Case 1:14-cv-00273-REB Document 24 Filed 12/11/14 Page 1 of 5

LAWRENCE G. WASDEN
ATTORNEY GENERAL
STEVEN L. OLSEN
Chief of Civil Litigation Division
W. SCOTT ZANZIG, ISB # 9361
CLAY R. SMITH, ISB# 6385
Deputy Attorneys General
Civil Litigation Division
Office of the Attorney General
954 W. Jefferson Street, 2nd Floor
P. O. Box 83720
Boise, ID 83720-0010
Telephone: (208) 334-2400
Fax: (208) 854-8073
scott.zanzig@ag.idaho.gov
clay.smith@ag.idaho.gov
Attorneys for Defendant David E. Brasuell
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

MADELYNN LEE TAYLOR,

Plaintiff,
v.
DAVID E. BRASUELL, as Administrator of
the Idaho Division of Veterans Services, in
his official capacity,
Defendant.

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Case No. 1:14-cv-00273-REB

REPLY MEMORANDUM IN SUPPORT
OF DEFENDANTS MOTION TO
DISMISS

Veterans Services has done all it can, within the bounds of Idaho law, to
accommodate Madelynn Taylors requests. It has always given Ms. Taylor the assurance
that she, as a veteran, will be interred at the Veterans Cemetery. When Idaho law
changed during the pendency of this case, Veterans Services also approved Ms. Taylors
request to have her deceased same-sex spouses (Jean Mixners) remains interred at the
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Case 1:14-cv-00273-REB Document 24 Filed 12/11/14 Page 2 of 5

Cemetery. This change in the law, which allowed Veterans Services to grant all Ms.
Taylors current wishes, mooted this case.
Ms. Taylor now wants a judgment to protect her against possible future changes in
the law. She worries that if the Ninth Circuit or the Supreme Court changed the current,
binding constitutional law, Veterans Services might make a decision to disinter Ms.
Mixners remains. No matter how sincere Ms. Taylors concerns about the future may
be, they cannot create a justiciable case or controversy. And because no current case or
controversy exists, the law requires the Court to dismiss this case for lack of subject
matter jurisdiction.
A case is moot if there is no present controversy. West Coast Seafood
Processors Assn v. Natl Resources Defense Council, Inc., 643 F.3d 701, 704 (9th Cir.
2011) (internal quotations and citations omitted) (emphasis added). There is no present
controversy in this case. All that exists is Ms. Taylors concern about potential future
changes to the law which theoretically might result in harm.
Recognizing her justiciability problem, Ms. Taylor tries to invoke the capable of
repetition, yet evading review exception to mootness. That exception applies only in
extraordinary cases satisfying a two-pronged test: (1) the capable of repetition prong
requires a reasonable expectation that the same party will confront the same
controversy again, id. (citing Feldman v. Bomar, 518 F.3d 637, 644 (9th Cir. 2008)); and
(2) the evading review prong requires that the controversy be inherently limited in
duration such that it is likely always to become moot before federal court litigation is
completed. West Coast, 643 F.2d at 705 (quoting Ctr. For Biological Diversity v.
Lohn, 511 F.3d 960, 965 (9th Cir. 2007)). Because neither prong is satisfied, the
exception does not apply in this case.
There is no reason to expect that Ms. Taylor will confront the same controversy.
The controversy on which this case was based was the fact that Veterans Services had
denied Ms. Taylors application to have Ms. Mixners remains interred at the Cemetery.
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Case 1:14-cv-00273-REB Document 24 Filed 12/11/14 Page 3 of 5

Veterans Services has since granted the application and interred Ms. Mixners remains,
so the same controversy will not recur. Ms. Taylor suggests she is concerned that a new
controversy may arise if Veterans Services were to disinter Ms. Mixners remains. Such
a controversy not only would be different from the one that precipitated this case, but also
is entirely too speculative at this point to support jurisdiction.
Nor is the controversy over Ms. Taylors application inherently limited in duration
in a way that always renders it moot before litigation can be completed. Ms. Taylors
case was rendered moot by the Ninth Circuits Latta decision, not some inherently short
lifespan of a Veterans Services decision to grant or deny an interment request.
Ms. Taylor is asking this Court for something it cannot do without violating
Article III of the Constitution: issue an advisory opinion about what Ms. Taylors rights
would be if the law changed and if Veterans Services took some action in response to
such legal changes. The fact that Ms. Taylor suffers from health problems is unfortunate,
but does not create jurisdiction. Otherwise, any plaintiff in ill health would be entitled to
seek legal protection against possible future changes in the law that might affect her.
Moreover, even should Ms. Taylors worst fears about the future come to passi.e., were
the Supreme Court to decide that Ms. Taylor has no constitutional right requiring Idaho
to recognize her marriagea new and legally distinct set of issues would exist if
Veterans Services changed its position with respect to Ms. Mixners remains. See Evans
v. Utah, No. 2:14CV55DAK, 2014 WL 2048343, at *12-*13 (C.D. Utah May 18, 2014).
Ms. Taylor does not face any such controversy now. The current law has allowed
Veterans Services to give her everything she requested. It has interred Ms. Mixners
remains in the Cemetery, in a columbarium reserved for Ms. Taylors remains as well.
Because no present controversy exists, this Court lacks subject matter jurisdiction.
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Accordingly, the Court should enter an order dismissing Ms. Taylors amended
complaint without prejudice.

Dated this 11th day of December, 2014.

STATE OF IDAHO
OFFICE OF THE ATTORNEY GENERAL

By:

/s/
W. SCOTT ZANZIG
Deputy Attorney General

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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 11th day of December, 2014, I electronically filed the
foregoing Reply Memorandum in Support of Defendants Motion to Dismiss with the Clerk of
the Court using the CM/ECF system which sent a Notice of Electronic Filing to the following
persons:
Deborah A. Ferguson
d@fergusonlawmediation.com
Craig Harrison Durham
craig@chdlawoffice.com
Shannon P. Minter
sminter@nclrights.org
Christopher F. Stoll
cstoll@nclrights.org

/s/
W. SCOTT ZANZIG

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