BRONSON v. SWENSEN No. 05-4161.
500 F.3d 1099 (2007)
J. BRONSON, G. Lee Cook, and D. Cook, Plaintiffs-Appellants, v. Sherrie SWENSEN, Salt Lake County Clerk, Defendant-Appellee.
United States Court of Appeals, Tenth Circuit.
August 29, 2007.
Brian M. Barnard, Utah Legal Clinic, Salt Lake City, UT, for Plaintiffs-Appellants.
Mark Shurtleff, Utah Attorney General (Nancy L. Kemp, Assistant Utah Attorney General), Salt Lake City, UT, for Defendant-Appellee.
Before TACHA, Chief Judge, HARTZ and HOLMES, Circuit Judges.
HOLMES, Circuit Judge.
Plaintiffs-Appellants J. Bronson, G. Cook, and D. Cook ("plaintiffs") subscribe to the religious doctrine of polygamy. G. Cook is married to D. Cook. G. Cook and J. Bronson filed an application for a marriage license, and Defendant-Appellee Sherrie Swensen ("Swensen"), the Clerk for Salt Lake County, Utah, refused to issue the marriage license. Plaintiffs subsequently brought a civil rights action under 42 U.S.C. § 1983, alleging that Swensen's refusal to issue the marriage license violated their associational, substantive due process, and free exercise rights under the First and Fourteenth Amendments to the United States Constitution.
The district court held that plaintiffs possessed standing to challenge the constitutionality of Utah's civil and criminal prohibitions against the practice of polygamy, as reflected in Utah Code Ann. § 76-7-101, § 3 of the Utah Enabling Act, and § 1 of Article III of the Utah Constitution. Reaching the merits of plaintiffs' claims, the district court applied controlling Supreme Court and Tenth Circuit precedent and found the absence of a constitutional violation. Consequently, the district court granted summary judgment to Swensen on all of plaintiffs' claims.
In 1894, Congress passed the Utah Enabling Act, which demanded as a condition of statehood that Utah enact an "irrevocable" ordinance preserving the security of religious beliefs, but forever prohibiting "polygamous or plural marriages." See Act of July 16, 1894, ch. 138, § 3, 28 Stat. 107, 108 ("That perfect toleration of religious sentiment shall be secured, and that no inhabitant of said State shall ever be molested in person or property on account of his or her mode of religious worship: Provided, That polygamous or plural marriages are forever prohibited." (emphasis in original)). Utah complied with this requirement, and, in 1895, a nearly identical version of this proscription was included in Article III of Utah's Constitution:
Utah Const. art. III, § 1.
The constitutional prohibition of "polygamous or plural marriages" has spawned civil and criminal legislation. See State v. Holm,
Utah Code Ann. § 76-7-101.
The Supreme Court of Utah has interpreted the term "marry" in § 76-7-101 as relating to both "legally recognized marriages and those that are non state-sanctioned." Holm, 137 P.3d at 734. It also has interpreted the word "cohabit" in § 76-7-101 in its colloquial sense, as meaning "to dwell together as, or as if,
With respect to civil legislation, § 30-1-2 of the Utah Code declares "void" and "prohibited" any marriage involving a person with a "husband or wife living, from whom the person marrying has not been divorced." Utah Code Ann. § 30-1-2. A county clerk is barred from issuing a marriage license for a "prohibited" marriage. Id. § 30-1-16. In fact, Utah makes it a crime for a clerk or deputy clerk to "knowingly issue a license for any prohibited marriage." Id. § 30-1-16. An offender is subject to "confinement in the state prison for a term not exceeding two years" and/or to a "fine in any sum not exceeding $1,000." Id. No marriage may be solemnized without a license issued by the county clerk. Id. § 30-1-7.
Plaintiffs subscribe to the religious doctrine of plural marriages, which they define as a "man having more than one wife," similar to that practiced by the Church of Jesus Christ of Latter-Day Saints in Utah prior to 1890. App. at 19, 33, 46-47.
Plaintiffs, G. Cook and J. Bronson, applied for a marriage license and paid the $50.00 filing fee to a deputy clerk at the Marriage Division of the Salt Lake County Clerk's Office in Salt Lake City, Utah. The application indicated that G. Cook was already married to D. Cook. In addition, G. Cook orally informed two deputy clerks that he desired to legally marry a second wife and that D. Cook consented to this marriage. Swensen, the elected Clerk of Salt Lake County, instructed the two deputy clerks to deny the application and to inform plaintiffs that plural marriage in Utah is illegal. The Clerk's Office refunded the $50.00 filing fee.
Plaintiffs filed suit under 42 U.S.C. § 1983 against Swensen and the two deputy clerks, alleging that they violated plaintiffs' federal constitutional rights, including their rights to the free exercise of religion, to intimate expression and association, and to privacy. Plaintiffs sought nominal damages, a declaratory judgment, and injunctive relief.
Subsequently, the parties agreed to seek the dismissal of the two deputy clerks. They also stipulated that Swensen acted under color of state law in denying the application. Plaintiffs moved for summary judgment. And, in response, Swensen filed a cross-motion for summary judgment.
After officially dismissing the deputy clerks from the action, the district court entered summary judgment in favor of Swensen. The district court determined that plaintiffs had standing to challenge the constitutionality of § 1 of Article III of the Utah Constitution, § 3 of the Utah Enabling Act, and § 76-7-101. The district court then applied controlling Supreme Court precedent, Reynolds v. United States,
Plaintiffs filed a motion asking the district court to reconsider its decision. The district court denied that motion. And plaintiffs filed a timely notice of appeal.
Plaintiffs appeal the district court's grant of summary judgment to Swensen on their § 1983 claims, arguing that the district court erred in failing to find the existence of a constitutional violation. We hold that plaintiffs have forfeited their claims contesting the constitutionality of Utah's civil prohibition of polygamy. We further hold that plaintiffs lack standing to pursue their claims against Swensen based upon the alleged unconstitutionality of Utah's criminal prohibition of polygamy.
An appellant's opening brief must identify "appellant's contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies." Fed. R.App. P. 28(a)(9)(a). Consistent with this requirement, we routinely have declined to consider arguments that are not raised, or are inadequately presented, in an appellant's opening brief. See Exum v. United States Olympic Comm.,
We conclude that plaintiffs' opening brief does not adequately raise and pursue an argument as to the unconstitutionality of Utah's civil prohibition of polygamous marriages. For instance, plaintiffs' statement of issues on appeal, while referencing § 3 of the Utah Enabling Act and § 1 of Article III of the Utah Constitution, does not expressly seek to invalidate Utah's civil statutes prohibiting polygamous marriages. See Anderson, 422 F.3d at 1174 (issue not raised in statement of issues in initial brief is waived on appeal). Instead, it refers to the Enabling Act and Article III in connection with plaintiffs' attack on the constitutionality of Utah's criminal bigamy statute, § 76-7-101.
Furthermore, plaintiffs' opening brief does not attempt to explain why Utah's refusal to give civil recognition to polygamous marriages should be held to contravene their constitutional rights. Instead, plaintiffs' opening brief is dedicated entirely to establishing the invalidity of Utah's criminal prohibition of polygamy — that is, to "seek[ing] an end to the criminalization
In essence, plaintiffs' opening brief simply attempts to use Swensen's denial of a marriage license as a vehicle to challenge the constitutionality of Utah's criminal prohibition of polygamy. We therefore conclude that plaintiffs have forfeited any argument that Utah's refusal to give civil recognition to polygamous marriages is unconstitutional.
Plaintiffs' substantive challenge to Utah's criminal prohibition of polygamy faces a litany of seemingly insurmountable precedential obstacles. Case law upholding the criminalization of polygamy from constitutional attack dates back at least to 1878, when in Reynolds v. United States,
Similarly, constitutional challenges to Utah's criminal statute outlawing polygamy, Utah Code § 76-7-101, have failed.
Despite this wealth of controlling and persuasive precedent, we conclude that the district court lacked subject matter jurisdiction to resolve plaintiffs' claims against Swensen based upon Utah's criminal prohibition of polygamy. We hold that these claims — the only claims at issue in this appeal — fail to present a justiciable "case" or "controversy" within the meaning of Article III of the United States Constitution.
This Court reviews de novo a district court's decision as to standing. See Aid for Women v. Foulston,
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc.,
Each plaintiff must have standing to seek each form of relief in each claim. See DaimlerChrysler Corp. v. Cuno, ___ U.S. ___, 126 S.Ct. 1854, 1867, 164 L.Ed.2d 589 (2006); Friends of the Earth, Inc., 528 U.S. at 185, 120 S.Ct. 693. Standing at the summary judgment stage "must be supported by specific evidentiary facts and not by mere allegations." Phelps v. Hamilton,
Without distinguishing between Utah's criminal prohibition of polygamy and its civil prohibition of polygamy, the district court concluded that plaintiffs had standing. Its analysis was predicated upon three points: (1) that plaintiffs' injury was not the threat of imminent prosecution, but, instead, the "denial of the legal right to practice polygamy," App. at 282-83; (2) that a causal nexus existed between this injury-in-fact and Swensen's denial of a marriage license in reliance upon Utah's prohibition of polygamy; and (3) that a favorable opinion would redress plaintiffs' injury, as the contested provisions would
We hold that plaintiffs have failed to meet their burden of demonstrating constitutional standing to seek prospective or retrospective relief based upon the alleged unconstitutionality of Utah's criminal prohibition of polygamy.
On appeal, plaintiffs press for prospective relief in the form of a declaratory judgment that, inter alia, the challenged criminal enactments-particularly, the provisions of § 76-7-101 — are unconstitutional. Plaintiffs' complaint also requests an injunction prohibiting the future enforcement of the criminal enactments. Under the facts of this case, both forms of prospective relief trigger the same standing analysis. See Tandy, 380 F.3d at 1284-89. Furthermore, we may perform this analysis collectively under the circumstances present here: each plaintiff asserts the same injury-in-fact, the "threat" of prosecution under § 76-7-101, based upon a shared intent to enter into a three-way polygamous relationship.
Plaintiffs argue on appeal that they possess standing to challenge Utah's criminal prohibition of polygamy due to their "fear of criminal prosecution," including the stigma of being branded as a law-breaker. Aplt. Br. at 14 (emphasis in original); see Aplt. Reply Br. at 2-3. A plaintiff challenging the "validity of a criminal statute under which he has not been prosecuted . . . must show a `real and immediate threat' of his future prosecution under that statute to satisfy the injury in fact requirement." D.L.S. v. Utah,
This requirement also has been characterized as a "credible" threat of prosecution, one that arises from an "objectively justified fear of real consequences." D.L.S., 374 F.3d at 975; see Initiative & Referendum Inst. v. Walker,
As suggested by this standard, a plaintiff need not risk actual prosecution before challenging an allegedly unconstitutional criminal statute. See, e.g., Ward v. Utah,
The "credible threat" test begs further inquiry into what constitutes the requisite degree of likelihood of enforcement to confer standing to bring a particular claim. See Seegars v. Gonzales,
At the "credible threat" pole lies pre-enforcement claims brought after the entity responsible for enforcing the challenged statute actually threatens a particular plaintiff with arrest or even prosecution. See Steffel v. Thompson,
These claims can be juxtaposed with those situated at the "no credible threat" end of the spectrum. There, the affirmative assurances of non-prosecution from a governmental actor responsible for enforcing the challenged statute prevents a "threat" of prosecution from maturing into a "credible" one, even when the plaintiff previously has been arrested under the statute. See Mink v. Suthers,
In addition, the credibility of a "threat" is diluted when a factual dissimilarity exists between the plaintiff's intended future conduct and the conduct that triggered any prior prosecutions under the challenged statute. See D.L.S., 374 F.3d at 975 (plaintiff lacks standing to bring civil rights suit challenging Utah's anti-sodomy statute because "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
Plaintiffs' § 1983 claims for prospective relief based upon Utah's criminal prohibition of polygamy lie closer to the "no credible threat" end of the injury-in-fact continuum. Plaintiffs were never charged, prosecuted, or directly threatened with prosecution under § 76-7-101. Moreover, the alleged credibility of plaintiffs' fear is contradicted by their repeated admission that "Utah's criminal law against polygamy is not being enforced." Aplt. Br. at 48 n. 30; see id. at 49 n. 34. It is further belied by the policy statement of the Utah Attorney General's Office that it has "decided to focus law enforcement efforts on crimes within the polygamous communities that involve child abuse, domestic violence and fraud, rather than enforcing § 76-7-101 against consensual polygamous relationships involving adults."
Plaintiffs rely upon two recent state prosecutions under § 76-7-101 — Green and Holm — to justify the objective reasonableness of their fear. However, the defendants in these prosecutions had committed independent crimes in connection with forming their respective polygamous relationships. See Holm, 137 P.3d at 731, 744 (noting that defendant was charged and convicted of bigamy and unlawful sexual conduct with minor); Green, 99 P.3d at 830 n. 14 (noting that defendant was charged and convicted not only of bigamy but also of criminal nonsupport and rape of a child). These cases therefore involved remarkably different facts than those present in this litigation, where no independent crime would attend the formation of plaintiffs' polygamous relationship: plaintiffs are all adults and profess a desire to enter into a consensual polygamous relationship. See D.L.S., 374 F.3d at 975. Accordingly, we conclude that plaintiffs cannot establish the first requirement of Article III standing — injury-in-fact.
Even if plaintiffs' fear was based upon a credible threat of prosecution, such that they are suffering a jurisdictionally-cognizable injury, they could not satisfy the second requirement of standing — causation. The principle of causation for constitutional standing requires a plaintiff's injury to be "fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court." Nova Health Sys. v. Gandy,
It is well-established that when a plaintiff brings a pre-enforcement challenge to the constitutionality of a particular statutory provision, the causation element of standing requires the named defendants to possess authority to enforce the complained-of provision. See, e.g., Socialist Workers Party v. Leahy,
For instance, in Gandy, we held that the plaintiff, an abortion provider, lacked standing to pursue a pre-enforcement challenge for prospective relief based upon the alleged unconstitutionality of an Oklahoma statute imposing civil liability on abortion providers for performing abortions on minors without parental consent. 416 F.3d at 1156. We observed that the plaintiff failed to show the required causal connection between its injury — the loss of minor patients who refused to obtain parental consent — and "these" defendants, Oklahoma public officials overseeing certain state medical institutions. Id. at 1157. We reasoned that the defendants were not charged with enforcing the statute in their official capacities, and that it was the statute's coercive effect, rather than the effect of the defendants' actual or threatened conduct, that caused the abortion provider's injury-in-fact. Id. at 1157-58. Cf. Winsness, 433 F.3d at 737 (holding that plaintiff lacks standing to sue for injuries suffered from citation and ensuing criminal record because defendants "had nothing to do with it").
Under this precedent, we hold that plaintiffs' fear of prosecution under § 76-7-101 — the injury that allegedly anchors plaintiffs' challenge to Utah's criminal prohibition of polygamy — is not "fairly traceable" to Swensen's acts. Plaintiffs concede that Swensen has no power to initiate a criminal prosecution. And they have not shown that Swensen has any responsibility for enforcing § 76-7-101. Cf. Utah Const. art. VIII, § 16 (public prosecutors have "primary" authority for prosecution of criminal actions); Utah Code Ann. § 10-3-928 (authorizing city attorney to prosecute certain crimes). As such, there is no nexus between this defendant's past or possible future conduct and plaintiffs' fear of criminal prosecution under Utah law.
In the face of this logic, plaintiffs argue that Swensen's power to grant a marriage license generates the necessary causation for standing. In essence, plaintiffs contend that if Swensen were "to issue a
We reject this argument. Plaintiffs' theory of causation is based upon the alleged benefits that would flow to them as a consequence of Swensen's issuance of a marriage license — not an alleged injury that Swensen's actions have inflicted or, in imminent fashion, will inflict upon them.
Plaintiffs' theory, therefore, fails to establish a meaningful nexus between Swensen's actions and the challenged criminal provisions, such that plaintiffs' alleged harm (i.e., fear of criminal prosecution) could be deemed to be fairly traceable to her actions. Furthermore, even if Swensen issued a marriage license, this license would not eliminate the possibility (albeit remote) of prosecution: the marriage license would be deemed invalid pursuant to § 30-1-2; and plaintiffs would remain within the technical ambit of § 76-7-101.
In sum, plaintiffs cannot establish causation for purposes of Article III standing.
Lastly, even if plaintiffs were able to survive the standing analysis as to the first two requirements, they would fail on the last and third requirement of standing — redressability. Standing requires a likelihood that the injury-in-fact will be redressed by a favorable decision. See Bennett v. Spear,
The absence of a nexus between Swensen's enforcement powers and the challenged criminal provisions renders ineffectual plaintiffs' requested prospective relief. Enjoining this defendant from enforcing § 76-7-101 would be a meaningless gesture. It would not protect plaintiffs from any threat of future criminal prosecution for polygamous behavior; such prosecutions are the province of governmental actors other than Swensen. See Okpalobi, 244 F.3d at 427-28 (redressability prong of standing not met because "state official cannot be enjoined to act in any way that is beyond his authority to act in the first place"). Nor would a declaratory judgment entered against Swensen avoid the future possibility (albeit remote) of a criminal prosecution under § 76-7-101; state prosecutors would not be obliged to take their cues from such a judgment. See Gandy, 416 F.3d at 1159 (effect of federal court judgment on defendant, rather than precedential value of opinion on others, must redress plaintiff's injury). Tellingly, plaintiffs offer neither case law nor analysis to support their insistence on the existence of redressability.
Plaintiffs' complaint also seeks retrospective relief — nominal monetary damages and a declaratory judgment — for Swensen's allegedly unconstitutional conduct.
Although plaintiffs repeatedly cast their injury-in-fact in prospective-relief terms, as the credible "threat" of prosecution, they also argue, without much elaboration, that "Swensen's acts in compliance with the challenged provisions caused harm to plaintiffs." Aplt. Br. at 17. This conclusory statement hardly amounts to a clear expression of why plaintiffs have standing to pursue retrospective relief. As best we can discern it, plaintiffs appear to be asserting the following theory: Swensen's denial of G. Cook's and J. Bronson's application for a marriage license, coupled with the psychological and financial consequences attendant to this denial, grants them standing to sue Swensen for monetary damages and declaratory relief based upon her unconstitutional application of the challenged criminal provisions.
This theory of standing cannot withstand scrutiny. We assume arguendo that the first requirement of Article III standing is satisfied — viz., the denial of a marriage license to enter into a polygamous relationship constitutes a constitutionally cognizable injury. However, plaintiffs still cannot establish the second and third elements: their injury was not caused by Swensen's application of the challenged criminal provisions and the injury is not "fairly traceable" to this defendant's application of the challenged criminal provisions.
We start with the causation requirement. Swensen's statutory obligation to deny plaintiffs' marriage application was governed by Title 30 of the Utah Code, and, in particular, by § 30-1-2(1) and
And, for related reasons, plaintiffs also cannot satisfy the third standing requirement — redressability. Because the challenged criminal provisions were not the predicate for Swensen's denial of a marriage license to plaintiffs, affording plaintiffs a retrospective remedy centered on a legal determination that those provisions are unconstitutional would not provide plaintiffs effective relief. It would not redress their claimed harm. Cf. New York Civil Serv. Comm'n v. Snead,
We hold that plaintiffs lack standing to challenge the constitutionality of Utah's criminal prohibition of polygamy. And, on appeal, plaintiffs have forfeited any challenge to the constitutionality of Utah's civil prohibition of polygamy. Accordingly, we
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