Case 1:14-cv-00273-REB Document 22 Filed 11/24/14 Page 1 of 10

LAWRENCE G. WASDEN
ATTORNEY GENERAL
STEVEN L. OLSEN
Chief of Civil Litigation Division
W. SCOTT ZANZIG, ISB # 9361
CLAY R. SMITH, ISB# 6385
Deputy Attorneys General
Civil Litigation Division
Office of the Attorney General
954 W. Jefferson Street, 2nd Floor
P. O. Box 83720
Boise, ID 83720-0010
Telephone: (208) 334-2400
Fax: (208) 854-8073
scott.zanzig@ag.idaho.gov
clay.smith@ag.idaho.gov
Attorneys for Defendant David E. Brasuell
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

MADELYNN LEE TAYLOR,

Plaintiff,
v.
DAVID E. BRASUELL, as Administrator of
the Idaho Division of Veterans Services, in
his official capacity,
Defendant.

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Case No. 1:14-cv-00273-REB

DEFENDANTS RESPONSE TO
PLAINTIFFS MOTION FOR
SUMMARY JUDGMENT (Dkt. 19)

I.
INTRODUCTION
The only issue in dispute when plaintiff filed this case was whether Idahos
Division of Veterans Services could recognize plaintiffs same-sex marriage and permit
the remains of plaintiffs spouse to be interred at the Idaho State Veterans Cemetery
(Cemetery). The Ninth Circuit has now resolved the issue through its actions in Latta
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v. Otter: it held Idahos laws prohibiting recognition of same-sex marriages

unconstitutional and lifted its stay against enforcement of the District Courts injunction
prohibiting enforcement of Idahos same-sex marriage laws. True to its word, Veterans
Services has abided by the law, permitting plaintiffs spouse to be interred at the
Cemetery. Because the only controversy has been resolved, this case is moot.
In her summary judgment motion, plaintiff has tried to manufacture a new
controversy and thus jurisdiction by indicating that she is concerned Veterans
Services might, in the future, change its position and refuse to permit her remains to be
interred at the Cemetery with her spouses remains. There is no valid factual basis for
this alleged concern. Indeed, Veterans Services approved plaintiffs request to be
interred at the Cemetery before she filed suit, and its commitment on that point has never
wavered. Plaintiffs alleged concern about possible future harms is far too speculative to
create any justiciable controversy.
Plaintiff also suggests that an exception to mootness, the voluntary cessation
doctrine, saves her case from dismissal for lack of subject matter jurisdiction. This
argument has no merit. The voluntary cessation doctrine does not apply, because
Veterans Services did not simply voluntarily change its position; the change arose from
new, controlling law established by the Ninth Circuit. Moreover, there is no reasonable
expectation that plaintiffs injury will recur, because Idahos marriage laws have changed
and plaintiffs spouses remains have already been interred at the Cemetery.
Because this case is moot, the Court should deny plaintiffs summary judgment
motion and grant defendants motion to dismiss for lack of subject matter jurisdiction.
II.
FACTS
Plaintiff, Madelynn Lee Taylor, is a veteran of the United States Navy. Ms.
Taylor married her same-sex partner, Jean Mixner, in California in 2008. Ms. Mixner
died in 2012.
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Defendant, David E. Brasuell, is the Administrator of the Idaho Division of

Veterans Services (Veterans Services). Veterans Services manages the Idaho State
Veterans Cemetery.
In May 2014, Ms. Taylor requested that Veterans Services approve her application
to have her remains and the remains of her same-sex spouse, Ms. Mixner, interred at the
Cemetery.1 On June 4, 2014, Veterans Services granted the application in part and
denied it in part.2 Because Ms. Taylor is an honorably discharged veteran, thus eligible
for interment, Veterans Services granted Ms. Taylors request to have her remains
interred at the Cemetery.
Veterans Services denied the request as to Ms. Mixners remains. In its letter to
Ms. Taylor, Veterans Services explained that veterans are permitted to have their spouses
interred at the Cemetery, but Idaho law prohibited recognition of same-sex marriages.
The letter also acknowledged that the validity of Idahos marriage laws were the subject
of ongoing legal proceedings (Latta v. Otter). Veterans Services advised Ms. Taylor that
if the Latta case changed the law regarding recognition of same-sex marriages, Veterans
Services would reconsider Ms. Taylors application:
The outcome of such proceedings may directly affect the eligibility for
benefits of Ms. Mixner and alter our determination of your application as
indicated above as it relates to her. If that occurs, the cemetery will
reprocess your application for benefits as it relates to Ms. Mixner you
need not provide us with a new application at that time. As soon as any
legal proceedings involving that matter are finally and sufficiently
concluded, the Cemetery will notify you of any change in its decision a[s] it
relates to interment benefits for Ms. Mixner.3

1 Amended Complaint for Declaratory and Injunctive Relief (Amended Complaint), Exhibit C
(Dkt. 13-3).
2 Amended Complaint, Exhibit D (Dkt. 13-4).
3 Amended Complaint, Exhibit D (Dkt. 13-4).

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Ms. Taylor apparently was unwilling to wait for the outcome in Latta. She filed
this lawsuit on July 7, 2014. She filed an amended complaint on September 11, 2014.
Dkt. 13. The amended complaint seeks injunctive relief requiring Mr. Brasuell to
approve Ms. Taylors application to have Ms. Mixners remains interred at the Cemetery
along with Ms. Taylors remains.
At the time of Veterans Services decision in June 2014, Idaho law prohibited
Veterans Services from recognizing Ms. Taylors marriage to Ms. Mixner. Article III,
section 28 of the Idaho Constitution provided that [a] marriage between a man and a
woman is the only domestic legal union that shall be valid or recognized in this state.
And Idaho Code 32-209 prohibited recognition of out-of-state same-sex marriages.
Although the United States District Court for the District of Idaho declared those laws
unconstitutional and enjoined their enforcement by its May 13, 2014 Memorandum
Decision and Order,4 the United States Court of Appeals for the Ninth Circuit entered an
Order on May 20, 2014, staying enforcement of the District Courts order pending
appeal.5
The Ninth Circuit recently took actions that changed Idahos marriage laws. On
October 7, 2014, the Court issued an Opinion affirming the District Courts decision.6
And on October 13, 2014, the Ninth Circuit issued an Order dissolving its stay of the
District Courts injunction, effective October 15, 2014.7 As a result, since October 15,
2014, same-sex marriages have been recognized in Idaho.
The Ninth Circuits order lifting the stay of the District Courts injunction in Latta
permitted Veterans Services to reconsider Ms. Taylors interment application for Ms.
Mixner. Veterans Services honored the commitment it made to Ms. Taylor when it
4 Latta v. Otter, Case No. 1-13-cv-00482-CWD, Dkt. 98 (D. Idaho May 13, 2014).
5 Latta v. Otter, Nos. 14-35420 & 14-35421, Dkt. 11 (9th Cir. May 20, 2014).
6 Latta v. Otter, Nos. 14-35420, 14-35421, & 12-17668, 2014 WL 4977682 (9th Cir. Oct. 7,
2014).
7 Latta v. Otter, Nos. 14-35420 & 14-35421, Dkt. 196 (9th Cir. Oct. 13, 2014).

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denied her request regarding Ms. Mixners remains. Veterans Services promptly made
arrangements with Ms. Taylor to inter Ms. Mixners remains at the Cemetery.
Declaration of James Earp, dated October 28, 2014, 5 (Dkt. 18-2). Ms. Mixners
remains were interred at the Cemetery on October 28, 2014. Id. By interring her
spouses remains at the Cemetery, Ms. Taylor has executed her veterans benefit for
interment in a veterans cemetery. That benefit entitles her to have her remains interred in
the same plot as her spouses remains. Id., 6.
III.
ARGUMENT
As explained in defendants memorandum in support of his motion to dismiss
(Dkt. 18-1), this case is moot and must be dismissed for lack of subject matter
jurisdiction. There is no meaningful difference between this case and Kittel v. Thomas,
620 F.3d 949, 951 (9th Cir. 2010). Neither Ms. Taylors unfounded concerns about
changes that might happen in the future, nor her invocation of the voluntary cessation
doctrine, can create jurisdiction and avoid dismissal.
A.

Plaintiffs Unfounded Concern About Possible Future Changes Cannot

Establish a Case or Controversy.

Ms. Taylor acknowledges that Veterans Services has granted her request to permit
her spouse to be interred at the Cemetery, and then some. Ms. Mixners remains are
already interred at the Cemetery. It is undisputed that Veterans Services has granted Ms.
Taylors request to have her own remains interred, and that Ms. Taylor is entitled to have
her remains interred in the same plot as her spouses remains. Thus, at present, Ms.
Taylor has received everything she has requested. There is no longer any live case or
controversy.
Nevertheless, Ms. Taylor has requested that the Court enter a judgment in her
favor based on an unfounded concern about changes that might occur in the future. She
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states in her declaration that she is concerned, and therefore seeks the assurance of a
final judgment to protect against any change by the Idaho Veterans Services or State
policy.8 Ms. Taylor offers no factual basis for her concerns, because none exists.
Veterans Services has consistently told Ms. Taylor that she is entitled to have her remains
interred at the Cemetery. There is no reason to believe this will change, particularly
because Ms. Taylor has reserved her spot by interring her spouses remains at the
Cemetery.
A concern about potential future changes, particularly with no factual basis,
cannot create a justiciable controversy. As the Ninth Circuit explained in Kittel, a
plaintiff cannot avoid dismissal on mootness grounds by seeking a protective ruling
against a possible future downstream controversy. 620 F.3d at 951. Indeed, a
speculative fear about possible future harm cannot satisfy Article IIIs jurisdictional
ripeness requirement. The injury a plaintiff fears must be certainly impending to
constitute injury in fact, and . . . allegations of possible future injury are not sufficient.
Coons v. Lew, 762 F.3d 891, 897 (9th Cir. 2014) (quoting Clapper v. Amnesty Intl USA,
133 S. Ct. 1138, 1147 (2013)).
B.

The Voluntary Cessation Exception to Mootness Does Not Apply.

Article III of the Constitution limits the jurisdiction of the federal courts to live
cases and controversies. Kittel v. Thomas, 620 F.3d 949, 951 (9th Cir. 2010). Article
III requires that a live controversy persist throughout all stages of the litigation, not
merely at the time the complaint is filed. Gator.com Corp. v. L.L. Bean, Inc., 398 F.3d
1125, 1128-29 (9th Cir. 2005) (en banc) (citing Steffel v. Thompson, 415 U.S. 452, 459
n.10 (1974)). If a live controversy ceases to exist, the case becomes moot. See
Gator.com, 398 F.3d at 1129. Mootness occurs where changes in the circumstances
that prevailed at the beginning of the litigation have forestalled any occasion for
8 Dkt. 19-3, 7.

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meaningful relief. Id. (quoting West v. Secy of the Dept of Transp., 206 F.3d 920, 925
n.4 (9th Cir. 2000)). At that point, the court loses subject matter jurisdiction and should
dismiss the case. See Gator.com, 398 F.3d at 1129.
Ms. Taylor suggests that the voluntary cessation doctrine should save her case
from dismissal. The voluntary cessation exception to mootness applies when a defendant
voluntarily ceases the allegedly improper behavior in response to a suit, but is free to
return to it at any time. Native Village of Noatak v. Blatchford, 38 F.3d 1505, 1510 (9th
Cir. 1994). Under such circumstances, the court dismisses the case on mootness grounds
only if the allegedly wrongful behavior could not reasonably be expected to recur. Id.
The voluntary cessation doctrine does not apply to this case. Veterans Services
did not voluntarily choose to change its position regarding Ms. Taylors request to have
Ms. Mixners remains interred at the Cemetery. Instead, it permitted Ms. Mixners
interment because the Ninth Circuits decisions in Latta changed the law controlling
Veterans Services decision. Moreover, Veterans Services cannot resume the conduct
Ms. Taylor challenged in her complaint. Controlling Ninth Circuit law declares that it is
unconstitutional for Idaho law to refuse to recognize a same-sex marriage. Veterans
Services has followed the Ninth Circuits decision and not only granted Ms. Taylors
request for interment of Ms. Mixners remains, but also arranged for the remains to be
actually interred at the Cemetery.
[A] statutory change . . . is usually enough to render a case moot, even if the
legislature possesses the power to reenact the statute after the lawsuit is dismissed. Bell
v. City of Boise, 709 F.3d 890, 899 (9th Cir. 2013) (quoting Noatak, 38 F.3d at 1510).
Similarly, where a law has been declared unconstitutional by a controlling court,
pending requests for identical declaratory relief become moot. Bishop v. United States
ex rel. Holder, 962 F. Supp. 2d 1252, 1269-70 (N.D. Okla.), affd, Bishop v. Smith, 760
F.3d 1070 (10th Cir. 2014), cert. denied, 2014 WL 3854318 (U.S. Oct. 6, 2014). In such
cases, the voluntary cessation exception does not apply, because the defendant did not
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voluntarily cease its conduct and the risk of future harm to the plaintiff is far too
speculative. See, e.g., Noatak, 38 F.3d at 1511 (rejecting voluntary cessation argument
because fear of possible future injury is insufficient to constitute a reasonable
expectation that the same alleged injury will recur).
The Ninth Circuit has applied these same principles in cases just like this one
where a decision in a different case changed the law the plaintiff was challenging. See,
e.g., Kittel, 620 F.3d 949; White Mt. Apache Tribe v. Williams, 810 F.2d 844, 855-56 (9th
Cir. 1985) (dismissing declaratory judgment action challenging potential taxes because
United States Supreme Court decision in companion case prohibited imposition of such
taxes). Kittel controls this case and requires dismissal of Ms. Taylors case. Like Kittel,
Ms. Taylor challenged a government decision that was based on a rule existing at the
time of the initial decision. While the complaint was pending, the Ninth Circuit issued an
opinion in a separate case invalidating the rule. As a result of the intervening change in
law not a voluntary change in response to the plaintiffs suit the government reversed
its initial decision and granted the plaintiffs request, mooting the plaintiffs case.
The Ninth Circuit made no mention of the voluntary cessation doctrine in Kittel
for good reason. As in this case, the doctrine simply does not apply where the plaintiff
receives the relief she requests as a result of a change in the governing law that occurs
outside the context of her lawsuit.
Like Kittel, Ms. Taylor is the beneficiary of the Ninth Circuits decision in a
different case, Latta v. Otter. The Ninth Circuits decisions in Latta have changed Idaho
law and the challenged conduct, thereby mooting Ms. Taylors case. Accordingly, this
Court should dismiss this case for lack of subject matter jurisdiction.
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IV.
CONCLUSION
For all the foregoing reasons, defendant, David E. Brasuell, respectfully requests
that the Court deny plaintiffs summary judgment motion, grant defendants motion to
dismiss, and enter an order dismissing plaintiffs amended complaint without prejudice.

Dated this 24th day of November, 2014.

STATE OF IDAHO
OFFICE OF THE ATTORNEY GENERAL

By:

/s/
W. SCOTT ZANZIG
Deputy Attorney General

DEFENDANTS RESPONSE TO MOTION FOR SUMMARY JUDGMENT - 9

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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 24th day of November, 2014, I electronically filed the
foregoing Response to Motion for Summary Judgment with the Clerk of the Court using the
CM/ECF system which sent a Notice of Electronic Filing to the following Persons:
Deborah A. Ferguson
d@fergusonlawmediation.com
Craig Harrison Durham
craig@chdlawoffice.com
Shannon P. Minter
sminter@nclrights.org
Christopher F. Stoll
cstoll@nclrights.org

/s/
W. SCOTT ZANZIG

DEFENDANTS RESPONSE TO MOTION FOR SUMMARY JUDGMENT - 10

Case 1:14-cv-00273-REB Document 22-1 Filed 11/24/14 Page 1 of 5

LAWRENCE G. WASDEN
ATTORNEY GENERAL
STEVEN L. OLSEN
Chief of Civil Litigation Division
W. SCOTT ZANZIG, ISB # 9361
CLAY R. SMITH, ISB# 6385
Deputy Attorneys General
Civil Litigation Division
Office of the Attorney General
954 W. Jefferson Street, 2nd Floor
P. O. Box 83720
Boise, ID 83720-0010
Telephone: (208) 334-2400
Fax: (208) 854-8073
scott.zanzig@ag.idaho.gov
clay.smith@ag.idaho.gov
Attorneys for Defendant David E. Brasuell
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

MADELYNN LEE TAYLOR,

Plaintiff,
v.
DAVID E. BRASUELL, as Administrator of
the Idaho Division of Veterans Services, in
his official capacity,
Defendant.

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Case No. 1:14-cv-00273-REB

DEFENDANTS STATEMENT OF
MATERIAL FACTS RE PLAINTIFFS
MOTION TO FOR SUMMARY
JUDGMENT (Dkt. 19)

Pursuant to Local Civil Rule 7.1(b)(1), defendant, David E. Brasuell, submits this
statement of material facts:
1.

Plaintiff, Madelynn Lee Taylor, is a veteran of the United States Navy. Ms.

Taylor married her same-sex partner, Jean Mixner, in California in 2008. Ms. Mixner
died in 2012.

DEFENDANTS STATEMENT OF FACTS - 1

Case 1:14-cv-00273-REB Document 22-1 Filed 11/24/14 Page 2 of 5

2.

Defendant, David E. Brasuell, is the Administrator of the Idaho Division of

Veterans Services (Veterans Services). Veterans Services manages the Idaho State
Veterans Cemetery (Cemetery).
3.

In May 2014, Ms. Taylor requested that Veterans Services approve her

application to have her remains and the remains of her same-sex spouse, Ms. Mixner,
interred at the Cemetery. Amended Complaint for Declaratory and Injunctive Relief
(Amended Complaint), Exhibit C (Dkt. 13-3).
4.

On June 4, 2014, Veterans Services granted the application in part and

denied it in part. Amended Complaint, Exhibit D (Dkt. 13-4). Because Ms. Taylor is an
honorably discharged veteran, thus eligible for interment, Veterans Services granted Ms.
Taylors request to have her remains interred at the Cemetery. Id.
5.

Veterans Services denied the request as to Ms. Mixners remains. In its

letter to Ms. Taylor, Veterans Services explained that veterans are permitted to have their
spouses interred at the Cemetery, but Idaho law prohibited recognition of same-sex
marriages. The letter also acknowledged that the validity of Idahos marriage laws were
the subject of ongoing legal proceedings (Latta v. Otter). Veterans Services advised Ms.
Taylor that if the Latta case changed the law regarding recognition of same-sex
marriages, Veterans Services would reconsider Ms. Taylors application:
The outcome of such proceedings may directly affect the eligibility for
benefits of Ms. Mixner and alter our determination of your application as
indicated above as it relates to her. If that occurs, the cemetery will
reprocess your application for benefits as it relates to Ms. Mixner you
need not provide us with a new application at that time. As soon as any
legal proceedings involving that matter are finally and sufficiently
concluded, the Cemetery will notify you of any change in its decision a[s] it
relates to interment benefits for Ms. Mixner.
Amended Complaint, Exhibit D (Dkt. 13-4).
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DEFENDANTS STATEMENT OF FACTS - 2

Case 1:14-cv-00273-REB Document 22-1 Filed 11/24/14 Page 3 of 5

6.

Ms. Taylor apparently was unwilling to wait for the outcome in Latta. She

filed this lawsuit on July 7, 2014. She filed an amended complaint on September 11,
2014. Dkt. 13. The amended complaint seeks injunctive relief requiring Mr. Brasuell to
approve Ms. Taylors application to have Ms. Mixners remains interred at the Cemetery
along with Ms. Taylors remains.
7.

At the time of Veterans Services decision in June 2014, Idaho law

prohibited Veterans Services from recognizing Ms. Taylors marriage to Ms. Mixner.
Article III, section 28 of the Idaho Constitution provided that [a] marriage between a
man and a woman is the only domestic legal union that shall be valid or recognized in
this state. And Idaho Code 32-209 prohibited recognition of out-of-state same-sex
marriages. Although the United States District Court for the District of Idaho declared
those laws unconstitutional and enjoined their enforcement by its May 13, 2014
Memorandum Decision and Order, Latta v. Otter, Case No. 1-13-cv-00482-CWD, Dkt.
98 (D. Idaho May 13, 2014), the United States Court of Appeals for the Ninth Circuit
entered an Order on May 20, 2014, staying enforcement of the District Courts order
pending appeal. Latta v. Otter, Nos. 14-35420 & 14-35421, Dkt. 11 (9th Cir. May 20,
2014).
8.

The Ninth Circuit recently took actions that changed Idahos marriage laws.

On October 7, 2014, the court issued an Opinion affirming the District Courts decision.
Latta v. Otter, Nos. 14-35420, 14-35421, & 12-17668, 2014 WL 4977682 (9th Cir. Oct. 7,
2014). And on October 13, 2014, the Ninth Circuit issued an Order dissolving its stay of
the District Courts injunction, effective October 15, 2014. Latta v. Otter, Nos. 14-35420
& 14-35421, Dkt. 196 (9th Cir. Oct. 13, 2014). As a result, since October 15, 2014, samesex marriages have been recognized in Idaho.
9.

The Ninth Circuits order lifting the stay of the District Courts injunction

in Latta permitted Veterans Services to reconsider Ms. Taylors interment application for
Ms. Mixner. Veterans Services honored the commitment it made to Ms. Taylor when it
DEFENDANTS STATEMENT OF FACTS - 3

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denied her request regarding Ms. Mixners remains. Veterans Services promptly made
arrangements with Ms. Taylor to inter Ms. Mixners remains at the Cemetery.
Declaration of James Earp, dated October 28, 2014, 5 (Dkt. 18-2). Ms. Mixners
remains were interred at the Cemetery on October 28, 2014. Id.
10.

By interring her spouses remains at the Cemetery, Ms. Taylor has executed

her veterans benefit for interment in a veterans cemetery. That benefit entitles her to
have her remains interred in the same plot as her spouses remains. Declaration of James
Earp, dated October 28, 2014, 6 (Dkt. 18-2).

Dated this 24th day of November, 2014.

STATE OF IDAHO
OFFICE OF THE ATTORNEY GENERAL

By:

DEFENDANTS STATEMENT OF FACTS - 4

/s/
W. SCOTT ZANZIG
Deputy Attorney General

Case 1:14-cv-00273-REB Document 22-1 Filed 11/24/14 Page 5 of 5

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 24th day of November, 2014, I electronically filed the
foregoing Response to Motion for Summary Judgment with the Clerk of the Court using the
CM/ECF system which sent a Notice of Electronic Filing to the following Persons:
Deborah A. Ferguson
d@fergusonlawmediation.com
Craig Harrison Durham
craig@chdlawoffice.com
Shannon P. Minter
sminter@nclrights.org
Christopher F. Stoll
cstoll@nclrights.org

/s/
W. SCOTT ZANZIG

DEFENDANTS STATEMENT OF FACTS - 5