IS THE SAME-SEX MARRIAGE LICENSE CASE NOW MOOT?
The most recent cases involving same-sex marriage and divorce don't have a catchy case style because they were filed as mandamus petitions on behalf of the State and are therefore both styled In Re State of Texas. The case numbers are 15-0135 and 15-0139.
But they might as well be styled Texas Attorney General Ken Paxton v. District Judge David Wahlberg and Ken Paxton v. Probate Court Judge Guy Herman.
Wahlberg and Herman are the Honorables that drew the ire of the Attorney General because they signed orders which include a determination that the Texas state-law prohibition of same-sex marriage is unconstitutional under the due process and equal protection clauses in the Civil War Amendments to the federal constitution.
Judge Herman did so in an inheritance dispute between the family of a deceased woman and another woman who alleges that she was the deceased woman's common-law spouse. Estate of Stella Marie Powell, No. C-1-PB-14-001695 (Travis Cnty. Probate Ct. No. 1). Herman's ruling is in the form of an order denying the family member's motion to dismiss the competing claim by the woman claiming to be the surviving spouse and, as such, entitled to a share of the estate under the intestacy laws.
In the second case, Judge Wahlberg issued a TRO (temporary restraining order) enjoining the County Clerk of Travis County (Austin) from denying a marriage license to a same-sex couple on the basis of the same-sex marriage prohibition in Texas law. See excerpts from both orders at the bottom of this post. He also waived the statutory 72-hour waiting period for a marriage license for medical reasons.
PAXTON NOW HAS A NON-SUIT PROBLEM
In Case No. 15-0139 -- the case involving the same-sex marriage license -- Paxton has now filed an amended petition for writ of mandamus after having discovered that the two women who had obtained a marriage license armed with the temporary restraining order (TRO) signed by Judge Wahlberg -- Sarah Goodfriend and Suzanne Bryant -- had non-suited the case in Travis County district court after getting married.
So Paxton now has a moot case on his hands because when a case is nonsuited, it is over and closed.
Since the all-Republican Texas Supreme Court is the court of last resort, it is always possible that an exception will be fashioned to mark the occasion of the first marriage license being issued to a gay couple in Texas, i.e. that the mootness doctrine will be modified, and that the marriage will yet be nixed by the higher court even though the case in the trial court is no longer alive and pending.
Under existing law, however, the rule governing nonsuits is pretty clear and pretty drastic. The plaintiff's right to non-suit is virtually absolute, and the trial court judge has no discretion to deny it. Moreover, the nonsuit is effective upon filing, not when the judge subsequently signs an order of dismissal as a merely "ministerial" act, i.e. a formality that leaves no discretion to the judge to decide whether it should be granted or denied.
The Supreme Court reiterated that principle as recently as two months ago in a footnote in Texas Department of Aging and Disability Services v Cannon, No. 12-0830 (Tex. Jan. 9. 2015), albeit in a slightly different context.
[13] By contrast, a nonsuit is effective without a court order immediately when notice is filed or announced in open court. FKM P'ship, Ltd. v. Bd. of Regents of Univ. of Hous. Sys., 255 S.W.3d 619, 632-33 (Tex. 2008).
There is an exception to automatic case-termination upon nonsuit, and that is when the opposing party has filed a counterclaim (or a claim for sanctions) that remains pending. But the opposing party in the same-sex marriage case was Dana DeBeauvoir, the Travis County Clerk, and she was not even unhappy to be ordered to issue the marriage license, as quoted by the TEXAS LAWYER (“It’s a really happy day. I think a lot of us have arrived at the conclusion that this is a civil rights issue, so I was most definitely following a court order, but I was doing so happily,”). She might even do it again, but only by court order. See below.
 |
| SAME-SEX MARRIAGE LICENSES PER ORDER - BUT THE ORDER MUST COME FROM A COURT |
Finally, the purpose of a mandamus proceeding is for the higher court to order the lower court to do or undo something, rather than render a judgment on appeal as might happen in a regular appeal.
Here, the order being attacked in the Supreme Court is a TRO that had a March 5, 2015 expiration date. That date has already passed. Even assuming that the trial court still has jurisdiction despite the nonsuit, how can the higher court order the lower court to withdraw an order that is no longer even in effect? Even assuming the emergency stay in the Supreme Court extended the life of the TRO beyond the 14 days, how could its cancellation undo the issuance of the license? In any event, if the marriage is void ab initio as claimed by the Attorney General, it can be attacked collaterally at a later time, and a ruling for the State in the other pending same-sex marriage cases would presumably have the same effect. This mandamus case involving a TRO may just not be the proper vehicle for the Texas Supreme Court to resolve the constitutional issue. Nor will the Texas Supreme Court have the last word on it.
RULING BY PROBATE JUDGE GUY HERMAN
IN ORDER ON SPECIAL EXCEPTIONS AND MOTION TO DISMISS
FILED BY FAMILY MEMBERS IN PROBATE COURT
AGAINST WOMAN CLAIMING TO BE SURVIVING COMMON-LAW SPOUSE
RULING BY DISTRICT JUDGE P. DAVID WAHLBERG
IN TEMPORARY RESTRAINING ORDER
AGAINST THE TRAVIS COUNTY CLERK
***
THE ATTORNEY GENERAL'S AMENDED PETITION
.JPG)
Link to docket sheet in Case No. 15-0139
(filed documents are available as pdf files)
THE OTHER THREE SAME-SEX MARRIAGE/DIVORCE CASES IN THE TEXAS SUPREME COURT
There are several other cases pending in the Texas Supreme Court that -- unlike the two most recent Austin cases -- did not get instant attention. In re Marriage of J.B. and H.B., was initiated in the Supreme Court on 01/14/2011, the petition for review was filed 02/17/2011, and the case was submitted on 11/05/2013 after oral argument that day. It has been in limbo since then ("Awaiting Opinion").
In re Marriage of J.B. and H.B., 326 S.W.3d 654 (Tex. App.—Dallas 2010), pet. granted, 56 Tex. Sup. Ct. J. 863 (August 23, 2013) [No. 11-0024], consolidated for oral argument in the Texas Supreme Court with State v. Naylor, 330 S.W.3d 434 (Tex. App.—Austin 2011), pet. granted, 56 Tex. Sup. Ct. J. 864 (August 23, 2013) [No. 11-0114], and In re State, 330 S.W.3d 434 (Tex. App.—Austin 2011), argument granted on pet. for writ of mandamus, 56 Tex. Sup. Ct. J. 864 (August 23, 2013) [No. 11-0222].
All three cases address whether Article I, section 32 of the Texas Constitution and Texas Family Code section 6.204 violate the U.S. Constitution.
CONSTITUTIONAL SAME-SEX MARRIAGE PROHIBITION IN TEXAS
Sec. 32. MARRIAGE. (a) Marriage in this state shall consist only of the union of one man and one woman. (b) This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage.
(Added Nov. 8, 2005.)
TEXAS PUBLIC POLICY
ON SAME-SEX MARRIAGE - NONRECOGNITION AND VOIDNESS
AS ARTICULATED IN THE FAMILY CODE
Sec. 6.204. RECOGNITION OF SAME-SEX MARRIAGE OR CIVIL UNION. (a) In this section, "civil union" means any relationship status other than marriage that: (1) is intended as an alternative to marriage or applies primarily to cohabitating persons; and (2) grants to the parties of the relationship legal protections, benefits, or responsibilities granted to the spouses of a marriage. (b) A marriage between persons of the same sex or a civil union is contrary to the public policy of this state and is void in this state. (c) The state or an agency or political subdivision of the state may not give effect to a: (1) public act, record, or judicial proceeding that creates, recognizes, or validates a marriage between persons of the same sex or a civil union in this state or in any other jurisdiction; or (2) right or claim to any legal protection, benefit, or responsibility asserted as a result of a marriage between persons of the same sex or a civil union in this state or in any other jurisdiction.Added by Acts 2003, 78th Leg., ch. 124, Sec. 1, eff. Sept. 1, 2003.
No comments:
Post a Comment