Brown v. Buhman ( 2016 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS April 11, 2016
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
KODY BROWN; MERI BROWN;
JANELLE BROWN; CHRISTINE
BROWN; ROBYN SULLIVAN,
Plaintiffs - Appellees,
14-4117
v.
JEFFREY R. BUHMAN,
Defendant - Appellant,
--------------------------------
EAGLE FORUM EDUCATION &
LEGAL DEFENSE FUND; SOUND
CHOICES COALITION, INC.; CATO
INSTITUTE,
Amici Curiae.
_________________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
(D.C. No. 2:11-CV-00652-CW)
_________________________________
Parker Douglas, Utah Federal Solicitor, Utah Attorney General’s Office, Salt Lake City,
Utah, appearing for Appellant.
Jonathan Turley, George Washington University School of Law, Washington, DC (Adam
Alba, Magleby & Greenwood, Salt Lake City, Utah, with him on the briefs), appearing
for Appellees.
Eugene Volokh, UCLA School of Law, Scott & Cyan Banister First Amendment Clinic,
Los Angeles, California, and Ilya Shapiro, Cato Institute, Washington, DC, filed an
amicus brief for Cato Institute.
Lawrence John Joseph, Law Office of Lawrence J. Joseph, Washington, DC, filed an
amicus curiae brief for Eagle Forum Education & Legal Defense Fund.
Christian A. Kesselring, Wasatch Law Group, Heber City, Utah, filed an amicus curiae
brief for Sound Choices Coalition, Inc.
_________________________________
Before MATHESON, BALDOCK, and MORITZ, Circuit Judges.
_________________________________
MATHESON, Circuit Judge
_________________________________
I. INTRODUCTION
This case concerns a constitutional challenge to Utah’s bigamy statute, Utah Code
Annotated § 76-7-101 (“the Statute”), which provides:
(1) A person is guilty of bigamy when, knowing he has a husband or wife
or knowing the other person has a husband or wife, the person purports to
marry another person or cohabits with another person.
(2) Bigamy is a felony of the third degree.
(3) It shall be a defense to bigamy that the accused reasonably believed he
and the other person were legally eligible to remarry.
Exercising jurisdiction under 28 U.S.C. § 1291, we hold this matter is moot. It is
not a “Case” or “Controversy” under Article III of the U.S. Constitution. We remand to
the district court with instructions to vacate the judgment and dismiss this action.
Kody Brown, Meri Brown, Janelle Brown, Christine Brown, and Robyn Sullivan
(“the Browns”) form a “plural family.” Kody Brown is legally married to Meri Brown
and “spiritually married” to the other three women, whom he calls “sister wives.” When
the family became the subject of a TLC reality television show in 2010, the Lehi Police
Department opened an investigation of the Browns for violating the Statute. The Browns
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then filed a 42 U.S.C. § 1983 action in federal district court against the Governor and
Attorney General of the State of Utah and the Utah County Attorney. Claiming the
Statute infringed their First and Fourteenth Amendment rights, the Browns sought
declaratory relief and a permanent injunction enjoining enforcement of the Statute against
them.
The district court dismissed the Governor and Attorney General. The Utah
County Attorney’s Office (“UCAO”) subsequently closed its file on the Browns and
adopted a policy (“the UCAO Policy”) under which the Utah County Attorney will 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 Browns fall into neither category. Nonetheless, the district court denied the
Utah County Attorney’s motion to dismiss the case as moot and instead granted summary
judgment to the Browns.
The district court erred by proceeding to the merits. Federal courts are courts of
limited jurisdiction. They lack power to decide issues—however important or fiercely
contested—that are detached from a live dispute between the parties. Following adoption
of the UCAO Policy, the Browns’ suit ceased to qualify as an Article III case or
controversy. Their suit was moot before the district court awarded them relief, and the
court therefore lacked jurisdiction to decide the Browns’ claims.
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II. BACKGROUND
A. Factual Background
Kody Brown, a former resident of Lehi, Utah, is legally married to Meri Brown.
He is also “spiritually married”—but not legally married—to Janelle Brown, Christine
Brown, and Robyn Sullivan, who “consider themselves committed to him as ‘sister
wives.’” App., Vol. 1 at 23, 37.1 Together, the Browns form a “plural family.” Id. at 36.
The Browns belong to the Apostolic United Brethren Church (“AUB”), which
views polygamy as “a core religious practice.” App., Vol. 3 at 564.2 Consistent with
AUB teaching, they “believe that only through celestial marriage can they ensure the
salvation of their souls following death.” App., Vol. 1 at 36.
In September 2010, TLC began airing “Sister Wives,” a reality television show
featuring the Browns that “explores the daily issues and realities of a plural family.”
App., Vol. 3 at 565. On the show, the Browns have discussed their religious belief in
polygamy and defended their polygamist lifestyle.
1
It is unclear from the record exactly what the Browns mean by “spiritual
marriage.” According to the complaint, “Kody Brown considered himself committed to
his Co-Plaintiffs as head of the plural family, a position imposing on him the duty to raise
and father children with each of his spiritual wives.” App., Vol. 1 at 37.
2
The Statute refers to “bigamy” rather than “polygamy,” Utah Code Ann. § 76-7-
101(1), although liability extends to defendants with more than two spouses, see, e.g.,
State v. Green, 99 P.3d 820, 822 (Utah 2004). For purposes of this opinion, the
difference between bigamy and polygamy is immaterial. We therefore use the terms
interchangeably.
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Viewers of the show contacted the Lehi Police Department to “inquir[e] what the
department intended to do” about the Browns. App., Vol. 2 at 246. The day after the
first episode aired, the Department publicly announced it was investigating the Browns
for violations of the Statute.
In October 2010, the Lehi Police Department forwarded the results of its
investigation to the UCAO. Following standard practice, the UCAO opened a case file
on the Browns. Fearful they would be criminally prosecuted, the Browns moved to
Nevada in January 2011. Mr. Buhman was quoted in a January 2011 media report as
saying that despite the Browns’ move, his office would not rule out the possibility of
prosecution.
B. Procedural Background
1. The Browns’ Complaint
On July 13, 2011, before the UCAO had completed its investigation, the Browns
filed suit in the U.S. District Court for the District of Utah. Their complaint named
Jeffrey Buhman, County Attorney for Utah County; Gary Herbert, Governor of the State
of Utah; and Mark Shurtleff, Attorney General of the State of Utah (collectively,
“Defendants”), all in their official capacities.
The Browns alleged the Statute violates (1) their substantive due process right “to
freely make personal decisions relating to procreation, contraception, family
relationships, and child rearing,” both on its face and as applied, and the due process right
not to be subject to vague criminal laws, App., Vol. 1 at 47; (2) the Equal Protection
Clause, both on its face and as applied, because it treats religiously motivated
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polygamists differently from other people; (3) their right to the free exercise of religion,
both on its face and as applied; (4) their free speech rights because prosecutors used the
Statute to single them out based on their public statements endorsing polygamy; (5) their
freedom of association, both on its face and as applied, because its application has
deprived the Browns of “the right to associate with other like-minded citizens who
believe that consenting adults should be able to maintain private relations and unions
without interference from the state,” id. at 52; and (6) the Establishment Clause of the
First Amendment. In their seventh and final cause of action, the Browns asserted
Defendants were “in violation of 42 U.S.C. § 1983” because they had deprived the
Browns of their constitutional rights while acting under color of state law. Id. at 53.
The Browns’ prayer for relief requested (1) a “declar[ation] that [the Statute]
violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment, the
Free Exercise, Establishment, Free Speech, and Freedom of Association Clauses of the
First Amendment, and 42 U.S.C. § 1983”; (2) a “preliminary and permanent injunction
enjoining enforcement or application of [the Statute] against the Brown family”; (3) an
award of “reasonable attorneys’ fees and costs incurred in maintaining this action”; and
(4) “such other relief as [the district court] may deem just and proper.” Id. at 54.
In asserting the district court’s jurisdiction under 28 U.S.C. § 1343(a)(4), the
complaint explained that “this action seeks equitable relief under 42 U.S.C. § 1983, an
Act of Congress.” Id. at 19. Additionally, the complaint’s “Nature of the Action” section
provides, “Through this action, pursuant to 42 U.S.C. § 1983, the Brown family seeks a
declaration that [the Statute] is unconstitutional . . . . The Browns further seek a
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preliminary and permanent injunction preventing the Defendants from enforcing the
[Statute] against the Browns.” Id. at 19-20. The complaint expressly disclaimed any
request for a declaration that the Statute and the Utah Constitution “are unconstitutional
to the extent that they merely prohibit the official recognition of polygamous marriage or
the acquisition of multiple state marriage licenses.” Id. at 20. Finally, the complaint did
not request money damages.
2. Defendants’ Motions to Dismiss
Defendants filed two separate motions to dismiss in district court. One was
granted in part; the other was denied.
a. Defendants’ Motion to Dismiss for Lack of Standing
On September 2, 2011, Defendants filed a motion to dismiss, arguing the Browns
lacked standing to press their claims.
Attached to that motion was a declaration signed by Mr. Shurtleff,3 in which he
declared his office had a “policy . . . not to prosecute polygamists under Utah’s criminal
bigamy statute for just the sake of their practicing polygamy” (“the AG Policy”). Id. at
77. Under the AG Policy, Mr. Shurtleff’s office initiates prosecutions under the Statute
only against someone who also “commit[s] child or spouse abuse, domestic violence,
welfare fraud, or any other crime.” Id. He said his “predecessors in recent memory” had
3
28 U.S.C. § 1746(2) provides for a declaration subscribed to “under penalty of
perjury” to have the same “force and effect” as a “sworn declaration, verification,
certificate, statement, oath, or affidavit.” The declarations filed by Mr. Shurtleff and Mr.
Buhman in this case were subscribed to “under penalty of perjury.”
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followed the AG Policy, and he was unaware of cases brought “against a polygamist just
for violating the bigamy law in the last fifty years unless it is in conjunction with another
crime.” Id. at 78. In addition, Mr. Shurtleff attested “[i]t [wa]s not the intent of the Utah
Attorney General’s Office to prosecute the Browns for their practice of polygamy while
they were living in Lehi, Utah, unless it [wa]s found that they were also committing some
other crime worthy of prosecution.” Id. at 79.
Defendants also attached a declaration from Mr. Buhman signed under penalty of
perjury. Although the UCAO “d[id] not have a formal, declared policy regarding
prosecution of polygamy,” he said no one on his staff “ha[d] any recollection of [the
UCAO] having ever prosecuted anyone for polygamy.” Id. at 74. He added, however,
that he had “not stated publically that [he] w[ould] or w[ould] not prosecute the Browns.”
Id. Mr. Buhman also declared that the UCAO “has on occasion prosecuted a bigamy
case for marriage fraud or for a failure to get divorced before remarrying.” Id. at 75.
“Were the Browns committing other crimes, such as spousal or child abuse, welfare fraud
or the like,” he stated, “the chance of prosecution would be likely.” Id.
Defendants argued the Browns lacked standing because the AG Policy and the
UCAO’s non-enforcement of the Statute made prosecution unlikely.
On December 19, 2011, Defendants supplemented the record with a declaration
from Amanda Jex, a law clerk in the Attorney General’s Office who had been “assigned
the task of researching prosecution of polygamists in Utah subsequent to their public
appearances.” Id. at 176. She had asked the Administrative Office of the Courts for the
State of Utah to provide a list of cases brought under the Statute in the preceding ten
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years. The Administrative Office responded with a list of ten defendants prosecuted
under the Statute between 2001 and 2011. The list did not indicate whether defendants
charged under the Statute were also charged with collateral crimes.
To determine whether those ten defendants had also been charged with collateral
crimes, Ms. Jex ran “internet queries through Google.com, and Utah based news agencies
such as: KSL.com, the Salt Lake Tribune, the Deseret News and The Spectrum.” Id.
She also conducted research on Court XChange, an online database operated by the Utah
courts. Her declaration does not indicate whether she checked actual court dockets or
records or contacted court clerk’s offices for information. There is no evidence in the
record regarding prosecutions before 2001.
Of the ten cases Ms. Jex identified in her declaration, six—including two in Utah
County—involved defendants who were also prosecuted for crimes other than bigamy,
such as criminal non-support, unlawful sexual conduct with a minor, forcible sex abuse,
marriage license fraud, and insurance fraud. Ms. Jex’s “internet queries” did not reveal
additional charges in the four remaining cases, one of which involved a defendant
charged in Utah County in 2010. But prosecutors dismissed the charges in three of those
cases, including the Utah County case. The final defendant was found guilty in Weber
County of “[a]ttempted bigamy.” App., Vol. 1 at 179.
On February 3, 2012, the district court dismissed Governor Herbert and Attorney
General Shurtleff, concluding, based on the latter’s declaration, that “nothing suggest[s]
that the State of Utah has taken any action towards [the Browns] that could be interpreted
as threatening prosecution.” Brown v. Herbert, 850 F. Supp. 2d 1240, 1249 (D. Utah
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2012). But the court denied dismissal of Mr. Buhman. Id. at 1244. Noting the UCAO’s
lack of an official prosecution policy, the court said, “Mr. Buhman ha[d] submitted
nothing to the court that either counters [the Browns’] account of the events, or otherwise
suggests that the prosecutorial door is not wide open.” Id. at 1251. The Browns faced “a
credible threat of prosecution,” the court concluded, and therefore had standing to bring
their claims. Id. at 1252.
b. Mr. Buhman’s Motion to Dismiss for Mootness
Four months later, on May 31, 2012, Mr. Buhman filed a motion to dismiss the
Browns’ suit as constitutionally moot. The motion was based on a second declaration
Mr. Buhman had signed on May 22, 2012, in which he announced he had “now adopted a
formal office policy” regarding polygamy prosecutions—the UCAO Policy. App., Vol. 2
at 329. The UCAO Policy, which essentially adopts the AG Policy, provides:
Prosecution of Bigamy Crimes:
The Utah County Attorney’s Office will prosecute the crime of bigamy
under [the Statute] in two circumstances: (1) When a victim is induced to
marry through their partner’s fraud, misrepresentation or omissions; or (2)
When a person purports to marry or cohabits with another person in
violation of [the Statute] and is also engaged in some type of abuse,
violence or fraud. This office will prosecute the crime of child 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.
Id. According to Mr. Buhman’s declaration, the UCAO Policy was “intended . . . to
prevent the future prosecution in Utah County of bigamous marriages entered into for
religious reasons.” Id.
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 Mr. Buhman also attested that the UCAO “ha[d] concluded its investigation of the
Browns and ha[d] 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 the date
of this declaration.” Id. As a result, he wrote, “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 [UCAO Policy] pertaining to the prosecution
of bigamy crimes.” Id. at 330. The district court concluded in its subsequent summary
judgment order and memorandum that it was undisputed Mr. Buhman had “found no
evidence of any crime by the Browns.” App., Vol. 3 at 566.
On August 17, 2012, the district court denied Mr. Buhman’s motion. It reasoned
that the “timing of Mr. Buhman’s adoption of the [UCAO Policy]”—18 months after
“Sister Wives” began airing and four months after the initial motion to dismiss was
denied—suggested a “strategic attempt to use the mootness doctrine to evade review.”
App., Vol. 2 at 493. The court also noted that the UCAO Policy “does not reject the
ability of Utah County to prosecute under the anti-bigamy statute” and “reflects, at most,
an exercise of prosecutorial discretion.” Id. at 494. Accordingly, the court denied the
Browns’ case was constitutionally moot because it could not “conclude that there is no
reasonable expectation that [the Browns] would be prosecuted under the statute in the
future.” Id. at 496.
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Taking up the question of prudential mootness sua sponte, the district court
concluded similar considerations counseled against dismissing the case on that basis.4
The district court wrote that “the timing of the [UCAO Policy] implementation, lack of
any public notice, and lack of reasoning given for adopting the [UCAO Policy] suggest
that the [UCAO Policy] was implemented, not to provide a remedy to [the Browns] in
this case, but instead to evade review of [the Browns’] claims on the merits.” Id. at 498.
3. Cross-Motions for Summary Judgment
On May 31, 2012, the Browns filed a motion for summary judgment on all claims.
Mr. Buhman filed a cross-motion for summary judgment.
On December 13, 2013, the district court entered a lengthy order granting the
Browns’ motion for summary judgment and denying Mr. Buhman’s cross-motion.
Brown v. Buhman, 947 F. Supp. 2d 1170, 1176 (D. Utah 2013). That order first
addressed the Statute’s “cohabitation prong,” which imposes criminal liability on a
person who, “knowing he has a husband or wife or knowing the other person has a
husband or wife, . . . cohabits with another person.” Utah Code Ann. § 76-7-101(1). The
court held this portion of the Statute violated the First Amendment’s Free Exercise
Clause, lacked a rational basis under the Fourteenth Amendment Due Process clause, and
4
“Courts recognize two kinds of mootness: constitutional mootness and prudential
mootness.” Jordan v. Sosa, 654 F.3d 1012, 1023 (10th Cir. 2011) (brackets and
quotation omitted). “Even if a case is not constitutionally moot, a court may dismiss a
case under the prudential-mootness doctrine if the case is so attenuated that
considerations of prudence and comity for coordinate branches of government counsel
the court to stay its hand, and to withhold relief it has the power to grant.” Id. at 1024
(emphasis in original) (brackets and quotations omitted).
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was void for vagueness. Id. at 1176, 1226. In addition, the court concluded the Browns’
remaining claims—those based on freedom of association, freedom of speech, equal
protection, and the Establishment Clause—were at least “colorable,” entitling the Browns
to relief under the “hybrid rights” theory of religious free exercise. Id. at 1222.5 The
court therefore determined the cohabitation prong had to be “stricken” from the Statute.
Id.
Having struck the cohabitation prong, the court turned to the Statute’s “purports to
marry” prong, which states, “A person is guilty of bigamy when, knowing he has a
husband or wife or knowing the other person has a husband or wife, the person purports
to marry another person.” Utah Code Ann. § 76-7-101(1). The Utah Supreme Court had
previously held that under this portion of the Statute, liability attaches when a couple
hold themselves out as married, even if they do not profess to be legally married. State v.
Holm, 137 P.3d 726, 732 (Utah 2006). The district court acknowledged Holm’s holding
but concluded that “[u]nder this broad interpretation of the term ‘marry,’ the phrase
‘purports to marry another person’ raises the same constitutional concerns addressed in
5
Neutral, generally applicable laws that incidentally burden religious free exercise
will ordinarily survive constitutional challenge as long as they are rationally related to a
legitimate government interest. Grace United Methodist Church v. City of Cheyenne,
451 F.3d 643, 649 (10th Cir. 2006). But under the hybrid rights doctrine, “a party c[an]
establish a violation of the free exercise clause even in the case of a neutral law of
general applicability by showing that the challenged governmental action compromised
both the right to free exercise of religion and an independent constitutional right.” Id. at
655. The “hybrid-rights theory at least requires a colorable showing of infringement of a
companion constitutional right.” Axson-Flynn v. Johnson, 356 F.3d 1277, 1295 (10th
Cir. 2004) (quotation omitted).
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relation to the cohabitation prong.” Brown, 947 F. Supp. 2d at 1192, 1226. It therefore
adopted a “narrowing construction” that interprets “purports to marry” as “referring to an
individual’s claim of entry into a legal union recognized by the state as marriage.” Id. at
1231 (quoting Holm, 137 P.3d at 763 (Durham, C.J., concurring in part and dissenting in
part)).6 The court held that, as construed—with the cohabitation prong stricken and the
“purport to marry” prong narrowed—the Statute survives constitutional scrutiny. Id. at
1233-34.
The district court entered judgment in favor of the Browns on December 17, 2013,
but did not order injunctive relief.7
6
The court did not explain where it derived the authority to construe a state statute
differently from how the state’s highest court had construed it. See Johnson v. United
States, 559 U.S. 133, 138 (2010) (“We are, however, bound by the Florida Supreme
Court’s interpretation of state law, including its determination of the elements of Fla.
Stat. § 784.03(2).”); Schrock v. Wyeth, Inc., 727 F.3d 1273, 1280 (10th Cir. 2013) (“It is
axiomatic that state courts are the final arbiters of state law.” (quotation omitted)). Even
if adopting an alternative construction might avert possible constitutional problems,
federal courts must defer to states’ interpretations of their own statutes. See Am.
Constitutional Law Found., Inc. v. Meyer, 120 F.3d 1092, 1106 (10th Cir. 1997)
(instructing, in void-for-vagueness case, that “[w]e must read the statute as it has been
interpreted by Colorado’s highest court”); United States v. Gaudreau, 860 F.2d 357, 361
(10th Cir. 1988) (“[A] federal court evaluating a vagueness challenge to a state law must
read the statute as it is interpreted by the state’s highest court.” (citing Wainwright v.
Stone, 414 U.S. 21, 22-23 (1973))).
7
Like the court’s December 13, 2013 order, the judgment announces that the
Statute’s cohabitation prong “is stricken” and the “purports to marry” prong is
“susceptible to a narrowing construction.” App., Vol. 3 at 651. Both documents grant
the Browns’ summary judgment motion in part and deny Mr. Buhman’s cross-motion,
but neither expressly enjoins Mr. Buhman from enforcing the Statute against the Browns.
In practical effect, therefore, the district court granted the Browns only one of their
requested forms of relief, namely a declaration that the Statute’s cohabitation prong
violates the First and Fourteenth Amendments.
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4. Proceedings on “the § 1983 Claim”
The district court vacated its judgment sua sponte on December 20, 2013, because
it had not yet resolved “the status of the 42 U.S.C. 1983 claim.” Dist. Ct. Doc. 84. After
ordering supplemental briefing, the district court, on August 27, 2014, held that
Mr. Buhman had waived qualified immunity and prosecutorial immunity defenses by
failing to plead them in his answer or argue them in the summary judgment briefing.8
The court “therefore f[ound] in favor of [the Browns] on their seventh and final count in
the Complaint under 42 U.S.C. § 1983 and [granted] summary judgment in their favor on
this last remaining count.” App., Vol. 3 at 728.9 It construed the complaint to include a
8
This holding was erroneous. Immunity defenses are not available—and therefore
cannot be waived—in suits seeking relief against a public official only in his or her
official capacity. Cox v. Glanz, 800 F.3d 1231, 1239 n.1 (10th Cir. 2015) (“The defense
of qualified immunity is available only in suits against officials sued in their personal
capacities, not in suits against . . . officials sued in their official capacities.”) (quotation
omitted) (ellipsis in original)); Lemmons v. Law Firm of Morris & Morris, 39 F.3d 264,
267 (10th Cir. 1994) (“[N]either qualified nor absolute immunity precludes prospective
injunctive relief except in rare circumstances not relevant here.” (emphasis in original));
see also Martin A. Schwartz, Section 1983 Litigation Claims and Defenses § 9.01[3] (3d
ed. 2005) (“The common-law absolute and qualified immunities that have been
recognized in § 1983 actions pertain to claims for monetary relief against state and local
officials in their personal capacities. Neither the absolute nor qualified immunities extend
to suits for injunctive or declaratory relief under § 1983.”) (footnote omitted)).
9
The Browns and the district court misapprehended the relationship between
§ 1983 and the Defendants’ alleged constitutional violations. “Section 1983 itself does
not create any substantive rights, but merely provides relief against those who, acting
under color of law, violate federal rights created elsewhere.” Reynolds v. Sch. Dist. No.
1, Denver, Colo., 69 F.3d 1523, 1536 (10th Cir. 1995). That is, § 1983 is a remedial
vehicle for raising claims based on the violation of constitutional rights. There can be no
“violation” of § 1983 separate and apart from the underlying constitutional violations.
See Sanchez v. Hartley, 810 F.3d 750, 759 (10th Cir. 2016) (“Section 1983 merely
provides a cause of action; the substantive rights are created elsewhere.”); accord
Schwartz, supra note 8, § 1.05[B] (“Section 1983 fulfills the procedural or remedial role
Continued . . .
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request for money damages but determined the Browns had “drop[ped]” this request in
their supplemental briefing. Id. at 728.10 Accordingly, the court awarded the Browns
of authorizing the assertion of the claim for relief but does not itself create or establish
substantive rights. Thus, one cannot go into court and claim a violation of § 1983—for
§ 1983 by itself does not protect anyone against anything.” (quotations omitted)).
Accordingly, the Browns’ first six claims could be brought only under § 1983, and claim
seven is redundant of those claims.
10
Our review of the complaint reveals no request for money damages. Nor could
there be such a request, as the Browns sued Defendants in their official and not their
individual capacities. With respect to state officials, such as Mr. Herbert and Mr.
Shurtleff, “[s]ection 1983 plaintiffs may sue individual-capacity defendants only for
money damages and official-capacity defendants only for injunctive relief.” Brown v.
Montoya, 662 F.3d 1152, 1161 n.5 (10th Cir. 2011) (citing Hafer v. Melo, 502 U.S. 21,
30 (1991)); see also Richard H. Fallon, Jr. et al., Hart and Wechsler’s The Federal Courts
and the Federal System 958 (6th ed. 2009) (“[D]amages actions pleaded against state
officials in their ‘official capacity’ will ordinarily be dismissed as barred by the state’s
sovereign immunity. . . . When equitable relief is sought, the defendant official is
ordinarily named in an official capacity.” (emphasis in original)).
Assuming he is a municipal official, matters are more complicated as to Mr.
Buhman. (If he is instead a state official, the Browns could not seek damages against him
for the same reason they could not seek damages against Mr. Herbert and Mr. Shurtleff.)
“The Supreme Court has determined that an official-capacity suit brought under
§ 1983 generally represents only another way of pleading an action against an entity of
which an officer is an agent, and as long as the government entity receives notice and an
opportunity to respond, an official-capacity suit is, in all respects other than name, to be
treated as a suit against the entity.” Moss v. Kopp, 559 F.3d 1155, 1168 n.13 (10th Cir.
2009) (quotations and brackets omitted). “To establish a claim for damages under § 1983
against municipal entities or local government bodies, the plaintiff must prove (1) the
entity executed a policy or custom (2) that caused the plaintiff to suffer deprivation of
constitutional or other federal rights.” Id. at 1168. Here, the Browns did not allege or
attempt to prove in district court that Mr. Buhman acted in accordance with a Utah
County policy or custom. Damages were therefore unavailable under § 1983. See
Fallon, et al., supra, at 958-62 (explaining that “[d]amages actions against local
government officers in their official capacities can go forward only [in] accordance with
the rules governing local governmental liability described in” Monell v. Department of
Social Services, 436 U.S. 658 (1978), which conditions liability on action taken under an
official policy or a de facto custom).
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only “attorney’s fees, costs, and expenses incurred in this action under 42 U.S.C.
§ 1988,” id. at 730, which authorizes such fees and costs in § 1983 suits.
An amended final judgment was entered the same day.11 Mr. Buhman filed a
timely notice of appeal on September 24, 2014. See Fed. R. App. 4(a)(1)(A).
III. DISCUSSION
Mr. Buhman appeals the district court’s grant of summary judgment to the
Browns. He argues the district court erred by (1) finding a free exercise violation despite
controlling precedent holding polygamy bans do not offend the Free Exercise Clause,
(2) concluding the Statute’s prohibition of “religious cohabitation” lacks a rational basis
under the Due Process Clause, and 3) awarding relief on the Browns’ “hybrid rights”
claims.
On December 11, 2015, we ordered the parties to submit supplemental briefing
addressing (1) whether the Browns had standing at the time the complaint was filed, and
(2) if so, whether the UCAO Policy rendered the Browns’ claims moot.
We do not address the merits of the Browns’ claims. The district court should not
have done so, either. Assuming the Browns had standing as to Mr. Buhman when they
filed suit, they ceased to have standing when Mr. Buhman filed his May 2012
11
This judgment, like the first, does not enjoin enforcement of the Statute. It only
announces the district court’s view that the cohabitation prong of the Statute is
unconstitutional and the “purports to marry” prong can be saved only by adopting a
narrowing construction.
- -17
declaration, and this case therefore became moot.12 The declaration rendered the threat of
prosecution so speculative that a live controversy no longer existed for Article III
jurisdiction. We therefore remand to the district court with directions to vacate the
judgment and dismiss this case.
A. Standing and Mootness
The U.S. Constitution delegates certain powers to each branch of the federal
government and places limits on those powers. Article III vests “[t]he judicial Power of
the United States . . . in one supreme Court, and in such inferior Courts as the Congress
may from time to time ordain and establish.” U.S. Const. art. III, § 1.
Federal courts exercising this authority are “confine[d] . . . to deciding actual
‘Cases’ or ‘Controversies.’” Hollingsworth v. Perry, 133 S. Ct. 2652, 2661 (2013)
(quoting U.S. Const. art. III, § 2). “In our system of government, courts have no business
deciding legal disputes or expounding on law in the absence of such a case or
controversy.” Already, LLC v. Nike, Inc., 133 S. Ct. 721, 726 (2013) (quotation omitted).
“As used in the Constitution, those words do not include every sort of dispute, but only
those historically viewed as capable of resolution through the judicial process.”
Hollingsworth, 133 S. Ct. at 2659 (quotation omitted).
12
“Mootness and standing are jurisdictional. Because there is no mandatory
sequencing of nonmerits issues, we have leeway to choose among threshold grounds for
denying audience to a case on the merits.” Citizen Ctr. v. Gessler, 770 F.3d 900, 906
(10th Cir. 2014) (quotations, citation, and brackets omitted). Accordingly, we may
address mootness without deciding whether the Browns had standing.
- -18
As the Supreme Court has explained, “no principle is more fundamental to the
judiciary’s proper role in our system of government than the constitutional limitation of
federal-court jurisdiction to actual cases or controversies.” Clapper v. Amnesty Int’l,
USA, 133 S. Ct. 1138, 1146 (2013) (brackets omitted); see also Summers v. Earth Island
Inst., 555 U.S. 488, 492-93 (2009) (“This limitation is founded in concern about the
proper—and properly limited—role of the courts in a democratic society.” (quotation
omitted)). The narrow scope of Article III, “which is built on separation-of-powers
principles, serves to prevent the judicial process from being used to usurp the powers of
the political branches.” Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2341 (2014);
see also Hollingsworth, 133 S. Ct. at 2659 (“[The case-or-controversy requirement] is an
essential limit on our power: It ensures that we act as judges, and do not engage in
policymaking properly left to elected representatives.” (emphasis in original)).
Two related doctrines, standing and mootness, keep federal courts within their
constitutional bounds. Standing concerns whether a plaintiff’s action qualifies as a case
or controversy when it is filed; mootness ensures it remains one at the time a court
renders its decision.13 The Supreme Court has described mootness “as the doctrine of
13
A third jurisdictional doctrine, known as ripeness, “aims to prevent courts from
entangling themselves in abstract disagreements by avoiding premature adjudication.”
Cellport Sys., Inc. v. Peiker Acustic GMBH & Co. KG, 762 F.3d 1016, 1029 (10th Cir.
2014) (quotation omitted); see also Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967).
“Even if all the relevant facts regarding a particular legal issue are known or knowable, a
court does not have jurisdiction to resolve the issue unless that issue arises in a specific
dispute having real-world consequences.” Cellport Sys., 762 F.3d at 1029 (brackets and
quotation omitted). “The doctrines of standing and ripeness originate from the same
Continued . . .
- -19
standing set in a time frame: The requisite personal interest that must exist at the
commencement of the litigation (standing) must continue throughout its existence
(mootness).” Arizonans for Official English v. Arizona, 520 U.S. 43, 68 n.22 (1997)
(quotations omitted).14 Failure to satisfy the requirements of either doctrine places a
dispute outside the reach of the federal courts. See Already, 133 S. Ct. at 726 (“We have
repeatedly held that an actual controversy must exist not only at the time the complaint is
filed, but through all stages of the litigation.” (quotation omitted)).
We discuss standing and mootness in turn.
1. Standing
Standing “requires federal courts to satisfy themselves that the plaintiff has alleged
such a personal stake in the outcome of the controversy as to warrant his invocation of
federal-court jurisdiction.” Summers, 555 U.S. at 493 (emphasis in original) (quotations
omitted).
Article III limitation.” Susan B. Anthony List, 134 S. Ct. at 2341 n.5 (quotations
omitted).
14
The Court has cautioned that the “time frame” description of mootness “is not
comprehensive.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528
U.S. 167, 190 (2000). In particular, “there are circumstances in which the prospect that a
defendant will engage in (or resume) harmful conduct may be too speculative to support
standing, but not too speculative to overcome mootness.” Id. Standing, unlike mootness,
is also not subject to an exception for disputes that are “capable of repetition yet evading
review,” which we discuss below. Id. at 191. These caveats, however, do not affect the
general rule that “[t]he requisite personal interest that must exist at the commencement of
the litigation (standing) must continue throughout its existence (mootness).” Arizonans
for Official English, 520 U.S. at 68 n.22.
- -20
We measure standing as of the time the plaintiff files suit. See Davis v. Fed.
Election Comm’n, 554 U.S. 724, 732-33 (2008). The burden is on the plaintiff to
establish standing. Summers, 555 U.S. at 493; see Bennett v. Spear, 520 U.S. 154, 167-
68 (1997) (“[E]ach element of Article III standing must be supported in the same way as
any other matter on which the plaintiff bears the burden of proof, i.e., with the manner
and degree of evidence required at the successive stages of the litigation.” (quotation
omitted)).
“To establish Article III standing, a plaintiff must show (1) an ‘injury in fact,’
(2) a sufficient ‘causal connection between the injury and the conduct complained of,’
and (3) a ‘likelihood’ that the injury ‘will be redressed by a favorable decision.’” Susan
B. Anthony List, 134 S. Ct. at 2341 (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-
61 (1992)) (brackets omitted). These three elements—“injury in fact,” “causation,” and
“redressability”—“together constitute the irreducible constitutional minimum of
standing.” Vt. Agency of Nat. Res. v. United States ex rel. Stevens, 529 U.S. 765, 771
(2000) (quotation omitted).
This case centers on the injury-in-fact requirement. “An injury sufficient to satisfy
Article III must be concrete and particularized and actual or imminent, not conjectural or
hypothetical. An allegation of future injury may suffice if the threatened injury is
certainly impending, or there is a substantial risk that the harm will occur.” Susan B.
Anthony List, 134 S. Ct. at 2341 (quotations omitted).
When a plaintiff alleges injury arising from the potential future enforcement of a
criminal statute, “an actual arrest, prosecution, or other enforcement action is not a
- -21
prerequisite to challenging the law.” Id. at 2342. Instead, “a plaintiff satisfies the injury-
in-fact requirement where he alleges an intention to engage in a course of conduct
arguably affected with a constitutional interest, but proscribed by a statute, and there
exists a credible threat of prosecution thereunder.” Id. (quotation omitted); see also Mink
v. Suthers, 482 F.3d 1244, 1253 (10th Cir. 2007) (“[T]he mere presence on the statute
books of an unconstitutional statute, in the absence of enforcement or credible threat of
enforcement, does not entitle anyone to sue, even if they allege an inhibiting effect on
constitutionally protected conduct prohibited by the statute.” (quotation omitted)). A
credible threat is one that is “well-founded” and “not ‘imaginary or wholly speculative.’”
Susan B. Anthony List, 134 S. Ct. at 2343 (quoting Virginia v. Am. Booksellers Ass’n,
Inc., 484 U.S. 383, 393 (1988), and Babbitt v. Farm Workers, 442 U.S. 289, 302 (1979)).
“In other words, to satisfy Article III, the plaintiff’s expressive activities must be
inhibited by an objectively justified fear of real consequences.” Winsness v. Yocom, 433
F.3d 727, 732 (10th Cir. 2006) (quotation omitted).
2. Mootness
a. General Principles
A plaintiff’s standing at the time of filing does not ensure the court will ultimately
be able to decide the case on the merits. An “actual controversy must be extant at all
stages of review, not merely at the time the complaint is filed.” Genesis Healthcare
Corp. v. Symczyk, 133 S. Ct. 1523, 1528 (2013) (quotations and citations omitted). “If an
intervening circumstance deprives the plaintiff of a personal stake in the outcome of the
lawsuit, at any point during litigation, the action can no longer proceed and must be
- -22
dismissed as moot.” Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 669 (2016)
(quotation omitted). Mootness deprives federal courts of jurisdiction. See Decker v. Nw.
Envtl. Def. Ctr., 133 S. Ct. 1326, 1336 (2013); Schell v. OXY USA, Inc., --- F.3d ---, ---,
2016 WL 524110, at *3 (10th Cir. Feb. 9, 2016) (“If a case is moot, we have no subject-
matter jurisdiction.”).15
A “suit becomes moot when the issues presented are no longer ‘live’ or the parties
lack a legally cognizable interest in the outcome.” Chafin v. Chafin, 133 S. Ct. 1017,
1023 (2013) (quotation and comma omitted). “No matter how vehemently the parties
continue to dispute the lawfulness of the conduct that precipitated the lawsuit, the case is
moot if the dispute is no longer embedded in any actual controversy about the plaintiffs’
particular legal rights.” Already, 133 S. Ct. at 727 (quotation omitted). “The crucial
question is whether granting a present determination of the issues offered will have some
effect in the real world.” Wyoming v. U.S. Dep’t of Agric., 414 F.3d 1207, 1212 (10th
Cir. 2005). “Put another way, a case becomes moot when a plaintiff no longer suffers
actual injury that can be redressed by a favorable judicial decision.” Ind v. Colo. Dep’t of
Corr., 801 F.3d 1209, 1213 (10th Cir. 2015) (quotations omitted).
15
Constitutional mootness is jurisdictional; prudential mootness is discretionary.
See Jordan, 654 F.3d at 1024. Because we conclude the Browns’ claim is
constitutionally moot, we do not address prudential mootness in this opinion.
- -23
b. Exceptions
Courts recognize two “exceptions” to the mootness doctrine—situations in which
a case remains subject to federal court jurisdiction notwithstanding the seeming
extinguishment of any live case or controversy.
One exception involves disputes that are “capable of repetition, yet evading
review.” “The exception applies where (1) the challenged action is in its duration too
short to be fully litigated prior to cessation or expiration, and (2) there is a reasonable
expectation that the same complaining party will be subject to the same action again.”
Fed. Election Comm’n v. Wis. Right to Life, Inc., 551 U.S. 449, 462 (2007); see also
Erwin Chemerinsky, Federal Jurisdiction 137 (6th ed. 2012) (explaining that this
exception addresses instances where “injuries occur and are over so quickly that they
always will be moot before the federal court litigation process is completed”). Disputes
regarding regulation of abortion, for example, are capable of repetition yet evade review
because “the normal 266-day human gestation period is so short that the pregnancy will
come to term before the usual appellate process is complete. If that termination makes a
case moot, pregnancy litigation seldom will survive much beyond the trial stage, and
appellate review will be effectively denied.” Roe v. Wade, 410 U.S. 113, 125 (1973).
Mooting this case would not run afoul of the “capable of repetition” exception because
any renewed threat of prosecution would leave the Browns ample time and opportunity to
challenge the Statute.
The second exception to mootness, relevant here, concerns “voluntary cessation”
of the defendant’s conduct. Already, 133 S. Ct. at 727. Under this exception, “voluntary
- -24
cessation of challenged conduct does not ordinarily render a case moot because a
dismissal for mootness would permit a resumption of the challenged conduct as soon as
the case is dismissed.” Knox v. Serv. Emps. Int’l Union, Local 1000, 132 S. Ct. 2277,
2287 (2012). This rule is designed to prevent gamesmanship. If voluntary cessation
automatically mooted a case, “a defendant could engage in unlawful conduct, stop when
sued to have the case declared moot, then pick up where he left off, repeating this cycle
until he achieves all his unlawful ends.” Already, 133 S. Ct. at 727. The voluntary
cessation rule “traces to the principle that a party should not be able to evade judicial
review, or to defeat a judgment, by temporarily altering questionable behavior.” City
News & Novelty, Inc. v. City of Waukesha, 531 U.S. 278, 284 n.1 (2001). Courts
therefore view voluntary cessation “with a critical eye,” lest defendants manipulate
jurisdiction to “insulate” their conduct from judicial review. Knox, 132 S. Ct. at 2287.
A defendant’s voluntary cessation may moot a case, however, if the defendant
carries “the formidable burden of showing that it is absolutely clear the allegedly
wrongful behavior could not reasonably be expected to recur.” Already, 133 S. Ct. at 727
(quotation omitted).16 The Supreme Court has described this burden as “heavy,” Parents
16
The Supreme Court’s voluntary cessation cases suggest the word “absolutely”
adds little to this formulation. After reciting this standard, the Court sometimes omits
“absolutely” from its subsequent analysis, instead using the “reasonably be expected”
language as shorthand. See Already, 133 S. Ct. at 727 (“Under our precedents, it was
Nike’s burden to show that it ‘could not reasonably be expected’ to resume its
enforcement efforts against Already.” (quotation omitted)); id. (“That is the question the
voluntary cessation doctrine poses: Could the allegedly wrongful behavior reasonably be
expected to recur?”); see also City of Erie v. Pap’s A.M., 529 U.S. 277, 287 (2000) (“The
underlying concern is that, when the challenged conduct ceases such that there is no
Continued . . .
- -25
Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 719 (2007), and
“stringent,” Friends of the Earth, 528 U.S. at 189.17
But the burden is not insurmountable, especially in the context of government
enforcement. “In practice, [this] heavy burden frequently has not prevented
governmental officials from discontinuing challenged practices and mooting a case.” Rio
Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1116 (10th Cir. 2010).
Most cases that deny mootness following government officials’ voluntary cessation “rely
reasonable expectation that the wrong will be repeated, then it becomes impossible for
the court to grant any effectual relief whatever to the prevailing party.” (citation,
quotations, and brackets omitted)); Friends of the Earth, 528 U.S. at 189 (“The heavy
burden of persuading the court that the challenged conduct cannot reasonably be expected
to start up again lies with the party asserting mootness.” (quotation and brackets
omitted)); Ne. Fla. Chapter of Associated Gen. Contractors of Am. v. City of
Jacksonville, 508 U.S. 656, 676 (1993) (“[W]e have said that the defendant, to establish
mootness, bears a heavy burden of demonstrat[ing] that there is no reasonable
expectation that the wrong will be repeated.” (quotation omitted) (second brackets in
original)). But see Adarand Constructors, Inc. v. Slater, 528 U.S. 216, 222 (1998)
(“Voluntary cessation of challenged conduct moots a case, however, only if it is
absolutely clear that the allegedly wrongful behavior could not reasonably be expected to
recur.” (quotation omitted) (emphasis in original)). Moreover, although the defendant’s
obligation is to show it is absolutely clear that “the allegedly wrongful behavior could not
reasonably be expected to recur,” the Supreme Court has never suggested a defendant
must make resumption of his conduct impossible.
17
Although a defendant’s “burden” may be heavy, it is also narrow in scope.
“[M]ootness is jurisdictional and non-waivable.” Winsness, 433 F.3d at 736 n.4. When
we suspect a case may be moot, we must study the question closely and conduct our own
assessment, United States v. Hays, 515 U.S. 737, 742 (1995) (“[F]ederal courts are under
an independent obligation to examine their own jurisdiction.”), even if the defendant has
made no efforts—or very poor ones—to convince us. See Arbaugh v. Y&H Corp., 546
U.S. 500, 514 (2006) (“[S]ubject-matter jurisdiction, because it involves a court’s power
to hear a case, can never be forfeited or waived.”). Thus, a defendant’s burden is limited
to bringing forward information relevant to mootness. Failure to make persuasive
arguments based on that information cannot defeat mootness.
- -26
on clear showings of reluctant submission [by governmental actors] and a desire to return
to the old ways.’” Id. at 1117 (brackets and emphasis in Rio Grande Silvery Minnow)
(quoting 13C Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal
Practice and Procedure, § 3533.6, at 311 (3d ed. 2008)); see also Gessler, 770 F.3d at 908
(same).
We have cited with approval the Fifth Circuit’s decision, in the government
enforcement context, “not [to] require some physical or logical impossibility that the
challenged policy will be reenacted absent evidence that the voluntary cessation is a sham
for continuing possibly unlawful conduct.” Rio Grande Silvery Minnow, 601 F.3d at
1117-18 (quoting Sossamon v. Lone Star State of Tex., 560 F.3d 316, 325 (5th Cir.
2009)). And we have indicated that government “self-correction . . . provides a secure
foundation for mootness so long as it seems genuine.” Id. at 1118 (quoting Wright,
Miller & Cooper, § 3533.7, at 326).
B. Standard of Review
Standing and mootness are legal questions we review de novo. Niemi v.
Lasshofer, 770 F.3d 1331, 1344 (10th Cir. 2014); United States v. Fisher, 805 F.3d 982,
989 (10th Cir. 2015).
C. Analysis
We assume without deciding that when the Browns filed their complaint, they had
standing as to Mr. Buhman; that is, they were suffering an injury in fact—namely, “a
credible threat of prosecution” under the Statute, Susan B. Anthony List, 134 S. Ct. at
2342—caused by Mr. Buhman and redressable by him. But the district court lost
- -27
jurisdiction after May 2012, when Mr. Buhman submitted a declaration announcing the
UCAO Policy. That policy forbids enforcing the Statute against the Browns, making it
clear that prosecution of the Browns “could not reasonably be expected to recur.”
Already, 133 S. Ct. at 727 (quotation omitted). The UCAO Policy rendered this case
moot, and, as we discuss below, the voluntary cessation exception to mootness does not
apply.18
1. The Browns’ Case Is Moot Because They Are Under No Credible Threat of
Prosecution
Our mootness analysis proceeds in three parts. First, the Browns’ complaint seeks
only prospective relief, and mootness therefore turns on whether the district court had
authority to enjoin future alleged constitutional violations. Second, because Mr.
Buhman’s declaration and the Browns’ move to Nevada eliminated any reasonable
expectation that the Browns will be prosecuted, we conclude the district court lacked
such authority. Third, the Browns’ arguments against mootness—that (1) Winsness, in
which we found mootness, requires a different result here; (2) Mr. Buhman’s successor
18
Mr. Buhman did not argue in his opening appeal brief that the Browns lacked
standing to bring their claims or that this action became moot before the district court
entered its summary judgment order. But “[t]he question of standing is not subject to
waiver.” Hays, 515 U.S. at 742. Mootness is similarly “non-waivable.” N.M. ex rel.
Richardson v. Bureau of Land Mgmt., 565 F.3d 683, 701 n.20 (10th Cir. 2009).
Accordingly, “we are required to address the[se] issue[s] even if . . . the parties fail to
raise the issue[s] before us.” Hays, 515 U.S. at 742; see also Henderson ex rel.
Henderson v. Shinseki, 562 U.S. 428, 434 (2011) (“[F]ederal courts have an independent
obligation to ensure that they do not exceed the scope of their jurisdiction, and therefore
they must raise and decide jurisdictional questions that the parties either overlook or elect
not to press.”). Our request for supplemental briefing was meant to give the parties an
opportunity to argue this important threshold question.
- -28
could abandon the UCAO Policy; (3) Mr. Buhman continues to defend the Statute’s
constitutionality; and (4) Mr. Buhman adopted the UCAO Policy as a tactical maneuver
to moot this case—are not persuasive.
a. Only Prospective Relief Is at Issue
Voluntary cessation cannot moot an action seeking damages because damages
compensate a party for past conduct, not ongoing or future conduct. See City of Los
Angeles v. Lyons, 461 U.S. 95, 109 (1983); O’Connor v. Washburn Univ., 416 F.3d 1216,
1222 (10th Cir. 2005) (“The complaint, however, also includes a claim for nominal
damages. . . . Unlike the claims for injunctive and declaratory relief, this claim is not
mooted by [defendant’s voluntary cessation].”). But contrary to the district court’s
understanding, the Browns did not sue for damages and therefore do not seek
compensation for any past injuries they may have suffered at the hand of Mr. Buhman.
They seek relief only for the future harm of prosecution. If there is no credible threat of
such harm, their case is moot. See Dias v. City & Cty. of Denver, 567 F.3d 1169, 1176
(10th Cir. 2009) (“As the Supreme Court explained, ‘[p]ast exposure to illegal conduct
does not in itself show a present case or controversy regarding injunctive relief . . . if
unaccompanied by any continuing, present adverse effects.’” (alterations in original)
(quoting O’Shea v. Littleton, 414 U.S. 488, 495-96 (1974))).
In their prayer for relief, the Browns requested only a declaratory judgment and an
injunction, plus attorney fees and costs. They did not ask for damages. The complaint’s
“Nature of the Action” section likewise asked for declaratory and injunctive relief, but
not damages. And paragraph 14 of the complaint asserted, without any mention of
- -29
damages, that jurisdiction exists under 28 U.S.C. § 1343(a)(4) “because this action seeks
equitable relief under 42 U.S.C. § 1983.” App., Vol. 1 at 19.19 Because the complaint
19
Based on the residual clause in the complaint’s prayer for relief—which asks for
“such other relief as [the district court] may deem just and proper”—the district court
concluded the Browns had requested money damages. It relied on Frazier v. Simmons,
254 F.3d 1247 (10th Cir. 2001), where we held the plaintiff could seek injunctive relief
because (1) his complaint requested “such other relief as the Court deems just and
equitable,” and (2) “[i]n the pretrial order, the district court list[ed], as an issue of law,
‘[t]he nature and extent of any equitable relief’ to which Mr. Frazier may be entitled.”
254 F.3d at 1251, 1255 (emphasis added) (last brackets in original). Analogizing to
Frazier, the district court held the “just and proper” language in the Browns’ complaint,
plus its reference to various past injuries they allegedly suffered as a result of Mr.
Buhman’s conduct, were sufficient to plead damages. We think this analogy is too much
of a stretch.
We have been careful to limit Frazier to its facts—in particular, the complaint’s
reference to such other relief as the court deemed “just and equitable.” See Guiden v.
Morrow, 92 F. App’x 663, 665-66 (10th Cir. 2004) (unpublished) (distinguishing
Frazier); Romero v. City & Cty. of Denver Dep’t of Soc. Servs., 57 F. App’x 835, 838
(10th Cir. 2003) (unpublished) (same). Here, nothing in the prayer for relief’s residual
clause indicated a request for damages. “Just” and “proper” do not refer to monetary
relief in the same way “equitable” can refer to injunctive relief. In addition, in Frazier
we were “guide[d]” by an Eighth Circuit case that read similar language broadly because
the plaintiff there had sued the defendant in his official capacity and so his “relief
need[ed] to be in [injunctive] form to be effective.” See id. at 1254-55 (quoting Andrus v.
Arkansas, 197 F.3d 953, 956 (8th Cir. 1999)). As explained in footnote 10, supra, by
suing the Defendants only in their official capacities, the Browns may obtain only
injunctive relief, not damages, for their § 1983 claims. The logic of Andrus therefore
precludes reading the Browns’ complaint to include a request for damages, as relief
sought against Mr. Buhman in his official capacity would be effective only in injunctive
form. Accord Emory v. United Air Lines, Inc., 720 F.3d 915, 921 n.10 (D.C. Cir. 2013)
(“While it is true that Fed. R. Civ. P. 54(c) allows a court to grant relief not specifically
sought, we cannot save [the plaintiffs’] claim by reading the complaint’s boilerplate
prayer for ‘such other relief as [the Court] may deem just and proper’ as a request for
monetary damages.” (quotation omitted) (first brackets added)).
In any event, the Browns waived any request for damages before entry of the final
judgment from which Mr. Buhman appeals. And the Browns have not renewed any
request for damages on appeal. We therefore do not consider retrospective relief when
assessing mootness.
- -30
did not request damages, mootness depends on whether, following Mr. Buhman’s
announcement of the UCAO Policy, the district court had Article III jurisdiction to award
prospective relief to the Browns. We conclude it did not.
b. The Browns Do Not Face a Credible Threat of Prosecution
i. There Is No Reasonable Expectation that Mr. Buhman Will Violate the
UCAO Policy
Mr. Buhman’s May 2012 declaration unveiled the UCAO Policy, under which the
UCAO will prosecute only those who (1) induce a partner to marry through
misrepresentation or (2) are suspected of committing a collateral crime such as fraud or
abuse. Nothing in the record suggests the Browns fit, or in the future may fit, into either
category. Indeed, Mr. Buhman affirmed in his declaration that the UCAO had
“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 the date of this declaration.”
App., Vol. 2 at 329. The district court found it undisputed that the UCAO “ha[d] found
no evidence of any crime by the Browns.” Brown, 947 F. Supp. 2d at 1179. And Mr.
Buhman declared that his office had decided not to file charges against the Browns.
Mr. Buhman further declared under penalty of perjury that the Browns will not be
prosecuted unless they engage in criminal conduct beyond that proscribed by the Statute.
To find this “voluntary cessation is a sham for continuing possibly unlawful conduct,”
Rio Grande Silvery Minnow, 601 F.3d at 1118 (quotation omitted), we would have to
conclude the highest-ranking law enforcement official in Utah County had engaged in
deliberate misrepresentation to the court.
- -31
We see no basis for this conclusion. Close scrutiny of the relevant facts does not
suggest Mr. Buhman is attempting to deceive the court. See Am. Civil Liberties Union of
Mass. v. U.S. Conference of Catholic Bishops, 705 F.3d 44, 56 (1st Cir. 2013) (“We
understand [the voluntary cessation] exception to mootness to be highly sensitive to the
facts of a given case.”).
Mr. Buhman declared that during his tenure as County Attorney, the UCAO had
never before received a police report alleging violations of the Statute unconnected to a
collateral crime such as fraud or abuse. That suggests why the UCAO in 2010 had no
formal policy regarding polygamy prosecutions and why “no one in the office had any
recollection of the Utah County Attorney’s Office ever prosecuting anyone for the
practice of bigamy except, however, for the occasional bigamy case for marriage fraud or
for failure to obtain a divorce prior to remarrying.” App., Vol. 2 at 328.20
Even assuming the UCAO Policy was a reaction to the Browns’ suit, that does not
necessarily make it suspect. A government official’s decision to adopt a policy in the
context of litigation may actually make it more likely the policy will be followed,
especially with respect to the plaintiffs in that particular case. See Rosebrock v. Mathis,
745 F.3d 963, 972 (9th Cir. 2014) (“[W]e have indicated that mootness is more likely if
. . . the case in question was the catalyst for the agency’s adoption of the new policy
20
According to Ms. Jex, during Mr. Buhman’s tenure the UCAO filed a bigamy
charge against one defendant for which her Internet search failed to reveal additional
charges. This is consistent with Mr. Buhman’s statement that the UCAO filed an
“occasional” bigamy charge against defendants who had committed marriage fraud or
failed to obtain a divorce before remarrying.
- -32
. . . .” (quotation and brackets omitted)); Fed’n of Advert. Indus. Representatives, Inc. v.
City of Chicago, 326 F.3d 924, 931 (7th Cir. 2003) (“[T]he City candidly admits that [a
recent court] decision persuaded it to repeal the ordinance because of the risk of losing in
the litigation. We find that the City’s actions over the course of this litigation do not give
rise to an expectation that it will reenact the challenged ordinance.”).
We see no basis to question Mr. Buhman’s bona fides after he publicly adopted
under penalty of perjury and submitted to the federal court the same prosecution policy
that the chief law enforcement officer of the state had previously adopted. The risk that
Mr. Buhman will revoke or ignore the UCAO Policy under these circumstances is
minimal at best, and certainly not enough to sustain a live case or controversy. See
Moore v. Thieret, 862 F.2d 148, 150 (7th Cir. 1988) (“If the likelihood [of recurrence] is
small (it is never zero), the case is moot.”).
Nothing in the record suggests Mr. Buhman has attempted “to evade judicial
review, or to defeat a judgment, by temporarily altering questionable behavior.” City
News & Novelty, Inc., 531 U.S. at 284 n.1 (emphasis added). Instead, the record shows
the UCAO has adopted, and intends to abide by, a policy under which the Browns face no
threat of prosecution. Any prospective relief the district court might have awarded in the
face of Mr. Buhman’s commitment would therefore have virtually no effect “in the real
world.” Wyoming, 414 F.3d at 1212. Mr. Buhman’s declaration deprived the parties of a
“concrete interest,” even a small one, “in the outcome of th[is] litigation.” Chafin, 133 S.
Ct. at 1023.
- -33
If Mr. Buhman had announced only that his office had decided not to prosecute
the Browns, the question of mootness would be closer. But he did much more than that.
First, he announced an office policy that would prevent prosecution of the Browns and
others similarly situated in the future. Second, the UCAO Policy is essentially the same
as the AG Policy, which the district court considered sufficient to deny the Browns
standing to sue the Governor and the Attorney General. Third, the UCAO Policy and the
decision not to prosecute the Browns are contained in a declaration that was signed under
penalty of perjury and submitted to the federal district court. Fourth, violation of the
declaration would expose Mr. Buhman to prosecution for perjury or contempt. See 18
U.S.C. § 1621(2) (providing that “[w]hoever . . . in any declaration . . . under penalty of
perjury . . . willfully subscribes as true any material matter which he does not believe to
be true . . . is guilty of perjury”); 28 U.S.C. § 1746(2) (permitting a declaration made
under penalty of perjury to substitute for a sworn declaration, oath, or affidavit); 18
U.S.C. § 401(2) (empowering a federal court to “punish by fine or imprisonment, or both,
at its discretion, such contempt of its authority, and none other, as . . . [m]isbehavior of
any of its officers in their official transactions”). Under these circumstances, the Browns
face no credible threat of prosecution from the Utah County Attorney.21
21
In the absence of a credible threat of prosecution, any allegation of a subjective
chilling effect on the exercise of First Amendment rights would not be sufficient to
overcome mootness. See Initiative & Referendum Inst. v. Walker, 450 F.3d 1082, 1088-
89 (10th Cir. 2006) (en banc).
- -34
ii. The Browns’ Move to Nevada Supports Finding Mootness
This case is moot for an additional reason: the record suggests Mr. Buhman lacks
authority under Utah law to prosecute the Browns because they moved to Nevada.
The Browns left Utah for Nevada in January 2011. According to an October 2011
declaration from Kody Brown, the Browns “travel[ed] back and forth to Utah to
participate in religious and family activities.” App., Vol. 1 at 106. In another October
2011 declaration, Janelle Brown said that if the Statute were struck down, the Browns
“would feel free to finally return to Utah and would certainly resume [their] open
participation in [their] religious community.” Id. at 114. But Mr. Brown subsequently
told the district court, in a July 2012 declaration, that “[w]e have decided to stay in
Nevada in the foreseeable future to avoid uprooting our children again and subjecting
them to the continued public recriminations made under the Utah law.” App., Vol. 2 at
487. The Browns have “continued ties to [Utah], including family and religious
connections,” Mr. Brown said, but “[we] have settled . . . in Nevada where our children
now go to school and where we are in the process of finalizing the purchase of new
homes.” Id. These facts make it difficult to conclude the Browns face a credible threat
of prosecution for past or future conduct even if Mr. Buhman had not adopted the UCAO
Policy.22
22
After oral argument, the Browns submitted a supplemental filing identifying the
portions of the record in which they “indicated a desire or intention to return to Utah if
the threat of prosecution were negated.” Doc. 10337144 at 2. The Browns cite to the
complaint, Janelle Brown’s and Kody Brown’s declarations, and the district court’s
February 3, 2012 order granting in part Defendants’ motion to dismiss for lack of
Continued . . .
- -35
First, as to the Browns’ past conduct, Utah law provides “a prosecution for . . . a
felony . . . shall be commenced within four years after it is committed.” Utah Code Ann.
§ 76-1-302(1)(a); see also id. § 76-7-101(2) (defining bigamy as a third-degree felony).
The Browns have not lived in Utah for more than five years, and their post-2011 conduct
in Nevada cannot subject them to liability in Utah. See Nevares v. M.L.S., 345 P.3d 719,
727 (Utah 2015) (“[U]nless a statute gives a clear indication of an extraterritorial
application, it has none.” (quotation omitted)). The record does not reveal whether the
Browns have traveled to Utah in the last four years, or whether they “purported to marry”
or “cohabited” there if they did. Nothing in the record indicates the Browns have
violated the Statute in Utah within the four-year limitations period. It is therefore
speculative at best that Mr. Buhman could prosecute the Browns for past conduct.
Second, Mr. Buhman will likely also be unable to prosecute the Browns for future
conduct. In Dias, we held the plaintiffs lacked standing to challenge a Denver ordinance
banning pit bull ownership because “none of the plaintiffs [then] reside[d] in Denver and
none ha[d] alleged an intent to return.” 567 F.3d at 1176. They therefore did not face “a
credible threat of future prosecution under the Ordinance.” Id. The Browns appear to be
in the same position. Although their declarations do not entirely foreclose the possibility
standing. These documents do not suggest the Browns have any current intention to
return to Utah. Indeed, we rely on them—in particular the declarations—in concluding
the Browns have settled in Nevada for the “foreseeable future.” App., Vol. 2 at 487.
Moreover, as noted above, whether there is a credible threat to prosecute the Browns
under the Statute turns on an objective assessment of the record and not the Browns’
subjective perceptions.
- -36
that they will one day move back to Utah, they have announced their intention to remain
in Nevada for “the foreseeable future.”23 Unless and until the Browns return to Utah, Mr.
Buhman could not, based on the record, prosecute them even if he wished to do so. In
short, the principal attribute of the voluntary cessation exception to mootness—that the
defendant is free to resume his complained-of activity—is missing. See United States v.
W.T. Grant Co., 345 U.S. 629, 632 (1953) (“The defendant is free to return to his old
ways.”).
c. The Browns’ Arguments Against Mootness Are Not Persuasive
The Browns insist we should discredit Mr. Buhman’s announcement of the UCAO
Policy. They deny his “allegedly wrongful behavior could not reasonably be expected to
recur.” Already, 133 S. Ct. at 727 (quotation omitted).
We have addressed and rejected this argument in the preceding analysis. We
further address the Browns’ specific arguments: that (1) our analysis in Winsness
governs this appeal, (2) the possibility that Mr. Buhman’s successor could ignore the
UCAO Policy defeats mootness, (3) Mr. Buhman’s failure to renounce the Statute’s
constitutionality makes prosecution of the Browns more than speculative, and (4) Mr.
Buhman’s tactical motivation for adopting the UCAO Policy renders his pledge to abide
by that policy not credible. None of these arguments is persuasive.
23
This statement appears in Kody Brown’s July 2012 declaration. Janelle
Brown’s October 2011 declaration was somewhat more equivocal, indicating the Browns
would “feel free” to return to Utah if the Statute were invalidated. But Kody Brown’s
declaration, submitted nine months later, is fairly definitive.
- -37
i. The So-Called “Winsness Factors” Are Not Controlling Doctrine
First, the Browns contend we should evaluate mootness under the three “Winsness
factors” they say we have employed in similar cases. Suppl. Aplee. Br. at 17. The
district court “f[ound] these factors helpful and . . . rel[ied] on them” to analyze
mootness. App., Vol. 2 at 491.
In Winsness, the police cited Mr. Winsness for burning a symbol onto an
American flag and hanging it from his garage. Winsness, 433 F.3d at 729. An assistant
district attorney charged Mr. Winsness with flag abuse but dismissed the charges before
trial. Id. at 730. Mr. Winsness then filed a § 1983 suit in federal court, seeking to enjoin
enforcement of Utah’s flag-abuse statute, arguing it violated the First and Fourteenth
Amendments. Id. In an affidavit attached to his motion to dismiss, the Salt Lake County
District Attorney declared that the “‘enforceability of the Utah flag abuse statute [wa]s
doubtful’ in light of Texas v. Johnson[, 491 U.S. 397 (1989)]” and that “‘[u]nless and
until the constitutional doubts about the Utah statute are eliminated through a
constitutional amendment or a new decision of the United States Supreme Court, [he had]
no intention of prosecuting . . . anyone . . . under the statute.’” Id. at 731 (third brackets
in original). The assistant district attorney also declared that “‘[u]nless the law changes,
Mr. Winsness need have no fear of prosecution if he desecrates or alters a flag as a form
of political expression.’” Id. The district court granted the state’s motion to dismiss,
concluding the prosecutors’ affidavits eliminated any injury in fact. Id.
On appeal, we held Mr. Winsness lacked standing when he filed suit. Id. at 734.
Alternatively, we also said the affidavits mooted the case. Id. at 736. “The veracity of
- -38
the[] affidavits,” we said, “is bolstered both by the prosecutors’ actions, quickly
repudiating the citation against Mr. Winsness, and by Texas v. Johnson, which gives the
prosecutors good reason to avoid initiating potentially futile prosecutions.” Id.
One year later, in Mink, we considered a pre-enforcement constitutional challenge
to Colorado’s criminal libel statute. 482 F.3d at 1248-49. Our analysis of whether that
challenge was moot included a brief discussion of Winsness: “We found [the
prosecutors’] assurances established mootness since the government (1) had quickly
repudiated the action initially taken against Winsness, (2) its statements were made in
sworn affidavits, and (3) it based its decision on controlling Supreme Court precedent,
making future prosecutions unlikely.” Id. at 1256. We concluded these “Winsness
factor[s]” also “cut against” finding a live case or controversy in Mr. Mink’s case. Id. at
1256-57.
The Browns argue we should analyze mootness in pre-enforcement cases by
weighing the “Winsness factors.” As an initial matter, Winsness is factually
distinguishable. Mr. Winsness, unlike the Browns, was actually charged under the statute
he sought to challenge, making his injury substantially more concrete than the Browns’.
Moreover, Winsness did not purport to state a definitive test that would govern in
every case. Rather, in explaining why “the threat of prosecution ha[d] been eliminated,”
we pointed to the prosecutors’ affidavits and remarked that the veracity of those
affidavits was “bolstered” by the three factors we later identified in Mink. Winsness, 433
F.3d at 736. The “Winsness factors” described some evidence supporting the
prosecutors’ credibility, not a doctrinal test. Although our analysis in Mink drew upon
- -39
these factors, we never held or even suggested they should control in future cases. And
neither Winsness nor Mink foreclosed other factors from “bolstering” the veracity of a
policy not to prosecute.
Winsness represents a fact-specific application of the general rule that voluntary
cessation moots a case when “the allegedly wrongful behavior c[an]not reasonably be
expected to recur.” Already, 133 S. Ct. at 727 (quotation omitted). The district court in
this case erred when it limited its analysis to weighing the “Winsness factors” and ignored
the broader lesson of Winsness and Mink: that evidence supporting the veracity of the
decision and the policy not to prosecute is important to the mootness analysis. That
evidence need not be limited to the “Winsness factors.”
ii. The Possibility that a Future County Attorney May Change the UCAO
Policy Does Not Defeat Mootness
Second, the Browns argue they are not free from the threat of prosecution because
the UCAO Policy “does not and cannot ‘bind the future actions or policies of successor
Utah County attorneys.’” Suppl. Aplee. Br. at 18 (quotation omitted). The district court
accepted this argument, basing its mootness holding in part on its belief that the UCAO
Policy was simply “an exercise of prosecutorial discretion that could easily be reversed in
the future by a successor Utah County Attorney.” App., Vol. 2 at 496.24
24
This concern did not trouble the district court when it dismissed the Governor
and the Attorney General from this case based on the AG Policy, which also cannot bind
successive attorneys general.
- -40
To argue that a county attorney cannot bind future county attorneys to his non-
prosecution policy is unremarkable and unpersuasive. Of course a future county attorney
could change the UCAO Policy, but that possibility does not breathe life into an
otherwise moot case. If it did, federal courts would be free to exercise judicial review of
any rarely used state statute based on the hypothetical that some unknown and yet-to-be-
elected local prosecutor someday may flout or change office policy and decide to enforce
it. We are not aware of any Article III basis that would permit federal courts to do this.
For voluntary cessation to moot a case, we must be convinced that “the allegedly
wrongful behavior could not reasonably be expected to recur,” Already, 133 S. Ct. at 727
(emphasis added) (quotation omitted), not that there is no possibility of future
enforcement. The latter showing would likely be impossible in most cases. See Rio
Grande Silvery Minnow, 601 F.3d at 1117-18 (“We will not require some physical or
logical impossibility that the challenged policy will be reenacted absent evidence that the
voluntary cessation is a sham for continuing possibly unlawful conduct.” (quotation
omitted)); Mink, 482 F.3d at 1255 (“[W]e have held the possibility of future enforcement
need not be reduced to zero to defeat standing. It is not necessary for defendants to refute
and eliminate all possible risk that the statute might be enforced to demonstrate a lack of
a case or controversy.” (quotations and brackets omitted)); Comm. for First Amendment
v. Campbell, 962 F.2d 1517, 1525 (10th Cir. 1992) (“Defendants’ burden concerning the
unlikelihood of recurrence is a heavy one, but it by no means requires proof approaching
metaphysical certitude.”); see also Clarke v. United States, 915 F.2d 699, 702 (D.C. Cir.
1990) (“Of course we cannot say that the risk of an attempted prosecution is zero. . . . But
- -41
zero risk is not the test.”); Moore, 862 F.2d at 150 (“If the likelihood [of recurrence] is
small (it is never zero), the case is moot.”).
One of the plaintiffs in Winsness made a similar argument. He asserted the district
court should retain jurisdiction over his § 1983 suit because “[the district attorney’s]
political successors might repudiate [his] policy, or [the plaintiff] might be arrested
elsewhere in the state, or police officers who have not been informed of [the district
attorney’s] policy and have not been instructed not to enforce the statute might do so.”
433 F.3d at 733. We rejected this contention, explaining that “it is not necessary for
defendants in such cases to refute and eliminate all possible risk that the statute might be
enforced.” Id. The same logic applies in this case.
Although Mr. Buhman cannot control his successors and extend his non-
prosecution pledge in perpetuity, there is no reasonable expectation the Browns will face
prosecution. The small number of prior UCAO prosecutions—three in a ten-year period,
at least two of which also involved charges for collateral crimes—reinforces this
conclusion. The UCAO Policy is consistent with, not a departure from, what was
apparently a longstanding de facto policy of non-prosecution. And it is consistent with
the AG Policy. As a result, the prospect that a future Utah County Attorney will begin
prosecuting defendants like the Browns is speculative and remote.
The district court erred by relying on Mr. Buhman’s inability to bind future county
attorneys.
- -42
iii. Mr. Buhman’s Failure to Renounce the Statute’s Constitutionality Does
Not Defeat Mootness
Third, the Browns insist—and the district court agreed—that we should not take
the UCAO Policy at face value because Mr. Buhman “continues to maintain the
[Statute’s] constitutionality and enforceability.” Suppl. Aplee. Br. at 18. This view,
which merely repackages part of the Browns’ argument in favor of the “Winsness
factors,” holds that a prosecutor’s promise not to bring charges is credible only if he
believes enforcement would be unconstitutional. We have never adopted this position,
and we decline to do so here.
In Winsness and Mink, we credited the prosecutors’ acknowledgement that the
charging statutes were unconstitutional as giving them “good reason to avoid initiating
potentially futile prosecutions.” Winsness, 433 F.3d at 736; Mink, 482 F.3d at 1257; see
also Wis. Right to Life, Inc. v. Schober, 366 F.3d 485, 492 (7th Cir. 2004) (“[W]e . . .
hold[] that a case is moot when a state agency acknowledges that it will not enforce a
statute because it is plainly unconstitutional, in spite of the failure of the legislature to
remove the statute from the books.”). But contrary to the district court’s suggestion, we
gave no indication such an acknowledgement is especially probative, much less a
significant factor in holding a case moot.
A prosecutor’s belief a statute is constitutional does not provide much help in
determining the risk of future prosecution. Nor does it render unreliable his or her
statements to the court—signed under penalty of perjury—that he will not enforce it. See
Rio Grande Silvery Minnow, 601 F.3d at 1118 n.17 (“Although the failure of a
- -43
governmental agency to acknowledge the impropriety of its former, challenged course of
conduct certainly is not an irrelevant factor in the voluntary-cessation analysis, it is not
dispositive.”). Prosecutors can be committed to a non-prosecution policy for reasons
unrelated to a statute’s constitutionality. See Am. Civil Liberties Union of Mass., 705
F.3d at 55 n.9 (“It is not a purpose of the [voluntary cessation] doctrine to require an
admission from the defendant that the now ceased conduct was illegal. Mootness turns on
future threats, not upon penance.” (quotation omitted)).
Here, Mr. Buhman’s continued belief in the Statute’s constitutionality does not
show he will disregard the statements he made to the district court under penalty of
perjury.
iv. Mr. Buhman’s Motives for Announcing the UCAO Policy Do Not
Defeat Mootness
Finally, the Browns argue there remains a live controversy because Mr. Buhman
announced the UCAO Policy for tactical reasons to strip the district court of jurisdiction
over the Browns’ claims. Unlike the district court, we are not persuaded.
Mr. Buhman may have been motivated to institute the UCAO Policy to end the
Browns’ litigation. Nineteen months had passed between the UCAO’s receipt of the Lehi
Police Department’s report in October 2010 and Mr. Buhman’s second declaration in
May 2012. He submitted that declaration four months after the district court dismissed
Mr. Herbert and Mr. Shurtleff on the ground that the AG Policy—which is materially
identical to the UCAO Policy—deprived the Browns of standing to sue those defendants.
But even if the UCAO Policy was tactical, this motive alone does not defeat mootness.
- -44
The ultimate question is whether the UCAO Policy eliminates a credible threat of
prosecution.
The Browns point out that we have said “[v]oluntary cessation of offensive
conduct will only moot litigation if it is clear that the defendant has not changed course
simply to deprive the court of jurisdiction.” Ind, 801 F.3d at 1214 (brackets in original)
(quotation omitted). But this statement must be reconciled with the rule that the
existence of a live case or controversy depends on whether “the allegedly wrongful
behavior could . . . reasonably be expected to recur,” Already, 133 S. Ct. at 727
(quotation omitted)—not on whether a government official has acted out of tactical
motives. See Beta Upsilon Chi Upsilon Chapter at the Univ. of Fla. v. Machen, 586 F.3d
908, 915 (11th Cir. 2009) (“We are not concerned with [the defendant’s] motivation for
changing its registration policy, but only with whether a justiciable controversy exists.”).
A prosecutor’s motives for ceasing allegedly unlawful behavior may be relevant to
the credibility of his representation that the plaintiffs will not be prosecuted. When a
prosecutor drops charges merely to be rid of a bothersome federal lawsuit, there may be
reason to question whether the no-charge commitment is genuine. See McCormack v.
Herzog, 788 F.3d 1017, 1025 (9th Cir. 2015) (“A presumption of good faith . . . cannot
overcome a court’s wariness of applying mootness under protestations of repentance and
reform, especially when abandonment seems timed to anticipate suit, and there is
probability of resumption.” (emphasis added) (quotation omitted)). But if the allegedly
unlawful conduct cannot “reasonably be expected to recur,” it does not matter that the
prosecutor ruled out prosecution because he wished to prevent adjudication of the federal
- -45
claim on the merits. Either a live controversy exists, or it does not. Federal courts may
not exercise jurisdiction over a case simply because the defendant wished the suit to end
when ceasing his or her allegedly unlawful conduct.
* * * *
In sum, the Browns’ arguments that Buhman’s adoption of the UCAO Policy does
not moot this case—(1) we must apply the “Winsness factors,” (2) his successor could
change it, (3) he thinks the Statute is constitutional, and (4) he adopted it to end the
lawsuit—do not withstand scrutiny. The first point misreads the case law, the second is
speculative, the third is minimally relevant, and the fourth may actually assure
compliance with the UCAO Policy because any steps to reconsider would almost
certainly provoke a new lawsuit against him. Such steps also would damage Mr.
Buhman’s credibility as a public official and might even expose him to prosecution for
perjury and contempt of federal court for violating his declaration. Assessing the veracity
of the UCAO Policy must account for all relevant factors, which together show no
credible threat of prosecution of the Browns.
Mr. Buhman’s May 2012 declaration is credible. He declared under penalty of
perjury that the Browns will not be prosecuted absent evidence of a collateral crime. And
the dearth of prior UCAO prosecutions under the Statute—at least for bare violations
unconnected to collateral crimes—indicates his position is not mere posturing. See Susan
B. Anthony List, 134 S. Ct. at 2345 (“We have observed that past enforcement against the
same conduct is good evidence that the threat of enforcement is not chimerical.”
(quotations omitted)); D.L.S. v. Utah, 374 F.3d 971, 975 (10th Cir. 2004) (“[A] plaintiff
- -46
cannot show a real threat of prosecution in the face of assurances of non-prosecution
from the government merely by pointing to a single past prosecution of a different person
for different conduct.”).25
This case lacks “clear showings of reluctant submission [by Mr. Buhman] and a
desire to return to the old ways.” Gessler, 770 F.3d at 908 (emphasis in original)
(quotation omitted). On the contrary, the record shows Mr. Buhman intends to follow the
terms of the UCAO Policy, including and especially with respect to the Browns. Fear
that Mr. Buhman intends to prosecute the Browns in the future would not be “objectively
justified.” Winsness, 433 F.3d at 732. Accordingly, “the issues presented are no longer
‘live’” and “the parties lack a legally cognizable interest in the outcome” of this case.
Chafin, 133 S. Ct. at 1023 (quotation omitted); see Tandy v. City of Wichita, 380 F.3d
1277, 1291 (10th Cir. 2004) (“Nothing in the record suggests that Wichita Transit intends
to resume its discontinued policies if this case is dismissed as moot. Under such
25
In addition, the district court questioned the sincerity of Mr. Buhman’s
declaration because “[t]here is no evidence that the notice of the change in policy was
given to the public generally or distributed within the county attorney’s office.” App.,
Vol. 2 at 492; see also id. at 494 (“The failure to give public notice of the change in
policy, however, adds to the concern that the action was taken primarily for purposes of
this litigation.”). We fail to see the relevance of this fact. Prosecutors do not generally
advertise their enforcement policies to the public, and Mr. Buhman’s failure to do so in
this case does not throw his credibility into doubt. Moreover, by filing his declaration
and the UCAO Policy with the district court, the Policy became a public document.
The district court’s concern that Mr. Buhman has “not repudiate[d] [sic] that
punishment may be enhanced if a defendant were convicted under the [Statute] and
another offense” is similarly misplaced. Id. at 494. The record indicates the UCAO has
no evidence that the Browns have committed other crimes. Accordingly, the hypothetical
possibility that they might one day be prosecuted for a collateral crime does not bear on
(1) the credibility of Mr. Buhman’s declaration or (2) the existence of a live controversy.
- -47
circumstances, it is absolutely clear the allegedly wrongful behavior could not reasonably
be expected to recur.” (quotation omitted)).
Mr. Buhman’s May 2012 declaration rendered the Browns’ case constitutionally
moot.26
2. Vacatur
“If the district court lacked jurisdiction, we have jurisdiction on appeal, not of the
merits but merely for the purpose of correcting the error of the lower court in entertaining
the suit.” Rio Grande Silvery Minnow, 601 F.3d at 1128 n.19 (quotation omitted).
“When a case becomes moot prior to final adjudication, the district court was without
jurisdiction to enter the judgment, and vacatur and dismissal of the judgment is
automatic.” Id. (quotation, emphasis, and brackets omitted).
“It is fundamental, of course, that a dismissal for lack of jurisdiction is not an
adjudication of the merits and therefore dismissal . . . must be without prejudice.”
Abernathy v. Wandes, 713 F.3d 538, 558 (10th Cir. 2013) (quoting Martinez v.
Richardson, 472 F.2d 1121, 1126 (10th Cir. 1973)).
The proper disposition of this appeal, therefore, is to remand to the district court
with instructions to vacate its judgment in favor of the Browns and dismiss this suit
without prejudice.
26
Because the district court lacked Article III jurisdiction to resolve the Browns’
claims, we need not decide whether it abused its discretion by finding those claims were
not prudentially moot. See Jordan, 654 F.3d at 1023 n.14 (“[W]e ordinarily review a
district court’s prudential mootness determination for an abuse of discretion.” (emphasis
omitted)).
- -48
IV. CONCLUSION
Assuming the Browns had standing to file suit in July 2011, this case became
moot when Mr. Buhman announced the UCAO Policy in May 2012. That policy
eliminated any credible threat that the Browns will be prosecuted. We therefore remand
to the district court with instructions to vacate its judgment and dismiss this suit without
prejudice.
- -49