A federal judge left six University of Wyoming sorority sisters with no choice but to appeal to a higher court when he dismissed their case in August. That’s according to the plaintiff’s latest filings in the ongoing legal battle over Kappa Kappa Gamma’s admittance of the first transgender sorority member in the state’s history.
When U.S. District Judge Alan B. Johnson dismissed the case in August, he did so without prejudice, meaning the plaintiffs could file an improved version of their claims in his court. But the sorority sisters’ attorneys don’t see it that way, arguing Johnson’s ruling effectively prevents their clients from submitting a revised lawsuit leaving an appeal to a higher court as their only recourse
“The decision of the district court is final and appealable because it dismisses all of Plaintiffs’ claims and does so on legal grounds that Plaintiffs cannot cure with an amended complaint,” plaintiffs stated in filings on Monday.
The argument came in response to attorneys for Kappa Kappa Gamma asking the federal appeals court to toss the case out since Johnson’s ruling was not one that could be appealed.
Tuesday, the 10th Circuit Court of Appeals in Denver ordered both parties to file briefs.
“No conclusive decision will be made regarding appellate jurisdiction now or before briefing on the merits is completed,” the order stated. “The parties may address appellate jurisdiction further in their merits briefs, if appropriate.”
Jaylyn Westenbroek, Hannah Holtmeier, Allison Coghan, Grace Choate, Madeline Ramar and Megan Kosar sued their UW sorority, Kappa Kappa Gamma, earlier this year for admitting Artemis Langford, a transgender woman.
After initially seeking to sue anonymously, the sorority sisters asked the court to void Langford’s membership in the group on the basis of her transgender identity. Langford was admitted by a vote of the local chapter’s membership in 2022, and plaintiffs argued that broke the organization’s bylaws and breached housing contracts.
Shortly before the school year began, Johnson ruled that a court cannot interfere with how the sorority determines its membership since it’s a private, voluntary organization. He also ruled that the plaintiffs failed to adequately state a claim against Langford and the sorority. Johnson, however, left the door open for the defendants to refile by ruling “without prejudice.”
Instead of refiling in the lower court, the sorority sisters hired high-powered appeals attorneys and filed a notice of appeal in the 10th Circuit Court of Appeals in Denver last month. They were then challenged by the sorority’s attorneys on a procedural requirement of the federal appellate courts.
“Appellants appeal a district court order that is not appealable,” lawyers for the sorority stated in a motion to dismiss.
“Under this Court’s precedent, a dismissal without prejudice that does not dismiss the entire case is not a final appealable order,” they argued.
Both parties focus on a single footnote of Johnson’s ruling, but make different arguments about what it means.
“If plaintiffs wish to amend their complaint, the Court advises Plaintiffs that they devote more than 6% of their complaint to their legal claims against Defendants,” footnote 67 states. “It also counsels Plaintiffs to provide more factual detail, where feasible, as well as highlight the Defendant(s) it sues under each count and relevant state statutes and authority. Finally, if provided another opportunity to clarify unclear language within an amended complaint, Plaintiffs should not copy and paste their complaint in lieu of elaboration or legal research that assists the Court in disentangling their claims.”
This excerpt, in particular, is where the court “plainly did not exclude” the plaintiffs from refiling, according to the attorneys for the sorority.
Attorneys for the sorority sisters, however, argue that Johnson’s conditional language does not guarantee they would be permitted to file an amended complaint. They also argue doing so would be a “futile endeavor” since there are no more facts they could present or develop to the lower court.
“The district court merely discussed what might happen ‘if’ plaintiffs were allowed to amend,” the attorneys argue. “As the rest of the order makes clear, however, no amendment could cure the legal grounds for dismissal on which the district court relied.”
The sorority sisters have a Dec. 4 deadline. Kappa Kappa Gamma will have to respond after that initial briefing.