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HARRISBURG -- A hearing regarding the Department of Health v. Hanes — a lawsuit filed against Clerk of the Orphans’ Court of Montgomery County D. Bruce Hanes — was held yesterday at the Pennsylvania Judicial Center in Harrisburg.
The lawsuit, filed on Aug. 5 by the Pennsylvania Department of Health, seeks a writ of mandamus “commanding the Clerk of the Orphans’ Court of Montgomery County to perform his duties under the Pennsylvania Marriage Law.”
The Pennsylvania Marriage Law defines the term marriage as a “civil contract by which one man and one woman take each other for husband and wife.” The law also declares that it is “the strong and longstanding public policy of this Commonwealth that marriage shall be between one man and woman.”
For the last two months, Hanes has been issuing marriage licenses to same-sex couples from Montgomery County and throughout the state. As of press time Wednesday, Hanes’ office had issued 165 same-sex marriage licenses.
At the hearing, Commonwealth Court President Judge Dan Pellegrini gave lawyers from both sides about 30 minutes each to make arguments on the basis of the lawsuit, but he would not consider arguments on the constitutionality of the law.
The Montgomery County Solicitor’s Office is representing Hanes in the proceedings, while Gregory Dunlap, Executive Deputy General Counsel, was there on behalf of the Department of Health. Hanes was not present at the hearing.
Ray McGarry, Montgomery County solicitor, argued that the commonwealth court did not have the jurisdiction to hear the case. As Hanes is the Clerk of the Orphans’ Court and also Register of Wills, McGarry said, he is a member of the judicial branch, meaning the Pennsylvania Supreme Court has jurisdiction, not the commonwealth court.
The Pennsylvania Department of Health’s lawyers tried to prove through the Judicial Code that Hanes is not a judicial officer, but a commonwealth officer, and therefore the case should stay in commonwealth court.
Hanes’ lawyers also argued that the Pennsylvania Department of Health does not have the standing to sue him. Citing various past cases, McGarry said that only the Pennsylvania attorney general, the district attorney of Montgomery County, or a private citizen with a “specific and independent legal right or interest in himself different from that of the public at large” has the standing to sue.
McGarry also argued that because a Clerk of the Orphans’ Court must determine the legality of contemplated marriages, the Department of Health couldn’t seek a writ of mandamus against Hanes. A writ of mandamus is used “to compel the public official to perform acts that are required or obliged to be performed and which do not involve exercise of discretion or judgment.”
“[It is] very important we understand that he has discretionary power as Clerk of the Orphans’ Court,” McGarry said.
Attorney Dunlap called Hanes’ actions a fundamental violation of the separation of power and urged the Court to rule in the Department of Health’s favor.
“We don’t want to encourage public officials to take the law into their own hands,” Dunlap said. “This state agency is responsible to make sure the law is followed. The Department of Health has an interest in the integrity of the record-keeping system.”
Judge Pellegrini told the court he would try to have a decision as soon as possible, as the case looks set to move on to higher levels of the Pennsylvania judicial system.
Outside the courthouse at a small press conference, Chairman of the Montgomery County Board of Commissioners Josh Shapiro spoke of his involvement in the case. After Hanes received a marriage license application from a same-sex couple, he went to Shapiro.
Shapiro said he and Hanes had a long discussion, after which Hanes decided to grant the marriage license to the couple.
“I am exceedingly proud of the work that this legal team has done,” Shapiro said. “I look forward to continuing to stand on the side of what is right and just.”
Also outside, Pastor Bill Devlin, a Montgomery County resident, said that he would soon bring a lawsuit against Pennsylvania Attorney General Kathleen Kane for breaking her sworn oath to protect the United States and Pennsylvania constitutions.
Devlin also called for charges of impeachment to be brought against both the Attorney General and Hanes.
Stephanie Carter, who married her wife Jennifer on Aug. 7 after obtaining a marriage license from Hanes, was also outside the courthouse after the hearing.
“[You] can’t keep passing up love for other people’s comfort,” Carter said.