Ever read an argument that's been badly paraphrased? We're not sure who submitted the first draft between Hawaii Gov. Neil Abercrombie's counsel or the plaintiffs' counsel, but the two parties' briefs were nearly identical, except the plaintiffs' version was far more clear.
Either way, here's the gist of both: It's over, gay marriage is legal in Hawaii, and the case should be dismissed -- with conditions.
Both sides would prefer that the appeal to the Ninth Circuit be dismissed, but only if the lower court decision, which was unfavorable to the plaintiffs, is vacated. They point out that this is the default "automatic" rule when a case is mooted on appeal.
(For those who haven't been following Hawaii's happenings, the state's legislature, in a special session, passed a law recognizing same-sex marriages, which took effect earlier this month.)
Either party can move for vacatur, unless they played a role in mooting the case. The plaintiffs, obviously, did not, as they are not part of the legislature. And the governor points out that he too is powerless to pass legislation.
Both parties point out that vacatur is especially appropriate because if the lower court's ruling is not vacated, the parties will have a judgment on the merits against them that stands as controlling law, with preclusive effect, and no ability to appeal.
Now, that may not seem like a big deal considering the recently passed statute that makes the dispute moot, but two cases are currently pending in Hawaii state and federal courts challenging the legislature's action. In the unlikely event that the lawsuits succeed, the existing judgment would be controlling.
Should vacatur be denied by the Ninth Circuit (which seems unlikely), the parties agree that a conditional dismissal of the appeal would be warranted, allowing the parties to pick back up where they started should either of the two pending lawsuits in Hawaii succeed.
- Hawaii lawyers want gay marriage challenge gone (The Associated Press)
- Ninth Circuit Court of Appeals receives responses to order questioning whether to dismiss appeal of Hawaii marriage equality case (Equality On Trial)
- 9th Signals Future Marriage Equality Holdings in Back Pay Order (FindLaw's U.S. Ninth Circuit Blog)