Case 3:13-cv-00750-JGH Document 17 Filed 09/17/13 Page 1 of 2 PageID #: 210

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY AT LOUISVILLE CIVIL ACTION NO. 3:13-CV-750-JGH

GREGORY BOURKE, et al. DEFENDANT BOBBIE HOLSCLAWS MOTION TO DISMISS (electronically filed)

PLAINTIFFS

vs.

STEVE BESHEAR, et al. ********

DEFENDANTS

Defendant, Bobbie Holsclaw, by counsel, pursuant to Federal Civil Rule of Procedure 12(b)(6), hereby moves the court to dismiss all claims against her in the above-styled action for failure to state a claim for which relief can be granted. A memorandum in support of the Motion is attached hereto and incorporated herein.

Respectfully submitted, MICHAEL J. OCONNELL JEFFERSON COUNTY ATTORNEY BY: /s/_Stephanie French____________ STEPHANIE FRENCH ASSISTANT COUNTY ATTORNEY FISCAL COURT BUILDING 531 COURT PLACE, SUITE 900 LOUISVILLE, KY 40202 (502) 574-4048 COUNSEL FOR DEFENDANT HOLSCLAW

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CERTIFICATE It is hereby certified that on September 16, 2013, the foregoing was filed with the clerk of the court by using the CM/ECF system. /s/ Stephanie French______ Stephanie French

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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY AT LOUISVILLE CIVIL ACTION NO. 3:13-CV-750-JGH

GREGORY BOURKE, et al.

PLAINTIFFS

vs.

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT BOBBIE HOLSCLAWS MOTION TO DISMISS (electronically filed)

STEVE BESHEAR, et al. ********

DEFENDANTS

Defendant, Bobbie Holsclaw (Holsclaw), by counsel, pursuant to Federal Civil Rule of Procedure 12(b)(6), hereby moves the court to dismiss Plaintiffs claims in their entirety in the above-styled action for failure to state a claim for which relief can be granted.

SUMMARY OF PLAINTIFFS CLAIMS 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 Kentucky Revised Statute 402.045. [Complaint 1, 10, 107]. Legally married in other jurisdictions, Plaintiffs allege that the Commonwealths 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. [Comp. 17-18]. As the Jefferson County Clerk, Bobbie Holsclaw was named as a Defendant in her official capacity as a result of her role in the issuance of marriage licenses. [Compl. 51]. Plaintiffs seek declaratory and injunctive relief in

furtherance of the legitimization of gay marriage in this state. [Comp. 17].

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STANDARD OF REVIEW A complaint should be dismissed for failing to state a claim for which relief can be granted when it appears beyond doubt the complaint sets forth no set of facts, which if proved, would entitle the plaintiff to relief. Federal Rule of Civil Procedure 12(b)(6). 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). ARGUMENT I. PLAINTIFFS OFFICIAL CAPACITY CLAIMS AGAINST DEFENDANT HOLSCLAW MUST BE DISMISSED

Plaintiffs have sued, among others, Defendant Holsclaw in her official capacity as the Jefferson County Clerk. Kentucky courts have repeatedly held that claims against Defendants in their official capacity, are, in effect, claims against the City. Lane v. City of LaFollette, Tenn., 490 F.3d 410, 423 (6th Cir. 2007) citing to Pusey v. City of Youngstown, 11 F.3d 658 (6th Cir. 1993.) Therefore, Plaintiffs claims in this lawsuit are against Jefferson County, which is treated as a municipality under 1983. Hays v. Jefferson Cnty., Ky., 668 F.2d 869 (6th Cir. 1982); Petty v. Cnty. of Franklin, Ohio, 478 F.3d 341 (6th Cir. 2007). Municipalities are only 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 v. Department of Soc. Servs. of City of New York, 436 U.S. 658, 694 (1978); City of Canton v. Harris, 489 U.S.

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378, 385 (1989); Board of County Comm'rs of Bryan County v. Brown, 520 U.S. 397, 404 (1997); and Gregory v. Shelby County, 220 F.3d 433, 441 (6th Cir.2000). To state a cause of action under 1983, a plaintiff must allege the deprivation of a right secured by the United States Constitution or a federal statute by a person who was acting under color of state law. Spadafore v. Gardner, 330 F.3d 849, 852 (6th Cir.2003); Barrett v. Steubenville City Sch., 388 F.3d 967, 971 (6th Cir. 2004). Indeed, the governmental actor must be the moving force behind the identified deprivation. Kentucky v. Graham, 473 U.S. 159, 166-67 (1985). Notably, not all actions committed by municipal officials subject a municipality to 1983 liability. Pembaur v. City of Cincinnati, 475 U.S. 469, 481-84, 106 S. Ct. 1292, 1299300, 89 L. Ed. 2d 452 (1986); Atkinson v. City of Mountain View, Mo., 709 F.3d 1201, 1215 (8th Cir. 2013). Rather, municipal liability attaches only where the decision-maker possesses final authority to establish municipal policy with respect to the action ordered. Pembaur, 475 U.S. at 481. Plaintiffs have failed to properly plead a claim of 42 U.S.C. 1983 liability against Metro as Defendant Holsclaw does not possess final authority to establish municipal policy with regards to same-sex marriage. Pembaur v. City of Cincinnati, 475 U.S. 469, 481-84, 106 S. Ct. 1292, 1299-300, 89 L. Ed. 2d 452 (1986); Atkinson v. City of Mountain View, Mo., 709 F.3d 1201, 1214 (8th Cir. 2013).

II.

DEFENDANT HOLSCLAW IS NOT A FINAL POLICYMAKER AND IS THEREFORE PRECLUDED FROM 1983 LIABILITY

Whether an official possesses final policymaking authority is a question of law for the trial judge upon consideration of both state and local law, as well as custom and usage. Atkinson, 709 F.3d at 1215.

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clerical duties which are classified pursuant to the following categories: issuing and registering, recording and keeping various legal records, registering and purging voter rolls, and conducting election duties and tax duties. [Legislative Research Commission. Duties of Elected County Officials. Informational Bulletin No. 114. Frankfort: LRC, 2007]; Cope v. Heltsley, 128 F.3d 452, 454 (6th Cir. 1997). Notably, Defendant does not possess final policymaking authority to establish municipal policy regarding same-sex unions. Rather, Defendant merely issues marriage licenses in

accordance with the laws of the Commonwealth. Ky. Rev. Stat. Ann. 402.100 (West); Ky. Rev. Stat. Ann. 402.020 (West). Failure to adhere to state statutes regarding valid marriages, including KRS 402.040, can result in the imposition of criminal liability upon Defendant. Specifically, 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 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. Ky. Rev. Stat. Ann. 402.990 (West). Defendant Holsclaw is not authorized to utilize discretion in the issuance of marriage licenses. Rather, she is required to execute the responsibilities associated with her position in compliance with the laws and regulations of this state. Id.; KRS 402.100; KRS 402.020.

Because Defendant is not responsible for establishing final policy with respect to the subject matter in dispute, she is not the proper party to be sued.

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CONCLUSION For the foregoing reasons, Defendant Holsclaw respectfully requests that this Court enter the attached order dismissing Plaintiffs claims in their entirety.

Respectfully submitted, MICHAEL J. OCONNELL JEFFERSON COUNTY ATTORNEY By: s/ Stephanie French Stephanie French Assistant Jefferson County Attorney 531 Court Place, Suite 900 Louisville, KY 40202 (502) 574-8633 COUNSEL FOR DEFENDANT HOLSCLAW

CERTIFICATE It is hereby certified that on September 16, 2013, the foregoing was filed with the clerk of the court by using the CM/ECF system.

/s/ Stephanie French __ STEPHANIE FRENCH

Case 3:13-cv-00750-JGH Document 17-2 Filed 09/17/13 Page 1 of 1 PageID #: 217

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY AT LOUISVILLE CIVIL ACTION NO. 3:13-CV-750-JGH

GREGORY BOURKE, et al. vs. ORDER (electronically filed)

PLAINTIFFS

STEVE BESHEAR, et al. ********

DEFENDANTS

On Motion of the Defendant, Bobbie Holsclaw, by counsel, to dismiss all claims, and this Court being fully advised; IT IS HEREBY ORDERED that Defendants Motion to Dismiss is granted and all claims are dismissed against Defendant Holsclaw.