JERROLD S. JENSEN (#1678)THOM D. ROBERTS (#2773)Assistant Attorneys GeneralMARK L. SHURTLEFF (#4666)Attorney GeneralAttorneys For Defendants160 East 300 South, 5th Floor P.O. Box 140857Salt Lake City, Utah 84114-0857Telephone: (801) 366-0353 jerroldjensen@utah.govthomroberts@utah.gov ______________________________________________________________________________ UNITED STATES DISTRICT COURTDISTRICT OF UTAH, CENTRAL DIVISIONKODY BROWN, MERI BROWN,JANELLE BROWN, CHRISTINE BROWN,ROBYN SULLIVAN,Plaintiffs,vs.JEFFREY R. BUHMAN, in his officialcapacity as County Attorney for Utah County,Defendant.
MEMORANDUM IN SUPPORT OFDEFENDANT’S MOTION TODISMISS FOR MOOTNESS
Case: 2:11CV00652Judge Clark WaddoupsDefendant Jeffrey R. Buhman, in his official capacity as Utah County Attorney, State of Utah, files this Memorandum in Support of his Motion to Dismiss Plaintiffs’ Complaint for Mootness.
Case 2:11-cv-00652-CW-BCW Document 47 Filed 05/31/12 Page 1 of 13
STATEMENT OF FACTS
1.It is estimated that approximately 30,000 polygamists live in the State of Utah.Pltfs.’ Cmplt. ¶ 54. (Doc. 1.) How many polygamists actually live in Utah County is not known, but it is known that a polygamist community of Apostolic United Brethren (“AUB”) – the churchto which the Browns claim membership – live in the southern part of Utah County and thenorthern part of Juab County. First Buhman Decl., ¶¶ 8-9, Aug. 24, 2011. (Doc. 8-1.)2.When the last criminal prosecution for polygamy was brought in Utah County isnot known, but active prosecution of polygamists for just the practice of polygamy has notoccurred in Utah since the 1940s and ‘50s. Whether there has been a prosecution for polygamy
1
in Utah County in the recent past is not known by Defendant Buhman. First Buhman Decl., ¶ 7.(Doc. 8-1.) But none of the cases cited by Plaintiffs in their Memorandum in Opposition toDefendants’ Motion to Dismiss (Doc. 12) for the prosecution of polygamists in Utah in the last50 years originated in Utah County.
2
3.In October, 2010 the Utah County Attorney’s Office received a report from theLehi City Police Department regarding the airing of the TLC television series “
Sister Wives
,” in
See
State v. Barlow
,
et al.,
107 Utah 292, 153 P.2d 649 (1944);
State v. Musser, et al.
, 110 Utah 534, 175
1
P.2d 724 (1946),
cert. granted,
333 U.S. 95, 68 S.Ct. 397 (1948);
State v. Musser
, 118 Utah 537, 223 P.2d 193(1950);
State v. Barlow
, 8 Utah 2d 396, 335 P.2d 629 (1959).
All of these cases originated in Salt Lake County.
In re Steed,
2006 UT 10, 131 P.3d 231 (Washington County); Mark Easterday (Sevier County); Steve
2
Bronson (Millard County).Memorandum in Support of His Motion to Dismiss Plaintiffs’ Complaint for MootnessKody Brown v. BuhmanU.S. District Court Case 2:11CV00652Page 2
Case 2:11-cv-00652-CW-BCW Document 47 Filed 05/31/12 Page 2 of 13
which Plaintiff Kody Brown claimed to be a resident of Lehi City, Utah County, and admitted to being in a polygamist relationship with three women. Second Buhman Decl., ¶ 2, May 22, 2012.4.The Lehi City Police Department’s report was the first police report to have beensubmitted to the Utah County Attorney’s Office during Defendant Buhman’s tenure as UtahCounty Attorney alleging the offense of bigamy in violation of Utah Code § 76-7-101where the bigamy was not related to marriage fraud or the failure to obtain a divorce prior toremarrying. Second Buhman Decl., ¶ 3.5.In response to the Lehi City Police Department’s report, the Utah CountyAttorney’s Office opened a case file – as they do for all police reports submitted to the UtahCounty Attorney’s Office – on the Browns. Second Buhman Decl., ¶ 4.6.At the time of the Lehi City Police Department’s report, the Utah CountyAttorney’s Office did not have a formal policy regarding the prosecution of polygamy, and noone in the office had any recollection of the Utah County Attorney’s Office ever prosecutinganyone for the practice of polygamy. Second Buhman Decl., ¶ 6.7.The Utah County Attorney’s Office has now adopted formal policy related to the prosecution of bigamy. That policy states:Prosecution of Bigamy Crimes:The Utah County Attorney’s Office will prosecute the crime of bigamy under Section 76-7-101 in two circumstances: (1) When avictim is induced to marry through their partner’s fraud,misrepresentations or omissions; or (2) When a person purports tomarry or cohabits with another person in violation of Section 76-7-101(1) and is also engaged in some type of abuse, violence or
Memorandum in Support of His Motion to Dismiss Plaintiffs’ Complaint for MootnessKody Brown v. BuhmanU.S. District Court Case 2:11CV00652Page 3
Case 2:11-cv-00652-CW-BCW Document 47 Filed 05/31/12 Page 3 of 13
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