Sister Wives state Reply Motion.071312

7/31/2019 Sister Wives state Reply Motion.071312

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JERROLD S. JENSEN (#1678)

THOM D. ROBERTS (#2773)

Assistant Attorneys GeneralMARK 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,

Defendants.

REPLY 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, through his attorneys of record, Jerrold S. Jensen and Thom D. Roberts,

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Assistant Utah Attorneys General, submits this Reply Memorandum in Support of

Defendant’s Motion to Dismiss for Mootness:

Plaintiffs’ in their Memorandum of Points and Authorities in Opposition to

Defendants’ Motion to Dismiss for Mootness ignore (or perhaps have forgotten) what

their case is. Plaintiffs’ action is a pre-enforcement challenge to the constitutionality of

Utah’s bigamy statute, Utah Code § 76-7-101. It is not, as they would seem to indicate at

p. 9 of their Memorandum, a claim for damages or a claim for liability for past actions.

Being a challenge to the constitutionality of a statute, the courts “evaluate the

constitutionality of a statute by assessing the manner in which it is implemented and

enforced by the governmental officials who administer it.” Jordan v. Sosa, 654 F.3d

1012, 1019 (10 Cir. 2011).th

As stated by the Tenth Circuit in Mink v. Suthers, 482 F.3d 1244, 1253:

To pursue a case in federal court, a plaintiff must satisfy the

twin requirements of standing and mootness. Winsness v.

Yocum, 433 F.3d 727, 731 (10 Cir. 2006). Without a live,th

concrete controversy, we lack jurisdiction to consider claims

no matter how meritorious. Because we conclude Mink faces

“no credible threat of prosecution” under the criminal libel

statute, he lacks standing to pursue his claims for prospective

relief. For the same reasons, we also conclude his claim is

moot. Therefore, we cannot reach the merits of hisconstitutional challenge to the statute. (Emphasis added).

Similarly here. Like Mink, this pre-enforcement is a constitutional challenge to a

criminal statute where after suit was filed the prosecutor disclaimed any intent on

Reply Memorandum in Support of Defendants’ Motion to Dismiss for Mootness

Kody Brown, v. Gary R. Herbert, et al.

Case No. 2:11CV00652

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prosecuting under the challenged statute. And here, like Mink, there is no credible threat

of prosecution and therefore the claim is moot and the case should be dismissed.

Mootness goes to the jurisdiction and authority of the Court to hear a case.

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.

Jordan v. Sosa, 654 F.3d at 1023. Mootness is jurisdictional and cannot be waived by the

parties. Winsness v. Yocum, 433 F.3d 727, 736, fn 4 (10 Cir. 2006). In Winsness,th

notwithstanding the Plaintiff having been cited, the prosecutors forswore any intention to

bring criminal charges. The court held that in a pre-enforcement challenge the lack of an

intention to prosecute meant there was no longer a live controversy, “even if we assume

that a credible threat of prosecution existed before this lawsuit was filed, the prosecutor’s

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

Plaintiffs cite to the “voluntary cessation” exception to a claim of mootness –

“Defendant’s voluntary cessation of a challenged practice does not deprive a federal court

of its power to determine legality of a practice.” Friends of the Earth, Inc. v. Laidlaw

Envtl. Servs., Inc., 528 U.S. 167, 189 (2000). Plaintiffs further claim that parties

asserting mootness bear a “heavy burden of persua[ding] the court that the challenged

conduct cannot reasonably be expected to start up again.” Id., (internal quotations and




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citations omitted). Defendant recognizes the voluntary cessation doctrine but that

doctrine does not keep this case from being dismissed as moot.

The Tenth Circuit discussed the voluntary cessation exception in Rio Grande

Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096 (10 Cir. 2010). The Courtth

first noted that the exception is based upon:

the principle that a party should not be able to evade judicial

review, or to defeat a judgment, by temporarily altering

questionable behavior. In other words, this exception existsto counteract the possibility of a defendant ceasing illegal

action long enough to render a lawsuit moot and then

resuming the illegal conduct.

Id. at 1115 (internal quotations and citations omitted). The Court then stated:

Voluntary actions may, nevertheless, moot litigation if two

conditions are satisfied: “(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 completelyand irrevocably eradicated the effects of the alleged

violation.” County of Los Angeles v. Davis, U.S. 625, 631,

99 S.Ct. 1379, 59 L.Ed.2d 642 (1979) (internal quotation

marks, elipses, and citations omitted). “[V]oluntary cessation

of offensive conduct will only moot litigation if it is clear that

the defendant has not changed course simply to deprive the

court of jurisdiction.” Nat’l Adver. Co. v. City of Miami, 402

F.3d 1329, 1333 (11 Cir. 2005) (per curiam).th

Id. at 1115-16.

In discussing the analysis, the Tenth Circuit stated: “In practice, however,

Laidlaw’s heavy burden frequently has not prevented governmental officials from




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discontinuing challenged practices and mooting a case.” Id. at 1116. The Court noted

with approval that courts place a “comparatively lighter burden of proof on governmental

officials” than on private parties and that such is reconcilable with Laidlaw because

governmental officials act “in their sovereign capacity in the exercise of their official

duties [and] are accorded a presumption of good faith because they are public servants,

not self interested private parties.” Id., 1117, fn 15, quoting Sossamon v. Texas, 560 F.3d

316, 325 (5 Cir. 2009). There may be even a “reputable presumption” that the

th

objectionable behavior will not recur when the Defendant is a governmental actor. Rio

Grande, 601 F.3d at 117, fn 17, citing Troiano v. Supervisor of Elections in Palm Beach

County, 382 F.3d 1276, 1283 (11 Cir. 2004) and Chicago United Indus., Ltd. v. City of th

Chicago, 445 F.3d 940, 947 (7 Cir. 2006).th

Any statutory change can be undone, and a repealed statute re-adopted. Further,

administrative policies and decisions can also be changed. However, statutory change

usually is sufficient to moot a case, Rio Grande, 601 F.3d at 1116, and so is withdrawal or

alteration of administrative policy, id . at 1117. As stated in Rio Grande:

And the mere possibility that an agency might rescind

amendments to its actions or regulations does not enliven a

moot controversy. A case cease[s] to be alive controversy if the possibility of recurrence of the alleged challenged conduct

is only a speculative contingency.

Id. (internal quotations and citations omitted).




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In Winsness, Plaintiffs brought a pre-enforcement challenge to the

constitutionality of a statute, having been cited for violating it. The

prosecutors, however, forswore any intention to bring criminal proceedings

on that statute after suit had been filed. The Tenth Circuit dismissed the

case as moot, stating:

The pleadings and affidavits provide no evidence, and the

Plaintiffs have provided nothing but speculation, that the

prosecutors will change their policies if this lawsuit isdismissed. We therefore find it “absolutely clear” that the

threat of prosecution has been eliminated.

Winsness, 433 F.3d at 736. In Mink, Plaintiff brought a pre-enforcement challenge to a

criminal statute where an investigation had been conducted, a search warrant issued, and

items had been seized from the Plaintiff. After he filed suit the prosecutor decided no

charges would be filed against Mink and issued a written “no file” decision. The Tenth

Circuit dismissed the case as moot. After discussing the mootness doctrines and

standards, including voluntary cessation exception, the Tenth Circuit dismissed the case

as moot since: “In short, we see no credible threat of prosecution against Mink.” Mink,

482 F.3d at 1257.

In the present case, the Utah County Attorney’s Office had not had a bigamy

prosecution in the memory of the office. Therefore, they had not had a need to develop a

policy with regard to when and if bigamy charges would be brought. When finally




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presented with a complaint alleging bigamy, Utah County Attorney’s Office undertook a

review of the complaint and policies with regard to bigamy prosecutions. Based upon its

review of its finite limited resources, the nature of the criminal case, and the adopted

policy of the Utah Attorney General, Defendant Buhman and the Utah County Attorney’s

Office adopted a policy regarding prosecution of bigamy cases to govern all pending and

future bigamy cases. Then, pursuant to that policy, they ended the investigation against

the Plaintiffs and determined there would be no prosecution.

The Utah Attorney General’s Office had previously adopted a bigamy prosecution

policy that was the same as the one adopted by Defendant Buhman. This Court found

there to be no standing, no “live or justiciable controversy” in the Plaintiffs’ claim against

the Attorney General and dismissed the case as against the Utah Attorney General. With

the adoption of its policy and the declining of prosecution in accordance with that policy,

the Defendant Utah County Attorney is in the same position with Plaintiffs as was the

Attorney General’s Office – there is no current, live or justiciable controversy with regard

to prosecution under the bigamy statute. As in Mink, there is no “reasonable expectation”

that a prosecution would be re-instituted if the case were dismissed, and as in Winsness

these is no indication that this Defendant will change his policy if the lawsuit is

dismissed. In both those cases the Tenth Circuit found that in such circumstances there




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was no credible threat of prosecution and the cases should be dismissed as moot. This

Court should similarly act here.

CONCLUSION

Based upon the Utah County Attorney having adopted a policy with regard to

prosecution of bigamy cases which precludes prosecution as against these Plaintiffs, and

the Defendant having formally declined and forsworn prosecution against these Plaintiffs

based upon that policy, there is “no credible threat of prosecution” against these Plaintiffs

and any “threat of prosecution has been eliminated.” This case is therefore moot, the

Court lacks jurisdiction to hear it, and the Court should dismiss it.

DATED this 13th day of July, 2012.

MARK L. SHURTLEFF

Utah Attorney General

/s/ Jerrold S. Jensen

JERROLD S. JENSEN

Assistant Attorney General

Attorneys for Defendants




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CERTIFICATE OF SERVICE

This is to certify that copies of the foregoingREPLY 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 Cornell

Legal Secretary




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Documents

Sister Wives state Reply Motion.071312