14-2388 #11

________________________________________________________________________

No. 14-2388

____________________________________________________

In the United States Court of Appeals

for the Seventh Circuit ____________________________________________________

PAMELA LEE, et al.,

Plaintiffs-Appellees, v.

BRIAN ABBOTT, et al., Defendants-Appellants.

____________________________________________________

On Appeal from the United States District Court for the Southern District of Indiana,

Civil Action No. 1:14-cv-406-RLY-MJD

The Honorable Richard L. Young, Chief Judge ____________________________________________________

Plaintiffs-Appellees’ Motion to Lift Stay

____________________________________________________

PLAINTIFFS-APPELLEES OFFICER PAMELA LEE, et al.

EMERGENCY MOTION TO LIFT THE COURT'S STAY IN PART

Karen Celestino-Horseman William R. Groth Of Counsel, Austin & Jones, P.C. Fillenwarth Dennerline Groth & One N. Pennsylvania St., Ste. 220 & Towe, LLP Indianapolis, IN 46204 429 E. Vermont St., Ste. 200 Indianapolis, IN 46202 Mark W. Sniderman Kathleen M. Sweeney Sniderman Nguyen, LLP Sweeney Hayes, LLC 47 S. Meridian St., Ste. 400 141 E. Washington St., Ste. 225 Indianapolis, IN 46204 Indianapolis, IN 46204

Robert A. Katz Indiana University McKinney School of Law 530 W. New York St., Room 349 Indianapolis, IN 46202

Case: 14-2388 Document: 11-1 Filed: 07/01/2014 Pages: 16 (1 of 72)

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Plaintiffs-Appellees, Officer Pamela Lee, Candace Batten-Lee,

Officer Teresa Welborn, Elizabeth J. Piette, Batallion Chief Ruth

Morrison, Martha Leverett, Sergeant Karen Vaughn-Kajmowicz, Tammy

Vaughn-Kajmowicz and J.S.V., T.S.V. and T.R.V., by their parents and

next Friends, Sergeant Karen Vaughn-Kajmowicz and Tammy Vaughn-

Kajmowicz (collectively, the “Lee Plaintiffs”), respectfully move this Court

to lift the order staying the enforcement of the injunction ordered by the

district court as regards the administration of pension benefits. (See,

(Lee v. Abbott, No. 1:14-cv-406 (S.D. Ind.), D. Ct. Dkt. No. 58, Entry on

Cross-Motions for Summary Judgment ("SJ Order"), attached hereto as

Ex. E).

This case, unlike Baskin, only challenges the prohibition of Ind.

Code § 31-11-1-1, which bars the recognition of marriages lawfully

performed outside the State of Indiana. The district court held that

Indiana’s non-recognition ban is unconstitutional and, in the instant

case, specifically ordered the Indiana Public Retirement System ("INPRS")

to recognize marriages performed outside the State of Indiana for

purposes of administering the pension benefits. The case of the Lee

Plaintiffs is very different from the district court’s judgment declaring

that Indiana’s refusal to issue marriage licenses to same sex couples is

unconstitutional and enjoining certain county clerks in the State of

Indiana from denying marriage licenses to same sex couples.


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To preserve resources and this Court’s time, this motion

incorporates the applicable arguments set forth in Baskin et al. in

support of Plaintiffs-Appellees Quasney and Sandler’s Emergency Motion

to Lift the Court’s Stay in Part.

I. Statement of Facts Relevant to this Motion

The Lee Plaintiffs are four same-sex couples who were married

outside the State of Indiana and who are asking that their otherwise

lawful marriages be recognized by the by the Indiana Public Retirement

System ("INPRS") which administers the 1977 Police Officers' and

Firefighters' Pension and Disability Fund ("Pension Fund"). The

defendants are the trustees and executive director of INPRS ("Lee

Defendants"). Officer Pamela Lee, Officer Teresa Welborn and Sergeant

Karen Vaughn-Kajmowicz are active-duty police officers while Battalion

Chief Ruth Morrison is a retired firefighter ("Lee First Responders").

This litigation challenges that part of I.C. § 31-11-1-1 which

prohibits the recognition of the marriages of the validly performed out-of-

state marriages of the Lee First Responders and their spouses. The

statute provides as follows:

(a) Only a female may marry a male. Only a male may marry a female.

(b) A marriage between persons of the same gender is void

in Indiana even if the marriage is lawful in the place where it is solemnized.

The district court entered a declaratory judgment, finding I.C. § 31-

11-1-1 was unconstitutional both facially and as applied to all the


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plaintiffs. (SJ Order at 33). Specifically, the Lee Defendants were enjoined

"to administer the Pension Fund . . . so as to provide the same benefits

for all married couples, regardless of whether the couples are of the

opposite sex or same sex." (SJ Order at 35). The judgment, injunction

and order of the district court should not be stayed with respect to the

first responder members of the Pension Fund or alternatively, should not

be stayed as to only the Lee Plaintiffs because the Defendants did not

carry their burden in seeking the stay. At the very least, the stay should

be lifted so as to enjoin the Lee Defendants from refusing to provide the

same benefits to the Lee Plaintiffs as are provided first responders

married to persons of the opposite sex.

A. The Pension Fund

The Pension Fund is governed by I.C. § 36-8-8 et seq. If an officer

dies in the line of duty, then his/her surviving spouse is entitled to

receive for life a monthly benefit of 100% of the deceased officer's

calculated monthly retirement benefit and a lump sum payment, tax-free

of $150,000.00. See, I.C. § 36-8-8-14.1, I.C. § 36-8-8-20(c) and Ex. G,

Survivor Benefits, p.p. 1-2.1

If a Pension Fund member dies while on active duty but not in the

line of duty, then the surviving spouse will receive a monthly benefit

equaling 60% of the deceased's calculated monthly benefit. See I.C. § 36-

1 A handbook and other information regarding the Pension Fund can be found at: http://www.in.gov/inprs/policeandfirefighters.htm (Last visited June 30, 2014). The Survivor Benefits hand-out is located at http://www.in.gov/inprs/77fundmbrhandbooksurvivorbenefits.htm.


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8-8-13.8(c); Ex. F, p. 2, 1977 Fund At A Glance (which can be found at

http://www.in.gov/inprs/files/77_fund_glance_membership.pdf). If a

retired firefighter dies while receiving the monthly benefit, the "surviving

spouse is entitled to a monthly benefit." I.C. § 36-8-8-13.8.

While I.C. § 36-8-8, et. seq. references "surviving spouse", the term

"surviving spouse" is not defined within the Indiana Code. INPRS takes

the position that "Eligible survivors for 1977 Fund members are set by

law and are not subject to personal choice." Ex. F, p. 2, 1977 Fund At A

Glance. Instead, INPRS relies upon I.C. § 31-11-1-1 to define who can be

a surviving spouse and takes the position that by law, the lawfully

executed marriages of the Lee First Responders are void and their

spouses do not qualify as "spouses" for the purposes of the Pension

Fund.

B. The Lee First Responders and Their Spouses

Three of the first responders are active-duty police officers who

wear bullet-proof vests on the job due to the daily dangers they confront.

(D. Ct. Dkt. No. 27-1, Aff. of Officer Pamela Lee and Candace Batten-Lee,

p.p. 2-3, attached hereto as Ex. A, and D. Ct. Dkt. No. 27-3, Aff. of

Officer Teresa Welborn and Elizabeth Piette, p. 2, attached hereto as Ex.

B). If the job is undercover where the officer seeks to hide her identity,

she cannot wear a bullet-proof vest because it would give her away due

to its visible bulkiness. (D. Ct. Dkt. No. 27-5, Aff. of Sargent Karen

Vaughn-Kajmowicz and Tammy Vaughn-Kajmowicz p.p. 3-4, attached


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hereto as Ex. C). Without the bullet-proof vest while confronting a

dangerous situations, the threat of death resulting from being shot or

injury resulting from attack while on the job is increased. As a retired

firefighter, Chief Morrison was exposed to carcinogenic materials on the

job that have been known to cause cancer. (D. Ct. Dkt. No. 27-9, Aff. of

Battalion Chief Ruth Morrison and Martha Leverett, p.p. 3-4, attached

hereto as Ex. D). All four Lee First Responders are in long-term

committed plaintiffs.

ARGUMENT

II. The Stay Should Be Lifted Because INPRS Failed to Satisfy the

Requirements Necessary to Secure a Stay

A. Legal Standard

Defendants filed their Emergency Motion for Stay Pending Appeal

pursuant to Federal Rule of Appellate Procedure 8(a)(2). (D. # 4) For a

stay to issue, this Court considers the following factors: (1) the showing

of likelihood of success on appeal; (2) the likelihood of irreparable harm

absent the court order; (3) the harm to other parties from a possible

court order; and (4) the public interest. Hilton v. Braunskill, 481 U.S.

770, 776 (1987); Glick v. Koenig, 766 F.2d 265, 269 (7th Cir. 1985); see

also, Bradford-Scott DataCorp. v. Physician Computer Network, Inc., 128

F.3d 504, 505 (7th Cir. 1997).

At root, there is simply no irreparable harm that will be suffered by

the Lee Defendants, INPRS or the State of Indiana should the stay on the


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declaratory judgment and injunction be lifted with respect to these

defendants and plaintiffs.

B. The Defendants are unlikely to succeed on the merits.

There have been an avalanche of cases invalidating state statutes

or constitutional amendments barring state recognition of out-of-state

same sex marriages following United States v. Windsor, 133 S.Ct. 2675

(2013).2

The Defendants here make no effort to engage the merits and

direction of this clear trend. Instead, they proffer only the same

arguments that were before the trial court, and show no substantial

likelihood of success on the merits. Additionally, there has been now

2 See, Wright v. State of Arkansas, No. 60CV-13-2662 (Ark. Cir. Ct. 2nd Div. May 9, 2014) (unconstitutional under the Equal Protection Clause); Latta v. Otter, --F.Supp. 2d.--, 2014 WL 1909999 (D. Idaho, May 13, 2014) (unconstitutional under both Substantive Due Process and Equal Protection Clause); Bourke v. Beshear, --F.Supp. 2d--, 2014 WL 556729 (W.D. Ky. Feb. 12, 2014) (unconstitutional under the Equal Protection Clause); De Boer v. Snyder, 973 F.Supp. 2d 757 (E.D. Mich., 2014) (unconstitutional under the Equal Protection Clause); Henry v. Himes, 2014 WL 1418395 (S.D. Ohio, Apr. 14 2014) (unconstitutional under both Substantive Due Process and Equal Protection Clause); Obergefell v. Wymyslo, 962 F.Supp. 2d 968, 979 (S.D. Ohio 2013); Bishop v. United States of America, ex rel. Eric H. Holder, 962 F.Supp. 2d 1252 (N.D. Okla. 2014) (unconstitutional under Substantive Due Process and Equal Protection Clause); Whitewood v. Wolf, 2014 WL 2058105 (M.D. Pa. May 20, 2014) (unconstitutional under both Substantive Due Process and Equal Protection Clause); Tanco v. Haslam, --F.Supp. 2d--, 2014 WL 997525 (M.D. Tenn. Mar. 14, 2014) (preliminary junction entered where same-sex couples seeking marriage recognition likely to prevail on claim that law violates the Equal Protection Clause); De Leon v. Perry, 975 F.Supp. 2d 632 (W.D. Tex., 2014) (unconstitutional under Equal Protection Clause and Substantive Due Process); Kitchen v. Herbert, 961 F.Supp. 2d 1181 (D. Utah 2013) (unconstitutional under Equal Protection Clause and Substantive Due Process); Bostic v. Rainey, 970 F.Supp. 2d 456 (E.D. Va. 2014) (unconstitutional under Substantive Due Process and Equal Protection). Following Windsor, only one court has upheld a state's refusal to recognize same sex marriage. See Sevcik v. Sandoval, 911 F.Supp. 2d 996 (D. Nev. 2012) (law and constitutional amendment do not violate Equal Protection Clause).


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showing of likelihood of success on the merits nor is a stay supported by

the public interest. On these grounds, the stay should be lifted.

C. Defendants and the INPRS will Suffer No Irreparable Harm Absent a Stay

A. Defendants' Acknowledge the Injunction Issued Against Against INPRS Does Not Result in Irreparable Harm

An injunction issued against INPRS so as to require it to recognize

the marriages of the Lee First Responders for purposes of administering

the Pension Fund. The Attorney General acknowledges that the

injunction requiring INPRS to recognize the marriages of the Lee First

Responders does not result in irreparable harm:

The emergency in the Lee case, on the other hand, has not so much to do with the specific injunctions applicable to those Defendants (though such relief should be stayed as well) as it has to do with the broad declaration of invalidity of Indiana’s traditional marriage definition. It is with that emergency in mind, and a desire to maintain consistency among the three cases concerning the status of Indiana’s marriage definition, that the State seeks a broad stay that would apply to the Lee Defendants, as well.

(Dkt. 4-1, Emergency Mot. for Stay Pending Appeal ("Mot.") at 13,

attached hereto as Ex. E).

The issue raised by this motion to lift the stay is whether INPRS

suffers irreparable harm requiring the injunction issued against it to be

stayed. As the Lee Defendants claim no irreparable harm, the injunction

should be lifted.


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In regard to the Lee Plaintiffs, the only argument specifically

addressed to them is an ill-defined concern regarding "consistency" for

the remainder of the state. The Lee Defendants cite no case law for the

proposition that the award of death benefits to the spouse of one of the

Lee First Responders will somehow result in an "inconsistency" that rises

to the level of irreparable harm. There will be no confusion should the

stay be lifted as to the Lee Defendants on behalf of the Lee Plaintiffs. If

the stay is lifted, should any first responder or the Lee First Responders

die during the pendency of the appeal, then the Pension Board will

simply be required to pay the appropriate benefits.

Defendants seek to avoid some “confusion that may arise” from the

mere fact that a stay is issued in one case, but not two others. But this is

exactly what happened in the district court where a preliminary

injunction was entered to less then all of the parties in all of the cases

and there was no "confusion". The district court entered a preliminary

injunction with respect to only two of the plaintiffs - Ms. Quasney and

Ms. Sandler - directing the State of Indiana to recognize their marriage.

The State points to no inconsistency that caused statewide confusion or

irreparable harm from doing so. Indeed, contrary to any panicked claims

of inconsistency, the sky did not fall.

Initially, before the district court, the Lee Defendants did not seek

a stay of this cause in the district court, although they did immediately

in the two related actions, Baskin and Fujii. The Lee Defendants justified


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the delay on the grounds they had “hoped to gather evidence

demonstrating the precise amount of exposure to the Indiana Public

Retirement System in the absence of a stay.” (Dist Ct. Dkt. No. 66,

Emergency Motion for Stay Pending Appeal ("DC Mot. for Stay"), p. 1,

attached hereto as Exhibit G). This hope went unfulfilled "as it has

proved infeasible to gather such evidence quickly." Id. What defendants

fail to acknowledge is that a pension fund is premised upon statistics

and probabilities regarding certain outcomes. For example, while the

Pension Fund cannot state with absolute certainty how many first

responders will marry or how many first responders will die in the line of

duty, it does try to make a prediction of sorts so as to know how much

money it will need to maintain the fund so it can make the necessary

pay-outs. Certainly, as regards the four Lee Plaintiffs, the Pension Fund

could have provided a cost should it have to pay out following the death

of those Lee First Responders.

But even if the Defendants could somehow have captured the cost

to the Pension Fund in dollars should it have to pay out if a first

responder should die or one of the Lee First Responders should die, that

is simply a question of money damages. If it is later determined that Ind.

Code § 31-11-1-1 is unconstitutional, the Pension Fund can then seek to

recover money damages from the spouses it paid, if any, while the

litigation was pending. Money damages do not constitute irreparable

harm. See, e.g., Kartman v. State Farm Mutual Auto Insurance Co., 634


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F.3d 883, 892 (7th Cir. 2011) ("plaintiffs have not suffered irreparable

harm" as [t]heir injury—the underpayment of their insurance claims—is

easily remedied by an award of money damages, a fully adequate

remedy").

Ultimately, the issue raised by this stay is whether INPRS will

suffer irreparable harm if it is enjoined from recognizing the marriages of

all Indiana first responders participating in the Pension Fund or

alternatively, only the Lee First Responders. The short answer is "no."

The most that the INPRS can claim - and which it did not claim - are

money damages and those do not constitute irreparable harm.

III. Unlike INPRS, the Lee Plaintiffs will Suffer Irreparable Harm

A denial of a constitutional right is a sufficient harm that favors

denial of a stay. Hinrichs v Bosma, 440 F.3d 393 (7th Cir. 2006) (no stay

of district court's judgment in favor of plaintiffs where “the harm to the

plaintiffs is no less than a denial of religious liberty in the form of a

probable violation of the First Amendment”). In the case of the Lee

Plaintiffs, they are not only suffering a denial of their due process and

equal protection rights but they are also suffering another type of

irreparable harm by which no remedy can make them whole.

By treating lawfully-wedded individuals as legal strangers under its

laws, Indiana denigrates their human dignity and civic equality. By

publicizing and continuing this unequal and unconstitutional treatment,

Indiana stigmatizes Plaintiffs and invites others to view them as second-


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class citizens. By denying the existence of the central reality of Plaintiffs’

lives -- their marriages -- Indiana threatens to undermine their identities

for as any married couple can tell you, when handling the day-to-day

decisions of life, the question is not "what do I need" but rather "what do

we need." (See Ex. A-F, Affidavits of Lee Plaintiffs)

“When couples—including same-sex couples—enter into marriage,

it generally involves long-term plans for how they will organize their

finances, property, and family lives.” Obergefell v.Wymyslo, 962 F. Supp.

2d 968, 979 (S.D. Ohio 2013). The district court’s order brought a well-

deserved measure of peace to the Lee Plaintiffs: but the stay creates

uncertainty anew as to the non-participating spouse’s property interest

in the state pension, and hampers the Lee Plaintiffs’ ability to make

provisions for surviving spouses. The Lee First Responders, who daily

enter dangerous situations as part of their promise to serve and protect

the people of Indiana, deserve no less a promise returned to them when

it comes to caring for their families should they die in the line-of-duty or

in retirement.

The knowledge that their families will not be provided these

benefits by the Pension Fund has caused Officers Lee and Welborn and

Sargent Vaughn-Kajmowicz additional emotional distress, concern, worry

and upset about what may happen to their surviving spouses and

children should the Lee First Responders predecease their spouses. (Ex.

A, Aff. of Lee, p. 4) (“Officer Lee says that her stress and worry are


13

increased because she knows that if anything happens to Officer Lee, the

State of Indiana and will not provide Candace with financial support as it

will the spouses of officers who are married to persons of the opposite-

sex”); Ex. B, Aff. of Wellborn, pp. 4-5] (“Officer Welborn is worried about

whether Elizabeth will have the financial security to continue living in

their home”); Ex. C, Aff. of Vaughn-Kajmowicz, p. 6 (Per Sergeant

Vaughn-Kajmowicz: “If I should die while a police office or in the line of

duty, Tammy will not receive the spousal benefit provided by the Pension

Fund and this worries me because she will be alone and left to take care

of our children without the same financial stability afforded my fellow

officers in the same situation but who are married to persons of the

opposite-sex”); Ex. D, Aff. of Morrison, pp. 4-5 (“Chief Morrison worries

how Martha Leverett will fare financially when Chief Morrison passes”

because Martha will be left without the same resources provided her

colleagues’ spouses in opposite-sex marriages)).

Because the harm imposed upon the Lee Plaintiffs is irreparable

and the harm to the Lee Defendants is not irreparable, the stay should

be lifted.

IV Public Interest Militates in Favor of Vacating the Stay Lifting that portion of the stay as applied to all first responder

members of the Pension Fund or alternatively, only the Lee Plaintiffs, will

serve the public interest in several ways. First, the Lee Plaintiffs or,

alternatively, their fellow first responders, who protect the public, shall


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be able to do so without fear of leaving their spouses unprotected from

financial loss should they die, either in the line of duty or while on active

duty. Second, lifting the stay with respect to the Lee Plaintiffs

alternatively, all first responders, would augment and inform the public

dialogue regarding what it actually means to be married, and the need of

all married first responders to be protected by pension laws, just as

opposite-sex married couples are. This dialogue and explanation of the

scope and depth of marital rights informs the citizenry, while it

encourages and promotes democratic discourse.

Because the public interest militates in favor of vacating the stay

with respect to the Lee Plaintiffs only, the injunction directed to the Lee

Defendants should not be stayed.

CONCLUSION

For the foregoing reasons, as the Defendants have failed to carry

their burden and demonstrate they are entitled to a stay, the stay should

be lifted as regards all affected Indiana first responders or alternatively,

only the Lee Plaintiffs.

Respectfully submitted,

/s/Karen Celestino-Horseman /s/ William R. Groth Karen Celestino-Horseman William R. Groth Of Counsel, Austin & Jones, P.C. Fillenwarth Dennerline Groth & One N. Pennsylvania St., Ste. 220 & Towe, LLP Indianapolis, IN 46204 429 E. Vermont St., Ste. 200 Tel: (317) 632-5633 Indianapolis, IN 46202 Fax: (317) 630-1040 Tel: (317) 353-9363 E-mail: [email protected] Fax: (317) 351-7232 E-mail: [email protected]


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/s/Mark W. Sniderman /s/Kathleen M. Sweeney Mark W. Sniderman Kathleen M. Sweeney Sniderman Nguyen, LLP Sweeney Hayes LLC 47 S. Meridian St., Ste. 400 141 E. Washington St., Ste. 225 Indianapolis, IN 46204 Indianapolis, IN 46204 Tel: (317) 361-4700 Tel: (317) 491-1050 Fax: (317) 464-5111 Fax: (317) 491-1043 E-mail: [email protected] E-mail: [email protected] /s/Robert A. Katz Robert A. Katz Indiana University, McKinney School of Law 530 W. New York St., Room 349 Indianapolis, IN 46202

CERTIFICATE OF SERVICE

I hereby certify that on June 27, 2014, I electronically filed the

foregoing with the Clerk of the Court using the CM/ECF system, which

sent notification of such filing to the following:

Thomas M. Fisher Solicitor General Office of the ATtorney General [email protected]

No. 14-2386

Paul D Castillo Camilla B. Taylor Lambda Legal Defense & Education Fund, Inc. [email protected] [email protected] Brent Phillip Ray Jordan Heinz Melanie MacKay Scott Lerner Dmitriy Tishyevich Kirkland & Ellis LLP [email protected] [email protected] [email protected] [email protected]


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[email protected] Barbara J. Baird The Law Office Of Barbara J Baird [email protected] Robert V. Clutter Kirtley, Taylor, Sims, Chadd & Minnette, P.C. [email protected] Darren J. Murphy Assistant Hamilton County Attorney [email protected] Nancy Moore Tiller Nancy Moore Tiller & Associates [email protected] John S. Dull Law Office of John S. Dull, PC [email protected] No. 14-2387 Chase Strangio American Civil Liberties Union [email protected] Thomas Alan Hardin Shine & Hardin LLP [email protected] Kenneth J. Falk ACLU Of Indiana [email protected] Sean C. Lemieux Lemieux Law [email protected]

/s/ Karen Celestino-Horseman


Case 1:14-cv-00406-RLY-TAB Document 27-1 Filed 04/21/14 Page 1 of 5 PageID #: 123Case: 14-2388 Document: 11-2 Filed: 07/01/2014 Pages: 7 (17 of 72)



































UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA

PAMELA LEE, et al., Plaintiffs,

v.

BRIAN ABBOTT, in his official capacity as member of the Board of Trustees of the Indiana Public Retirement System, et al., Defendants.

))))))))))

Case No. 1:14-cv-00406-RLY-MJD

EMERGENCY MOTION FOR STAY PENDING APPEAL

Pursuant to Federal Rule of Civil Procedure 62(c), Defendants Brian Abbott, Chris

Atkins, Ken Cochran, Steve Daniels, Jodi Golden, Michael Pinkham, Kyle Rosebrough, Bret

Swanson, and Steve Russo respectfully move this Court to stay the enforcement of its Entry on

Cross-Motions for Summary Judgment [hereinafter “MSJ Entry”], Final Judgment, and all

related injunctions entered on June 25, 2014, pending appeal to the United States Court of

Appeals for the Seventh Circuit. Defendants-Appellants filed their Notice of Appeal from the

Court’s final judgment as well as their Docketing Statement on June 25, 2014. That same day,

they filed Notices of Appeal, Docketing Statements, and Emergency Motions for Stay in two

related cases, Baskin v. Bogan, No. 1:14-cv-355-RLY-TAB, and Fujii v. Commissioner, Indiana

State Dep’t of Health, No. 1:14-cv-404-RLY-TAB. Defendants did not seek a stay in this case at

that time because they hoped to gather evidence demonstrating the precise amount of exposure to

the Indiana Public Retirement System in the absence of a stay. As it has proved infeasible to

gather such evidence quickly, Defendants now respectfully move the Court to stay enforcement

of its MSJ Entry and Final Judgment. Defendants are particularly concerned that the granting of

a stay in Baskin and Fujii without a stay in this case—particularly with respect to declaratory

Case 1:14-cv-00406-RLY-MJD Document 66 Filed 06/27/14 Page 1 of 13 PageID #: 783Case: 14-2388 Document: 11-6 Filed: 07/01/2014 Pages: 13 (52 of 72)

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relief—will cause even more uncertainty and confusion in the administration of Indiana’s

marriage laws.

Until the United States Supreme Court determines that traditional marriage laws such as

Indiana’s are unconstitutional, it is premature to require Indiana to change its definition of

marriage and abide by this Court’s conception of marriage, including with respect to pension

benefit claims, which may include large sums for individuals and potentially vast sums in the

aggregate for the Indiana Public Retirement System. If ultimately any benefits paid pursuant to

the Court’s order are deemed improper because Indiana’s traditional marriage definition is

upheld on appeal, Defendants and Plaintiffs alike will be in the uncertain (and potentially

financially catastrophic) position of having to make the Pension Fund whole. The Court should

avoid that bleak and uncertain scenario by staying its injunction pending appeal.

STANDARD FOR GRANTING A STAY

Federal Rule of Civil Procedure 62(c) provides that “[w]hile an appeal is pending from an

interlocutory order or final judgment that grants . . . an injunction, the court may suspend [that]

injunction . . . .” The purpose of a stay is to “maintain the status quo pending appeal, thereby

preserving the ability of the reviewing court to offer a remedy and holding at bay the reliance

interests in the judgment that otherwise militate against reversal[.]” In re CGI Indus., Inc., 27

F.3d 296, 299 (7th Cir. 1994). If a stay is not granted and action is taken in reliance on the

judgment, “the positions of the interested parties have changed, and even if it may yet be

possible to undo the transaction, the court is faced with the unwelcome prospect of

‘unscrambl[ing] an egg.’” Id. (citation omitted).

In considering whether to issue a stay, the Court must “consider the relative hardships to

the parties of the relief sought, in light of the probable outcome of the appeal,” and “should grant


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the stay” if the party seeking it “both has a good chance of winning the appeal and would be hurt

more by the injunction than the [opposing party] would be hurt by a stay of the injunction

pending appeal.” Indianapolis Colts v. Mayor & City Council of Baltimore, 733 F.2d 484, 486

(7th Cir. 1984).

The nature of the showing required to justify a stay pending appeal varies with the facts

of each case. The “[p]robability of success is inversely proportional to the degree of irreparable

injury evidenced. A stay may be granted with either a high probability of success and some

injury, or vice versa.” Cuomo v. NRC, 772 F.2d 972, 974 (D.C. Cir. 1985); see also FTC v.

Mainstream Mktg. Servs., Inc., 345 F.3d 850, 852 (10th Cir. 2003) (per curiam) (granting stay of

injunction against federal do-not-call law and holding that if the moving party can establish “that

the three ‘harm’ factors tip decidedly in its favor, the ‘probability of success’ requirement is

somewhat relaxed”).

With respect to success on the merits, the Supreme Court has held that there must be a

“strong showing” of likely success, not necessarily a definitive “likelihood of success” as in the

preliminary injunction context. Hilton v. Braunskill, 481 U.S. 770, 776 (1987). Indeed, “the

movant need only present a substantial case on the merits when a serious legal question is

involved and show that the balance of equities weighs heavily in favor of granting the stay.”

Wildmon v. Berwick Universal Pictures, 983 F.2d 21, 23 (5th Cir. 1992) (citations and internal

quotations omitted).

ARGUMENT

I. The Injunction Issued by This Court Should, Like All Other Contested Same-Sex Marriage Injunctions to Date, Be Stayed

To date, in light of Supreme Court guidance on the issue, in no case does a fully

contested final permanent injunctive decree precluding enforcement of traditional marriage


4

definitions remain in effect. The thrust of these cases is difficult to miss: The traditional

definition of marriage has been around a long time. Its validity is hotly contested, but the

outcome of these legal disputes is uncertain, such that the status quo should remain until the

Supreme Court squarely addresses the issue.

On January 6, 2014, the Supreme Court stayed a permanent injunction issued by the

United States District Court for the District of Utah in Kitchen v. Herbert, 961 F. Supp. 2d 1181

(D. Utah 2013), pending final disposition of an appeal to the Tenth Circuit. Herbert v. Kitchen,

134 S. Ct. 893 (Jan. 6, 2014). In that case, three same-sex couples challenged Utah’s

constitutional amendment and statutes upholding the traditional definition of marriage. Kitchen,

961 F. Supp. 2d at 1187. The district court entered a permanent injunction that required officials

to issue marriage licenses to same-sex couples and to recognize same-sex marriages validly

performed in other States. Id. at 1215. Although the Tenth Circuit upheld the permanent

injunction, it has, “[i]n consideration of the Supreme Court’s decision to stay the district court’s

injunction pending the appeal[,] conclude[d] it is appropriate to STAY our mandate pending the

disposition of any subsequently filed petition for writ of certiorari.” Kitchen v. Herbert, No. 13-

4178, slip op. at 64-65 (10th Cir. June 25, 2014).

Federal courts across the country have fallen into line by staying injunctions involving

traditional marriage definitions, both with respect to licensure of same-sex marriages within a

State and recognition of same-sex marriages performed in other jurisdictions. Wolf v. Walker,

No. 14-cv-64-bbc, 2014 WL 2693963, at *6 (W.D. Wis. June 13, 2014) (“[S]ince [Kitchen],

every statewide order enjoining the enforcement of a ban on same-sex marriage has been stayed,

either by the district court or the court of appeals, at least when the state requested a stay.”); see,

e.g., Bishop v. United States ex rel. Holder, 962 F. Supp. 2d 1252, 1296 (N.D. Okla. 2014)


5

(licensure); Bostic v. Rainey, No. 2:13-cv-395, 2014 WL 561978, at *23 (E.D. Va. Feb. 13,

2014) (licensure and recognition); De Leon v. Perry, No. SA-13-CA-00982-OLG, 2014 WL

715741, at * 28 (W.D. Texas Feb. 26, 2014) (licensure and recognition); Bourke v. Beshear, No.

3:13-CV-750-H, 2014 WL 556729, at * 14 (W.D. Ky. Mar. 19, 2014) (recognition); DeBoer v.

Snyder, No. 14-1341, Doc. 22-1 at 3 (6th Cir. Mar. 25, 2014) (licensure).

Indeed, the Sixth Circuit reversed the district court’s denial of a stay of its injunction in

Tanco v. Haslam, No. 3:13-cv-01159, 2014 WL 1117069, at *5 (M.D. Tenn. Mar. 20, 2014), that

barred defendants from “enforcing” Tennessee’s anti-recognition statute and constitutional

amendment against the six named plaintiffs in that case. Order, Tanco v. Haslam, No. 14-5297,

Docket No. 29, at 2 (6th Cir. Apr. 25, 2014) (per curiam). The court found persuasive the district

court’s grant of stay of its own injunction in Henry v. Himes, No. 1:14-CV-129, 2014 WL

1512541, at *1 (S.D. Ohio Apr. 16, 2014), explaining that “[r]ecognition of same-sex marriages

is a hotly contested issue in the contemporary legal landscape, and, if [the state’s] appeal is

ultimately successful, the absence of a stay as to [the district court’s] ruling of facial

unconstitutionality is likely to lead to confusion, potential inequity, and high costs.” Tanco,

Order at 2. The court ruled that, “[b]ecause the law in this area is so unsettled, in our judgment

the public interest and the interests of the parties would be best served by this Court imposing a

stay on the district court’s order until this case is reviewed on appeal.” Id.

Similarly, the Ninth Circuit granted a temporary stay in Latta v. Otter, where the district

court denied an emergency motion for a stay, Order, Latta v. Otter, No. 1:13-cv-00482-CWD,

Docket No. 100, at 3 (D. Idaho May 14, 2014), while it fully considered an emergency motion

for stay. Order, Latta v. Otter, No. 14-35421, Docket No. 109, at 2 (10th Cir. May 15, 2014).


6

The Supreme Court “sent a strong message” with its “unusual intervention” in Kitchen v.

Herbert that stayed a final, permanent injunction against enforcement of traditional marriage

definitions. Bourke, 2014 WL 556729, at *14. This Court should heed that message and stay

enforcement of its Final Judgment and all related injunctions pending appeal.

II. The Injury to Defendants, Public Policy, and Balance of Hardships Weigh in Favor of a Stay The MSJ Entry permanently enjoins “[t]he Board of Trustees of the Indiana Public

Retirement System and Steve Russo, the Executive Director of the Indiana Public Retirement

System, and their officers, agents, servants, employees and attorneys, and all those acting in

concert with them . . . to administer the Pension Fund pursuant to Indiana Code Chapters 5-10.5-

3, 5-10.5-4, and 5-10.5-6, so as to provide the same benefits for all married couples, regardless of

whether the couples are of the opposite sex or the same sex.” MSJ Entry at 35.

A. Absent a stay, Defendants will be required to implement broad changes in the administration of the Pension Fund, which would later need to be undone if Defendants prevail on appeal

Given that there is no final resolution of the same-sex marriage issue, the Court’s ruling

creates public uncertainty and a sense of chaos as to what Indiana law is now and what it

portends in the long term. This is true not only with respect to eligibility for marriage licenses

but also eligibility for marriage benefits down the road, including with respect to eligibility for

public retirement benefits. If the Pension Fund must pay death benefits to their members’ same-

sex spouses as a result of this ruling, confusion will ensue if the ruling is ultimately overturned

on appeal. Indeed, if it is later held that Indiana’s traditional marriage definition is constitutional

and, thus, benefit payments were improperly made, it is unclear whether and how the Pension

Fund could recoup these payments. In that event, either the beneficiaries or the Pension Fund


7

would stand to suffer unnecessary losses, to the detriment of untold others not party to this

lawsuit.

More generally, the Court’s June 25 ruling places a burden on Defendants to re-calibrate

their methods for calculating benefits and to implement new agency-wide policies and

procedures. For example, the Pension Fund will have to change its forms and applications to

account for their members’ same-sex spouses. Because these forms—and the Fund’s records

generally—are maintained electronically, the Fund will have to input data manually until it is

able to upgrade its computer software. It is premature to require the Pension Fund to implement

such broad changes in order to comply with a ruling that could be overturned in a matter of

months.

B. The Court’s ruling creates confusion over the meaning of marriage in Indiana more generally

The Court’s final judgment and injunctions threaten irreparable harm to Defendants

because it proposes to alter the meaning of marriage in Indiana, but potentially only temporarily,

and creates confusion over the meaning of marriage in Indiana. County clerks, even those not

directly subject to this Court’s injunction, have already begun to issue marriage licenses. Marion

County Clerk’s Office, http://www.indy.gov/eGov/County/Clerk/Pages/home.aspx (last visited

Jun. 25, 2014) (An alert on the main page reads, “The Marion County Clerk’s Office is issuing

same-sex marriage licenses.”); see also Jill Disis & Cara Anthony, Weddings Begin as Judge

Throws Out Indiana’s Same-Sex Marriage Ban, IndyStar, June 25, 2014,

http://www.indystar.com/story/news/politics/2014/06/25/judge-throws-indiana-ban-sex-

marriage/11354083/.

Other non-defendant clerks have decided not to immediately issue licenses, though these

decisions are fluctuating rapidly. See Same-Sex Marriage in Indiana: Is Your County Allowing


8

It?, TheIndyChannel, June 26, 2014, http://www.theindychannel.com/news/local-news/how-are-

indiana-clerks-handling-same-sex-marriage (Adams, Benton, Clay, Clinton, Daviess, Decatur,

Grant, Lawrence, Newton, Steuben, Switzerland, Union, and Warren Counties not issuing

licenses as of Thursday evening). Numerous other sources report on the confusion from this

Court’s ruling. See, e.g., Federal Judge Rules Indiana’s Ban on Gay Marriage Unconstitutional,

Fox 59 (Jun. 25, 2014), http://fox59.com/2014/06/25/federal-judge-rules-indianas-ban-on-gay-

marriage-unconstitutional/#axzz35fsXGU3s.

This type of confusion is not unique to Indiana. Wisconsin experienced similar

uncertainty after Judge Crabb of the District Court for the Western District of Wisconsin struck

down Wisconsin’s constitutional provision defining marriage as between one man and one

woman. See Ashley Luthern & Megan Trimble, State Divided on Issuing Licenses: Some County

Clerks Await Word on Legality, Milwaukee Journal Sentinel, June 10, 2014,

http://www.jsonline.com/news/wisconsin/counties-split-on-whether-to-issue-marriage-licenses-

to-gay-couples-b99287392z1-262397131.html; Erik Eckholm, Legal Confusion Follows Federal

Judge’s Ruling on Same-Sex Marriage, New York Times, June 11, 2014,

http://www.nytimes.com/2014/06/12/us/legal-confusion-follows-federal-judges-ruling-on-same-

sex-marriage-in-wisconsin.html?_r=0. Judge Crabb ultimately stayed her ruling, pending

appeal. Wolf v. Walker, No. 14-CV-64-BBC, 2014 WL 2693963 (W.D. Wis. June 13, 2014).

The public interest in the continuity of Indiana’s marriage laws—i.e., the interest in

avoiding the potential for public confusion over a series of judicial injunctions that keep re-

setting a state’s authority to define marriage—favors a stay. Widespread attention to this case

raises the risk exponentially that permanent injunctive relief without full appellate review will

disrupt public understanding of the meaning and purpose of marriage in Indiana, raise


9

expectations that any number of Indiana laws pertaining to marriage are suddenly suspended or

modified, and generally create unnecessary confusion among the public. This would be

especially damaging with respect to any public acts that cannot be undone.

Without a stay, in the absence of a final appellate determination of their rights, any

“recognition” of same-sex marriage would come under a cloud of doubt. Plaintiffs have

discussed at length their desire for societal recognition and acceptance. See, e.g., Pls.’ Prelim.

Inj. Mem. at 25 [Doc. 36]; Pls.’ Summ. J. Mem. at 1, 4, 8, 18-19 [Doc. 39]. Yet the final

judgment and related injunctions cannot ensure those aims, and it will unavoidably leave a bitter

taste because it cannot conclusively resolve the legality of same-sex marriages. The best course

of action would be to allow for full and fair appellate review before building up the expectations

of these Plaintiffs or any other same-sex couples interested in recognition of their out-of-state

marriages.

III. Defendants Are Likely to Succeed on the Merits

Baker v. Nelson, 409 U.S. 180 (1972), was a ruling on the merits that upheld Minnesota’s

traditional definition of marriage. Baker was not overruled by United States v. Windsor, 133

S.Ct. 2675 (2013), or any other Supreme Court case and therefore precludes these challenges.

Neither the United States Supreme Court nor the Seventh Circuit Court of Appeals has issued a

decision stating that the constitutional right to marry encompasses forcing States to recognize

out-of-state same-sex marriages. Furthermore, other federal courts that have considered the issue

have concluded that traditional marriage laws limiting marriage to the legal union of a man and

woman do not violate the Constitution. See Jackson v. Abercrombie, 884 F. Supp. 2d 1065 (D.

Hawaii 2012); Sevcik v. Sandoval, 911 F. Supp. 2d 996 (D. Nev. 2012); Citizens for Equal

Protection v. Bruning, 455 F.3d 859 (8th Cir. 2006).


10

The Supreme Court’s decision in United States v. Windsor, 133 S. Ct. 2675 (2013), did

not undermine the legal underpinnings of these decisions. The Court struck down Section 3 of

DOMA, which had “the purpose and effect to disparage and to injure those whom the State, by

its marriage laws, sought to protect in personhood and dignity[,]” as a violation of the Fifth

Amendment principally because it was an “unusual deviation from the tradition of recognizing

and accepting state definitions of marriage . . . .” Id. at 2693, 2696 (emphases added). It was

critical to the Court’s analysis that New York had previously granted marital interests that

federal DOMA then threatened. Id. at 2689.

While the Constitution plainly gives its blessing to New York to recognize out-of-

jurisdiction same-sex marriages, id. at 2692 (explaining that New York’s “actions were without

doubt a proper exercise of its sovereign authority within our federal system, [which] allow[s] the

formation of consensus respecting the way the members of a discrete community treat each other

in their daily contact and constant interaction with each other”), it is a considerable leap from

this to the conclusion that Windsor established a singular vision of a fundamental right to

marriage that must be respected by all States. Traditional state marriage definitions are, as

Windsor amply affirms, the “usual” course of business. Id. at 2691. In no uncertain terms, the

majority forcefully states that “[t]his opinion and its holding are confined to [New York’s] lawful

marriages.” Id. at 2696. It is therefore improper to extrapolate from “this opinion” any rule that

affects any other state’s marriage laws.

Furthermore, there is no constitutional right to have one’s out-of-state same-sex marriage

or civil union recognized in Indiana. See Defs.’ Combined Mem. at 24-32 [Doc. 56]. There is

no federal due process right to have a license issued in one State—whether for professional,

weapons, driving, or marriage purposes—treated as valid by government and courts in another.


11

See Hawkins v. Moss, 503 F.2d 1171, 1176 (4th Cir. 1974) (“[L]icenses to practice law granted

by . . . one state, have no extraterritorial effect or value and can vest no right in the holder to

practice law in another state.”). Marriage-recognition principles are rooted in the common law

of comity. The common law choice-of-law starting point is usually the lex loci rule, which says

a marriage valid in the State of licensure is valid in other States as well. But that is not, and

never has been, the end of the matter. The Restatement (Second) of Conflict of Laws § 283(2)

(1971) states that even if a marriage “satisfies the requirements of the state where the marriage

was contracted,” that marriage will not “be recognized as valid” if “it violates the strong public

policy of another state which had the most significant relationship to the spouses and the

marriage at the time of the marriage.” This “public policy” exception comports with the

“Nation’s history, legal traditions, and practices,” and indeed dates back before the Fourteenth

Amendment. See Joseph Story, Commentaries on the Conflict of Laws § 113a, at 168 (Little

Brown, & Co. 6th ed. 1865). See Defs.’ Combined Mem. at 27 (listing examples). In the only

Indiana Supreme Court decision that Defendants are aware of that addresses an out-of-

jurisdiction marriage that could not have been entered into in Indiana, the Court refused to

recognize the marriage on public policy grounds. Sclamberg v. Sclamberg, 41 N.E.2d 801, 802-

03 (Ind. 1942) (treating as void a marriage between uncle and niece).

Finally, Indiana’s traditional marriage definition does not violate equal protection. The

proper level of scrutiny here is rational basis, see Defs.’ Combined Mem. at 35-48, and to the

extent out-of-state opposite-sex marriages are generally treated as valid under Indiana law but

same-sex marriages are not, that differential treatment is fully justifiable. For Indiana, marriage

is about encouraging responsible procreation so as to ameliorate the consequences of unplanned

pregnancies. See Morrison v. Sadler, 821 N.E.2d 15, 30 (Ind. Ct. App. 2005); Defs.’ Combined


12

Mem. at 50-55. For States recognizing same-sex marriages, the purpose of marriage is obviously

something else—something that cannot be reconciled with Indiana’s marriage philosophy.

Notably, the same is not true with respect to other variations in state marriage laws, which may

reflect marginal differences about the proper age of majority or the proper distance of

consanguinity, but which do not call into question the fundamental purpose of the entire

enterprise. Indiana has a legitimate interest in maintaining the integrity of its fundamental

rationale for civil marriage rather than letting it be redefined by other States.

Fundamentally, the constitutional validity of Indiana’s decision not to recognize out-of-

state same-sex marriages turns on the constitutional validity of its traditional marriage definition.

Because Indiana can constitutionally adhere to that definition and thereby refuse to provide for

same-sex marriages, Defs.’ Combined Mem. at 32-60, it can also refuse to recognize same-sex

marriages from other States.

CONCLUSION

For the foregoing reasons, Defendants respectfully request that this Court stay

enforcement of its Final Judgment and all related injunctions pending disposition of this appeal.

Respectfully submitted, GREGORY F. ZOELLER Attorney General of Indiana s/ Thomas M. Fisher Thomas M. Fisher Solicitor General Office of the Attorney General IGC South, Fifth Floor 302 W. Washington Street Indianapolis, IN 46204 Tel: (317) 232-6255 Fax: (317) 232-7979 [email protected] Counsel for Defendants


13

CERTIFICATE OF SERVICE

I hereby certify that on June 27, 2014, I electronically filed the foregoing with the Clerk

of the Court using the CM/ECF system, which sent notification of such filing to the following:

William R. Groth FILLENWARTH DENNERLINE GROTH & TOWE, LLP [email protected] Mark W. Sniderman SNIDERMAN NGUYEN, LLP [email protected]

Karen Celestino-Horseman AUSTIN & JONES, P.C. [email protected] Kathleen M. Sweeney SWEENEY LAW GROUP, LLC [email protected]

s/ Thomas M. Fisher Thomas M. Fisher

Solicitor General Office of the Attorney General Indiana Government Center South 5th Floor 302 W. Washington St. Indianapolis, IN 46204-2770 Phone: (317) 232-6255 Fax: (317) 232-7979 Email: [email protected]





Indiana Public Retirement System

Police and Firefighters Member Handbook:

Survivor Benefits

Lump Sum Death Benefit

Your heirs or estate are entitled to receive a one-time death benefit of

$12,000 upon your death.

Survivors of Active Members (Non-Line of Duty)

If you die as either an active member of the 1977 Fund, or after leaving

employment with at least twenty (20) years of creditable service but are

not yet retired and receiving benefits, the following survivor benefits will

be paid:

Your surviving spouse is entitled to a monthly benefit equal to sixty

percent (60%) of your monthly retirement benefit payable for the

spouse’s lifetime. Your retirement benefit will be calculated as

though you were receiving retirement benefits at age fifty-two (52)

with twenty (20) years of service. If you have more than twenty

(20) years of service, your benefit will be increased by one percent

(1%) for each six months of additional service. Your spouse may

remarry without the risk of losing the benefit.

Each of your surviving children are entitled to a monthly benefit

equal to twenty percent (20%) of your monthly retirement benefit

until the child reaches the age of eighteen (18) or until the age of

twenty-three (23) if the child is enrolled in and regularly attending a

secondary school or is a full-time student at an accredited college or

university. Your retirement benefit will be calculated as though you

were receiving retirement benefits at age fifty-two (52) with twenty

(20) years of service. If you have more than twenty (20) years of

service, your benefit will be increased by one percent (1%) for each

six months of additional service.

Benefits are paid to eligible disabled children for the duration of

their physical or mental disability (regardless of age), if the child is

not a ward of the state. An eligible disabled child is entitled to

receive an amount each month that is equal to the greater of thirty

percent (30%) of the monthly pay of a first-class police officer or

first-class firefighter or fifty-five percent (55%) of the monthly

benefit the deceased member was receiving or was entitled to

INPRS: Police and Firefighters Member Handbook: Survivor Benefits http://www.in.gov/inprs/77fundmbrhandbooksurvivorbenefits.htm

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receive on the date of the member's death as long as the mental or

physical incapacity of the child continues.

If you have no surviving eligible child or spouse, upon submission of

satisfactory proof that your parent or parents were wholly

dependent on you, your surviving parent or parents, if qualified, are

entitled jointly to receive fifty percent (50%) of your monthly

benefit during their lifetime. Your retirement benefit will be

calculated as though you were receiving retirement benefits at age

fifty-two (52) with twenty (20) years of service. If you have more

than twenty (20) years of service, your benefit will be increased by

one percent (1%) for each six (6) months of additional service.

If you die other than in the line of duty and you had less than

twenty (20) years of service, your contributions plus interest will be

paid to your designated beneficiary. If you have no designated

beneficiary, your contributions plus interest will be paid to your

estate.

Survivor Benefits Chart

Non-Line of

Duty (Active

Member) or

Vested Inactive

Retiree

Line of Duty as

Determined by the

INPRS Board (Active

Member)

Lump Sum

Death

Benefit

$12,000 to heirs

or estate

$12,000 to

heirs or

estate

$150,000 to surviving

spouse, children, or

dependent parent(s) +

$12,000 to heirs or

estate

Surviving

Spouse

60 percent of

eligible benefit

payable for life

60 percent

of member’s

benefit

payable for

life

100 percent of eligible

benefit payable for life

Each

Surviving

Child*

20 percent of

eligible

benefit,payable to

age 18 or 23 if

full-time student

20 percent

of member’s

benefit

payable to

age 18 or 23

if full-time

student


payable to age 18 or 23

if full-time student


2 of 5 4/12/2014 2:15 PM


Wholly

Dependent

Parent(s) if

no surviving

spouse or

child

50 percent of

eligible benefit

payable for life

50 percent

of member’s

benefit

payable for

life


benefit payable for life.

If both parents are

eligible, they share the

benefit equally.

*Benefits are paid to eligible disabled children for the duration of their

physical or mental disability (regardless of age), if the child is not a ward

of the state. An eligible disabled child is entitled to receive an amount

each month that is equal to the greater of thirty percent (30%) of the

monthly pay of a first-class police officer or first-class firefighter or

fifty-five percent (55%) of the monthly benefit the deceased member

was receiving or was entitled to receive on the date of the member's

death as long as the mental or physical incapacity of the child continues.

Survivors of Retirees

If you die while receiving retirement or disability benefits:

Your surviving spouse is entitled to a monthly benefit equal to sixty

percent (60%) of your monthly retirement or disability benefit

payable for the spouse’s lifetime. Your spouse may remarry without

the risk of losing the benefit, and


equal to twenty percent (20%) of your monthly retirement or

disability benefit until the child reaches the age of eighteen (18) or

until the age of twenty-three (23) if the child is enrolled in and

regularly attending a secondary school or is a full-time student at an

accredited college or university.











proof that your parent(s) was a dependent on the federal income

tax return filed by you in the year prior to the year of your death,

your surviving parent or parents are entitled jointly to receive fifty


3 of 5 4/12/2014 2:15 PM


percent (50%) of your monthly benefit during their lifetime.

Beneficiaries

You may designate one or more of your beneficiaries to receive, in a

lump sum, your contributions plus interest at a rate determined by

INPRS. If you die:

without receiving a retirement benefit;

without receiving a disability benefit;

without a survivor entitled to receive a benefit; and

without INPRS returning your contributions;

your contributions plus interest at a rate determined by INPRS are

payable to your designated beneficiary. If you do not designate a

beneficiary and you have no survivors entitled to receive a 1977 Fund

benefit, your contributions plus interest at a rate determined by INPRS,

will be paid to your estate.

Line of Duty Benefits

Death Benefit

If you die in the line of duty (as determined by the INPRS board or its

designee), a special one-time death benefit of $150,000 will be paid to

your surviving spouse, or surviving children if there is no spouse. If you

have no surviving spouse or child, the special death benefit is payable to

your parent or parents in equal shares.

Survivors of Members who Die in the Line of Duty

If you die in the line of duty while an active member of the 1977 Fund,

the following survivor monthly benefits will be paid.

Your surviving spouse is entitled to a monthly benefit equal to one

hundred percent (100%) of your monthly retirement benefit

payable for the spouse’s lifetime. Your retirement benefit will be




one percent (1%) for each six (6) months of additional service. Your

spouse may remarry without the risk of losing the benefit.



4 of 5 4/12/2014 2:15 PM


equal to twenty percent (20%) of your monthly retirement or

disability benefit until the child reaches the age of eighteen (18) or

until the age of twenty-three (23) if the child is enrolled in and

regularly attending a secondary school or is a full-time student at an

accredited college or university. Your retirement benefit will be




one percent (1%) percent for each six (6) months of additional

service.











satisfactory proof that your parent or parents were wholly

dependent on you, your surviving parent or parents, if qualified, are

entitled jointly to receive fifty percent (50%) of your monthly

benefit during their lifetime. Your retirement benefit will be




one percent (1%) for each six (6) months of additional service.

Section Five: Benefit Application Checklist


5 of 5 4/12/2014 2:15 PM


Documents

14-2388 #11