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Sister Wives ruling

Sister Wives ruling

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Published by Ben Winslow
The judge's ruling that refuses to dismiss the lawsuit filed against Utah by Kody Brown and his wives.
The judge's ruling that refuses to dismiss the lawsuit filed against Utah by Kody Brown and his wives.

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Published by: Ben Winslow on Feb 04, 2012
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02/04/2012

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IN THE UNITED STATES DISTRICT COURTDISTRICT OF UTAH, CENTRAL DIVISIONKODY BROWN, MERI BROWN,JANELLE BROWN, CHRISTINE BROWN,ROBYN SULLIVAN,Plaintiffs,v.GARY R. HERBERT, MARK SHURTLEFF,JEFFREY R. BUHMAN,
 
Defendants.
MEMORANDUM DECISIONAND ORDER
 Case No. 2:11-CV-0652-CWJudge Clark Waddoups
INTRODUCTION
Plaintiffs have filed this case to challenge Utah Code Ann. § 76-7-101 (the “Anti-BigamyStatute” or the “Statute”) as unconstitutional and enjoining its enforcement. Before the court isDefendants’ motion to dismiss Plaintiffs’ complaint for lack of standing. Defendants’ motion isGRANTED in part and DENIED in part. For the reasons stated herein, the court finds thatPlaintiffs do not have standing to bring this action against Defendants Gary R. Herbert, in hisofficial capacity as Governor of Utah, and Mark Shurtleff, in his official capacity as AttorneyGeneral of Utah. They are DISMISSED. The court finds that Plaintiffs have standing tocontinue against Jeffrey R. Buhman, in his official capacity as County Attorney for Utah County.
Case 2:11-cv-00652-CW Document 31 Filed 02/03/12 Page 1 of 21
 
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FACTUAL BACKGROUND
Plaintiffs Kody Brown, Meri Brown, Janelle Brown, Christine Brown, and RobynSullivan are self-described polygamists that publicly lived in Utah as a plural family. During thistime, members of the family have participated in a number of outreach efforts to speak andeducate others about their lifestyle. For example, Christine Brown was interviewed on nationaltelevision by HBO in 2007, participated in the television show
48 Hours
in 2008, and spoke to aUniversity of Utah class about polygamy and her polygamist practices in 2009.Through these and other activities, Plaintiffs became aware that the State of Utah has apolicy of not prosecuting individuals for violations of the Anti-Bigamy Statute, except in caseswhere other crimes accompany the bigamy charge. Relying upon certain assurances of stateofficials leading up to 2010, the Browns became involved with the television series
Sister Wives
on TLC, which is a reality show based on their polygamist family.After the show aired, the Lehi City Police Department began receiving a number of callsinquiring what the department intended to do. The day after the first episode aired, the Lehi CityPolice Department publicly announced that it was investigating Plaintiffs for bigamy. Similarly,the Utah County Attorney’s office stated that the Browns were placed under investigation afterits attorneys saw the
Sister Wives
promotional trailer and commented that the Browns have madeit easier for prosecutors because they admitted to felonies on national television. Althoughprosecutors have left the possibility of other charges open, Plaintiffs’ allegations support aninference that these investigations have centered on their bigamist activities. In contrast to theState, Utah County does not have a policy against prosecuting bigamists solely for bigamy.Indeed, since making the initial announcement and remarks, Utah County has remained silent onits intentions to prosecute or not prosecute the Browns under the Statute. Based on these
Case 2:11-cv-00652-CW Document 31 Filed 02/03/12 Page 2 of 21
 
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statements, Plaintiffs fled from Utah to Nevada for fear that they would be criminally prosecutedfor practicing bigamy. Despite not living and exercising their speech in Utah, they continue tovisit relatives and associates in Utah. Once the threat of prosecution is lifted, however, theyexpect to relocate to the State of Utah.
STANDARD FOR A RULE 12(B)(1) MOTION TO DISMISS
Before the court is Defendants’ Fed. R. Civ. P. 12(b)(1) motion to dismiss for lack of standing. The Supreme Court has directed that “[f]or purposes of ruling on a motion to dismissfor want of standing . . . courts must accept as true all material allegations of the complaint, andmust construe the complaint in favor of the complaining party.”
Warth v. Seldin
, 422 U.S. 490,501 (U.S. 1975). Indeed, this pleading standard “does not require detailed factual allegations,but . . . [a] pleading that offers labels and conclusions . . . will not do. Nor does a complaintsuffice if it tenders naked assertions devoid of further factual enhancement . . . .”
 Ashcroft v. Iqbal
, 129 S. Ct. 1937, 1949 (2009).The Tenth Circuit has further explained:Generally,
 Rule 12(b) (1)
motions to dismiss for lack of subject matter jurisdictiontake two forms. First, a facial attack on the complaint’s allegations as to subjectmatter jurisdiction questions the sufficiency of the complaint. In reviewing afacial attack on the complaint, a district court must accept the allegations in thecomplaint as true. Second, a party may go beyond allegations contained in thecomplaint and challenge the facts upon which subject matter jurisdiction depends.When reviewing a factual attack on subject matter jurisdiction, a district courtmay not presume the truthfulness of the complaint’s factual allegations. A courthas wide discretion to allow affidavits, other documents, and a limited evidentiaryhearing to resolve disputed jurisdictional facts under
 Rule 12(b)(1)
.
 Holt v. United States
, 46 F.3d 1000, 1002-04 (10th Cir. 1995) (citations omitted).
 
Accordingly, insofar as Defendants have not challenged Plaintiffs’ factual assertions, thecourt will accept them as true and look to whether such facts, as alleged, are sufficient toestablish Plaintiffs’ standing as a matter of law. Where Defendants have challenged Plaintiffs’
Case 2:11-cv-00652-CW Document 31 Filed 02/03/12 Page 3 of 21

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