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Refusal to Dismiss Sister Wives.081712

Refusal to Dismiss Sister Wives.081712

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Published by Lindsay Whitehurst
U.S. District Judge Clark Waddoups' ruling refusing to dismiss reality TV show stars' lawsuit seeking to legalize polygamy.
U.S. District Judge Clark Waddoups' ruling refusing to dismiss reality TV show stars' lawsuit seeking to legalize polygamy.

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Published by: Lindsay Whitehurst on Aug 18, 2012
Copyright:Attribution Non-commercial


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 Case No. 2:11-CV-0652-CWJudge Clark Waddoups
On February 3, 2012, the court entered a memorandum decision and order granting in part anddenying in part Defendants’ motion to dismiss on the grounds that Plaintiffs’ claims lack standing. (Dkt. No. 31). The court held that while Plaintiffs had not alleged facts sufficient toallow a suit to go forward against Defendants Gary Herbert, the Governor of Utah, and Mark Shurtleff, the Attorney General of Utah, the alleged facts were sufficient to allow Plaintiffsstanding to maintain their claims against Defendant Jeffrey Buhman, the Utah County Attorney. Now before the court is Mr. Buhman’s motion to dismiss (Dkt. No. 46) on the ground thatPlaintiffs’ claims are now moot as a result of his office’s recent adoption of a policy thatresidents of Utah County will not be prosecuted for violating Utah’s anti-bigamy statute except
For a more thorough review of the factual background of this suit, see the court’smemorandum decision and order dated February 3, 2012. (Dkt. No. 31).
in cases where such a violation is committed in connection with some other violation of the law.For the reasons stated below, the court DENIES Mr. Buhman’s motion to dismiss.
“The constitutional mootness doctrine is grounded in Article III's requirement that federalcourts only decide actual, ongoing cases or controversies. . . . The central question indetermining whether a case has become moot is whether the issues presented are no longer liveor the parties lack a legally cognizable interest in the outcome.”
 Phelps v. Hamilton
, 122 F.3d1309, 1326 (10th Cir. 1997) (internal quotation marks and citation omitted). To sustain jurisdiction over a federal case, “it is not enough that a dispute was very much alive when suitwas filed . . . . The parties must continue to have a personal stake in the outcome of the lawsuit.”
 Lewis v. Continental Bank Corp
., 494 U.S. 472 (1990) (internal quotation marks and citationomitted). Thus, “[w]hen intervening acts destroy a party’s legally cognizable interest in thelawsuit, the federal courts are deprived of jurisdiction.”
 Mink v. Suthers
, 482 F.3d 1244, 1256(10th Cir. 2007) (internal quotation marks and citation omitted).“Merely stopping the complained of conduct ordinarily is not enough, however, toestablish mootness.”
See also Friends of the Earth, Inc. v. Laidlaw Environmental Services(TOC), Inc.
, 528 U.S. 167, 189 (2000) (“[A] defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice. If it did, the courts would be compelled to leave the defendant free to return to his old ways.”)(internal quotation marks and citation omitted). To show that a particular suit is moot as a resultof a voluntary cessation of the challenged practice, a party asserting mootness has the “heavy
 burden of persuading the court that the challenged conduct cannot reasonably be expected to startup again . . . .”
 Friends of the Earth, Inc.
, 528 U.S. at 189.Although the burden of persuading the court that the challenged activity is not likely to be repeated is a heavy one, it is not insurmountable. “[I]n many circumstances it is obvious previously threatened conduct cannot reasonably be expected to recur.”
, 482 F.3d at 1256(citation omitted). On at least two occasions, the Tenth Circuit has found that a categoricalannouncement from a government attorney that no prosecutions would be brought under a particular statute was sufficient to moot a challenge to the constitutionality of the statute.
See Mink 
, 482 F.2d at 1256-57 (opinion letter from prosecutor stating that the challenged statutecould not be constitutionally applied to the conduct attributed to the plaintiff and that no chargeswould be filed against Plaintiff in the future was sufficient to moot challenge to statute’sconstitutionality);
Winsness v. Yocom
, 433 F.3d 727, 736 (challenge to constitutionality of flag burning statute moot because prosecutor had “categorically announc[ed] that his office [would] bring no prosecutions under the statute” and because recent Supreme Court precedent had madeit clear that any future prosecutions under the statute would be futile).In
, the Tenth Circuit identified three factors which it relied on to determine that thegovernment attorney’s assurance of non-prosecution established mootness: (1) the governmentquickly repudiated the actions initially taken against the plaintiff; (2) the government’s promiseof non-prosecution was made in sworn affidavits; and (3) the government’s decision was basedon controlling Supreme Court precedent, making future prosecutions unlikely. 482 F.3d at 1256.The court finds these factors helpful and will rely on them to determine whether Mr. Buhman’sadoption of a policy not to prosecute residents of Utah County, including Plaintiffs, for violation

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