4:14-cv-00040 #26

PRELIMINARY PRETRIAL STATEMENT
PAGE 1
TIMOTHY C. FOX
Montana Attorney General
MARK W. MATTIOLI
Chief Deputy Attorney General
JON BENNION
Deputy Attorney General
215 North Sanders
P.O. Box 201401
Helena, MT 59620-1401
Telephone: (406) 444-2026
Fax: (406) 444-3549
mmattioli@mt.gov
JonBennion@mt.gov

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.
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Cause No. 4:14 CV 00040-BMM

PRELIMINARY PRETRIAL
STATEMENT
Case 4:14-cv-00040-BMM Document 26 Filed 08/13/14 Page 1 of 16

PAGE 2
Defendants Fox, Kadas and McWilliams, in their official capacities,
submit this preliminary pretrial statement pursuant to this Courts order of July
22, 2014 (Doc. 11).
A. Brief Factual Outline of the Case
Since territorial days, Montana law has assumed that marriage is a
contract between one man and one woman. 1879 Mont. Laws, ch.43, 855.
Section 48-102 of the Revised Code of Montana (1947) provided: Any
unmarried male of the age of eighteen years or upwards, and any unmarried
female of the age of sixteen years or upwards, and not otherwise disqualified, is
capable of consenting to and consummating marriage. This statute dates back
to 1895. The intent and purpose of Montana law is and has been to support and
encourage marriage as historically understood and defined. Same-sex marriage,
on the other hand, is of recent vintage.
Following the ratification of the Montana Constitution, the Montana
Legislature adopted the Uniform Marriage and Divorce Act, which defined
marriage as a personal relationship between a man and a woman arising out of
civil contract to which the consent of the parties is essential. Rev. Codes Mont.
1977 48-304 (1975.
Montana, like other states, has long expressly prohibited some marriages
between consenting adults, e.g., polygamous marriages or marriages between

PAGE 3
persons closely related to one another by blood or by law. In 1997, the Montana
Legislature added a prohibition on a marriage between persons of the same
sex. Mont. Code Ann. 41-1-401(1)(d). Finally, in 2004 Constitutional
Initiative 96 (CI-96) qualified for the ballot and passed with the support of
nearly 67% of the electors. Consequently, the Montana Constitution now
provides in article XIII, section 7: Only a marriage between one man and one
woman shall be valid or recognized as a marriage in this state.
On May 21, 2014, the four same-sex couples herein filed a Complaint for
Declaratory and Injunctive Relief, pursuant to 42 U.S.C. 1983, contending that
article XIII, section 7 of the Montana Constitution and related statutory
provisions violate the Due Process and Equal Protection Clauses of the
Fourteenth Amendment of the Constitution of the United States.
Plaintiffs Angela Rolando and Tonya Rolando allege that on May 19,
2014, they sought but were denied a marriage license by the Cascade County
Clerk of Court. (Complaint, 26.) Defendants have admitted the allegation.
(Answer, 26.)
The remaining Plaintiffs seek recognition of marriages occurring in other
states. Plaintiffs Chase Weinhandl and Benjamin Milano allege that in early
2014 they legally married in the State of Hawaii. (Complaint, 28.) Plaintiffs
Susan Hawthorne and Adel Johnson allege that sometime in 2014 they were

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legally married in the State of Washington. (Complaint, 34.) Plaintiffs
Shauna Goubeaux and Nicole Goubeaux allege that in 2011 they were legally
married in the State of Iowa. (Complaint, 37.)
The Plaintiffs have sued Tim Fox, in his official capacity as Attorney
General of the State of Montana, Michael Kadas, in his official capacity as
Director of the Montana Department of Revenue, and Faye McWilliams, in her
official capacity as Clerk of Court of Cascade County. Plaintiffs complaint
against Defendant Fox is premised upon the Attorney Generals role as chief
legal officer for the State of Montana and legal advisor to state agencies.
(Complaint, 15.) Plaintiffs complaint against Michael Kadas is premised
upon his authority to administer or enforce revenue laws, including unidentified
provisions related to the treatment for revenue purposes of marriages
contracted in Montana and in other jurisdictions. (Complaint, 19.)
None of the Plaintiffs, including the Rolando Plaintiffs, have alleged any
specific actions by Defendants Fox or Kadas which they claim to have harmed
them or violated their constitutional rights. 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. 662, 676 (2009). The violations
alleged by Plaintiffs are not fairly traceable to the actions of Fox or Kadas.
The plaintiff must have suffered or be imminently threatened with a concrete

PAGE 5
and particularized injury in fact that is fairly traceable to the challenged action
of the defendant and likely to be redressed by a favorable judicial decision.
Lexmark Intl, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1391
(2014) (quoted case omitted).
B. Jurisdiction and Venue Issues
As discussed above, Defendants have admitted that on May 19, 2014, the
Clerk of Courts Office in Cascade County denied the Rolando Plaintiffs a
marriage license. Consequently, Defendants have conceded that venue in this
district is proper.
Defendants, however, have raised a jurisdictional objection in light of
Baker v. Nelson, 409 U.S. 810 (1972). As the Plaintiffs allege here, the Baker
plaintiffs contended that Minnesotas refusal to allow same-sex marriage
violated the Due Process and Equal Protection Clauses of the Fourteenth
Amendment. The Supreme Court of the United States dismissed an appeal from
the Minnesota Supreme Courts adverse decision for failure to raise a
substantial federal question. Id. That decision forecloses Plaintiffs claims
because lower courts are bound by summary decisions by [the Supreme] Court
until as the Court informs [them] that [they] are not. Hicks v. Miranda,
422 U.S. 332, 344-45 (1975) (internal quotation marks omitted).

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The Supreme Court has not only never informed the federal courts that
Baker is no longer binding, the Courts subsequent decisions in Romer,
Lawrence, and Windsor have not undermined the Baker holding. Romer v.
Evans, 517 U.S. 620, 624 (1996), involved a constitutional amendment
invidiously prohibiting the enactment or enforcement of any laws protecting
homosexual persons. Romer did not involve same-sex marriage. Therefore,
Romer cannot be viewed as informing the federal courts not to follow Baker.
And in Lawrence v. Texas, 539 U.S. 558, 578 (2003), the Court went out of
its way to limit its holding to preventing states from criminalizing private
sexual relations between consenting homosexual adults, stating: The present
case . . . does not involve whether the government must give formal recognition
to any relationship that homosexual persons seek to enter.
Finally, in Windsor v. United States, 133 S. Ct. 2675 (2013), the Court
recognized the states power and prerogative to regulate and define marriage.
The Court cautioned that the Windsor holding was confined to lawful marriages
allowed by state law. Id. at 2689-90, 2696. Windsor is a federalism decision
involving the equal respect Congress owes to a dignity conferred or
sanctioned by a state in the exercise of its sovereign power to regulate and
define marriage. Id. at 2693-94. Fundamental rights under the Fourteenth
Amendment are rights deeply rooted in history and tradition, not rights recently

PAGE 7
sanctioned or conferred by a state. Therefore, same-sex marriage cannot be
fundamental right for purposes of the Fourteenth Amendment.
Rather than informing the federal courts that they are free to ignore or
overrule Baker, the Supreme Courts stay order in Herbert v. Kitchen, 134 S. Ct.
893 (January 6, 2014), signals that the Court desires to maintain the status quo in
states which are defending their marriage amendments because, presumably, the
Court intends to resolve these issues soon. Given these circumstances, as well
as imminent rulings from the Ninth Circuit and the filing of petitions for
certiorari by Utah and by the Court Clerk of Tulsa County from the Tenth
Circuits decisions in Kitchen v. Herbert, 2014 U.S. App. LEXIS 11935, and
Bishop v. Smith, 2014 U.S. App. LEXIS 13733 (10th Cir. July 18, 2014), and the
Virginia Attorney Generals petition supporting the decision in Bostic v.
Schaefer, 2014 U.S. App. LEXIS 14298 (4th Cir. July 28, 2014), this Court
should . . . leave to [the Supreme] Court the prerogative of overruling its own
decisions. Cf. Agostini v. Felton, 521 U.S. 203, 237-38 (1997) (quoted case
omitted).
Further, as discussed previously, even if this Court were to reject
Defendants reliance on Baker, Plaintiffs, including the Rolando Plaintiffs, have
not alleged specific actions by Defendants Fox or Kadas which Plaintiffs allege
have harmed them or which are fairly traceable to the actions of Fox or Kadas.

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And. with the exception of the Rolando plaintiffs, Plaintiffs have not alleged any
actions by McWilliams that they claim to have harmed them.
C-D. Factual Basis and Legal Theories of Defense
1. Baker v. Nelson holds that a states decision to define
marriage as between one man and one woman does not raise
a substantial federal question under the Due Process and
Equal Protection Clauses of the Fourteenth Amendment.
Baker preceded by five years the Courts decision in
Loving v. Virginia, 388 U.S. 1 (1967), and Romer, Lawrence,
and Windsor, did not overrule Baker or inform the federal
courts that Baker is no longer the law.

2. Plaintiffs have not alleged concrete injuries in fact fairly
traceable to the actions of Fox or Kadas.

3. According to United States v. Windsor, 133 S. Ct. 2675,
2691 (2013) (quoted case omitted), the states, at the time of
the adoption of the Constitution, possessed full power over
the subject of marriage and divorce . . . [and] the Constitution
delegated no authority to the Government of the United
States on the subject of marriage and divorce.

4. The Anti-Tax Injunction Act (ATI), 28 U.S.C. 1341,
precludes federal subject matter jurisdiction over issues
involving eligibility to file joint tax returns. Plaintiffs suit
seeks to prevent the collection of state tax revenues within
the meaning of the ATI because their claim is premised upon
their allegation that their tax liability is greater than it ought
to be.

5. 28 U.S.C. 1738C provides that [n]o State . . . shall be
required to give effect to any public act, record, or judicial
proceedings of any other State . . . respecting a relationship
between persons of the same sex that is treated as a
marriage. This federal statute permits non-recognition by
Montana of marriages entered into in other states. Plaintiffs
have not challenged this statute.

PAGE 9

6. Defendants submit that Montanas marriage laws are subject
to deferential rational basis review, and therefore the burden
is on the Plaintiffs here. Although there are any number of
important interests served by Montana law, the compelling
interests served by Montana law include, without limitation:

a. Montanas sovereign interest in regulating and
defining marriage as between husbands and wives or
mothers and fathers, which had been thought by most
people as essential to the very definition of [marriage]
. . . throughout the history of civilization, Windsor,
133 S. Ct. at 2689, and in pursuing ongoing and
beneficial political debates rather than being forced to
experiment with a policy of genderless marriage;

b. Montanas time-tested interest in regulating naturally
procreative relationships and promoting the well-being
of children by connecting children to their mothers and
fathers, the benefits of which are common knowledge
and supported by social science research; and

c. Montanas interest in pursuing a child-centric vision of
marriage rather than an adult-centric one.

The facts and documents supporting the States defense may include
expert reports, social science studies, the Voter Information Pamphlet for CI-96,
and any documents identified in Plaintiffs initial disclosures or preliminary
pretrial statement.
E. Computation of Damages
Plaintiffs have filed a complaint for declaratory and injunctive relief under
42 U.S.C. 1983. Damages are not at issue.

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F. Pendency of Related Litigation
There are a number of cases pending throughout the country involving
challenges to marriage amendments and/or related state statutes. See, e.g.,
Bostic v. Schaefer, 2014 U.S. App. LEXIS 14298 (4th Cir. July 28, 2014);
Bishop v. Smith, 2014 U.S. App. LEXIS 13733 (10th Cir. July 18, 2014);
Kitchen v. Herbert, 2014 U.S. App. LEXIS 11935 (10th Cir. June 25, 2014);
Love v. Beshear, 2014 U.S. Dist. LEXIS 89119 (W.D. Ky. July 1, 2014);
Baskin v. Bogan, 2014 U.S. Dist. LEXIS 86114 (S.D. Ind. June 25, 2014);
Wolf v. Walker, 986 F. Supp. 2d 982 (W.D. Wis. 2014); Whitewood v. Wolf,
2014 U.S. Dist. LEXIS 68711 (M.D. Pa. May 20, 2014); Geiger v. Kitzhaber,
2014 U.S. Dist. LEXIS 68171 (D. Or. May 19, 2014); Latta v. Otter, 2014 U.S.
Dist. LEXIS 66417 (D. Idaho May 13, 2014); DeBeor v. Snyder, 973 F. Supp.
2d 757 (E.D. Mich. 2014); De Leon v. Perry, 975 F. Supp. 2d 632 (W.D. Tex.
2014); McGee v. Cole, 2014 U.S. Dist. LEXIS 10864 (S.D. W. Va. Jan. 29,
2014).
Four cases are pending in the United States Court of Appeals for the
Ninth Circuit: Latta v. Otter, 14-35420 & 14-35421 (Idaho); Jackson v.
Abercrombie, 12-16995 & 12-16998 (Hawaii); Servik v. Sandoval, 12-17668
(Nevada), and Geiger v. Kitzhaber, 14-35427 (Oregon). Geiger is awaiting a
ruling on motions to dismiss by the Attorney General of Oregon. The three

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remaining cases--Latta v. Otter, Jackson v. Abercrombie, and Servik v.
Sandoval--are consolidated for oral argument on September 8, 2014. In Latta
the Attorney General and Governor of Idaho are actively challenging the district
courts adverse ruling. In Latta a panel of the Ninth Circuit sua sponte vacated
its prior briefing schedule and expedited briefing and calendaring of the appeal.
The Ninth Circuit also granted the Appellants motions to stay the district
courts decision pending appeal. Judge Hurwitz concurred in the Courts
decision to stay, emphasizing, I concur in the order granting the stay pending
appeal. But I do so solely because I believe that the Supreme Court, in
Herbert v. Kitchen, 134 S. Ct. 893 (2014), has virtually instructed courts of
appeals to grant stays in the circumstances before us today. (Latta v. Otter,
No. 14-35420, May 20, 2014 Order.)
On August 5, 2014, the Attorney General of Utah filed a petition for
certiorari from the Tenth Circuits decision in Kitchen v. Herbert, 2014 U.S.
App. LEXIS 11935 (10th Cir. June 25, 2014). On August 6, 2014, the Court
Clerk of Tulsa County filed a petition for certiorari from Tenth Circuits
decision in Bishop v. Smith, 2014 U.S. App. LEXIS 13733 (10th Cir. July 18,
2014). And on August 8, 2014, the Attorney General of Virginia filed a petition
for certiorari in support of the decision in Bostic v. Schaefer, 2014 U.S. App.
LEXIS 14298 (4th Cir. July 28, 2014). There is a circuit split. See Citizens v.

PAGE 12
Equal Protection v. Bruning, 455 F.3d 859 (8th Cir. 2006). The circuit split
may widen as more decisions come down, including from the Ninth Circuit and
Sixth Circuit. On August 6, 2014, a panel of the Sixth Circuit heard argument in
six consolidated cases from Ohio, Kentucky, Tennessee, and Michigan.
G. Proposed Additional Stipulations and Applicable Law
The parties have contemporaneously filed a Stipulation of Facts.
Defendants propose the following additional stipulation of fact: Since
statehood, Montana law has assumed or provided that marriage is between one
man and one woman, or between a husband and wife. The parties, however,
are not in agreement regarding applicable law. Defendants contend that same-
sex marriage does not raise a substantial federal question, Baker v. Nelson,
409 U.S. 810 (1972). And even if same-sex marriage does raise a substantial
federal question--which is a question neither the Ninth Circuit nor the Supreme
Court has answered since Baker was decided--Defendants contend that same-sex
marriage is a new right rather than a fundamental right. And, for purposes of
Due Process and Equal Protection analysis, rational basis review applies and is
satisfied because Montana law is rationally related to rational, important,
sovereign, and compelling state interests.

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H. Proposed Deadlines for Pleadings and Joinder of Parties
In the parties contemporaneously-filed Discovery Plan they propose an
October 31, 2014 deadline for amendment of the pleadings and joining parties.
I. Controlling Issues of Law Suitable for Pretrial Disposition
Cognizant of the responsibility to consider . . . the possibilities for
promptly . . . resolving the case[,] Fed. Rule Civ. P. 26(f)(2), the parties
Discovery Plan was developed with the realistic expectation that the Ninth
Circuit will likely issue a relatively prompt decision in the three marriage
amendment cases to be argued on September 8, 2014, specifically including
Latta, which the Court has fast-tracked. The Ninth Circuits decision will guide
the course of this case by narrowing and focusing the issues suitable for pretrial
disposition, in particular whether Baker v. Nelson is controlling, whether
rational basis review applies or whether the scrutiny applied in SmithKline
Beecham Corp. v. Abbott Lab., 740 F.3d 471 (9th Cir. 2014) governs in the
same-sex marriage context, whether same-sex marriage is encompassed within
the fundamental right to marry, or whether same-sex marriage is a new right for
purposes of Washington v. Glucksberg, 521 U.S. 702, 722 (1997). Further, the
Supreme Court of the United States seems poised to address these issues in the
very near future.

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Apart from the forgoing considerations, the following issues of law may
be suitable for pretrial disposition: (1) whether this case should be stayed
pending a decision by the Ninth Circuit; and (2) whether all claims against Fox
and Kadas should be dismissed due to the absence of Article III standing.
J. Defendants Initial Discovery Disclosures
1. Individuals Believed Likely to have Discoverable
Information That Defendant May Use to Support Claims or
Defenses.

(a) Plaintiffs Angela Rolando, Tonya Rolando,
Chase Weinhandl, Benjamin Milano, Susan
Hawthorne, Adel Johnson, Shauna Goubeaux and
Nicole Goubeaux. Plaintiffs have information and
knowledge regarding the allegations in their
complaint.

(b) Faye McWilliams, Clerk of District Court, 415 2nd
Ave. North, Great Falls, Montana, 59401, (406) 454-
6787. Clerk McWilliams has information and
knowledge about Tanya Rolandos and Angela
Rolandos effort to obtain a marriage license on May
19, 2014. Clerk McWilliams also has knowledge and
information concerning the independence of elected
Clerks of District Court.

(c) Monique Wagner, Deputy Clerk of Court, 415 2nd
Ave. North, Great Falls, Montana, 59401, (406)
454-6783. Deputy Clerk Wagner has information and
19, 2014.

(d) Michele Ellington, District Court Clerk, 415 2nd Ave.
North, Great Falls, Montana, 59401, (406) 454-6780.
District Court Clerk Ellington has information and

PAGE 15
19, 2014.

2. Defendants disclose the following categories of documents,
data compilations, and tangible things that are in its
possession, custody, or control and which it may use to
supports its claims or defenses, unless solely for
impeachment as follows:

(a) The Voter Information Pamphlet for CI-96.
The pamphlet is available on the Secretary
of States website at
http://sos.mt.gov/elections/Archives/2000s/2004/V
IP2004.pdf;

(b) Defendants may provide expert reports according to
deadlines in the parties contemporaneously-filed Joint
Discovery Plan;

(c) Defendants may also provide social science evidence
or research bearing upon Plaintiffs claims according
to the deadlines in the parties contemporaneously-
filed Joint Discovery Plan.

K. Insurance Agreements
Insurance is not at issue.
L. Settlement Discussions and Prospects for Compromise
Although settlement is not anticipated, decisions by the Ninth Circuit and
Supreme Court could speed resolution.
M. Suitability of Special Procedures
In light of imminent rulings from the Ninth Circuit and Supreme Court, a
stay may be appropriate.

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Respectfully submitted this 13th day of August, 2014.
TIMOTHY C. FOX
Montana Attorney General
215 North Sanders
P.O. Box 201401
Helena, MT 59620-1401

By: /s/ Mark W. Mattioli
MARK W. MATTIOLI

By: /s/ Jon Bennion
JON BENNION
Deputy Attorney General
Attorneys for Defendants

CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing document with the
clerk of the court for the United States District Court for the District of
Montana, using the cm/ecf system. Participants in the case who are registered
cm/ecf users will be served by the cm/ecf system.
DATED: August 13, 2014 /s/ MARK W. MATTIOLI

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PRELIMINARY PRETRIAL STATEMENT

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