This matter is before the court on the appellees' Petition for Rehearing En
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.
MATHESON, Circuit Judge.
This case concerns a constitutional challenge to Utah's bigamy statute, Utah Code Annotated § 76-7-101 ("the Statute"), which provides:
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 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.
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.
The Browns belong to the Apostolic United Brethren Church ("AUB"), which views polygamy as "a core religious practice." App., Vol. 3 at 564.
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.
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.
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 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
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 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.
Defendants filed two separate motions to dismiss in district court. One was granted in part; the other was denied.
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,
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 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 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.
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:
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.
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.
Taking up the question of prudential mootness sua sponte, the district court concluded similar considerations counseled against dismissing the case on that basis.
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 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.
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 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)).
The district court entered judgment in favor of the Browns on December 17, 2013, but did not order injunctive relief.
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.
An amended final judgment was entered the same day.
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
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 declaration, and this case therefore became moot.
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, ___ U.S. ___, 133 S.Ct. 2652, 2661, 186 L.Ed.2d 768 (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., ___ U.S. ___, 133 S.Ct. 721, 726, 184 L.Ed.2d 553 (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).
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, ___ U.S. ___, 133 S.Ct. 1138, 1146, 185 L.Ed.2d 264 (2013) (brackets omitted); see also Summers v. Earth Island Inst., 555 U.S. 488, 492-93, 129 S.Ct. 1142, 173 L.Ed.2d 1 (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, ___ U.S. ___, 134 S.Ct. 2334, 2341, 189 L.Ed.2d 246 (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.
We discuss standing and mootness in turn.
Standing "requires federal courts to satisfy themselves that the plaintiff has alleged such a personal stake in the out-come of the controversy as to warrant his invocation of federal-court jurisdiction." Summers, 555 U.S. at 493, 129 S.Ct. 1142 (emphasis in original) (quotations omitted).
We measure standing as of the time the plaintiff files suit. See Davis v. Fed. Election Comm'n, 554 U.S. 724, 732-33, 128 S.Ct. 2759, 171 L.Ed.2d 737 (2008). The burden is on the plaintiff to establish standing. Summers, 555 U.S. at 493, 129 S.Ct. 1142; see Bennett v. Spear, 520 U.S. 154, 167-68, 117 S.Ct. 1154, 137 L.Ed.2d 281 (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, 112 S.Ct. 2130, 119 L.Ed.2d 351 (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, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000) (quotation 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 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, 108 S.Ct. 636, 98 L.Ed.2d 782 (1988), and Babbitt v. Farm Workers, 442 U.S. 289, 302, 99 S.Ct. 2301, 60 L.Ed.2d 895 (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).
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, ___ U.S. ___, 133 S.Ct. 1523, 1528, 185 L.Ed.2d 636 (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 dismissed as moot." Campbell-Ewald Co. v. Gomez, ___ U.S. ___, 136 S.Ct. 663, 669, 193 L.Ed.2d 571 (2016) (quotation omitted). Mootness deprives federal courts of jurisdiction. See Decker v. Nw. Envtl. Def. Ctr., ___ U.S. ___, 133 S.Ct. 1326, 1336, 185 L.Ed.2d 447 (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.").
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, ___ U.S. ___, 133 S.Ct. 1017, 1023, 185 L.Ed.2d 1 (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
Courts recognize two "exceptions" to the mootness doctrine — situations in which a case remains subject to federal court jurisdiction notwithstanding the seeming extinguishment of any live case or controversy.
One exception involves disputes that are "capable of repetition, yet evading review." "The exception applies where (1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again." Fed. Election Comm'n v. Wis. Right to Life, Inc., 551 U.S. 449, 462, 127 S.Ct. 2652, 168 L.Ed.2d 329 (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, 93 S.Ct. 705, 35 L.Ed.2d 147 (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, ___ U.S. ___, 132 S.Ct. 2277, 2287, 183 L.Ed.2d 281 (2012). This rule is designed to prevent gamesmanship. If voluntary cessation automatically mooted a case, "a defendant could engage in unlawful conduct, stop when sued to have the case declared moot, then pick up where he left off, repeating this cycle until he achieves all his unlawful ends." Already, 133 S.Ct. at 727. The voluntary cessation rule "traces to the principle that a party should not be able to evade judicial review, or to defeat a judgment, by temporarily altering questionable behavior." City News & Novelty, Inc. v. City of Waukesha, 531 U.S. 278, 284 n. 1, 121 S.Ct. 743, 148 L.Ed.2d 757 (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).
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 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
"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 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.
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 moot, and, as we discuss below, the voluntary cessation exception to mootness does not apply.
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.
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, 103 S.Ct. 1660, 75 L.Ed.2d 675 (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, 94 S.Ct. 669, 38 L.Ed.2d 674 (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 equitable relief under 42 U.S.C. § 1983." App., Vol. 1 at 19.
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.
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
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...." (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, 121 S.Ct. 743 (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.
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
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 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.
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."
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.
First, the Browns contend we should evaluate mootness under the three "Winsness factors" they say we have employed in similar cases. Suppl. Aplee. Br. at 17. The district court "f[ound] these factors helpful and ... rel[ied] on them" to analyze mootness. App., Vol. 2 at 491.
In Winsness, the police cited Mr. Winsness for burning a symbol onto an American flag and hanging it from his garage. Winsness, 433 F.3d at 729. An assistant district attorney charged Mr. Winsness with flag abuse but dismissed the charges before trial. Id. at 730. Mr. Winsness then filed a § 1983 suit in federal court, seeking to enjoin enforcement of Utah's flag-abuse statute, arguing it violated the First and Fourteenth Amendments. Id. In an affidavit attached to his motion to dismiss, the Salt Lake County District Attorney declared that the "`enforceability of the Utah flag abuse statute [wa]s doubtful' in light of Texas v. Johnson[, 491 U.S. 397, 109 S.Ct. 2533, 105 L.Ed.2d 342 (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, 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
Winsness represents a fact-specific application of the general rule that voluntary cessation moots a case when "the allegedly wrongful behavior c[an]not reasonably be expected to recur." Already, 133 S.Ct. at 727 (quotation omitted). The district court in this case erred when it limited its analysis to weighing the "Winsness factors" and ignored the broader lesson of Winsness and Mink: that evidence supporting the veracity of the decision and the policy not to prosecute is important to the mootness analysis. That evidence need not be limited to the "Winsness factors."
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.
To argue that a county attorney cannot bind future county attorneys to his non-prosecution policy is unremarkable and unpersuasive. Of course a future county attorney could change the UCAO Policy, but that possibility does not breathe life into an otherwise moot case. If it did, federal courts would be free to exercise judicial review of any rarely used state statute based on the hypothetical that some unknown and yet-to-be-elected local prosecutor someday may flout or change office policy and decide to enforce it. We are not aware of any Article III basis that would permit federal courts to do this.
For voluntary cessation to moot a case, we must be convinced that "the allegedly wrongful behavior could not reasonably be expected to recur," Already, 133 S.Ct. at 727 (emphasis added) (quotation omitted), not that there is no possibility of future enforcement. The latter showing would likely be impossible in most cases. See Rio Grande Silvery Minnow, 601 F.3d at 1117-18 ("We will not require some physical or logical impossibility that the challenged policy will be reenacted absent evidence that the voluntary cessation is a sham for continuing possibly unlawful conduct." (quotation omitted)); Mink, 482 F.3d at 1255 ("[W]e have held the possibility of future enforcement need not be reduced to zero to defeat standing. It is not necessary for defendants to refute and eliminate all possible risk that the statute might be enforced to demonstrate a lack of a case or controversy." (quotations and brackets omitted)); Comm. for First Amendment v. Campbell, 962 F.2d 1517, 1525 (10th Cir.1992) ("Defendants' burden concerning the unlikelihood of recurrence is a heavy one, but it by no means requires proof approaching metaphysical certitude."); see also Clarke v. United States, 915 F.2d 699, 702 (D.C.Cir.1990) ("Of course we cannot say that the risk of an attempted prosecution is zero .... But
One of the plaintiffs in Winsness made a similar argument. He asserted the district court should retain jurisdiction over his § 1983 suit because "[the district attorney's] political successors might repudiate [his] policy, or [the plaintiff] might be arrested elsewhere in the state, or police officers who have not been informed of [the district attorney's] policy and have not been instructed not to enforce the statute might do so." 433 F.3d at 733. We rejected this contention, explaining that "it is not necessary for defendants in such cases to refute and eliminate all possible risk that the statute might be enforced." Id. The same logic applies in this case.
Although Mr. Buhman cannot control his successors and extend his non-prosecution pledge in perpetuity, there is no reasonable expectation the Browns will face prosecution. The small number of prior UCAO prosecutions — three in a ten-year period, at least two of which also involved charges for collateral crimes — reinforces this conclusion. The UCAO Policy is consistent with, not a departure from, what was apparently a longstanding de facto policy of non-prosecution. And it is consistent with the AG Policy. As a result, the prospect that a future Utah County Attorney will begin prosecuting defendants like the Browns is speculative and remote.
The district court erred by relying on Mr. Buhman's inability to bind future county attorneys.
Third, the Browns insist — and the district court agreed — that we should not take the UCAO Policy at face value because Mr. Buhman "continues to maintain the [Statute's] constitutionality and enforceability." Suppl. Aplee. Br. at 18. This view, which merely repackages part of the Browns' argument in favor of the "Winsness factors," holds that a prosecutor's promise not to bring charges is credible only if he believes enforcement would be unconstitutional. We have never adopted this position, and we decline to do so here.
In Winsness and Mink, we credited the prosecutors' acknowledgement that the charging statutes were unconstitutional as giving them "good reason to avoid initiating potentially futile prosecutions." Winsness, 433 F.3d at 736; Mink, 482 F.3d at 1257; see also Wis. Right to Life, Inc. v. Schober, 366 F.3d 485, 492 (7th Cir.2004) ("[W]e ... hold[ ] that a case is moot when a state agency acknowledges that it will not enforce a statute because it is plainly unconstitutional, in spite of the failure of the legislature to remove the statute from the books."). But contrary to the district court's suggestion, we gave no indication such an acknowledgement is especially probative, much less a significant factor in holding a case moot.
A prosecutor's belief a statute is constitutional does not provide much help in determining the risk of future prosecution. Nor does it render unreliable his or her statements to the court — signed under penalty of perjury — that he will not enforce it. See Rio Grande Silvery Minnow, 601 F.3d at 1118 n. 17 ("Although the failure of a 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
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.
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 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 lawsuit — do not withstand scrutiny.
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.").
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.
"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.
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.
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, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), which conditions liability on action taken under an official policy or a de facto custom).
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 Fed.Appx. 663, 665-66 (10th Cir.2004) (unpublished) (distinguishing Frazier); Romero v. City & Cty. of Denver Dep't of Soc. Serv's., 57 Fed.Appx. 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.
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.
