Jackley Tries to Deny SD Plaintiffs Win and Legal Fees in Same-Sex Marriage Case

The Supreme Court’s declaration that marriage is a basic Constitutional right regardless of whether one wants to marry a man or a woman put South Dakota’s constitutional amendment defining marrriage as stricly heterosexual out of our misery. It also should have put an end to Rosenbrahn v. Daugaard, the lawsuit six homosexual South Dakota couples filed to overturn that South Dakota ban.

Actually, back up: Judge Karen Schreier’s January 2015 ruling should have put an end to Rosenbrahn v. Daugaard at the District level. Judge Schreier’s January ruling uses much of the same reasoning found in Justice Anthony Kennedy’s majority opinion in Obergefell v. Hodges. Judge Schreier’s ruling responds as effectively to South Dakota’s weak arguments for denying same-sex couples their right to marry as to the arguments that were on the record then from the states who lost Obergefell v. Hodges.

Attorney General Marty Jackley didn’t want to accept South Dakota’s error. He appealed Judge Schreier’s ruling to the Eighth Circuit, gambling that he’d get a conservative panel that would rush a ruling in South Dakota’s favor in time to perhaps sway the Supreme Court against same-sex marriage. AG Jackley lost that gamble. The Supreme Court’s ruling should now bind the Eighth Circuit to throw out South Dakota’s appeal and affirm Judge Schreier’s ruling for our loving plaintiffs.

But Attorney General Jackley has one more trick up his sleeve. On June 29, the Monday after the Supreme Court ruling, South Dakota filed a motion asking the Eighth Circuit to moot its appeal and vacate Judge Schreier’s ruling in Rosenbrahn v. Daugaard:

Notwithstanding the federal district court’s errors, the United States Supreme Court’s binding opinion in Obergefell et al. v. Hodges et al., 576 U.S. ___ (2015) has obviated the need for this appeal. Appellants have principally relied upon this Court’s ruling in Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir. 2006) and the Supreme Court’s ruling in Baker v. Nelson, 409 U. S. 810 (1972) in defense of South Dakota’s marriage laws. Obergefell, which confirms that Bruning was previously binding Eighth Circuit precedent on page 9 of its opinion, has now been reversed. Obergefell also explicitly overruled Baker on page 23 of its opinion.

“Article III of the United States Constitution limits the jurisdiction of the federal courts to actual, ongoing cases and controversies.” Ali v. Cangemi, 419 F.3d 722, 723 (8th Cir. 2005). “Federal courts lack power to decide moot cases.” Beck v. MO State High School Activities Ass’n, 18 F.3d 604, 605 (8th Cir. 1994). “An actual controversy must exist at all stages of appellate review, not merely at the time the complaint is filed.” Id. (citation omitted). “During the course of litigation, the issues presented in a case may lose their life because of the passage of time or a change in circumstances.” Id. This Court has stated: “If a case becomes moot at any stage of an appeal, we must vacate the district court’s order and judgment and remand the case with instructions to dismiss.” Id.; see also Epp v. Kerrey, 964 F.2d 754, 756 (8th Cir. 1992). In addition, the United States Supreme Court has noted: “[t]he established practice of the Court in dealing with a civil case from a court in the federal system which has become moot while on its way here or pending our decision on the merits is to reverse or vacate the judgment below and remand with a direction to dismiss.” U.S. v. Munsingwear, Inc., 340 U.S. 36, 29 (1950).

In response to the United States Supreme Court’s decision in Obergefell et al. v. Hodges et al., the South Dakota Attorney General has issued a statement that: “every State must recognize and license same-sex marriage.” See Bailey Affidavit, Exhibit B. The Attorney General further noted that the Supreme Court’s “order should be treated as effective immediately[.]” Id. The South Dakota Governor has publically stated his intention to work with the Attorney General to carry out the law under Obergefell. See Bailey Affidavit Exhibit C. The South Dakota Department of Health updated its electronic vital records system and issued marriage licenses for same-sex couples beginning on Friday, June 26, 2015. See Bailey Affidavit, Exhibit D. Pursuant to the State’s immediate response to Obergefell, Plaintiff couples who are not yet married are free to seek a South Dakota marriage license, and Plaintiff couples who were legally married out-of-state will have their marriages recognized. Accordingly, no ongoing case or controversy remains.

For the above stated reasons, this case is moot and this court must vacate the district court’s order and judgment, and remand the case with instructions to dismiss the complaint [Assistant Attorney General Ellie Bailey, Suggestion of Mootness and Motion to Vacate the District Court Judgment, Rosenbrahn v. Daugaard, filed 2015.06.29].

In other words, South Dakota never did anything wrong, but now we’ll marry same-sex couples, so the plaintiffs have nothing to complain about.

Now keep in mind, if AG Jackley had accepted Judge Schreier’s ruling in January, the Rosenbrahns and the other plaintiffs could have been hitched for five months by now. He denied them their rights for five additional months. He forced the plaintiffs to keep exerting their efforts to fight the appeal. And now, instead of simply withdrawing South Dakota’s appeal and acknowledging that South Dakota was wrong, he wants the Eighth Circuit to declare that Judge Schreier was wrong without having to refight the now counter-precedential arguments he lost in front of Judge Schreier.

He also wants to avoid the possibility that the plaintiffs would hit South Dakota up for legal fees. If the Eighth Circuit lets stand Judge Schreier’s ruling and Rosenbrahn v. Daugaard stays on the books as a win for the plaintiffs, the court can make the defendants (a.k.a. us) pay the plaintiffs’ legal bills.

Plaintiffs’ lawyer Joshua A. Newville responded on July 1 with a brief in opposition. He says the Supreme Court cannot moot a case that is not before it. Newville says the state’s supposedly voluntary agreement to comply with Obergefell v. Hodges can’t moot this case when the Attorney General says it’s up to county officials to decide whether they want to issue marriage licenses (come on, Marty: you had to know that statement would come back to bite you) and when at least one South Dakota county official has gone on the record, in Newville’s words “refusing to recognize the Supreme Court as legitimate” (and yes, Newville cites Meade County Commissioner Alan Aker).

Newville can thus dismiss the state’s cited examples as irrelevant:

Thus, while it is true that in Beck v. Mo State High School Activities Ass’n, 18 F.3d 604 (8th Cir. 1994), enough time elapsed during litigation that it became moot for the parents of a child to challenge a bylaw that prohibited the child from playing basketball for one year, that case—cited by Defendants—has no relevance here. In this case, unlike Beck, there there is no guarantee that the challenged laws will not be enforced against the Plaintiffs in the future without a judgment and permanent injunction….

Furthermore, unlike the second of the two Eighth Circuit case cited by Defendants, Epp v. Perrey, 964 F.2d 754, 756 (8th Cir. 1992), this is not a case where the challenged law has been repealed. South Dakota’s marriage bans and anti-recognition laws remain part of the State’s statutes and constitution. Plaintiffs need the certainty of an order, judgment, and permanent injunction to ensure that they will have access to marriage licenses and marriage recognition in the future. In other words, they still have a “need of the judicial protection that [they] sought.” See Adarand Constructors, Inc., 528 U.S. at 224 [Joshua A. Newville, Appellees’ Opposition to Appellants’ Suggestion…, Rosenbrahn v. Daugaard, filed 2015.07.01].

Newville then turns his sights on South Dakota’s request to vacate (vacatur, in legal Latin) and says the court cannot throw out a lower court ruling just because the defendants voluntarily stop behaving badly. Plus, it serves the public interest to have Judge Schreier’s ruling on the record right alongside Justice Kennedy’s:

Furthermore, as the Supreme Court further explained, “[j]udicial precedents are presumptively correct and valuable to the legal community as a whole. They are not merely the property of private litigants and should stand unless a court concludes that the public interest would be served by vacatur.” Id. at 26-27. In the present case, the people of South Dakota have an interest in the clarity and permanency of the district court’s order invalidating South Dakota’s marriage bans and anti-recognition laws. The district court’s order, judgment, and permanent injunction are entirely consistent with the Supreme Court’s decision in Obergefell. Thus, not only would vacatur not serve the public interest, it would actually disserve that interest [Newville, 2015.07.01].

This situation harkens to South Dakota’s effort to pretend it didn’t lose Brooks v. Gant. In that case, Lakota plaintiffs had to sue the state to enforce their voting rights. The state acceded to the plaintiffs’ demands after they sued but before a ruling, inducing the judge to dismiss the case. The state tried to interpret that dismissal as a win and asked the court to force the “defeated” plaintiffs to pay the defendants’ legal fees. Judge Schreier said nuts to that:

The prevailing party in a federal suit can go after the other side for costs, but this case ended when the defendants saw the handwriting on the wall and gave up. As Judge Schreier wrote, “In effect, the plaintiffs received all the relief they requested. You can’t both surrender and declare victory [Greg Lembrich, Four Directions legal director, in Stephanie Woodard, “Judge Rules in Favor of Oglala Voting-Rights Plaintiffs,” Indian Country Media, 2013.09.25].

AG Jackley is now trying to erase the fact that he lost another case and incurred more legal liability for the state.

It would be both more honorable and less intellectually taxing to stop trying to call a loss a win, accept responsibility for denying citizens their rights, and pay for the trouble we’ve caused. Let us hope the Eighth Circuit directs Attorney General Jackley and the state of South Dakota to do just that.

24 Responses to Jackley Tries to Deny SD Plaintiffs Win and Legal Fees in Same-Sex Marriage Case

  1. typical republican spinning something to mean what it doesn’t.

    Wonder which asst AG(s) spent sleepless nights researching and writing these attempts to save face at the cost of the public?

  2. Bill Dithmer

    Stop beating on Marty. He’s going to be your next governor.

    No it will not be the former governors son, his turn will come in 8 years after Jacklow moves on to the house.

    The Blindman

  3. “Dithmer a turncoat”-leaves red south Dakota for Missouri which has had 38 democrat governors!

    his current democrat governor, has historical family ties to abe lincoln, and too was a former AG, but who started a state EPA. as governor he led campaign finance reform, tobacco litigation and health care reform.

    i’ll put our red daugaard’s accomplishments up against your LIBERAL governor’s anytime buddy! and just wait till we get to jackley. we will destroy you, Missouri!

  4. “It would be both more honorable and less intellectually taxing to stop trying to call a loss a win, accept responsibility for denying citizens their rights, and pay for the trouble we’ve caused. Let us hope the Eighth Circuit directs Attorney General Jackley and the state of South Dakota to do just that.”
    Jackley will never do what’s right. That would mean it was wrong to begin with and he’d never admit that.
    You knew that something like this would come back and bite him in the butt-but will the people of South Dakota be outraged?

  5. mike from iowa

    Should have appealed to the 5th circuit court-the “get out of jail free” court for desperate Texas wingnuts who run afoul of the law and appeal directly for relief. Jackley could get to N’awlins by barge if he wanted.

  6. Roger Cornelius

    Jackley didn’t have to enter the marriage equality fight to begin with, he could have done what other states did when they lost the fight in lower courts and conceded the battle.
    Or he could have let other states with the same concerns as South Dakota fight the battle and saved taxpayers a bunch of money.
    The marriage equality battle was headed for the Supreme Court long before Jackley got involved and the signals were actually pretty clear that marriage equality would survive the test of the Supreme Court.
    But no, Jackley had to pander to the right wing and the religious fanatics. He and Daugaard should be made to personally pay Newville’s legal fees.

  7. I suspect neither jackley nor duagaard have ever paid a legal fee from their own pocket.

  8. It’s one thing for a corrupt hack like Jackley to get his paws slapped in DFP, it’s quite another for daily newspapers to spank Jackley’s butt in public. This is a poor smokescreen to let Jackley off the hook for using his office as a political megaphone for anti-Obama radicals.

    The jerk likes to send out press releases about joining other mean-spirited obstructionist attorneys general to sue Obama over health care reform and clean energy initiatives and to waste millions on anti-women, anti-LGBT and anti-reproductive choice rabbit holes. Well, when it comes to paying for all this crap, Marty, you need to explain why you think the State Treasury is your personal campaign joy toy.

    It’s time the Sanford Leader and the other daily editorial boards sprouted spines and tried to reel Jackley back in. This ridiculous waste of money and staff time to appease a crazy, narrow percentage of the electorate outside South Dakota is not doing his job. South Dakota needs a full time attorney general, not another two-bit, flea-bitten right-winged hack.

  9. Public opinion as well as judicial decisions seem to be marginalizing Mr. Jackley and his far right ideology. It seems to me that the time is ripe for Democrats to field a strong Attorney General candidate for the upcoming 2018 open seat who will offer to run the office in a non-ideological manner. Brendan Johnson would make an ideal candidate for that race if he’s not running for congress that year. There are a number of others who would make credible candidates as well.

  10. bearcreekbat

    Another factor worthy of examination is that SD taxpayers will be on the hook for not only the plaintiffs’ attorneys fees for the initial litigation, but also for the plaintiffs’ attorney fees incurred in pressing the attorney fee claim. In other words, our AG may end up increasing the actual attorney fee award to the plaintiffs’ counsel by three or four times by initiating a likely frivolous defense against paying plaintiffs’ attorneys fees for the underlying litigation.

    The cost of litigating payment of attorneys fee in a 1983 action can easily exceed the award for the underlying litigation. It is almost a poker game in which our AG has decided to throw more money in the pot even though his opponent has a royal flush showing. There go some more of South Dakotan’s meager tax dollars with no meaningful return to taxpayers.

    The real irony is that attorneys fees are awarded to the prevailing party in cases like this to encourage lawyers to represent private civil rights litigants as “private attorney generals” who advance civil rights denied by a state. So our official “attorney general” acts contrary to the public interest, while plaintiffs’ attorney is defending the public interest as a “private attorney general.”


  11. Mr. Dithmer and I agree that young Mr. Mickelson is before his own time.

  12. Deb Geelsdottir

    Jackley must have a terrible backache from twisting himself into a pretzel like that.

    Is it possible to find out how much SD taxpayer money has gone to legal frivolity thus far in Jackley’s tenure? That might be an important number for the state’s citizens to know.

  13. Ms. Geelsdottir, I bet you a freedom request for information would easily get you that answer. Or google.

  14. mike from iowa

    So called fiscally responsible conservatives sure waste a lot of someone else’s pesos pushing their religious agenda and losing in court. Most,so far,have blamed the activist wingnut Scotus for capitulating to Obama. Appears like the wingnut party could use another General Robert E. Lee to decide when it is over and give up the fight.

  15. mike from iowa

    Jackley’s own words on the state’s share of costs for the multi-state lawsuit over the ACA-

    Q: What will it cost the state of South Dakota to join this lawsuit?

    A: South Dakota’s share of the multi-state litigation agreement has been set not to exceed $1,000. South Dakota’s share of the multi-state Appelate/ Supreme Court agreement has been set not to exceed $5,000. Accordingly we remain well within the initial $25,000 maximum reserve litigation budget. This minimal cost to protect South Dakota’s right to govern and its citizens individual rights was deemed to be a responsible investment particularly in light of the $53.7 million projected increase to our South Dakota Medicaid Budget. Specifically, the estimated cost of the government expansion of healthcare accounting for only the expansion in Medicaid enrollment for 2010-2019 is projected at 53.7 Million to 62 Million; thereafter, it will be an annual $36 Million. This projection does not include inflationary increases, increased provider payments, additional administration costs, etc; it is only for the expansion in Medicaid enrollment.
    As a party to this multi-state suit, South Dakota is one of 26 states participating and sharing the litigation and appellate costs. State Attorneys General typically use multi-state lawsuits to address important national issues or when more than one state has an interest in a legal matter. As the lead state, the Florida Attorney General’s office will provide most of the resources and personnel to pursue the case, though the other participating states will be consulted.

  16. bearcreekbat

    mfi – don’t forget that Jackley is only talking about costs for SD’s part in the litigation. His estimates do not appear to include the other side’s attorneys fees if the state loses.

  17. bearcreekbat

    On the other hand, in contrast to the gay marriage case, the ACA litigation is probably not the type of litigation where the losers will have to pay attorneys fees to the winners. The ACA case does not appear to involve the civil rights of anyone, rather it was a case of statutory interpretation to decide what the law required. In this type of case each party is typically responsible for its own attorney fees.

  18. Bill Dithmero

    his current democrat governor, has historical family ties to abe lincoln, and too was a former AG, but who started a state EPA. as governor he led campaign finance reform, tobacco litigation and health care reform.”

    It isnt that he led those campaigns, its that he was and is a force. We did look at this red states politics, but it looks to me just like back home there are a lot of people that talk republican and live democrat.

    Please dont feel to sorry for me. KC is an hour and a half and St Louis is about three. Do ya think there are any blues or jazz clubs in either town?

    It might be different in the big cities, but out here in the country its just fine.

    Oh ya, theres plenty of people that string down here so I’m really looking foward to some good music at Carson House.

    The Blindman

  19. Mr. Dithmer, have you left the libbyland of the Rez for the libbyland of Missouri and urbanism? You sir, were one of the bastions of common sense. And now they tell me you have simply become an expatriot whose views of South Dakota no longer matter. An outsider looking in and whining because you are not here. I am saddened.

  20. Bill Dithmero

    Fear not grudz. Yes I’m living in Mo now but we still have things going on in SD so a return is never out of the question. The badlands are only a four hour Cessna ride away from Bethany.

    If you want to know what we a re doing here look at my fb page, William Dithmer and just start going backwards looking at the pictures.

    South Dakota will always be home, but for now we have something that keeps us busy.

    The Blindman

  21. I will get my granddaughter to look at the pictures and show me, sir. I do not know how to have a face book. But I hope you keep the badlands in your craw.

  22. Deb Geelsdottir

    Oh Blindman, I’m so jealous that you are in an area rich with the Blues and killer barbecue. Good for you! (My aunt and uncle used to live in Licking, in the Ozarks, and I’ve visited them there.)

    Like me and several others, geographical changes do not include a change of SD roots. Enjoy your Missouri neighborhood.

  23. 2010-2019 SD lives lost failing to expand MEDICAID: 270 to 1800 DEATHS attributable to political grandstanding.

  24. Douglas Wiken

    Read 96 Tears and Leslie above to get a good dose of what reality means for those governed by Republicans.