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Greer v. Herbert

United States District Court, D. Utah, Central Division

May 8, 2018

RUSSELL G. GREER, Plaintiffs,
v.
GARY R. HERBERT, in his individual capacity as Governor of the State of Utah; SEAN D. REYES, in his official capacity as Attorney General of the State of Utah; SIMS S. GILL, in his official capacity as District Attorney of the City and County of Salt Lake; JACKIE BISKUPSKI, in her official capacity as Mayor of the City of Salt Lake, BEN MCADAMS, in his official capacity as Mayor of the County of Salt Lake, KATHY BERG, in her official capacity as Director of the Division of Commerce; JAMES ALLRED, in his official capacity as Business Licensing Manager for, the City of Salt Lake; ROLEN YOSHINAGA, in his official capacity as Director of Planning and Development of the County of Salt Lake, Defendants.

          MEMORANDUM DECISION & ORDER

          Dustin B. Pead U.S. Magistrate Judge.

         TABLE OF CONTENTS

         Introduction ………………………………………………………………………………… 3

         Factual Background …………………………………………………………………………3

         Utah's Prostitution & Brothel Laws……………………………………………………… . 6

         Discussion

         I. Standing…………………………………………………………………… ...... 8

         1. Standard of Review…………………………………………………. ..8

         2. No Standing To Enforce The Rights Of Others……………….…....10

         3. No. Standing For Claims Against Biskupski, Allred, McAdams and Yoshinaga…………………………………………… ...... 11

a. Biskupsk and McAdams…………………………………..11
b. Allred and Yoshinaga………………………………… ...... 12

         4. Standing For Claims Against Gill and State Defendants………….13

a. Pre-Enforcement Challenge…………………………13
b. Gill…………………………………………………….14
c. Herbert, Reyes and Berg………………………… ..... 15

         II. 42 U.S.C. §1983………………………………………………………………16

         III. Utah's Laws Are Constiutional……………………………………………..17

         1. Facial And As-Applied Challenges. ………………………………..18

         2. Right To Sexual Privacy…………………………………………….19

a. No Fundamental Right ………………………… ...... 20
b. Rationally Related To Legitimate Interest…… ....... 21

         3. Equal Protection For Same End Goal Of Intimacy……………….23

         4. Right To Engage In Illegal Employment…………………………..24

         5. First Amendment Free Association…………………………… ....... 25

         6. Article 1 Section 7 of Utah Constitution……………………… ....... 26

         7. Vagueness…………………………………………………………... 27

         IV. Ruling & Order……………………………………………………………...29

         INTRODUCTION[1]

         Russell Godfrey Greer wants to provide everyone with safe and legal “access to intimacy.” In order to do so, he seeks to open a Utah brothel called The Mile High Neon. Under Utah's current laws, however, he is prohibited from doing so.[2] Consequently, Greer filed his federal declaratory action challenging the constitutionality of portions of Utah's laws criminalizing prostitution, solicitation and the operation of brothels.

         FACTUAL BACKGROUND

         The following facts are taken from Plaintiff Russell Greer's (Plaintiff or Greer) amended complaint and viewed in a light most favorable to him.[3]

         Plaintiff is a well-educated, [4] twenty-five year old man currently residing in Murray, Utah.[5] He was born with Mobius Syndrome, a neurological condition that causes facial paralysis and prohibits him from closing his lips or moving his eyes sideways.[6] Greer's disability causes significant physical and social challenges for him. Consequently, in order to “feel loved”, Greer solicits sex workers[7] at brothels in Nevada, where prostitution is legal, and in Utah, where prostitution is criminalized.[8]

         In April of 2013, Greer started visiting brothels in Nevada.[9] He describes his experiences as “magical” and claims that his time there helped him to “cope with his disability and [ ] depression.”[10] Over time, frequent travel to Nevada became financially prohibitive[11] and Greer was “forced” to seek companionship in Utah.[12] Prostitution is illegal in Utah and Plaintiff lived in fear of being victimized, [13] criminally prosecuted and of contracting a sexually transmitted disease.

         Determined to provide everyone with the opportunity for safe and legal “access to intimacy, ” Greer decided to open a brothel in Utah called “The Mile High Neon” (TMHN).[14]Plaintiff outlines TMHN's business plan, design, layout and operational procedures in copious detail.[15] In order to obtain a license, Greer submitted his licensing paperwork online with the State of Utah. On December 29, 2015, Plaintiffs paperwork was approved and he was given numbers for his business registration and the appropriate document to file.[16] On January 14, 2016, Greer received notice from Kathy Berg, Director of Utah's Division of Commerce, that his registration was for an illegal business purpose and immediately revoked.[17]

         On October 18, 2016, Greer filed his initial complaint.[18] Later, he sought to incorporate relevant statutory amendments and the court granted Plaintiff leave to amend.[19] Greer filed an amended complaint on September 12, 2017, seeking declaratory and injunctive relief against Defendants Governor Gary Herbert (Herbert), Utah Attorney General Sean Reyes (Reyes) and Utah's Director of the Division of Corporations and Commercial Code Kathy Berg (Berg) (collectively “State Defendants”), Salt Lake District Attorney Sim Gill (Gill), Salt Lake County Mayor Ben McAdams (McAdams) and Salt Lake Director of Planning Rolen Yoshinaga (Yoshinaga) (collectively “County Defendants”) and Salt Lake City Mayor Jackie Biskupski (Biskupski) and Salt Lake City Business Licensing Manager James Allred (Allred) (collectively “City Defendants”).[20]

         Currently pending before the court are the City, State and County Defendants' motions to dismiss Greer's amended complaint for failure to demonstrate standing, state a claim or establish a constitutional violation.[21] Greer did not oppose the City or County Defendants' motions to dismiss, and the time within which to do so has expired.[22]

         UTAH'S PROSTIUTION & BROTHEL LAWS

         Greer seeks a declaration that the following portions of Utah's statutes are unconstitutional (Utah's Prostitution and Brothel Laws).

         Utah Code Ann. §76-10-1302, Prostitution.

         (1) An individual is guilty of prostitution when the individual:

         (b) takes steps in arranging a meeting through any form of advertising, agreeing to meet, and meeting at an arranged place for the purpose of sexual activity in exchange for a fee or the functional equivalent of a fee;

         UCA §76-10-1302(b)

         Utah Code Ann. 76-10-1303, Patronizing a prostitute.

         (1) An individual is guilty of patronizing a prostitute when the individual:

         (b) enters or remains in a place of prostitution for the purpose of engaging in sexual activity.

         UCA §76-10-1303(b).

         Utah Code Ann. 76-10-1304, Aiding prostitution.

         (1) A person is guilty of aiding prostitution if the person:

         (iii) leases, operates, or otherwise permits a place controlled by the actor, alone of in association with another, to be used for prostitution or the promotion of prostitution;

         UCA §76-10-1304(1)(iii)

         Utah Code Ann. 76-10-1305, Exploiting prostitution.

         (1) An individual is guilty of exploiting prostitution if the individual:

         (a) procures an individual for a place of prostitution; or

         (e) owns, controls, manages, supervises, or otherwise keeps, alone or in association with another, a place of prostitution or a business where prostitution occurs or is arranged, encouraged, supported, or promoted.

         UCA §76-10-1305(1)(a)(e).

         Utah Code Ann. 47-1-1, Declared a nuisance-Abatement.

         Whoever shall erect, establish, maintain, use, own or lease any building, structure or place, for the purpose of lewdness, assignation or prostitution is guilty of nuisance, and such building, structure or place, and the ground itself, in or upon which such lewdness, assignation or prostitution is conducted, permitted or carried on, and the furniture, fixtures and musical instruments therein and the contents thereof are declared a nuisance, and shall be enjoined and abated as hereinafter provided. UCA §47-1-1.

         DISCUSSION

         I. STANDING

         1. Standard of Review.

         A threshold issue is whether Greer has standing to bring his claims against Defendants. Standing ensures that federal courts only issue judgments in “cases” and “controversies” in which they have jurisdiction to do so.[23] The burden is on plaintiff to clearly demonstrate the elements of standing for each cause of action, [24] and the court has an “independent obligation” to raise the standing issue “regardless of whether it is challenged by any of the parties.”[25] When considering dismissal, “courts must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party.”[26]

         Article III standing requires a plaintiff to meet the following elements:

First, the plaintiff must have suffered an invasion of a legally-protected interest which is (1) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and conduct complaint of---the injury has 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. Third, it must be “likely” as opposed to merely “speculative, ” that the injury will be redressed by a favorable decision.[27]

         In addition to constitutional standing, a plaintiff must also establish prudential standing. Prudential standing places limits on who may invoke the courts' powers and requires:

(1) the plaintiff generally must assert his or her own legal rights; (2) the court must refrain from adjudicating “generalized grievances” most appropriately addressed by one of the other branches of government; and (3) the plaintiff's complaint must fall within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.[28]

         When mounting a pre-enforcement claim, plaintiff is not required to “await and undergo a criminal prosecution” before challenging the statute on constitutional grounds.[29] Rather, a plaintiff may establish standing prior to enforcement by showing both a future intention to engage in conduct that is “arguably affected with a constitutional interest, but proscribed by a statute” and a credible threat of prosecution.[30]

         2. Greer Does Not Have Standing To Enforce The Rights Of Individuals Who Choose To Work In Prostitution.

         As a preliminary matter, Greer cannot establish standing to bring his equal protection challenge on behalf of individuals who “choose to work in prostitution.”[31] Under the doctrine of prudential standing, Greer cannot bring suit to enforce the rights of others.[32] Moreover, while an association may bring suit on behalf of its members, it can only do so if: “(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of the individual members in the lawsuit.”[33] As an unestablished business owner, Greer does not identify any discernable “association” or “members” who otherwise have standing to sue in their own right.[34] At best, Plaintiff attempts to bring an equal protection claim as a future brothel owner on behalf of future brothel employees.[35] Yet, any currently unknown or potential future relationships are too tenuous to support representational standing and Greer's equal protection claim brought on behalf of unidentified others is dismissed.

         3. Greer Does Not Have Standing To Assert Claims Against City Defendant Biskupski and Allred and County Defendants McAdams and Yoshinaga.

         Greer does not demonstrate standing to bring claims against Defendants Salt Lake City Mayor Jackie Biskupski, City Business Licensing Manager James Allred, Salt Lake County Mayor Ben McAdams and County Director of Planning and Development Rolen Yoshinaga.

         a. Biskupski and McAdams

         The only allegation raised against City Mayor Jackie Biskupski is set forth at paragraph twelve (12) of the amended pleading and states:

Defendant Biskupski is the Mayor for the City of Salt Lake (“Biskupski”). She is sued in her official capacity only. Biskupski, an elected official, exercise the executive and administrative powers of the municipality. Utah Code 10-3b-202(1)(b).[36]

         Likewise, the only mention of Salt Lake County Mayor Ben McAdams is at paragraph thirteen (13):

Defendant Ben McAdams is the Mayor for the County of Salt Lake (“McAdams”). He is sued in his official capacity only, McAdams, an elected official, exercises the executive and administrative powers of the municipalities of the County.

Utah Code 10-3b-202(1)(b).[37]

         Plaintiff does not raise any substantive claims or assert an injury-in-fact. Absent a traceable injury, causation and redressability, [38] Plaintiff lacks standing and Biskupski and Allred's motions to dismiss are granted.

         b. Allred and Yoshinaga

         The limited allegations raised against City Business Licensing Manager James Allred and County Development Director Rolen Yoshinaga are found at paragraphs fifteen (15) and sixteen (16) of the amended pleading:

Defendant James Allred is the Business Licensing Manager for the City of Salt Lake (“Allred”). He is sued in his official capacity only. Allred is responsible for overseeing the business licensing in Salt Lake City which includes Sexual Oriented Businesses (SOBs). Salt Lake City Code 5.02.020; Utah Code 10-8-41.5.
County of Salt Lake (“Yoshinaga”). He is sued in his official capacity only. Yoshinaga is responsible for overseeing the business licensing in Salt Lake County which includes Sexual Oriented Businesses (SOBs). Salt Lake County Code 5.01.030; Utah Code 10-8-41.[39]

         And, additionally at paragraph thirty-three (33):

Berg, Allred, and Yoshinaga are compelled to not issue business licenses for those businesses deemed “illegal” and therefore hinders Plaintiff's attempts from obtaining a license to try to amend State, County, ...

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