication, but decides nothing on the merits.

Then they got to the heart of the matter.  The Commonwealth's position is that

The law does not allow in a mandamus action the collateral attack on the constitutionality of the statute, either by respondent or those whose interests are implicated.
Hanes argued, to the contrary, that when the issue is of public interest or when it is one on which the Attorney General has opined, the law allows him to raise constitutional defenses to a mandamus action.  Here, Pellegrini appeared to side with the Commonwealth:
The only time an attorney general's opinion has any legal effect is if it's an opinion and under the Commonwealth Attorneys Act it is something that has to be asked for by an executive department or an agency
In other words, the Attorney General's statement that she would not defend the statute was not an official opinion and therefore should not be relied upon for justification for raising a consitutional defense.  Fortunately, Hanes argued a public policy exception as well.

At this point, Pellegrini got to the $64,000 question:

Can the register of wills decide that the act is unconstitutional and issue marriage licenses?

--snip--

This is not only this case, when we make the determination of whether or not he can decide, I'm looking at the ramifications not just for this case, but for all kinds of other cases. ... There's a lot of constitutional officers in this commonwealth and I'm trying to decide if and when they can make a determination.

One of the major considerations here is the possibility of uncertain outcomes depending on the county.  Is consistency throughout the Commonwealth important when we have the possibility of 60+ different registers of wills coming to different conclusions about the constitutionality of an act?  From Hanes's perspective, he was faced with this situation:  1) He had taken an oath to uphold the Constitution; and 2)  a same-sex couple presented themselves to obtain a marriage license after the U.S. Supreme Court struck down DOMA and the state Attorney General made a statement that Pennsylvania's DOMA statute was likewise uncoustututional.  A conundrum, to be sure.

This is a difficult case that could have a very long reach -- well beyond issuing marriage licenses.  I will write on the decision when it is issued.

Extended (Optional)

Originally posted to ccyd on Thu Sep 05, 2013 at 11:03 AM PDT.

Also republished by Kossacks for Marriage Equality, Milk Men And Women, and LGBT Kos Community.

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