Appellate Case: 13-4178

Document: 01019234611

Date Filed: 04/15/2014

Page: 1



Chief Criminal Deputy

General Counsel & Chief of Staff

Solicitor General

Chief Civil Deputy

April 15, 2014 Via electronic filing Elisabeth A. Shumaker Clerk of the Court United States Court of Appeals for the Tenth Circuit Byron White U.S. Courthouse 1823 Stout Street Denver, Colorado 80257 Re: Kitchen v. Herbert, No. 13-4178 Rule 28(j) letter regarding Article III standing

Ms. Shumaker, At argument, the panel questioned whether Bishop v. Oklahoma, 333 F. App’x 361 (10th Cir. 2009), deprived the parties of Article III standing in this appeal. Because no one addressed that issue in the briefing, Utah provides this supplemental letter to show that, unlike Bishop, Plaintiffs had standing below, and the State has standing to prosecute this appeal. Unlike Bishop, Utah marriage licenses are issued by county clerks, Utah Code § 17-20-4, not by court clerks “within the administration of the judiciary.” 333 F. App’x at 365. And, unlike Bishop, Plaintiffs here sued the clerk who had denied them a license and sought to enjoin the Attorney General and Governor from enforcing the challenged marriage laws. Appendix 70-71, 73-74, 81, 92. Plaintiffs’ suit thus satisfied the demands of Article III standing. See, e.g., Hollingsworth v. Perry, 133 S. Ct. 2652, 2660, 2661-62 (2013) (noting that no one disputed the plaintiffs had standing to challenge Proposition 8 by suing “California’s Governor, attorney general” and other officials “responsible for enforcing California’s marriage laws”). Likewise, the Governor and Attorney General have standing to pursue this appeal—a different inquiry and one that Bishop did not address.
160 East 300 South • P.O. Box 140856 • Salt Lake City, Utah 84114-0856 - Telephone: (801) 366-0100 - Fax: (801) 366-0101

Appellate Case: 13-4178

Document: 01019234611

Date Filed: 04/15/2014

Page: 2

Elisabeth A. Shumaker April 15, 2014 Page 2

Hollingsworth, 133 S. Ct. at 2662 (noting “the inquiry under Article III changed” after plaintiffs won and the state defendants were enjoined). Here the district court declared that Utah’s marriage definition provisions are unconstitutional and enjoined “the State from enforcing” those laws. Kitchen v. Herbert, 961 F. Supp. 2d 1181, 1216 (D. Utah 2013). That injunction directly restrains the Governor and the Attorney General from fulfilling their respective duties to “see that the laws are faithfully executed,” Utah Const. Art. VII, section 5, and to “supervise the official conduct of all executive and ministerial officers,” Utah Code § 67-1-1(1), and “exercise supervisory powers over the district and county attorneys of the state,” Id. § 67-5-1(6). They undoubtedly have standing to appeal that restraint on their conduct. See, e.g., Hollingsworth, 133 S. Ct. at 2662. Moreover, “a State has standing to defend the constitutionality of its statute.” Diamond v. Charles, 476 U.S. 54, 62 (1986). Respectfully submitted, /s/ Gene Schaerr

ECF CERTIFICATIONS Pursuant to Section II(I) of the Court’s CM/ECF User’s Manual, the undersigned certifies that: 1. all required privacy redactions have been made; 2. hard copies of the foregoing brief required to be submitted to the clerk’s office are exact copies of the brief as filed via ECF; and 3. the brief filed via ECF was scanned for viruses with the most recent version of Microsoft Security Essentials v., and according to the program is free of viruses. /s/ Gene Schaerr

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