Oliverson v. West Valley City

Decision Date10 January 1995
Docket NumberNo. 88-C-0863-S.,88-C-0863-S.
Citation875 F. Supp. 1465
PartiesGary OLIVERSON, Plaintiff, v. WEST VALLEY CITY, a governmental entity of the State of Utah and a body politic; David Campbell, former Chief of Police, West Valley City; Guy Kimball, Chair, West Valley City Civil Service Commission; Cathryn Weeks, member, West Valley City Civil Service Commission; Don Meyers, member, West Valley City Civil Service Commission; Clyde Palmer, Director, Utah Peace Officers Standards & Training (POST); and David L. Wilkinson, Attorney General of the State of Utah, Defendants.
CourtU.S. District Court — District of Utah

COPYRIGHT MATERIAL OMITTED

Gary L. Johnson, Richards, Brandt, Miller & Nelson, Brian M. Barnard, Utah Legal Clinic, Salt Lake City, Utah, for plaintiff.

Reed M. Stringham III, Utah Atty. Gen., Salt Lake City, Utah, Paul T. Morris, West Valley City Attorney's Office, West Valley City, Utah, Paul M. Tinker, Allan L. Larson, Snow, Christensen & Martineau, Salt Lake City, Utah, for defendants.

ORDER

SAM, District Judge.

This case is now before the court for consideration of the magistrate judge's Report and Recommendation regarding the constitutionality of the Utah adultery statute, Utah Code Ann. 76-7-103. The magistrate judge recommends that summary judgment be entered in favor of defendants on this, the only issue remaining in the case. Plaintiff has filed a general objection only to the Report and Recommendation. Plaintiff's objection does not comply with the requirement that all objections to a magistrate judge's recommendations be specific in nature. Fed. R.Civ.P. 72(b). "The rationale for requiring proper objections is to shift some of the court's workload from the district court judges to the magistrate judges. A litigant who objects only in vague or general terms to the magistrate's recommendation forces the district court judge to review the entire case fully, frustrating the purposes of the Federal Magistrate's Act." Keeler v. Pea, 782 F.Supp. 42, 44 (D.S.C.1992). By citing only to the briefs submitted to the magistrate judge, plaintiff has failed to consider the specifics of the magistrate judge's reasoning, and has therefore failed to make any meaningful objection to this court.

The court, having now reviewed the entire record before it, finds the magistrate judge's Report and Recommendation to be a thorough and comprehensive review of the applicable law as it relates to the issue before the court. The court finds the Report and Recommendation to be well reasoned and correct in every respect. It is apparent that even the most recent case law on this issue belies the notion that the Constitution precludes reasonable state regulation of sexual behavior. See, e.g., United States v. Gates, 40 M.J. 354 (CMA 1994) (upholding military regulation prohibiting consensual heterosexual sodomy). Accordingly, the court adopts the magistrate judge's Report and Recommendation as its own. Summary judgment is hereby GRANTED with regard to all defendants, and plaintiff's motion for summary judgment is DENIED.

REPORT AND RECOMMENDATION

BOYCE, United States District Judge.

The plaintiff, Gary Oliverson, a police officer employed by West Valley City, Utah filed the instant suit under 28 U.S.C. ? 1343 and ? 1344 and 42 U.S.C. ? 1983 against West Valley City and various officials of the City as well as against the Attorney General of the State of Utah and the Director of Utah Peace Officer Standards and Training (P.O.S.T.). Plaintiff challenged the constitutionality of the Utah fornication (Utah Code Ann. ? 76-7-104), sodomy (Utah Code Ann. ? 76-5-403) and adultery (Utah Code Ann. ? 76-7-103) statutes. Defendants alleged plaintiff had violated the Utah statutes and that defendant Campbell, former Chief of Police of West Valley City, imposed sanctions against him for such conduct. An appeal by plaintiff, of the sanctions, was taken to the City Civil Service Commission and the sanctions generally upheld. Further sanctions were imposed on plaintiff by P.O.S.T. Plaintiff challenges the sanctions based on a claim of unconstitutionality of the Utah statutes. Plaintiff seeks injunctive relief from future enforcement of the mentioned statutes and removal of the disciplinary sanctions and references in P.O.S.T. certification records. Motions for summary judgment and partial summary judgment were made by the parties. Extensive briefing was submitted.

The magistrate judge made a report and recommendation (File Entry # 74) as to the fornication and sodomy issues. The report concluded plaintiff had no standing on the fornication issue and that the fornication issue was not ripe for determination. The plaintiff was married at the time of his alleged misconduct and no fornication was shown to have been committed. As to the sodomy issue, it was concluded that the Utah sodomy statute could be applied to plaintiff for his extramarital sodomy and misconduct with other women but that as to other hypothetical circumstances the plaintiff "had no standing" to make a constitutional challenge as to the possible hypothetical applications of the Utah sodomy statute. The constitutionality of the Utah adultery statute was reserved for further consideration. The district court upheld the report and recommendation of the magistrate judge as to the fornication and sodomy issues.

The plaintiff has now made a motion for partial summary judgment as to the Utah adultery statute (Utah Code Ann. ? 76-7-103) (File Entry # 87). The plaintiff contends the statute offends his right to privacy, and violates substantive due process of law under the United States Constitution. The plaintiff also makes a "free expression" argument and a claim of overbreadth of the adultery statute in relationship to that contention. Equal protection has also been argued as a basis for relief. A memorandum in support of the motion was submitted (File Entry # 88). Plaintiff also submitted exhibits in support of the motion (File Entry # 92). The Utah State defendants (P.O.S.T. and the Attorney General) filed a responsive memorandum to the plaintiff's motion for partial summary judgment (File Entry # 93). The West Valley City defendants filed a response in opposition to plaintiff's motion for summary judgment. The West Valley City defendants also made a cross motion for summary judgment (File Entry # 97). Plaintiff filed a response to the State of Utah defendants' response (File Entry # 98). In these responses, plaintiff made the argument that he could be guilty of fornication if, as a married man, he had intercourse with an unmarried female by aiding and abetting the woman's fornication. The magistrate judge made a report and recommendation rejecting the claim and again concluding the plaintiff's constitutional challenge to the Utah fornication statute was not ripe for determination. The district court rejected plaintiff's claim.

Since the magistrate judge's prior reports and recommendations on the plaintiff's challenge to the Utah fornication and sodomy statutes have been accepted (File Entry # 108), the issue of the constitutionality of the Utah adultery statute remains as the only issue for this court to resolve.

The case was referred to the magistrate judge under 28 U.S.C. 636(b)(1)(B). This report and recommendation is submitted on motions for summary judgment of plaintiff and the West Valley City defendants on the constitutionality of the Utah adultery statute, Utah Code Ann. ? 76-7-103.

FACTS

The plaintiff was a West Valley City police officer during times relevant to this action. The plaintiff, while married, had sexual relations with a woman or women not his wife. The relations included sexual intercourse and sodomy. As part of the relief plaintiff seeks, he asks this court to order removal from his employment file all the references to charges, discipline, or suspension that resulted in part from a violation of the Utah adultery statute. Plaintiff has since divorced the woman to whom he was married at the time. Plaintiff alleges the sexual acts were performed in private, were consensual, non-prostitutional or commercial and heterosexual. The female participant was an unmarried adult. The conduct occurred during non-duty hours. Plaintiff was, as a result of the conduct, suspended for thirty (30) days without pay by West Valley City and the suspension noted in plaintiff's employment file. The West Valley City Civil Service Commission upheld plaintiff's suspension. The plaintiff's P.O.S.T. certificate was revoked for forty (40) days based on a consent order. Plaintiff contends the adverse actions were in part the result of plaintiff's violation of the Utah adultery statute.

Plaintiff's exhibits in support of his motion for summary judgment (File Entry # 92) show that a P.O.S.T. administrative complaint (Exhibit A) was filed against plaintiff alleging that on September 11, 1986, while plaintiff was a certified peace officer, there occurred "sexual relations" with a female member of the West Valley City Police Explorer Post. The plaintiff admitted the sexual relations "while he was married to another person and while he was off-duty from his peace officer employment." Plaintiff engaged in sexual intercourse and oral sex. Plaintiff also admitted other sexual intercourse on other occasions with members of an Explorer Post. The P.O.S.T. complaint expressly referred to the conduct as being crimes and acts of "Adultery, a Class A misdemeanor" as well as the Law Enforcement Code of Ethics. The P.O.S.T. complaint also charged that the conduct violated Utah Code Ann. ? 67-15-10.5(1)(c)(v), which sanctions "any conduct or pattern of conduct that would tend to disrupt, diminish or otherwise jeopardize public trust and fidelity in law enforcement."

A letter of September 29, 1986 from the West Valley City Chief of Police advised plaintiff of a thirty (30) day suspension for "violations of the law of the State of Utah" and "commission of any crime relating to public...

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7 cases
  • City of Sherman v. Henry, 95-1195
    • United States
    • Supreme Court of Texas
    • 19 Septiembre 1996
    ...several federal district courts have concluded that adultery is not protected by the right to privacy. E.g., Oliverson v. West Valley City, 875 F.Supp. 1465, 1480 (D.Utah 1995)("Extramarital sexual relationships are not within the penumbra of the various constitutional provisions or the art......
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    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • 9 Agosto 2006
    ...are made and the basis for such objections. See Keeler v. Pea, 782 F.Supp. 42, 43-44 (D.S.C.1992); and Oliverson v. West Valley City, 875 F.Supp. 1465, 1467, (D.Utah 1995). Failure to file specific, written objections shall constitute a waiver of a party's right to further judicial review, ......
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    • Supreme Court of Utah
    • 16 Mayo 2006
    ...I have found two federal district cases in which the adultery statute was claimed to be relevant. See Oliverson v. West Valley City, 875 F.Supp. 1465, 1469 (D.Utah 1995) (considering the claim of a West Valley City police officer who alleged his supervisor disciplined him based in part on h......
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    • 29 Agosto 2007
    ...of Jesus Christ of Latter Day Saints officially abolished polygamy as an institutional church practice. See Oliverson v. West Valley City, 875 F.Supp. 1465, 1476 n. 20 (D.Utah 1995). 4. In mounting their attack on Utah's criminal prohibition of polygamy, plaintiffs purport to seek the inval......
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