United States District Court For The District of Idaho

Case 1:14-cv-00273-REB Document 19 Filed 10/29/14 Page 1 of 4
Deborah A. Ferguson, ISB No. 5333

Ferguson Durham, PLLC
202 N. 9th Street, Suite 401 C
Boise, Idaho 83702
Tel.: (208) 484-2253
d@fergusonlawmediation.com
Craig Harrison Durham, ISB No. 6428
910 W. Main St., Suite 328
Boise, ID 83702
Tel.: (208) 345-5183
craig@chdlawoffice.com
Shannon P. Minter
Christopher F. Stoll
National Center for Lesbian Rights
870 Market Street, Suite 370
San Francisco, California 94102
Tel.: (415) 392-6257
sminter@nclrights.org
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
MADELYNN LEE TAYLOR,
Plaintiff,
Case No. 14-cv-00273- REB
v.
DAVID E. BRAUSELL, as Administrator of
the Idaho Division of Veterans Services, in
his official capacity,
Defendant.
PLAINTIFFS MOTION FOR

SUMMARY JUDGMENT
COMES NOW Plaintiff Madelynn Lee Taylor, by and through the undersigned counsel,
and moves the Court for an order granting summary judgment in Plaintiffs favor and against
Defendant on all counts in Plaintiffs Amended Complaint for Declaratory and Injunctive Relief.
There is no genuine dispute as to any material fact, and Plaintiff is entitled to judgment as a
matter of law on all claims raised in her Amended Complaint. Plaintiff accordingly requests that
the Court enter judgment as follows:
A. Directing Defendant David E. Brasuell, as Administrator of the Idaho Division of
Veterans Services, in his official capacity, upon Plaintiffs death, to inter her remains
with her deceased spouses remains together in a columbarium niche at the Idaho State
Veterans Cemetery;
B. The injunctive relief requested in this action is sought against Defendant; against
Defendants officers, employees, and agents; and against all persons acting in active
concert or participation with Defendant, or under Defendants supervision, direction, or
control; and
C. Awarding Plaintiff her costs, expenses, and reasonable attorneys fees pursuant to, inter
alia, 42 U.S.C. 1988 and other applicable laws;
D. Granting such other and further relief as the Court deems just and proper.
This motion is brought pursuant to Rule 56 of the Federal Rules of Civil Procedure. A
Memorandum in Support of Plaintiffs Motion for Summary Judgment is filed concurrently,
along with the Declaration of Madelynn Lee Taylor and Plaintiffs Statement of Unopposed
Materials Facts in Support of Summary Judgment.
DATED this 28th day of October 2014.

______________/s/____________
Shannon P. Minter (pro hac vice)
Christopher F. Stoll (pro hac vice)
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 28th day of October 2014, I filed the foregoing:
PLAINTIFFS MOTION FOR SUMMARY JUDGMENT, a MEMORANDUM IN SUPPORT
OF PLAINTIFFS MOTION FOR SUMMARY JUDGMENT, the DECLARATION OF
MADELYNN LEE TAYLOR and PLAINTIFFS STATEMENT OF UNOPPOSED
MATERIAL FACTS electronically through the CM/ECF system, which caused the following
parties or counsel to be served by electronic means, as more fully reflected on the Notice of
Electronic Filing:
Attorney for Defendant
W. Scott Zanzig
scott.zanzig@ag.idaho.gov
______/s/_________
Deborah A. Ferguson
Case 1:14-cv-00273-REB Document 19-1 Filed 10/29/14 Page 1 of 7

Boise, Idaho 83702
Tel.: (208) 484-2253
Boise, ID 83702
Tel.: (208) 345-5183
Shannon P. Minter
Tel.: (415) 392-6257
Plaintiff,
v.
DAVID E. BRASUELL, as Administrator of
Defendant.
MEMORANDUM IN SUPPORT
OF PLANTIFFS
MOTION FOR SUMMARY
JUDGMENT
Plaintiff Madelynn Lee Taylor (Ms. Taylor or Plaintiff), moves the Court for summary
judgment under Fed. R. Civ. P. 56, to grant the relief she seeks. There is no genuine dispute of any
material fact in this case and she is entitled to judgment as a matter of law.
I.
INTRODUCTION
Ms. Taylor is a 74 year old veteran of the United States Navy, who brought this action for a
permanent injunction to honor her burial wishes and those of her deceased spouse pursuant to 42
U.S.C. 1983. Specifically, Ms. Taylor asked the Court to enter judgment directing Defendant
David E. Brasuell as Administrator of the Idaho Division of Veterans Services (Idaho Veterans
Services), to place her deceased spouses cremated remains in a columbarium niche at the Idaho
State Veterans Cemetery, and upon Plaintiffs death, to have her remains placed in the same niche.
II.
BACKGROUND
Ms. Taylor filed the Complaint on July 7, 2014 after her burial request was denied because
Idaho Veterans Services did not recognize her valid and lawful marriage to Ms. Jean Mixner. (Dkt.
No. 1). A copy of their marriage certificate is attached as Exhibit A to the Complaint, (Dkt. No.1,
Ex. A). Later, on September 11, 2014 an Amended Complaint was filed. (Dkt. No. 13, Ex. A).
The Ninth Circuits recent ruling in Latta v. Otter, WL 4977682 (9th Cir. Oct. 7, 2014) held
that Idahos refusal to allow same-sex couples to marry or to recognize their valid out-of-state
marriages is unconstitutional, as it violates the Equal Protection Clause of the Fourteenth
Amendment to the United States Constitution. The Ninth Circuit also vacated its order that had
stayed Chief Magistrate Judge Dales Judgment enjoining the State of Idaho, and any of its
political subdivisions, from enforcing Article III, 28 of the Idaho Constitution, Idaho Code
32-201 and 32-209, and any other laws or regulations to the extent they do not recognize samesex marriages validly contracted outside Idaho or prohibit otherwise qualified same-sex couples
2
from marrying in Idaho. See Latta et al. v. Otter et al., District Court Case No. 1:13-cv-482-CWD
(Dkt. 101). Latta compels the result in this case and makes clear that Ms. Taylor is entitled to a
judgment requiring Defendant to recognize her valid and lawful marriage to Ms. Mixner and to
allow the couple to be interred together.
In light of Latta, Idaho Veterans Services has taken certain actions to honor Ms. Taylors
burial wishes for her deceased spouse. The placement of her deceased spouses cremated remains
in a columbarium niche at the Idaho State Veterans Cemetery occurred on October 28, 2014.
These plans are a first step toward the relief sought in this action, but they do not provide complete
relief to Ms. Taylor. For this reason, Ms. Taylor is entitled to a judgment and injunction to ensure
that her rights are protected now and in the future and that the full relief sought is granted.
III. DISCUSSION
A. Standard of Law
Summary judgment is appropriate where there is no genuine issue as to any material fact
exists and [ ] the moving party is entitled to judgment as a matter of law. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247 (1986); see also Fed. R. Civ. P. 56(c). The moving party has the
burden of establishing the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). Where the record taken as a whole could not lead a rational trier of
fact to find for the non-moving party, there is no genuine issue for trial. Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation and internal quotation marks
omitted).
Here, there are no disputes regarding any material fact in connection with Ms. Taylors
motion for summary judgment, and she is entitled to judgment as a matter of law. Indeed, the
Defendant has not even filed a responsive pleading or an appropriate motion to either the
Complaint or the Amended Complaint. Under Rule 15(a)(3) of the Federal Rules of Civil
Procedure, the time to do so has long past. Likewise, under Rule 12(h)(1)(B) of the Federal Rules
of Civil Procedure, the Defendant has waived preserving and presenting defenses to the
Complaint, as it failed to do so within the time set forth to answer or otherwise respond.
Accordingly, the Court must take the facts plead in the Amended Complaint as true. Fed. R. Civ.
P. 8(b)(6).
Moreover, the undisputed material facts have been set out in Plaintiffs Statement of
Undisputed Material Facts, which is filed with this Memorandum, along with by the sworn
Declaration of Madelynn Lee Taylor. The parties also agreed in the litigation plan filed with the
Court, the matter is on a legal track and discovery is unnecessary. (Dkt. No. 9-1). All that
remains is a question of law. For the reasons stated below, Ms. Taylor is entitled to summary
judgment.
B. Ms. Taylor Is Entitled to Judgment as a Matter of Law
The Ninth Circuits ruling in Latta, that Idahos refusal to allow same-sex couples to marry
or to respect the existing marriages of same-sex couples violates the Fourteenth Amendment,
compels the result in this action. Indeed, in response to that ruling, Defendant has acknowledged
that the law required him to place Ms. Taylors deceased spouses cremated remains in a
columbarium niche at the Idaho State Veterans Cemetery.
Although Defendant has now taken certain steps toward granting Ms. Taylor the relief that
she seeks, that does not deprive Ms. Taylor of her right to seek a final judgment in this case, nor
does it deprive the Court of the jurisdiction and duty to enter a final judgment. See, e.g.,
Buckhannon Bd. & Care Home, Inc. v. W. Va. Dept of Health and Human Res., 532 U.S. 598, 609
(2001) ([A] defendants voluntary cessation of a challenged practice does not deprive a federal
court of its power to determine the legality of the practice unless it is absolutely clear that the
allegedly wrongful behavior could not reasonably be expected to recur.) Ms. Taylor is entitled to
a judgment to determine the parties rights and obligations and to prevent Defendant from changing
course in the future and repeating his unconstitutional rejection of her burial request. See, e.g., N.E.
Fla. Chapter of Assn Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656 (1993)
(holding that the defendants voluntary repeal of minority set-aside program did not moot claim for
declaratory and injunctive relief).
Only a final order granting summary judgment can protect Ms. Taylors interests and
constitutional rights and insure that upon her death, her remains are in fact interred with her spouse.
This fact has understandably caused Ms. Taylor considerable concern. See Declaration of Ms.
Taylor, 7. Without a court order or judgment, Ms. Taylors estate will have no enforceable right
to ensure that the Idaho Veterans Service will be required to inter Ms. Taylors remains with her
spouse upon her death. Id. Although the injunction in Latta also requires Defendant to recognize
Ms. Taylors marriage, Ms. Taylor is not a party in that case and therefore lacks standing to enforce
the Latta injunction. Only a final judgment in this action will ensure that Ms. Taylors burial
wishes are, in fact, granted.
C. Time is of the Essence
Ms. Taylor has with several significant health challenges, and time is of the essence in
securing Ms. Taylor the relief to which she is entitled. Declaration of Ms. Taylor, 4. She suffers
from cardiovascular disease, and recently underwent surgery at a Veterans Administration hospital
to replace a stent in her neck. Id. She also chronic obstructive pulmonary disease, a serious
respiratory condition. Id. Her ability to walk more than short distances is limited, due to an injury
to her left leg up to her knee, and requires her to use a cane, walker or motorized scooter. Id. Ms.
Taylors serious chronic health issues weigh heavily in favor of the Courts speedy issuance of a
final injunction order and judgment in her favor.
VI. CONCLUSION
The facts before the Court are uncontested by the Defendant. Latta plainly dictates
the result in this case. Only a judgment and permanent injunction can provide complete and
enforceable relief in this case. The Courts order can ensure that Ms. Taylors burial wishes, as a
military veteran, will be respected and make certain she will be interred alongside her lawful
spouse in the Idaho State Veterans Cemetery upon her death. In light of her significant health
conditions, Plaintiff further respectfully requests that the Court grant her motion for summary
judgment and enter a final order as soon as possible.
DATED: October 28, 2014
Respectfully submitted,
/s/
Boise, Idaho 83702
Tel.: (208) 484-2253
910 W. Main Street, Suite 328
Boise, Idaho 83702
Tel.: (208) 345-5183
6

Tel.: (415) 392-6257
cstoll@nclrights.org
Attorneys for Plaintiff

Boise, Idaho 83702
Tel.: (208) 484-2253
Boise, ID 83702
Tel.: (208) 345-5183
Shannon P. Minter
Tel.: (415) 392-6257
Plaintiff,
v.
DAVID E. BRAUSELL, as Administrator of
Defendant.
PLAINTIFFS STATEMENT
OF UNOPPOSED MATERIAL
FACTS IN SUPPORT OF
MOTION FOR SUMMARY
JUDGMENT
Pursuant to Local Civil Rule 7.1 (b)(1), Plaintiff submits the following separate statement
of material facts, in support of her motion for summary judgment.
1.
Madelynn Taylor is a veteran of the United States Navy. (Declar. of Madelynn
Taylor, 2). At age 18, she joined the United States Navy, where she was first trained in
electronics maintenance and later became a trainer in aviation physiology, teaching service
members about the physiological effects of flight. Id. After six years in the Navy, a fellow
service member told investigators that she was a lesbian. Id. Under the military policy
concerning gay and lesbian service members that was in effect in the early 1960s, she was given
the choice of facing a court martial or agreeing to an immediate administrative discharge. Id.
She agreed to the administrative discharge, to avoid a court martial. Id. In 1979, this injustice
was corrected to reflect her honorable discharge, with full military benefits. Id.
2.
Madelynn Taylor married her longtime partner, Ms. Jean Mixner, in California in
2008. (Declar. of Madelynn Taylor, 3). A copy of their marriage certificate is attached as
Exhibit A to the Amended Complaint. After a long and painful struggle with emphysema, her
spouse Jean died in 2012, while they were living in Arizona. Id. Following Jeans death, Ms.
Taylor returned to Idaho, which had been her home for most of her career and where they had
lived together for much of their retirement. Id. Ms. Taylor brought Jeans cremated ashes with
her to Idaho, as it was Jeans request and desire, as well as Ms. Taylors intention, to have their
ashes interred together upon her death. Id.
3.
Since Ms. Taylors return to Idaho, she has dealt with several serious and chronic
health challenges. (Declar. of Madelynn Taylor, 4). She suffers from cardiovascular disease,
and recently underwent surgery at a Veterans Administration hospital to replace a stent in her
neck. Id. She also has chronic obstructive pulmonary disease, a serious respiratory condition.
Id. Her ability to walk more than short distances is limited, due to an injury to her left leg up to
the knee, which requires her to use a cane, walker or motorized scooter for mobility. Id.
4.
In December 2013, Ms. Taylor went to the Idaho State Veterans Cemetery to
make advance arrangements for interment of her ashes, as well Jeans, together in a single stone
columbarium. (Declar. of Madelynn Taylor, 5). The Idaho State Veterans Cemetery routinely
allows veterans to be buried with their spouses. Id. Despite providing evidence of a valid
honorable discharge from the Navy, the cemetery staff refused to provide the requested
reservation for Jeans ashes to be interred along with Ms. Taylors. Id. The sole reason for this
refusal was Idahos laws prohibiting the recognition of marriages of same-sex couples. Id. The
Idaho Division of Veterans Services denial of her application letter is attached as Exhibit D to
the Amended Complaint. Id.
5.
On October 7, 2014, the Ninth Circuit found that Idahos same sex marriage ban
unconstitutional, as it violates the Equal Protection Clause of the Fourteenth Amendment to the
United States Constitution. Latta v. Otter, --- F.Supp.2d---, 2014 WL 1909999 (D. Idaho May
13, 2013) affd, --- F.3d ---, 2014 WL 4977682 (9th Cir. October 7, 2014). On October 15, 2014
the stay of the district courts injunction was lifted.
6.
In the wake of the Ninth Circuits lifting of the stay on the permanent injunction
in the Latta, Idaho officials must now recognize Ms. Taylors marriage to Jean. (Declar. of
Madelynn Taylor, 6). Ms. Taylor met with the personnel at the Idaho Division of Veterans
Services on October 22, 2014 to schedule Jeans interment. Id. Placement of her spouse Jeans
cremated remains in a columbarium niche at the Idaho State Veterans Cemetery occurred on
October 28, 2014. Id.
7.
Ms. Taylor is a 74 year old with significant chronic health issues that may
decrease her lifespan. (Declar. of Madelynn Taylor, 7). Ms. Taylor is deeply concerned, and
seeks the assurance of a final judgment order so that upon her death, her burial wishes as a
veteran of the United States Navy will be honored, and her remains interred with her spouse, and
not subject to further change by the Idaho Veterans Services or State policy. Id.
DATED this 28th day of October 2014.

______________/s/____________

Boise, Idaho 83702
Tel.: (208) 484-2253
Boise, ID 83702
Tel.: (208) 345-5183
Shannon P. Minter
Tel.: (415) 392-6257
Plaintiff,
v.
DAVID E. BRASUELL, as Administrator of
Defendant.

DECLARATION OF
PLAINTIFF
MADELYNN LEE TAYLOR
IN SUPPORT OF PLANTIFFS
MOTION FOR SUMMARY
JUDGMENT
I, Madelynn Lee Taylor, hereby declare and state as follows:

1.
I am the Plaintiff in this action. I am 74 years old and live in Meridian,
Idaho. I have personal knowledge of the matters stated in the declaration and could and
would competently testify to these facts.
2.
I am a veteran of the United States Navy. At age 18, I joined the United
States Navy, where I was first trained in electronics maintenance and later became a
trainer in aviation physiology, teaching service members about the physiological effects
of flight. After six years in the Navy, a fellow service member told investigators that I
was a lesbian. Under the military policy concerning gay and lesbian service members
that was in effect in the early 1960s, I was given the choice of facing a court martial or
agreeing to an immediate administrative discharge. I agreed to the administrative
discharge, to avoid a court martial. In 1979 this injustice was corrected to reflect my
honorable discharge, with full military benefits.
3.
I married my longtime partner, Ms. Jean Mixner, in California in 2008. A
copy of our marriage certificate is attached as Exhibit A to my Amended Complaint.

After a long and painful struggle with emphysema, my spouse Jean died in 2012, while
we were living in Arizona. Following her death, I returned to Idaho, which had been my
home for most of my career and where we had lived together for much of our retirement.
I brought Jeans cremated ashes with me to Idaho, as it was Jeans request and desire, as
well as my intention, to have our ashes interred together upon my death.
4.
Since my return to Idaho, I have dealt with several serious and chronic
health challenges. I suffer from cardiovascular disease, and recently underwent surgery at
a Veterans Administration hospital to replace a stent in my neck. I also have chronic
obstructive pulmonary disease, a serious respiratory condition. My ability to walk more

than short distances is limited, due to an injury to my left leg up to the knee, which
requires me to use a cane, walker or motorized scooter for mobility.
5.
In December 2013, I went to the Idaho State Veterans Cemetery to make
advance arrangements for interment of my ashes, as well Jeans, together in a single stone
columbarium. The Idaho State Veterans Cemetery and the cemetery routinely allows
veterans to be buried with their spouses. Despite my providing evidence of a valid
honorable discharge from the Navy, the cemetery staff refused to provide the requested
reservation for Jeans ashes to be interred along with mine. The sole reason for this
refusal was Idahos laws prohibiting the recognition of marriages of same-sex couples.
The Idaho Division of Veterans Services denial of my application letter is attached as
Exhibit D to my Amended Complaint.
6.
In the wake of the Ninth Circuits lifting of the stay on the permanent
injunction in the Latta, Idaho officials must now recognize my marriage to Jean. I met
with the personnel at the Idaho Division of Veterans Services on October 22, 2014 to
schedule Jeans interment. Placement of my spouses cremated remains in a columbarium
niche at the Idaho State Veterans Cemetery occurred on October 28, 2014.
7.
I am 74 years old and I have significant chronic health issues that may
decrease my lifespan. I am deeply concerned and seek the assurance of a final judgment
order so that upon my death, my burial wishes as a veteran of the United States Navy will
be honored, and my remains interred with my spouse and not subject to further change by
the Idaho Veterans Services or State policy.

United States District Court For The District of Idaho

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Case 1:14-cv-00273-REB Document 19 Filed 10/29/14 Page 1 of 4

Deborah A. Ferguson, ISB No. 5333

Case No. 14-cv-00273- REB

PLAINTIFFS MOTION FOR

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DATED this 28th day of October 2014.

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Deborah A. Ferguson, ISB No. 5333

Case No. 14-cv-00273- REB

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DATED: October 28, 2014

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870 Market Street, Suite 370

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Deborah A. Ferguson, ISB No. 5333

Case No. 14-cv-00273- REB

Case 1:14-cv-00273-REB Document 19-2 Filed 10/29/14 Page 2 of 4

Madelynn Taylor is a veteran of the United States Navy. (Declar. of Madelynn

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DATED this 28th day of October 2014.

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Deborah A. Ferguson, ISB No. 5333

Case No. 14-cv-00273- REB

Case 1:14-cv-00273-REB Document 19-3 Filed 10/29/14 Page 2 of 4

I, Madelynn Lee Taylor, hereby declare and state as follows:

I am the Plaintiff in this action. I am 74 years old and live in Meridian,

I married my longtime partner, Ms. Jean Mixner, in California in 2008. A

copy of our marriage certificate is attached as Exhibit A to my Amended Complaint.

Case 1:14-cv-00273-REB Document 19-3 Filed 10/29/14 Page 3 of 4

obstructive pulmonary disease, a serious respiratory condition. My ability to walk more

In December 2013, I went to the Idaho State Veterans Cemetery to make

Case 1:14-cv-00273-REB Document 19-3 Filed 10/29/14 Page 4 of 4

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