Sister Wives Dismiss Motion.053112

7/31/2019 Sister Wives Dismiss Motion.053112

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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

[email protected]

[email protected]

______________________________________________________________________________

UNITED STATES DISTRICT COURT

DISTRICT OF UTAH, CENTRAL DIVISION

KODY BROWN, MERI BROWN,

JANELLE BROWN, CHRISTINE BROWN,

ROBYN SULLIVAN,

Plaintiffs,

vs.

JEFFREY R. BUHMAN, in his official

capacity as County Attorney for Utah County,

Defendant.

MEMORANDUM IN SUPPORT OF

DEFENDANTS MOTION TO

DISMISS FOR MOOTNESS

Case: 2:11CV00652

Judge Clark Waddoups

Defendant Jeffrey R. Buhman, in his official capacity as Utah County Attorney, State of

Utah, files this Memorandum in Support of his Motion to Dismiss Plaintiffs Complaint for

Mootness.

Case 2:11-cv-00652-CW-BCW Document 47 Filed 05/31/12 Page 1 of 13
mailto:[email protected]:[email protected]:[email protected]:[email protected]


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STATEMENT OF FACTS

1. It is estimated that approximately 30,000 polygamists live in the State of Utah.

Pltfs. Cmplt. 54. (Doc. 1.) How many polygamists actually live in Utah County is not known,

but it is known that a polygamist community of Apostolic United Brethren (AUB) the church

to which the Browns claim membership live in the southern part of Utah County and the

northern part of Juab County. First Buhman Decl., 8-9, Aug. 24, 2011. (Doc. 8-1.)

2. When the last criminal prosecution for polygamy was brought in Utah County is

not known, but active prosecution of polygamists for just the practice of polygamy has not

occurred in Utah since the 1940s and 50s. Whether there has been a prosecution for polygamy1

in Utah County in the recent past is not known by Defendant Buhman. First Buhman Decl., 7.

(Doc. 8-1.) But none of the cases cited by Plaintiffs in their Memorandum in Opposition to

Defendants Motion to Dismiss (Doc. 12) for the prosecution of polygamists in Utah in the last

50 years originated in Utah County.2

3. In October, 2010 the Utah County Attorneys Office received a report from the

Lehi City Police Department regarding the airing of the TLC television series Sister Wives, in

SeeState v. Barlow, et al., 107 Utah 292, 153 P.2d 649 (1944); State v. Musser, et al., 110 Utah 534, 1751

P.2d 724 (1946), cert. granted, 333 U.S. 95, 68 S.Ct. 397 (1948);State v. Musser, 118 Utah 537, 223 P.2d 193

(1950); State v. Barlow, 8 Utah 2d 396, 335 P.2d 629 (1959). All of these cases originated in Salt Lake County.

In re Steed, 2006 UT 10, 131 P.3d 231 (Washington County); Mark Easterday (Sevier County); Steve2

Bronson (Millard County).

Memorandum in Support of His Motion to Dismiss Plaintiffs Complaint for Mootness

Kody Brown v. Buhman

U.S. District Court Case 2:11CV00652

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which Plaintiff Kody Brown claimed to be a resident of Lehi City, Utah County, and admitted to

being in a polygamist relationship with three women. Second Buhman Decl., 2, May 22, 2012.

4. The Lehi City Police Departments report was the first police report to have been

submitted to the Utah County Attorneys Office during Defendant Buhmans tenure as Utah

County Attorney alleging the offense of bigamy in violation of Utah Code 76-7-101

where the bigamy was not related to marriage fraud or the failure to obtain a divorce prior to

remarrying. Second Buhman Decl., 3.

5. In response to the Lehi City Police Departments report, the Utah County

Attorneys Office opened a case file as they do for all police reports submitted to the Utah

County Attorneys Office on the Browns. Second Buhman Decl., 4.

6. At the time of the Lehi City Police Departments report, the Utah County

Attorneys Office did not have a formal policy regarding the prosecution of polygamy, and no

one in the office had any recollection of the Utah County Attorneys Office ever prosecuting

anyone for the practice of polygamy. Second Buhman Decl., 6.

7. The Utah County Attorneys Office has now adopted formal policy related to the

prosecution of bigamy. That policy states:

Prosecution of Bigamy Crimes:

The Utah County Attorneys Office will prosecute the crime of

bigamy under Section 76-7-101 in two circumstances: (1) When a

victim is induced to marry through their partners fraud,misrepresentations or omissions; or (2) When a person purports to

marry or cohabits with another person in violation of Section 76-7-

101(1) and is also engaged in some type of abuse, violence or




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fraud. This office will prosecute the crime of bigamy under

Section 76-7-101.5 regardless of whether one of the parties is also

engaged in some type of abuse, violence or fraud.

Second Buhman Decl., 8-9.

8. The purpose of this policy is to prevent the future prosecution in Utah County of

bigamist marriages entered into for religious reasons. Second Buhman Decl., 10.

9. The Utah County Attorneys Office has now concluded its investigation of

Browns and has determined that no other prosecutable crimes related to the bigamy allegation

have been or are being committed by the Browns in Utah County as of May 22, 2012. Therefore,

bigamy charges will not be filed by the Utah County Attorneys Office against Cody Brown,

Meri Brown, Janelle Brown, Christine Brown or Robyn Sullivan. Second Buhman Decl., 11.

10. Accordingly, the criminal case against the Browns is closed and no charges will

be filed against them for bigamy unless new evidence is discovered which would comport with

the offices new policy pertaining to the prosecution of bigamy crimes. Second Buhman Decl.,

12.

INTRODUCTION

Given that the subject of polygamy is a frequent item that confronts the State of Utah, it is

not surprising that the Utah Attorney General had a formal policy regarding the prosecution of

polygamy at the time the Browns initiated this case. But given that no police report had been

submitted to the Utah County Attorneys Office within the memory of anyone currently working

for the Utah County Attorneys Office it is not surprising that the Utah County Attorneys Office




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did not have a formal policy regarding the prosecution of polygamy at the time the Browns

initiated this case.

This case has brought to the attention of the Utah County Attorney the need for a formal

policy regarding the prosecution of the practice of polygamy. That policy has now been put in

place. It is intended to prevent future prosecution of polygamists in Utah County for just the

practice of polygamy. This policy, as stated in paragraph 7 above, is substantially similar to the

policy of the Utah Attorney Generals Office which provides that no prosecution of polygamy

will occur unless in conjunction with some other crime. Shurtleff Decl., 6. (Doc. 8-2.) This

policy is not intended to just apply to the Browns, but is meant to stand as a permanent policy of

the Utah County Attorneys Office to be applied equally to anyone engaged in the practice of

polygamy. Obviously, Defendant Buhman cannot bind the future actions or policies of successor

Utah County attorneys, but at this point it is intended to be a permanent policy of the Buhman

administration and most likely, as happened in the Utah Attorney Generals Office, will carry

over to succeeding administrations.

In addition, as stated by Defendant Buhman, the Utah County Attorneys Office has

determined that bigamy charges will not be filed against the Plaintiffs for bigamy or any other

crimes known to the Utah County Attorneys Office as of the date of Defendant Buhmans

declaration. Second Buhman Decl., 11-12.

Thus, Defendant Buhman moves this Court for an Order of Dismissal based on mootness

and lack of justiciability.




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ARGUMENT

I. THE MOOTNESS DOCTRINE PROVIDES THAT ALTHOUGH THERE MAY BE AN ACTUAL

AND JUSTICIABLE CONTROVERSY AT THE TIME THE LITIGATION IS COMMENCED, ONCE

THAT CONTROVERSY CEASES TO EXIST, THEFEDERAL COURT MUST DISMISS THE

ACTION FOR WANT OF JURISDICTION.

The constitutional mootness doctrine is grounded in Article IIIs requirement that federal

courts only decide actual, ongoing cases or controversies.... The central question in

determining whether a case has become moot is whether the issues presented are no longer

live or the parties lack a legally cognizable interest in the outcome.Phelps v. Hamilton, 122

F.3d 1309, 1325-26 (10 Cir. 1997) (citations omitted). [A] federal court has no power to giveth

opinions upon moot questions or declare principles of law which cannot affect the matter in issue

in the case before it, a controversy must exist during all stages of . . . review.Chihuanhuan

Grasslands Alliance v. Kempthorne, 545 F.3d 884, 891 (10 Cir. 2008). When intervening actsth

destroy a partys legally cognizable interest in the lawsuit, the federal courts are deprived of

jurisdiction.Mink v. Suthers, 482 F.3d 1244 (10 Cir. 2007).th

Since the Utah County Attorneys Office has issued its policy regarding the prosecution

of bigamy crimes stating that it will only prosecute the crime of polygamy when it is in

conjunction with some other crime such as abuse, violence or fraud and has closed its

investigation of the Browns on the determination that there are no other crimes being committed

by the Browns related to the bigamy allegation, Plaintiffs are no longer under any threat of

prosecution. Plaintiffs have already obtained the relief they sought (i.e., no prosecution under




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Utahs bigamy statute), thus there is no longer a live controversy. As a result, this case is now

moot and should be dismissed.

The Tenth Circuit has discussed mootness in numerous cases. See, e.g., Lippoldt v. Cole,

468 F.3d 1204, 1216 (10 Cir. 2006); Citizens for Responsible Government State Political Actionth

Committee v. Davidson, 236 F.3d 1174, 1181-82 (10 Cir., 2000);McClendon v. City ofth

Albuquerque, 100 F.3d 863, 867 (10 Cir. 1996);Beattie v. United States, 949 F.2d 1092, 1093th

(10 Cir. 1991); Western Nuclear, Inc., v. Huffman, 825 F.2d 1430, 1434 (10 Cir. 1987); Wileyth th

v. National Collegiate Athletic Association, et al., 612 F.2d 473, 475 (1979). Two of the more

recent cases, Winsness v. Yocom, 433 F.3d 727 (10 Cir. 2006) andMink v. Suthers, 482 F.3dth

1244 (10 Cir. 2007), have factual situations very similar to the case at hand. In both of theseth

cases the Tenth Circuit found that an intervening act by those charged with enforcing the

challenged statute, specifically an assurance not to prosecute, rendered the cases moot.

In Winsness v. Yocom the Tenth Circuit found the case to be moot after the district

attorney filed an affidavit with the court assuring it that charges would not be pursued against

the two plaintiffs seeking relief from prosecution under a flag abuse statute. One plaintiff had

already been cited under the statute at the time he filed suit. 433 F.3d at 734. Even if we

assume that a credible threat of prosecution existed before this lawsuit was filed, the prosecutors

affidavits have rendered the controversy moot.Id. at 736.

InMinkv. Suthers the Tenth Circuit dismissed for mootness where the district attorney

disclaimed an intent to prosecute the plaintiff after the lawsuit was filed and issued a no file




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letter to the court and the plaintiff. Minkinvolved a college students challenge of a Colorado

criminal libel statute after his computer was seized and an investigation completed by local

police. The Tenth Circuit affirmed the lower courts decision that no credible threat of

prosecution existed based on the representations of the public officials charged with enforcing

the statute against Mink that they would not prosecute. The Court concluded that even if there

was a credible threat of prosecution giving plaintiff standing at the time the lawsuit was filed,

Minks case was mooted by the district attorneys no file letter advising the court and Mink

that he would not be prosecuted under the statute then or in the future.

In both Winsness andMinkthe plaintiffs had standing based on a credible threat when

their suit was filed, either due to a pending criminal investigation or a citation under a criminal

statute, but in both cases a clear representation of an intent not to prosecute by the public official

charged with enforcing the statute mooted the case.

Mootness goes to the jurisdiction of a federal court. To satisfy the case or controversy

limitation of Article III, [t]he actual controversy between the parties must exist at stages of

appellate or certiorari review, and not simply at the date the action is initiated. Western

Nuclear. Huffman, 825 F.2d 1430, 1434 (10 Cir. 1987), citing Wiley v. National Collegiateth

Athletic Association, 612 F.2d 473, 475 (1979) (quotingRoe v. Wade, 410 U.S. 113, 125 (1973).)

Simply stated, a case is moot when the issues presented are no longer live or the parties lack a

legally cognizable interest in the outcome. Western Nuclear, 825 F.2d at 1434, quotingPowell

v. McCormack, 395 U.S. 486, 496 (1969). As the Tenth Circuit said in Western Nuclear, the




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burden of demonstrating mootness is a heavy one, and can be satisfied only if two conditions

are meet: (1) it can be said with assurance that there is no reasonable expectation ... that the

alleged violation will recur, and (2) interim relief or events have completely and irrevocably

eradicated the effects of the alleged violation. Id. at 1434 (citations omitted).

Here, the Utah County official charged with enforcing the statute against the Browns has

stated by a sworn declaration his intent not to prosecute the Browns under Utahs criminal

bigamy statute; has adopted a formal policy for Utah County regarding the prosecution of

polygamy, which holds that no prosecutions will take place unless accompanied by some other

related crime such as abuse, violence, or fraud; and has said that there are no other prosecutable

crimes of which he is aware that have been committed by the Browns. Second Buhman Decl.

9-12.

As stated byMoores Federal Practice: The mootness doctrine provides that although

there may be an actual and justiciable controversy at the time the litigation is commenced, once

that controversy ceases to exist, the federal court must dismiss the action for want of

jurisdiction. 15 James W. Moore & Martin H. Redish,Moores Federal Practice 101.90, at

101-237 (3d ed. 2010)

II. THE COURT SHOULD DISMISS THIS CASE AGAINST DEFENDANT BUHMAN FOR LACK OF

JUSTICABILITY.

[A]n actual controversy must be extant at all stages of review, not merely at the time the

complaint is filed. Arizonans for Official English v. Arizona, 520 U.S. 43, 67 (1997). The




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actual controversy between the parties must exist at stages of appellate or certiorari review, and

not simply at the date the action is initiated. Roe v. Wade, 410 U.S. 113, 125 (1973). [P]ast

exposure to alleged illegal conduct does not establish a present live controversy if

unaccompanied by any continuing present effects. McClendon v. City of Albuquerque, 100 F.3d

863, 867 (10 Cir. 1996). And, as this Court noted in its Memorandum Decision and Order,th

dated February 3, 2012, (Doc. 31) [a] federal court must in every case, and at every stage of the

proceeding, satisfy itself as to its own jurisdiction. Id. at 4 (citing Citizens Concerned for

Separation of Church & State v. City & Cnty. Of Denver, 628 F.2d 1289, 1297 (10 Cir. 1980).)th

When the complaint in this case was initially filed, there was no possibility Defendant

Gary Herbert, as governor, would prosecute the Browns. Nor was there a possibility Defendant

Mark Shurtleff would either because of the policy adopted by the Utah Attorney Generals office

not to prosecute polygamists just for the practice of polygamy. As a result of there being no

credible threat of prosecution of the Browns by Defendants Herbert and Shurtleff, Defendants

Motion to Dismiss was granted as to the Utah Governor and Attorney General.

Subsequent events have now altered the credible threat of prosecution by Defendant

Buhman against the Browns that existed at the time of filing of the complaint. Based upon a

sworn declaration, Defendant Buhman has given assurance that the Browns will not be

prosecuted. Second Buhman Decl., 11-12. In addition, the Utah County Attorneys Office

has adopted a policy declaring it will not prosecute polygamists for just the practice of polygamy.

Second Buhman Decl., 8-10. Thus, Defendant Buhman now stands in exactly the same




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position as did Attorney General Shurtleff at the time this case was filed. As such, this Court

should dismiss this case for lack of justicability.

III. THE VOLUNTARY CESSATION EXCEPTION TO MOOTNESS DOES NOT APPLY IN THIS

INSTANCE.

There is an exception to the mootness doctrine when a defendant voluntarily ceases the

bad behavior in order to defeat the courts jurisdiction.

When a party moots a case by voluntarily changing its own

conduct, the Supreme Court instructs us to view mootnessarguments with suspicion because the offending party might

otherwise resume that conduct as soon as the case is dismissed.

This voluntary cessation exception derives from the principle that

a party should not be able to evade judicial review ... by

temporarily altering questionable behavior. Thus for a case to

become moot, it must be absolutely clear that the allegedly

wrongful behavior could not reasonably be expected to recur.

New Mexico ex rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683, 701-702 (10 Cir.th

2009) (citations omitted).

This exception to the mootness doctrine does not apply in this case. The Defendant is not

temporarily altering questionable behavior but has adopted a formal policy with regard to

prosecution of polygamy under Utah Code 76-7-101 and has clearly stated an intent not to

prosecute the Plaintiffs in accordance with that policy through his sworn declaration. Second

Buhman Dec. 9-12. Under the formal and ongoing policy on bigamy and polygamy

prosecutions, Defendant Buhman will not bring charges for polygamy under the criminal bigamy

statute except when there are also allegations of other serious crimes. The declination of




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prosecution of the Plaintiffs is not a temporary action but rather an action based upon an adopted

formal policy. Second Buhman Decl. 9. Based on the policy and the clear statements by the

Defendant of an intent not to prosecute, it is absolutely clear that the allegedly wrongful

behavior [cannot] reasonably be expected to recur.

CONCLUSION

For the foregoing reasons, Defendant Buhman respectfully requests this Court to dismiss

this case for mootness and lack of justiciability.

DATED this 31 day of May , 2012.st

MARK L. SHURTLEFF

Utah Attorney General

/s/ Jerrold S. Jensen

JERROLD S. JENSEN

Assistant Attorney General

Attorneys for Defendant




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CERTIFICATE OF SERVICE

This is to certify that copies of the foregoing MEMORANDUM IN SUPPORT OF

DEFENDANTS MOTION TO DISMISS FOR MOOTNESS was served by electronically

filing the foregoing with the Clerk of the Court using the CM/ECF system which will send

notification to:

Jonathan Turley

2000 H St., N.W.

Washington, D.C. 20052

[email protected]

Adam Alba

2167 N. Main Street

Centerville, Utah 84014

[email protected]

/s/Sherri L. Cornell

Legal Secretary




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Documents

Sister Wives Dismiss Motion.053112