Electronically Filed

IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA

NEW ALBANY DIVISION

ELECTRONICALLY FILED

MELISSA LOVE, et al )
)
) CIVIL ACTION NO.
)
PLAINTIFFS ) 4:14-cv-15-RLY-TAB
vs. )
)
)
MICHAEL RICHARD PENCE )
)
)
)
DEFENDANT )

* * * * * * *

MOTION FOR RECONSIDERATION OF ORDER DISMISSING

Pursuant to Fed. R. Civ. P. 59(e), Plaintiffs move this Court to reconsider its grant of
Defendants Motion to Dismiss and allow Plaintiffs suit to move forward with Governor
Michael Pence as the Defendant. Plaintiffs rely on the attached Memorandum in support of
their Motion.
Case 4:14-cv-00015-RLY-TAB Document 35 Filed 07/22/14 Page 1 of 2 PageID #: 415
2
Respectfully submitted,

/s/Daniel J. Canon________________
Daniel J. Canon
Laura E. Landenwich #27709-22
L. Joe Dunman
CLAY DANIEL WALTON ADAMS, PLC
Meidinger Tower, Suite 101
462 S. Fourth Street
Louisville, KY 40202
(502) 561-2005
Dan@justiceky.com
Laura@justiceky.com
Counsel for Plaintiffs

Shannon Fauver
Dawn Elliott
FAUVER LAW OFFICE, PLLC
1752 Frankfort Ave.
(502) 569-7710
Shannon@fauverlaw.com

CERTIFICATE OF SERVICE

I hereby certify that on July 22, 2014, I electronically filed the foregoing with the
clerk of the court by using the CM/ECF system, which will send a notice of electronic filing
to all having entered their appearance in this case.

/s/ Daniel J. Canon

Case 4:14-cv-00015-RLY-TAB Document 35 Filed 07/22/14 Page 2 of 2 PageID #: 416
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
NEW ALBANY DIVISION

MELISSA LOVE, et al., )
)
Plaintiffs, )
)
v. ) No. 4:14-CV-15-RLY-TAB
)
MICHAEL RICHARD PENCE, )
in his official capacity as Governor )
of the State of Indiana, )
)
Defendant. )

* * * * * * *
PLAINTIFFS MEMORANDUM IN SUPPORT OF MOTION FOR
RECONSIDERATION OF ORDER DISMISSING

Plaintiffs Melissa Love, Erin Brock, Michael Drury, Lane Stumler, Jo Ann Dale,
Carol Uebelhoer, Jennifer Redmond, and Jana Kohorst submit this memorandum in support
of their motion pursuant to Rule 59(e) of the Federal Rules of Civil Procedure to alter or
amend the judgment of this Court entered June 25, 2014. Plaintiffs move for reconsideration
based on evidence that Defendant Governor Michael Pence made misrepresentations to this
Court about his authority to enforce IC 31-11-1-1. Defendant's Motion to Dismiss was
premised entirely on the claim that he lacked the authority to enforce IC 31-11-1-1, and
was thus shielded from suit by the Eleventh Amendment. However, after his dismissal from
this suit, Defendant Pence proceeded to wield the very authority he claimed to lack by
issuing numerous directives and instructions related to IC 31-11-1-1 to all executive branch
agencies. Based on this newly discovered evidence, Plaintiffs respectfully ask this Court to
reconsider its June 25, 2014 entry on Defendants Motion to Dismiss.
Case 4:14-cv-00015-RLY-TAB Document 35-1 Filed 07/22/14 Page 1 of 7 PageID #: 417
2
STATEMENT OF THE FACTS
On March 7, 2014, Plaintiffs filed a lawsuit challenging the constitutionality of IC
31-11-1-1, which bans same-sex couples from marrying or having their out-of-state
marriages recognized in Indiana.
1
Plaintiffs named Indiana Governor Michael Pence as the
sole defendant. On April 4, 2014, Defendant moved to dismiss Plaintiffs suit on the grounds
that he was not a proper defendant because he, as the Governor of Indiana, has no authority
to enforce IC 31-11-1-1. On June 25, 2014, this Court granted Defendants Motion to
Dismiss and denied Plaintiffs request for additional discovery to determine the proper
defendant(s), as well as Plaintiffs request for leave to amend their Complaint to include the
proper defendants. Also on June 25, 2014, this Court struck down IC 31-11-1-1 in a
consolidated entry on cross-motions for summary judgment in Baskin v. Bogan, Fujii v.
Pence, and Lee v. Pence (June 25 Order).
That day, Defendant issued an order to all executive branch agencies directing them
to comply with the June 25 Order, and Indiana began issuing marriage licenses to hundreds
of same-sex couples. (Exhibit 1, Mark G. Ahearns June 26, 2014 memo to all executive
branch agencies). Also on that day, Indiana Attorney General Greg Zoeller filed a notice of
appeal and an emergency request for a stay of the June 25 Order. Two days later, on June 27,
2014, the U.S. Court of Appeals for the 7
th
Circuit issued a stay pending resolution of
Indianas appeal. In reaction to the stay, the Governors general counsel instructed all
executive branch agencies to stop any processes they had commenced in complying with
this Courts order. (Exhibit 2, Mark G. Ahearns July 7, 2014 memo to all executive branch
agencies (emphasis added)). The Governor declared IC 31-11-1-1 to be in full force and

1
Three other lawsuits were subsequently filed seeking the same relief as the instant case:
3
effect and ordered all executive branch agencies to execute their functions as though the
U.S. District Court Order of June 25, 2014 had not been issued. (Id.).
STANDARD FOR GRANTING MOTION FOR RECONSIDERATION
A motion to alter or amend a judgment under Fed. R. Civ. P. 59(e) asks a court to
reconsider matters properly encompassed in a decision on the merits.
2
Motions for
reconsideration serve a limited function: to correct manifest errors of law or fact or to present
newly discovered evidence.
3
For new evidence to be considered, the moving party must
show not only that this evidence was newly discovered or unknown to it until after the
hearing, but also that it could not with reasonable diligence have discovered and produced
such evidence [during the pendency of the motion].
4
In light of the new evidence, a party
may seek to vacate or reverse a judgment.
5

ARGUMENT
The directives discussed above make clear that Governor Pence does in fact have the
authority to enforce IC 31-11-1-1, and necessitates that this Court reconsider its grant of
Defendants Motion to Dismiss and restore Governor Pence as the Defendant in this action.
6

Defendant made gross misrepresentations regarding his authority to enforce IC 31-11-1-1,
as evidenced by his actions following this Courts June 25, 2014 orders. This evidence is

2
Osterneck v. Ernst and Whinney, 489 U.S. 169 (1988) (citations omitted).
3
Keene Corp. v. Intl. Fid. Ins. Co., 561 F. Supp. 656, 665 (N.D. Ill. 1982) aff'd, 736 F.2d 388
(7th Cir. 1984) and aff'd, 735 F.2d 1367 (7th Cir. 1984).
4
Caisse Nationale de Credit Agricole v. CBI Industries, Inc., 90 F.3d 1264, 1269-70 (7th Cir.
1996) (quoting Engelhard Indus., Inc. v. Research Instrumental Corp., 324 F.2d 347, 352
(9th Cir.1963), cert. denied, 377 U.S. 923, 84 S.Ct. 1220, 12 L.Ed.2d 215 (1964)).
5
Ortiz v. Gaston County Dyeing Mach. Co., 277 F.3d 594 (1st Cir. 2002); see also Borrero v.
City of Chicago, 456 F.3d 698 (7th Cir. 2006).
6
See, e.g., Arnold v. Sullivan, 131 F.R.D. 129, 134 (N.D. Ind. 1990) (granting Secretary of
Department of Health and Human Services Motion to Amend or Alter the Judgment based
on newly discovered evidence of misrepresentations or misconduct of the Claimant in failing
to fully disclose her earnings and work activities).
4
newly discovered and could not with reasonable diligence have been discovered until after
the judgment.
In his Motion to Dismiss, Defendant outlined the full extent of his impotence over IC
31-11-1-1. For example, Defendant claimed that:
the governor does not issue marriage licenses, and he does not perform any other
function tantamount to recogniz[ing] marriages solemnized in other states. Indeed,
Plaintiffs Complaint fails to specify anything the Governor could actually do to
provide them with relief.
7

the governor cannot provide Indiana marriage licenses to the unmarried Plaintiffs.
8

The Governor has no authority to enforce, or other role respecting, the States
Defense of Marriage Act.
9

the Governor has no specific authority to enforce the States Defense of Marriage
Act.
10

This Court took Defendant at his word and dismissed Plaintiffs action, stating that
Plaintiffs point to no gubernatorial authority - as is their burden - to issue executive decrees
telling other elected officials how to do their jobs when it comes to laws affecting marriage.
(DN 32, pg. 5).

The same day this Court granted Defendants Motion to Dismiss, the
Governor did precisely that: he told the executive branch agencies how to do their jobs when
it comes to laws affecting marriage.
11

7
Memorandum in Support of Defendants Motion to Dismiss, DN 19, pg. 6 (emphasis in
original).
8
Id. at 6-7.
9
Id. at 7.
10
Id. at 9.
11
See Exhibit 2: "[t]hat same day [June 25, 2014], Governor Pence, while expressing support
for the Attorney Generals appeal of the District Courts ruling, nonetheless, directed that all
executive branch agencies must comply with the District Courts order as detailed in written
instructions the next day from the Governors general counsel to all executive branch
agencies."
5
On June 26, 2014, the Governor, via his general counsel, issued a memo as both
explanation and instruction to all executive branch agencies as the State of Indiana
implements the Courts June 25 Order. (Exhibit 1). Despite his continued support for IC
31-11-1-1, Defendant ordered that, because he believes in the rule of law, the State of
Indiana will comply with the federal courts order as this case moves through the appeals
process. (Id.) The contents of the June 26, 2014 memo eviscerated any remaining credence
to Defendants claim that the Governor has no authority to enforce, or other role respecting,
the States Defense of Marriage Act. (Memorandum in Support of Defendants Motion to
Dismiss, DN 19, pg. 7).
On June 27, 2014, the U.S. Court of Appeals for the 7
th
Circuit issued a stay of this
Courts order pending resolution of Indianas appeal. In reaction, the Governor, through his
general counsel, again exercised his authority to enforce Indianas marriage laws by
instruct[ing] all executive branch agencies to stop any processes they had commenced in
complying with this Courts June 25 Order. (See Exhibit 2).
The most telling display of gubernatorial authority over IC 31-11-1-1 occurred on
July 7, 2014, when the Governor declared IC 31-11-1-1 to be in full force and effect and
ordered all executive branch agencies to execute their functions as though the U.S. District
Court Order of June 25, 2014 had not been issued. (Exhibit 2). In other words, the Governor
single-handedly revoked hundreds of marriage licenses that had been granted to same-sex
couples as a result of this Courts June 25 Order. The decision was solely the Defendants
12

12
When explaining his decision, the Defendant stated, "I appreciate the confusion that has
been created by different federal court decisions, but as governor I have to see to it that the
state operates in a manner consistent with Indiana law.
http://www.indystar.com/story/news/politics/2014/07/09/state-recognize-june-marriages-sex-
couples/12410207/ (accessed July 22, 2014).
6
and it clearly constitutes the Governor enforc[ing] against parties affected an
unconstitutional act, such that he may be enjoined from such action under the doctrine of Ex
parte Young.
13
The decision to revoke same-sex marriage licenses validly issued by the State
of Indiana, as well as the other actions taken by the Governor following the Courts June 25
Order, definitively show that the Governor of Indiana does indeed have some connection
with the enforcement of the act required to make the Governor a proper party to the instant
action.
14

The evidence supporting Plaintiffs position is newly discovered and could not with
reasonable diligence have been discovered until after the judgment, therefore this Court may
consider it in deciding Plaintiffs motion for reconsideration. Defendant had not exercised
this authority prior to the June 25 Order, therefore, Plaintiffs could not point this Court to
specific incidents to substantiate their position. Defendant has now demonstrated that he
indeed has the very authority that he previously disclaimed.
CONCLUSION
The memoranda issued by the Governor following this Court's orders on June 25,
2014 are directly contrary to every argument made by the Governor in his Motion to Dismiss.
For the foregoing reasons, Plaintiffs respectfully ask that this Court reconsider its June 25,
2014 Entry on Defendants Motion to Dismiss and grant the Plaintiffs their requested relief.

13
[O]fficers of the state, [who] are clothed with some duty in regard to the enforcement of
the laws of that state, and who threaten and are about to commence proceedings, either of a
civil or criminal nature, to enforce against parties affected an unconstitutional act, violating
the Federal Constitution, may be enjoined by a Federal court of equity from such action. Ex
parte Young, 209 U.S. 123, 155-156 (1908).
14
Ex parte Young, 209 U.S. at 157.
7
Respectfully submitted,

/s/Daniel J. Canon________________
Daniel J. Canon
Laura E. Landenwich #27709-22
L. Joe Dunman
CLAY DANIEL WALTON ADAMS, PLC
Meidinger Tower, Suite 101
462 S. Fourth Street
(502) 561-2005
Dan@justiceky.com
Laura@justiceky.com

Shannon Fauver
Dawn Elliott
FAUVER LAW OFFICE, PLLC
1752 Frankfort Ave.
(502) 569-7710
Shannon@fauverlaw.com

CERTIFICATE OF SERVICE

I hereby certify that on July 22, 2014, I electronically filed the foregoing with the
clerk of the court by using the CM/ECF system, which will send a notice of electronic filing
to all having entered their appearance in this case.

/s/ Daniel J. Canon

To: All Executive Branch Agencies
From: Mark G. Ahearn, General Counsel to Governor Mike Pence
Date: July 7, 2014
Subject: Status of Same Sex Marriages According to Indiana Law and Pursuant to Court Order

In order to ensure all Indiana executive branch agencies operate with a common understanding of the
law and pursuant to uniform management guidance, I issue the following explanation and instructions
with respect to the courts rulings on same sex marriages.

As a reminder of the various court rulings and executive branch responses in this matter, I note the
following:

1. On Wednesday, June 25, 2014, the U.S. District Court issued a ruling and order striking down
Indianas statute defining marriage (see Indiana Code 31-11-1-1).

2. That same day, Governor Pence, while expressing support for the Attorney Generals appeal of
the District Courts ruling, nonetheless, directed that all executive branch agencies must comply
with the District Courts order as detailed in written instructions the next day from the
Governors general counsel to all executive branch agencies.

3. On Friday, June 27, 2014, the U.S. Court of Appeals for the 7th Circuit issued a stay of the District
Courts order pending resolution of Indianas appeal by the Attorney General and the
Governors general counsel instructed all executive branch agencies to stop any processes they
had commenced in complying with the District Court order of June 25.

4. On Tuesday, July, 1, 2014, the 7th Circuit lifted its stay with respect to one same sex couple,
Amy Sandler and Nikole Quasney, and ordered recognition of their marriage on an emergency
basis pending further order of the court.

Now that the 7
th
Circuit has ruled, agencies are to proceed as follows:

1. To ensure that the state respects the rule of law, executive branch agencies are instructed to
comply with the 7th Circuit Order issued on June 27, 2014, which stays the U.S. District Court
Order issued on June 25, 2014. Accordingly, Indiana Code 31-11-1-1 is in full force and effect
and executive branch agencies are to execute their functions as though the U.S. District Court
Order of June 25, 2014 had not been issued. Also in compliance with the rule of law, the State
will comply with the Court of Appeal's individual order recognizing the marriage of Amy Sandler
and Nikole Quasney.

2. As this office may not be familiar with every law pertaining to every agency or with the
interaction of those laws with federal or other laws, there may be specific instances in which
this policy must be applied differently. If your agency has such a legal situation, please, review
with your general counsel and contact me (232-4579) or Steve Simcox (234-8543).

Thank you.

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