822 F.3d 1151 (10th Cir. 2016), 14-4117, Brown v. Buhman

Docket Nº:14-4117
Citation:822 F.3d 1151
Opinion Judge:MATHESON, Circuit Judge
Party Name:KODY BROWN; MERI BROWN; JANELLE BROWN; CHRISTINE BROWN; ROBYN SULLIVAN, Plaintiffs - Appellees, v. JEFFREY R. BUHMAN, Defendant - Appellant, EAGLE FORUM EDUCATION & LEGAL DEFENSE FUND; SOUND CHOICES COALITION, INC.; CATO INSTITUTE, Amici Curiae
Attorney:Parker Douglas, Utah Federal Solicitor, Utah Attorney General's Office, Salt Lake City, Utah, appearing for Appellant. Jonathan Turley, George Washington University School of Law, Washington, DC (Adam Alba, Magleby & Greenwood, Salt Lake City, Utah, with him on the briefs), appearing for Appellee...
Judge Panel:Before MATHESON, BALDOCK, and MORITZ, Circuit Judges.
Case Date:April 11, 2016
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 1151

822 F.3d 1151 (10th Cir. 2016)

KODY BROWN; MERI BROWN; JANELLE BROWN; CHRISTINE BROWN; ROBYN SULLIVAN, Plaintiffs - Appellees,

v.

JEFFREY R. BUHMAN, Defendant - Appellant, EAGLE FORUM EDUCATION & LEGAL DEFENSE FUND; SOUND CHOICES COALITION, INC.; CATO INSTITUTE, Amici Curiae

14-4117

United States Court of Appeals, Tenth Circuit

April 11, 2016

Page 1152

[Copyrighted Material Omitted]

Page 1153

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH. (D.C. No. 2:11-CV-00652-CW).

Parker Douglas, Utah Federal Solicitor, Utah Attorney General's Office, Salt Lake City, Utah, appearing for Appellant.

Jonathan Turley, George Washington University School of Law, Washington, DC (Adam Alba, Magleby & Greenwood, Salt Lake City, Utah, with him on the briefs), appearing for Appellees.

Eugene Volokh, UCLA School of Law, Scott & Cyan Banister First Amendment Clinic, Los Angeles, California, and Ilya Shapiro, Cato Institute, Washington, DC, filed an amicus brief for Cato Institute.

Lawrence John Joseph, Law Office of Lawrence J. Joseph, Washington, DC, filed an amicus curiae brief for Eagle Forum Education & Legal Defense Fund.

Christian A. Kesselring, Wasatch Law Group, Heber City, Utah, filed an amicus curiae brief for Sound Choices Coalition, Inc.

Before MATHESON, BALDOCK, and MORITZ, Circuit Judges.

Page 1154

ORDER

This matter is before the court on the appellees' Petition for Rehearing En Banc.

Page 1155

Upon consideration, any implicit request for panel rehearing is denied by the original panel members. For clarification, however, the panel has decided, sua sponte, to amend the original decision. A copy of the amended decision is attached to this order, and the clerk is directed to reissue the opinion nunc pro tunc to the original filing date.

The request for en banc rehearing and the amended opinion were also transmitted to all of the judges of the court who are in regular active service and who are not recused. As no member of the original panel or the en banc court requested that a poll be called, the petition for en banc review is denied.

MATHESON, Circuit Judge

I.

INTRODUCTION

This case concerns a constitutional challenge to Utah's bigamy statute, Utah Code Annotated § 76-7-101 (" the Statute" ), which provides: (1) A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.

(2) Bigamy is a felony of the third degree.

(3) It shall be a defense to bigamy that the accused reasonably believed he and the other person were legally eligible to remarry.

Exercising jurisdiction under 28 U.S.C. § 1291, we hold this matter is moot. It is not a " Case" or " Controversy" under Article III of the U.S. Constitution. We remand to the district court with instructions to vacate the judgment and dismiss this action.

Kody Brown, Meri Brown, Janelle Brown, Christine Brown, and Robyn Sullivan (" the Browns" ) form a " plural family." Kody Brown is legally married to Meri Brown and " spiritually married" to the other three women, whom he calls " sister wives." When the family became the subject of a TLC reality television show in 2010, the Lehi Police Department opened an investigation of the Browns for violating the Statute. The Browns then filed a 42 U.S.C. § 1983 action in federal district court against the Governor and Attorney General of the State of Utah and the Utah County Attorney. Claiming the Statute infringed their First and Fourteenth Amendment rights, the Browns sought declaratory relief and a permanent injunction enjoining enforcement of the Statute against them.

The district court dismissed the Governor and Attorney General. The Utah County Attorney's Office (" UCAO" ) subsequently closed its file on the Browns and adopted a policy (" the UCAO Policy" ) under which the Utah County Attorney will bring bigamy prosecutions only against those who (1) induce a partner to marry through misrepresentation or (2) are suspected of committing a collateral crime such as fraud or abuse. The Browns fall into neither category. Nonetheless, the district court denied the Utah County Attorney's motion to dismiss the case as moot and instead granted summary judgment to the Browns.

The district court erred by proceeding to the merits. Federal courts are courts of limited jurisdiction. They lack power to decide issues--however important or fiercely contested--that are detached from a live dispute between the parties. Following adoption of the UCAO Policy, the Browns' suit ceased to qualify as an Article III case or controversy. Their suit was moot before the district court awarded them relief, and the court therefore lacked jurisdiction to decide the Browns' claims.

Page 1156

II. BACKGROUND

A. Factual Background

Kody Brown, a former resident of Lehi, Utah, is legally married to Meri Brown. He is also " spiritually married" --but not legally married--to Janelle Brown, Christine Brown, and Robyn Sullivan, who " consider themselves committed to him as 'sister wives.'" App., Vol. 1 at 23, 37.1 Together, the Browns form a " plural family." Id. at 36.

The Browns belong to the Apostolic United Brethren Church (" AUB" ), which views polygamy as " a core religious practice." App., Vol. 3 at 564.2 Consistent with AUB teaching, they " believe that only through celestial marriage can they ensure the salvation of their souls following death." App., Vol. 1 at 36.

In September 2010, TLC began airing " Sister Wives," a reality television show featuring the Browns that " explores the daily issues and realities of a plural family." App., Vol. 3 at 565. On the show, the Browns have discussed their religious belief in polygamy and defended their polygamist lifestyle.

Viewers of the show contacted the Lehi Police Department to " inquir[e] what the department intended to do" about the Browns. App., Vol. 2 at 246. The day after the first episode aired, the Department publicly announced it was investigating the Browns for violations of the Statute.

In October 2010, the Lehi Police Department forwarded the results of its investigation to the UCAO. Following standard practice, the UCAO opened a case file on the Browns. Fearful they would be criminally prosecuted, the Browns moved to Nevada in January 2011. Mr. Buhman was quoted in a January 2011 media report as saying that despite the Browns' move, his office would not rule out the possibility of prosecution.

B. Procedural Background

1.

The Browns' Complaint

On July 13, 2011, before the UCAO had completed its investigation, the Browns filed suit in the U.S. District Court for the District of Utah. Their complaint named Jeffrey Buhman, County Attorney for Utah County; Gary Herbert, Governor of the State of Utah; and Mark Shurtleff, Attorney General of the State of Utah (collectively, " Defendants" ), all in their official capacities.

The Browns alleged the Statute violates (1) their substantive due process right " to freely make personal decisions relating to procreation, contraception, family relationships, and child rearing," both on its face and as applied, and the due process right not to be subject to vague criminal laws, App., Vol. 1 at 47; (2) the Equal Protection Clause, both on its face and as applied, because it treats religiously motivated polygamists differently from other people; (3) their right to the free exercise of religion, both on its face and as applied; (4) their free speech rights because prosecutors used the Statute to single them out based on their public statements endorsing polygamy; (5) their freedom of association, both on its face and as applied, because its

Page 1157

application has deprived the Browns of " the right to associate with other like-minded citizens who believe that consenting adults should be able to maintain private relations and unions without interference from the state," id. at 52; and (6) the Establishment Clause of the First Amendment. In their seventh and final cause of action, the Browns asserted Defendants were " in violation of 42 U.S.C. § 1983" because they had deprived the Browns of their constitutional rights while acting under color of state law. Id. at 53.

The Browns' prayer for relief requested (1) a " declar[ation] that [the Statute] violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment, the Free Exercise, Establishment, Free Speech, and Freedom of Association Clauses of the First Amendment, and 42 U.S.C. § 1983" ; (2) a " preliminary and permanent injunction enjoining enforcement or application of [the Statute] against the Brown family" ; (3) an award of " reasonable attorneys' fees and costs incurred in maintaining this action" ; and (4) " such other relief as [the district court] may deem just and proper." Id. at 54.

In asserting the district court's jurisdiction under 28 U.S.C. § 1343(a)(4), the complaint explained that " this action seeks equitable relief under 42 U.S.C. § 1983, an Act of Congress." Id. at 19. Additionally, the complaint's " Nature of the Action" section provides, " Through this action, pursuant to 42 U.S.C. § 1983, the Brown family seeks a declaration that [the Statute] is unconstitutional . . . . The Browns further seek a preliminary and permanent injunction preventing the Defendants from enforcing the [Statute] against the Browns." Id. at 19-20. The complaint expressly disclaimed any request for a declaration that the Statute and the Utah Constitution " are unconstitutional to the extent that they merely prohibit the official recognition of polygamous marriage or the acquisition of multiple state marriage licenses." Id. at 20. Finally, the complaint did not request money damages.

2.

...

To continue reading

FREE SIGN UP