Ericksen pondering dismissal motion

Government arguing to dismiss in a time-warp

By Tim Campbell
Copyright December 5, 2004

U.S. District Judge Joan N. Ericksen, Minnesota, now has under consideration whether to hear or to dismiss the lawsuit filed by J. Michael McConnell and Jack Baker for joint income-tax benefits flowing from their same-sex marriage on September 3, 1971. Judge Ericksen has been asked by the government to dismiss the lawsuit. Her Magistrate, Jonathan Lebedoff, has granted that motion. In lay terms, that makes this an appeal at an administrative level.

At this point, the government argues a term called "claim preclusion bars McConnell from relitigating issues he actually raised, as well as issues he failed to raise during the prior litigation (the government’s italics)." That prior litigation was a suit for Veterans Benefits entitled McConnell v Nooner, 1976. Generally speaking, claim preclusion bars relitigating issues already litigated by given parties.

The government’s brief says further that back in 1976, "This Court (U.S. District, Minnesota) heard oral argument on the motions and then granted McConnell’s motion to amend to add the count concerning taxes. Following the amendment, this Court granted the government’s motion to dismiss as to all counts." (This reporter’s undelining)

McConnell and Baker claim, however, they never amended the previous complaint to include tax issues and that the current lawsuit should be allowed as that amendment. To say it differently, the couple says they have not litigated the tax issues.

The government claims "the fact that the Amended Complaint was never served … is irrelevant-because the additional count, as contained in the Amended Complaint, was dismissed by the same order permitting its filing."

Apparently, Judge Ericksen primarily has to decide whether the government’s time-warped argument holds. If she decides to hear the case, the lawsuit can be appealed all the way to the Supreme Court. Some think that any judge would like that since gay marriage is perhaps the hottest judicial issue of the decade.

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