Marie v. Moser , 663 F. App'x 595 ( 2016 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT September 28, 2016
_________________________________
Elisabeth A. Shumaker
Clerk of Court
KAIL MARIE; MICHELLE L. BROWN;
KERRY WILKS, Ph. D.; DONNA
DITRANI,
Plaintiffs - Appellees,
v. No. 14-3250
(D.C. No. 2:14-CV-02518-DDC-TJJ)
ROBERT MOSER, M.D., in his official (D. Kan.)
capacity as Secretary of the Kansas
Department of Health and Environment;
DOUGLAS A. HAMILTON, in his official
capacity as Clerk of the District Court for
the 7th Judicial District (Douglas County);
BERNIE LUMBRERAS, in her official
capacity as Clerk of the District Court for
the 18th Judicial District (Sedgwick
County),
Defendants.
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PHILIP W. UNRUH; SANDRA L.
UNRUH,
Movants - Appellants.
–––––––––––––––––––––––––––––––––––
KAIL MARIE; MICHELLE L. BROWN;
KERRY WILKS, Ph. D.; DONNA
DITRANI,
Plaintiffs - Appellees,
v. No. 14-3251
(D.C. No. 2:14-CV-02518-DDC-TJJ)
ROBERT MOSER, M.D., in his official (D. Kan.)
capacity as Secretary of the Kansas
Department of Health and Environment;
DOUGLAS A. HAMILTON, in his official
capacity as Clerk of the District Court for
the 7th Judicial District (Douglas County);
BERNIE LUMBRERAS, in her official
capacity as Clerk of the District Court for
the 18th Judicial District (Sedgwick
County),
Defendants.
------------------------------
WESTBORO BAPTIST CHURCH, INC.,
Intervenor - Appellant.
–––––––––––––––––––––––––––––––––––
KAIL MARIE; MICHELLE L. BROWN;
KERRY WILKS, Ph. D.; DONNA
DITRANI; JAMES E. PETERS; GARY A.
MOHRMAN; CARRIE L. FOWLER;
SARAH C. BRAUN; DARCI
BOHNENBLUST; JOLEEN M.
HICKMAN,
Plaintiffs - Appellees,
v. No. 14-3276
(D.C. No. 2:14-CV-02518-DDC-TJJ)
ROBERT MOSER, M.D., in his official (D. Kan.)
capacity as Secretary of the Kansas
Department of Health and Environment;
DOUGLAS A. HAMILTON, in his official
capacity as Clerk of the District Court for
the 7th Judicial District (Douglas County);
BERNIE LUMBRERAS, in her official
capacity as Clerk of the District Court for
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the 18th Judicial District (Sedgwick
County); NICK JORDAN, in his official
capacity as Secretary, Kansas Department
of Revenue; LISA KASPER, in her official
capacity as Director, Kansas Department of
Revenue, Division of Vehicles; MIKE
MICHAEL, in his official capacity as
Director, Kansas State Employee Health
Plan,
Defendants.
------------------------------
WESTBORO BAPTIST CHURCH, INC.,
Intervenor - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HARTZ, PHILLIPS, and McHUGH, Circuit Judges.
_________________________________
Westboro Baptist Church (WBC) appeals the district court’s order denying its
motion to intervene as a defendant in Marie v. Moser, No. 2:14-cv-02518-DDC-TJJ
(D. Kan.), a declaratory judgment action filed in the District of Kansas challenging
Kansas’s ban on same-sex marriage (No. 14-3251). WBC also appeals the district
court’s order denying its renewed motion to intervene (No. 14-3276). And Phillip W.
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
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Unruh and Sandra L. Unruh appeal the district court’s denial of their motion to
intervene in the same action (No. 14-3250).
The district court in Marie has now entered final judgment, granting a
permanent injunction in favor of plaintiffs in light of Obergefell v. Hodges,
___ U.S. ___, 135 S. Ct. 2584 (2015) (holding that state bans on same-sex marriage
are unconstitutional). Marie, No. 2:14-cv-02518-DDC-TJJ, Amended Judgment at 2
(D. Kan. July 26, 2016). The injunction forbids the Kansas defendants and their
successors from enforcing or applying any aspect of Kansas law that treats same-sex
married couples differently than opposite-sex married couples. After entry of this
final judgment, we ordered WBC and the Unruhs to show cause why their appeals
should not be dismissed on jurisdictional grounds as moot. The Unruhs did not
respond.
Federal court jurisdiction is limited to the adjudication of live cases and
controversies. Abdulhaseeb v. Calbone, 600 F.3d 1301, 1311 (10th Cir. 2010).
An appeal is moot if there exists no present controversy as to which effective relief
can be granted. Id. (“When it becomes impossible for a court to grant effective
relief, a live controversy ceases to exist, and the case becomes moot.” (citation and
quotation marks omitted)).
We have reviewed WBC’s response and conclude its appeals are moot because
there is no longer any pending litigation in the district court in which it can intervene.
W. Coast Seafood Processors Ass’n v. Nat. Res. Def. Council, Inc., 643 F.3d 701, 704
(9th Cir. 2011) (dismissing would-be intervenor’s appeal as moot after final
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judgment was entered in the underlying case and the litigants did not appeal because
the court “cannot grant [the appellant] any effective relief . . . [s]ince there is no
longer any action in which appellants can intervene.” (internal quotation marks
omitted)).
The appeals by WBC and the Unruhs are dismissed as moot.
Entered for the Court
Gregory A. Phillips
Circuit Judge
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