American Atheists v. Thompson, No. 15-6059 (10th Cir. 2016)
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FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT _________________________________ AMERICAN ATHEISTS, INC., a New Jersey corporation authorized in the State of Oklahoma; WILLIAM POIRE; AIMEE BREEZE, individually, January 26, 2016 Elisabeth A. Shumaker Clerk of Court Plaintiffs - Appellants, v. 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 No. 15-6059 (D.C. No. 5:14-CV-00042-C) (W.D. Okla.) 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
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