Commonwealth v. Hanes
379 MD 2013
Full name Commonwealth of Pennsylvania, Department of Health v. D. Bruce Hanes
Filed 2013-07-30
Ended 2012-09-23
Petitioners Commonwealth of Pennsylvania, Department of Health
Respondents D. Bruce Hanes, in his capacity as Clerk of the Orphans' Court of Montgomery County
Court Commonwealth Court of Pennsylvania
Current status Opinion issued, writ of mandamus issued; appeal potentially forthcoming

Commonwealth v. Hanes is a 2013 Pennsylvania court case requesting that the Clerk of the Orphans' Court of Montgomery County be required to cease issuing marriage license to same-sex couples.

Background[edit | edit source]

The case was originally filed in the Commonwealth Court on July 30. The state petitioned the court for a writ of mandamus to force Clerk D. Bruce Hanes to stop issuing marriage licenses to same-sex couples in contravention of state law, then applied for summary relief since there were no material facts in dispute, and there were only questions of law.

The Clerk gave the petition a five-pronged response:

  1. The Commonwealth Court is not the correct court to decide the case because its jurisdiction over writs of mandamus is limited. The case must be transferred to the state Supreme Court.
  2. Even if the Commonwealth Court were the correct court, the Department of Health is not a valid petitioner for a writ of mandamus. Only the state Attorney General, a District Attorney, or a private citizen who has standing can file for one.
  3. Even if the Department of Health were a valid petitioner, the Clerk is not the proper target of a mandamus action because the clerk's issuance of marriage licenses to same-sex couples is a judicial act, not a ministerial one.
  4. Even if the Clerk were the proper target of a mandamus action, mandamus is meant to be a last resort after all other attempted remedies have been exhausted. In this case, mandamus was the first course of action taken.
  5. Even if mandamus were the correct course of action, the Department of Health has no interest in requiring the Clerk to violate the Pennsylvania and U.S. Constitutions.

On August 19, 32 same-sex couples, from among the 100+ couples to have been issued a license by Clerk Hanes, petitioned the court to intervene in the case.

On September 4, Judge Dan Pellegrini held a hearing limited to the following issues, and on September 12, he released his decision and his opinion giving the corresponding answers:

  1. Whether this Court lacks subject matter jurisdiction because Hanes is a Judicial Officer and his issuance of a marriage license is a judicial act.
    • "Hanes, as the Clerk of Orphans' Court and Register of Wills, is 'county staff' and is not a judge or judicial officer. Accordingly, he is not within the definition of 'court' within the meaning of Section 721(2) of the Judicial Code, and the Supreme Court does not have jurisdiction of this mandamus action against him." (Opinion, p. 16).
    • He is also "an officer of the Commonwealth government under Section 102 of the Judicial Code, and this Court has original jurisdiction under Section 761(a)(1)." (p. 17)
    • Issuing marriage licenses "is not a discretionary 'judicial act' performed by the 'judicial officer' of an inferior court." (p. 25)
  2. Whether the Department of Health has standing and, if not, what is the effect of the Pennsylvania Attorney General's delegation of the duty to defend the constitutionality of §§1102 and 1704 of the Marriage Law.
    • "[T]he Office of General Counsel has all the rights and duties of the Attorney General, and since Hanes admits that the Attorney General has standing, the Department of Health, through the Office of General Counsel, can maintain this action to enforce a public duty." (p. 18).
    • Also, "the Department is the proper party with standing to initiate the instant mandamus proceeding to compel Hanes to discharge his duties in compliance with the Marriage Law because the Department possesses a substantial, direct and immediate interest in the subject matter of this litigation pursuant to its authority under the Administrative Code and the Marriage Law." (p. 20)
  3. Whether the constitutionality of the act sought to be enforced can be raised as a defense to a mandamus action.
    • "[A] clerk of courts has not been given the discretion to decide that a law whether the statute he or she is charged to enforce is a good idea or bad one, constitutional or not. Only courts have the power to make that decision." (p. 28)
    • "Hanes does not have standing to assert the purported unconstitutionality of the Marriage Law as a defense to the instant Petition." (p. 31)
    • "Unless and until either the General Assembly repeals or suspends the Marriage Law provisions or a court of competent jurisdiction orders that the law is not to be obeyed or enforced, the Marriage Law in its entirety is to be obeyed and enforced by all Commonwealth public officials." (p. 33)

In conclusion, the Commonwealth Court granted the Department of Health's mandamus petition ordering Clerk Hanes to cease issuing marriage licenses to same-sex couples. The Court also did not allow the proposed intervenors to join the case.

On September 23, the Court issued an amended opinion, revising several passages to eliminate typos or conform to typographical standards. A comparison of the two opinions is available.

Appeal[edit | edit source]

Clerk Hanes has indicated his intention to appeal the case. As of September 23, that appeal had not yet been filed.

Timeline[edit | edit source]

Primary sources[edit | edit source]

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