American Atheists v. Thompson , 632 F. App'x 522 ( 2016 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 26, 2016
_________________________________
Elisabeth A. Shumaker
Clerk of Court
AMERICAN ATHEISTS, INC., a
New Jersey corporation authorized
in the State of Oklahoma; WILLIAM
POIRE; AIMEE BREEZE,
individually,
Plaintiffs - Appellants,
No. 15-6059
v. (D.C. No. 5:14-CV-00042-C)
(W.D. Okla.)
TRAIT THOMPSON, Chair of the
State Capitol Preservation
Commission; VICKIE HICKS,
Member (Governor) of the State
Capitol Preservation Commission;
MARK LIOTTA, Member (House)
of the State Capitol Preservation
Commission; CAROLYN
THOMPSON, Member (House) of
the State Capitol Preservation
Commission; VACANT SEAT,
Member (House) of the State
Capitol Preservation Commission;
LOU KERR, Member (Senate) of the
State Capitol Preservation
Commission; JUDY JOHNSON,
Member (Senate) of the State
Capitol Preservation Commission;
PAUL MEYER, Member (Governor)
of the State Capitol Preservation
Commission; LINDA
EDMONDSON, Member (Governor)
of the State Capitol Preservation
Commission; BRUCE FISHER,
Member (Supreme Court) of the
State Capitol Preservation
Commission; DUANE MASS,
Ex-officio Capitol Architect and
Curator; MICHELLE DAY,
Ex-officio Administrator Division of
Capitol Assets Management; DOUG
KELLOGG, Ex-offico Capitol
Building Superintendent; JAMES
PICKEL, Chair, Oklahoma Arts
Council; EMMY STIDHAM,
Ex-officio President - Oklahoma
Historical Society,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before BACHARACH, O’BRIEN, and PHILLIPS, Circuit Judges.
_________________________________
The appellants challenge the presence of a Ten Commandments
monument on the grounds of the Oklahoma State Capitol. During the
pendency of the appeal, however, the Oklahoma Supreme Court held that
the monument violates the state constitution. Prescott v. Okla. Capitol
Pres. Comm’n, — P.3d —, 2015 Okla. 54, 2015 WL 3982750 (Okla.
July 27, 2015). The monument was ultimately removed roughly two months
ago. Accordingly, the appellees move to dismiss this appeal as moot,
arguing that no case or controversy remains for us to decide.
*
The Court has determined that oral argument would not materially
aid our consideration of the appeal. See Fed. R. App. P. 34(a)(2); 10th Cir.
R. 34.1(G). Thus, we have decided the appeal based on the briefs.
This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But our order and judgment may be cited for its persuasive value under
Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).
2
Though the appellants did not respond to the motion to dismiss, they
conceded in their reply brief that the case may have become moot. We
agree with the appellees, concluding that the action is moot now that the
monument has been removed from the state capitol. Thus, we grant the
appellees’ motion and dismiss the appeal.
Entered for the Court
Robert E. Bacharach
Circuit Judge
3