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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, Defendant. Case: 2:11CV00652 Judge Clark Waddoups

MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS FOR MOOTNESS

Defendant 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.

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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 church to which the Browns claim membership – live in the southern part of Utah County and the northern 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 is

not known, but active prosecution of polygamists for just the practice of polygamy has not occurred in Utah since the 1940s and ‘50s.1 Whether there has been a prosecution for polygamy 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 to Defendants’ Motion to Dismiss (Doc. 12) for the prosecution of polygamists in Utah in the last 50 years originated in Utah County.2 3. In October, 2010 the Utah County Attorney’s Office received a report from the

Lehi 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 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 Bronson (Millard County). Memorandum in Support of His Motion to Dismiss Plaintiffs’ Complaint for Mootness Kody Brown v. Buhman U.S. District Court Case 2:11CV00652 Page 2
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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 been

submitted to the Utah County Attorney’s Office during Defendant Buhman’s tenure as Utah County Attorney alleging the offense of bigamy in violation of Utah Code § 76-7-101 where the bigamy was not related to marriage fraud or the failure to obtain a divorce prior to remarrying. Second Buhman Decl., ¶ 3. 5. In response to the Lehi City Police Department’s report, the Utah County

Attorney’s Office opened a case file – as they do for all police reports submitted to the Utah County Attorney’s Office – on the Browns. Second Buhman Decl., ¶ 4. 6. At the time of the Lehi City Police Department’s report, the Utah County

Attorney’s Office did not have a formal policy regarding the prosecution of polygamy, and no one in the office had any recollection of the Utah County Attorney’s Office ever prosecuting anyone 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 a victim is induced to marry through their partner’s fraud, misrepresentations or omissions; or (2) When a person purports to marry or cohabits with another person in violation of Section 76-7101(1) and is also engaged in some type of abuse, violence or
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fraud. This office will prosecute the crime of bigamy under Section 76-7-101.5 regardless of whether one of the parties is also engaged in some type of abuse, violence or fraud. Second Buhman Decl., ¶¶ 8-9. 8. The purpose of this policy is to prevent the future prosecution in Utah County of

bigamist marriages entered into for religious reasons. Second Buhman Decl., ¶ 10. 9. The Utah County Attorney’s Office has now concluded its investigation of

Browns and has determined that no other prosecutable crimes related to the bigamy allegation have been or are being committed by the Browns in Utah County as of May 22, 2012. Therefore, bigamy charges will not be filed by the Utah County Attorney’s Office against Cody Brown, Meri Brown, Janelle Brown, Christine Brown or Robyn Sullivan. Second Buhman Decl., ¶ 11. 10. Accordingly, the criminal case against the Browns is closed and no charges will

be filed against them for bigamy unless new evidence is discovered which would comport with the office’s new policy pertaining to the prosecution of bigamy crimes. Second Buhman Decl., ¶ 12. INTRODUCTION Given that the subject of polygamy is a frequent item that confronts the State of Utah, it is not surprising that the Utah Attorney General had a formal policy regarding the prosecution of polygamy at the time the Browns initiated this case. But given that no police report had been submitted to the Utah County Attorney’s Office within the memory of anyone currently working for the Utah County Attorney’s Office it is not surprising that the Utah County Attorney’s Office
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did not have a formal policy regarding the prosecution of polygamy at the time the Browns initiated this case. This case has brought to the attention of the Utah County Attorney the need for a formal policy regarding the prosecution of the practice of polygamy. That policy has now been put in place. It is intended to prevent future prosecution of polygamists in Utah County for just the practice of polygamy. This policy, as stated in paragraph 7 above, is substantially similar to the policy of the Utah Attorney General’s Office which provides that no prosecution of polygamy will occur unless in conjunction with some other crime. Shurtleff Decl., ¶ 6. (Doc. 8-2.) This policy is not intended to just apply to the Browns, but is meant to stand as a permanent policy of the Utah County Attorney’s Office to be applied equally to anyone engaged in the practice of polygamy. Obviously, Defendant Buhman cannot bind the future actions or policies of successor Utah County attorneys, but at this point it is intended to be a permanent policy of the Buhman administration and most likely, as happened in the Utah Attorney General’s Office, will carry over to succeeding administrations. In addition, as stated by Defendant Buhman, the Utah County Attorney’s Office has determined that bigamy charges will not be filed against the Plaintiffs for bigamy or any other crimes known to the Utah County Attorney’s Office as of the date of Defendant Buhman’s declaration. Second Buhman Decl., ¶¶ 11-12. Thus, Defendant Buhman moves this Court for an Order of Dismissal based on mootness and lack of justiciability.
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ARGUMENT I. 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. “The constitutional mootness doctrine is grounded in Article III’s requirement that federal courts only decide ‘actual, ongoing cases or controversies’.... The central question in determining whether a case has become moot is whether ‘the issues presented are no longer “live” or the parties lack a legally cognizable interest in the outcome.’” Phelps v. Hamilton, 122 F.3d 1309, 1325-26 (10th Cir. 1997) (citations omitted). “[A] federal court has no power to give opinions upon moot questions or declare principles of law which cannot affect the matter in issue in the case before it, a controversy must exist during all stages of . . . review.” Chihuanhuan Grasslands Alliance v. Kempthorne, 545 F.3d 884, 891 (10th Cir. 2008). “When intervening acts destroy a party’s legally cognizable interest in the lawsuit, the federal courts are deprived of jurisdiction.” Mink v. Suthers, 482 F.3d 1244 (10th Cir. 2007). Since the Utah County Attorney’s Office has issued its policy regarding the prosecution of bigamy crimes – stating that it will only prosecute the crime of polygamy when it is in conjunction with some other crime such as abuse, violence or fraud – and has closed its investigation of the Browns on the determination that there are no other crimes being committed by the Browns related to the bigamy allegation, Plaintiffs are no longer under any threat of prosecution. Plaintiffs have already obtained the relief they sought (i.e., no prosecution under

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Utah’s bigamy statute), thus there is no longer a “live” controversy. As a result, this case is now moot and should be dismissed. The Tenth Circuit has discussed mootness in numerous cases. See, e.g., Lippoldt v. Cole, 468 F.3d 1204, 1216 (10th Cir. 2006); Citizens for Responsible Government State Political Action Committee v. Davidson, 236 F.3d 1174, 1181-82 (10th Cir., 2000); McClendon v. City of Albuquerque, 100 F.3d 863, 867 (10th Cir. 1996); Beattie v. United States, 949 F.2d 1092, 1093 (10th Cir. 1991); Western Nuclear, Inc., v. Huffman, 825 F.2d 1430, 1434 (10th Cir. 1987); Wiley v. National Collegiate Athletic Association, et al., 612 F.2d 473, 475 (1979). Two of the more recent cases, Winsness v. Yocom, 433 F.3d 727 (10th Cir. 2006) and Mink v. Suthers, 482 F.3d 1244 (10th Cir. 2007), have factual situations very similar to the case at hand. In both of these cases the Tenth Circuit found that an intervening act by those charged with enforcing the challenged statute, specifically an assurance not to prosecute, rendered the cases moot. In Winsness v. Yocom the Tenth Circuit found the case to be moot after the district attorney filed an affidavit with the court “assuring it that charges would not be pursued” against the two plaintiffs seeking relief from prosecution under a flag abuse statute. One plaintiff had already been cited under the statute at the time he filed suit. 433 F.3d at 734. “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. In Mink v. Suthers the Tenth Circuit dismissed for mootness where the district attorney disclaimed an intent to prosecute the plaintiff after the lawsuit was filed and issued a “no file “
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letter to the court and the plaintiff. Mink involved a college student’s challenge of a Colorado criminal libel statute after his computer was seized and an investigation completed by local police. The Tenth Circuit affirmed the lower court’s decision that “ no credible threat of prosecution” existed based on the representations of the public officials charged with enforcing the statute against Mink that they would not prosecute. The Court concluded that even if there was a credible threat of prosecution giving plaintiff standing at the time the lawsuit was filed, Mink’s case was mooted by the district attorney’s “no file” letter advising the court and Mink that he would not be prosecuted under the statute then or in the future. In both Winsness and Mink the plaintiffs had standing based on a credible threat when their suit was filed, either due to a pending criminal investigation or a citation under a criminal statute, but in both cases a clear representation of an intent not to prosecute by the public official charged with enforcing the statute mooted the case. “Mootness goes to the jurisdiction of a federal court. To satisfy the ‘case or controversy’ limitation of Article III, ‘[t]he actual controversy between the parties ‘must exist at stages of appellate or certiorari review, and not simply at the date the action is initiated.’” Western Nuclear. Huffman, 825 F.2d 1430, 1434 (10th Cir. 1987), citing Wiley v. National Collegiate Athletic Association, 612 F.2d 473, 475 (1979) (quoting Roe v. Wade, 410 U.S. 113, 125 (1973).) “Simply stated, a case is moot when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Western Nuclear, 825 F.2d at 1434, quoting Powell v. McCormack, 395 U.S. 486, 496 (1969). As the Tenth Circuit said in Western Nuclear, the
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burden of demonstrating mootness “is a heavy one,” and can be satisfied only if two conditions are meet: “(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.” Id. at 1434 (citations omitted). Here, the Utah County official charged with enforcing the statute against the Browns has stated by a sworn declaration his intent not to prosecute the Browns under Utah’s criminal bigamy statute; has adopted a formal policy for Utah County regarding the prosecution of polygamy, which holds that no prosecutions will take place unless accompanied by some other related crime such as abuse, violence, or fraud; and has said that there are no other prosecutable crimes of which he is aware that have been committed by the Browns. Second Buhman Decl. ¶¶ 9-12. As stated by Moore’s Federal Practice: “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.” 15 James W. Moore & Martin H. Redish, Moore’s Federal Practice § 101.90, at 101-237 (3d ed. 2010) II. THE COURT SHOULD DISMISS THIS CASE AGAINST DEFENDANT BUHMAN FOR LACK OF JUSTICABILITY. “[A]n actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.” Arizonans for Official English v. Arizona, 520 U.S. 43, 67 (1997). The
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actual controversy between the parties “must exist at stages of appellate or certiorari review, and not simply at the date the action is initiated.” Roe v. Wade, 410 U.S. 113, 125 (1973). [P]ast exposure to alleged illegal conduct does not establish a present live controversy if unaccompanied by any continuing present effects.” McClendon v. City of Albuquerque, 100 F.3d 863, 867 (10th Cir. 1996). And, as this Court noted in its Memorandum Decision and Order, dated February 3, 2012, (Doc. 31) “[a] federal court must in every case, and at every stage of the proceeding, satisfy itself as to its own jurisdiction.” Id. at 4 (citing Citizens Concerned for Separation of Church & State v. City & Cnty. Of Denver, 628 F.2d 1289, 1297 (10th Cir. 1980).) When the complaint in this case was initially filed, there was no possibility Defendant Gary Herbert, as governor, would prosecute the Browns. Nor was there a possibility Defendant Mark Shurtleff would either because of the policy adopted by the Utah Attorney General’s office not to prosecute polygamists just for the practice of polygamy. As a result of there being “no credible threat of prosecution” of the Browns by Defendants Herbert and Shurtleff, Defendants’ Motion to Dismiss was granted as to the Utah Governor and Attorney General. Subsequent events have now altered the credible threat of prosecution by Defendant Buhman against the Browns that existed at the time of filing of the complaint. Based upon a sworn declaration, Defendant Buhman has given assurance that the Browns will not be prosecuted. Second Buhman Decl., ¶¶ 11-12. In addition, the Utah County Attorney’s Office has adopted a policy declaring it will not prosecute polygamists for just the practice of polygamy. Second Buhman Decl., ¶ ¶ 8-10. Thus, Defendant Buhman now stands in exactly the same
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position as did Attorney General Shurtleff at the time this case was filed. As such, this Court should dismiss this case for lack of justicability. III. THE VOLUNTARY CESSATION EXCEPTION TO MOOTNESS DOES NOT APPLY IN THIS INSTANCE. There is an exception to the mootness doctrine when a defendant voluntarily ceases the bad behavior in order to defeat the court’s jurisdiction. When a party moots a case by voluntarily changing its own conduct, the Supreme Court instructs us to view mootness arguments with suspicion because the offending party might otherwise resume that conduct as soon as the case is dismissed. This voluntary cessation exception derives from the ‘principle that a party should not be able to evade judicial review ... by temporarily altering questionable behavior.’ Thus for a case to become moot, it must be ‘absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.’ New Mexico ex rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683, 701-702 (10th Cir. 2009) (citations omitted). This exception to the mootness doctrine does not apply in this case. The Defendant is not “temporarily altering questionable behavior” but has adopted a formal policy with regard to prosecution of polygamy under Utah Code § 76-7-101 and has clearly stated an intent not to prosecute the Plaintiffs in accordance with that policy through his sworn declaration. Second Buhman Dec. ¶¶ 9-12. Under the formal and ongoing policy on bigamy and polygamy prosecutions, Defendant Buhman will not bring charges for polygamy under the criminal bigamy statute except when there are also allegations of other serious crimes. The declination of
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prosecution of the Plaintiffs is not a temporary action but rather an action based upon an adopted formal policy. Second Buhman Decl. ¶ 9. Based on the policy and the clear statements by the Defendant of an intent not to prosecute, it is “ absolutely clear that the allegedly wrongful behavior [cannot] reasonably be expected to recur.” CONCLUSION For the foregoing reasons, Defendant Buhman respectfully requests this Court to dismiss this case for mootness and lack of justiciability. DATED this 31st day of May , 2012. MARK L. SHURTLEFF Utah Attorney General

/s/ Jerrold S. Jensen JERROLD S. JENSEN Assistant Attorney General Attorneys for Defendant

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CERTIFICATE OF SERVICE This is to certify that copies of the foregoing MEMORANDUM IN SUPPORT OF DEFENDANT’S 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 L. Cornell Legal Secretary

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