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THE UNITED STATES DISTRICT COURTFOR THE MIDDLE DISTRICT OF NORTH CAROLINA

1:14-cv-299

ELLEN W. GERBER, et al.,

Plaintiffs,

v.

ROY COOPER, in his official capacity asthe Attorney General of North Carolina,et al.,

Defendants.

DEFENDANT CATAWBA COUNTYREGISTER OF DEEDS ANSWER AND

AFFIRMATIVE DEFENSES

NOW COMES Defendant, Donna Hicks Spencer, in her official capacity as the Catawba

County Register of Deeds, (hereinafter Defendant Spencer) without waiving any motions or

defenses not set out herein, in answer to Plaintiffs Complaint.

ANSWER AND FIRST AFFIRMATIVE DEFENSE

RESPONSE TO ENUMERATED PARAGRAPHS:

1. To the extent that the allegations in Paragraph 1 constitute conclusions of law,

said conclusions are neither admitted nor denied. As to any remaining allegations set forth in

Paragraph 1, Defendant Spencer is without sufficient knowledge or information to admit or

deny. Thus, for the reasons set forth above, the remaining allegations in Paragraph 1 are

denied.

2. Defendant Spencer is without sufficient knowledge or information to admit or

deny Plaintiffs allegations in Paragraph 2.

3-8. To the extent that the allegations in these Paragraphs constitute conclusions of

law, said conclusions are neither admitted nor denied. As to any remaining allegations set forth

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in Paragraphs 3 through 8, Defendant Spencer is without sufficient knowledge or information

to admit or deny. Thus, for the reasons set forth above, the remaining allegations in

Paragraphs 3 through 8 are denied.

RESPONSE TO MARRIAGE



Paragraph 9, Defendant Spencer is without sufficient knowledge or information to admit or deny.

Thus, for the reasons set forth above, the remaining allegations in Paragraph 9 are denied.

10. The allegations contained in Paragraph 10 of the Plaintiffs Complaint areadmitted upon information and belief. To the extent that the allegations in Paragraph 10

constitute conclusions of law, said conclusions are neither admitted nor denied.

11-12. To the extent that the allegations in Paragraphs 11 through 12 constitute

conclusions of law, said conclusions are neither admitted nor denied. As to any remaining

allegations set forth in Paragraphs 11 through 12, Defendant Spencer is without sufficient

knowledge or information to admit or deny. Thus, for the reasons set forth above, the remaining

allegations in Paragraphs 11 through 12 are denied.

RESPONSE TO ADOPTION







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RESPONSE TO CONSTITUTIONAL VIOLATIONS





denied.



Paragraph 17, Defendant Spencer is without sufficient knowledge or information to admit ordeny. Thus, for the reasons set forth above, the remaining allegations in Paragraph 17 are

denied. In further response and defense of the Plaintiffs allegations in Paragraph 17, Defendant

Spencer asserts the following with respect to subparagraphs 17(a) and 17(b) as follows:

(a-b) To the extent that the allegations m subparagraphs 17(a) and 17(b) constitute


allegations set forth in subparagraphs 17(a) and 17(b), Defendant Spencer is without sufficient


allegations in subparagraphs 17(a) and 17(b) are denied.



RESPONSE TO NATURE OF THE ACTION





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denied.

RESPONSE TO JURISDICTION AND VENUE

20. Upon information and belief, it is admitted that Plaintiffs are asserting a cause

of action under 42 U.S.C 1983 pursuant to the Plaintiffs assertions in Paragraph 20. To

the extent that the allegations in Paragraph 20 constitute conclusions of law, said conclusions

are neither admitted nor denied.

21. To the extent that the allegations in Paragraph 21 constitute conclusions of

law, said conclusions are neither admitted nor denied. As to any remaining allegations setforth in Paragraph 21, Defendant Spencer is without sufficient knowledge or information to

admit or deny. Thus, for the reasons set forth above, the remaining allegations in Paragraph 21

are denied.

22. The allegations in Paragraph 22 are admitted as to Defendant Spencer and

admitted as to the remaining Defendants, upon information and belief.


law, said conclusions are neither admitted nor denied. As to any remaining allegations set

forth in Paragraph 23, Defendant Spencer is without sufficient knowledge or information to

admit or deny. Thus, for the reasons set forth above, the remaining allegations in Paragraph 23

are denied.

RESPONSE TO THE NORTH CAROLINA MARRIAGE LAWS RESPONSE TO THE NORTH CAROLINA MARRIAGE STATUTES





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denied.





denied.

RESPONSE TO THE NORTH CAROLINA ANTI-MARRIAGE AMENDMENT( AMENDMENT ONE )





denied.

27. It is admitted that Paragraph 27 of the Plaintiffs Complaint quotes Amendment

One and N.C. Const. art. XIV, 6. To the extent that the allegations in Paragraph 27 constitute

conclusions of law, said conclusions are neither admitted nor denied.




deny. Thus, for the reasons set forth above, the remaining allegations in Paragraphs 28 are

denied. In further response and defe nse of the Plaintiffs allegations in Paragraph 28, Defendant

Spencer asserts the following with respect to subparagraphs 28(a) through 28(e) as follows:

(a-e) To the extent that the allegations in subparagraphs 28(a) through 28(e) constitute


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allegations set forth in subparagraphs 28(a) through 28(e), Defendant Spencer is without

sufficient knowledge or information to admit or deny. Thus, for the reasons set forth above, the

remaining allegations in subparagraphs 28(a) through 28(e) are denied.





allegations in Paragraphs 29 through 30 are denied.RESPONSE TO OTHER BARRIERS TO MARRIAGE

HAVE BEEN STRUCK DOWN






RESPONSE TO ANY ALLEGED STATE INTEREST IN FORBIDDING MARRIAGEIS SUBJECT TO HEIGTENED SCRUTINY




knowledge or information to admit or deny. Thus, for the reasons set forth above, the

remaining allegations in Paragraphs 48 through 64 are denied.


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RESPONSE TO THE NORTH CAROLINA ADOPTION STATUTES






70. It is admitted that Paragraph 70 of the Plaintiffs Complaint quotes N.C. Gen.

Stat. 48-1-101(18). To the extent that the allegations in Paragraph 70 constitute conclusions

of law, said conclusions are neither admitted nor denied.71-76. To the extent that the allegations in Paragraphs 71 through 76 constitute





RESPONSE TO OTHER STATES GRANT SECOND PARENT ADOPTION,RECOGNIZING THAT SUCH ADOPTIONS ARE IN THE BEST INTERESTS

OF CHILDREN




knowledge or information to admit or deny. Thus, for the reasons set forth above, the remainingallegations in Paragraphs 77 through 82 are denied.


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RESPONSE TO WHILE NORTH CAROLINA PROHIBITS ADOPTION BY SECONDPARENTS, NORTH CAROLINA LAWS AND POLICIES

OTHERWISE RECOGNIZE THE VALUE THAT GAY AND LESBIAN COUPLESPROVIDE AS PARENTS






RESPONSE TO DE FACTO PARENT DOCTRINE






RESPONSE TO FORBIDDING APPLICATIONS FOR SECOND PARENTADOPTION ADVANCES NO COMPELLINGOR EVEN LEGITIMATE STATE PURPOSE







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RESPONSE TO PARTIES

RESPONSE TO PLAINTIFFS

RESPONSE TO ESMERALDA MEJIA, CHRISTINA GINTER-MEJIA, AND J.G.-M

105-110. Upon information and belief, the allegations contained in Paragraphs 105

through 110 of the Plaintiffs Complaint are admitted. To the extent that the allegations in

Paragraphs 105 through 110 constitute conclusions of law, said conclusions are neither admitted

nor denied.





denied.





denied. In further response and defense of the Plaintiffs allegations in Paragraph 112,

Defendant Spencer asserts the following with respect to subparagraphs 112(a) through 112(d) as

follows:

(a-d) To the extent that the allegations in subparagraph 112(a) through 112(d) constituteconclusions of law, said conclusions are neither admitted nor denied. As to any remaining

allegations set forth in subparagraph 112(a) through 112(d), Defendant Spencer is without



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remaining allegations in subparagraph 112(a) through 112(d) are denied.




nor denied.


deny Plaintiffs allegations contained in Paragraph 115.

116. Upon information and belief, the allegations contained in Paragraph 116 of the

Plaintiffs Complaint are admitted. To the extent that the allegations in Paragraph 116


117-120. Defendant Spencer is without sufficient knowledge or information to admit or

deny Plaintiffs allegations contained in Paragraphs 117 through 120.

121. Upon information and belief, the allegations contained in Paragraph 121 of the



122-123. Defendant Spencer is without sufficient knowledge or information to admit or

deny Plaintiffs allegations contained in Paragraphs 122 through 123.







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RESPONSE TO ELLEN W. GERBER AND PEARL BERLIN




nor denied.





denied.






Defendant Spencer asserts the following with respect to subparagraphs 139(a) through 139(e)

as follows:

(a-e) To the extent that the allegations in subparagraphs 139(a) through 139(e)

constitute conclusions of law, said conclusions are neither admitted nor denied. As to any

remaining allegations set forth in subparagraphs 139(a) through 139(e), Defendant Spencer is

without sufficient knowledge or information to admit or deny. Thus, for the reasons set forth

above, the remaining allegations in subparagraphs 139(a) through 139(e) are denied.


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RESPONSE TO LYN MCCOY AND JANE BLACKBURN


through 142 of the Plaintiffs Complaint are admitted. To the extent that the a llegations in

Paragraphs 140 through 142 constitute conclusions of law, said conclusions are neither

admitted nor denied.




deny Plaintiffs allegations in Paragraph 144. 145. Upon information and belief, the allegations contained in Paragraph 145 of the




law, said conclusions are neither admitted nor denied. As to any remaining allegations set

forth in Paragraph 146, Defendant Spencer is without sufficient knowledge or information to

admit or deny. Thus, for the reasons set forth above, the remaining allegations in Paragraph

146 are denied.






Defendant Spencer asserts the following with respect to subparagraphs 147(a) through 147(e) as


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follows:

(a-e) To the extent that the allegations in subparagraphs 147(a) through 147(e)

constitute conclusions of law, said conclusions are neither admitted nor denied. As to any

remaining allegations set forth in subparagraphs 147(a) through 147(e), Defendant Spencer is

without sufficient knowledge or information to admit or deny. Thus, for the reasons set forth

above, the remaining allegations in subparagraphs 147(a) through 147(e) are denied.

RESPONSE TO HARMS SUFFERED BY PLAINTIFFSAS RESULT OF BEING DENIED THE FREEDOM TO MARRY











Defendant Spencer asserts the following with respect to subparagraphs 151(a) through 151(q)

as follows:

(a-e) To the extent that the allegations in subparagraphs 151(a) through 151(q) constitute


allegations set forth in subparagraphs 151(a) through 151(q), Defendant Spencer is without



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remaining allegations in subparagraphs 151(a) through 151(q) are denied.






RESPONSE TO HARMS SUFFERED BY PLAINTIFFSAS A RESULT OF NORTH CAROLINA'S CATEGORICAL ROHIBITION

AGAINS T SECOND PARENT ADOPTION






RESPONSE TO DEFENDANTS

195-197. The allegations contained in Paragraphs 195 through 197 of the Plaintiffs

Complaint are admitted. To the extent that the allegations in Paragraphs 195 through 197


198-199. Defendant Guilford County Register of Deeds, under North Carolina law,

performs the ministerial function of recording death certificates which have been created and

approved by a local registrar pursuant to N.C. Gen. Stat. 130A-97 (duties of local registrars)

and N.C. Gen. Stat. 130A-99 (register of deeds to preserve copies of birth and death records).

Article 2, Chapter 161 of North Carolina General Statutes outlines the duties of the Register of

Deeds. The duties do not include registering out-of-state marriage licenses. N.C. Gen. Stat.


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161-10(a) (fees for registering instruments); N.C. Gen. Stat. 161-14 (registration of

instruments). Therefore, the allegations contained in Paragraphs 198 through 199 of the

Plaintiffs Complaint are denied.

200. The allegations contained in Paragraph 200 of the Plaintiffs Complaint are

admitted. To the extent that the allegations in Paragraph 200 constitute conclusions of law, said

conclusions are neither admitted nor denied.

201-202. Defendant Spencer, under North Carolina law, performs the ministerial

function of recording death certificates which have been created and approved by a local

registrar pursuant to N.C. Gen. Stat. 130A-97 (duties of local registrars) and N.C. Gen. Stat. 130A-99 (register of deeds to preserve copies of birth and death records). Article 2, Chapter 161

of North Carolina General Statutes outlines the duties of the Register of Deeds. The duties do

not include registering out-of-state marriage licenses. N.C. Gen. Stat. 161-10(a) (fees for

registering instruments); N.C. Gen. Stat. 161-14 (registration of instruments). Therefore, the

allegations contained in Paragraphs 201 through 202 of the Plaintiffs Complaint are denied.




nor denied.





denied.


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RESPONSE TO FUTILITY






216. The allegations contained in Paragraph 216 of the Plaintiffs Complaint are

admitted. To the extent that the allegations in Paragraph 216 constitute conclusions of law,

said conclusions are neither admitted nor denied.217-219. To the extent that the allegations in Paragraphs 217 through 219 constitute





RESPONSE TO CLAIMS FOR RELIEF

RESPONSE TO FIRST CLAIM FOR RELIEF (BY THE ADULT PLAINTIFFS)

(DUE PROCESS CLAUSE OF THE UNITED STATES CONSTITUTION,42 U.S.C. 1983)

220. Defendant Spencer re-alleges and incorporates herein by reference her responses

to the allegations, contained in Paragraphs 1 through 219 of Plaintiffs Complaint, as though

fully set forth.





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RESPONSE TO SECOND CLAIM FOR RELIEF

(BY THE MARRIED PLAINTIFFS) (EQUAL PROTECTION CLAUSE OF THE UNITEDSTATES CONSTITUTION, 42 U.S.C. 1983)



fully set forth.






RESPONSE TO THIRD CLAIM FOR RELIEF (BY PLAINTIFF J.G.-M.) (EQUAL PROTECTION CLAUSE OF THE UNITED STATES

CONSTITUTION, 42 U.S.C. 1983)



fully set forth.







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RESPONSE TO FOURTH CLAIM FOR RELIEF (BY PLAINTIFF J.G.-M)

(J.G.-M'S RIGHTS UNDER THE EQUAL PROTECTION CLAUSE UNDER THE UNITEDSTATES CONSTITUTION, 42 U.S.C. 1983)



fully set forth.






RESPONSE TO FIFTH CLAIM FOR RELIEF(BY PLAINTIFFS MEJIA AND MEJIA-GINTER )

(PARENTS' RIGHTS UNDER THE EQUAL PROTECTION CLAUSE OF THE UNITEDSTATES CONSTITUTION, 42 U.S.C. 1983)

259. Defendant Spencer re-alleges and incorporates herein by re fe rence her

responses to the allegations, contained in Paragraphs 1 through 258 of Plaintiffs Complaint, as

though fully set forth.







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RESPONSE TO SIXTH CLAIM FOR RELIEF(BY PLAINTIFF GINTER-MEJIA )

(GINTER-MEJIA'S RIGHTS UNDER THE DUE PROCESS CLAUSE OF THE UNITEDSTATES CONSTITUTION, 42 U.S.C. 1983)



fully set forth.






RESPONSE TO SEVENTH CLAIM FOR RELIEF (BY PLAINTIFF GINTER-MEJIA, MEJIA, AND J.G.-M)

(DUE PROCESS CLAUSE UNDER THE UNITED STATES CONSTITUTION,42 U.S.C. 1983)



fully set forth.







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SECOND AFFIRMATIVE DEFENSE: MOTION TO DISMISS - PLAINTIFFS LACK OF STANDING

Fed. R. Civ. P., Rule 12(b)(l)

Defendant Spencer asserts that the Plaintiffs lack standing to assert the claims in their

Complaint. Therefore, Defendant Spencer moves this Court to dismiss the Plaintiffs Complaint

as to Defendant Spencer.

THIRD AFFIRMATIVE DEFENSE: MOTION TO DISMISS- LACK OFJURISDICTION

Fed. R. Civ. P., Rule 12(b)( l)

Defendant Spencer asserts that the Court lacks jurisdiction as Plaintiffs seek equitable

relief and jurisdiction is estopped due to Defendant Spencer governmental and qualified

immunity.

FOURTH AFFIRMATIVE DEFENSE: MOTION TO DISMISSFed. R. Civ. P., Rule 12(b)(6)

The Plaintiffs Complaint fails to state a claim against Defendant Spencer upon which

relief can be granted. Plaintiffs Complaint fails to state a cause of action against the public

entity Catawba County Register of Deeds for, pursuant to Monell v. Department of Social

Services of the City of New York, 436 U.S. 658, 98 S. Ct. 2018, 56 L.Ed.2d 611 (1978), there can

be no recovery for a federal civil rights violation where there is no constitutional deprivation

occurring pursuant to governmental policy or custom. Therefore, Defendant Spencer moves this

Court to dismiss the Plaintiffs Complaint as to Defendant Spencer.

FIFTH AFFIRMATIVE DEFENSE: GOVERNMENTAL IMMUNITY

Defendant Spencer asserts governmental immunity and N.C. Gen. Stat. 153A-435 in

bar of Plaintiffs claims in that the Complaint complains of governmental acts with respect to

which Plaintiff must plead and prove a waiver of governmental immunity. At all times relevant

to the acts alleged in the Plaintiffs Complaint, Defendant Spencer, acted reasonably, properly,


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lawfully, and in good faith in the exercise of her discretion within the laws established in the

State of North Carolina. As a result Defendant Spencer is entitled to governmental immunity.

SIXTH AFFIRMATIVE DEFENSE: QUAILFIED IMMUNITY

Defendant Spencer has acted within the current laws established in the State of North

Carolina. Therefore, Defendant Spencer has not violated any clearly established constitutional or

statutory rights of which reasonable persons would have otherwise known and is entitled to the

protection of qualified immunity.

SEVENTH AFFIRMATIVE DEFENSE: COMPLIANCE WITH EXISTING LAW

Defendant Spencer has not violated any rights, privileges or immunities secured toPlaintiffs by the Constitution or laws of the United States, the State of North Carolina or any

political subdivision thereof, nor has Defendant Spencer violated any act of Congress providing

for the protection of civil rights.

EIGHTH AFFIRMATIVE DEFENSE: ADEQUATE REMEDIES AT LAW

Defendant Spencer asserts that the Plaintiffs are not entitled to injunctive or declaratory

relief since the remedies at law are adequate.

NINTH AFFIRMATIVE DEFENSE: CONTRADICTION TO PUBLIC POLICY

Defendant Spencer asserts that the Plaintiffs are not entitled to the injunctive relief sought

since the relief sought is contrary to public policy.

PRAYER FOR RELIEF

WHEREFORE, Defendant Spencer respectfully prays:

283- 290. In that Paragraphs 283 through 290 constitute Plaintiffs Prayer for Relief,

Defendant Spencer answers and respectfully prays this Court to dismiss this action against

Defendant Spencer as to Plaintiffs claims for relief. Wit h respect to all claims, Defendant


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Spencer prays this Court issue no injunctive relief. To the extent Paragraphs 283 through 290

contain allegations that constitute conclusions of law, said conclusions are neither admitted nor

denied. As to any remaining allegations set forth in this Paragraphs 283 through 290, Defendant

Spencer is without sufficient knowledge or information to admit or deny. Thus, for the reasons

set forth above, the remaining allegations in Paragraphs 283 through 290 are denied.

This the 16 th day of June, 2014.

/s/ David W. HoodDavid W. Hood

N.C. State Bar No. [email protected] J. Barnett

N.C. State Bar No. [email protected] Harper & Dixon L.L.P.P.O. Box 218Hickory, North Carolina 28603Telephone: (828) 322-7741Facsimile: (828) 485-3213

Attorneys for Defendant Donna Hicks Spencer


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CERTIFICATE OF SERVICE

The undersigned hereby certifies that a copy of the foregoing Answer and Affirmative

Defenses was served upon all parties in accordance with the provisions of Rule 5 of the Federal

Rules of Civil Procedure by:

_____ Hand delivering a copy hereof to the attorney for each said party addressed asfollows:

Depositing a copy hereof, postage prepaid, in the United States Mail, addressedas follows:

X Sending a copy hereof to the attorney for each said party and to each party byelectronic mail (e -mail) as follows:

Rose A. SaxeJames D. EsseksAmerican Civil LibertiesUnion Foundation125 Broad Street

New York, New York [email protected]

[email protected]

Elizabeth O. GillAmerican Civil LibertiesUnion Foundation39 Drumm StreetSan Francisco, California [email protected]

Telecopying a copy thereof to the attorney for each said party and to each partyas follows:

X Use of the Courts ECF facilities.

This the 16 th day of June, 2014.

/s/ David W. Hood

David W. Hood

PATRICK HARPER & DIXON L.L.P.34 2 nd Street NW, 3 rd FloorPost Office Box 218Hickory, North Carolina 28603Telephone: (828) 322-7741Facsimile: (828) 485-3213

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