UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

JENNIE ROSENBRAHN, et al.,
Plaintiffs-Appellees,
v.
DENNIS DAUGAARD, et al.,
Defendants-Appellants.

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No. 15-1186
SUGGESTION OF MOOTNESS
AND MOTION TO
VACATE THE DISTRICT
COURT JUDGMENT

COMES NOW, State Defendants-Appellants Daugaard, Jackley, MalsamRysdon, and Jones, and County Defendant-Appellant Sherman and notify the
Court this appeal has been mooted as no case or controversy exists between
the parties. Accordingly, Defendants-Appellants move this court to vacate the
below judgment and remand with direction to dismiss the complaint.
Notwithstanding the federal district courts errors, the United States
Supreme Courts binding opinion in Obergefell et al. v. Hodges et al., 576 U.S.
___ (2015) has obviated the need for this appeal. Appellants have principally
relied upon this Courts ruling in Citizens for Equal Protection v. Bruning, 455
F.3d 859 (8th Cir. 2006) and the Supreme Courts ruling in Baker v. Nelson,
409 U. S. 810 (1972) in defense of South Dakotas marriage laws. Obergefell,
which confirms that Bruning was previously binding Eighth Circuit precedent
on page 9 of its opinion, has now been reversed. Obergefell also explicitly
overruled Baker on page 23 of its opinion.

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Article III of the United States Constitution limits the jurisdiction of the
federal courts to actual, ongoing cases and controversies. Ali v. Cangemi, 419
F.3d 722, 723 (8th Cir. 2005). Federal courts lack power to decide moot
cases. Beck v. MO State High School Activities Assn, 18 F.3d 604, 605 (8th
Cir. 1994). An actual controversy must exist at all stages of appellate review,
not merely at the time the complaint is filed. Id. (citation omitted). During
the course of litigation, the issues presented in a case may lose their life
because of the passage of time or a change in circumstances. Id. This Court
has stated: If a case becomes moot at any stage of an appeal, we must vacate
the district courts order and judgment and remand the case with instructions
to dismiss. Id.; see also Epp v. Kerrey, 964 F.2d 754, 756 (8th Cir. 1992). In
addition, the United States Supreme Court has noted: [t]he established
practice of the Court in dealing with a civil case from a court in the federal
system which 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. U.S. v. Munsingwear, Inc., 340 U.S. 36, 29 (1950).
In response to the United States Supreme Courts decision in Obergefell
et al. v. Hodges et al., the South Dakota Attorney General has issued a
statement that: every State must recognize and license same-sex marriage.
See Bailey Affidavit, Exhibit B. The Attorney General further noted that the
Supreme Courts order should be treated as effective immediately[.] Id. The
South Dakota Governor has publically stated his intention to work with the
Attorney General to carry out the law under Obergefell. See Bailey Affidavit,
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Exhibit C. The South Dakota Department of Health updated its electronic vital
records system and issued marriage licenses for same-sex couples beginning
on Friday, June 26, 2015. See Bailey Affidavit, Exhibit D. Pursuant to the
States immediate response to Obergefell, Plaintiff couples who are not yet
married are free to seek a South Dakota marriage license, and Plaintiff couples
who were legally married out-of-state will have their marriages recognized.
Accordingly, no ongoing case or controversy remains.
For the above stated reasons, this case is moot and this court must
vacate the district courts order and judgment, and remand the case with
instructions to dismiss the complaint.

For State Defendants-Appellants Daugaard, Jackley, Malsam-Rysdon, and

Jones
/s/ Ellie J. Bailey
Ellie J. Bailey
Assistant Attorney General
1302 E. Highway 14, Suite 1
Pierre, SD 57501-8501
Telephone: (605) 773-3215
For County Defendant-Appellant Sherman
/s/ Robert B. Anderson
Robert B. Anderson
Justin L. Bell
503 South Pierre Street
PO Box 160
Pierre, SD 57506
Phone: (605) 224-8803

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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing was served
via the CM/ECF system, this 29th day of June, 2015, to:
Joshua A. Newville
Madia Law LLC
345 Union Plaza
333 Washington Ave. North
Minneapolis MN 55401

Shannon P Minter
Christopher F Stoll
National Cntr for Lesbian Rights
870 Market St Suite 370
San Francisco CA 94102

Debra M Voigt
Burd & Voigt Law Office
501 S Cliff Ave Suite A
Sioux Falls SD 57104

Kylie M Riggins
Viken and Riggins Law Firm
4200 Beach Dr Suite 4
Rapid City SD 57702

/s/ Ellie J. Bailey

Ellie J. Bailey
Assistant Attorney General

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