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Case 3:13-cv-00946-JGH Document 14 Filed 09/25/13 Page 1 of 2 PageID #: 62

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY FRANKFORT DIVISION Case No. 3:13-CV-00051-GFVT

KIMBERLY FRANKLIN and TAMERA BOYD vs. STEVE BRESHEAR, in his official capacity as Governor of Kentucky; and JACK CONWAY, in his official capacity as Attorney General of Kentucky; and SUE CAROL PERRY in her official capacity as Shelby County Clerk ******************* Electronically Filed DEFENDANTS MOTION TO DISMISS Comes now the Defendant, Sue Carol Perry, in her official capacity as Shelby County Clerk, by counsel, and pursuant to F.R.C.P. 12(b)(6), moves this Court to dismiss all claims against her in the above-styled action for failure to state a claim upon which relief may be granted. The Defendant further relies upon the attached Memorandum of Law in support of Motion to Dismiss. PLAINTIFFS

DEFENDANTS

Case 3:13-cv-00946-JGH Document 14 Filed 09/25/13 Page 2 of 2 PageID #: 63

Respectfully submitted, s/ Chris J. Gadansky _____________________________ ROBERT T. WATSON CHRIS J. GADANSKY McBrayer, McGinnis, Leslie & Kirkland, PLLC 9300 Shelbyville Road, Suite 210 Louisville, Kentucky 40222 Phone: (502) 327-5400 Fax: (502) 327-5444 rwatson@mmlk.com cgadansky@mmlk.com Counsel for Defendant Sue Carol Perry in her official capacity as Shelby County Clerk

CERTIFICATE OF SERVICE I hereby certify that on September 25, 2013, the foregoing was electronically filed with the Clerk of the Court using CM/ECF which will send notice of electronic filing to the registered counsel. s/Chris J. Gadansky CHRIS J. GADANSKY

Case 3:13-cv-00946-JGH Document 14-1 Filed 09/25/13 Page 1 of 6 PageID #: 64

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY FRANKFORT DIVISION Case No. 3:13-CV-00051-GFVT

KIMBERLY FRANKLIN and TAMERA BOYD vs. STEVE BRESHEAR, in his official capacity as Governor of Kentucky; and JACK CONWAY, in his official capacity as Attorney General of Kentucky; and SUE CAROL PERRY in her official capacity as Shelby County Clerk ******************* Electronically Filed DEFENDANTS MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS Comes now the Defendant, Sue Carol Perry, in her official capacity as Shelby County Clerk (hereinafter the Defendant), by counsel, and submits the following Memorandum of Law in Support of Motion to Dismiss. STATEMENT OF CASE On August 16, 2013, Plaintiffs filed suit pursuant to 42 U.S.C. 1983 to challenge the constitutionality of Amendment 223A of the Kentucky Constitution and KRS 402.045. (R. 1, Plaintiffs Complaint, generally). Alleging they were legally married in Connecticut, Plaintiffs 1 PLAINTIFFS

DEFENDANTS

Case 3:13-cv-00946-JGH Document 14-1 Filed 09/25/13 Page 2 of 6 PageID #: 65

claim in the present cause of action that the Commonwealth of Kentuckys failure to recognize the validity of same-sex marriages violates both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. (Id. at 13-14). As the Shelby County Clerk, Sue Carol Perry was named as a Defendant in her official capacity by virtue of her role in the issuance of marriage licenses. (Id. at 25). Plaintiffs seek declaratory and injunctive relief in furtherance of the legitimization of gay marriage in Kentucky. (Id. at 14). ARGUMENTS I. Standard of Review. Pursuant to F.R.C.P. 12(b)(6), a complaint should be dismissed for failing to state a claim for which relief can be granted when it appears beyond doubt that the complaint sets forth no set of facts, which if proved, would entitle the plaintiff to relief. In deciding whether to dismiss a complaint for failing to state a claim for which relief can be granted, the Court must construe the complaint in a light most favorable to the plaintiff, accept all the factual allegations as true, and determine whether the plaintiff undoubtedly can prove no set of facts in support of his claims that would entitle him to relief. Ley v. Visteon Corp., 540 F.3d 376, 380 (6th Cir. 2008); Lillard v. Shelby County Bd. of Educ., 76 F.3d 716, 724 (6th Cir.1996). II. The Claims Against Sue Carol Perry in Her Official Capacity Must Be Dismissed. Suits against individuals in their official capacities are the equivalent of suits against the governmental entity. Matthews v. Jones, 35 F.3d 1046, 1049 (6th Cir. 1994). Put another way, official capacity claims against public employees are equivalent to lawsuits against the public entity that the employee represents. Claybrook v. Birchwell, 199 F.3d 350, 355 n.4 (6th Cir. 2000)(citing Kentucky v. Graham, 473 U.S. 159, 165 (1985)).

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The Defendant has been sued in her official capacity as Shelby County Clerk. (R. 1, Complaint). This official capacity claim is merely another way of stating a claim against Shelby County, Kentucky. Accordingly, to the extent the Plaintiffs assert official capacity claims

against the Defendant, they must be considered and construed as claims against Shelby County, the entity that official represents. As such, the claims against her in her official capacity are duplicative of any claims which may be asserted against Shelby County and should be dismissed as a matter of law. III. Sue Carol Perry is Not a Final Policymaker and Thus any Claims Against Her or Shelby County, Kentucky Must be Dismissed. Counties cannot be held liable under 1983 on a respondeat superior theory. Monell v. Department of Social Services of City of New York, 436 U.S. 658, 691 (1978). In order to state a claim against a county for an alleged constitutional violation, a plaintiff must show that the county was a moving force behind a custom or practice of permitting such constitutional violations. Id. Plaintiffs claim of liability under 42 U.S.C. 1983 against the Defendant, or more specifically Shelby County, Kentucky, must be based on more than respondeat superior or the right to control employees. Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999). In a 1983 action against a governmental entity like Shelby County, the Court must analyze two distinct issues: whether the Plaintiffs harm was caused by a constitutional violation; and (2) if so, whether Shelby County is responsible for that violation. Sexton v. Kenton County Detention Center, supra at p. 789 (citing Collins v. City of Harker Heights, Tex., 503 U.S. 115, 120 (1992)). Counties can only be held liable under 1983 if there is a direct causal link between an official policy or custom and the alleged deprivation of rights under the Constitution. Cherrington v. Skeeter, 344 F.3d 631, 645 -646 (6th Cir. 2003)(citing to Monell, supra at 694); City of Canton v. Harris, 489 U.S. 378, 385 (1989); Board of County Comm'rs of Bryan County 3

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v. Brown, 520 U.S. 397, 404 (1997); and Gregory v. Shelby County, 220 F.3d 433, 441 (6th Cir.2000). Not all actions committed by county officials, like the Defendant, subject a county to 1983 liability. Pembaur v. City of Cincinnati, 475 U.S. 469, 481-84 (1986). Rather, liability attaches only where the decision-maker possesses final authority to establish municipal policy with respect to the action ordered. Pembaur, supra at 481. Plaintiffs have failed to properly plead a claim of 42 U.S.C. 1983 liability against Shelby County, Kentucky since the Defendant, as Shelby County Clerk, does not possess final authority to establish policy with regards to samesex marriage. Id. at 481-484. As the Shelby County Clerk, the Defendant is responsible for the completion of general duties with respect to issuing, registering, recording and keeping various legal records, including purging voter rolls, voter registration and the conduct of elections, motor vehicle licensing, issuance of hunting and fishing licenses, collection of certain fees and taxes, conducting election duties and tax duties, and registration of marriages. Cope v. Heltsley, 128 F.3d 452, 454 (6th Cir. 1997). The Shelby County Clerk does not, however, like every other county clerk in the Commonwealth of Kentucky, possess final policymaking authority to establish law or policy regarding same-sex unions. Rather, the Defendant merely issues marriage licenses in accordance with the laws of the Commonwealth. KRS 402.100; KRS 402.020; KRS 402.040; KRS 402.045. Failure to adhere and/or disregard state law regarding valid marriages, including those prohibited under KRS 402.040, could result in the imposition of criminal liability upon the Defendant. To wit, KRS 402.990 provides that [a]ny clerk who knowingly issues a marriage license in violation of KRS Chapter 402 shall be guilty of a Class A misdemeanor and that [a]ny clerk who knowingly issues a marriage license to any persons prohibited by KRS Chapter

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402 from marrying shall be fined from $500 to $1,000 and removed from office by the judgment of the court in which he or she is convicted. The Defendant is not authorized by law to utilize discretion in the issuance of marriage licenses. To the contrary, she is required by law to execute the responsibilities of her position in compliance with the laws and regulations of the Commonwealth of Kentucky, or face criminal prosecution for failing to do so. KRS 402.100; KRS 402.020; KRS 402.990. A the Defendant is not responsible for establishing final policy with respect to same sex marriages in Kentucky, Shelby County, or anywhere else for that matter, she is not the proper party to be sued and the Plaintiffs have failed to state any viable claim against her. Dismissal of all claims against the Defendant is thus proper. CONCLUSION WHEREFORE, for the reasons set forth above, the Defendant respectfully requests this Court to enter the attached proposed Order dismissing Plaintiffs claims. Respectfully submitted, s/ Chris J. Gadansky _____________________________ ROBERT T. WATSON CHRIS J. GADANSKY McBrayer, McGinnis, Leslie & Kirkland, PLLC 9300 Shelbyville Road, Suite 210 Louisville, Kentucky 40222 Phone: (502) 327-5400 Fax: (502) 327-5444 rwatson@mmlk.com cgadansky@mmlk.com Counsel for Defendant Sue Carol Perry in her official capacity as Shelby County Clerk

Case 3:13-cv-00946-JGH Document 14-1 Filed 09/25/13 Page 6 of 6 PageID #: 69

CERTIFICATE OF SERVICE I hereby certify that on September 25, 2013, the foregoing was electronically filed with the Clerk of the Court using CM/ECF which will send notice of electronic filing to the registered counsel. s/Chris J. Gadansky CHRIS J. GADANSKY

Case 3:13-cv-00946-JGH Document 14-2 Filed 09/25/13 Page 1 of 1 PageID #: 70

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY FRANKFORT DIVISION Case No. 3:13-CV-00051-GFVT

KIMBERLY FRANKLIN and TAMERA BOYD vs. STEVE BRESHEAR, in his official capacity as Governor of Kentucky; and JACK CONWAY, in his official capacity as Attorney General of Kentucky; and SUE CAROL PERRY in her official capacity as Shelby County Clerk ******************* Electronically Filed ORDER This matter having come before the Court on the Motion of the Defendant, Sue Carol Perry, in her official capacity as Shelby County Clerk, to Dismiss Plaintiffs claims, and the Court having reviewed Memoranda of counsel and being otherwise sufficiently advised; IT IS HEREBY ORDERED AND ADJUDGED that the Defendants Motion to Dismiss is GRANTED and all claims are DISMISSED with prejudice. PLAINTIFFS

DEFENDANTS