60CV 15 569 Complaint
60CV 15 569 Complaint
2015-Feb-13 15:02:36
60CV-15-569
C06D12 : 15 Pages
ANGELIA FRAZIER-HENSON,
KATHERINE HENSON,
MARKETT HUMPHRIES and
DIANNA CHRISTY
VS.
PLAINTIFFS
CASE NO. _____________
DEFENDANTS
and Dianna Christy are two same-sex couples who were lawfully married in the State of
Arkansas on May 12, 2014 in Pulaski County Arkansas and who are being denied the
benefits, privileges, recognition and dignity associated with marriage and to which they
are entitled under the law.
2.
On May 9, 2014 the Hon. Chris Piazza, Second Division, Pulaski County
Circuit Judge found Amendment 83 to the Arkansas Constitution and Ark. Code Anno.
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9-11-208, 9-11-107 and 9-11-109 in violation of the United States and Arkansas
Constitutions.
3.
man and one woman. Ark. Code Ann. 9-11-109 restates Amendment 83s definition of
marriage as between a man and a woman and declares all marriages of same-sex
couples to be void. Ark. Code Ann. 9-11-208 provides that the State only recognizes the
marital union of man and woman and forbids clerks from issuing marriage licenses to
same-sex couples.
4.
Finance and Administration and successor in interest to former director, Richard Weiss,
was permanently enjoined from enforcing Arkansass constitutional and statutory bans
on marriage of same-sex couples.
5.
On May 16, 2014 the Arkansas Supreme Court stayed enforcement of the
Prior to the Arkansas Supreme Courts stay, Plaintiffs and nearly 600 other
couples were married in accordance with Arkansas law and as a result were immediately
vested with all rights due all married couples under Arkansas law.
7.
recognition are protected by Arkansas law, the Arkansas Constitution and the 14th
Amendment to the Constitution of the United States and are valid marriages regardless
of the outcome of Wright or the pending federal case of Jernigan v. Crane currently
pending appeal in the 8th Circuit Court of Appeals.
8.
entitlement to marital benefits and rights provided to all other married couples in the
State of Arkansas are being denied to them by Defendants.
9.
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the State of Arkansas to give immediate and ongoing recognition to the validity of their
marriages and access to critical protections and benefits that are enjoyed by all other
married Arkansas citizens.
JURISDICTION AND VENUE
11.
12.
13.
Henson, and is a resident of Pulaski County, Arkansas and did so reside at the time of
the happening of the events described herein.
14.
Henson and is a resident of Pulaski County, Arkansas and did so reside at the time of the
happening of the events described herein.
15.
is a resident of Pulaski County, Arkansas and did so reside at the time of the happening
of the events described herein.
16.
and is a resident of Pulaski County, Arkansas and did so reside at the time of the
happening of the events described herein.
17.
Finance and Administration and in such capacity is responsible for the policy and
procedures of and administration of the Arkansas Office of Income Tax Administration
and Arkansas Employee Benefits Division. He and his successors are sued in their
official capacity only.
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18.
this official capacity, the Governor is the chief executive officer of the State of Arkansas.
He is responsible to ensure that the laws of the state and the Arkansas Constitution are
properly enforced. He and his successors are sued in their official capacity only.
19.
Arkansas. In this official capacity, the Attorney General is the chief legal officer of the
State of Arkansas. It is her duty to uniformly and adequately enforce the laws of the
State of Arkansas and the Arkansas Constitution. She and her successors are sued in
their official capacity only.
FACTS
20.
brought a lawsuit against, ultimately, the State of Arkansas, Nathaniel Smith, MD, MPH,
Interim Director of the Arkansas Department of Health, in his official capacity, and his
successors in office, Richard Weiss, Director of the Arkansas Department of Finance and
Administration, in his official capacity, and his successors in office, Pulaski
Circuit/County Clerk, Larry Crane, in his official capacity, and his successors in interest,
White County Clerk, Cheryl Evans, in her official capacity, and her successors in
interest, Lonoke County Clerk, William Larry Clarke, in his official capacity, and his
successors in interest, Conway County Clerk, Debbie Hartman, in her official capacity,
and her successors in office, Saline County Clerk, Doug Curtis, in his official capacity,
and his successors in office, and Washington County Clerk, Becky Lewallen, in her
official capacity, and her successors in office challenging the constitutionality of
Amendment 83 and Ark Code Anno. 9-11-107, 9-11-109 and 9-11-208.
21.
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(b)
22.
23.
24.
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On May 9, 2014 the Hon. Chris Piazza declared Amendment 83 and the
above cited statutes to be in violation of the Arkansas and United States Constitutions
and issued a permanent injunction against state and county officials from enforcing
same. Judge Piazza did not stay implementation of his order.
26.
On May 10, 2014 the first same-sex marriage licenses were issued and filed
in Carroll County, Arkansas. The following Monday, May 12, 2014, Pulaski County,
Washington County and other counties in the State of Arkansas began issuing and filing
marriage licenses for same-sex couples.
27.
On May 15, 2014 the defendants in Wright filed a notice of appeal and the
following day filed a motion requesting an emergency stay. The Arkansas Supreme
Court granted the stay on May 16, 2014.
28.
Between May 10, 2014 and May 16, 2014, in full compliance with Ark.
Code Anno. 9-11-201 to 207, almost 600 couples, including Plaintiffs, were issued
marriage licenses, had marriages performed and properly filed their executed marriage
licenses in the State of Arkansas.
29.
To this date there has not been a finding that the same-sex marriages
performed in May 2014 are not valid. Defendants refuse to recognize these marriages.
30.
Upon information and belief, until these marriages were performed, the
Defendants have never refused to recognize any marriage license that was properly
issued pursuant to Ark. Code Anno. 9-11-201 to 207, performed and filed of record
pursuant to Ark. Code Anno. 9-11-213, et seq.
PLAINTIFFS ANGELIA FRAZIER-HENSON AND KATHERINE HENSON
31.
Appellees in Wright, et al v. Smith, et al. As such, they have fought long and hard for
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the right to marry. Both are long-time residents of the State of Arkansas. Angelia and
Katherine are both licensed master social workers. They have a long-term devoted
relationship and were thrilled when Judge Piazzas decision was announced. They were
at the Pulaski County Courthouse when the doors opened on the first day of issuance of
marriage licenses following the decision.
32.
The first indication the couple had that they were going to have difficulty
with the recognition of their marriage was when Angelia Buford wished to take her
spouses name as her own. She was refused this privilege that automatically is afforded
to all other spouses in marriages performed in the State of Arkansas. Angelia was
forced to go to the time and expense of having to file a cause of action to have her name
legally changed.
33.
Now the couple faces having to file separately as single individuals for
purposes of Arkansas State Income Taxes. Defendant, Larry Walther, as Director of the
Arkansas Department of Finance and Administration, has directed that all same-sex
married couples must file as single individuals. Due to the Federal and Arkansas
Supreme Courts stays, it is understandable that same-sex couples married in states other
than Arkansas would be subject to this requirement. Arkansas Code Anno. 9-11-208
and 9-11-107, as stated above, specifically excludes recognition of same-sex marriages
performed in other states or foreign countries. However, there is no statute that
addresses same-sex marriages legally performed in the State of Arkansas.
34.
The effect of the stays issued by the Arkansas Supreme Court and the U. S.
District Court permitted the continued enforcement of the existing Arkansas laws that
had been found unconstitutional. It did not create new law stating that legally
performed Arkansas issued marriage licenses to same-sex couples would not be
recognized. All heterosexual marriages similarly performed on May 12, 2014 are
recognized by said defendant.
35.
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and Administration for the filing of individual income tax returns states:
PLEASE SIGN HERE: Under penalties of perjury,
I declared that I have examined this return and
accompanying schedules and statements, and to the
best of my knowledge and belief, they are true, correct
and complete.
37.
marriage and thus, Plaintiffs are able to file their federal income tax under the status of
married. In comparison, Defendants require Plaintiffs to perjure themselves, thereby
committing a Class C felony in order to comply with Arkansas law requiring the filing
of individual income taxes.
39.
licenses issued by the State of Arkansas. Defendants requirement that said Plaintiffs
perjure themselves could have an adverse impact on their continued licensing.
40.
criminal charges for perjury in the filing of state individual income tax returns,
Defendants, by their refusal to recognize Plaintiffs lawful marriage, subject Plaintiffs to
demeaning treatment and deny them the security provided by marriage in the event of
death, illness, incapacity, etc. in violation of their constitutional rights. The harm to
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the State of Arkansas. Markett Humphries is a criminal investigator with the Arkansas
State Police. Dianna Cristy is currently unemployed. They have a long-term devoted
relationship and were thrilled when Judge Piazzas decision was announced. They were
at the Pulaski County Courthouse on the first day of issuance of marriage licenses
following the decision.
42.
benefit of employee programs. At that time both Markett and Dianna were employed
and each were paying for individual health insurance policies. They were denied the
right to have only one policy for the family. As a result, Markett and Dianna have had
the financial burden of having to carry two individual policies.
43.
Like the other Plaintiffs, this couple faces having to file separately as
single individuals for purposes of Arkansas State Income Taxes. Defendant, Larry
Walther, as Director of the Arkansas Department of Finance and Administration, has
directed that all same-sex married couples must file as single individuals. Due to the
Federal and Arkansas Supreme Courts stays, it is understandable that same-sex couples
married in states other than Arkansas would be subject to this requirement. Arkansas
Code Anno. 9-11-208 and 9-11-107, as stated above, specifically excludes recognition
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The effect of the stays issued by the Arkansas Supreme Court and the U. S.
District Court permitted the continued enforcement of existing Arkansas law that had
been found unconstitutional. It did not create new law stating that legally performed,
Arkansas issued marriage licenses to same-sex couples would not be recognized. All
heterosexual marriages similarly performed on May 12, 2014 are recognized by said
defendant.
46.
and Administration for the filing of individual income tax returns states:
PLEASE SIGN HERE: Under penalties of perjury,
I declared that I have examined this return and
accompanying schedules and statements, and to the
best of my knowledge and belief, they are true, correct
and complete.
48.
marriage and thus, Plaintiffs are able to file their federal income tax under the status of
married. In comparison, Defendants require Plaintiffs to commit a Class C felony in
order to comply with Arkansas law requiring the filing of individual income taxes.
50.
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coverage and possible criminal charges for perjury in the filing of state individual
income tax returns, Defendants, by their refusal to recognize Plaintiffs lawful marriage,
subject Plaintiffs to demeaning treatment and deny them the security provided by
marriage in the event of death, illness, incapacity, etc. in violation of their constitutional
rights. The harm to Plaintiffs is real, immediate and should not continue.
CAUSES OF ACTION
52.
Pursuant to 42 U.S.C. 1983 state actors are liable at law or equity for their
acts or omissions undertaken under color of law which deprive any person of the rights
secured by the Constitution and laws of the United States.
53.
Defendants are state actors and, at all times relevant to this Complaint,
were acting or failing to act, are acting or failing to act, or will act or failed to act under
color of law.
COUNT ONE
SUBSTANTIVE DUE PROCESS
54.
Defendants by their actions have violated the due process clauses of the
Arkansas Constitution and the 14th Amendment to the United States Constitution.
55.
It has long been recognized that the Due Process Clauses guarantee more
than fair process; they require heightened protection against governmental interference
with certain fundamental rights and liberty interests.
56.
constitutions include the right to marry. They include protection from unwarranted
governmental intrusion into family and in the intimate and personal choices people
make in their lives that are central to their personal dignity and autonomy. They protect
the Plaintiffs from laws that demean their private lives, deny them dignity as free
persons and protect their rights to enjoy privileges long recognized at common law as
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Smith, the due process clauses of the Arkansas and United States Constitutions protect
Plaintiffs marriages, legal and valid under Arkansas law when they were entered into,
from being retroactively invalidated by the state. Defendants violate, have violated,
and/or would violate Plaintiffs due process rights by refusing to recognize their
marriages and by denying Plaintiffs dignity, privileges and benefits that all legally
married couples deserve and are entitled to under the law.
COUNT TWO
EQUAL PROTECTION
58.
59.
60.
The 14th Amendment to the United States Constitution also provides that
the state shall not deny to any person within its jurisdiction the equal protection of the
laws.
61.
only that disfavored group) legal protections and benefits or a designation that carries
significant societal meaning and benefits is in violation of both the Arkansas and United
States Due Process Clauses.
63.
Defendants actions announce to these couples and to the world that their
b.
Declare that Amendment 83; Ark. Code Anno. 9-22-107, Ark. Code
Anno. 9-22-109 and Ark. Code Anno. 9-22-208 are unconstitutional as applied to the
marriages of all couples, including Plaintiffs, who are legally married in Arkansas in
May 2014 and whose marriages were valid at the time they were entered into;
c.
couples, including Plaintiffs, who were legally married in Arkansas in May 2014, and
whose marriages were valid at the time they were entered into , and refusal to afford
those couples and their families, including plaintiffs, with all benefits, rights and
privileges given to other legally married couples and their families under Arkansas law,
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on account of those couples being of the same sex, violates the rights of those couples
and their families, including Plaintiffs, to due process of law and equal protection of the
laws as guaranteed by the Arkansas Constitution and the 14th Amendment to the United
States Constitution;
d.
from enforcing Amendment 83; Ark. Code Anno. 9-22-107, Ark. Code Anno. 9-22-109
and Ark. Code Anno. 9-22-208 against couples, including Plaintiffs, who were legally
married in Arkansas in May 2014 and whose marriages were valid at the time they were
entered into;
e.
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