Will the 10th Circuit Dismiss Utah's Appeal of Marriage Ruling?

As most readers will recall, last December a federal district court struck down Utah's ban on same sex marriages.  The posture of the case was that the plaintiffs sued the Governor, Attorney General and the Salt Lake County Clerk - who was responsible for issuing marriage licenses as the defendants.  On appeal, the County Clerk did not appeal the district court ruling.  Now, based on questions raised during oral argument before the 10th Circuit, anti-gay forces in Utah are worried that the 10th Circuit may dismiss the appeal for lack of standing - i.e., the absence of the County Clerk as an appellant.  Obviously, the irony would be ever so sweet if the appeal was dismissed and the lower court ruling was left standing.  Here are highlights from the Salt Lake Tribune:

There’s a small concern lurking beneath the surface in Utah’s same-sex marriage case, a quiet question that some experts say could derail the state’s push to permanently ban gay and lesbian unions.

Although few believe it poses a serious threat to the case’s trajectory — likely headed to the U.S. Supreme Court by summer — the question persists:   Could Kitchen v. Herbert be thrown out on a technicality? 

On Tuesday, Utah’s lead counsel Gene C. Schaerr 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. 

In the Utah lawsuit, the three couple plaintiffs represented by Peggy A. Tomsic and James E. Magleby named the governor, the attorney general and the Salt Lake County clerk in the case.

They allege these three officials are responsible for same-sex couples being denied marriage licenses and for out-of-state marriages remaining unrecognized in Utah.

 Why would Utah’s lead attorney be volunteering to the court that the governor and attorney general are, in fact, the proper people to sue?   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. 

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. "

 

It is not known when this decision may be issued, though experts estimate it could take anywhere from one to three months.

Should the court rule on the merits of the case and side with — or oppose —the lower court’s decision, its ruling would effectually extend to all states in the 10th Circuit, including Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming.