Sister Wives State Reply Motion.071312

JERROLD S.
JENSEN (#1678)
THOM D. ROBERTS (#2773)
Assistant Attorneys General
MARK L. SHURTLEFF (#4666)
Attorney General
Attorneys For Defendants
160 East 300 South, 5th Floor
P.O. Box 140857
Salt Lake City, Utah 84114-0857
Telephone: (801) 366-0353
jerroldjensen@utah.gov
thomroberts@utah.gov
UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION
KODY BROWN, MERI BROWN,
JANELLE BROWN, CHRISTINE
BROWN, ROBYN SULLIVAN,
Plaintiffs,
vs.
JEFFREY R. BUHMAN, in his official
capacity as County Attorney for Utah
County,
Defendants.
REPLY MEMORANDUM IN
SUPPORT OF DEFENDANTS
MOTION TO DISMISS FOR
MOOTNESS
Case: 2:11CV00652
Judge Clark Waddoups
Defendant Jeffrey R. Buhman, in his official capacity as Utah County Attorney,
State of Utah, through his attorneys of record, Jerrold S. Jensen and Thom D. Roberts,
Case 2:ll-cv-00652-CW-BCW Document 66 Filed 07/l3/l2 Page l of 9
Assistant Utah Attorneys General, submits this Reply Memorandum in Support of
Defendants Motion to Dismiss for Mootness:
Plaintiffs in their Memorandum of Points and Authorities in Opposition to
Defendants Motion to Dismiss for Mootness ignore (or perhaps have forgotten) what
their case is. Plaintiffs action is a pre-enforcement challenge to the constitutionality of
Utahs bigamy statute, Utah Code 76-7-101. It is not, as they would seem to indicate at
p. 9 of their Memorandum, a claim for damages or a claim for liability for past actions.
Being a challenge to the constitutionality of a statute, the courts evaluate the
constitutionality of a statute by assessing the manner in which it is implemented and
enforced by the governmental officials who administer it. Jordan v. Sosa, 654 F.3d
1012, 1019 (10 Cir. 2011).
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As stated by the Tenth Circuit in Mink v. Suthers, 482 F.3d 1244, 1253:
To pursue a case in federal court, a plaintiff must satisfy the
twin requirements of standing and mootness. Winsness v.
Yocum, 433 F.3d 727, 731 (10 Cir. 2006). Without a live,
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concrete controversy, we lack jurisdiction to consider claims
no matter how meritorious. Because we conclude Mink faces
no credible threat of prosecution under the criminal libel
statute, he lacks standing to pursue his claims for prospective
relief. For the same reasons, we also conclude his claim is
moot. Therefore, we cannot reach the merits of his
constitutional challenge to the statute. (Emphasis added).
Similarly here. Like Mink, this pre-enforcement is a constitutional challenge to a
criminal statute where after suit was filed the prosecutor disclaimed any intent on
Reply Memorandum in Support of Defendants Motion to Dismiss for Mootness
Kody Brown, v. Gary R. Herbert, et al.
Case No. 2:11CV00652
Page 2
Case 2:ll-cv-00652-CW-BCW Document 66 Filed 07/l3/l2 Page 2 of 9
prosecuting under the challenged statute. And here, like Mink, there is no credible threat
of prosecution and therefore the claim is moot and the case should be dismissed.
Mootness goes to the jurisdiction and authority of the Court to hear a case.
The mootness doctrine provides that although there may be an
actual and justiciable controversy at the time the litigation is
commenced, once that controversy ceases to exist, the federal
court must dismiss the action for want of jurisdiction.
Jordan v. Sosa, 654 F.3d at 1023. Mootness is jurisdictional and cannot be waived by the
parties. Winsness v. Yocum, 433 F.3d 727, 736, fn 4 (10 Cir. 2006). In Winsness,
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notwithstanding the Plaintiff having been cited, the prosecutors forswore any intention to
bring criminal charges. The court held that in a pre-enforcement challenge the lack of an
intention to prosecute meant there was no longer a live controversy, even if we assume
that a credible threat of prosecution existed before this lawsuit was filed, the prosecutors
affidavits have rendered the controversy moot. Id. at 736.
Plaintiffs cite to the voluntary cessation exception to a claim of mootness
Defendants voluntary cessation of a challenged practice does not deprive a federal court
of its power to determine legality of a practice. Friends of the Earth, Inc. v. Laidlaw
Envtl. Servs., Inc., 528 U.S. 167, 189 (2000). Plaintiffs further claim that parties
asserting mootness bear a heavy burden of persua[ding] the court that the challenged
conduct cannot reasonably be expected to start up again. Id., (internal quotations and
Page 3
citations omitted). Defendant recognizes the voluntary cessation doctrine but that
doctrine does not keep this case from being dismissed as moot.
The Tenth Circuit discussed the voluntary cessation exception in Rio Grande
Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096 (10 Cir. 2010). The Court
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first noted that the exception is based upon:
the principle that a party should not be able to evade judicial
review, or to defeat a judgment, by temporarily altering
questionable behavior. In other words, this exception exists
to counteract the possibility of a defendant ceasing illegal
action long enough to render a lawsuit moot and then
resuming the illegal conduct.
Id. at 1115 (internal quotations and citations omitted). The Court then stated:
Voluntary actions may, nevertheless, moot litigation if two
conditions are satisfied: (1) it can be said with assurance that
there is no reasonable expectation that the alleged violation
will recur, and (2) interim relief or events have completely
and irrevocably eradicated the effects of the alleged
violation. County of Los Angeles v. Davis, U.S. 625, 631,
99 S.Ct. 1379, 59 L.Ed.2d 642 (1979) (internal quotation
marks, elipses, and citations omitted). [V]oluntary cessation
of offensive conduct will only moot litigation if it is clear that
the defendant has not changed course simply to deprive the
court of jurisdiction. Natl Adver. Co. v. City of Miami, 402
F.3d 1329, 1333 (11 Cir. 2005) (per curiam).
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Id. at 1115-16.
In discussing the analysis, the Tenth Circuit stated: In practice, however,
Laidlaws heavy burden frequently has not prevented governmental officials from
Page 4
discontinuing challenged practices and mooting a case. Id. at 1116. The Court noted
with approval that courts place a comparatively lighter burden of proof on governmental
officials than on private parties and that such is reconcilable with Laidlaw because
governmental officials act in their sovereign capacity in the exercise of their official
duties [and] are accorded a presumption of good faith because they are public servants,
not self interested private parties. Id., 1117, fn 15, quoting Sossamon v. Texas, 560 F.3d
316, 325 (5 Cir. 2009). There may be even a reputable presumption that the
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objectionable behavior will not recur when the Defendant is a governmental actor. Rio
Grande, 601 F.3d at 117, fn 17, citing Troiano v. Supervisor of Elections in Palm Beach
County, 382 F.3d 1276, 1283 (11 Cir. 2004) and Chicago United Indus., Ltd. v. City of
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Chicago, 445 F.3d 940, 947 (7 Cir. 2006).
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Any statutory change can be undone, and a repealed statute re-adopted. Further,
administrative policies and decisions can also be changed. However, statutory change
usually is sufficient to moot a case, Rio Grande, 601 F.3d at 1116, and so is withdrawal or
alteration of administrative policy, id. at 1117. As stated in Rio Grande:
And the mere possibility that an agency might rescind
amendments to its actions or regulations does not enliven a
moot controversy. A case cease[s] to be alive controversy if
the possibility of recurrence of the alleged challenged conduct
is only a speculative contingency.
Id. (internal quotations and citations omitted).
Page 5
In Winsness, Plaintiffs brought a pre-enforcement challenge to the
constitutionality of a statute, having been cited for violating it. The
prosecutors, however, forswore any intention to bring criminal proceedings
on that statute after suit had been filed. The Tenth Circuit dismissed the
case as moot, stating:
The pleadings and affidavits provide no evidence, and the
Plaintiffs have provided nothing but speculation, that the
prosecutors will change their policies if this lawsuit is
dismissed. We therefore find it absolutely clear that the
threat of prosecution has been eliminated.
Winsness, 433 F.3d at 736. In Mink, Plaintiff brought a pre-enforcement challenge to a
criminal statute where an investigation had been conducted, a search warrant issued, and
items had been seized from the Plaintiff. After he filed suit the prosecutor decided no
charges would be filed against Mink and issued a written no file decision. The Tenth
Circuit dismissed the case as moot. After discussing the mootness doctrines and
standards, including voluntary cessation exception, the Tenth Circuit dismissed the case
as moot since: In short, we see no credible threat of prosecution against Mink. Mink,
482 F.3d at 1257.
In the present case, the Utah County Attorneys Office had not had a bigamy
prosecution in the memory of the office. Therefore, they had not had a need to develop a
policy with regard to when and if bigamy charges would be brought. When finally
Page 6
presented with a complaint alleging bigamy, Utah County Attorneys Office undertook a
review of the complaint and policies with regard to bigamy prosecutions. Based upon its
review of its finite limited resources, the nature of the criminal case, and the adopted
policy of the Utah Attorney General, Defendant Buhman and the Utah County Attorneys
Office adopted a policy regarding prosecution of bigamy cases to govern all pending and
future bigamy cases. Then, pursuant to that policy, they ended the investigation against
the Plaintiffs and determined there would be no prosecution.
The Utah Attorney Generals Office had previously adopted a bigamy prosecution
policy that was the same as the one adopted by Defendant Buhman. This Court found
there to be no standing, no live or justiciable controversy in the Plaintiffs claim against
the Attorney General and dismissed the case as against the Utah Attorney General. With
the adoption of its policy and the declining of prosecution in accordance with that policy,
the Defendant Utah County Attorney is in the same position with Plaintiffs as was the
Attorney Generals Office there is no current, live or justiciable controversy with regard
to prosecution under the bigamy statute. As in Mink, there is no reasonable expectation
that a prosecution would be re-instituted if the case were dismissed, and as in Winsness
these is no indication that this Defendant will change his policy if the lawsuit is
dismissed. In both those cases the Tenth Circuit found that in such circumstances there
Page 7
was no credible threat of prosecution and the cases should be dismissed as moot. This
Court should similarly act here.
CONCLUSION
Based upon the Utah County Attorney having adopted a policy with regard to
prosecution of bigamy cases which precludes prosecution as against these Plaintiffs, and
the Defendant having formally declined and forsworn prosecution against these Plaintiffs
based upon that policy, there is no credible threat of prosecution against these Plaintiffs
and any threat of prosecution has been eliminated. This case is therefore moot, the
Court lacks jurisdiction to hear it, and the Court should dismiss it.
DATED this 13th day of July, 2012.
MARK L. SHURTLEFF
Utah Attorney General
/s/ Jerrold S. Jensen
JERROLD S. JENSEN
Assistant Attorney General
Attorneys for Defendants
Page 8
CERTIFICATE OF SERVICE
This is to certify that copies of the foregoing REPLY MEMORANDUM IN
SUPPORT OF DEFENDANTS MOTION TO DISMISS FOR MOOTNESS was
served by electronically filing the foregoing with the Clerk of the Court using the
CM/ECF system which will send notification to:
Jonathan Turley
2000 H St., N.W.
Washington, D.C. 20052
jturley@law.gwu.edu
Adam Alba
2167 N. Main Street
Centerville, Utah 84014
adam.alba@gmail.com
/s/ Sherri Cornell
Legal Secretary
Page 9

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