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Sides file opposing ideas to end gay-marriage suit

by Linda Satter | July 9, 2015 at 3:16 a.m.

Both sides of Arkansas' federal same-sex marriage dispute have submitted opposing views on how a pending appeal should be disposed of, now that the issue has been decided nationally.

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On June 30, the 8th U.S. Circuit Court of Appeals sought direction on how to proceed, in light of a June 26 U.S. Supreme Court ruling legalizing same-sex marriage across the country, from attorneys who successfully challenged Arkansas' bans on such marriages and those who appealed on behalf of the state to the St. Louis-based appeals court.

A three-judge panel at the 8th Circuit was scheduled to hear oral arguments in the Arkansas appeal, in conjunction with similar appeals from Missouri, South Dakota and Nebraska, May 12 in Omaha. But with the high court's decision looming, the 8th Circuit canceled the arguments in late April, holding the lower-court cases in abeyance until the Supreme Court ruled.

On Wednesday -- the deadline for attorneys in Arkansas to respond -- Assistant Attorney General Colin Jorgensen filed a seven-page reply suggesting that because the appeal is now moot, the 8th Circuit should vacate U.S. District Judge Kristine Baker's Nov. 25 order finding the state bans unconstitutional and remand the case to Baker's Little Rock office with instructions that she dismiss it.

Little Rock attorney Jack Wagoner III, who represented the successful plaintiffs before Baker, responded by letter July 2 that the 8th Circuit should affirm Baker's ruling.

Wagoner argued that "a dismissal of the appeal is not appropriate. Technically, the Supreme Court's decision in Obergefell only affected the rights of the parties to that case directly. But, since this appeal presents the same issues as the Supreme Court faced in Obergefell, the results should be the same and the trial court's decision ... should be affirmed based on the Obergefell decision."

Wagoner added, "Given that Obergefell makes the result in this case a foregone conclusion, I see no need for oral argument. Plaintiffs waive any request for oral argument provided all other parties do the same."

Baker stayed her ruling on the day she issued it, knowing that an appeal was coming. She hasn't lifted the stay, but a local constitutional law expert, John DiPippa, said same-sex couples in all states were granted the right to marry on June 26 regardless of whether judges technically lift their stays. It isn't clear if Baker could lift the stay while the case is in the 8th Circuit's jurisdiction.

Jorgensen's suggestion to the 8th Circuit notes, "Article III of the U.S. Constitution limits the jurisdiction of the federal courts to actual, ongoing cases and controversies." He cited a 1993 8th Circuit ruling noting that sometimes, due to the passage of time or a change in circumstance, the issues in a case no longer remain "live," or the parties "will no longer have a legally cognizable interest in the outcome of the litigation."

"When such a change prevents a federal court from granting effective relief, the case becomes moot. Mootness therefore acts as a jurisdictional bar, and must be considered before reaching the merits of the case," he wrote.

Jorgensen cited a phrase from a 1950 U.S. Supreme Court ruling saying its "established practice" in dealing with a civil case that 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." Among other cases he cited was a 1994 8th Circuit ruling that said in part, "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."

In response to the U.S. Supreme Court ruling on the morning of June 26, the Arkansas Supreme Court entered an order at 5:10 p.m. that day, tersely dismissing an appeal of Pulaski County Circuit Judge Chris Piazza's May 9, 2014, ruling that found Arkansas' bans violated both the state and federal constitutions. Baker's case focused only on the U.S. Constitution.

The 8th Circuit hasn't indicated when it will decide how to dispose of the now-moot appeal.

Metro on 07/09/2015

Print Headline: Sides file opposing ideas to end gay-marriage suit

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