Case: Brown v. Herbert

2:11-cv-00652 | U.S. District Court for the District of Utah

Filed Date: July 13, 2011

Closed Date: March 9, 2017

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Case Summary

On July 13, 2011, the plaintiffs, a Mormon man and four Mormon women who were cohabitating and involved in a polyamorous relationship, filed a lawsuit in the U.S District Court of Utah against the State of Utah under 42 U.S.C. § 1983. The plaintiffs are a self-described "plural family," in which only one couple, the male plaintiff and one of the female plaintiffs, holds an official marriage license. The plaintiffs sought a declaratory judgment that Utah Code Ann. §76-7-101 ("Utah Statute"), which makes it a crime when a person, "knowing he has a husband or wife or knowing the other person was a husband or wife . . . purports to marry another person or cohabits with another person," violated their rights under the First and Fourteenth Amendments. The plaintiffs began starring in a TLC reality television show in 2010 called "Sister Wives," which documented their lifestyle and religious beliefs. They argued that they had been prosecuted under the Utah Statute solely because of their religious beliefs.

On May 31, 2012, the defendants filed a motion to dismiss for mootness because the plaintiffs had moved to Nevada, and the Utah County Attorney's Office had closed its file on the plaintiffs and adopted a policy ("the UCAO policy") under which the Utah County Attorney would bring bigamy prosecutions only against those who (1) induce a partner to marry through misrepresentation or (2) are suspected of committing a collateral crime such as fraud or abuse. The plaintiffs fell into neither category.

On the same day, the plaintiffs filed a motion for summary judgment.

On Dec. 13, 2013, District Court Judge Clark Waddoups granted the plaintiffs' motion for summary judgment and declared the Utah Statute facially unconstitutional. 947 F.Supp.2d 1170 (2013). The court found that while the cohabitation prong of the statute (the phrase "or cohabits with another person") was facially neutral, it was not operationally neutral and had been used, through a pattern of enforcement, to specifically target religious cohabitations. The court then found that because the cohabitation prong was not operationally neutral it was subject to strict scrutiny under the Equal Protection clause, which it failed. The court further found that the cohabitation prong violated the Due Process clause under the right to privacy as articulated in Lawrence v. Texas, 539 U.S. 558 (2003). Finally, the court found that the cohabitation prong was not articulated with a reasonable degree of clarity and was therefore void for vagueness.

In order to preserve the remainder of the statute, the court severed the phrase "or cohabits with another person" from the law. The court then narrowed the construction of the terms "marry" and "purports to marry," as a broad understanding of these terms would once again give rise to the constitutional dilemmas posed by the cohabitation prong. The court thus ordered a narrowing construction of the terms to "prohibit[] bigamy in the literal sense--the fraudulent or otherwise impermissible possession of two purportedly valid marriage licenses for the purpose of entering into more than one purportedly legal marriage." The court did not address the plaintiffs' claims under 42 U.S.C. § 1983.

On Dec. 20, 2012, the court's judgment on these issues was vacated because the case had mistakenly been closed before the plaintiffs' claims under 42 U.S.C. § 1983 were heard.

On Aug. 27, 2014, Judge Waddoups renewed his ruling that the cohabitation prong violated the constriction as outlined above and granted summary judgment in the plaintiffs' favor. 2014 WL 4249865. The Court further awarded plaintiffs their attorneys' fees, costs, and expenses incurred under 42 U.S.C. § 1988.

On Sept. 24, 2014, the State appealed the district court's decision to the U.S. Court of Appeals for the Tenth Circuit.

On Sept. 4, 2015, the court ordered that judgment in the amount of $242,500 for attorneys' fees in favor of the plaintiffs and against the defendants should be entered.

On May 13, 2016, the U.S. Court of Appeals for the Tenth Circuit denied the petition for en banc review. The panel decided, however, sua sponte, to amend the district court's decision.

The Tenth Circuit found the case had become moot, but the district court nevertheless denied the Utah County Attorney's motion to dismiss the case as moot and instead granted summary judgment to the plaintiffs. Any live case or controversy had been extinguished a year and a half before the district court granted summary judgment to the plaintiffs and over two years before the entry of final judgment. Thus, because the case became moot prior to final adjudication, vacatur and dismissal without prejudice were appropriate.

The plaintiffs appealed the decision to the Supreme Court, but their petition for a writ of certiorari was denied.

On Mar. 9, 2017, pursuant to the Tenth Circuit Court of Appeals' remand instruction, the judgment in favor of the plaintiffs was vacated and the case was dismissed without prejudice.


2:11-cv-00652	Docket [PACER] Brown v. Buhman	March 9, 2017	March 9, 2017 Docket
1 2:11-cv-00652	Civil Rights Complaint Brown v. Buhman	July 13, 2011	July 13, 2011 Complaint
31 2:11-cv-00652	Memorandum and Decision Order Brown v. Buhman	Feb. 3, 2012	Feb. 3, 2012 Order/Opinion 850 F.Supp.2d 1240
69 2:11-cv-00652	Memorandum Decision and Order [Denying Defendant's Motion to Dismiss] Brown v. Buhman	Aug. 17, 2012	Aug. 17, 2012 Order/Opinion 2012 WL 3580669
78 2:11-cv-00652	MEMORANDUM DECISION AND ORDER GRANTING IN PART PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT Brown v. Buhman	Dec. 13, 2013	Dec. 13, 2013 Order/Opinion 947 F.Supp.2d 1170
90 2:11-cv-00652	Memorandum Decision and Judgment [Ruling Utah Code Unconstitutional] Brown v. Buhman	Aug. 27, 2014	Aug. 27, 2014 Order/Opinion 43 F.Supp.3d 1229
107 14-04117	Order [Court of Appeals] U.S. Court of Appeals for the Tenth Circuit	May 13, 2016	May 13, 2016 Order/Opinion 822 F.3d 1151

ECF Number	Date	Description	Link
1	July 13, 2011	COMPLAINT against Jeffrey R. Buhman, Gary R. Herbert, Mark Shurtleff (Filing fee $ 350, receipt number 4681045689) (Electronic document provided on disc. Original file stamped and signed document permanently retained), filed by Kody Brown, Meri Brown, Christine Brown, Robyn Sullivan, Janelle Brown. (Attachments: # 1 Civil Cover Sheet) Assigned to Judge Clark Waddoups (rks) (Entered: 07/13/2011) 1 Civil Cover Sheet View on RECAP	RECAP
2	July 13, 2011	MOTION for Admission Pro Hac Vice of Jonathan Turley, Registration fee $ 15, receipt number 4681045690, Fee Status: Paid. filed by Plaintiffs Christine Brown, Janelle Brown, Kody Brown, Meri Brown, Robyn Sullivan. (Attachments: # 1 Exhibit A - Application, # 2 Exhibit B - Proposed Order, # 3 Exhibit C - CM/ECF Registration)(rks) (Entered: 07/13/2011) 1 Exhibit A - Application View on RECAP 2 Exhibit B - Proposed Order View on RECAP 3 Exhibit C - CM/ECF Registration View on RECAP	RECAP
3	July 22, 2011	ORDER granting 2 Motion for Admission Pro Hac Vice of Jonathan Turley for Christine Brown,Jonathan Turley for Janelle Brown,Jonathan Turley for Kody Brown,Jonathan Turley for Meri Brown,Jonathan Turley for Robyn Sullivan. Attorneys admitted Pro Hac Vice may download a copy of the District of Utahs local rules from the courts web site at http://www.utd.uscourts.gov. Signed by Judge Clark Waddoups on 07/21/2011. (asp) (Entered: 07/22/2011)	RECAP
4	July 29, 2011	RESTRICTED DOCUMENT SUMMONS Returned Executed by Kody Brown, Meri Brown, Christine Brown, Robyn Sullivan, Janelle Brown as to Jeffrey R. Buhman served on 7/15/2011, answer due 8/5/2011. (Turley, Jonathan) (Entered: 07/29/2011)	RECAP
5	July 29, 2011	RESTRICTED DOCUMENT SUMMONS Returned Executed by Kody Brown, Meri Brown, Christine Brown, Robyn Sullivan, Janelle Brown as to Gary R. Herbert served on 7/18/2011, answer due 8/8/2011. (Turley, Jonathan) (Entered: 07/29/2011)	RECAP
6	July 29, 2011	RESTRICTED DOCUMENT SUMMONS Returned Executed by Kody Brown, Meri Brown, Christine Brown, Robyn Sullivan, Janelle Brown as to Mark Shurtleff served on 7/18/2011, answer due 8/8/2011. (Turley, Jonathan) (Entered: 07/29/2011)	RECAP
7	Sept. 2, 2011	MOTION to Dismiss for Lack of Standing filed by Defendants Jeffrey R. Buhman, Gary R. Herbert, Mark Shurtleff. (Jensen, Jerrold) (Entered: 09/02/2011)	RECAP
8	Sept. 2, 2011	MEMORANDUM in Support re 7 MOTION to Dismiss for Lack of Standing filed by Defendants Jeffrey R. Buhman, Gary R. Herbert, Mark Shurtleff. (Attachments: # 1 Affidavit Declaration of Jeffrey R. Buhman, Utah County Attorney, # 2 Affidavit Declaration of Mark L. Shurtleff Utah Attorney General)(Jensen, Jerrold) (Entered: 09/02/2011) 1 Affidavit Declaration of Jeffrey R. Buhman, Utah County Attorney View on RECAP 2 Affidavit Declaration of Mark L. Shurtleff Utah Attorney General View on PACER	RECAP
9	Sept. 22, 2011	First MOTION for Extension of Time to File Response/Reply as to 7 MOTION to Dismiss for Lack of Standing, 8 Memorandum in Support of Motion, filed by Plaintiffs Christine Brown, Janelle Brown, Kody Brown, Meri Brown, Robyn Sullivan. (Turley, Jonathan) (Entered: 09/22/2011)	RECAP
10	Sept. 27, 2011	ORDER GRANTING EXTENSION OF TIME-granting 9 Motion for Extension of Time to File Response/Reply re 9 First MOTION for Extension of Time to File Response/Reply as to 7 MOTION to Dismiss for Lack of Standing, 8 Memorandum in Support of Motion,First MOTION for Extension of Time to File Response/Reply as to 7 MOTION to Dismiss for Lack of Standing, 8 Memorandum in Support of Motion. Responses due by 10/17/2011. Signed by Judge Clark Waddoups on 9/26/11. (jmr) (Entered: 09/27/2011)	RECAP
11	Sept. 29, 2011	NOTICE of Appearance by Thomas D. Roberts on behalf of Gary R. Herbert, Mark Shurtleff (Roberts, Thomas) (Entered: 09/29/2011)	RECAP
12	Oct. 17, 2011	Plaintiff's MEMORANDUM in Opposition re 7 MOTION to Dismiss for Lack of Standing filed by Plaintiffs Christine Brown, Janelle Brown, Kody Brown, Meri Brown, Robyn Sullivan. (Turley, Jonathan) (Entered: 10/17/2011)	RECAP
13	Oct. 17, 2011	AFFIDAVIT/DECLARATION of Kody Brown in Opposition re 7 MOTION to Dismiss for Lack of Standing filed by Plaintiffs Christine Brown, Janelle Brown, Kody Brown, Meri Brown, Robyn Sullivan. (Turley, Jonathan) (Entered: 10/17/2011)	RECAP
14	Oct. 17, 2011	AFFIDAVIT/DECLARATION of Meri Brown in Opposition re 7 MOTION to Dismiss for Lack of Standing filed by Plaintiffs Christine Brown, Janelle Brown, Kody Brown, Meri Brown, Robyn Sullivan. (Turley, Jonathan) (Entered: 10/17/2011)	RECAP
15	Oct. 17, 2011	AFFIDAVIT/DECLARATION of Janelle Brown in Opposition re 7 MOTION to Dismiss for Lack of Standing filed by Plaintiffs Christine Brown, Janelle Brown, Kody Brown, Meri Brown, Robyn Sullivan. (Turley, Jonathan) (Entered: 10/17/2011)	RECAP
16	Oct. 26, 2011	NOTICE OF HEARING ON MOTION re: 7 MOTION to Dismiss for Lack of Standing : (Notice generated by jwt) Motion Hearing set for 12/16/2011 03:30 PM in Room 102 before Judge Clark Waddoups. (jwt) (Entered: 10/26/2011)	RECAP
17	Oct. 28, 2011	ORDER re 16 Notice of Hearing on Motion. See order for details. Signed by Judge Clark Waddoups on 10/28/11. (jmr) (Entered: 10/28/2011)	RECAP
18	Oct. 31, 2011	AMENDED NOTICE OF HEARING ON MOTION re: 7 MOTION to Dismiss for Lack of Standing : (Notice generated by jwt) Motion Hearing set for 12/16/2011 09:00 AM in Room 102 before Judge Clark Waddoups. Note change in time, date remains the same. (jwt) (Entered: 10/31/2011)	RECAP
19	Oct. 31, 2011	REPLY to Response to Motion re 7 MOTION to Dismiss for Lack of Standing filed by Defendants Jeffrey R. Buhman, Gary R. Herbert, Mark Shurtleff. (Jensen, Jerrold) (Entered: 10/31/2011)	RECAP
20	Nov. 1, 2011	DOCKET TEXT ORDER re 7 MOTION to Dismiss for Lack of Standing filed by Jeffrey R. Buhman, Mark Shurtleff, Gary R. Herbert. Upon review of the memoranda submitted in support and in opposition to the Defendants' motion to dismiss for lack of standing, the court observes that all parties have relied upon facts to support their arguments for which they have not yet offered supporting evidence. If the parties intend to rely upon disputed facts to support their motion, both sides should be prepared to present evidence to support such facts at the hearing set for December 16, 2011. In particular, Plaintiffs should be prepared to substantiate their standing through evidence of the Defendants' investigations and other allegedly injurious actions. The Defendants should be prepared to offer rebuttal evidence and any additional evidence that would defeat the Plaintiffs' claim of standing. Signed by Judge Clark Waddoups on 11/1/11. (No attached document) (jwt) (Entered: 11/01/2011)	RECAP
21	Nov. 29, 2011	AMENDED NOTICE OF HEARING ON MOTION re: 7 MOTION to Dismiss for Lack of Standing : (Notice generated by jwt) Motion Hearing set for 12/16/2011 08:30 AM in Room 102 before Judge Clark Waddoups. Note change in time, date remains the same. (jwt) (Entered: 11/29/2011)	RECAP
22	Dec. 9, 2011	RESPONSE TO ORDER TO SHOW CAUSE filed by Gary R. Herbert, Mark Shurtleff. (Roberts, Thomas) (Entered: 12/09/2011)	RECAP
23	Dec. 12, 2011	RESPONSE TO ORDER TO SHOW CAUSE filed by Christine Brown, Janelle Brown, Kody Brown, Meri Brown, Robyn Sullivan. (Turley, Jonathan) (Entered: 12/12/2011)	RECAP
24	Dec. 13, 2011	ERRATA to 23 Response to Order to Show Cause filed by Plaintiffs Christine Brown, Janelle Brown, Kody Brown, Meri Brown, Robyn Sullivan . (Turley, Jonathan) (Entered: 12/13/2011)	RECAP
25	Dec. 13, 2011	Plaintiff's RESPONSE to Order Docket #20 filed by Christine Brown, Janelle Brown, Kody Brown, Meri Brown, Robyn Sullivan. (Attachments: # 1 Exhibit David Tenzer Declaration, # 2 Exhibit Michael Maguire Declaration)(Turley, Jonathan) (Entered: 12/13/2011) 1 Exhibit David Tenzer Declaration View on PACER 2 Exhibit Michael Maguire Declaration View on PACER	RECAP
26	Dec. 16, 2011	Minute Entry for proceedings held before Judge Clark Waddoups: Motion Hearing held on 12/16/2011 re 7 MOTION to Dismiss for Lack of Standing filed by Jeffrey R. Buhman, Mark Shurtleff, Gary R. Herbert. The court hears argument and takes the matter under submission. Attorney for Plaintiff: Jonathan Turley, Adam Alba, Attorney for Defendant: Jerrold Jensen, Thomas Roberts, Amanda Jex. Court Reporter: Karen Murakami. (jwt) (Entered: 12/16/2011)	RECAP
27	Dec. 16, 2011	Please disregard See 28 -NOTICE of SUPPLEMENTAL AUTHORITY by Christine Brown, Janelle Brown, Kody Brown, Meri Brown, Robyn Sullivan (Attachments: # 1 Exhibit 1, # 2 Exhibit 2) (Turley, Jonathan) Modified on 12/19/2011-Per call from counsel's office re-filed as 28. (jmr). (Entered: 12/16/2011) 1 Exhibit 1 View on PACER 2 Exhibit 2 View on PACER	RECAP
28	Dec. 16, 2011	NOTICE of Supplemental Material by Christine Brown, Janelle Brown, Kody Brown, Meri Brown, Robyn Sullivan re 12 Memorandum in Opposition to Motion (Attachments: # 1 Exhibit 1, # 2 Exhibit 2) (Turley, Jonathan) (Entered: 12/16/2011) 1 Exhibit 1 View on PACER 2 Exhibit 2 View on PACER	RECAP
29	Dec. 19, 2011	AFFIDAVIT/DECLARATION of Amanda Jex in Support re 7 MOTION to Dismiss for Lack of Standing filed by Defendants Gary R. Herbert, Mark Shurtleff. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Exhibit Exhibit D, # 5 Exhibit Exhibit E, # 6 Exhibit Exhibit F, # 7 Exhibit Exhibit G, # 8 Exhibit Exhibit H)(Jensen, Jerrold) (Entered: 12/19/2011) 1 Exhibit Exhibit A View on RECAP 2 Exhibit Exhibit B View on PACER 3 Exhibit Exhibit C View on PACER 4 Exhibit Exhibit D View on PACER 5 Exhibit Exhibit E View on PACER 6 Exhibit Exhibit F View on PACER 7 Exhibit Exhibit G View on PACER 8 Exhibit Exhibit H View on PACER	RECAP
30	Jan. 11, 2012	NOTICE of SUPPLEMENTAL AUTHORITY by Christine Brown, Janelle Brown, Kody Brown, Meri Brown, Robyn Sullivan (Attachments: # 1 Supplement) (Turley, Jonathan) (Entered: 01/11/2012) 1 Supplement View on PACER	RECAP
31	Feb. 3, 2012	MEMORANDUM DECISION and Order-granting in part and denying in part 7 Motion to Dismiss. Defendants motion as to Defendants Gary R. Herbert, in his official capacity as Governor of Utah, and Mark Shurtleff, in his official capacity as Attorney General of Utah, is GRANTED. These Defendants are dismissed. Defendants motion with regard to Jeffrey R. Buhman, in his official capacity as County Attorney for Utah County, is DENIED. Signed by Judge Clark Waddoups on 2/3/12. (jmr) (Entered: 02/03/2012)	RECAP
32	Feb. 6, 2012	NOTICE OF TRANSMITTAL that Notice of Claim sent. (jmr) (Entered: 02/06/2012)	RECAP
33	Feb. 17, 2012	ANSWER to 1 Complaint, filed by Jeffrey R. Buhman.(Jensen, Jerrold) (Entered: 02/17/2012)	RECAP
34	Feb. 21, 2012	NOTICE OF ADR, e-mailed or mailed to Plaintiffs Christine Brown, Janelle Brown, Kody Brown, Meri Brown, Robyn Sullivan, Defendant Jeffrey R. Buhman. (jmr) (Entered: 02/21/2012)	RECAP
35	Feb. 21, 2012	NOTICE FROM THE COURT re: Initial SchedulingThe court's IPT Clerk will now set the case for the Initial Pretrial Scheduling Conference (jmr) (Entered: 02/21/2012)	RECAP
36	March 6, 2012	MOTION for Admission Pro Hac Vice of Ryan Parker (no registration fee required) filed by Interested Party United States of America. (Attachments: # 1 Exhibit A - Application for Admission, # 2 Exhibit B - ECF Registration, # 3 Text of Proposed Order)(Swent, Jeannette) (Entered: 03/06/2012) 1 Exhibit A - Application for Admission View on PACER 2 Exhibit B - ECF Registration View on PACER 3 Text of Proposed Order View on PACER	RECAP
37	March 7, 2012	MOTION for Admission Pro Hac Vice of Ryan Parker (no registration fee required) filed by Interested Party United States of America. (Attachments: # 1 Exhibit A - Application for Admission, # 2 Exhibit B - ECF Registration, # 3 Text of Proposed Order)(Swent, Jeannette) (Entered: 03/07/2012) 1 Exhibit A - Application for Admission View on PACER 2 Exhibit B - ECF Registration View on PACER 3 Text of Proposed Order View on PACER	RECAP
38	March 8, 2012	ORDER granting 36 Motion for Admission Pro Hac Vice of Ryan B. Parker for United States of America. Attorneys admitted Pro Hac Vice may download a copy of the District of Utahs local rules from the courts web site at http://www.utd.uscourts.gov; granting 37 Motion for Admission Pro Hac Vice of Ryan B. Parker for United States of America. Attorneys admitted Pro Hac Vice may download a copy of the District of Utahs local rules from the courts web site at http://www.utd.uscourts.gov. Signed by Judge Clark Waddoups on 3/8/12. (jmr) (Entered: 03/08/2012)	RECAP
39	March 13, 2012	NOTICE of Acknowledgment of Constitutional Challenge to an Act of Congress by United States of America (Parker, Ryan) (Entered: 03/13/2012)	RECAP
40	March 14, 2012	NOTICE OF INITIAL PRETRIAL CONFERENCE: (Notice generated by Stephanie Schaerrer)The Attorneys Planning Meeting Report and Proposed Scheduling Order forms, available on the court web site at http://www.utd.uscourts.gov/documents/formpage.html, should be prepared 30 days before the Initial Pretrial Conference hearing date.NOTICE TO COUNSEL, The Court may enter a scheduling order and vacate the hearing if counsel(a) file a stipulated Attorneys Planning Meeting Report; and(b) e-mail a Proposed Scheduling Order to ipt@utd.uscourts.gov30 days before the scheduled hearing. See instructions at http://www.utd.uscourts.gov/documents/ipt.html Initial Pretrial Conference set for 5/16/2012 11:30 AM in Room 477 before Magistrate Judge David Nuffer. (ss) (Entered: 03/14/2012)	RECAP

Case: Brown v. Herbert

2:11-cv-00652 | U.S. District Court for the District of Utah

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Docket for: Brown v. Herbert

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