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JERROLD S. JENSEN (#1678) THOM D. ROBERTS (#2773) Assistant Attorneys General MARK L. SHURTLEFF (#4666) Attorney General Attorneys For Defendants 160 East 300 South, 5th Floor P.O. Box 140857 Salt Lake City, Utah 84114-0857 Telephone: (801) 366-0353 jerroldjensen@utah.gov thomroberts@utah.gov

UNITED STATES DISTRICT COURT DISTRICT OF UTAH, CENTRAL DIVISION

KODY BROWN, MERI BROWN, JANELLE BROWN, CHRISTINE BROWN, ROBYN SULLIVAN, Plaintiffs, vs.

DEFENDANTS RESPONSE TO ORDER TO SHOW CAUSE

Case: 2:11CV00652 GARY R. HERBERT, in his official capacity as Governor of Utah; MARK SHURTLEFF, in his official capacity as Attorney General of Utah; JEFFREY R. BUHMAN, in his official capacity as County Attorney for Utah County, Defendants. Judge Clark Waddoups

Defendants above named, by and through their attorneys of record, Jerrold S. Jensen, Assistant Utah Attorney General, and Thom D. Roberts, Assistant Utah Attorney General, and pursuant to the Courts Order dated October 28, 2011, directing the parties to show cause why

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the United States should not be joined as a required party under Fed. R. Civ. P. 19(a)(1)(B)(i), hereby respond as follows: Rule 19(a)(1)(B)(i) of the Federal Rules of Civil Procedure requires that a party must be joined if: (B) that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the persons absence may: (i) as a practical matter impair or impede the persons ability to protect the interest. The Court in its order referenced the potential interests of the United States in Utahs prohibition of polygamy or plural marriage based upon the United States requiring a prohibition of polygamy as a condition for granting statehood in the Utah Enabling Act of 1894, Ch. 138, 3, 28 stat. 107, 108. Ordering such a joinder, without the opportunity of the United States to respond, predetermines the United States interests in the matter and whether it can otherwise protect those interests. It is submitted that such is not the most efficacious course to determine whether the United States Government should be a party to these proceedings. Plaintiffs claim is that the Utah criminal provisions on polygamy are unconstitutional. Since the Enabling Act allowing Utah to become a state required the state to forever prohibit polygamy, Plaintiffs claims may call into question the constitutionality of that federal statute. Rule 5.1 of the Federal Rules of Civil Procedure requires that a party who files a pleading drawing into question the constitutionality of a federal statute must give notice to the United States and to the Attorney General that a federal statute is being questioned. Pursuant to that

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Rule, the Court, under the provisions of 28 U.S.C. 2403, certifies to the appropriate Attorney General that the statute has been questioned. Rule 5.1 as well as 28 U.S.C. 2403 then give the United States the power and authority to intervene and/or participate in the proceedings concerning the constitutionality of the statute. Rather than requiring argument and a court determination whether the United States Government, in the circumstances of this case, is a person required to be joined if feasible, the Court should instead direct the service of the notice under Rule 5.1 and 28 U.S.C. 2403. The Attorney General and the United States may then determine, based upon the claims in this case, whether they have an interest relating to the subject matter of the action and that proceeding without them being a party in this case would impair or impede their ability to protect their interest. If such were the case, the United States would have the right and would be allowed to join and/or participate in this action. DATED this 9th day of December, 2011. MARK L. SHURTLEFF Utah Attorney General

/s/Thom D. Roberts THOM D. ROBERTS Assistant Attorney General

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CERTIFICATE OF SERVICE This is to certify that copies of the foregoing DEFENDANTS RESPONSE TO ORDER TO SHOW CAUSE was served by electronically filing the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following: Jonathan Turley jturley@law.gwu.edu Adam Alba adam.alba@gmail.com

/s/Sherri L.Cornell Secretary

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