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Sunday, June 28, 2015

Is the question moot?

Immediately following Obergefell, Nebraska moved in the Eighth Circuit to lift the stay of a district court injunction invalidating the state's ban. In its motion, Nebraska argued that the case is moot because the Attorney General has certified that he will comply with Obergefell and no longer enforce the Nebraska ban. The motion cites to cases (from the Eighth and Seventh Circuits) holding moot challenges to laws that had been declared unconstitutional in a separate case by a controlling court. It also argues that this case is not capable-of-repetition-yet-evading-review, because the state's promise to comply with Obergefell means no one in Nebraska will be denied a license.

This argument seems wrong to me, at least as the state presents it. The government's promise not to enforce a law is generally not sufficient to moot a case (without implicating C/R/Y/E/R). A state can moot a case by repealing a state law, but Nebraska has not done so (and likely will not). The cases Nebraska cites are not on point, because Nebraska's marriage ban has not been declared unconstitutional. The bans in other states have been declared unconstitutional in a decision that, as binding precedent, likely will result in Nebraska's ban being declared unconstitutional. But that is different than a declaration as to Nebraska's law.

I did find one case (not cited by Nebraska), Christian Coalition of Alabama v. Cole (11th Cir. 2004), holding that a constitutional challenge to state judicial canons was moot as a result of precedent from a different state. There, the state judicial ethics commission represented that it would not enforce a canon in light of SCOTUS precedent declaring invalid a similar judicial canon from Minnesota, mooting a challenge because there was no threat of any judicial candidate being sanctioned. This case suggests that Nebraska is correct. Moreover, in asking whether voluntary cessation has mooted the case, courts link the possibility of a renewed enforcement back to standing. Given Obergefell and Nebraska's commitment to abiding by it, a new couple initiating a challenge to its ban likely would be held to lack standing (unless actually denied a license). In the absence of any indication that the plaintiffs in the pending action will be denied a license because of the AG's representation, perhaps the case has indeed become moot.

But this seems a dodge when litigation is already pending and when the district court already has entered an injunction prohibiting enforcement of this particular law. The point of Obergefell is to make clear that the district court decision and injunction both were correct. It seems appropriate to allow that declaration about Nebraska law and that injunction (which, as I have argued, only affects the plaintiff couples anyway) to take effect in light of Obergefell. Otherwise, wouldn't most cases become moot after many GVRs?

Of course, this just may be one more way in which marriage-equality litigation is unique. We have multiple states with identical laws all being challenged at the same time by plaintiffs seeking to engage in identical conduct, with one Supreme Court decision resolving the constitutional of every law in every state as to all possible sets of facts. That is not true of all constitutional litigation.


Posted by Howard Wasserman on June 28, 2015 at 11:49 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


There was no breach of contract in Already - it was a one way offer on the record. I think a case got dismissed once for a covenant made in an appellate argument. Thus, so long as it is something that can be binding, it should be good enough. I don't know for sure, obviously, but if you take the standard from Already at face value it seems pretty clear to me that a supreme court precedent plus a representation on the record that licenses will issue should be enough to bind the state.

Posted by: Michael Risch | Jun 28, 2015 6:44:02 PM

But doesn't (shouldn't) it require more than an abstract promise? In Nike, the company entered into a non-compete covenant, giving the promise a greater formality, backed by the threat of a breach of contract suit. With public defendants, it often requires much more formality, such as the repeal or amendment of the challenged laws/policies. A prior decision invalidating the challenged law seems in the same ballpark. A decision challenging a similar law from another state, along with a promise, seems very different.

Posted by: Howard Wasserman | Jun 28, 2015 6:10:29 PM

OK, so Obergefell helps. But the confession of judgment or other statement on the record is enough. See Already v. Nike: "Given this concern, our cases have explained that 'a defendant claiming that its voluntary compliance moots a case bears the formidable burden of showing that it is
absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.'"

I think Nebraska can make that case - certainly now, if not before.

Posted by: Michael Risch | Jun 28, 2015 5:38:44 PM

Michael: I disagree. I think Obergefell is absolutely relevant because without it, this would be a simple promise not to enforce a law midway through litigation seeking to enjoin enforcement of that law. This generally is viewed as voluntary cessation that will not moot the case. The presumption is that, despite the promise, the state can easily change its mind. The court might take it as a confession of judgment or an agreement to settle, but generally will enter judgment or a consent decree. The only thing that possibly makes this case different is Obergefell--the state is not only promising not to enforce its laws, it is promising to abide by Obergefell.

Posted by: Howard Wasserman | Jun 28, 2015 5:30:53 PM

I think Obergefell is irrelevant. The complaint argues that the couple wants a marriage license and can't get one. Nebraska says (for whatever reason), "we will give one to you and anyone who asks." There is no more live issue for a declaratory judgment (statutory standing gone). There's no more case or controversy (constitutional standing gone). Who cares if the law is struck down? Most state laws are not separately struck down after the court rules - the just sit on the books and the states moot any challenge by complying with the rule and failing to enforce the statute.

Posted by: Michael Risch | Jun 28, 2015 5:23:55 PM

But complying with what? There has been no declaration of invalidity of Nebraska law. We know that declaration is inevitable, but that's it. Absent Obergefell, this is a promise not to enforce a law on the books that is not sufficient to moot. I don't see why a binding precedent changes that.

Posted by: Howard Wasserman | Jun 28, 2015 5:15:16 PM

Well, if Nebraska can make a credible showing that it is complying (that is, issuing licenses), then there is no case or controversy, and the whole case loses Article III jurisdiction, I would think - just as declaratory relief cases do when a party issues a covenant not to sue.

Posted by: Michael Risch | Jun 28, 2015 5:11:18 PM

Same: That's a really good point. But note that it's not "ok, I'll comply with the injunction," but "ok, since I'm complying with this other decision, the injunction is unnecessary." I don't think either is appropriate to moot the case.

Posted by: Howard Wasserman | Jun 28, 2015 4:31:10 PM

Surely you can't moot an injunction by saying "ok on second thought I'll comply with it."

The proper thing for Nebraska to do, would be to dismiss its appeal. That they are trying a "mootness" argument instead is, most likely, a ploy to try to avoid attorney fees.

Posted by: Sam | Jun 28, 2015 4:29:01 PM

It's not Article III final. There was a P/I, which was appealed and stayed pending review.

Posted by: Howard Wasser134man | Jun 28, 2015 12:44:30 PM

Is the injunction a final judgment? If so, it just seems that the appeal is moot and should be withdrawn, not that the injunction is moot.

Posted by: Michael Risch | Jun 28, 2015 12:22:14 PM

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