United States District Court, D. Nebraska
SUSAN WATERS, SALLY WATERS, NICKOLAS KRAMER, JASON CADEK, CRYSTAL VON KAMPEN, CARLA MORRIS-VON KAMPEN, GREGORY TUBACH, WILLIAM ROBY, JESSICA KALLSTROM-SCHRECKENGOST, KATHLEEN KALLSTROM-SCHRECKENGOST, MARJORIE PLUMB, TRACY WEITZ, RANDALL CLARK, AND THOMAS MADDOX, Plaintiffs,
PETE RICKETTS, in his official capacity as Governor of Nebraska; DOUG PETERSON, in his official capacity as Attorney General of Nebraska; LEONARD J. SLOUP, in his official capacity as Acting Tax Commissioner of the Nebraska Department of Revenue; DAN NOLTE, AND in his official capacity as the Lancaster County Clerk; and COURTNEY PHILLIPS, in her official capacity as CEO of the Nebraska Department of Health and Human Services; Defendants.
MEMORANDUM AND ORDER
Joseph F. Bataillon Senior United States District Judge
This matter is before the Court on the plaintiffs’ motion for summary judgment, Filing No. 68, on the defendants’ motion for summary judgment, Filing No. 72, and on the plaintiffs’ motion for leave to file supplement to motion for summary judgment, Filing No. 87. This is an action for violation of civil rights brought pursuant to 42 U.S.C. § 1983. The plaintiffs seek permanent declaratory and injunctive relief for violation of rights protected by the Fourteenth Amendment by virtue of Nebraska’s exclusion of same-sex couples from marrying and its prohibition against recognizing the marriages of same-sex couples validly entered into in other jurisdictions under Neb. Const. art. I, § 29 (hereinafter, "Section 29" or "the Amendment"). Plaintiffs ask this Court to grant their summary judgment motion and permanently enjoin enforcement of Nebraska’s exclusion of same-sex couples from marrying and its refusal to recognize the marriages of same-sex couples. Defendants ask the Court to grant their summary judgment motion and to not issue a permanent preliminary injunction and to refuse to declare Section 29 unconstitutional. The defendants make this request based on their argument that the issue is moot and this Court has no jurisdiction.
Plaintiffs initially filed this action requesting a preliminary injunction in this case. The Court granted that motion. Filing No. 54 and Filing No. 55. The Court concluded that all of the preliminary injunction factors set forth in the Dataphase case - including likelihood of success on the merits - supported granting the requested relief. Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 114 (8th Cir. 1981) (en banc). The preliminary injunction ordered by the Court provided that “all relevant state officials are ordered to treat same-sex couples the same as different-sex couples in the context of processing a marriage license or determining the rights, protections, obligations or benefits of marriage.” Filing No. 55, Injunction, at 1.
Thereafter, defendants appealed the Court’s order and filed an Emergency Motion for Stay Pending Appeal with the Eighth Circuit Court of Appeals. The Eighth Circuit then issued an order granting defendant’s motion to stay. The Eighth Circuit decided to defer any oral arguments or decision until the Supreme Court decided Obergefell v. Hodges, 135 S.Ct. 2584 (2015). On June 26, 2015, the Supreme Court decided the Obergefell case and determined that denying same-sex couples marriage licenses and refusing to recognize marriages entered into by same-sex couples violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment.
Id. On that same day, the defendants filed a suggestion of mootness with the Eighth Circuit, and filed multiple documents stating that it would comply with the requirements of Obergefell. Defendants argue the Eighth Circuit has not yet ruled on that suggestion. Defendants further contend that there is now no case or controversy to decide, and further contends that the Eleventh Amendment forbids plaintiffs from obtaining a declaratory judgment establishing the State’s past liability. Plaintiffs argue defendants’ motion for mootness is irrelevant, as no injunction has been entered yet permanently enjoining enforcement of the Nebraska law in question.
STANDARD OF REVIEW
On a motion for summary judgment, the question before the Court is whether the record, when viewed in the light most favorable to the nonmoving party, shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Woods v. DaimlerChrysler Corp., 409 F.3d 984, 990 (8th Cir. 2005). The plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “Where the unresolved issues are primarily legal rather than factual, summary judgment is particularly appropriate.” Koehn v. Indian Hills Cmty. Coll., 371 F.3d 394, 396 (8th Cir. 2004). The burden of establishing the nonexistence of any genuine issue of material fact is on the moving party. Fed.R.Civ.P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). “The movant ‘bears the initial responsibility of informing the district court of the basis for its motion, ’ and must identify ‘those portions of [the record] . . . which it believes demonstrate the absence of a genuine issue of material fact.’” Torgerson v. City of Rochester, 643 F.3d 1031, 1042, (8th Cir. 2011) (en banc) (quoting
Celotex, 477 U.S. at 323).
If the movant does so, “the nonmovant must respond by submitting evidentiary materials that set out ‘specific facts showing that there is a genuine issue for trial.’”
Id. (quoting Celotex, 477 U.S. at 324). On a motion for summary judgment, the “‘facts must be viewed in the light most favorable to the nonmoving party only if there is a genuine dispute as to those facts.’”
Id. (quoting Ricci v. DeStefano, 129 S.Ct. 2658, 2677 (2009)). Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.
Id. The nonmoving party “‘must do more than simply show that there is some metaphysical doubt as to the material facts, ’ and must come forward with ‘specific facts showing that there is a genuine issue for trial.’”
Id. (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)). Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.
The plain language of Rule 56(e) allows the court, if a party fails to properly support an assertion of fact or fails to properly address another party’s assertion of fact as required by Rule 56(c), to (1) give an opportunity to properly support or address the fact; (2) consider the fact undisputed for purposes of the motion; (3) grant summary judgment if the motion and supporting materials-including the facts considered undisputed-show that the movant is entitled to it; or (4) issue any other appropriate order. Fed.R.Civ.P. 56(e).
The issuance of a preliminary injunction depends upon a “flexible” consideration of the probability that the moving party will succeed on the merits of the claim, the threat of irreparable harm to the moving party, balancing that harm with any injury an injunction would inflict on other interested parties; and the effect on the public interest. Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 114 (8th Cir. 1981) (en banc). Evaluating the likelihood of success on the merits calls for a predictive judgment about how a court is likely to rule. See, e.g., Minnesota Citizens Concerned for Life v. Swanson, 692 F.3d 864, 870 (8th Cir. 2012). Where a preliminary injunction is sought to enjoin the implementation of a duly enacted state statute, district courts must make a threshold finding that a party is likely to prevail on the merits. Planned Parenthood Minnesota, N. Dakota, S. Dakota v. Rounds, 530 F.3d 724, 732-33 (8th Cir. 2008) (en banc). In such cases, it is only after finding that a party is likely to prevail on the merits that a district court should weigh the other Dataphase factors.
Id. at 732.
“‘The basis of injunctive relief in the federal courts has always been irreparable harm and inadequacy of legal remedies.’" Bandag, Inc. v. Jack's Tire & Oil, Inc., 190 F.3d 924, 926 (8th Cir. 1999) (quoting Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 506-07 (1959)). A plaintiff must demonstrate "that remedies available at law, such as monetary damages, are inadequate to compensate for that injury." eBay, Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006). The question of irreparable injury is sometimes tied to the merits of a constitutional claim. See, e.g. Kroupa v. Nielsen, 731 F.3d 813, 820 (8th Cir. 2013) (noting in a deprivation of procedural due process case that damage to one's reputation is a harm that cannot be remedied by a later award of money damages, the threat of reputational harm may form the basis for preliminary injunctive relief). If a party can establish a sufficient likelihood of success on the merits of a constitutional claim, "the party will also have established irreparable harm as the result of the deprivation." Waters v. Ricketts, 48 F.Supp.3rd. 1271, 1278 (D. Neb. 2015); See Elrod v. Burns, 427 U.S. 347, 373 (1976) (holding that "[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.").
A showing of irreparable harm does not automatically mandate a ruling in the plaintiff’s favor; the court must proceed to balance the harm to the defendant in granting the injunction. Hill v. Xyquad, Inc., 939 F.2d 627, 630-31 (8th Cir. 1991). The state has an interest in ensuring its legitimate laws are followed. New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977) (staying injunction). However, the protection of constitutionally protected rights necessarily serves the public interest. Phelps-Roper v. Nixon, 545 F.3d 685, 690 (8th Cir. 2008) (“[I]t is always in the public interest to protect constitutional rights.”), overruled on other grounds by Phelps-Roper v. City of Manchester, Mo., 697 F.3d 678 (8th Cir. 2012). In Windsor, the Supreme Court identified several harms flowing from Defense of Marriage Act’s same-sex marriage ban: it "humiliates of tens of thousands of children now being raised by same-sex couples, " it also brings "financial harm to children of same-sex couples [by raising] the cost of health care for families by taxing health benefits provided by employers to their workers' same-sex spouses, " and it "denies or reduces benefits allowed to families upon the loss of a spouse and parent, benefits that are an integral part of family security." United States v. Windsor, 133 ...