Montgomery County is making major revisions to its custody procedure, including an overhaul of the “Our Children First” parenting seminar. This seminar is a requirement under Local Rule of Civil Procedure 1915.3* and mandatory for parties in custody cases. Effective today, the Court has temporarily suspended that Local Rule and the Court Administrator’s Office will refund registrations fees to anyone who is currently registered for the program and will not be accept registrations pending further Order of Court reinstating the rule.

Montgomery County’s new procedure becomes effective January 1, 2019, so I anticipate this month being used to enact the changes to the Seminar envisioned by the Court, including the installation of Krystiane (Krys) Cooper (MSW, LCSW, RPT-S) as the new director of the program, and that the Local Rule will be reinstated at some point in January.

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This afternoon,U.S. District Judge John Jones ruled that Pennsylvania’s version of the Defense of Marriage Act banning same-sex marriage is unconstitutional. This decision, out of the Middle District of Pennsylvania, paves the way for legal, same-sex marriage in Pennsylvania. The repercussions of this decision remain to be seen, however, since there are other pending cases in other courts in the state, namely the validity of same-sex marriage licenses in Montgomery County.

This decision is the recent result of both sides of the case asking the court to make a determination on the pleadings, rather than going through a trial.

Read the full memorandum opinion here.

 

 

register of wills

The legal filings have continued in the legal battle over D. Bruce Hanes’ decision to issue marriage licenses in Montgomery County, Pennsylvania to same sex couples.  The Corbett administration filed a brief on Monday, August 12, 2013 in support of their position that Hanes cannot issue marriage licenses to same sex couples.   It appears, from the docket, that Hanes and Montgomery County have until Monday, August 19, 2013 to file a responsive brief, after which the Commonwealth Court will entertain legal argument on the issue.

 

It didn’t take long for the marriage licenses issued by Montgomery County Register of Wills, D. Bruce Hanes, to come under fire.  Questions as to who might have standing to challenge the licenses and who might prosecute the case were answered on Tuesday when the Pennsylvania Department of Health filed an injunction in the Commonwealth Court asking the Court to enter an order barring Mr. Hanes from issuing any more same-sex marriage licenses or accepting completed marriage certificates after the marriages have been solemnized.  There is debate as to whether the Department of Health has standing to challenge the licenses and that argument may be raised in defense to the Department of Health’s lawsuit.  Montgomery County’s solicitor, Ray McGarry, has already articulated an intent to defend Mr. Hanes decision to issue the licenses.

The Department of Health’s injunction will be argued by the Office of General Counsel. After the state Attorney General’s stated refusal to defend Pennsylvania’s Defense of Marriage Act on the basis that it unconstitutional, the Office of General Counsel was expected to step in on any litigation related to same-sex marriage and Pennsylvania’s DOMA. They will be defending Pa.DOMA in the Middle District against the ACLU’s challenge and prosecuting the action against the Register of Wills and Montgomery County Orphans Court on behalf of the Department of Health.

These two lawsuits could radically reshape Pennsylvania’s law on same-sex marriage. Crafting the “right” case to challenge an issue like same-sex marriage carries with it a lot of risks; there are few opportunities to attack a law and a loss in either case does not mean that another challenge is readily available.  A set back on either or both cases could temporarily stop the momentum in Pennsylvania created by the Supreme Court’s “Windsor” decision.  However, by taking two very different approaches to attacking the issue resulting in two distinct courts, proponents of same-sex marriage have avoided putting all their eggs in one basket.

 

 

Pennsylvania Attorney General Kathleen Kane’s decision not to have the Attorney General’s Office defend the state’s version of the Defense of Marriage of Act justifies its own analysis, but in the mean time, it appears that Montgomery County’s Register of Wills was prepared to issue a marriage license to a same-sex couple today.  Though the couple backed out for unknown reasons, the willingness of D. Bruce Hanes to issue the marriage license in the face of countervailing Pennsylvania law indicates that it is a matter of time before a license is issued – and subsequently challenged – by a county in Pennsylvania.  A challenge to such a license is not a bad thing to proponents of same-sex marriage.

Unlike the ACLU-sponsored challenge to Pennsylvania’s DOMA (“PA.DOMA”) which seeks declaratory relief recognizing that PA.DOMA violates the 14th Amendment of the Constitution, an action to invalidate a marriage license from Montgomery County would likely be brought by an opponent to same-sex marriage. Standing to bring an action would be a major question – who has the legal standing to contest the validity of the license? It would seem that Pennsylvania Attorney General’s Office, as the chief law enforcement office of the state, would typically be called to invalidate the license, but having already articulated a refusal to defend PA.DOMA at the Federal level they clearly would not. If not the AG”s office, who? There has been speculation that the Office of General Counsel – the Governor and exective branch’s lawyers – could step in and defend the law in the ACLU case, so it is similarly possible they could act on the orders of the Governor to deal with a same-sex marriage license.

Mr. Hanes decision to issue a same-sex marriage license is a bold step and potentially opens another avenue to attack PA.DOMA besides the ACLU’s challenge in the Middle District of Pennsylvania. If today’s couple or another same-sex couple steps up to have a marriage license issued in Montgomery County, it will undoubtedly create another opportunity to address PA.DOMA at the state level.