5:13-cv-00077 #143

Case 5:13-cv-00077-MFU-RSB Document 143 Filed 10/29/14 Page 1 of 20 Pageid#: 2076
UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF VIRGINIA
Harrisonburg Division
JOANNE HARRIS, et al,
Plaintiffs
v.
JANET M. RAINEY, et al,
Defendants
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Civil Action No.: 5:13-cv-77
DEFENDANT ROBERTS MEMORANDUM

IN 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 (Virginias Marriage Laws or Marriage Laws) unconstitutionally
deprive Plaintiffs of their rights to due process and equal protection guaranteed by the Fourteenth
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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 Virginias 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 Virginias 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 Virginias Marriage Laws facially
unconstitutional. See Bostic, No. 13-395, Document 139, filed 2/24/14.
The proponents of Virginias 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.
No claims for monetary damages have been made, or could be made as such claims are
barred by the Eleventh Amendment.
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The Fourth Circuit issued an opinion on July 28, 2014, affirming the Eastern Districts
holding that Virginias 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 Circuits mandate, Governor McAuliffe issued an executive
order declaring, among other things, that all policies and practices will comply with the Fourth
Circuits ruling. See Exec. Order No. 30, available at https://governor.virginia.gov/executiveactions/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 samesex 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 Courts 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
Circuits affirmance of the District Court for the Eastern District of Virginias 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 Virginias 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-orcontroversy 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 Socy 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 Virginias 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 Circuits 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
Virginias 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 Virginias 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 Courts 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 Courts 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 Georgias 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
Georgias 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), Natl Advertising Co. v. City of Miami, 402 F.3d 1329
(11th Cir. 2005), Butler v. v. Ala. Judicial Inquiry Commn, 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 Virginias
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 states laws. Both the Eastern District and the Fourth Circuit
concluded Virginias 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
Circuits ruling that Virginias Marriage Laws are unconstitutional in Bostic renders moot
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Plaintiffs ongoing challenge to Virginias Marriage Laws. See Bostic, 760 F.3d at 384
(specifically affirming grant of summary judgment for plaintiffs and injunction of enforcement
of Virginias 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 Circuits 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 Virginias 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 Virginias 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 Districts favorable ruling
on the Bostic plaintiffs facial challenge to Virginias 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 Virginias
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 Virginias 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 enter

judgment 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 postlitigation 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. Dept 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 Circuits rejection of the catalyst
theory. Buckhannon Board and Care Home, Inc. v. West Va. Dept 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 Virginias Marriage Laws unconstitutional. By virtue
of the Fourth Circuits 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 the

mootness 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
Virginias Marriage Laws against them; the final ruling in Bostic (declaring Virginias 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 Wisconsins 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 courts ruling. Moreover, while the states 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 states reaction to the courts 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 Circuits ruling in Bostic. There is no lingering threat of
enforcement of Virginias Marriage Laws against any Plaintiff or any member of the class. In fact,
on the same day of the Supreme Courts 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 Virginias 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 Circuits 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 Circuits 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 Fessier
VSB # 39030
Attorney for Defendant Roberts
TIMBERLAKE, SMITH, THOMAS & MOSES, P. C.
25 North Central Avenue
P. O. Box 108
Staunton, VA 24402-0108
phone: 540/885-1517
fax:
540/885-4537
email: rfessier@tstm.com
LAW OFFICES
TIMBERLAKE, SMITH,
STAUNTON, VIRGINIA
540/885-1517
fax: 540/885-4537
18
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, Esquire
VSB No. 44099
AMERICAN CIVIL LIBERTIES UNION OF VIRGINIA FOUNDATION, INC.
701 E. Franklin Street, Suite 1412
Richmond, VA 23219
Gregory R. Nevins, Esquire
LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC.
730 Peachtree Street, NE, Suite 1070
Atlanta, GA 30308
Tara L. Borelli
LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC.
3325 Wilshire Blvd., #1300
Los Angeles, CA 90010
James D. Esseks, Esquire
Joshua A. Block, Esquire
AMERICAN CIVIL LIBERTIES UNION FOUNDATION
125 Broad Street, 18th Floor
New York, NY 10004
Amanda C. Goad, Esquire
AMERICAN CIVIL LIBERTIES UNION FOUNDATION
1313 West 8th Street
Los Angeles, CA 90017
Paul M. Smith, Esquire
Luke C. Platzer, Esquire
Mark P. Gaber, Esquire
JENNER & BLOCK, LLP
1099 New York Avenue, NW, Suite 900
Washington, DC 20001-4412
LAW OFFICES
TIMBERLAKE, SMITH,
STAUNTON, VIRGINIA
540/885-1517
fax: 540/885-4537
19
Catherine Crooks Hill, AAG

Office of the Attorney General of Virginia
900 East Main Street
Richmond, VA 23219
Stuart A. Raphael, AAG
Richmond, VA 23219
Trevor S. Cox, AAG
Richmond, VA 23219
Rhodes B. Ritenour, AAG
Richmond, VA 23219
/s/ Rosalie Pemberton Fessier

Rosalie Pemberton Fessier
VSB # 39030
Attorney for Defendant Roberts
TIMBERLAKE, SMITH, THOMAS & MOSES, P. C.
25 North Central Avenue
P. O. Box 108
Staunton, VA 24402-0108
phone: 540/885-1517
fax:
540/885-4537
email: rfessier@tstm.com
F:\61\RVPF\DRM\Harris v. McDonnell\Pleadings\Memorandum.mootness 10-28-14.wpd
LAW OFFICES
TIMBERLAKE, SMITH,
STAUNTON, VIRGINIA
540/885-1517
fax: 540/885-4537
20
10/16/2014
Governor - Governor of Virginia, Terry McAuliffe
Case 5:13-cv-00077-MFU-RSB Document 143-1 Filed 10/29/14 Page 1 of 3 Pageid#: 2096
(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
10/16/2014

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
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3/3
UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF VIRGINIA
Harrisonburg Division
JOANNE HARRIS, et al,
Plaintiffs
v.
ROBERT F. McDONNELL, et al,
Defendants
)
)
)
)
)
)
)
)
)
Civil Action No. : 5: 13-cv-77
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 .
LAW OFFICES
TIMBERLAKE, SMITH,
STAUNTON , VIRGINIA
5401885-1517
fax: 540/885-4537
EXHIBIT
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. E0-30 1 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
https ://governor. virginia.govI executive-actions/executive-orders/ eo-30/
LAW OFFICES
TIMBERLAKE, SMITH,
STAUNTON, VIRGINIA
540/885-1517
fax: 540/885-4537
..... ..... ... .
.__
"'""' ., 143-2
...,,.
-..---.
...,, .............Page
Case 5:13-cv-00077-MFU-RSB Document
Filed 10/29/14
3 of 3 Pageid#: 2101
APPLICATION FOR MARRIAGE LICENSE
~
AHAINED ey
Cle" Ko~ COURT
TO
C4RCVrT COURT FOR C ITY OR COUNTY OF
B~
l NUMBER
~,KS
STAUNTON
1.
~UUNAME
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ANNE
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LAVERNE
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U SUAL. RESI DENCE ! STREET ~oo~ess OA RT. NUMBER
112 LAMBERT STREET
County (II inr:Jependsrrl city. leave blank)
11 '. FULL MAIOe:N NAME. OF MOTHER
, 0 , NAME OF F A THER
JERRY GILBERT HARRIS, JR.

NAM!:
(/ir.n)
LENNIS LAVERNE JONES
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(latr)
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17. NU MBE. R O P'

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: VIRGINIA
STAUNTON
12 . ~UU
7. MARITAL STATUS (It prf/VkJusty

ma1TkKJ}
FIRST
C ollege
&111menlary
S<K:on dary
(0.-12)
VIRGINIA
~2 . FULL M-'IDEN NAME OF MOTHER
FATHE~
DANIEL HARRISON DUFF, JR.
DONNA FAYE CAMPBELL
WE Hl!PU!8Y MAKI! APrt'UCATION TO THE CLERK OF T H E ABOVE- NAMED COU RT FOR A MAAAIAOE LICENSE ANO SOLEMNLY SWi.AFil THAT ALL Of TH:
STATlfMENTS ABOVE ARE TRUE . w; FVRTHl;R MAKS C)ATH TH AT NEITHI;~ OF THf; PAfiTI~$ NAMED ABOVE WHO ARE TO BE MA~RIEO IS LfG,Jo.L LY
INCOMPETENT, .C.UBREHI~&BB.1C: . NOR ARE WE ~ELATED TO EAC H OTHER TO A PROH IBlTED DEOREE. Cha pter 3 , Tit/a 20, Codo ol Vllgini:J
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VIRGINIA
(lirsr, SfX;Onc/. " re;.. }
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_ _ _ _ _ _ ______ .o It./
REMARKS
CLERK OF COURT OR ~TY
.:
- =--
--
--
-.
-~

5:13-cv-00077 #143

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Case 5:13-cv-00077-MFU-RSB Document 143 Filed 10/29/14 Page 1 of 20 Pageid#: 2076

UNITED STATES DISTRICT COURT

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

DEFENDANT ROBERTS MEMORANDUM

Case 5:13-cv-00077-MFU-RSB Document 143 Filed 10/29/14 Page 2 of 20 Pageid#: 2077

Case 5:13-cv-00077-MFU-RSB Document 143 Filed 10/29/14 Page 3 of 20 Pageid#: 2078

Case 5:13-cv-00077-MFU-RSB Document 143 Filed 10/29/14 Page 4 of 20 Pageid#: 2079

Plaintiffs claims are moot.

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

Case 5:13-cv-00077-MFU-RSB Document 143 Filed 10/29/14 Page 5 of 20 Pageid#: 2080

Case 5:13-cv-00077-MFU-RSB Document 143 Filed 10/29/14 Page 6 of 20 Pageid#: 2081

Case 5:13-cv-00077-MFU-RSB Document 143 Filed 10/29/14 Page 7 of 20 Pageid#: 2082

Case 5:13-cv-00077-MFU-RSB Document 143 Filed 10/29/14 Page 8 of 20 Pageid#: 2083

Case 5:13-cv-00077-MFU-RSB Document 143 Filed 10/29/14 Page 9 of 20 Pageid#: 2084

Case 5:13-cv-00077-MFU-RSB Document 143 Filed 10/29/14 Page 10 of 20 Pageid#: 2085

Case 5:13-cv-00077-MFU-RSB Document 143 Filed 10/29/14 Page 11 of 20 Pageid#: 2086

Plaintiffs assertion of a right to attorneys fees is neither reason to enter

Case 5:13-cv-00077-MFU-RSB Document 143 Filed 10/29/14 Page 12 of 20 Pageid#: 2087

Case 5:13-cv-00077-MFU-RSB Document 143 Filed 10/29/14 Page 13 of 20 Pageid#: 2088

Case 5:13-cv-00077-MFU-RSB Document 143 Filed 10/29/14 Page 14 of 20 Pageid#: 2089

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

Case 5:13-cv-00077-MFU-RSB Document 143 Filed 10/29/14 Page 15 of 20 Pageid#: 2090

Plaintiffs status as representatives of a certified class does not alter the

Case 5:13-cv-00077-MFU-RSB Document 143 Filed 10/29/14 Page 16 of 20 Pageid#: 2091

Case 5:13-cv-00077-MFU-RSB Document 143 Filed 10/29/14 Page 17 of 20 Pageid#: 2092

Case 5:13-cv-00077-MFU-RSB Document 143 Filed 10/29/14 Page 18 of 20 Pageid#: 2093

/s/ Rosalie Pemberton Fessier

Case 5:13-cv-00077-MFU-RSB Document 143 Filed 10/29/14 Page 19 of 20 Pageid#: 2094

Case 5:13-cv-00077-MFU-RSB Document 143 Filed 10/29/14 Page 20 of 20 Pageid#: 2095

Catherine Crooks Hill, AAG

/s/ Rosalie Pemberton Fessier

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

Governor - Governor of Virginia, Terry McAuliffe

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

E0-30: Marriage Equality in the Commonwealth of Virginia

Importance of the Issue

Effective Date of the Executive Order

Governor - Governor of Virginia, Terry McAuliffe

Case 5:13-cv-00077-MFU-RSB Document 143-1 Filed 10/29/14 Page 2 of 3 Pageid#: 2097

Terence R. McAuliffe, Governor

Governor - Governor of Virginia, Terry McAuliffe

Case 5:13-cv-00077-MFU-RSB Document 143-1 Filed 10/29/14 Page 3 of 3 Pageid#: 2098

Case 5:13-cv-00077-MFU-RSB Document 143-2 Filed 10/29/14 Page 1 of 3 Pageid#: 2099

UNITED STATES DISTRICT COURT

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

DECLARATION OF THOMAS E. ROBERTS, CLERK OF COURT

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

Case 5:13-cv-00077-MFU-RSB Document 143-2 Filed 10/29/14 Page 2 of 3 Pageid#: 2100

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

My continued compliance with the Bostic decision and injunction is not

My continued compliance with the Bostic decision and injunction is consistent

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

..... ..... ... .

C4RCVrT COURT FOR C ITY OR COUNTY OF

90. GITY OR iOWN OF RESIOENCE

U SUAL. RESI DENCE ! STREET ~oo~ess OA RT. NUMBER

112 LAMBERT STREET

County (II inr:Jependsrrl city. leave blank)

11 '. FULL MAIOe:N NAME. OF MOTHER

JERRY GILBERT HARRIS, JR.

LENNIS LAVERNE JONES

i;: ~.-v~AT ION

( SpM:1fy (Vl/y hignest

16. Pt.ACE OF BIRIB (:rt.ate