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.