Gay Marriage Opponents Concerned Utah Appeal Might Be Dismissed Over Standing

Questions have being raised about standing in the 10th Circuit appeal of Kitchen v. Herbert, the ruling striking down Utah's ban on gay marriage, and some believe the court could dismiss the case because the proper defendants were not named in the suit.

SchaerrThe plaintiffs named the governor, the attorney general and the Salt Lake County Clerk in the case.

The Salt Lake Tribune reports:

On Tuesday, Utah’s lead counsel Gene C. Schaerr (pictured)  drew attention to a question posed to both sides by a three-judge panel at the 10th Circuit Court of Appeals last week regarding whether the lawsuit targeted the appropriate state and county officials…

…If the court finds that they’re not, the appellate judges may decline to rule in the case, leaving Judge Robert J. Shelby’s ruling to stand as law in Utah.

Questions from the court during arguments last week have led some to believe they are considering this, the paper adds:

During Utah’s arguments last week, Judge Jerome A. Holmes — widely considered to be the "vote to get" in the case — asked Tomsic to explain why the defendants her plaintiffs had singled out were appropriate.

Further, he asked whether the state continued to have the right to appeal the case, given that Salt Lake County Clerk Sherrie Swensen declined to appeal Judge Shelby’s Dec. 20 decision to overturn Utah’s same-sex marriage ban.

"You sued the clerk of court," Holmes said, referring to Swensen. "But the clerk of court is not on the appeal, and, it would seem to me that creates a fundamental basis for concern about where jurisdiction lies in this case. "

Schaerr insists that the officials named have standing to defend the case:

The explanation several Utah county clerks gave was they were waiting on direction from the attorney general or governor’s office as to how they should handle the situation.

This, Schaerr states in his letter to the court, is further proof that with or without the Salt Lake County clerk, the governor and the attorney general are within their jurisdiction to appeal the case to the 10th Circuit and, perhaps, beyond.

"Utah marriage licenses are issued by county clerks […] not by court clerks," Schaerr wrote. "Plaintiffs’ suit thus satisfied the demands of Article III standing."


  1. says

    The main thing I get from the standing issue is that the only people who get to sue are people who have been hurt. The only people who are being hurt in the same marriage ban issue are people who want to enter into such marriages. They get to sue. State officials and angry Christians, they aren’t getting hurt by same sex marriage. They don’t necessarily get a day in court over their wish to prevent the world from changing.

    Well, we’ll see.

  2. TKinSC says

    This is ridiculous. A state law was struck down by the district court. Obviously the state has a right to appeal.

    That said, I would note that the Constitution gives the Supreme Court original jurisdiction over cases where a state is a party, so I’m not so sure this case should have even been heard in either the district court or the appeals court to start with.

  3. Randy says

    Have the parties changed?

    If there’s a problem with standing, it seems likely that existed in the district court as well, and Shelby’s ruling would be void.

  4. Fodolodo says

    Randy: The plaintiffs named the county clerk (of Salt Lake County, I think), who’s directly in charge of issuing marriage licenses, but she declined to appeal. That’s the issue. But I don’t think this appeal is going to get dismissed on standing, because the governor and the attorney general appear to have authority over the county clerks, as they do in California, and as they appear not to in Oklahoma.

  5. Buster says

    @TKINSC — “Original” jurisdiction is not “exclusive” jurisdiction. The only matters in which the Supreme Court currently has “original AND exclusive” jurisdiction (meaning it MUST be the trial court) are suits between two States (U.C.C. 1281(a))

    I think the description above of what is going on here is a little confusing. But it’s a technical, tricky point. At the trial level the plaintiffs sued the Utah Governor, the Utah Attorney General and the Salt Lake City County Clerk. The trial court ruled against them and ordered them to issue marriage licenses. When the appeal to the 10th Cir. was filed only the Governor and the Attorney General were named as appellants, NOT the Salt Lake City Country Clerk.

    So the 10th Cir. is asking, essentially, “since the Clerk isn’t a party on the appeal in front of us, it seems like we may not have the power (party jurisdiction) to change the trial court’s order to the Clerk.” (Because generally, courts can’t order you to do something if you aren’t appearing in the case.)

    In some states, the clerk who issues marriage licenses is part of the the Judicial system so the clerk doesn’t report to the Gov. and Atty. Gen. and the Clerk would need to be in the case. But what Utah is saying here is “in Utah, marriage licenses are issued by the COUNTY clerks, who report to the Executive branch (i.e. the Governor and Atty Gen.) so it doesn’t matter that the Clerk didn’t appeal because she reports to us and we can direct her actions.”

    So Utah is just arguing that all the necessary parties are involved in the appeal. Utah wants to avoid the possibility that the 10 Cir. might say “the Clerk needed to be in this case and she didn’t appeal, so we don’t have the power to reverse the trial court’s order to her.”

    It’s a technical but important point (the Supreme Court’s ruling in the Hollingsworth Prop 8. case last June also ended up being based on this sort of party jurisdiction issue.) If the Court decides the right parties aren’t there, it gives the Court the chance to avoid having to rule on the Constitutional issues for now … just like the Supreme Court avoided it in Hollingsworth.

    Similar party jurisdiction issues were raised by the same court when it heard the Oklahoma equal marriage appeal this week. I suspect that the court will only use the party jurisdiction side step if it can find a way to do it in both cases.

  6. Will says

    I’m normally a fan of the local law firms that take on these cases in place of the usual Lambda Legal or ACLU or AFER. But this shows the importance of going to bat with multiple plaintiffs and targeting someone who will defend the state, unlike the one clerk in this case.

    You don’t just complain, you try to file a joint tax return and get it rejected. You find a state worker who can’t get insurance for a same-sex spouse. You find someone who wants to sue for wrongful death as the surviving spouse but can’t because some state official won’t recognize the marriage.

    Cases asking for death or birth certificates are examples too.

    Worst case, we end up with SSM in Utah, but no way to get this case to the Supremes. Not so bad, but not what was hoped for. There are fortunately other cases.

  7. Jim says

    Interesting bit of technical arcana. The reply from the state doesn’t make sense: “Utah marriage licenses are issued by county clerks not by court clerks. Plaintiffs’ suit thus satisfied the demands of Article III standing.” But as no county clerks are named in the suit and as neither the governor nor the attorney general has the authority to issue a marriage license, why do they have standing in the appeal? Standing means that a person named in the appeal either will suffer an injury or will be ordered to do something or refrain from doing what he’s already doing. None of that applies to the governor or attorney general. They can’t just be generic placeholders in the suit. They have to be involved in the marriage license process, but they’re not. So standing is an open issue, and maybe Utah is going to go the way of Prop 8. That would be nice.