Brown v. Buhman
822 F.3d 1151, 2016 WL 2848510 (2016)
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Rule of Law:
A constitutional challenge to a criminal statute becomes moot when a prosecutor formally adopts a policy of non-enforcement against the plaintiffs and announces it in a sworn declaration, thereby eliminating any credible threat of prosecution.
Facts:
- Kody Brown is legally married to Meri Brown and maintains 'spiritual marriages' with Janelle Brown, Christine Brown, and Robyn Sullivan, forming a 'plural family' consistent with their religious beliefs.
- In 2010, the Brown family became the subject of a reality television show, 'Sister Wives,' which explored their polygamist lifestyle.
- Following the show's premiere, the Lehi Police Department in Utah publicly announced an investigation into the Browns for potential violations of the state's bigamy statute.
- The police forwarded the results of their investigation to the Utah County Attorney's Office (UCAO), which then opened a case file on the Browns.
- In January 2011, fearing criminal prosecution, the Brown family moved from Utah to Nevada.
Procedural Posture:
- The Browns filed a lawsuit in the U.S. District Court for the District of Utah against the Utah County Attorney (Jeffrey Buhman), the Governor, and the State Attorney General, seeking to enjoin enforcement of the state's bigamy statute.
- Defendants filed a motion to dismiss for lack of standing.
- The district court dismissed the claims against the Governor and Attorney General but denied the motion as to County Attorney Buhman, finding a credible threat of prosecution existed.
- Buhman then filed a motion to dismiss for mootness after adopting a formal office policy not to prosecute bigamy absent collateral crimes.
- The district court denied the motion to dismiss for mootness.
- On cross-motions for summary judgment, the district court granted judgment for the Browns, finding the statute's 'cohabitation' prong unconstitutional.
- Buhman, as the appellant, appealed the district court's judgment to the U.S. Court of Appeals for the Tenth Circuit; the Browns are the appellees.
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Issue:
Does a county attorney's adoption of a formal, sworn policy not to prosecute individuals for bigamy, absent collateral crimes, render a constitutional challenge to the bigamy statute moot, even if the policy was adopted after litigation began?
Opinions:
Majority - Matheson, J.
Yes, the county attorney's adoption of a formal non-prosecution policy renders the case moot. A case becomes moot when an intervening circumstance deprives the plaintiff of a personal stake in the outcome. Here, the Utah County Attorney, Jeffrey Buhman, submitted a sworn declaration adopting a formal office policy stating his office would only prosecute bigamy cases involving collateral crimes like fraud or abuse, which did not apply to the Browns. This declaration, which mirrored the state Attorney General's policy, eliminated any credible threat of prosecution against the Browns, thereby extinguishing the live case or controversy required for Article III jurisdiction. The court rejected the argument that this was merely a 'voluntary cessation' designed to evade review, finding Buhman's sworn commitment credible and that it was 'absolutely clear' the alleged wrongful behavior could not reasonably be expected to recur. The possibility that a future prosecutor might change the policy is too speculative to keep the controversy alive.
Analysis:
This decision clarifies the application of the mootness doctrine, particularly the voluntary cessation exception, in the context of government enforcement policies. It establishes that a government official can effectively moot a constitutional challenge by making a credible, formal commitment—such as a sworn declaration—to cease the challenged enforcement activity, even if this change is a strategic response to the litigation itself. The ruling underscores the high, but not insurmountable, burden on the government to show that its change in conduct is genuine and lasting. This provides a significant tool for government defendants to terminate litigation over statutes they do not actively enforce, while potentially frustrating plaintiffs who seek a definitive ruling on a law's constitutionality.
