Brown v. Buhman

FILED

United States Court of Appeals

PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS May 13, 2016

Elisabeth A. Shumaker

FOR THE TENTH CIRCUIT Clerk of Court

_________________________________

KODY BROWN; MERI BROWN;

JANELLE BROWN; CHRISTINE

BROWN; ROBYN SULLIVAN,

Plaintiffs - Appellees,

v. No. 14-4117

(D.C. No. 2:11-CV-00652-CW)

JEFFREY R. BUHMAN, (D. Utah)

Defendant – Appellant.

-----------------------------------------

EAGLE FORUM EDUCATION &

LEGAL DEFENSE FUND; SOUND

CHOICES COALITION, INC.; CATO

INSTITUTE,

Amici Curiae.

_________________________________

ORDER

_________________________________

Before MATHESON, BALDOCK, and MORITZ, Circuit Judges.

_________________________________

This matter is before the court on the appellees’ Petition for Rehearing En Banc.

Upon consideration, any implicit request for panel rehearing is denied by the original

panel members. For clarification, however, the panel has decided, sua sponte, to amend

the original decision. A copy of the amended decision is attached to this order, and the

clerk is directed to reissue the opinion nunc pro tunc to the original filing date.

The request for en banc rehearing and the amended opinion were also transmitted

to all of the judges of the court who are in regular active service and who are not recused.

As no member of the original panel or the en banc court requested that a poll be called,

the petition for en banc review is denied.

Entered for the Court

ELISABETH A. SHUMAKER, Clerk

2

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

-2-

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.

-3-

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.

-4-

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

-5-

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

-6-

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.”

-7-

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

-8-

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

-9-

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.

- 10 -

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.

- 11 -

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).

- 12 -

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).

- 13 -

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.

- 14 -

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 . . .

- 15 -

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).

- 16 -

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., 814 F.3d 1107,

1114 (10th Cir. 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).

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.

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 -

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

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

- 24 -

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

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

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

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

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 -

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

“We review issues of standing de novo, accepting as true all material allegations

of the complaint, and . . . construing the complaint in favor of the complaining party.”

Winsness, 433 F.3d at 732 (quotations and brackets omitted) (ellipsis in original). “We

review mootness de novo as a legal question.” United States v. Fisher, 805 F.3d 982, 989

(10th Cir. 2015). Mootness in this case turns on whether, following Mr. Buhman’s May

22, 2012 declaration, his allegedly unconstitutional conduct could “reasonably be

expected to recur,” which is “squarely a legal determination.” Sheely v. MRI Radiology

Network, P.A., 505 F.3d 1173, 1188 n.15 (11th Cir. 2007).

We have addressed the standard of review for mootness based on voluntary

cessation, stating that “courts must assess the likelihood that defendants will recommence

the challenged, allegedly offensive conduct.” Rio Grande Silvery Minnow, 601 F.3d at

- 27 -

1122. We referred to this assessment as a “factual inquir[y]” and said “[o]ur review of

this question is de novo.” Id. (quotation omitted).

As to mootness in this case, no evidentiary hearing was held, the parties did not

contest the facts in each other’s declarations, and the district court needed only to resolve

the legal question of mootness, not resolve disputed issues of fact relating to

justiciability. Whether our consideration of the underlying facts is plenary or deferential,

we conclude the Browns faced no credible threat of prosecution once Mr. Buhman

submitted his declaration announcing the UCAO Policy. At that point, their case became

moot.

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

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

- 28 -

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

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.

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.

- 29 -

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

damages, that jurisdiction exists under 28 U.S.C. § 1343(a)(4) “because this action seeks

- 30 -

equitable relief under 42 U.S.C. § 1983.” App., Vol. 1 at 19.19 Because the complaint

did not request damages, mootness depends on whether, following Mr. Buhman’s

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. App., Vol. 3 at 654, 666-68. And the

Browns have not renewed any request for damages on appeal. We therefore do not

consider retrospective relief when assessing mootness.

- 31 -

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.

- 32 -

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.

- 33 -

. . . .” (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.

- 34 -

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).

- 35 -

ii. The Browns’ Move to Nevada Supports Finding Mootness

Mr. Buhman’s May 12, 2012 declaration removed any credible threat of

prosecution and mooted this case while it was pending in district court. Our mootness

analysis could stop here. But apart from the foregoing, the Browns’ case also became

moot because their move to Nevada, their successive declarations, and the passage of

time eventually eliminated Mr. Buhman’s authority under Utah law to prosecute the

Browns.

The Browns left Utah for Nevada in January 2011. They alleged in their

complaint, filed in July 2011, that they could not “fully perform their religious practices

outside of Utah and must return to Utah to engage in certain religious practices.” App.,

Vol. 1 at 22. They “expect[ed] to move back to Utah.” Id. 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.” Id. 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. The district court wrote in its February 3, 2012

order on Defendants’ motion to dismiss that “[o]nce the threat of prosecution is lifted, . . .

[the Browns] expect to relocate to the State of Utah.” App., Vol. 2 at 247.

But circumstances changed. Mr. Brown subsequently told the district court in a

July 2012 declaration—submitted two months after Mr. Buhman stated under oath that

the UCAO had closed its case against the Browns—that “[w]e have decided to stay in

Nevada in the foreseeable future to avoid uprooting our children again and subjecting

- 36 -

them to the continued public recriminations made under the Utah law.” Id. 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. Mr.

Brown’s declaration said “[t]he decision not to return to Utah was a difficult one for [his]

family.” Id. There is nothing further in the record that suggests the Browns have

reversed this decision. As the years have passed, these developments have made it

increasingly difficult to conclude the Browns now face a credible threat of prosecution

for past or future conduct even if Mr. Buhman had not adopted the UCAO Policy.22

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

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

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.

- 37 -

application, it has none.” (quotation omitted)). The record does not reveal whether the

Browns have traveled to Utah since October 2011, when Kody Brown signed his first

declaration, 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 the Browns may wish to move back to Utah some day,

and although their declarations do not entirely foreclose the possibility that they will do

so, 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

23

This statement appears in Kody Brown’s July 2012 declaration. Janelle

Brown’s October 2011 declaration was somewhat equivocal on this point, 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 more definitive. See Lujan, 504

U.S. at 564 (holding affidavits expressing intent to return to Egypt and Sri Lanka to

observe threatened species were “simply not enough” to confer standing—“[s]uch ‘some

day’ intentions—without any description of concrete plans, or indeed even any

specification of when the some day will be—do not support a finding of the ‘actual or

imminent’ injury that our cases require” (emphasis in original)).

- 38 -

the law and the record, prosecute them even if he wished to do so. For this independent

reason, the Browns face no credible threat of prosecution.

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.

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

- 39 -

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

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,

- 40 -

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

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

- 41 -

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

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

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.

- 42 -

(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

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

- 43 -

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.

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.

- 44 -

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

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)).

- 45 -

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.

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

- 46 -

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

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

- 47 -

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

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

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

Continued . . .

- 48 -

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

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

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.

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

Continued . . .

- 49 -

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.27

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)).

27

As explained above, the Browns’ move to Nevada eventually also rendered this

case moot. Whether or not this basis for mootness took effect before commencement of

this appeal, Mr. Buhman’s implementation of the UCAO Policy was independently

sufficient to extinguish any live case or controversy as of May 2012, a year and a half

before the district court granted summary judgment to the Browns and over two years

before entry of final judgment. Because this case became moot “prior to final

adjudication,” Rio Grande Silvery Minnow, 601 F.3d at 1128 n.19, vacatur and dismissal

without prejudice are appropriate.

- 50 -

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.

- 51 -