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Case 2:11-cv-00652-CW Document 85 Filed 01/27/14 Page 1 of 21

Jonathan Turley (Pro Hac) 2000 H St., N.W. Washington, D.C. 20052 (202) 994-7001 Adam Alba, 13128 610 Crestwood Cir. Bountiful, UT 84010 (801) 792-8785 Attorneys for Plaintiffs UNITED STATES DISTRICT COURT DISTRICT OF UTAH, CENTRAL DIVISION

) KODY BROWN, MERI BROWN, JANELLE BROWN, CHRISTINE BROWN, ROBYN SULLIVAN, Plaintiffs, v. GARY R. HERBERT, in his official capacity as Governor of Utah; MARK SHURTLEFF, in his official capacity as Attorney General of Utah; JEFFREY R. BUHMAN, in his official capacity as County Attorney for Utah County, Defendants. ) ) ) ) ) ) ) ) Civil No. 2:11-cv-00652-CW Judge Waddoups PLAINTIFFS RESPONSE TO COURTS JANUARY 17, 2014 ORDER


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INTRODUCTION Pursuant to the Courts order on January 17, 2014, the Plaintiffs Kody Brown, Meri Brown, Janelle Brown, Christine Brown, and Robyn Sullivan (hereinafter the Brown family or the Browns) file this response to the two questions posed by the Court to the parties. First, the Court asked if prosecutorial immunity or prosecutorial discretion has been waived given the failure of the Defendant to answer the 42 U.S.C. 1983 count in the Complaint or to raise the defense in any filing before this Court. Second, the court asked if the Browns must claim damages as part of the seventh count or can the Court find in their favor on the basis of declaratory relief, injunctive relief and attorneys fees. Plaintiffs respectfully submit that the Court can, and should, find a violation under 1983 in light of the Courts decision of December 13, 2013. The Browns enumerated an array of damages associated with the now-stricken language under Utah Code Ann. 76-7-101 and were previously found to have shown sufficient injury to sustain all of the counts for the purpose of standing, including the final count under 1983. However, they believe strongly that the focus of the case should be on the Courts historic ruling and not their insular losses associated with the criminal investigation and public comments of the Defendant. To that end, they will not ask for repayment of their moving costs, loss of contracts, or other expenses detailed in the prior filings. They ask, however, that the Court find in their favor under 1983 and ask for the Court to issue the final order with the previously requested injunctive and declaratory relief. 1 While they could demand damages for the previously stated injuries, there is no requirement that injured parties force payments of insular damages by the

The Browns also reserve their right to seek attorneys fees in this case. Plaintiffs counsel has represented the family on a pro bono basis without fees. The family has covered the associated travel and administrative costs of the litigation. 2

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state to secure a finding of responsibility by a defendant under 1983. Indeed, such a requirement would serve no interests in the case when injured parties are willing to proceed to final judgment. 2 As argued below, filings have consequences in federal court. The Defendant made the conscious choice not to oppose, or even mention, the 1983 claim. This was no oversight. Indeed, even after Plaintiffs noted the failure to respond to the claim in filings, the Defendant continued to remain silent on this count in arguments before the Court. There is no provision in the Federal Rules of Civil Procedure for opposing counts implicitly or by implication through ones silence. Silence may be golden in personal matters, but it is positively fatal in summary judgment matters. The Defendant has now waived opposition to the count and, putting aside the clear merits of the count, should as a matter of civil procedure have a judgment entered against him under 42 U.S.C. 1983. BACKGROUND The instant challenge to Utah Code Ann. 76-7-101 was filed on July 13, 2011, alleging seven constitutional claims, including due process, equal protection, free speech, free association, free exercise, the establishment of religion, and 42 U.S.C. 1983. The seventh and final count incorporated the prior paragraphs and allegations as part of the claim under 1983 that the Defendant had violated the statute by denying rights secured by the Fourteenth Amendment. Compl. 230-31.

Such a demand would entail a potential trial and additional delay in the case that would serve no one. Indeed, it would be curious for the state to insist that it be forced to pay such damages when a party is willing to forego such proceedings in the interest of closure in a given case. 3

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On February 3, 2012, this Court ruled that the Brown family had shown sufficient injury on all seven counts to establish standing to challenge the law. Brown v. Herbert, 850 F. Supp. 2d 1240, 125255 (D. Utah 2012). On May 31, 2012, Plaintiffs filed their Motion for Summary Judgment. (Dkt. 50) This motion contained a specific section arguing the merits of the 1983 claim. Pls. Mem. In Supp. Summ. J. at 58. After attempting one last effort to dismiss the case, the Defendant finally responded to the motion on September 28, 2012. This response, however, contained only seven pages in response to fifty pages of detailed argument on the various counts. The Court later noted that it was intrigued by the sheer lack of a response by the Defendant to the arguments for summary judgment and noted Plaintiffs objection that they were being placed in the awkward position of replying to a non-response. Brown v. Buhman, 947 F. Supp. 2d 1170, 1177 (D. Utah 2013) (citing Pls. Reply Mot. Summ. J. at 2). While the Defendant used his seven-pages of argument to address the other counts, he chose not to respond to the seventh count under 42 U.S.C. 1983. In their response to the Defendants opposition filing, Plaintiffs not only expressed surprise at the relative lack of any response in the seven page argument but specifically noted that the Defendant had failed to respond in any way to the seventh count. In their filing, Plaintiffs expressed uncertainty regarding how to respond to a non-argument. Indeed, making this filing even more curious was that fact that Defendant [made] no distinction in his filing between the arguments in opposition to Plaintiffs motion and the arguments in favor of his own motion. Pls. Opp. Mem. at 2 (Dkt. 72). Nevertheless, Plaintiffs filed an entire section entitled Defendant Does Not Address Plaintiffs Challenge Under 42 U.S.C. 1983. Plaintiffs at the

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beginning of this section noted The Defendant not only declines to respond to the claim but also fails to even mention 1983 in his filing seeking summary judgment. Id. The only relevant filings concern Plaintiffs Motion for Summary Judgment and the Defendants Opposition To Summary Judgment. However, it is worth noting that, after committing an entire section to his failure to respond to the seventh claim, Defendant then filed a reply memorandum that again failed to mention, let alone respond to, the 1983 claim. Def.s Reply To Pls. Mem. In Opp. To Def.s Mot. Summ. Judg. [Dkt. 73]. Not only does Defendant fail to respond to the entire 1983 count, but he does not mention immunity or prosecutorial discretion. Thus, Defendant opted not to respond to the count in any summary judgment filings (including its own motion) and opted not to raise either immunity or prosecutorial discretion in any filing. After the filing of the summary judgment motions and responses, this Court held a hearing on January 17, 2013 on both dispositive motions. The Court repeatedly asked Defendants counsel if he had any further arguments to make. See Transcript (Jan. 13, 2013) at 28, 34, 51. While offering arguments related to other counts, Defendants counsel again declined to make any argument in opposition to the 1983 claim. As a result, the Defendant had chosen not to respond to this count in multiple filings and in oral argument. In no filing or oral argument did Defendant ever invoke qualified immunity or prosecutorial discretion as a defense to this claim. On December 13, 2013, the Court found the state law violated protections of due process and the free exercise of religion. In finding multiple constitutional violations, the Court found that the Defendant had failed to contest virtually any of the factual assertions of the Plaintiffs, offered virtually no support on key issues of harm and material elements, and dismissed some

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arguments as amounting to virtual absurdity in defense of the cohabitation provision. Brown, 947 F. Supp. 2d at 1218. On January 17, 2014, this Court held a hearing to specifically discuss the 1983 claim. The Court noted that the Defendant had made no argument of any kind to the claim. Defense counsel then informed the Court that he knowingly declined to make any arguments to this count because he did not believe any specific damages would be demanded. He did not explain why he did not raise any defense or even mention the claim as required under the Federal Rules of Civil Procedure. The Defendants position appears to be that the Court should read into its silence a substantive defense to the count an argument that would effectively gut the Federal Rules of Civil Procedure, as argued below. There is no provision in the federal rules for such a judicial equivalent of a Mulligan for the hapless or absent litigant. ARGUMENT I. QUALIFIED IMMUNITY AND PROSECUTORIAL DISCRETION ARE NOT BARRIERS TO SUMMARY JUDGMENT IN THIS CASE. A. The Defendant Waived All Defenses To Section 1983 Liability By Not Even Mentioning Section 1983 In Multiple Filings And Oral Arguments.

Pursuant to Rule 56(a) of the Federal Rules of Civil Procedure, the Plaintiffs showed that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law under all seven counts. The Court has already found in favor of the Plaintiffs on the due process and free exercise counts. The federal rules expressly state that, in response to a properly supported motion for summary judgment, a non-movant must produce sufficient evidence for a reasonable trier of fact to find in its favor at trial on the claim or defense under consideration. Nahno-Lopez v. Houser, 625 F.3d 1279, 1283 (10th Cir. 2010). Moreover, the Defendant has the burden of invoking any affirmative defenses. Fed. R. Civ. P. 8(c)(1) (In

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responding to a pleading, a party must affirmatively state any avoidance or affirmative defense . . . ) (emphasis added). The failure to plead an affirmative defense constitutes a waiver of that defense a rule vigorously enforced across the circuits. See Wilson v. Muckala, 303 F.3d 1207, 1215 (10th Cir. 2002); Pei-Herng Hor v. Ching-Wu Chu, 699 F.3d 1331, 133738 (Fed. Cir. 2012); Summe v. Kenton Cnty. Clerk's Office, 604 F.3d 257, 26970 (6th Cir. 2010); Narducci v. Moore, 572 F.3d 313, 323 (7th Cir. 2009); Blissett v. Coughlin, 66 F.3d 531, 538 (2d Cir. 1995); Angarita v. St. Louis Cnty., 981 F.2d 1537, 1548 (8th Cir. 1992); Davis v. Huskipower Outdoor Equip. Corp., 936 F.2d 193, 198 (5th Cir. 1991); Maul v. Constan, 928 F.2d 784, 78587 (7th Cir. 1991). Indeed, the purpose of the federal rule is precisely to avoid this type of last-minute change after years of litigation. Ball Corp. v. Xidex Corp., 967 F.2d 1440, 144344 (10th Cir. 1992) (The Tenth Circuit has held that [t]he purpose behind rule 8(c) [is] that of putting plaintiff on notice well in advance of trial that defendant intends to present a defense in the nature of an avoidance. . . .). Qualified immunity is an affirmative defense. See Harlow v. Fitzgerald, 457 U.S. 800, 815 (1982). In the vast majority of cases, defendants follow the best procedure of pleading immunity in their answer or amended answer. Ahmad v. Furlong, 435 F.3d 1196, 1202 (10th Cir. 2006). 3 If a defendant fails to invoke this affirmative defense in their answer, a court may allow the

The complaint explicitly raises claims under 1983 in multiple places. See Compl., 29, 231. In response, the Defendants answer merely denies that the U.S. Constitution affords [the plaintiffs] the relief they seek,, Ans. 21, in direct response to Compl. 29, which explicitly states the Plaintiffs [are] bring[ing] this action pursuant to 42 U.S.C. 1983, Compl. 29. Additionally, in the section entitled Seventh Claim For Relief: 42 U.S.C. 1983, the Plaintiffs again explicitly refer to the Defendants deprivation of the Plaintiffs rights in violation of 42 U.S.C. 1983. Compl. 231. The answer, however, only denies the allegations contained in paragraph 231. Ans. 94. Moreover, not one of the thirty-five separate defenses offered in the answer makes any mention of qualified immunity, 1983, or any other affirmative defense; rather, they all concentrate on the constitutionality of the statute. 7

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defense to be raised at the summary judgment stage if the result is not overly prejudicial. See id. However, courts tend to find waiver when an affirmative defense is only mentioned in passing or not substantively argued until late in litigation. See Summe, 604 F.3d at 26970 (defendant waived qualified immunity defense when he did not raise it in his summary judgment motion, although he asserted qualified immunity as an affirmative defense in his answer and was aware of the defense before discovery and had ample time to develop it during discovery and to present it in the summary judgment motion; as a result, appeals court declined to review on appeal the district court's sua sponte grant of qualified immunity); Narducci, 572 F.3d at 323 (holding that the failure to raise qualified immunity before the reply brief constituted a waiver of that defense in summary judgment proceedings, but noting that the defense's pleading of qualified immunity defense makes it available as a basis for a motion for judgment as a matter of law during the course of trial); Blissett, 66 F.3d at 538 (where defendant only generally raised qualified immunity in answer and never raised the issue again during subsequent five years of pretrial proceedings despite the district court's sua sponte invocation of the defense during trial, district court properly ruled that qualified immunity defense had been waived); Maul, 928 F.2d at 785 87 (although defendant's answer made reference to good faith immunity, defendant's failure to press qualified immunity defense in any pretrial motions, at pretrial conference, or at trial waived immunity); Angarita, 981 F.2d at 1548 (same). The Plaintiffs cannot find a case like the instant case where a defendant simply disregarded any defense in a 1983 matter. Cf. Maestas v. Lujan, 351 F.3d 1001, 1010 (10th Cir. 2003) (Mr. Lujan raised qualified immunity as an affirmative defense in his Answer, referenced the defense in the Pretrial Order, and gave testimony on the matter at trial. We hold, therefore, that Mr. Lujan appropriately raised the qualified immunity issue.). A defendant

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cannot wait for a court to raise an affirmative defense after the summary judgment arguments to belatedly embrace it. The Tenth Circuits comments from Evans v. Fogerty ring particularly true here: Although the defense of qualified immunity provides public officials important protection from baseless and harassing lawsuits, it is not a parachute to be deployed only when the plane has run out of fuel. Defendants must diligently raise the defense during pretrial proceedings and ensure it is included in the pretrial order. Evans v. Fogarty, 241 F. App'x 542, 550 n.9 (10th Cir. 2007). In the instant case, the Defendant failed to mention qualified immunity in his answer or filings on summary judgment. To this day, he has not raised the defense, while admitting in this months hearing that he knowingly decided not to offer any defense or arguments against the final count. Absent a defense raised by the Defendant, this matter should be treated as conceded on the issue of 1983 liability. Finally, as a matter judicial administration, liability under this issue, as well as attorneys fees, is particularly warranted when a party elects a nondefense strategy and shifts the burden to both opposing counsel and the court to try to assume defenses and identify precedent that could be cited in his favor. Offering only a few pages of argument on the merits of these counts, the Defendant showed little concern for avoiding liability and even less concern for the time and resources of the Court or the Plaintiffs over the course of two years of litigation. B. Even If Qualified Immunity Were Not Waived, It Would Not Bar Summary Judgment In This Case.

While prosecutors have been afforded qualified immunity in taking cases to court, Imbler v. Pachtman, 424 U.S. 409, 431 (1976), this is not a case where a prosecutor was sued for securing an indictment or prosecuting a party. Rather, the Defendant was accused of not only using a facially invalid law as the basis for a multiyear investigation but engaging in public 9

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condemnations of the Brown family as criminals. See, e.g., Compl. 165. That conduct is not part of a prosecutorial function afforded absolute immunity, and it is not part of a valid investigative or administrative function given qualified immunity. Van de Kamp v. Goldstein, 555 U.S. 335, 342 (2009). Indeed, such statements to the media are considered highly unprofessional and inimical to the prosecutorial function. 4 The Court has stressed that absolute immunity is only valid (when properly invoked) if the prosecutor was acting as "an officer of the court" rather than someone engaged in other tasks like investigative or administrative tasks. Imbler, 424 U.S. at 431 n.33. Defendant was not engaged in conduct "intimately associated with the judicial phase of the criminal process." Id. at 430. Qualified immunity does not shield government officials from civil damages liability if the Defendant violated a statutory or constitutional right that was clearly established at the time of the challenged conduct. See Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080 (2011); Pearson v. Callahan, 555 U.S. 223, 236 (2009). Plaintiffs have argued from the start of this litigation that Defendant was clearly violating the constitutional rights of the Browns. Defendant asserted the right to prosecute the Browns solely because they considered themselves a plural family without their securing multiple marriage licenses or any demonstrated harm to any family member. The Defendants own filings demonstrate the lack of authority to support this position. As noted by

Prosecutors have been disciplined for public comments before indictments in pandering to the media or to the public. Prosecutors are under more stringent limitations than private counsel in such matters. See Niki Kuckes, The State of Rule 3.8: Prosecutorial Ethics Reform Since Ethics, 2000, 22 GEO. J. LEGAL ETHICS 44849 (2009) (discussing a higher duty on prosecutors than on lawyers generally . . . . prosecutor must also refrain from unnecessary out-of-court statements that tend to increase the public opprobrium already attendant to becoming the target of a criminal charge.). ABA Model Rule 3.8, entitled "Special Responsibilities of a Prosecutor," provides refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6. Utah Rules of Prof'l Conduct R. 3.8(f). 10

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the Court, the Defendant offered only a few pages of arguments on six different claims and entirely ignored the seventh claim under 1983. What few cases were cited by the Defendant were easily distinguishable from this case and occurred largely before the ruling in Lawrence v. Texas. Indeed, the Court detailed the struggle of defense counsel to maintain a consistent argument before the court on the meaning and scope of this provision. Brown, 947 F. Supp. 2d at 121316. The minimalist record created by the Defendant speaks volumes about its lack of clear authority and lack of a coherent theory of enforcement. The absurdity in Defendants argument, cited by the Court, id. at 1218, reflects just how far the Defendant remained in this case from a plausible argument under the qualified immunity standard. Defendants public comments and his use of this facially unconstitutional provision left him alone in the nation in threatening the private relations of consenting adults. The absence of other cases in other states, even those with cohabitation laws, reflected the fact that a reasonable official would [have understood] that what he is doing violates that right. Anderson v. Creighton, 483 U.S. 635, 640 (1987). Once again, this legal question is moot in a case where the defendant did not invoke the affirmative defense of qualified immunity. The decision not to mount such an affirmative defense, however, is understandable given the isolation of the Defendant in asserting this authority over the private lives of consenting adults. While Defendant was aware that the Court had struck down a state law ten years ago that purported to criminalize the private relations of consenting adults, he publicly proclaimed that the Browns were committing crimes due to their private family structure and that the state had the right to criminalize such conduct. Despite the decade that passed where such laws were repealed or struck down, Defendant persisted in his crusade against the Browns undeterred by the existing precedent or the obvious invalidity of


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the cohabitation provision. The Defendants singular and isolated use of the law not only drew national attention but reaffirmed how no reasonable official was assuming that he had such authority over the private relations or structure of a family. II. PLAINTIFFS ARE ENTITLED TO JUDGMENT UNDER SECTION 1983 BASED ON THE EARLIER RULINGS AND DECLARATORY RELIEF. Plaintiffs Have Established A Prima Facie Case For A Violation Under Section 1983.


As the Plaintiffs previously argued, there is no dispute that a prosecutor who enforces a state statute operates under color of . . . statute for the purposes of a 1983 claim. See, e.g., Boykin v. Bloomsburg Univ. of Pa., 893 F. Supp. 378, 39596 (M.D. Pa. 1995) (noting that color of law means that the alleged wrong-doer is acting under state authority). The deprivation of their constitutional rights creates a separate basis for relief under 1983. See Snell v. Tunnell, 920 F.2d 673, 70102 (10th Cir. 1990). The Defendant has already been found to have violated the Constitution in the denial of due process and the free exercise of religion. Those counts and underlying allegations were incorporated in the seventh claim under 1983. Moreover, the Defendant himself has stressed that he sets the policy of enforcement and, as previously argued in the January hearing, he constitutes a final policymaking authority under 1983. 5 With the prior ruling on the constitutional claims, the Plaintiffs have shown the requisite degree

Utah Code delegates to county attorneys the power to conduct, on behalf of the state, all prosecutions for a public offense committed within a county. U.C.A. 1953 17-18a-401 (2013). An actor with final policymaking authority may subject a municipality or county to liability under 1983 by his actions. See City of St. Louis v. Praprotnik, 485 U.S. 112, 123 (1988). Plaintiffs originally sued the Utah Attorney General, who was released under a prior court order and has some supervisory authority over litigation. However, the Defendant has made clear that he is the person establishing this policy. Moreover, as held by the Ninth Circuit, the fact that the state attorney exercises supervisory power over county district attorneysdoes not remove final policymaking authority even from principal district attorneys. Webb v. Sloan, 330 F.3d 1158, 1162 (9th Cir. 2003). 12

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of culpability and . . . demonstrate[d] a direct causal link between the . . . action and deprivation of federal rights. Barney v. Pulsipher, 143 F.3d 1299, 1307 (10th Cir. 1998); see also Jenkins v. Wood, 81 F.3d 988, 99394 (10th Cir. 1996). As stressed by the Tenth Circuit, when an official municipal policy itself violates federal law, issues of culpability and causation are straightforward; simply proving the existence of the unlawful policy puts an end to the question. Barney, 143 F.3d at 1307; see also Monell v. Dept of Social Servs., 436 U.S. 658, 694 (1978) ([I]t is when execution of a governments policy of custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under 1983.). The period for argument on the merits of that claim is now closed. However, since the Defendant did not file a single word of defense on this count or even once mention Section 1983, the Defendant has not challenged the authority or arguments in favor of summary judgment on this count.


Plaintiffs Are Not Required To Secure Insular Damages As A Prerequisite for A Finding In Their Favor Under Section 1983.

In accordance with Rule 54(c) of the Federal Rules of Civil Procedure and related jurisprudence, the Plaintiffs are entitled to awards of both prospective relief and pecuniary damages for their injuries. The federal rules provide that a final judgment should grant the relief to which each party is entitled, even if the party has not demanded that relief in its pleadings. Fed. R. Civ. P. 54(c). Further, although the prayer for relief may be looked to for illumination where there is doubt as to the substantive theory under which a plaintiff is proceeding, its omissions are not in and of themselves a barrier to redress of a meritorious claim. Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60, 66 (1978). The Browns detailed


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their injuries in both the Complaint and later declarations filed with the Court. 6 They properly claimed relief under 1983, and the only question is whether they have to actually charge the Defendant for such payments to secure declaratory relief or attorneys fees for the violations found previously by the Court. Plaintiffs submit that the law not only does not require such an award but that such a claim would add unnecessary costs to the state and the court when a party is willing to forego insular damages. Before addressing the specific issues regarding the proper demand for 1983 relief, Plaintiffs again want to stress that the Defendant appears to have made a conscious decision not to offer a defense to the seventh count of the Complaint in his Answer or in the papers on summary judgment. If such a practice is allowed, there would be little reason for parties to completely answer a complaint or offer a full defense to summary judgment. Defendant has not claimed the right to retroactively claim such defenses, but such a claim would allow parties to adopt a nondefense position as to a claim and later ask for an exemption from the rules when an obvious waiver is raised. There is no provision in the federal rules for such a judicial equivalent of a Mulligan for the hapless or absent litigant.

These damages covered an array of different injuries, including monetary harm not only in the form of lost jobs and income, but the costs of having to move from Utah to insulate their families from the public investigation and public condemnations of the prosecutors. J. Brown Decl. 9 19. The cited damages include the loss of employment and curtailment of activities and associations. M. Brown Decl. 38, 40; K. Brown Decl. 2731. They also included the costs of having to regularly make long trips back to Utah to practice their religion and visit their family members. Id. 17; Compl. 25, 27. These claims included interference with their religious practices and associations as detailed in the complaint and the attached declarations. Compl. 225; K. Brown Decl. 37; M. Brown Decl. 35-36; J. Brown Decl. 20. This also include sworn declarations of Mssrs. David Tenzer and Michael Maguire on the loss of business and contractual opportunities. See Pls. Resp. To Ct. Order of Nov. 1, 2011 [Dkt 25]. 14

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The Plaintiffs Request For All Just And Proper Relief Is Sufficient To Entitle Them To Appropriate Redress For All Injuries Asserted In Their Complaint.

The Tenth Circuit specifically has held that, in determining whether a certain type of relief may be awarded, the critical question is whether the complaint gave any indication that [the plaintiffs] might be entitled to that relief. Calderon v. Kansas Dept of Social and Rehab. Servs., 181 F.3d 1180, 1183 (10th Cir. 1999) (citing Pension Benefit Guar. Corp. v. East Dayton Tool and Die Co., 14 F.3d 1122, 1127 (6th Cir. 1994)); see Conley v. Gibson, 355 U.S. 41, 47 (1957). Thus, where a plaintiffs complaint alleges specific injuries and includes a general prayer for relief, it is presumed that any appropriate form of relief is sought, in addition to those expressly requested. Frazier v. Simmons, 254 F.3d 1247, 1255 (10th Cir. 2001) (holding that plaintiffs request for monetary damages and such other relief as the court deems just and equitable provided adequate indication that he also sought injunctive relief, thereby protecting his claim from an Eleventh Amendment immunity defense). Here, Plaintiffs unambiguously asserted a number of specific injuries in their complaint that entitle them to monetary damages and more than once implored the Court to grant any just relief. See, e.g., Compl. 29. For example, the complaint stated that the threat of prosecution under the now-amended bigamy statute compelled the family to move from Utah to Nevada and led to Meri Browns termination from her long-held job. Id. 172-177. Certainly, those injuries caused quantifiable financial harm to the Plaintiffs. Those allegations, in tandem with the Plaintiffs request that the Court [a]ward such other relief as it may deem just and proper, Compl. at 39, provide adequate and ample indication that Plaintiffs are entitled to both retrospective and prospective relief as the Court may find appropriate. See Frazier, 254 F.3d at 1255. Plaintiffs election not to actively pursue monetary relief from the Defendant does not


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affect their claim or entitlement to specific damages that the Court may deem proper under 1983. See Holt Civic Club, 439 U.S. at 66. The Plaintiffs did seek pecuniary damages and detailed an array of promotional, travel, and personal costs directly related to Defendants unconstitutional actions. Even if such damages are a requirement, they were properly alleged and properly demanded. After a finding of liability under 1983 with the precursor constitutional claims, the Plaintiffs would normally have the option of seeking or waiving demands of the previously enumerated losses. The Plaintiffs have elected not to seek those damages in the interest of efficiency and closure. They should not be penalized for waiving such damages. 2. Plaintiffs May Prevail On Their Section 1983 Claim Without Pursuing Retrospective Pecuniary Relief.

Despite their unequivocal right to seek insular damages as discussed above, the Plaintiffs are not required to demand pecuniary relief for their past injuries in order to maintain their 1983 claim. The Plaintiffs were previously found to have demonstrated standing in this case because they faced a credible threat of future prosecution under the then-existing iteration of Utah Code Ann. 76-7-101 and their exercise of First Amendment rights was chilled. Compl. 202-210. Even after the Defendant professed to have adopted a policy against prosecuting under the statute in the absence of additional criminal conduct, this Court declined to find the case moot and asserted that the policy at issue is insufficient to alleviate the risk that Plaintiffs will be prosecuted or threatened with prosecution for their violation of Utah's anti-bigamy statute in the future. Brown v. Herbert, No. 2:11-CV-0652-CW, 2012 WL 3580669, at *5 (D. Utah Aug. 17, 2012). Under 1983, a plaintiff who satisfies standing requirements may pursue retrospective and/or prospective relief for his or her injuries. 42 U.S.C. 1983 (2012). Courts have 16

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consistently held that a plaintiff who suffers from an ongoing threat of future prosecution under an allegedly unconstitutional law and chilled exercise of First Amendment rights, as Plaintiffs here did, may exclusively pursue injunctive and declaratory relief under 1983. See Ward v. Utah, 7 321 F.3d 1263, 1269 (10th Cir. 2003) (finding that a declaratory judgment and injunctive relief was sufficient to redress injuries without retroactive damages); Culinary Workers Union, Local 226 v. Del Papa, 200 F.3d 614, 617 (9th Cir. 1999) (finding plaintiff had standing to seek prospective relief under 1983 where he had been threatened with prosecution under an allegedly unconstitutional law); Phelps v. Hamilton, 120 F.3d 1126, 1128 (10th Cir. 1997) (awarding attorneys fees where plaintiffs succeeded on 1983 claim for only prospective relief); Wilson v. Stocker, 819 F.2d 943, 946 (10th Cir. 1987) (affirming both the district courts decision in favor of plaintiff on his 1983 claim and its award of attorneys fees against district attorneys and state attorney general under 1988); Cooper v. Utah, 684 F. Supp. 1060, 1066 (D. Utah 1987) (granting plaintiffs motion for summary judgment on 1983 claim seeking prospective relief against state and county officials to prevent enforcement of an unconstitutional law). Indeed, this Courts grant of declaratory relief to the Plaintiffs in its prior ruling, Brown v. Buhman, 947 F. Supp. 2d 1170, 1221 (D. Utah 2013), validates their 1983 claim. In determining the sufficiency of the pleading, the threat of future prosecution is determined at the original filing and potentially in any later mootness challenge. Rhode Island Assn of Realtors, Inc. v. Whitehouse, 199 F.3d 26, 31 (1st Cir. 1999) (Thus, the pivotal question reduces to whether the Association faced a credible threat of prosecution when it filed suit.) (emphasis added). In the instant case, there was no question of a future threat since the

In Ward, the Tenth Circuit reversed the trial court in its dismissal of the Section 1983 case on the basis of standing and injury. 17

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criminal investigation was ongoing and the Defendant only filed a declaration on future prosecution after losing key motions before the Court as part of his effort to have the case dismissed. That declaration was facially insufficient to support a mootness challenge and was rejected by the Court. Brown v. Herbert, 2012 WL 3580669, at *5. Indeed, after the ruling in this case, the incoming Attorney General of Utah announced publicly that he would appeal the ruling in the hope of reviving the cohabitation statute, and the Governor criticized the opinion as denying the state the inherent right to determine such questions. 8 Thus, even after the Court struck the language of the provision, there remain many who are calling for the state to assert that same authority in the future. Notably, the Tenth Circuit has only ever found specific retrospective damages to be a vital component of a plaintiffs 1983 claim where, at the time the lawsuit was filed, plaintiff did not suffer from an ongoing threat of future prosecution. See Winsness v. Yocom, 433 F.3d 727, 735 (10th Cir. 2006); Faustin v. City and Cnty. of Denver, 268 F.3d 942, 94748 (10th Cir. 2001). The Browns, as already noted, indisputably faced an ongoing threat of prosecution under the unconstitutional formulation of the bigamy statute at the time they asserted their claim and, in many respects, continue to face public attacks and other harms as a result of the Defendants wrongful investigation. Moreover, they suffered a cognizable deprivation of their due process rights when the Defendant applied the cohabitation prong of the statute, which this Court found to be unconstitutionally vague, against them. See Fields v. Omaha, 810 F.2d 830, 834 (8th Cir.

Utah AG To Appeal Judges Sister Wives Ruling, CBS News, December 27, 2013 (Incoming Attorney General Sean Reyes publicly announced appeal in Brown case); Incoming Utah AG Weights In On Gay Marriage, Polygamy, December 26, 2013 (same); Utah Gov. Expresses Concern Over Polygamy Ruling, Daily Herald, Dec. 16, 2013 (objecting to question being made by federal judge); Utah Governor Speaks Out Against Historic Polygamy Ruling, Daily Mail, December 26, 2013 (same). 18

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1987) (finding plaintiffs due process deprivation when unconstitutional law was applied against her sufficed to maintain a 1983 claim). In addition to these injuries, the chilling of the Plaintiffs exercise of their First Amendment rights entitles them to relief under 1983. See Reyes v. Lynchburg, 300 F.3d 449, 453 (4th Cir 2002); Rock for Life-UMBC v. Hrabowski, 411 F. Appx 541, 549 (4th Cir. 2010); Cooper, 684 F. Supp. at 1071. Plaintiffs are not asking for the Court to presume abstract harms from these deprivations, but have instead demonstrated concrete injuries. Where the Plaintiffs have properly asserted cognizable injuries that entitle them to relief under 1983, it would defeat the statutes fundamental purpose to impose a requirement that they pursue retrospective damages. When enacting the first iteration of what is now 1983, Congress desired that the law shall be kept and that every citizen shall be allowed in peace to have his opinion, and also that the man who believes in liberty, who believes in equality shall also be permitted to pursue his way in peace under the law. Cong. Globe, 42nd Cong., 1st Sess. 824 (1871). Plaintiffs should not be penalized for asking for less in damages than the amount to which they are legally entitled. To disallow a meritorious claim that vindicates the civil rights of many on the basis of the form or amount of relief demanded would both subvert Congressional intent and contravene long-standing jurisprudence. It would also contradict cases where the government is found in violation, but no monetary damages actually awarded. See Oliver v. Falla, 258 F.3d 1277, 127879 (11th Cir. 2001) (affirming district court's judgment entering jury verdict for plaintiff under 1983 because defendant violated plaintiff's Eighth Amendment rights, but not awarding the monetary or punitive damages plaintiff sought); Miller v. Albright, 657 F.3d 733, 73435 (8th Cir. 2011) (denying plaintiff's post-verdict request


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to instruct the jury to award nominal damages after the jury found in his favor on a 1983 claim but awarded no damages). Because precedent establishes that plaintiffs are in no manner required to seek retrospective monetary damages where their complaint successfully alleges credible threat of future prosecution, this Court may find in Plaintiffs favor under 1983. Plaintiffs have already overcome the Defendants attempt at rendering the controversy moot and therefore remain entitled to exclusively pursue declaratory and injunctive relief, sans pecuniary damages for past injuries. CONCLUSION In light of the foregoing, the Plaintiffs believe that the defenses under 42 U.S.C. 1983 have been waived by Defendant and respectfully request that summary judgment be entered in their favor under the seventh and final count of their Complaint.

Respectfully submitted, /s/ Jonathan Turley_____ Jonathan Turley (Pro Hac) 2000 H St., N.W. Washington, D.C. 20052 (202) 994-7001 Adam Alba, 13128 610 Crestwood Cir. Bountiful, UT 84010 (801) 792-8785 Attorneys for Plaintiffs


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CERTIFICATE OF SERVICE This is to certify that copies of the foregoing Motion and Memorandum of Points and Authorities for Summary Judgment was served by electronically filing the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following: Jerrold S. Jensen (#1678) Thom D. Roberts (#2773) Assistant Attorneys General Attorneys For Defendants 160 East 300 South, 5th Floor P.O. Box 140857 Salt Lake City, Utah 84114-0857 Telephone: (801) 366-0353 Ryan B. Parker (#11742) Department of Justice, Civil Division 20 Massachusetts Ave NW Washington, D.C. 20530 Telephone: (202)514-4336 DATE: January 27, 2014 /s/ Jonathan Turley_____ Jonathan Turley (Pro Hac) 2000 H St., N.W. Washington, D.C. 20052 (202) 994-7001 Adam Alba, 13128 610 Crestwood Cir. Bountiful, UT 84010 (801) 792-8785 Attorneys for Plaintiffs