Case 3:14-cv-00818-CWR-LRA Document 26 Filed 11/10/14 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN (JACKSON) DIVISION
CAMPAIGN FOR SOUTHERN EQUALITY, ET AL.

PLAINTIFFS

CAUSE NO. 3:14-CV-00818 CWR-LRA

v.
PHIL BRYANT, ET AL.

DEFENDANTS

OFFICIAL CAPACITY RESPONSE OF BARBARA DUNN TO PLAINTIFFS

REQUEST FOR DECLARATORY AND INJUNCTIVE RELIEF
COMES NOW, Barbara Dunn, in her official capacity as the Circuit Clerk for Hinds
County, Mississippi (Dunn), through counsel, pursuant to the Federal Rules of Civil Procedure
and other applicable authority, and files her Official Capacity Response to the Plaintiffs Request
for Declaratory and Injunctive Relief.1 In support thereof, Dunn states as follows:

Introduction
This matter involves certain Plaintiffs seeking a preliminary injunction enjoining relevant
government officials from enforcing Section 263A of Article 14 of the Mississippi Constitution
(Section 263A), 2 and MISS. CODE ANN. 93-1-1(2).3
1

See October 10, 2014 Complaint for Declaratory and Injunctive Relief, 4,12-16,21, 52-54,59,62; Prayer for
Relief, [Dock. No. 1]; October 20, 2014 Motion for Preliminary Injunction [Dock. No. 4]; October 20, 2014
Memorandum, [Dock. No. 5], and Minute Entry Proceedings dated October 22, 2014.
2

MISS. CONST. ANN. ART. 14, 263A Marriage defined as only between a man and a woman

Marriage may take place and may be valid under the laws of this State only between a man and a woman. A
marriage in another State or foreign jurisdiction between persons of the same gender, regardless of when the
marriage took place, may not be recognized in this State and is void and unenforceable under the laws of this State.

93-1-1. Certain marriages declared incestuous and void

(1) The son shall not marry his grandmother, his mother, or his stepmother......
(2) Any marriage between persons of the same gender is prohibited and null and void from the beginning. Any
marriage between persons of the same gender that is valid in another jurisdiction does not constitute a legal or
valid marriage in Mississippi.

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Plaintiffs ask this Court to declare unconstitutional the aforementioned constitutional and
statutory sections which Plaintiffs contend deny same-sex couples their constitutional right to
marry. Plaintiffs request that this Court order Dunn (and her officers, employees and agents), to
issue marriage licenses to same-sex couples on the same terms they apply to couples consisting
of a man and a woman, and to recognize same-sex marriages entered into outside Mississippi.
This case is now pending before the Court on Plaintiffs Motion for Preliminary Injunction
[Dock. No. 4].4

On October 22, 2014, the Court conducted a telephone status conference

regarding Plaintiffs Motion for Preliminary Injunction, directing Dunn and other Defendants to
file their respective responses to the Motion for Preliminary Injunction by November 10, 2014.
1.
At the onset, and as set forth more specifically in the accompanying Memorandum Brief,
Dunn takes no position on Plaintiffs claim that Section 263A of Article 14 of the Mississippi
Constitution and Section 93-1-1(2) of the Mississippi Code deny gay couples in Mississippi their
constitutional right to marry.5 Instead, Dunn respectfully submits that, as the Circuit Clerk for
Hinds County, Mississippi, issuance of marriage licenses is a ministerial duty affording Dunn no
discretion. The Mississippi Legislature alone has the power to create and modify statutes.6
Dunn, in her official capacity as the Hinds County Circuit Clerk is prohibited from issuing
marriage licenses to same sex couples. Alternately stated, Dunns act of issuing marriage
certificates is one which had been positively imposed by law and its performance is required at a
time and in a manner under specifically designated conditions. Dancy v. East Mississippi State

4
6

Plaintiffs filed a Complaint for Declaratory and Injunctive Relief on October 20, 2014 [Dock. No. 1].
Hampton v. State, 2014 Miss. LEXIS 513 (Miss. 2014).

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Hospital, 944 So. 2d 10, 16 (Miss. 2006); see also Tebo v. Sonnier, 2006 U.S. Dist. LEXIS
74747 *11 (S.D. Miss. 2006) and Wolcott v. Sebelius, 497 Fed. Appx. 400, 406 (CA 5th 2012).
As such, Dunn is required to perform as Mississippi law requires.
2.
Simply put, Dunn is following the law as it currently stands. Mississippi law, including
the Constitution and statutory authority, as it currently stands, prohibits Dunn from issuing a
marriage license to same sex couples. This same Mississippi law also declares void all marriages
between persons of the same sex and that a valid marriage in Mississippi is ...only between a
man and a woman. Dunn cannot impose her own opinion on this issue and cannot act in a
manner contrary to currently Mississippi law.7
3.
In a 42 U.S.C. 1983 lawsuit, the relevant inquiry is whether plaintiffs have asserted a
violation of a constitutional right, and whether Dunns actions were objectively reasonable in
light of the law that was clearly established at the time the contested action occurred.8 In this
instance, Dunn did not violate clearly established law; rather, she followed it. Indeed, both the
Plaintiffs and Dunn agree that Dunn is sued in her official capacity as Circuit Clerk of Hinds
County, Mississippi. In Mississippi, Dunn is the legal custodian of records relating to marriage
licenses, and is charged by state law with the duty of issuing marriage licenses. Dunn also
agrees with Plaintiffs allegation that at all times relevant to the Complaint, Dunn was acting
under the color of state law and that the act of issuing marriage licenses is one of her official
7

See Garcia v. Premier Home Furnishings, 2013 U.S. Dist. LEXIS 161067 (S.D. Miss. 2013)(...cannot omit or add
to the plain meaning of the statute or presume that the legislature failed to state something other than what was
plainly stated).
8

Bishop v. Lopez, 2002 U.S. Dist. LEXIS 27365 (W.D. Tex. 2002) (Emphasis added).

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duties as the Hinds County Circuit Clerkone which is positively imposed by law on Dunn,
with performance required at a time and in a manner under specifically designated conditions.
Notwithstanding these facts established, Plaintiffs cannot show an underlying claim of a
violation of [established] rights, or a policy maker, an official policy and a violation of
constitutional rights whose moving force is the policy or custom. Cox v. City of Dallas, 430
F.3d 734,738 (5th Cir. 2005).
4.
Dunn anticipates that, regardless of this Courts decision, some party other than Dunn
will seek an appeal. Because this Courts determination will most likely involve injunctive
relief, Dunn respectfully submits that Rule 62 of the Federal Rules of Civil Procedure is
applicable. Subsection (c) of this Rule provides [w]hile an appeal is pending from . . . [a] final
judgment that grants, dissolves, or denies and injunction, the court may suspend, modify, restore
or grant an injunction on terms for bond or other terms that secure the opposing party's rights."
See also Fryar v. Sav-Amil, LLC, 2010 U.S. Dist. LEXIS 76429 (N.D. Miss. 2010).9 This matter
involves a serious legal question that will have a broad impact in Mississippi. Accordingly, Dunn
respectfully requests that, in the event this Court grants Plaintiffs request for declaratory and
injunctive relief, that this Court stay execution of such judgment on certain terms that will secure
Dunns Official Capacity rights.

The Fifth Circuit notes that in order to be entitled to a stay pending appeal under Rule 62, the party seeking the stay
assumes the burden of proving the necessity of a stay. See Drummond v. Fulton County Dep't of Family &
Children's Servs., 532 F.2d 1001, 1002 (5th Cir. 1976) (per curiam) (Rule 62 test for a stay pending appeal places
the burden of proof on the petitioners); see also Fed. R. App. P. 8(a) (noting that a party wanting to stay the
execution of a judgment must . . . move first in the district court for that relief). Unless Rule 62(c) is invoked, a
final judgment in an action for injunction is not stayed during the pendency of an appeal. Duncan, 940 F.2d at 1103
(citing Fed. R. Civ. P. 62(a)).

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WHEREFORE, PREMISES CONSIDERED, Barbara Dunn, in her Official Capacity

as the Hinds County Circuit Clerk, respectfully requests that this Court enter its order dismissing
Barbara Dunn from this matter. In the alternative, and in the event a party seeks an appeal on the
injunctive relief, Barbara Dunn, in her Official Capacity as the Hinds County Circuit Clerk,
respectfully requests Dunn respectfully submits that this Court stay execution of such judgment
on certain terms that will secure Barbara Dunns Official Capacity rights. Finally, Barbara Dunn,
in her Official Capacity as the Hinds County Circuit Clerk, respectfully requests any and all
other relief to which she is entitled.
THIS the 10th day of November, 2014.
Respectfully submitted
BARBARA DUNN, IN HER OFFICIAL
CAPACITY AS HINDS COUNTY,
MISSISSIPPI CIRCUIT CLERK
/s/Pieter Teeuwissen _____________
PIETER TEEUWISSEN, MSB #8777
ANTHONY R. SIMON, ESQ.
PIETER TEEUWISSEN, ESQ.
OFFICE OF THE BOARD ATTORNEY
316 SOUTH PRESIDENT STREET
Jackson, Mississippi 39205
Office:
601-968-6797
Facsimile: 601-948-1003

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CERTIFICATE OF SERVICE
The undersigned certifies that he has this day transmitted via electronic mail
through ECF electronic filing the Official Capacity Response of Barbara Dunn to the
Plaintiffs Request for Declaratory and Injunctive Relief to the following:
Robert B. McDuff, Esq.
Sibyl C. Byrd, Esq.
McDuff & Byrd
767 North Congress Street
Jackson, Mississippi 39202
RBM@McDuffLaw.com
scb@mcdufflaw.com
Andrew J. Ehrlich, Esq.
Jacob H. Hupart, Esq.
Jaren Janghorbani, Esq.
Joshua D. Kaye, Esq.
Roberta A. Kaplan, Esq.
Warren Stramiello, Esq.
Paul, Weiss, Rifkind, Wharton & Garrison, LLP-New York
1285 Avenue of the Americas
New York City, New York 10019-6064
aehrlich@paulweiss.com
jjanghorbani@paulweiss.com
jkaye@paulweiss.com
rkaplan@paulweiss.com
wstramiello@paulweiss.com
Diane E. Walton, Esq.
Walton Law Office
168 S. Liberty Street
Asheville, North Carolina 28801
diane@waltonlawoffice.com

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Dianne Herman Ellis, Esq.

Rita Nahlik Silin
Silin & Ellis
1161 Robinson Street
Ocean Springs, Mississippi 39564
diannenjd@aol.com
rita@silinlaw.com
Counsel for Campaign for S0uthern Equality, Rebecca Bickett, Andrea Sanders,
Jocelyn Pritchett and Carla Webb
Respectfully submitted this the 10th of November 2014.
/s/Pieter Teeuwissen _________
PIETER TEEUWISSEN, MSB #8777