Standing and defendants

In affirming the district court and invalidating Utah's ban on marriage equality, the Tenth Circuit considered standing sua sponte. But, as with the D.C. Circuit's decision on the filibuster, the standing issue was not about the plaintiffs (who want to get married and are prevented from doing so, thus obviously have standing), but about the defendants--whether the governor and attorney general were proper defendants in this Ex Parte Young action.  (This was necessary as a preliminary to whether the governor and A/G could appeal, since the county clerk of Salt Lake County, a named defendant who is directly responsible for issuing marriage licenses to four sets of plaintiffs, declined to appeal).

Under Ex Parte Young, the named defendant must be the executive officer responsible for enforcing the challenged law. And the plaintiffs should lose if they sue an officer who is not responsible for enforcing that law. But the Tenth Circuit did not explain why this should be a component of the plaintiffs' standing, as opposed to the merits of the constitutional claim.

In fact, the unique position of the governor and A/G in this case illustrates why treating this as standing makes no sense. Under Utah law, the governor and A/G are not directly responsible for issuing marriage licenses (that rests with county clerks) or for doing things that require recognition or non-recognition of out-of-state marriages (not giving spousal benefits, not allowing joint tax returns, not giving marital deductions, etc.). But they are responsible for advising, supervising, and compellling the clerks and other state officials who refuse in recognizing same-sex marriages, which made them responsible defendants subject to suit. In essence, the court accepted "supervisory" Ex Parte Young liability (which makes sense, since executives delegate all the time).

But we regularly deal with supervisory liability in § 1983 damages actions, without ever invoking standing. For example, imagine Officer Y uses excessive force against A; A sues Supervisor X for failing to supervise Y, but it turns out that X is not Y's supervisor under state law. Without question, A loses. But the court would not say that A lacks standing; instead, that claim fails on the merits. Or compare this Eighth Circuit decision holding that an officer violated a person's rights by enforcing a flag-burning ordinance. The plaintiff also brought a Monell claim against the city for failing to properly train the officer, which the court rejected because, under Missouri law, cities are not responsible for training police officers. So the city could not be liable and the Monell claim failed on the merits. Again, no mention of standing.

So why if "you got the wrong guy" is a merits matter in these actions for retroactive relief, it makes no sense whatsoever for it to become a standing matter in Ex Parte Young actions for prospective relief.