Bishop v. Oklahoma Ex Rel. Edmondson , 333 F. App'x 361 ( 2009 )


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  •                                                                      FILED
    United States Court of Appeals
    Tenth Circuit
    June 5, 2009
    UNITED STATES COURT OF APPEALS
    Elisabeth A. Shumaker
    Clerk of Court
    TENTH CIRCUIT
    MARY BISHOP; SHARON
    BALDWIN; SUSAN G. BARTON;
    GAYE E. PHILLIPS, individuals,
    Plaintiffs - Appellees,
    No. 06-5188
    v.                                                    N.D. Okla.
    (D.C. No. 04-CV-848-TCK)
    OKLAHOMA, STATE OF, ex rel.,
    DREW EDMONDSON in his official
    capacity as Attorney General and
    BRAD HENRY in his official capacity
    as Governor,
    Defendants - Appellants.
    UNITED STATES OF AMERICA, ex
    rel., ERIC HOLDER, in his official
    capacity as Attorney General and
    BARACK H. OBAMA in his official
    capacity as President,
    Defendant
    ORDER AND JUDGMENT *
    Before O’BRIEN, McKAY and HOLMES, Circuit Judges.
    *
    This order and judgment is not binding precedent. 10th Cir. R. 32.1(A).
    Citation to orders and judgments is not prohibited. Fed. R. App. 32.1. But it is
    discouraged, except when related to law of the case, issue preclusion or claim
    preclusion. Any citation to an order and judgment must be accompanied by an
    appropriate parenthetical notation -- (unpublished). 10th Cir. R. 32.1(A).
    After examining the briefs and appellate record, this panel determined
    unanimously that oral argument would not materially assist the determination of
    this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case was
    therefore ordered submitted without oral argument.
    In this case, we must determine whether appellants, the Governor and
    Attorney General of the State of Oklahoma (together, the Oklahoma officials), are
    sufficiently connected to the enforcement of the Oklahoma Constitution’s
    marriage provisions to establish plaintiffs’ Article III standing and, if so, whether
    the Ex parte Young exception to the State’s Eleventh Amendment immunity
    applies. Ex Parte Young, 
    209 U.S. 123
     (1908). The district court denied the
    Oklahoma officials’ motion to dismiss, concluding the plaintiffs, two lesbian
    couples, had standing and the suit could go forward under Ex parte Young. See
    Bishop v. Oklahoma ex rel. Edmondson, 
    447 F. Supp.2d 1239
     (N.D. Okla. 2006).
    Exercising jurisdiction under the collateral order exception to 
    28 U.S.C. § 1291
    , 2
    we reverse.
    I. BACKGROUND
    This lawsuit was brought by two lesbian couples (together, the Couples)
    2
    The collateral order exception to 
    28 U.S.C. § 1291
     “provides for
    interlocutory appeal of orders denying motions to dismiss brought on the basis of
    Eleventh Amendment immunity as the basis for appellate jurisdiction.” Opala v.
    Watt, 
    454 F.3d 1154
    , 1157 (10th Cir. 2006).
    -2-
    challenging the federal Defense of Marriage Act (DOMA) 3 and Oklahoma’s
    amendment to its Constitution (Oklahoma Amendment) prohibiting same sex
    couples from being married in Oklahoma and the recognition of out-of-state same
    sex marriages. Because the federal law is not at issue on appeal, we address only
    3
    The Couples’ complaint challenged the substantive provision of § 2,
    codified at 28 U.S.C. § 1738C, which provides:
    No State, territory, or possession of the United States, or Indian tribe,
    shall be required to give effect to any public act, record, or judicial
    proceeding of any other State, territory, possession, or tribe
    respecting a relationship between persons of the same sex that is
    treated as a marriage under the laws of such other State, territory,
    possession, or tribe, or a right or claim arising from such
    relationship.
    The Barton Couple also contest the substantive provision of § 3, codified at 
    1 U.S.C. § 7
    , which provides:
    In determining the meaning of any Act of Congress, or of any ruling,
    regulation, or interpretation of the various administrative bureaus and
    agencies of the United States, the word “marriage” means only a
    legal union between one man and one woman as husband and wife,
    and the word “spouse” refers only to a person of the opposite sex
    who is a husband or a wife.
    The district court concluded neither couple had standing to bring suit based
    on § 2 of the DOMA – the Bishop Couple because they had not entered into a
    civil union in any State, and the Barton Couple because Vermont does not treat its
    civil union as a “marriage” and because the Full Faith and Credit Clause applies
    only to marriages in the United States. The court, however, found the Barton
    Couple had standing for purposes of their § 3 claim at the motion to dismiss stage
    and their Equal Protection and Due Process claims survived, at least until the
    summary judgment stage. Accordingly, the district court dismissed all the federal
    claims except the Barton Couple’s Equal Protection and Due Process claims
    challenging the substantive portion of § 3 of the DOMA. The federal defendants
    did not appeal this ruling.
    -3-
    the Oklahoma Amendment.
    A. The Oklahoma Amendment
    On November 2, 2004, Oklahoma voters approved legislative referendum
    No. 334, which amended the Oklahoma Constitution to add, in pertinent part:
    Marriage defined–-Construction of law and Constitution–-
    Recognition of out-of-state marriages--Penalty
    A. Marriage in this state shall consist only of the union of one man
    and one woman . . . . [No] provision of law shall be construed to
    require that marital status or the legal incidents thereof be conferred
    upon unmarried couples or groups.
    B. A marriage between persons of the same gender performed in
    another state shall not be recognized as valid and binding in this state
    as of the date of the marriage.
    C. Any person knowingly issuing a marriage license in violation of
    this section shall be guilty of a misdemeanor.
    See Okla. Const. art. 2, § 35.
    B. Procedural Background
    Mary Bishop and Sharon Baldwin (the Bishop couple) exchanged vows in a
    church ceremony in March 2002 and now wish to be civilly married in Oklahoma.
    Susan Barton and Gay Phillips (the Barton couple) were joined in a civil union in
    Vermont and legally married in Vancouver, British Columbia, Canada. They wish
    to have either or both ceremonies recognized in Oklahoma. To achieve their
    goals, the Couples sought, inter alia, a declaration that the Oklahoma Amendment
    is unconstitutional, specifically, it violates the Due Process Clause, the Equal
    -4-
    Protection Clause, the Full Faith and Credit Clause and the Privileges and
    Immunities Clause.
    In response to the Couples’ complaint, the Oklahoma officials moved to
    dismiss, claiming venue was improper in the Northern District of Oklahoma, the
    Couples lacked standing and the suit was barred by the Eleventh Amendment.
    The district court determined the Couples lacked standing to challenge subsection
    B of the Amendment because neither couple were “married” in another state as
    required by subsection B. As to subsection A, the court concluded the Couples
    had standing because they wished to be married in Oklahoma but subsection A
    precluded them from being married; there is a causal connection between that
    injury and the Amendment; and a declaration that the Amendment is
    unconstitutional will redress their claims. The court further determined venue
    was proper and the Ex parte Young exception to sovereign immunity applied.
    On appeal, the Oklahoma officials challenge only the ruling regarding the
    Ex parte Young doctrine. Unfortunately, the unique procedural stance of this
    appeal has deprived this Court of a full briefing of the issues. While the standing
    issue was briefed in the district court, it has not been raised on appeal. In
    addition, the Couples chose not to take advantage of several opportunities to file a
    compliant brief with this Court and the Oklahoma officials decided to forego oral
    -5-
    argument. 4 Nonetheless, jurisdictional considerations, while intertwined in the
    Young doctrine, remain our first order of business and we have authority to
    examine Article III standing sua sponte. See Alvarado v. KOB-TV, LLC., 
    493 F.3d 1210
    , 1214 n.1 (10th Cir. 2007). Because the plaintiffs failed to name a
    defendant having a causal connection to their alleged injury that is redressable by
    a favorable court decision, we conclude the Couples do not have standing. See 
    Id.
    II. DISCUSSION
    “Before we address the merits of [a] case, . . . we must first determine
    whether the federal district court, and likewise this court, has subject-matter
    jurisdiction over the dispute.” In re Aramark Leisure Serv’s, 
    523 F.3d 1169
    , 1173
    (10th Cir. 2008). “Article III standing requires that a plaintiff allege an
    injury-in-fact that has a causal connection to the defendant and is redressable by a
    favorable court decision.” Opala, 
    454 F.3d at 1157
    .
    Bronson v. Swensen is a mirror-image of the case before us. 
    500 F.3d 1099
    (10th Cir. 2007). There, we considered the constitutional challenge to Utah’s
    polygamy statutes naming Sherrie Swensen, the Clerk of Salt Lake County, Utah,
    4
    On January 5, 2007, the Couples were advised that their brief (due
    December 29, 2006) was late and unless a brief was filed within ten calendar
    days, we would apply Fed. R. App. P. 31(c), denying them an opportunity to
    participate in oral argument. On January 20, they filed a late and deficient brief.
    On January 23, we gave the Couples another opportunity, until February 6, to file
    a compliant brief. On February 9, we provided them with a final opportunity to
    file a compliant brief by February 19. On March 2, 2007, having received no
    response from the Couples, we deemed the appeal fully briefed.
    -6-
    as the only defendant. The plaintiffs, a married couple and the husband’s fiancé,
    claimed, inter alia, Utah’s criminal prohibition of polygamy violated the federal
    constitution. We concluded the plaintiffs lacked standing because, among other
    things, they could not show causation or redress ability in a suit against the
    County Clerk. As to causation, they had not shown “a substantial likelihood that
    the defendant’s conduct caused plaintiff’s injury in fact” because the County
    Clerk had no authority to initiate a criminal prosecution against them. 
    Id. at 1110
    (quotations omitted). Similarly, because an injunction against the Clerk would
    not shield them from the claimed injury, prosecution for bigamy, the plaintiffs
    failed to establish redressability. 
    Id. at 1111-12
     (“Enjoining this defendant from
    enforcing [Utah’s criminal prohibition of polygamy] would be a meaningless
    gesture.”). Thus, without mention of sovereign immunity or Ex parte Young, we
    determined the plaintiffs lacked Article III standing. 5
    5
    On appeal, the Oklahoma officials argue only the improper application of
    the Ex parte Young exception. While we need not reach this issue, we note in Ex
    parte Young, the Supreme Court said: “In making an officer of the state a party
    defendant in a suit to enjoin the enforcement of an act alleged to be
    unconstitutional, it is plain that such officer must have some connection with the
    enforcement of the act, or else it is merely making him a party as a representative
    of the state, and thereby attempting to make the state a party.” 
    209 U.S. at 157
    ;
    see also Finstuen v. Crutcher, 
    496 F.3d 1139
    , 1151 (10th Cir. 2007) (“[T]he state
    officer against whom a suit is brought must have some connection with the
    enforcement of the [unlawful] act.”) (quotations omitted).The “necessary
    connection” language in Young has caused some confusion. As one court has
    described the inquiry, the necessary connection between the state defendant and
    the subject of the suit is “the common denominator of two separate inquiries:
    first, whether there is the requisite causal connection between [the defendant’s]
    responsibilities and any injury that the plaintiffs might suffer, such that relief
    -7-
    Here, the Oklahoma officials’ generalized duty to enforce state law, alone,
    is insufficient to subject them to a suit challenging a constitutional amendment
    they have no specific duty to enforce. See Women’s Emergency Network v. Bush,
    
    323 F.3d 937
    , 949-50 (11th Cir. 2003) (“Where the enforcement of a statute is the
    responsibility of parties other than the governor (the cabinet in this case), the
    governor’s general executive power is insufficient to confer jurisdiction.”); see
    also Waste Mgm’t. Holdings, Inc. v. Gilmore, 
    252 F.3d 316
    , 330-31 (4th Cir.
    2001) (concluding governor’s general duty to enforce the laws of Virginia
    insufficient when he lacks a specific duty to enforce the challenged statutes);
    Okpalobi v. Foster, 
    244 F.3d 405
    , 422-25 (5th Cir. 2001) (en banc) (constitutional
    challenge to state tort statute against Governor and Attorney General not viable
    under the Ex Parte Young doctrine because no enforcement connection existed
    between Governor or Attorney General and the statute in question); 1st Westco
    Corp. v. Sch. Dist. of Phila., 
    6 F.3d 108
    , 112-13, 116 (3d Cir. 1993) (“If we were
    to allow [plaintiffs] to join . . . [the State officials] in this lawsuit based on their
    general obligation to enforce the laws . . ., we would quickly approach the nadir
    of the slippery slope; each state’s high policy officials would be subject to defend
    against the defendants would provide redress [Article III standing]; and second,
    whether our jurisdiction over the defendants is proper under the doctrine of Ex
    parte Young . . . . which requires some connection between a named state officer
    and enforcement of a challenged state law.” Planned Parenthood of Idaho, Inc. v.
    Wasden, 
    376 F.3d 908
    , 919 (9th Cir. 2004) (citations and quotations omitted)
    (emphasis added). In other words, the Young doctrine does not relieve a plaintiff
    of the obligation to name a proper defendant.
    -8-
    every suit challenging the constitutionality of any state statute, no matter how
    attenuated his or her connection to it.”).
    The Couples claim they desire to be married but are prevented from doing
    so, or they are married but the marriage is not recognized in Oklahoma. These
    claims are simply not connected to the duties of the Attorney General or the
    Governor. Marriage licenses are issued, fees collected, and the licenses recorded
    by the district court clerks. See 
    Okla. Stat. Ann. tit. 28, § 31
    ; 
    Okla. Stat. Ann. tit. 43, § 5
    . “[A] district court clerk is ‘judicial personnel’ and is an arm of the court
    whose duties are ministerial, except for those discretionary duties provided by
    statute. In the performance of [a] clerk’s ministerial functions, the court clerk is
    subject to the control of the Supreme Court and the supervisory control that it has
    passed down to the Administrative District Judge in the clerk’s administrative
    district.” Spreight v. Presley, 
    203 P.3d 173
    , 177 (Okla. 2008). Because
    recognition of marriages is within the administration of the judiciary, the
    executive branch of Oklahoma’s government has no authority to issue a marriage
    license or record a marriage. Moreover, even if the Attorney General planned to
    enforce the misdemeanor penalty (a claim not made here), that enforcement would
    not be aimed toward the Couples as the penalty only applies to the issuer of a
    marriage license to a same-sex couple. Thus, the alleged injury to the Couples
    could not be caused by any action of the Oklahoma officials, nor would an
    -9-
    injunction (tellingly, not requested here) 6 against them give the Couples the legal
    status they seek.
    Because the Couples lack Article III standing, we REVERSE the district
    court’s failure to dismiss the claims against the Oklahoma officials and
    REMAND the case for entry of an order dismissing these claims for lack of
    subject matter jurisdiction.
    Entered by the Court:
    Terrence L. O’Brien
    United States Circuit Judge
    6
    Here, the Couples’ complaint failed to identify any action that would be
    taken by the Governor or the Attorney General which would affect them. They
    did not request the court order the Oklahoma officials to act or refrain from
    acting. Instead, the sole request for relief was that the Oklahoma Amendment be
    declared unconstitutional.
    -10-