JERROLD S. JENSEN (#1678)THOM D. ROBERTS (#2773)Assistant Attorneys GeneralMARK L. SHURTLEFF (#4666)Attorney GeneralAttorneys For Defendants 160 East 300 South, 5th FloorP.O. Box 140857Salt Lake City, Utah 84114-0857Telephone: (801) 366-0353jerroldjensen@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 MOOTNESSCase: 2:11CV00652Judge Clark Waddoups

Defendant Jeffrey R. Buhman, in his official capacity as Utah County Attorney, State ofUtah, files this Memorandum in Support of his Motion to Dismiss Plaintiffs’ Complaint forMootness.

Case 2:11­cv­00652­CW­BCW   Document 47   Filed 05/31/12   Page 1 of 13

STATEMENT OF FACTS1. 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 polygamy1in 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, 1751P.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); Steve2Bronson (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 2:11­cv­00652­CW­BCW   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 tobeing 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 Utah County 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 theprosecution of bigamy. That policy states:Prosecution of Bigamy Crimes:The Utah County Attorney’s Office will prosecute the crime ofbigamy 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 orMemorandum in Support of His Motion to Dismiss Plaintiffs’ Complaint for MootnessKody Brown v. BuhmanU.S. District Court Case 2:11CV00652Page 3

Case 2:11­cv­00652­CW­BCW   Document 47   Filed 05/31/12   Page 3 of 13

fraud. This office will prosecute the crime of bigamy underSection 76-7-101.5 regardless of whether one of the parties is alsoengaged 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 ofbigamist marriages entered into for religious reasons. Second Buhman Decl., ¶ 10.9. The Utah County Attorney’s Office has now concluded its investigation ofBrowns and has determined that no other prosecutable crimes related to the bigamy allegationhave 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 willbe filed against them for bigamy unless new evidence is discovered which would comport withthe office’s new policy pertaining to the prosecution of bigamy crimes. Second Buhman Decl., ¶12. INTRODUCTIONGiven that the subject of polygamy is a frequent item that confronts the State of Utah, it isnot surprising that the Utah Attorney General had a formal policy regarding the prosecution ofpolygamy at the time the Browns initiated this case. But given that no police report had beensubmitted to the Utah County Attorney’s Office within the memory of anyone currently workingfor the Utah County Attorney’s Office it is not surprising that the Utah County Attorney’s OfficeMemorandum in Support of His Motion to Dismiss Plaintiffs’ Complaint for MootnessKody Brown v. BuhmanU.S. District Court Case 2:11CV00652Page 4

Case 2:11­cv­00652­CW­BCW   Document 47   Filed 05/31/12   Page 4 of 13

did not have a formal policy regarding the prosecution of polygamy at the time the Brownsinitiated this case.This case has brought to the attention of the Utah County Attorney the need for a formalpolicy regarding the prosecution of the practice of polygamy. That policy has now been put inplace. It is intended to prevent future prosecution of polygamists in Utah County for just thepractice of polygamy. This policy, as stated in paragraph 7 above, is substantially similar to thepolicy of the Utah Attorney General’s Office which provides that no prosecution of polygamywill occur unless in conjunction with some other crime. Shurtleff Decl., ¶ 6. (Doc. 8-2.) Thispolicy is not intended to just apply to the Browns, but is meant to stand as a permanent policy ofthe Utah County Attorney’s Office to be applied equally to anyone engaged in the practice ofpolygamy. Obviously, Defendant Buhman cannot bind the future actions or policies of successorUtah County attorneys, but at this point it is intended to be a permanent policy of the Buhmanadministration and most likely, as happened in the Utah Attorney General’s Office, will carryover to succeeding administrations.In addition, as stated by Defendant Buhman, the Utah County Attorney’s Office hasdetermined that bigamy charges will not be filed against the Plaintiffs for bigamy or any othercrimes known to the Utah County Attorney’s Office as of the date of Defendant Buhman’sdeclaration. Second Buhman Decl., ¶¶ 11-12. Thus, Defendant Buhman moves this Court for an Order of Dismissal based on mootnessand lack of justiciability.Memorandum in Support of His Motion to Dismiss Plaintiffs’ Complaint for MootnessKody Brown v. BuhmanU.S. District Court Case 2:11CV00652Page 5

Case 2:11­cv­00652­CW­BCW   Document 47   Filed 05/31/12   Page 5 of 13

ARGUMENTI. THE MOOTNESS DOCTRINE PROVIDES THAT ALTHOUGH THERE MAY BE AN ACTUALAND JUSTICIABLE CONTROVERSY AT THE TIME THE LITIGATION IS COMMENCED, ONCETHAT CONTROVERSY CEASES TO EXIST, THE FEDERAL COURT MUST DISMISS THEACTION FOR WANT OF JURISDICTION.“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“live” or the parties lack a legally cognizable interest in the outcome.’” Phelps v. Hamilton, 122F.3d 1309, 1325-26 (10 Cir. 1997) (citations omitted). “[A] federal court has no power to givethopinions upon moot questions or declare principles of law which cannot affect the matter in issuein the case before it, a controversy must exist during all stages of . . . review.” ChihuanhuanGrasslands Alliance v. Kempthorne, 545 F.3d 884, 891 (10 Cir. 2008). “When intervening actsthdestroy a party’s legally cognizable interest in the lawsuit, the federal courts are deprived ofjurisdiction.” Mink v. Suthers, 482 F.3d 1244 (10 Cir. 2007). th

Since the Utah County Attorney’s Office has issued its policy regarding the prosecutionof bigamy crimes – stating that it will only prosecute the crime of polygamy when it is inconjunction with some other crime such as abuse, violence or fraud – and has closed itsinvestigation of the Browns on the determination that there are no other crimes being committedby the Browns related to the bigamy allegation, Plaintiffs are no longer under any threat ofprosecution. Plaintiffs have already obtained the relief they sought (i.e., no prosecution underMemorandum in Support of His Motion to Dismiss Plaintiffs’ Complaint for MootnessKody Brown v. BuhmanU.S. District Court Case 2:11CV00652Page 6

Case 2:11­cv­00652­CW­BCW   Document 47   Filed 05/31/12   Page 6 of 13

Utah’s bigamy statute), thus there is no longer a “live” controversy. As a result, this case is nowmoot and should be dismissed.The Tenth Circuit has discussed mootness in numerous cases. See, e.g., Lippoldt v. Cole,468 F.3d 1204, 1216 (10 Cir. 2006); Citizens for Responsible Government State Political ActionthCommittee v. Davidson, 236 F.3d 1174, 1181-82 (10 Cir., 2000); McClendon v. City ofthAlbuquerque, 100 F.3d 863, 867 (10 Cir. 1996); Beattie v. United States, 949 F.2d 1092, 1093th(10 Cir. 1991); Western Nuclear, Inc., v. Huffman, 825 F.2d 1430, 1434 (10 Cir. 1987); Wileyth thv. National Collegiate Athletic Association, et al., 612 F.2d 473, 475 (1979). Two of the morerecent cases, Winsness v. Yocom, 433 F.3d 727 (10 Cir. 2006) and Mink v. Suthers, 482 F.3dth1244 (10 Cir. 2007), have factual situations very similar to the case at hand. In both of thesethcases the Tenth Circuit found that an intervening act by those charged with enforcing thechallenged 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 districtattorney filed an affidavit with the court “assuring it that charges would not be pursued” againstthe two plaintiffs seeking relief from prosecution under a flag abuse statute. One plaintiff hadalready been cited under the statute at the time he filed suit. 433 F.3d at 734. “Even if weassume 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 attorneydisclaimed an intent to prosecute the plaintiff after the lawsuit was filed and issued a “no file “Memorandum in Support of His Motion to Dismiss Plaintiffs’ Complaint for MootnessKody Brown v. BuhmanU.S. District Court Case 2:11CV00652Page 7

Case 2:11­cv­00652­CW­BCW   Document 47   Filed 05/31/12   Page 7 of 13

letter to the court and the plaintiff. Mink involved a college student’s challenge of a Coloradocriminal libel statute after his computer was seized and an investigation completed by localpolice. The Tenth Circuit affirmed the lower court’s decision that “ no credible threat ofprosecution” existed based on the representations of the public officials charged with enforcingthe statute against Mink that they would not prosecute. The Court concluded that even if therewas 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 Minkthat 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 whentheir suit was filed, either due to a pending criminal investigation or a citation under a criminalstatute, but in both cases a clear representation of an intent not to prosecute by the public officialcharged 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 ofappellate or certiorari review, and not simply at the date the action is initiated.’” WesternNuclear. Huffman, 825 F.2d 1430, 1434 (10 Cir. 1987), citing Wiley v. National CollegiatethAthletic 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 alegally cognizable interest in the outcome.” Western Nuclear, 825 F.2d at 1434, quoting Powellv. McCormack, 395 U.S. 486, 496 (1969). As the Tenth Circuit said in Western Nuclear, theMemorandum in Support of His Motion to Dismiss Plaintiffs’ Complaint for MootnessKody Brown v. BuhmanU.S. District Court Case 2:11CV00652Page 8

Case 2:11­cv­00652­CW­BCW   Document 47   Filed 05/31/12   Page 8 of 13

burden of demonstrating mootness “is a heavy one,” and can be satisfied only if two conditionsare meet: “(1) it can be said with assurance that ‘there is no reasonable expectation ...’ that thealleged violation will recur, and (2) interim relief or events have completely and irrevocablyeradicated the effects of the alleged violation.” Id. at 1434 (citations omitted). Here, the Utah County official charged with enforcing the statute against the Browns hasstated by a sworn declaration his intent not to prosecute the Browns under Utah’s criminalbigamy statute; has adopted a formal policy for Utah County regarding the prosecution ofpolygamy, which holds that no prosecutions will take place unless accompanied by some otherrelated crime such as abuse, violence, or fraud; and has said that there are no other prosecutablecrimes 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 althoughthere may be an actual and justiciable controversy at the time the litigation is commenced, oncethat controversy ceases to exist, the federal court must dismiss the action for want ofjurisdiction.” 15 James W. Moore & Martin H. Redish, Moore’s Federal Practice § 101.90, at101-237 (3d ed. 2010)II. THE COURT SHOULD DISMISS THIS CASE AGAINST DEFENDANT BUHMAN FOR LACK OFJUSTICABILITY.“[A]n actual controversy must be extant at all stages of review, not merely at the time thecomplaint is filed.” Arizonans for Official English v. Arizona, 520 U.S. 43, 67 (1997). TheMemorandum in Support of His Motion to Dismiss Plaintiffs’ Complaint for MootnessKody Brown v. BuhmanU.S. District Court Case 2:11CV00652Page 9

Case 2:11­cv­00652­CW­BCW   Document 47   Filed 05/31/12   Page 9 of 13

actual controversy between the parties “must exist at stages of appellate or certiorari review, andnot simply at the date the action is initiated.” Roe v. Wade, 410 U.S. 113, 125 (1973). [P]astexposure to alleged illegal conduct does not establish a present live controversy ifunaccompanied by any continuing present effects.” McClendon v. City of Albuquerque, 100 F.3d863, 867 (10 Cir. 1996). And, as this Court noted in its Memorandum Decision and Order,thdated February 3, 2012, (Doc. 31) “[a] federal court must in every case, and at every stage of theproceeding, satisfy itself as to its own jurisdiction.” Id. at 4 (citing Citizens Concerned forSeparation of Church & State v. City & Cnty. Of Denver, 628 F.2d 1289, 1297 (10 Cir. 1980).) th

When the complaint in this case was initially filed, there was no possibility DefendantGary Herbert, as governor, would prosecute the Browns. Nor was there a possibility DefendantMark Shurtleff would either because of the policy adopted by the Utah Attorney General’s officenot to prosecute polygamists just for the practice of polygamy. As a result of there being “nocredible 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 DefendantBuhman against the Browns that existed at the time of filing of the complaint. Based upon asworn declaration, Defendant Buhman has given assurance that the Browns will not beprosecuted. Second Buhman Decl., ¶¶ 11-12. In addition, the Utah County Attorney’s Officehas 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 sameMemorandum in Support of His Motion to Dismiss Plaintiffs’ Complaint for MootnessKody Brown v. BuhmanU.S. District Court Case 2:11CV00652Page 10

Case 2:11­cv­00652­CW­BCW   Document 47   Filed 05/31/12   Page 10 of 13

position as did Attorney General Shurtleff at the time this case was filed. As such, this Courtshould dismiss this case for lack of justicability.III. THE VOLUNTARY CESSATION EXCEPTION TO MOOTNESS DOES NOT APPLY IN THISINSTANCE.There is an exception to the mootness doctrine when a defendant voluntarily ceases thebad behavior in order to defeat the court’s jurisdiction. When a party moots a case by voluntarily changing its ownconduct, the Supreme Court instructs us to view mootnessarguments with suspicion because the offending party mightotherwise resume that conduct as soon as the case is dismissed. This voluntary cessation exception derives from the ‘principle thata party should not be able to evade judicial review ... bytemporarily altering questionable behavior.’ Thus for a case tobecome moot, it must be ‘absolutely clear that the allegedlywrongful behavior could not reasonably be expected to recur.’ New Mexico ex rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683, 701-702 (10 Cir.th 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 toprosecution of polygamy under Utah Code § 76-7-101 and has clearly stated an intent not toprosecute the Plaintiffs in accordance with that policy through his sworn declaration. SecondBuhman Dec. ¶¶ 9-12. Under the formal and ongoing policy on bigamy and polygamyprosecutions, Defendant Buhman will not bring charges for polygamy under the criminal bigamystatute except when there are also allegations of other serious crimes. The declination ofMemorandum in Support of His Motion to Dismiss Plaintiffs’ Complaint for MootnessKody Brown v. BuhmanU.S. District Court Case 2:11CV00652Page 11

Case 2:11­cv­00652­CW­BCW   Document 47   Filed 05/31/12   Page 11 of 13

prosecution of the Plaintiffs is not a temporary action but rather an action based upon an adoptedformal policy. Second Buhman Decl. ¶ 9. Based on the policy and the clear statements by theDefendant of an intent not to prosecute, it is “ absolutely clear that the allegedly wrongfulbehavior [cannot] reasonably be expected to recur.” CONCLUSIONFor the foregoing reasons, Defendant Buhman respectfully requests this Court to dismissthis case for mootness and lack of justiciability.DATED this 31 day of May , 2012.stMARK L. SHURTLEFFUtah Attorney General /s/ Jerrold S. Jensen JERROLD S. JENSENAssistant Attorney GeneralAttorneys for Defendant

Memorandum in Support of His Motion to Dismiss Plaintiffs’ Complaint for MootnessKody Brown v. BuhmanU.S. District Court Case 2:11CV00652Page 12

Case 2:11­cv­00652­CW­BCW   Document 47   Filed 05/31/12   Page 12 of 13

CERTIFICATE OF SERVICEThis is to certify that copies of the foregoing MEMORANDUM IN SUPPORT OFDEFENDANT’S MOTION TO DISMISS FOR MOOTNESS was served by electronicallyfiling the foregoing with the Clerk of the Court using the CM/ECF system which will sendnotification to: Jonathan Turley2000 H St., N.W.Washington, D.C. 20052jturley@law.gwu.eduAdam Alba2167 N. Main StreetCenterville, Utah 84014adam.alba@gmail.com /s/Sherri L. Cornell Legal Secretary

Memorandum in Support of His Motion to Dismiss Plaintiffs’ Complaint for MootnessKody Brown v. BuhmanU.S. District Court Case 2:11CV00652Page 13

Case 2:11­cv­00652­CW­BCW   Document 47   Filed 05/31/12   Page 13 of 13