Berg v. State

• Decision Date: 30 September 2004
• Docket Number: No. 20030842-CA.,20030842-CA.
• Citation: 2004 UT App 337,100 P.3d 261
• Parties: D. BERG, Plaintiff and Appellant, v. STATE of Utah; Olene S. Walker, Governor; and Mark Shurtleff, Attorney General, Defendants and Appellees.
• Court: Utah Court of Appeals

100 P.3d 261

2004 UT App 337

D. BERG, Plaintiff and Appellant, v. STATE of Utah; Olene S. Walker, Governor; and Mark Shurtleff, Attorney General, Defendants and Appellees.

No. 20030842-CA.

Court of Appeals of Utah.

September 30, 2004.

Brian M. Barnard and James L. Harris Jr., Utah Legal Clinic, Salt Lake City, for Appellant.

Mark L. Shurtleff, Attorney General and Jerrold S. Jensen, Assistant Attorney General, Salt Lake City, for Appellees.

Before Judges BENCH, DAVIS, and GREENWOOD.

OPINION

BENCH, Associate Presiding Judge:

¶ 1 D. Berg appeals the trial court's order dismissing his federal and state claims for lack of standing. We affirm.

BACKGROUND

¶ 2 During the last three years, Berg has engaged in private, heterosexual, consensual sexual acts with another unmarried adult. Berg admits that these acts violate Utah's criminal laws against sodomy, see Utah Code Ann. § 76-5-403(1) (2003),¹ and fornication, see Utah Code Ann. § 76-7-104 (2003).² Berg says he continues to violate the statutes, and fears criminal prosecution for his past, present, and future conduct. Berg filed a federal civil rights complaint under 42 U.S.C. § 1983 (2003), claiming that these statutes unlawfully criminalize his private, sexually expressive behavior protected under the federal and state constitutions. Pursuant to Utah's Declaratory Judgment Act, see Utah Code Ann. §§ 78-33-1 to -13 (2002), he also requested a declaration that the statutes were unconstitutional, and a permanent injunction from prosecution under the statutes.

¶ 3 The State filed a motion to dismiss, arguing that the issue was not ripe for adjudication, that Berg did not have standing, and that Berg could not meet the four requirements imposed by Utah courts to issue a declaratory judgment. Attached to the State's motion to dismiss was an affidavit from Attorney General Mark Shurtleff, wherein the Attorney General stated that

[u]nder the facts set forth by [Berg], criminal charges would not be filed against [Berg] for the alleged activity by the Attorney General's Office.

....

There are no cases of which I am aware in the recent past that Utah prosecutors have charged anyone with a violation of Utah's fornication statute. Again, in light of the recent United States Supreme Court case of Lawrence v. Texas, [539 U.S. 558, [123 S.Ct. 2472, 156 L.Ed.2d 508] (2003)], I think it is extremely unlikely any Utah prosecutor would bring a case to enforce the Utah sodomy statute, and were I consulted on the matter beforehand, I also would advise them not to do so.³

¶ 4 The trial court found that "Berg's claims fail[ed] to meet state standing requirements for declaratory judgment actions," and thus granted the State's motion to dismiss. Berg appeals.

ISSUE AND STANDARD OF REVIEW

¶ 5 Berg maintains that the trial court incorrectly determined that he lacks standing to pursue this action. "[T]he question of whether a given individual ... has standing to request a particular relief is primarily a question of law, although there may be factual findings that bear on the issue. We will review such factual determinations made by a trial court with deference." LeVanger v. Highland Estates Props. Owners Ass'n, Inc., 2003 UT App 377, ¶ 8, 80 P.3d 569 (first alteration in original) (quotations and citations omitted).

ANALYSIS

¶ 6 Before maintaining an action under the Declaratory Judgment Act, the following four conditions must be present: "(1) a justiciable controversy; (2) the interests of the parties must be adverse; (3) the party seeking such relief must have a legally protectible interest in the controversy; and (4) the issues between the parties involved must be ripe for judicial determination." Baird v. State, 574 P.2d 713, 715 (Utah 1978). However, before addressing these conditions, we must first decide whether Berg satisfies the standing requirement. "The threshold requirement that [Berg] have standing is equally applicable whether he seeks declaratory or injunctive relief." Jenkins v. Swan, 675 P.2d 1145, 1148 (Utah 1983). Thus, even though the conditions of the Declaratory Judgment Act may be satisfied, an individual plaintiff may not have standing to pursue a declaratory judgment in a particular case. See id. ("The statutory creation of relief in the form of a declaratory judgment does not create a cause of action or grant jurisdiction to the court where it would not otherwise exist.").

Standing

¶ 7 Requiring standing insures that "judicial procedures focus on specific, well-defined legal and factual issues." National Parks & Conservation Ass'n. v. Board of State Lands, 869 P.2d 909, 913 (Utah 1993). Thus, we focus on whether the parties "have both a sufficient interest in the subject matter of the dispute and a sufficient adverseness so that the issues can be properly explored." Id.

¶ 8 We determine the sufficiency of the parties' interest and adverseness by applying "three general rules." Id. If a plaintiff qualifies under any one of the three rules, the court grants standing. See id. Under the first rule, a plaintiff establishes standing by showing "some distinct and palpable injury that gives rise to a personal stake in the outcome of the dispute." Id. Under the second rule, the court grants a plaintiff standing "if the plaintiff ... is in as good a position to challenge the alleged illegality as any other potential plaintiff." Haymond v. Bonneville Billing & Collections, Inc., 2004 UT 27, ¶ 6, 89 P.3d 171 (citing Jenkins, 675 P.2d at 1150). Under the final rule, a plaintiff secures standing by "rais[ing] issues that are so `unique and of such great importance that they ought to be decided in furtherance of the public interest.'" National Parks, 869 P.2d at 913 (quoting Terracor v. Utah Bd. of State Lands, 716 P.2d 796, 799 (Utah 1986)).

¶ 9 Under the first rule, we assess whether Berg has a sufficient "personal stake" in this dispute. Id. Hence, "[w]e first apply traditional standing criteria, which require that (a) the interests of the parties be adverse, and (b) the parties seeking relief have a legally protectible interest in the controversy." Kennecott Corp. v. Salt Lake County, 702 P.2d 451, 454 (Utah 1985). This rule requires Berg to show "a distinct and palpable injury." National Parks, 869 P.2d at 913.

¶ 10 Berg fails to establish standing under this first rule because the parties' interests are not adverse and Berg points to no distinct and palpable injury. Berg and the Attorney General agree that two consenting adults who engage in the statutorily forbidden sexual acts should not face criminal liability. The Attorney General has stated, in a sworn affidavit, that "[u]nder the facts set forth by [Berg], criminal charges would not be filed." In addition, the Attorney General has promised to advise prosecutors not to file sodomy and fornication charges against individuals like Berg. We find this promise significant given the Attorney General's authority to "exercise supervisory powers over the district and county attorneys of the state in all matters pertaining to the duties of their offices." Utah Code Ann. § 67-5-1(6) (Supp. 2004). Thus, in all relevant respects the parties' positions are in harmony, and we cannot infer a clash of adverse interests from the facts of this case. Where prosecution is improbable, Berg's fear of prosecution does not rise to the level of a palpable injury.

¶ 11 In spite of the Attorney General's promise, Berg states that he "fears prosecution" and that the sodomy and fornication statutes "directly affect him." Berg attempts to demonstrate that he faces a genuine threat of prosecution by pointing to several recent cases where prosecutors pressed charges under the statutes. However, these cases are factually quite different and fail to demonstrate a palpable injury.

¶ 12 First, Berg cites State v. Houston, 2000 UT App 242, 9 P.3d 188. In that case, the State charged Houston with rape, forcible sodomy, and the lesser included offenses of fornication and sodomy. See id. at ¶ 5. The jury acquitted Houston of rape and forcible sodomy, but convicted him of sodomy and fornication. See id. at ¶ 6. Berg argues that Houston justifies his fear of prosecution because "[t]he defendant was convicted even though the jury found the sex acts to be consensual." However, this court in Houston explicitly declined to speculate on the issue of consent, noting that "the jury could have believed that [the alleged victim] consented or that [the] defendant was reasonably mistaken regarding her consent." Id. at ¶ 13 n. 2. Moreover, unlike Berg, Houston was accused of rape; it is extremely unlikely that Houston would have faced criminal liability for sodomy and fornication without the rape accusation. Houston does not demonstrate that the State is willing to prosecute individuals like Berg for engaging in consensual sodomy and fornication.

¶ 13 Berg also notes that an American Fork City prosecutor filed sodomy charges against a nineteen-year-old man in 2000. See D.L.S. v. State, 374 F.3d 971, 976-75 (10th Cir.2004) (detailing the facts of the American Fork case). The police arrested the defendant after searching "the defendant's home pursuant to a search warrant for a rape charge." Id. (quotations and citation omitted.) The investigation revealed that the defendant had engaged in consensual sodomy with a sixteen-year-old girl. See id. In addition to sodomy, the prosecutor charged the defendant with possession of a controlled substance and contributing to the delinquency of a minor. See id. Berg seeks to draw an analogy between his case and the American Fork case by noting that both involve consensual sodomy. However, Berg ignores a crucial distinction between the two cases: the American Fork defendant engaged in sodomy with a minor, while Berg engages in sodomy with an adult.⁴

¶ 14 Finally, Berg cites State v. Gomez, a pending criminal matter involving conduct similar to that in the American Fork case. The prosecutor has filed sexual...