Brown v. Herbert

• Decision Date: 03 February 2012
• Docket Number: Case No. 2:11–CV–0652–CW.
• Citation: 850 F.Supp.2d 1240
• Parties: Kody BROWN, Meri Brown, Janelle Brown, Christine Brown, Robyn Sullivan, Plaintiffs, v. Gary R. HERBERT, Mark Shurtleff, Jeffrey R. Buhman, Defendants.
• Court: U.S. District Court — District of Utah

850 F.Supp.2d 1240

Kody BROWN, Meri Brown, Janelle Brown, Christine Brown, Robyn Sullivan, Plaintiffs,

v.Gary R. HERBERT, Mark Shurtleff, Jeffrey R. Buhman, Defendants.

Case No. 2:11–CV–0652–CW.

United States District Court,

D. Utah,

Central Division.

Feb. 3, 2012.

Jonathan Turley, George Washington University Law School, Washington, DC, Adam Alba, Centerville, UT, for Plaintiffs.

Jerrold S. Jensen, Thomas D. Roberts, Salt Lake City, UT, for Defendants.

MEMORANDUM DECISION AND ORDER

CLARK WADDOUPS, District Judge.

INTRODUCTION

Plaintiffs have filed this case to challenge Utah Code Ann. § 76–7–101 (the “Anti–Bigamy Statute” or the “Statute”) as unconstitutional and enjoining its enforcement. Before the court is Defendants' motion to dismiss Plaintiffs' complaint for lack of standing. Defendants' motion is GRANTED in part and DENIED in part. For the reasons stated herein, the court finds that Plaintiffs do not have standing to bring this action against Defendants Gary R. Herbert, in his official capacity as Governor of Utah, and Mark Shurtleff, in his official capacity as Attorney General of Utah. They are DISMISSED. The court finds that Plaintiffs have standing to continue against Jeffrey R. Buhman, in his official capacity as County Attorney for Utah County.

FACTUAL BACKGROUND

Plaintiffs Kody Brown, Meri Brown, Janelle Brown, Christine Brown, and Robyn Sullivan are self-described polygamists that publicly lived in Utah as a plural family. During this time, members of the family have participated in a number of outreach efforts to speak and educate others about their lifestyle. For example, Christine Brown was interviewed on national television by HBO in 2007, participated in the television show 48 Hours in 2008, and spoke to a University of Utah class about polygamy and her polygamist practices in 2009.

Through these and other activities, Plaintiffs became aware that the State of Utah has a policy of not prosecuting individuals for violations of the Anti–Bigamy Statute, except in cases where other crimes accompany the bigamy charge. Relying upon certain assurances of state officials leading up to 2010, the Browns became involved with the television series Sister Wives on TLC, which is a reality show based on their polygamist family.

After the show aired, the Lehi City Police Department began receiving a number of calls inquiring what the department intended to do. The day after the first episode aired, the Lehi City Police Department publicly announced that it was investigating Plaintiffs for bigamy. Similarly, the Utah County Attorney's office stated that the Browns were placed under investigation after its attorneys saw the Sister Wives promotional trailer and commented that the Browns have made it easier for prosecutors because they admitted to felonies on national television. Although prosecutors have left the possibility of other charges open, Plaintiffs' allegations support an inference that these investigations have centered on their bigamist activities. In contrast to the State, Utah County does not have a policy against prosecuting bigamists solely for bigamy. Indeed, since making the initial announcement and remarks, Utah County has remained silent on its intentions to prosecute or not prosecute the Browns under the Statute. Based on these statements, Plaintiffs fled from Utah to Nevada for fear that they would be criminally prosecuted for practicing bigamy. Despite not living and exercising their speech in Utah, they continue to visit relatives and associates in Utah. Once the threat of prosecution is lifted, however, they expect to relocate to the State of Utah.

STANDARD FOR A RULE 12(B)(1) MOTION TO DISMISS

Before the court is Defendants' Fed.R.Civ.P. 12(b)(1) motion to dismiss for lack of standing. The Supreme Court has directed that “[f]or purposes of ruling on a motion to dismiss for want of standing ... courts must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party.” Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 45 L.Ed.2d 343 (U.S.1975). Indeed, this pleading standard “does not require detailed factual allegations, but ... [a] pleading that offers labels and conclusions ... will not do. Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement....” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009).

The Tenth Circuit has further explained:

Generally, Rule 12(b)(1) motions to dismiss for lack of subject matter jurisdiction take two forms. First, a facial attack on the complaint's allegations as to subject matter jurisdiction questions the sufficiency of the complaint. In reviewing a facial attack on the complaint, a district court must accept the allegations in the complaint as true. Second, a party may go beyond allegations contained in the complaint and challenge the facts upon which subject matter jurisdiction depends. When reviewing a factual attack on subject matter jurisdiction, a district court may not presume the truthfulness of the complaint's factual allegations. A court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1).

Holt v. United States, 46 F.3d 1000, 1002–04 (10th Cir.1995) (citations omitted).

Accordingly, insofar as Defendants have not challenged Plaintiffs' factual assertions, the court will accept them as true and look to whether such facts, as alleged, are sufficient to establish Plaintiffs' standing as a matter of law. Where Defendants have challenged Plaintiffs' factual allegations, the court will rely on the evidence to make a factual finding and then apply those facts to the law.¹

DISCUSSION

The Tenth Circuit has stated that “[e]ach plaintiff must have standing to seek each form of relief in each claim.” Bronson v. Swensen, 500 F.3d 1099, 1106 (10th Cir.2007). Furthermore, the court has “an independent obligation to assure that standing exists, regardless of whether it is challenged by any of the parties.” Summers v. Earth Island Inst., 555 U.S. 488, 499, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009) (citations omitted); see also, Citizens Concerned for Separation of Church & State v. City & Cnty. of Denver, 628 F.2d 1289, 1297 (10th Cir.1980) (“A federal court must in every case, and at every stage of the proceeding, satisfy itself as to its own jurisdiction.”).

In order to demonstrate the “irreducible constitutional minimum of standing,” the Supreme Court requires that a plaintiff meet the following three elements:

First, the plaintiff must have suffered an injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court. Third, it must be “likely,” as opposed to merely “speculative,” that the injury will be redressed by a favorable decision.

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (U.S.1992) (citations omitted).

I. PLAINTIFFS' STANDING TO CHALLENGE UTAH'S ANTI–BIGAMY STATUTE DUE TO A CREDIBLE THREAT OF PROSECUTION²

A. The Injury-in-fact Prong of Standing

Precisely how injury-in-fact must be pled depends largely upon the cause of action asserted and the relief requested. For example, “standing for retrospective relief may be based on past injuries [but] claims for prospective relief require continuing injury.” PETA v. Rasmussen, 298 F.3d 1198, 1202 (10th Cir.2002). Because Plaintiffs pray for a declaratory judgment that Utah Code Ann. § 76–7–101 is unconstitutional, an injunction preventing the statute's enforcement, and the reasonable attorneys' fees and costs required to maintain this action, the relief requested would be considered generally prospective.

The Supreme Court has instructed:

A plaintiff who challenges a statute must demonstrate a realistic danger of sustaining a direct injury as a result of the statute's operation or enforcement. But one does not have to await the consummation of threatened injury to obtain preventive relief.... When the plaintiff has alleged an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder, he would not be required to await and undergo a criminal prosecution as the sole means of seeking relief.

Babbitt v. United Farm Workers National Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979) (citations omitted).

Even under this loosened standard, it is not sufficient for Plaintiffs to simply argue that they felt threatened. Indeed, the facts must demonstrate an “objectively justified fear of real consequences.” D.L.S. v. Utah, 374 F.3d 971, 975 (10th Cir.2004). The difficulty with adjudicating cases such as this is that “clarity prevails only at the poles.” Bronson v. Swensen, 500 F.3d 1099, 1108 (10th Cir.2007) (citations omitted). In recognizing this difficulty, the Tenth Circuit has further explained:

At the “credible threat” pole lies pre-enforcement claims brought after the entity responsible for enforcing the challenged statute actually threatens a particular plaintiff with arrest or even prosecution. These claims can be juxtaposed with those situated at the “no credible threat” end of the spectrum. There the affirmative assurances of non-prosecution from a governmental actor responsible for enforcing the challenged statute prevents a “threat” of prosecution from maturing into a “credible” one....

Bronson v. Swensen, 500 F.3d 1099, 1108 (10th Cir.2007) (citations omitted).³

In this case, Plaintiffs contend that they have been, and continue to...