Winsness v. Yocom

• Decision Date: 05 January 2006
• Docket Number: No. 04-4275.,04-4275.
• Citation: 433 F.3d 727
• Court: U.S. Court of Appeals — Tenth Circuit
• Parties: Kris WINSNESS and Ken Larsen, Plaintiffs-Appellants, v. David YOCOM, Salt Lake District Attorney, Jon Huntsman, Jr., Governor of the State of Utah,<SMALL><SUP>*</SUP></SMALL> Mark Shurtleff, Attorney General of the State of Utah, and Roger Blaylock, Deputy Salt Lake District Attorney, Defendants-Appellees.

Page 727

433 F.3d 727

Kris WINSNESS and Ken Larsen, Plaintiffs-Appellants, v. David YOCOM, Salt Lake District Attorney, Jon Huntsman, Jr., Governor of the State of Utah,^* Mark Shurtleff, Attorney General of the State of Utah, and Roger Blaylock, Deputy Salt Lake District Attorney, Defendants-Appellees.

No. 04-4275.

United States Court of Appeals, Tenth Circuit.

January 5, 2006.

Brian M. Barnard (James L. Harris, Jr. with him on the briefs), Utah Legal Clinic, Salt Lake City, UT, for Plaintiffs-Appellants.

Joel A. Ferre, Assistant Attorney General (Mark L. Shurtleff, Attorney General, with him on the brief), Salt Lake City, UT, for Defendants-Appellees.

Before McCONNELL, McKAY, and TYMKOVICH, Circuit Judges.

McCONNELL, Circuit Judge.

There is no procedure in American law for courts or other agencies of government — other than the legislature itself — to purge from the statute books, laws that conflict with the Constitution as interpreted by the courts. For the most part, citizens are protected against enforcement of unconstitutional statutes by some combination of stare decisis (the principle that future cases will be decided in accordance with past precedent) and the deterrent effect of damages actions against executive officials who violate clearly established constitutional rights. It is generally not necessary (and in light of the case-or-controversy requirement of Article III, generally not permissible) for courts to issue redundant rulings on the constitutionality of indistinguishable statutes once the Supreme Court has spoken to an issue and law enforcement officials act accordingly. No one has standing to challenge a statute unless they have been or likely will be injured by it, and an unenforced statute generally does not cause injury — at least not the "concrete and particularized" form of injury that qualifies for purposes of Article III standing. McConnell v. Fed. Election Comm'n, 540 U.S. 93, 227, 124 S.Ct. 619, 157 L.Ed.2d 491 (2003).¹ Sometimes, however, litigants claim that the continued existence of a statute and the possibility of its enforcement — even after an authoritative judicial decision has established its unconstitutionality — has a chilling effect on their exercise of constitutional rights and should entitle them to sue.

In this case, two Utah residents sued to prevent enforcement of Utah Code Ann. § 76-9-601, the State's "flag-abuse statute." Similar to statutes found in the laws of most states, the Utah statute provides:

(1) A person is guilty of abuse of a flag if he:

(a) Intentionally places any unauthorized inscription or other thing upon any flag of the United States or of any state of the United States; or

(b) Knowingly exhibits any such flag, knowing the inscription or other thing to be unauthorized; or

. . .

(d) Knowingly casts contempt upon the flag of the United States or of any state of the United States by publicly mutilating, defacing, defiling, burning, or trampling upon it.

In Texas v. Johnson, 491 U.S. 397, 420, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989), the Supreme Court held that a Texas flag desecration statute violated the First Amendment rights of a man who burned the American flag in the course of a political protest. In United States v. Eichman, 496 U.S. 310, 318-19, 110 S.Ct. 2404, 110 L.Ed.2d 287 (1990), the Court extended its holding to political protestors who were prosecuted under a federal flag protection statute. In this action, brought pursuant to 42 U.S.C. § 1983, Ken Larsen and Kris Winsness seek a declaratory judgment that the Utah flag-abuse statute violates the First Amendment, and an injunction against the Defendants prohibiting future enforcement. The district court dismissed the complaint as to both Plaintiffs for lack of standing. We AFFIRM.

I. FACTS AND PROCEDURAL HISTORY

Plaintiff-Appellant Ken Larsen is a resident of Salt Lake City, Utah. At the time that he filed his complaint, Mr. Larsen was a candidate for Governor of the State. During his campaign, Mr. Larsen wrote his name in ink on miniature United States and Utah flags, which he exhibited and distributed to the public. He was not cited, charged, or threatened with prosecution for these acts. His Complaint, however, alleges that he "is fearful that if he again writes his name on Utah flags or flags of the United States, that he will be criminally charged for violation" of the Utah flag-abuse statute. App. 11.

Plaintiff-Appellant Kris Winsness is a resident of Salt Lake County, Utah. On October 20, 2002, Mr. Winsness burned a symbol onto a United States flag and hung it on his garage. A neighbor called the police and reported that she saw Mr. Winsness "burn a smiley face into a flag." App. 62. A sheriff's deputy went to Mr. Winsness's house and asked him about the flag. Mr. Winsness told the officer that "he was bored so he burned the flag." Id. At the officer's request, Mr. Winsness removed the flag. The officer cited him for flag abuse and confiscated the flag as evidence.

Based on the citation, and prior to any action by Salt Lake County prosecutors, Mr. Winsness appeared before the Salt Lake County Justice Court on December 23, 2002. An attorney was appointed for him, and his case was set for pretrial conference on March 4, 2003. At the pretrial conference, the court discovered that the citation listed the wrong police report number and reset the pretrial conference for April 29, 2003. At the April 29 pretrial conference, Defendant-Appellee Roger Blaylock, who serves as Deputy District Attorney for Salt Lake County, agreed with Mr. Winsness's attorney to set a June 13, 2003 hearing on a motion to dismiss that Mr. Winsness intended to file. The District Attorney's office did not receive the motion to dismiss until June 13, 2003, so the parties agreed to reset the hearing for August 15, 2003. On August 11, 2003, Mr. Blaylock filed a response to Mr. Winsness's motion to dismiss, arguing that no Utah court had ruled on the constitutionality of the flag-abuse statute, that Mr. Winsness was not making a political statement when he altered a flag, and that the flag-abuse statute was not unconstitutionally vague. Four days later, however, on August 15, 2003, Mr. Blaylock dismissed the state's case against Mr. Winsness. Although the statute of limitations has run, precluding the possibility of further criminal prosecution for this incident, the Complaint alleges that criminal misdemeanor charges remain on Mr. Winsness's record.

Plaintiffs also claim that law enforcement officials in another county, who are not parties to this litigation, threatened to enforce the Utah flag-abuse statute against another person, Beth Fratkin, who likewise is not a party to this litigation. Ms. Fratkin apparently was not charged with any offense.

On August 26, 2004, Mr. Winsness and Mr. Larsen filed a complaint in the United States District Court for the District of Utah against Salt Lake County District Attorney David Yocom, Salt Lake County Deputy District Attorney Blaylock, Utah Attorney General Mark Shurtleff, and then-Governor Olene Walker.² Plaintiffs argue that Utah Code § 76-9-601 is facially unconstitutional because (1) it infringes on rights protected by the First Amendment of the United States Constitution and Article I, § 15 of the Utah Constitution, and (2) its failure to set guidelines for law enforcement renders it impermissibly vague in violation of the Fourteenth Amendment of the United States Constitution and Article I, § 7 of the Utah Constitution. Mr. Larsen alleges that "as part of his current and on going [sic] political campaign," he "desires to and intends to write his name in ink on small flags of the United States and/or Utah, to exhibit those flags and to distribute those flags to members of the public." App. 10-11. Mr. Winsness alleges that he "plans to continue to publicly express his opinions and may do so in the future by altering an American flag or a Utah state flag." App. 12. Plaintiffs seek a declaration that the flag-abuse statute violates the aforementioned provisions of the United States and Utah constitutions, an injunction against future enforcement of the statute, and attorneys' fees and costs. Mr. Winsness originally sought damages against Defendants Yocom and Blaylock, but he has abandoned his claim for damages on appeal. See Aplt. Reply Br. 6 n. 2 ("Plaintiffs do not seek monetary damages against Yocom or Blaylock.").

On September 14, 2004, the Defendants filed a motion to dismiss, arguing that the Plaintiffs lack standing to challenge the flag-abuse statute. Accompanying the motion to dismiss were two affidavits, from District Attorney Yocom and Assistant District Attorney Blaylock. In his affidavit, Mr. Yocom stated that "the enforceability of the Utah flag abuse statute is doubtful" in light of Texas v. Johnson. App. 52. He further stated that "[u]nless and until the constitutional doubts about the Utah statute are eliminated through a constitutional amendment or a new decision of the United States Supreme Court, I have no intention of prosecuting Ken Larsen or anyone else under the statute." Id. In his affidavit, Mr. Blaylock stated:

The District Attorney's Office has never filed and has no intention of ever filing a criminal information against Mr. Winsness as a result of his actions [on] October 20, 2002. Unless the law changes, Mr. Winsness need have no fear of prosecution if he desecrates or alters a flag as a form of political expression.

. . . I would not have filed a criminal information where the purpose of the desecration was political expression.

App. 60.

The district court granted the Defendants' motion to dismiss, finding that neither plaintiff had suffered an injury-in-fact. Although it found that Mr. Larsen and Mr. Winsness had arguably engaged in activities protected under the First Amendment and covered by the statute, the court held that the affidavits submitted by Mr. Yocom and Mr. Blaylock eliminated any credible...