Greer v. Herbert

• Decision Date: 08 May 2018
• Docket Number: Case No. 2:16-cv-01067
• Parties: RUSSELL G. GREER, Plaintiffs, v. GARY R. HERBERT, in his individual capacity as Governor of the State of Utah; SEAN D. REYES, in his official capacity as Attorney General of the State of Utah; SIMS S. GILL, in his official capacity as District Attorney of the City and County of Salt Lake; JACKIE BISKUPSKI, in her official capacity as Mayor of the City of Salt Lake, BEN MCADAMS, in his official capacity as Mayor of the County of Salt Lake, KATHY BERG, in her official capacity as Director of the Division of Commerce; JAMES ALLRED, in his official capacity as Business Licensing Manager for, the City of Salt Lake; ROLEN YOSHINAGA, in his official capacity as Director of Planning and Development of the County of Salt Lake, Defendants.
• Court: U.S. District Court — District of Utah

RUSSELL G. GREER, Plaintiffs, v. GARY R. HERBERT, in his individual capacity as Governor of the State of Utah;

SEAN D. REYES, in his official capacity as Attorney General of the State of Utah;

SIMS S. GILL, in his official capacity as District Attorney of the City and County of Salt Lake;

JACKIE BISKUPSKI, in her official capacity as Mayor of the City of Salt Lake,

BEN MCADAMS, in his official capacity as Mayor of the County of Salt Lake, KATHY BERG,

in her official capacity as Director of the Division of Commerce;

JAMES ALLRED, in his official capacity as Business Licensing Manager for, the City of Salt Lake;

ROLEN YOSHINAGA, in his official capacity as Director of Planning

and Development of the County of Salt Lake, Defendants.

Case No. 2:16-cv-01067

UNITED STATES DISTRICT COURT, DISTRICT OF UTAH CENTRAL DIVISION

May 8, 2018

MEMORANDUM DECISION & ORDER

Magistrate Judge Dustin Pead

TABLE OF CONTENTS

Introduction ............................................................................................. 3

Factual Background .................................................................................... 3

Utah's Prostitution & Brothel Laws ................................................................ 6

Discussion

I. Standing .................................................................................... 8

1. Standard of Review ............................................................ 8

2. No Standing To Enforce The Rights Of Others .......................... 10

3. No Standing For Claims Against Biskupski, Allred, McAdams and Yoshinaga ......................................................... 11

a. Biskupsk and McAdams ......................................... 11

b. Allred and Yoshinaga ............................................. 12

4. Standing For Claims Against Gill and State Defendants ............. 13

a. Pre-Enforcement Challenge .............................. 13

b. Gill ............................................................. 14

c. Herbert, Reyes and Berg ................................... 15

II. 42 U.S.C. §1983 ........................................................................ 16

III. Utah's Laws Are Constiutional ..................................................... 17

1. Facial And As-Applied Challenges ....................................... 18

2. Right To Sexual Privacy .................................................... 19

a. No Fundamental Right .................................... 20

b. Rationally Related To Legitimate Interest ............. 21

3. Equal Protection For Same End Goal Of Intimacy ................... 23

4. Right To Engage In Illegal Employment ................................ 24

5. First Amendment Free Association ........................................ 25

6. Article 1 Section 7 of Utah Constitution .................................. 26

7. Vagueness ..................................................................... 27

IV. Ruling & Order ........................................................................ 29

INTRODUCTION¹

Russell Godfrey Greer wants to provide everyone with safe and legal "access to intimacy." In order to do so, he seeks to open a Utah brothel called The Mile High Neon. Under Utah's current laws, however, he is prohibited from doing so.² Consequently, Greer filed his federal declaratory action challenging the constitutionality of portions of Utah's laws criminalizing prostitution, solicitation and the operation of brothels.

FACTUAL BACKGROUND

The following facts are taken from Plaintiff Russell Greer's (Plaintiff or Greer) amended complaint and viewed in a light most favorable to him.³

Plaintiff is a well-educated,⁴ twenty-five year old man currently residing in Murray, Utah.⁵ He was born with Mobius Syndrome, a neurological condition that causes facial paralysis and prohibits him from closing his lips or moving his eyes sideways.⁶ Greer's disability causessignificant physical and social challenges for him. Consequently, in order to "feel loved", Greer solicits sex workers⁷ at brothels in Nevada, where prostitution is legal, and in Utah, where prostitution is criminalized.⁸

In April of 2013, Greer started visiting brothels in Nevada.⁹ He describes his experiences as "magical" and claims that his time there helped him to "cope with his disability and [ ] depression."¹⁰ Over time, frequent travel to Nevada became financially prohibitive¹¹ and Greer was "forced" to seek companionship in Utah.¹² Prostitution is illegal in Utah and Plaintiff lived in fear of being victimized,¹³ criminally prosecuted and of contracting a sexually transmitted disease.

Determined to provide everyone with the opportunity for safe and legal "access to intimacy," Greer decided to open a brothel in Utah called "The Mile High Neon" (TMHN).¹⁴ Plaintiff outlines TMHN's business plan, design, layout and operational procedures in copiousdetail.¹⁵ In order to obtain a license, Greer submitted his licensing paperwork online with the State of Utah. On December 29, 2015, Plaintiff's paperwork was approved and he was given "numbers for his business registration and the appropriate document to file."¹⁶ On January 14, 2016, Greer received notice from Kathy Berg, Director of Utah's Division of Commerce, that his registration was for "an illegal business purpose" and immediately revoked.¹⁷

On October 18, 2016, Greer filed his initial complaint.¹⁸ Later, he sought to incorporate relevant statutory amendments and the court granted Plaintiff leave to amend.¹⁹ Greer filed anamended complaint on September 12, 2017, seeking declaratory and injunctive relief against Defendants Governor Gary Herbert (Herbert), Utah Attorney General Sean Reyes (Reyes) and Utah's Director of the Division of Corporations and Commercial Code Kathy Berg (Berg) (collectively "State Defendants"), Salt Lake District Attorney Sim Gill (Gill), Salt Lake County Mayor Ben McAdams (McAdams) and Salt Lake Director of Planning Rolen Yoshinaga (Yoshinaga) (collectively "County Defendants") and Salt Lake City Mayor Jackie Biskupski (Biskupski) and Salt Lake City Business Licensing Manager James Allred (Allred) (collectively "City Defendants").²⁰

Currently pending before the court are the City, State and County Defendants' motions to dismiss Greer's amended complaint for failure to demonstrate standing, state a claim or establish a constitutional violation.²¹ Greer did not oppose the City or County Defendants' motions to dismiss, and the time within which to do so has expired.²²

UTAH'S PROSTIUTION & BROTHEL LAWS

Greer seeks a declaration that the following portions of Utah's statutes are unconstitutional (Utah's Prostitution and Brothel Laws).

Utah Code Ann. §76-10-1302, Prostitution.

(1) An individual is guilty of prostitution when the individual:

(b) takes steps in arranging a meeting through any form of advertising, agreeing to meet, and meeting at an arranged place for the purpose of sexual activity in exchange for a fee or the functional equivalent of a fee;

UCA §76-10-1302(b)

Utah Code Ann. 76-10-1303, Patronizing a prostitute.

(1) An individual is guilty of patronizing a prostitute when the individual:

(b) enters or remains in a place of prostitution for the purpose of engaging in sexual activity.

UCA §76-10-1303(b).

Utah Code Ann. 76-10-1304, Aiding prostitution.

(1) A person is guilty of aiding prostitution if the person:

(iii) leases, operates, or otherwise permits a place controlled by the actor, alone of in association with another, to be used for prostitution or the promotion of prostitution;

UCA §76-10-1304(1)(iii)

Utah Code Ann. 76-10-1305, Exploiting prostitution.

(1) An individual is guilty of exploiting prostitution if the individual:

(a) procures an individual for a place of prostitution; or

(e) owns, controls, manages, supervises, or otherwise keeps, alone or in association with another, a place of prostitution or a business where prostitution occurs or is arranged, encouraged, supported, or promoted.

UCA §76-10-1305(1)(a)(e).

Utah Code Ann. 47-1-1, Declared a nuisance—Abatement.

Whoever shall erect, establish, maintain, use, own or lease any building, structure or place, for the purpose of lewdness, assignation or prostitution is guilty of nuisance, and such building, structure or place, and the ground itself, in or upon which such lewdness, assignation or prostitution is conducted, permitted or carried on, and the furniture, fixtures and musical instruments therein and the contents thereof are declared a nuisance, and shall be enjoined and abated as hereinafter provided.

UCA §47-1-1.

DISCUSSION

I. STANDING

1. Standard of Review.

A threshold issue is whether Greer has standing to bring his claims against Defendants. Standing ensures that federal courts only issue judgments in "cases" and "controversies" in which they have jurisdiction to do so.²³ The burden is on plaintiff to clearly demonstrate the elements of standing for each cause of action,²⁴ and the court has an "independent obligation" to raise the standing issue "regardless of whether it is challenged by any of the parties."²⁵ When considering dismissal, "courts must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party."²⁶

Article III standing requires a plaintiff to meet the following elements:

First, the plaintiff must have suffered an invasion of a legally-protected interest which is (1) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and conduct complaint 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.²⁷

In addition to constitutional standing, a plaintiff must also establish prudential standing. Prudential standing places limits on who may invoke the courts' powers and...