5:13-cv-00077 #143

UNITED STATES DISTRICT COURTWESTERN DISTRICT OF VIRGINIA

Harrisonburg Division

JOANNE HARRIS, et al, ))

Plaintiffs ))

v. ) Civil Action No.: 5:13-cv-77)

JANET M. RAINEY, et al, ))

Defendants )

DEFENDANT ROBERTS’ MEMORANDUMIN SUPPORT OF MOTION TO DISMISS

AND IN OPPOSITION TO PLAINTIFFS’ MOTION TO LIFT STAY AND ENTER JUDGMENT

Defendant Thomas E. Roberts, by counsel, files this memorandum in support of his Rule

12(b)(1) Motion to Dismiss, and in opposition to Plaintiffs’ Motion to Lift Stay and Enter

Judgment.

RELEVANT FACTS AND PROCEDURAL HISTORY

On August 1, 2013, Plaintiffs filed this action in the United States District Court for the

Western District of Virginia seeking declaratory and injunctive relief against Thomas E. Roberts,

Clerk of the Circuit Court for the City of Staunton; Janet M. Rainey, State Registrar of Vital

Records; and Robert F. McDonnell, then-Governor of Virginia in their official capacities.

Plaintiffs asserted Virginia Code §§ 20-45.2 and 20-45.3, and Article 1, Section 15-A of the

Virginia Constitution (“Virginia’s Marriage Laws” or “Marriage Laws”) unconstitutionally

deprive Plaintiffs of their rights to due process and equal protection guaranteed by the Fourteenth

LAW OFFICESTIMBERLAKE, SMITH,

THOMAS & MOSES, P.C.STAUNTON, VIRGINIA

540/885-1517fax: 540/885-4537

Case 5:13-cv-00077-MFU-RSB Document 143 Filed 10/29/14 of 20 Pageid#: 2076

Amendment of the United States Constitution.1 Plaintiffs requested a class certification by Motion

filed August 16, 2013. After a series of procedural motions and dismissal of the Governor,

Defendant Roberts answered on January 22, 2014, declining to actively contest the substantive

challenge, but objecting to class certification.

Prior to the filing of this lawsuit, four unrelated plaintiffs filed a similar case, raising

identical challenges to Virginia’s Marriage Laws, in the District Court for the Eastern District of

Virginia on July 18, 2013. On February 14, 2014, the Eastern District of Virginia issued an

opinion declaring Virginia’s Marriage Laws facially unconstitutional. See Bostic v. Schaefer, 970

F. Supp. 2d 456 (E.D. Va. 2014). On February 24, 2014, the Eastern District of Virginia entered

judgment in the Bostic case, specifically declaring Virginia’s Marriage Laws facially

unconstitutional. See Bostic, No. 13-395, Document 139, filed 2/24/14.

The proponents of Virginia’s Marriage Laws timely noted appeals. Plaintiffs filed motions

to intervene in the Bostic case, and were permitted to intervene effective March 10, 2014. From

its inception, the Bostic case proceeded on an expedited basis, without discovery. On March 31,

2014, due to the Plaintiffs’ successful intervention in the Bostic appeal and noting both (1) the

impending decision of the Fourth Circuit in Bostic will be binding and (2) there is a lack of

adversity in this case because there was no longer any party in the instant case defending the

Marriage Laws (“the debate in this case is decidedly one-sided”), this Court stayed the present

case pending the decision in the Bostic appeal.

1 No claims for monetary damages have been made, or could be made as such claims arebarred by the Eleventh Amendment.



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The Fourth Circuit issued an opinion on July 28, 2014, affirming the Eastern District’s

holding that Virginia’s Marriage laws are unconstitutional. Bostic v. Schaefer, 760 F. 3d 352 (4th

Cir. 2014). Appeals to the Supreme Court by the proponents of the Marriage Laws followed. On

October 6, 2014, the United States Supreme Court denied the proponents’ petition for certiorari.

On the same date, the Fourth Circuit issued a mandate, giving effect to its July 28 ruling as of

October 6, 2014. With Plaintiffs’ active participation, the Eastern District in the Bostic case has

extended the filing time for requests for attorneys’ fees and/or costs in that case until November

21.

Subsequent to the Fourth Circuit’s mandate, Governor McAuliffe issued an executive

order declaring, among other things, that all policies and practices will comply with the Fourth

Circuit’s ruling. See Exec. Order No. 30, available at https://governor.virginia.gov/executive-

actions/executive-orders/eo-30/, attached as Exhibit A. In addition, Defendant Roberts issued a

marriage license to Plaintiffs on October 6, 2014 and has issued marriage licenses to other same-

sex couples since that date. See Declaration of Thomas E. Roberts, Clerk of Court, dated October

20, 2014, attached as Exhibit B. He will continue to comply with the Court’s mandate and cannot

deny a marriage license on the sole basis that the applicants are of the same gender. Id.

On October 16, 2014, Plaintiffs filed in this case a Motion to Lift Stay and Enter

Judgment. On even date with his filing of this Memorandum, Defendant Roberts files a Rule

12(b)(1) Motion to Dismiss this case, for want of jurisdiction due to the mootness of Plaintiffs’

claims in this case.



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ARGUMENT

This case is rendered moot as to both the named Plaintiffs and the class by the Fourth

Circuit’s affirmance of the District Court for the Eastern District of Virginia’s decision in Bostic

v. Schaeffer, 760 F.3d 352 (4th Cir. 2014), cert. denied No. 14-153, 2014 U.S. LEXIS 6053 (Oct.

6, 2014); No. 14-225, 2014 U.S. LEXIS 6405 (Oct. 6, 2014); and No. 14-251, 2014 U.S. LEXIS

6316 (Oct. 6, 2014), which held Virginia’s Marriage Laws facially unconstitutional and enjoined

their enforcement in the Commonwealth.

I. Plaintiffs’ claims are moot.

Mootness, like standing, is a jurisdictional doctrine: a court must decline to exercise

jurisdiction where the award of any requested relief would be moot. In particular, jurisdiction

must be declined where the controversy is no longer live and ongoing. Indeed, the mootness

doctrine is a limitation on federal judicial power grounded in the "case-or-controversy"

requirement of Article III of the U.S. Constitution. "[A] case is moot when the issues presented

are no longer 'live' or the parties lack a legally cognizable interest in the outcome." Powell v.

McCormack, 395 U.S. 486, 496, 89 S. Ct. 1944, 23 L. Ed. 2d 491 (1969). Because the "case-or-

controversy requirement subsists through all stages of federal judicial proceedings, trial and

appellate . . . it is not enough that a dispute was very much alive when suit was filed," the parties

must retain a concrete interest in the outcome of the litigation throughout all stages of the

proceedings. Lewis v. Cont'l Bank Corp., 494 U.S. 472, 477, 110 S. Ct. 1249, 108 L. Ed. 2d 400

(1990). Thus, mootness may be raised, and may deprive the court of subject matter jurisdiction,



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at any stage of proceedings. When a case or controversy ceases to exist, the litigation is moot and

a federal court no longer possesses jurisdiction to proceed. Iron Arrow Honor Soc’y v. Heckler,

464 U.S. 67, 70, 104 S. Ct. 373, 78 L. Ed. 2d 58 (1983). A case can become moot due either to

a change in facts or a change in the law. Ross v. Reed, 719 F. 2d 689, 693-94 (4th Cir. 1983).

In this case, Plaintiffs seek entry of judgment despite a previous, binding and final ruling

of the Fourth Circuit that declared Virginia’s Marriage Laws facially unconstitutional, which

ruling was in a case in which Plaintiffs and the class members were active parties and which, as

Plaintiffs point out, “directly adjudicated the merits” of the claims of Plaintiffs and the class

members. See Plaintiffs’ Motion to Lift Stay and Enter Judgment, § II, p. 4. Plaintiffs are not

entitled to any additional remedy in this case: subsequent to the Fourth Circuit’s final, binding

ruling, the laws challenged by Plaintiffs cannot be enforced in the Commonwealth against

Plaintiffs, the class members or any other person. Simply put, neither Plaintiffs nor any person

face any reasonable threat of being denied due process or equal protection with respect to

Virginia’s laws related to marriage and no one will suffer further injury thereby. Should the Court

enter judgment in this case, it would be issuing an opinion based on a hypothetical unlawful

application of Virginia’s Marriage Laws, with no reasonable threat that such unlawful application

will occur. Accordingly, this Court lacks further jurisdiction over Plaintiffs’ claims, as Plaintiffs’

claims are moot.

In Bishop v. United States, 962 F. Supp. 2d 1252 (N.D. Okla. 2014), the plaintiffs filed

suit in 2004, challenging both sections 2 and 3 of the federal Defense of Marriage Act (DOMA)

as well as two provisions in the Oklahoma state Constitution. Specifically, the plaintiffs sought



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declaratory judgment that all four provisions were unconstitutional. The case traveled along a

lengthy procedural history not dissimilar to the procedural history in this case, including among

other things an abandonment by the United States of its defense of DOMA. The Bishop case was

still pending on June 26, 2013, when the Supreme Court issued its opinion in United States v.

Windsor, 2013 U.S. LEXIS 4921, 133 S. Ct. 2675, 186 L. Ed. 2d 808 (2013), which held that

section 3 of DOMA “violates basic due process and equal protection principles applicable to the

Federal Government.” 133 S. Ct. at 2693-94. Nevertheless, after the Supreme Court’s opinion in

Windsor resolving the issue, the plaintiffs in Bishop filed a motion for entry of final judgment as

to the unconstitutionality of Section 3 of DOMA.

The district court held that there was no longer any live or ongoing controversy with

respect to Section 3, because the Supreme Court’s ruling in Windsor (on the precise issue for

which the Bishop plaintiffs sought entry of judgment) rendered moot the Bishop plaintiffs’

challenge to Section 3. Bishop, 962 F. Supp. 2d at 1269. “As a general rule, where a law has been

declared unconstitutional by a controlling court, pending requests for identical declaratory relief

become moot.” Id., citing Thayer v. Chiczewski, 705 F.3d 237, 256-57 (7th Cir. 2012), Longley

v. Holahan, 34 F.3d 1366, 1367 (8th Cir. 1994), Eagle Books, Inc. v. Difanis, 873 F.2d 1040,

1042 (7th Cir. 1989), and Utah Animal Rights Coal. v. Salt Lake City Corp., 371 F.3d 1248, 1257

(10th Cir. 2004). Thus, because Section 3 had already been declared unconstitutional by the

Supreme Court, any further declaration or judgment by the district court would “have no further

impact” on the defendants’ actions. Bishop, 962 F.2d at 1270. In addition, the district court noted

that the defendants presented compelling evidence that, after the decision in Windsor, the



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challenged law (Section 3 of DOMA) would not be enforced and the Bishop plaintiffs would

suffer no further injury as a result of Section 3. Id. The court noted “the Windsor decision

changed the legal landscape in such a drastic manner than the [plaintiffs] no longer face[s] any

reasonable threat of being denied equal protection of federal laws related to marriage.” Id., at

1271. Moreover, the court concluded that “were [it] to issue a declaratory judgment, it would be

issuing an opinion based on a hypothetical application of Section 3 that is no longer likely to

occur.” Id.

Similarly, in Schindler v. Deal, No. 10-4012, 2012 U.S. Dist. LEXIS 45979 (N.D. Ga.

Mar. 30, 2012), a 42 U.S.C. § 1983 case challenging Georgia’s prohibition of assisted suicide as

unconstitutional was rendered moot by a decision in a separate case asserting a similar challenge.

In Schindler, the plaintiffs filed in federal court pursuant to 42 U.S.C. § 1983, asserting that

Georgia’s prohibition on assisted suicide violates, among other things, their First Amendment

rights, and seeking an injunction. At the time plaintiffs filed, a case was already pending in state

court in Georgia, in which four criminal defendants challenged their indictments on the same

constitutional ground. While the Schindler case remained pending, the criminal defendants

obtained a ruling from the Georgia Supreme Court holding that the assisted suicide statute was

facially unconstitutional under the U.S. Constitution (and the Georgia Constitution). Subsequent

to the ruling in the criminal case, the state moved to dismiss the § 1983 action as moot.

The district court held that the § 1983 plaintiffs’ case was moot, because the statute in

question had been declared facially unconstitutional. Because of that declaration, there was no

possibility that the statute would be enforced against the § 1983 plaintiffs: specifically, “if a facial



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challenge is upheld, then the state cannot enforce the statute against anyone.” Schindler, 2012

U.S. Dist. LEXIS 45979, *9, citing Amelkin v. McClure, 205 F.3d 293, 296 (6th Cir. 2000), Bd.

of Trustees v. Fox, 429 U.S. 469, 483, 109 S. Ct. 3028, 106 L. Ed. 2d 388 (1989). Without the

possibility of application of the challenged law against the plaintiffs, there was no additional relief

the district court could provide. Id., citing Covenant Christian Ministries, Inc. v. City of Marietta,

654 F.3d 1231, 1239 (11th Cir. 2011), Nat’l Advertising Co. v. City of Miami, 402 F.3d 1329

(11th Cir. 2005), Butler v. v. Ala. Judicial Inquiry Comm’n, 261 F.3d 1154, 1158-59 (11th Cir.

2001), Phelps v. Hamilton, 122 F.3d 1309, 1325-26 (10th Cir. 1997).

In the present case, the final, binding ruling by the Fourth Circuit declared Virginia’s

Marriage Laws unconstitutional. See Bostic v. Schaeffer, 760 F.3d 352 (4th Cir. 2014), cert.

denied No. 14-153, 2014 U.S. LEXIS 6053 (Oct. 6, 2014); No. 14-225, 2014 U.S. LEXIS 6405

(Oct. 6, 2014); and No. 14-251, 2014 U.S. LEXIS 6316 (Oct. 6, 2014). As in Schindler, the Bostic

case raised a facial challenge to a state’s laws. Both the Eastern District and the Fourth Circuit

concluded Virginia’s Marriage Laws were unconstitutional. Given the final ruling in the Fourth

Circuit that the Marriage Laws are facially unconstitutional, there is no likelihood that the

Marriage Laws will be enforced against the named Plaintiffs or the class members. Accordingly,

just as the Windsor decision deprived the court of jurisdiction over the Bishop plaintiffs’ requests

for further relief from Section 3 of DOMA, the Bostic decision renders moot and deprives this

court of jurisdiction over Plaintiffs’ requests for relief in this case.

The case-or-controversy requirement of Article III no longer exists in this case. The Fourth

Circuit’s ruling that Virginia’s Marriage Laws are unconstitutional in Bostic renders moot



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Plaintiffs’ ongoing challenge to Virginia’s Marriage Laws. See Bostic, 760 F.3d at 384

(specifically affirming grant of summary judgment for plaintiffs and injunction of enforcement

of Virginia’s Marriage Laws because they violate both the Due Process and Equal Protection

Clauses of the Fourteenth Amendment). Plaintiffs seek judgment in this Court on identical

grounds. Like the plaintiffs in Bishop, given the Fourth Circuit’s final ruling that binds – and

enjoins – state actors across the Commonwealth, Plaintiffs no longer have any substantive right

to recover in this case.

Moreover, there is absolutely no indication that Virginia or the Defendants in this case

will not comply with the Bostic decision. On October 7, 2014, Governor McAuliffe issued

Executive Order 30, declaring, among other things, that all policies and practices will quickly be

brought into compliance with the ruling of the Fourth Circuit. See Exec. Order No. 30, available

at https://governor.virginia.gov/executive-actions/executive-orders/eo-30/, attached as Exhibit

A. In addition, Roberts has submitted a declaration that he will comply with the decision and

declaratory judgment in Bostic, and neither Plaintiffs nor any similarly situated individuals will

suffer any further injury as a result of Virginia’s now unconstitutional Marriage Laws. See

Declaration of Thomas E. Roberts, Clerk of Court, dated October 20, 2014, attached as Exhibit

B.

Finally, although there is an exception to the mootness doctrine if the violation is “capable

or repetition, yet evading review,” the final, binding ruling of the Fourth Circuit in Bostic,

declaring Virginia’s Marriage Laws unconstitutional as a result of the Bostic plaintiffs’ facial



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challenge, precludes the applicability of that exception in this case. As noted above, the final,

binding opinion issued from the Fourth Circuit, affirming the Eastern District’s favorable ruling

on the Bostic plaintiffs’ facial challenge to Virginia’s Marriage Laws, means that the Marriage

Laws cannot be enforced against any person in the Commonwealth. As such, this is not a case

where there is any possibility of a continuing or repeated constitutional violation under Virginia’s

Marriage Laws. There is no basis for suspecting that the laws will be unlawfully applied or that

the Commonwealth will attempt to reenact the prior law. See Executive Order No. 30; Declaration

of Thomas Roberts.

Based on the foregoing, any further action by this court in this case would have no further

impact on the defendants’ actions; in fact, if the court grants the relief requested by Plaintiffs, it

would be issuing an opinion based on a hypothetical unlawful application of Virginia’s Marriage

Laws that is no longer likely to occur. As the Bishop court noted with respect to the impact of the

Windsor decision, affirmance of the Bostic decision (and denial of certiorari by the Supreme

Court) changed the legal landscape in such a drastic manner that neither Plaintiffs nor any

member of the class face any reasonable threat of being denied due process or equal protection

of the heretofore challenged laws related to marriage.



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II. Plaintiffs’ assertion of a right to attorneys’ fees is neither reason to enterjudgment in this otherwise moot case nor appropriate in this case.

Although Plaintiffs’ motion for judgment also suggests that a motion for attorneys’ fees

will follow, the possibility of recovering attorneys’ fees or costs is not a sufficient reason to enter

judgment in an otherwise moot case. Bishop, 962 F.3d at 1271, citing R.M. Inv. Co. v. U.S. Forest

Serv., 511 F.3d 1103, 1108 (10th Cir. 2007) and In re West. Pac. Airlines, Inc., 181 F.3d 1191,

1196 (10th Cir. 1999). Where a change in fact or law, during the pendency of a claim, resolves

all issues (thereby rendering the claim moot), there is no basis for an award of attorneys’ fees to

the plaintiff in the pending case. Lewis v. Continental Bank Corp., 494 U.S. 472, 483, 110 S. Ct.

1249, 108 L. Ed. 2d 400 (1990), citing Rhodes v. Stewart, 488 U.S. 1, 3-4, 109 S. Ct. 202, 102

L. Ed. 2d 1 (1988); see also M.M. v. Lafayette Sch. Dist., Nos. 12-15769 and -15770, 2014 U.S.

App. LEXIS 18979 (9th Cir. Oct. 1, 2014) citing Cammermeyer v. Perry, 97 F.3d 1235, 1238 (9th

Cir. 1996) (“existence of an attorneys’ fees claim … does not resuscitate an otherwise moot

controversy”); District of Columbia v. Ijeabuonwu, 642 F.3d 1191 (D.C. Cir. 2011); Moseley v.

Bd. of Educ., 483 F.3d 689 (10th Cir. 2007) (where substantive claims moot, there can be no

recovery of attorneys’ fees).

Moreover, even were it ripe for consideration, a claim for attorneys’ fees in this case is

wholly without merit. Plaintiffs’ claims in this lawsuit, even if found to be a “catalyst for post-

litigation changes” in the law or in defendants’ conduct, cannot suffice to establish plaintiff as

a prevailing party in this now-moot case. S-1 v. State Bd. of Educ. of North Carolina, 21 F.3d 49,

51 (4th Cir. 1994), citing Farrar v. Hobby, 506 U.S. 103, 113 S. Ct. 566, 121 L. Ed. 2d 494



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(1992). The Fourth Circuit has explicitly rejected the “catalyst theory” as a ground for recovering

attorneys’ fees even where the plaintiffs’ claims were the catalyst for changes in the parties’ legal

relationship that ultimately mooted the plaintiffs’ claims in litigation. Id.

In S-1, the plaintiffs sued a local school division as well as the state Board of Education

and its Chair, claiming the defendants violated certain statutory rights of disabled students and

their parents by failing to authorize tuition reimbursements. The district court granted the

plaintiffs’ motions for summary judgment and injunction. While an appeal to the Fourth Circuit

was pending, the plaintiffs and the local school division reached a settlement whereby the local

division paid tuition reimbursements and attorneys’ fees. As a result of the settlement, the

plaintiffs dismissed their claims against the local division, but did not dismiss their claims against

the state Board and its Chair. Although the state Board of Education and its Chair were not parties

to the settlement, the Fourth Circuit held that the settlement (and payment of tuition

reimbursement) factually mooted the plaintiffs’ claims even against the state Board and its Chair.

Subsequently, the federal government directed the state Board to authorize tuition

reimbursements and the state Board amended its laws and regulations accordingly. Shortly

thereafter, the plaintiffs’ request for additional attorneys’ fees against the state Board and its Chair

reached the Fourth Circuit. The Fourth Circuit held that dismissal of the appeal as moot (by virtue

of the initial settlement with the local division) prevented the plaintiffs from being “prevailing

parties” notwithstanding their argument that their lawsuit operated as a catalyst for broader

changes in the defendants’ conduct. 21 F.3d at 51. The Fourth Circuit explicitly rejected the

“catalyst theory” as a basis for an award of attorneys’ fees in a case where the party has not



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received an “enforceable judgment, consent decree, or settlement” giving some of the legal relief

sought in that specific case. Id.

The Fourth Circuit re-examined and re-affirmed its rejection of the “catalyst theory” in

Buckhannon Board and Care Home, Inc. v. West Va. Dep’t of Health and Human Resources, No.

99-1424, 2000 U.S. App. LEXIS 720 (4th Cir. Jan. 20, 2000) (plaintiffs found not to be

“prevailing parties” where amendment of challenged law rendered plaintiffs’ claims moot: “in

order to qualify as a ‘prevailing party’ in litigation, the plaintiff must, through the litigation,

‘obtain an enforceable judgment … or comparable relief through a consent decree or settlement’”)

(emphasis added). The Supreme Court affirmed the Fourth Circuit’s rejection of the catalyst

theory. Buckhannon Board and Care Home, Inc. v. West Va. Dep’t of Health and Human

Resources, 532 U.S. 598, 121 S. Ct. 1835, 149 L. Ed. 2d 855 (2001).

As noted above, in this case, Plaintiffs’ substantive claims are rendered moot by the final

decision of the Fourth Circuit that declares Virginia’s Marriage Laws unconstitutional. By virtue

of the Fourth Circuit’s ruling, Plaintiffs have not received, and cannot receive, an enforceable

judgment or consent decree in this case. Even if Plaintiffs’ litigation in this case arguably

“operated as a catalyst for postlitigation changes in [the] defendants’ conduct,” Plaintiffs’ status

in this case cannot rise to the level of “prevailing party” for purposes of a claim for fees in this

case. Thus, even were a claim for fees sufficient to confer continuing jurisdiction over a case

where the substantive claims are moot (which Defendant Roberts denies, see infra), Plaintiffs’

claims for fees in this case fail as a matter of law.



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Plaintiffs’ entitlement to attorneys’ fees, if any, is limited to their entitlement to share, if

at all, in fees awarded to prevailing parties in the Bostic case. Plaintiffs implicitly concede as

much in their Motion to Lift Stay and Enter Judgment: Plaintiffs note that intervenors are

“generally eligible for an award of fees just as though they were an original party to the

litigation.” See Pls.’ Motion to Lift Stay and Enter Judgment, § III, p. 7, citing Montcalm Pub.

Corp. v. Commonwealth, 199 F.3d 167, 172 (4th Cir. 1999) (discussing availability of attorneys’

fees in the action in which the intervenor intervened). An argument that Plaintiffs’ active

participation in the Bostic case as intervenors led or contributed to the favorable result in that case

is irrelevant to the analysis of a claim for attorneys’ fees in this case. Plaintiffs’ participation and

costs associated with their intervention in Bostic are matters for consideration in that separate

lawsuit, and are wholly irrelevant to whether Plaintiffs are “prevailing parties” in this separate,

now moot, lawsuit.

There is no basis for a claim for attorneys’ fees in this case. Even if such a claim were

appropriate, the substantive claims of Plaintiffs and the class members were rendered moot by

the decision in Bostic. Accordingly, there is no basis for continuing jurisdiction in this case,

whether for entry of judgment on the substantive matters or for consideration of a claim for

attorneys’ fees.



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III. Plaintiffs’ status as representatives of a certified class does not alter themootness of the claims asserted in this case.

Although the Supreme Court has held that the claims of unnamed class members can,

under certain factual circumstances, proceed even after the claims of the named plaintiffs have

become moot, see Sosna v. Iowa, 419 U.S. 393, 95 S. Ct. 553, 42 L. Ed. 2d 532 (1975) and

Franks v. Bowman Transp. Co., Inc., 424 U.S. 747, 96 S. Ct. 1251, 47 L. Ed. 2d 444 (1976), there

is no “flat rule that the mere fact of certification of a class by a district court [is] sufficient to

require [a court] to decide the merits of the claims of unnamed class members [after] those of the

named parties have become moot.” Kremens v. Bartley, 431 U.S. 119, 130, 97 S. Ct. 1709, 52 L.

Ed. 2d 184 (1977) (remanded; proceedings continued after exclusion of class members whose

claims were mooted by changes in law). In both Sosna and Franks, the claims of the named class

members were mooted by a change of facts not also affecting the unnamed class members, rather

than a change in law.

As in Kremens, in this case mootness arises from a change in law that affects the rights

of more persons than simply the named plaintiffs. Therefore, the court must reconsider its

jurisdiction over the claims of the unnamed members, and in particular, evaluate those claims for

mootness in light of the change in law. Id. For claims of unnamed class members to continue even

after the claims of the named plaintiffs have become moot, a sufficient adversary relationship

between the remaining class members and the defendants must continue to exist, “to guarantee

‘that concrete adverseness which sharpens the presentation of issues upon which the court so

largely depends of illumination of difficult … questions.’” See Mink v. Univ. of Chicago, 460 F.



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Supp. 713, 723 (N.D. Ill. 1978) citing Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663

(1962). Where changes in law have mooted not only the named plaintiffs’ claims but also the

claims of a large number (or all) of the unnamed class members, the mooted claims of the

unnamed class members are also no longer within the jurisdiction of the court. Kremens, 431 U.S.

at 132, 97 S. Ct. at 1717, 52 L. Ed. 2d at 195.

Here, not only are the named Plaintiffs relieved of the unconstitutional application of

Virginia’s Marriage Laws against them; the final ruling in Bostic (declaring Virginia’s Marriage

Laws facially unconstitutional) relieves all unnamed class members of constitutional deprivations,

and of any further justiciable claims in this case. The class in this case is, rather than

“fragmented” by the change in law as was the class in Kremens, extinct due to the change in law:

the class’ extinction presents “an even more compelling circumstance for finding mootness” than

did the facts in Kremens. See Thomas v. Fielder, 884 F.2d 990 (7th Cir. 1989).

In Thomas, plaintiffs filed a class action challenging Wisconsin’s laws and administrative

procedures requiring pre-conviction suspension of drivers’ licenses for persons charged with

driving while impaired as being unconstitutional both facially and as applied. The district court

held that portions of the laws violated due process and equal protection, and both vacated the

plaintiffs’ pre-conviction suspensions and enjoined further enforcement of the provisions the

court found unconstitutional. The state immediately placed a moratorium on pre-conviction

suspensions, returned licenses to individuals who were under pre-conviction suspension, and

issued emergency rules consistent with the court’s ruling. Moreover, while the state’s appeal was

pending, the state legislature amended its laws to correct the portions that were held



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unconstitutional. Because of the changed law and the state’s reaction to the court’s ruling, each

of the named plaintiffs and class members would no longer be subjected to the unconstitutional

provisions. Moreover, the class would not gain any new members. Because the class was rendered

“extinct” by the changes in law, the Seventh Circuit held the constitutional claims of all plaintiffs

and class members moot, and dismissed the appeal accordingly.

As in Thomas, the claims of Plaintiffs and all class members are rendered moot, and the

class is made extinct by the Fourth Circuit’s ruling in Bostic. There is no lingering threat of

enforcement of Virginia’s Marriage Laws against any Plaintiff or any member of the class. In fact,

on the same day of the Supreme Court’s denial of certiorari in the Bostic case, Harris and Duff

applied for and received a marriage license from Defendant Roberts. See Exhibit B, ¶ 1. Further,

the Fourth Circuit enjoined enforcement of Virginia’s Marriage Laws throughout the

Commonwealth, and both the Commonwealth and Roberts have pledged to comply with the

Bostic decision as to any individuals who is or seeks to be married, irrespective of the applicants’

genders. See Exhibits A and B.

By virtue of the Fourth Circuit’s ruling in Bostic, there is no continuing risk of legal

deprivation to any class member. Accordingly, the fact that a class was previously certified in this

case does not convey upon this Court any further jurisdiction of the claims in this case: all claims

pending in this case are mooted by the decision in Bostic and this case must be dismissed for want

of subject matter jurisdiction.



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CONCLUSION

All claims, including those of Plaintiffs and the unnamed class members, are rendered

moot based on the Fourth Circuit’s declaration that the Marriage Laws are unconstitutional as a

result of the facial challenge raised in Bostic. This Court lacks jurisdiction to take any further

action in this case other than dismiss all claims in their entirety.

THOMAS E. ROBERTS,

By Counsel

By: /s/ Rosalie Pemberton Fessier Rosalie Pemberton FessierVSB # 39030Attorney for Defendant RobertsTIMBERLAKE, SMITH, THOMAS & MOSES, P. C.25 North Central AvenueP. O. Box 108Staunton, VA 24402-0108phone: 540/885-1517fax: 540/885-4537email: [email protected]



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mailto:[email protected]

CERTIFICATE OF SERVICE

I hereby certify that on October 29, 2014, I have electronically filed this document with

the Clerk of the Court using the CM/ECF system, which will send notification of such filing to

the following:

Rebecca K. Glenberg, EsquireVSB No. 44099AMERICAN CIVIL LIBERTIES UNION OF VIRGINIA FOUNDATION, INC.701 E. Franklin Street, Suite 1412Richmond, VA 23219

Gregory R. Nevins, EsquireLAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC.730 Peachtree Street, NE, Suite 1070Atlanta, GA 30308

Tara L. BorelliLAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC.3325 Wilshire Blvd., #1300Los Angeles, CA 90010

James D. Esseks, EsquireJoshua A. Block, EsquireAMERICAN CIVIL LIBERTIES UNION FOUNDATION

125 Broad Street, 18th FloorNew York, NY 10004

Amanda C. Goad, EsquireAMERICAN CIVIL LIBERTIES UNION FOUNDATION

1313 West 8th StreetLos Angeles, CA 90017

Paul M. Smith, EsquireLuke C. Platzer, EsquireMark P. Gaber, EsquireJENNER & BLOCK, LLP1099 New York Avenue, NW, Suite 900Washington, DC 20001-4412



540/885-1517fax: 540/885-4537

19


Catherine Crooks Hill, AAGOffice of the Attorney General of Virginia900 East Main StreetRichmond, VA 23219

Stuart A. Raphael, AAGOffice of the Attorney General of Virginia900 East Main StreetRichmond, VA 23219

Trevor S. Cox, AAGOffice of the Attorney General of Virginia900 East Main StreetRichmond, VA 23219

Rhodes B. Ritenour, AAGOffice of the Attorney General of Virginia900 East Main StreetRichmond, VA 23219

/s/ Rosalie Pemberton Fessier Rosalie Pemberton FessierVSB # 39030Attorney for Defendant Roberts TIMBERLAKE, SMITH, THOMAS & MOSES, P. C.25 North Central AvenueP. O. Box 108Staunton, VA 24402-0108phone: 540/885-1517fax: 540/885-4537email: [email protected]

F:\61\RVPF\DRM\Harris v. McDonnell\Pleadings\Memorandum.mootness 10-28-14.wpd



540/885-1517fax: 540/885-4537

20


mailto:[email protected]

10/16/2014 Governor - Governor of Virginia, Terry McAuliffe

(http://www.virginia.gov/)

E0-30: Marriage Equality in the Commonwealth of Virginia 10/7/2014

Importance of the Issue

The highest priority of state government should be to guarantee every person's right to live, learn, work,

and do business, regardless of their race, gender, creed or sexual orientation. This principle guided my first

act as Governor when I signed Executive Order #1 banning discrimination in the state workplace based on

sexual orientation or gender identity. This principle also guided the Virginia leaders, advocates and allies

who fought for marriage equality and won when the Supreme Court declined to review the Fourth Circuit

Court of Appeals' ruling in Bostic v. Schaefer. Same-sex marriage is now legal in Virginia. This is a historic

and long overdue moment for our Commonwealth and our country.

The decision has opened new doors to my administration's guiding principle of equality. An open and

welcoming environment is imperative to grow as a Commonwealth, and to build a new Virginia economy

that will attract vital businesses, innovative entrepreneurs, and thriving families.

On issues ranging from recognizing same-sex marriages to extending health care benefits to same-sex

spouses of state employees, state government is already well-prepared to implement this landmark

decision. My administration will act quickly to continue to bring all of our policies and practices into

compliance so that we can give married same-sex couples the full array of benefits they deserve.

Pursuant to the authority vested in me as the Chief Executive Officer of the Commonwealth, and pursuant

to Article V of the Constitution and the laws of Virginia, I hereby order, effective immediately, that all

entities in the executive branch, including agencies, authorities, commissions, departments, and all

institutions of higher education further evaluate all policies and take all necessary and appropriate legal

measures to comply with this decision.

In addition, the Director of the Department of Human Resource Management shall notify all state agencies

that employees whose same-sex marriage is recognized as legal in the Commonwealth, and who are

eligible, may enroll their spouse and eligible dependents in the health benefits program for state

employees within sixty (60) days of marriage.

A full and complete report of all appropriate measures will be reviewed by the Counselor to the Governor

and presented to the Governor on or before November 15, 2014.

Effective Date of the Executive Order

This Executive Order shall become effective upon its signing, and shall remain in full force and effect

unless amended or rescinded by further executive order. EXHIBIT

A https://governor.virginia.gov/executive-actions/executive-orders/eo-30/ 1/3

Case 5:13-cv-00077-MFU-RSB Document 143-1 Filed 10/29/14 Page 1 of 3 Pageid#: 2096

10/16/2014 Governor - Governor of Virginia, Terry McAuliffe

Given under my hand and under the Seal of the Commonwealth of Virginia this 7th day of October, 2014.

Terence R. McAuliffe, Governor

Attest: Secretary of the Commonwealth

Navigation

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https://governor.virginia.gov/executive-actions/executive-orders/eo-30/ 3/3


LAW OFFICES TIMBERLAKE, SMITH,

THOMAS & MOSES, P.C. STAUNTON, VIRGINIA

5401885-1517 fax: 540/885-4537

JOANNE HARRIS, et al,

Plaintiffs

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF VIRGINIA

Harrisonburg Division

v.

) ) ) ) ) ) ) ) )

Civil Action No. : 5: 13-cv-77

ROBERT F. McDONNELL, et al,

Defendants

DECLARATION OF THOMAS E. ROBERTS, CLERK OF COURT

I, Thomas E. Roberts, Clerk of the Circuit Court for the City of Staunton, do state and

declare as follows :

1. On October, 6, 2014, my office issued a marriage license to Joanne Harris and

Jessica Duff in accordance with the decision of the U.S . Court of Appeals for the Fourth

Circuit declaring Virginia's same-sex marriage ban unconstitutional and in compliance with

the injunction enjoining the Commonwealth from enforcing Va. Code §20-45.2 and §20-45.3

and Va. Const. Art.I,§ 15-A to the extent those laws prohibit "a person" from marrying

another person of the same gender. Bostic v. Schaefer, 760 F.3d 352 (41h Cir. July 28, 2014),

cert. denied 2014 U.S. LEXIS 6405 (Oct. 6, 2014), order of injunction found in 970 F. Supp.

2d 456, 485 (E.D. Va. Feb. 13, 2014). A certified copy of the license issued to Harris and

Duff is attached hereto as Exhibit A.

EXHIBIT

8


LAW OFFICES TIMBERLAKE, SMITH,

THOMAS & MOSES, P.C. STAUNTON, VIRGINIA

540/885-1517 fax: 540/885-4537

2. My office has issued marriage licenses to other same-sex couples since

October 6, 2014.

3. My continued compliance with the Bostic decision and injunction is not

discretionary, but is mandatory with respect to any "person" who comes before me seeking a

marriage license. I cannot deny a marriage license on the sole basis that the applicants are of

the same gender.

4. My continued compliance with the Bostic decision and injunction is consistent

with the instructions and forms I have received from Janet M. Rainey, State Registrar of Vital

Records, as well as the Executive Order issued on October 7, 2014, by Terence R. McAuliffe,

Governor of Virginia. Exec. Order No. E0-301• I know of no impediments to my continued

future compliance with the decision and injunction in Bostic.

I declare under penalty of perjury that the foregoing is true and correct.

Executed on October z.o 2014

1 https ://governor. virginia.gov I executive-actions/ executive-orders/ eo-30/

2


~ TO B~ AHAINED ey Cle" K o~ COURT

"'""' . ., .... ...,,. ..... -..---. . . . ...,, . ............. .__

APPLICATION FOR MARRIAGE LICENSE C4RCVrT COURT FOR C ITY OR COUNTY OF l ~,KS

STAUNTON NUMBER

140000155 1. ~UUNAME /!;"') (trlltldlr) f'oir) 1~1P•) I MAIDE;'N SURNAME (1Jd•/f..-•«J l'F'SEX Jlb. SOCIAl ~frUDf'l'V t.fO

J ANNE LAVERNE HARRIS 1 - . ~ . -'GE. 3 . OAT!'. Ofr BlfltTH (Month. Oay. YearJ 4 . PLACE. OP BIRTH (state or •vr• rpn t:;Q(,mlry_) __

39 Veafs 09061975 VIRGINIA S. RACE 6 . NUMBER OF (lirsr, SfX;Onc/. " re;.. } • 7. MARITAL STATUS (It prf/VkJusty

BLACK THrs MAi'1RIAGE FIRST ma1TkKJ}

wmow~oD D1vo,.,c!!oO

SPOUSE 8 . c.&..1'.<l"-"''ION &111menlary °' S<K:on dary C ollege 19•. U SUAL. RESIDENCE! STREET ~oo~ess OA RT. NUMBER

(Spedly only hight>st (0.-12) 12 t1-4 (Ks .. } 6 112 LAMBERT STREET grade t:ompHlltKJJ

90. GITY OR iOWN OF RESIOENCE ; 9<: County (II inr:Jependsrrl city. leave blank) , 9d STATE (OR FORE/ON COUNTRY/

STAUNTON : VIRGINIA , 0 , NAME OF FA THER 11 ' . FULL MAIOe:N NAME. OF MOTHER

JERRY GILBERT HARRIS, JR. LENNIS LAVERNE JONES

12 . ~UU NAM!: (/ir.n) (mw:tcllt} (latr) (s u/J<.11J ; MAI OEN SUr:'INAMC (Jf dJffet·enr) IW 5'X 11 2b. SOC IAi (.•191 tltfl"'I· :.,.

JESSICA MARIE DUFF : i 3. AGE 14 OAT f OF B IRT~ {Monm . Day Ytta r) 16. Pt.ACE OF BIRIB (:rt.ate °' fon.'1gn cuuntrf)

34 Yea,!l 10131979 VIRGINIA 16. RACE 17. NUMBE.R O P' (lirr;.t, second, otc.) 18. MAlllTAL STATUS (If prevlouSJy

WHITE THIS MARA1AOE FIRST

marrl..::t}

w1ooweoD 01v0Rco;o 0 SPOUSE \9. i;: ~.-v~AT ION Elemen1ary o r S&eondar'y' CoHegiJ 120'1. USUAi.. R ES IOGNCE: STREET ADDRESS OR ~l. NUU6E~

(SpM:1fy (Vl/y hignest ro-•~ • 12 Cf .4 QI 5•1 5 112 LAMBERT STREET gr•a. t:Of'T'Pf•t•<1J •Ob. Cl I y OR TOWN o~ MESluENCE' : 21k. COUNTY (ti 1ndepond~n f city . l~avn blan1') : 20d. ST ATE (OR FOAEtGN COUNTRY!

STAUNTON : VIRGINIA 2 1. NAME' OF FATHE~ I ~2 . FULL M-'IDEN NAME OF MOTHER

DANIEL HARRISON DUFF, JR. DONNA FAYE CAMPBELL

WE Hl!PU!8Y MAKI! APrt'UCATION TO THE CLERK OF T H E ABOVE-NAMED COURT FOR A MAAAIAOE LICENSE ANO SOLEMNLY SWi.AFil THAT ALL Of TH: STATlfMENTS ABOVE ARE TRUE. w; FVRTHl;R MAKS C)ATH THAT NEITHI;~ OF THf; PAfiTI~$ NAMED ABOVE WHO ARE TO BE MA~RIEO IS LfG,Jo.LLY INCOMPETENT, .C.UBREHI~&BB.1£C: . NOR ARE WE ~ELATED TO EAC H OTHER TO A PROH IBlTED DEOREE. Chapter 3 , Tit/a 20, Codo ol Vllgini:J

we FUBTHE.aJJ.l:IJ).e:JllUAND .. JliAT. WlLLFULLY 4ND .KNOWll'HlL.Y .. MAKIN.<l . !!otiY_~ALSe: .. GIAT.EMl:.IU: .. !lB ... 6ll.l!.E.l.Xll:l~.LW:Oll -~-~ ·~ - -"

SuEISCR •SEP AND S\/\IOAN TO BEFORE ME. T HIS ____ G~~-- CAY op ___ _,O::__,,e:.=-·.:c-/-,...:~::."..:.:6.=e:....::r ____________ .o It./

REMARKS· CLERK OF COURT OR ~TY

.:

- ·=-- - -, -- -.

-~


5:13-cv-00077 #143

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