Cooper v. State of Utah

• Decision Date: 21 December 1987
• Docket Number: Civ. No. 87-C-606G.
• Parties: R. Val COOPER, Plaintiff, v. STATE OF UTAH, et al., Defendants.
• Court: U.S. District Court — District of Utah

684 F. Supp. 1060

R. Val COOPER, Plaintiff, v. STATE OF UTAH, et al., Defendants.

Civ. No. 87-C-606G.

United States District Court, D. Utah, C.D.

December 21, 1987.

COPYRIGHT MATERIAL OMITTED

Brian M. Barnard and C. Dave Nolan, Salt Lake City, Utah, for plaintiff.

Lee Dever, for defendants.

MEMORANDUM DECISION AND ORDER

J. THOMAS GREENE, District Judge.

This matter came on for hearing on October 5, 1987, on defendants' Motion to Dismiss and plaintiff's Motion for Summary Judgment, Motion to Certify Plaintiff Class, and Motion for Preliminary Injunction. Plaintiff was represented by Brian M. Barnard and C. Dane Nolan; and defendants were represented by Lee Dever of the Attorney General's office. Plaintiff and defendants submitted memoranda and presented oral argument, after which the matter was taken under advisement. On December 10, 1987, there was a further hearing on defendants' pending motion for protective order concerning discovery, and on a new motion by plaintiff for preliminary injunction occasioned by actions undertaken or threatened by at least one defendant since this matter originally was taken under advisement.¹ The motions in effect were held in abeyance until decision on the motions under advisement. The court now being fully advised enters its Memorandum Decision and Order.

FACTUAL BACKGROUND

Plaintiff, R. Val Cooper ("Cooper") is an adult resident of Salt Lake County, State of Utah. He was married March 26, 1965, and was divorced in August 1976. The decree of divorce imposed a support obligation in favor of Cooper's former spouse who was awarded custody of their minor children. Cooper remarried in July 1980, in the State of Nevada while still a resident of Salt Lake County, State of Utah. He had fallen behind on the prior support obligations and at the time of remarriage he was not current. Prior to remarriage Cooper did not secure a verified statement from his former spouse as required by Utah law and he did not comply with the relevant statutory provisions of Utah Code Ann. 30-3-8 (1984) concerning the past support obligation.² Nor did Cooper comply with two related statutory provisions³ which had been declared unconstitutional in 1978, as violative of both the Utah and the United States Constitutions, by the Third Judicial District Court for Salt Lake County in a prior case, but the case was not appealed.⁴ A fourth related statutory provision, section 30-1-29, is also implicated.⁵

Cooper seeks a declaration that these Utah statutes are unconstitutional under the equal protection and due process clauses of the Fourteenth Amendment. Cooper also seeks a declaratory judgment that his marriage is valid and lawful. Cooper further seeks class certification, injunctive relief, and attorney fees and court costs.

LEGAL ANALYSIS

I. "CASE" OR "CONTROVERSY"— STANDING

Defendants claim that Cooper's complaint should be dismissed for lack of subject matter jurisdiction. In this regard, it is urged that since Cooper has remarried without any problem, and is under no threat of prosecution or other sanction, he has no standing before the court to challenge the statutes in question. Standing is one aspect of the "case" or "controversy" requirement. Heckler v. Mathews, 465 U.S. 728, 738, 104 S.Ct. 1387, 1394, 79 L.Ed. 2d 646 (1984); Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99, 99 S.Ct. 1601, 1607, 60 L.Ed.2d 66 (1979). Under Article III, Section 2 of the United States Constitution the judicial power of the United States extends only to cases or controversies. In addition, 28 U.S.C. § 2201 specifically requires the existence of an actual controversy. The statutory and constitutional standards are the same in determining whether a controversy exists. Cass County v. U.S., 570 F.2d 737, 739 (8th Cir.1978); see also Allen v. Likins, 517 F.2d 532, 534 (8th Cir.1975).

For an individual, such as Cooper, to have standing he must have a "personal stake in the outcome of the controversy." Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962).⁶ The constitutional requirement of personal stake has two prongs. First, the litigant must show that he has suffered an actual or threatened injury, also referred to as injury in fact. Second, the litigant must demonstrate that the defendant's conduct caused the injury and that granting the relief requested likely would redress the injury. Hardwick v. Bowers, 760 F.2d 1202, 1204 (11th Cir.1985), cert. granted, 474 U.S. 943, 106 S.Ct. 342, 88 L.Ed.2d 284 (1985).

Defendants insist that Cooper has not sustained any injury in fact in that he was remarried without challenge in 1980, there has been no subsequent challenge to the validity of the remarriage, and no criminal prosecution has been brought. Defendants' also assert that Cooper has not stated a claim upon which relief can be granted under 42 U.S.C. § 1983. Plaintiff maintains that a fundamental right or privilege secured to him by the federal constitution, the right to marry, has been violated under color of state law. This court considers that if indeed Cooper's fundamental right to marry is implicated by the Utah statutes, the complaint would not be subject to dismissal for failure to state a claim,⁷ a "case" or "controversy" would be presented, and Cooper would have sufficient standing. Accordingly, we next examine the impact of those laws upon that fundamental right.

II. THE RIGHT TO A LAWFUL MARRIAGE

Whether Cooper has a sufficient stake in the outcome of this litigation turns on whether a constitutional right of his is implicated by the statutory declaration of the State of Utah that his current marriage is "unlawful." This depends on whether the recognized fundamental right to marry⁸ encompasses the right to have and enjoy a state approved and fully lawful marriage. Cooper contends that his fundamental right to marry is unconstitutionally infringed by Utah Code Ann. sections 30-1-27, 30-1-28, 30-1-29, and 30-3-8 for two reasons. First, the statutes make his remarriage a criminal offense, and second, the statutes cast a cloud over the legality and the validity of his marriage.

A. Criminal Liability

Cooper argues that the word "unlawful" in section 30-1-27 and the Title of section 30-3-8, and the words "lawful only if" in section 30-3-8, mean that the act of remarrying without compliance with section 30-1-28, is criminal and punishable as an infraction.⁹ A person convicted of an infraction "may be subject to a fine, forfeiture, and disqualification, or any combination," under Utah Code Ann. § 76-3-205(2) (1978). In addition, section 30-1-29 may make the act of Cooper's remarriage in the State of Nevada a Class B misdemeanor.¹⁰

It is not necessary that Cooper be arrested or prosecuted to be entitled to challenge the constitutionality of the statutes. Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 302, 99 S.Ct. 2301, 2310, 60 L.Ed.2d 895 (1979); Steffel v. Thompson, 415 U.S. 452, 459, 94 S.Ct. 1209, 1215, 39 L.Ed.2d 505 (1974); Wilson v. Stocker, 819 F.2d 943, 946 (10th Cir. 1987).¹¹ However, the threat of prosecution must be real and immediate, not imaginary and speculative. Hardwick, 760 F.2d at 1205. So long as a statute which declares conduct to be subject to criminal sanctions is on the books, and government prosecutors are acting even sporatically to enforce the law, the threat of prosecution is real and there could be no lack of fear of criminal prosecution for engaging in such conduct.¹²

B. Lawfulness of the Marriage

Cooper clearly would have standing if his marriage were declared to be "void" under Utah statutes.¹³ However, Defendants argue that remarriage without being current in support obligations does not make the remarriage void because it is not listed in the statutory definitions of prohibited and void marriages. Utah Code Ann. § 30-1-2 (1984). Nevertheless, Sections 30-1-26 and 30-3-8 impose mandatory compliance before a remarriage can be "lawful."¹⁴ It is unclear whether "unlawful" means that the marriage is "void," "voidable," or "unlawful but not void."¹⁵ Under any of the alternatives, however, the sanctity of the marriage is called into question. Even in the absence of prosecution or other sanctions, the marriage, by statute, is a second rate affair, at best only tolerated by society as "unlawful."

Based upon the foregoing, the court holds that the fundamental right to marry encompasses the right to have a state approved and lawful marriage.¹⁶ The court further holds that the right to a lawful marriage, without fear of criminal prosecution, is a part of the fundamental right to marry, coming within the zone of interests protected by the Fourteenth Amendment. Data Processing, 397 U.S. at 153, 90 S.Ct. at 829.

III. SOVEREIGN IMMUNITY UNDER THE ELEVENTH AMENDMENT

Cooper seeks declaratory and injunctive relief to prevent the State of Utah, its Attorney General and the County Clerks of all Utah counties from enforcing the Utah statutes which are claimed to be unconstitutional as violative of Fourteenth Amendment rights. Although not expressly stated, it is clear by the relief Cooper seeks that the named defendants are sued in their official capacity.¹⁷ The Supreme Court has held that unless a state waives Eleventh Amendment immunity or Congress overrides it, a state cannot be sued directly in its own name regardless of the relief sought. Alabama v. Pugh, 438 U.S. 781, 782, 98 S.Ct. 3057, 3058, 57 L.Ed.2d 1114 (1978) (per curiam). The Supreme Court has also expressly rejected the argument that 42 U.S.C. § 1983 abrogated the state's Eleventh Amendment sovereign immunity. Quern v. Jordan, 440 U.S. 332, 341-42, 99 S.Ct. 1139, 1145, 59 L.Ed.2d 358 (1979); see also Lee v. McManus, 589 F.Supp. 633, 638 (D.Kan.1984). However, in Ex Parte Young, 209 U.S. 123, 155-59, 28 S.Ct. 441, 652-53, 52 L.Ed. 714 (1908) the Supreme Court held that a state officer could be sued in federal court to prevent enforcement of an unconstitutional state law. The...