IN THE THIRD JUDICIAL DISTRICT COURT SALT LAKE COUNTY, STATE OF UTAH The State of Utah (West Valley City), MEMORANDUM DECISION DENYING MOTION TO DECLARE Plaintiff, STATUTE UNCONSTITUTIONAL v. Civil No. 191901507 Tilli Buchanan, .Iudge Kara Pettit Defendant. This matter comes before the Court on Defendant?s Motion to Declare Lewdness Statute Unconstitutional (?Motion?). The Motion was fully briefed and the parties appeared before the Court for oral argument on November 1 9, 2019. The Court took the matter under advisement and now renders this decision. PROCEDURAL BACKGROUND On February 13, 2019, West Valley City filed the Information in this case, charging Defendant with three (3) counts of lewdness involving a child in a private place in violation of Utah Code (?Section The Information alleges in pertinent part that the Defendant did ?intentionally or knowingly act in the following way to or in the presence ofa child who was under 14 years of age: (2) exposed his or her genitals, the female breast below the top ofthe areola, the buttocks, the anus, or the pubic area: in a private place: under circumstances the person should know will likely cause affront or alarm; or (ii) with the intent to arouse or gratify the sexual desire of the actor or the child.? Information at 1-2. The declaration of probable cause supporting the Information alleges: ?During the investigation of child sex abuse, Detective Hancock learned that the Defendant, TILLI BUCHANAN, intentionally exposed her breasts to her three step children, ages 13, 1 and 10, under circumstances she knew or should have known would alarm them. BUCHANAN admitted that she exposed her breasts to the children.? Information at 3. On March 27, 2019, Defendant made her initial appearance, at which she waived her right to a preliminary hearing, voluntarily agreeing to be bound over to continue to answer to the charges in district court. See Rule 78 ofthe Utah Rules ofCriminal Procedure. On April 5, 2019 Defendant ?led the instant Motion to Declare Lewdness Statute Unconstitutional. The Court set a brie?ng schedule with the parties, set oral argument for July 16, 2019, but argument was continued at the parties? mutual request until November 19, 2019. In light of the procedural history of this case, there is no evidence before the Court from a preliminary hearing, a trial, affidavits, or otherwise. Therefore, the Court presumes the facts as alleged in the Information are true for purposes of this Motion, and makes no findings as to what occurred, or Whether the conduct at issue violates Section 702.5. DISCUSSION Standing to Challenge Section 702 In her memorandum ?led April 5. 2019, Defendant asks the Court to find that Utah Code 76-9-7025, which Defendant has been charged with violating, offends the Equal Protection Clause of the Fourteenth Amendment ofthe US. Constitution and Article 1, Section 2 of the Utah Constitution. In its opposition memorandum, VC maintains that its references to the lewdness statute refer not only to the statute at issue here involving children, Section 702.5, but also to the general lewdness statute, Section 702, because it understood Defendant?s constitutional challenge to encompass identical provisions in both statutes. Opp. Memo. at 1 fn. l. (The Court cannot find mention of Section 702 in Defendant?s original motion or memorandum.) In her reply memorandum, Defendant switches her focus and cites only to Section 702 and abandons all references to the statute under which she was actually charged: Section 702.5. In light of the parties? references to Section 702 in their briefing, the Court addresses whether or not Defendant . has standing to challenge not only Section 7025, but also Section 702. To establish standing under Utah?s traditional test. the party bringing a constitutional challenge must show three things: (1) ?that [the party] has been or will be adversely affected by the [challenged] actions,? (2) that a ?causal relationship [exists] between the injury to the party, the [challenged] actions and the reliefrequested,? and (3) that the reliefrequcsted is ?substantially likely to redress the injury claimed.? Sin/c v. Roberts, 20l5 UT 24, 46-47, 345 P.3d 1226 (citations omitted). Defendant does not have standing to challenge the constitutionality of Utah Code 76-9- 702 because she is neither prosecuted nor threatened with prosecution under Section 702, and will not suffer an injury as a result ofthe general lewdness statute's alleged unconstitutionality. See id. and Midvale City Corp. I'M/tum, 2003 UT 26, at 22. 73 P.3d 334 (Citing to United States Supreme Court precedent for the proposition that ?standing exists when fear of criminal prosecution under allegedly unconstitutional statute is not imaginary or wholly speculative?). Moreover, Defendant has not presented any argument as to why she should be granted standing under Utah?s alternative, public?interest test to challenge Section 702. See Gregory v. Shurtle?, 2013 UT 18, 1] 25, 299 P.3d 1098. By not presenting any argument, Defendant fails to satisfy her burden of showing that she is entitled to public?interest standing. Sec Roberts, 2015 UT 24,1]1] 50-51, 345 P.3d 1226. Defendant does not have standing to challenge the constitutionality of Utah Code 76-9- 702. Therefore, the Court is not rendering any opinion on the constitutionality of Section 702. Standard of Review A statute ?carries a strong presumption ot?constitutionality, with doubts resolved in favor ofits constitutionality.? Warren v. Melville, 937 P.2d 556, 558 (Utah Ct. App. 1997); see also Brown v. Cox, 2017 UT 3, 1 1 l, 387 P.3d 1040. ?In order to preserve the independence and the integrity ofthe three branches ot~ government, it is of the utmost importance that thejudicial exercise restraint and not intrude into the legislative prerogative.?? Nelson v. Miller, 480 P.2d 467, 471?72 (Utah 1971) (quoting Trade Comm?n v. Skaggs Drug Inc, 446 P.2d 958, 962 (Utah 1968)). Even ifa court ?nds certain legislation unreasonable or unwise, that alone does not mean it has authority to invalidate it. Regen/s (i/Um'v. o/tllich. v. Ewing, 474 US. 214, 226, 106 507, 514 (1985). A court cannot strike down any legislation unless it expressly violates the constitution or it is clearly prohibited by ?some plain mandate thereof.? State v. Herrera, 895 P.2d 359, 363 (Utah 1995) (citations omitted); we also Trade Comm ?11, 446 P.2d at 963 (stressing that courts are not the conscience of the people and are not to ?express the personal desires or philosophy of its personnel"). The party challenging the statute bears the burden of proving its invalidity. See State v. Angilau, 2011 UT 3, 7, 245 P.3d 745. Defendant asserts an as?applied, as well as. a facial challenge to the constitutionality of Section 702.5. An as?applied challenge is limited to a statute?s application to facts ofthe case at hand. State v. Herrera, 1999 UT 64, ?ll 20. 993 P.2d 854. ?When asserting an as-applied challenge, the palty claims that, under the facts ot? his particular case, ?the statute was applied in an unconstitutional manner.? State v. 2004 UT App 326, ?11 27, 100 P.3d 231 (quotation omitted); see also Pleasant Grove C'ili' Orr/Is, 2007 UT App 74, ?ll 14. 157 P.3d 355. A facial challenge is the most? difficult because it requires the challenger to ?establish that no set of circumstances exists under which the lstatutel would be valid.? United Slates v. Salerno, 481 US. 739, 745, 107 2095 (1987); see also (freemmod v. City o/?Nort/z Salt Lake, 817 P.2d 816, 819 (Utah 199]). The Court is to first address the as?applied challenge, before analyzing other hypothetical applications of the law as required by a facial challenged See State v. Green, 2004 UT 76, 11 44, 99 P.3d 820, 831 and Herrera, 1999 UT 64, 34, 993 P.2d 854. Level of Scrutiny The Fourteenth Amendment to the United States Constitution states that State Shall . . . deny to any person within its jurisdiction the equal protection ofthe laws.? US. Const. Amend. XIV, 1. This prohibits unjustified state action discriminating by class. At a minimum, legislation that classifies must do so in a manner rationally related to a legitimate state interest. See Schweiker v. Wilson, 450 US. 221 (1981). If a statute classi?es based on gender, then the statute is evaluated under an intermediate scrutiny standard. meaning the law must be substantially related to an important government interest to be justified. See Univ. for Women v. Hogan, 458 US. 718 (198.2). The parties disagree whether the statute classi?es based on gender. Section prohibits anyone from intentionally or knowingly exposing their genitals, buttocks, anus, pubic area, or ?the female breast below the top ofthe areola.? WVC argues a rational basis test should be applied because the law prohibits nudity for both males and females, but female nudity includes breasts whereas male nudity does not. The Court agrees with the logic of the United States Court 0 1? Appeals for the Seventh Circuit that such an argument is really ajusti?cation for the classification, rather than an argument that no sex-based classi?cation exists. See Tagami v. City QtC/ricago, 875 F.3d 375, 380 (7th Cir. 2017). Section treats female breasts differently than male breasts. Because the statute classi?es based on gender, the Court will apply the intermediate scrutiny standard. See eg, id. and Free - - 4 . . r) lil Collins v. Cit) o/ Fort Collins, )16 land 79;. M10 (10 C11. 2019). However, not all sex-based classi?cations implicate the same considerations under this intermediate standard of scrutiny. As the Utah Supreme Court explained: The notion ofa ?substantial? relation born-teen means and ends implies a threshold consideration of the nature and extent of the discrimination at issue. For ?of?cial action that closes a door or denies Opportunity to women (or to men),? it is dif?cult for the government to show that its discriminatory policy ?substantially? advances an important objective. On the other hand, for of?cial action that is less imposing, the operative standard will be easier to satisfy. This is particularly true where the differential treatment ofmen and women is rooted in ?[i]nherent differences" between the sexes, and where such differences translate not into an outright bar on one of the sexes, but a regime preserving meaningful Opportunities to both sexes. In any event, the intermediate standard ofser'utiny does not require a precise ?t between means and ends. A simple ?substantial" relation will do, and that standard does not require proof that the of?cial action adopted by government is the ?least restrictive means? of accomplishing the government's objectives. In re Adoption 2014 UT 51, 70-71, 358 P.3d 1000, 1027?28 (citations omitted). As-Applied Challenge Important Government Interest WVC argues that Section 702.5 furthers the government?s important interests in protecting the morals and safety fehildren. and public order. WVC points to numerous cases in federal and state courts nationwide that recognize the government?s important interest in protecting the health, safety, welfare, order and morality of its citizens through enactment of public indecency or obscenity laws. See eg. Barnes v. Glen Meat/e, lnc., 5(?ll US. 560, 569 (1991) (public indecency statute thrihered substantial governmental interests ot?protecting societal order and morality); ree {lie Residents Promoting Equality, 923 F.3d 508, 510-11 (8th Cir. 20l9) (indecent exposure ordinance substantially related to important governmental interests in promoting public decency and prescribing public nudity to protect morals, public order, health and sale-W); Togo/Hi City al'C/H'eago, 875 F.3d 375, 379 (7th Cir. 2017) (public indecency statute promoted traditional moral norms and public order, important enough interests to survive intermediate scrutiny test); United States v. 928 F.2d 1 12, 115-116 (4th Cir. 199l) (important government interest widely recognized as one of protecting society from public displays ol?anatomies regarded as erogenous zones); Craft v. Hodel, 683 F. Supp. 289, 290 (D. Mass. 1988) (public indecency law served important government interest of protecting public from invasions of its sensibilities and merely re?ected current community Standards as to What constitutes nudity); and Citr of?Seatl/e Buchanan, 584 P.2d 918, 920-22 (Wash. 1978) (governmental bodies have right to enact laws to maintain a decent society, preserve public decorum and morals). The United States Supreme Court has held that decency statutes are ?designed to protect morals and public order? and the ?traditional police power ol" the States is de?ned as the authority to provide for the public health, safety. and morals, and [the Supreme Court] has upheld such as a basis for legislation." Barnes Glen Thea/re, Inc. 5()l US. at 569. As such, decency laws ??lrther[] a substantial government interest in protecting order and morality,? Id. Thus, it is well-established law that the government has an important interest in enacting public indecency statutes to protect the health, safety, welfare. order and morality of its citizens. Notably, none of the laws at issue in any ol?the a'l?orementioned cases were enacted for the speci?c protection of children. By contrast, Section 702.5 is aimed at protecting children from conduct the legislature has defined as lewd. Thus. the government interest promoted by Section 702.5 is even more compelling than the interest recognized as important by the US. Supreme Court in Barnes, and the other courts in the above~cited cases. See Sable Comm?ns QfCallfornia, Inc. v. F.C.C., 492 US. 15, I26, 109 S. Ct. 282?). 2836 1980) (stating: ?We have recognized that there is a compelling interest in protecting the physical and well-being of minors. This interest extends to shielding minors from the in?uence of literature that is not obscene by adult standards." (citations omitted)). The Court ?nds the government has an important interest in enacting laws to protect the health, safety, welfare, and morality ot?children. and to prevent them from being exposed to lewdness. Substantial Relationship Next, the Court analyzes whether Subsection is substantially related to the govemment?s important interests in. protecting the health. safety, welfare, and morality of children, and preventing them from being exposed to lewdness. Defendant argues that this portion of Section 702.5 does not advance the government?s interest in protecting children because it perpetuates stereotypes of female breasts as sex objects. Defendant urges the Court to apply the United States Court o?l?Appeals for the Tenth Circuit?s ruling in Free the Nipple?Fort Collins v. City ofFort Collins, 916 F.3d 792 (10th Cir. 2019') to conclude Section does not substantially relate to the government?s interest in protecting children from lewd conduct. Conversely, WVC asserts the statute does not treat women differently based upon stereotypes of the way women are, and instead, is based upon physical differences between the sexes, re?ecting contemporary community standards of nudity. WVC argues the ordinance at issue in Free the Nipple?Fort Collins varies in signi?cant ways from Section 702.5, and unlike the Fort Collins ordinance, Section is substantially related to the government?s interest in protecting children from lewdness. The Court agrees that the public indecency ordinance at issue in Free the Nipple-Fort Collins is signi?cantly different from the lewdness involving a child law at issue in this case. The Fort Collins ordinance made it unlawful for an adult female to knowingly expose her breast below the top of the areola in a public place, or on private property if it could be viewed readily from ground level by another located on public property. Free the Nipple-Fort Collins, 916 F.3d at 795. The ordinance did not include any esposurc that was unlawful for a male, did not require the presence of children, and most importantly, did not require any specific intent. By contrast, Section 702.5 prohibits lewd behavior by males, as well as females, requires the presence of children, and mandates a specific mens rea under Section The speci?c mens rea required under this Subsection is that Defendant intentionally or knowingly exposed her breast in the presence of children under l4 years of age ?under circumstances the person should know will likely cause affront or alarm or with the intent to arouse or gratify the sexual desire ofthe actor or the child.? Utah Code Section mens rea requirement presents a critical distinction between it and the ordinance at issue in Free the Col/ins. In Free the Nipple-Fort Collins, the Tenth Circuit held the trial court did not abuse its discretion when it concluded that the challenger demonstrated a strong likelihood ofsuceecding on the merits of its Equal Protection claim. The Free the Nipple-Fort o/lins trial court concluded: ??The ordinance discriminates against women based on the generalized notion that, regardless ofa woman?s intent, the exposure of her breasts in public (or even in her private home ifviewable by the public) is 9?9 necessarily a sexualized act. Id. at 800 (emphasis added).~ The lack of specific intent appears central to the Free the Nipple-For! Collins trial court?s conclusion. Unlike the Fort Collins ordinance, Section 702.5 requires Defendant to have exposed her breasts ?under circumstances she] should know will likely cause affront or alarm or with the intent to arouse or gratify the sexual desire ofthe actor or the child.? Utah Code 76?9? Thus, unlike the Fort Collins ordinance, mere exposure of breasts is not prohibited nor necessarily a sexualized act under Section 702.5. For instance, in State Tilt/s. 2012 UT App 231, 286 P.3d 94L the Utah Court of Appeals upheld a conviction of lewdness in the presence ofehildren in a private place under Section 702.5 because the evidence supported more than just exposure. Titus contended the evidence failed to support that he was nude under circumstances that he should have known would likely cause affront or alarm, arguing that he ?did not sexualize his nudity,? but that ?he dealt with it as a matter of fact." M. at 6. The Tin/s Court disagreed, ?nding the evidence showed he had sexualized his nudity, distinguishing his case from the more innocuous situations to which he compared it, such as male nudity in locker room showers. Id. at 6-8. Defendant argues WVC has not identified evidence of the speci?c intent required by Section and this failure demonstrates that the mens rea requirement ?selves as little more than a semantical safeguard against constitutional challenge; it is, indeed, a mere illusion.? Reply Memo. at 8. The Court disagrees the mens rea requirement is a mere illusion. 10 WVC would have been required to present evidence to establish the specific mens rea required by Section B) by a probable cause. standard at a preliminary hearing, but because Defendant waived her right to a preliminary hearing. the time for WVC to produce evidence ofthe elements of the offense, including; mens rea, will be at a trial. WVC will have to prove beyond a reasonable doubt at trial that Defendant exposed her breasts ?under circumstances [she] should know will likely cause affront or alarm or with the intent to arouse or gratify the sexual desire ot?the actor or the child" to secure a conviction, and it is not a mere illusion. See Titus, 20 2 UT App 23 it?; 6?8, 286 P.3d (Ml (af?rming conviction of lewdness in presence of children because evidence supported finding that defendant should know conduct will likely cause affront or alarm and was not just exposure). Section criminalizes lewdness for both males and females, and unlike the Fort Collins ordinance, does not generalize that a female?s exposure of her breasts in a private place is necessarily a sexualized act. See also Slate Bag/res, 2014 UT 4, ii 16, 322 P.3d 719, 723 (?We read the statute to incorporate the narrower notion of lascivious lewdness?of lewdness involving misconduct ofa sexual nature?) At trial, WVC will need to prove the speci?c intent required in Section to demonstrate that Defendant?s conduct was lewd in the presence of children, and exposure of her breasts alone is not a sexualized act under Section The Court also agrees with WVC that the legislature?s express inclusion of female, but not male, breasts in the acts enumerated as lewd in Section re?ects contemporary community standards as to what constitutes nudity. See (Craig v. Hoe/(ll, 683 F. Supp. 289 (D. Mass. 1988) (?nding public indecency law did not serve to perpetuate stereotype, but simply recognized ?physical difference between the sexes which has implications for the moral and 11 aesthetic sensitivities ot?a substantial majority 01? the country?). Contemporary community standards are applied to determine criminality ot'etmduct in other contexts as well, such as determining what is pornographic, obscene or harml?ul to minors. See State v. Butt, 2012 UT 34 and State v. Taylor, 664 P.2d 439, 440 (Utah 1983'). It is the prerogative ot?the legislature to establish laws incorporating contemporary community standards regarding lewdness. It is not for the ("taut to decide whether the legislature?s enumeration of lewd conduct is wise or sound policy. State v. Herrera, 895 P.2d 359, 362 (Utah 1995) is the power and responsibility ol? the Legislature to enact laws to promote the public health. safety, morals and general welfare o'l?society and this Court will not substitute ourjudgment for that of the Legislature with respect to what best serves the public interest.? (quotation omitted?. ??ln order to preserve the independence and the integrity ofthe three branches of government, it is of the utmost importance that. the judicial exercise restraint and not intmde into the legislative prerogative.m Nelson v. Mil/(2r, 480 P.2d 4167, 4171?72 (Utah 1971) (quoting Trade Comm S/tuggs Drug Ctr-s, Inc. 446 P.2d 958, 962 (Utah 1968)). The Court?s role is limited to determining whether the law passes muster. The Court must afford Section a strong presumption ol? constitutionality, and can only strike it down ifit clearly violates the constitution. u/m Comm'n, 446 P.2d at 963 (courts are not the conscience of the people and are not to ?express the personal desires or philosophy of its personnel"). The Court concludes Section does not clearly violate the Equal Protection Clause. The Court finds Section is substantially related to the government?s important interest in protecting children lrom lewdness. Section 12 treats females and males similarly and prohibits lewd behavior in the presence ofchildren by both genders. The only difference is found in the itemization o?t'bocly parts in Section that cannot be exposed in a private place in a lewd manner. This itemization references the female breast. but not the tnale breast. This difference is rooted in physical differences between the sexes, re?ects contemporary community standards regarding nudity, and does not necessarily sexualize a female?s exposure of her breasts, because it is only unlawful if the exposure occurred under circumstances the actor should know will likely cause affront or alarm or with the intent to arouse or gratify the sexual desire of the actor or the child. The important government interest of protectingI children from lewd behavior is substantially advanced by the legislature?s attempt to prevent children from being exposed to nudity in a lewd manner in a private place. For all ofthe foregoing reasons. the Court finds Delbndant, has not met her burden to demonstrate Section violates the l4?h Amendment?s Equal Protection Clause as applied to her. Facial Challenge Facial challenges succeed only ifthe statute at issue is incapable of any valid application. See Greenwood v. Citr o/Nort/i Salt Lake, 817 P.2d 816, 819 (Utah 199]). Because the Court upheld the challenged statute as applied to Defendant. her facial challenge fails a fortiori. State v. Herrera, UT ?ll 50, 993 P.2d 854. Utah Constitutional Challenge Defendant also claims the statute is unconstitutional under the Utah State Constitution, citing Article I, Section 2. However, Article I, Section 2 serves more as a statement ofpurpose 13 rather than a legal Standard. See Ga/livan WcI/A'cr, 2002 UT 89, 54 P.3d 1069, 1084 11.8. Article I, Section 24 ofthe Utah State Constitution serves as the legal standard and ?is generally considered the equivalent ofthe Equal Protection Clause ot?the 14th Amendment, US. Constitution.? Liedtke v. Selle/flew, 649 P.2d 80, 8 n.l (Utah 1982). An analysis ofthe constitutionality of a statute under the Utah State Constitution is different than an analysis under the United States Constitution. Gallivan, 2002 UT 89, 1] 33, 54 P.3d 1069 (recognizing Article 1, section 24 estahlishes different requirements from the federal Equal Protection Clause). Defendant fails to set forth any analysis of the constitutionality of Section 702.5 under either Article 1, Section 2 or Article 1. Section 24. She simply asserts her 1" Amendment are ?applieahle? to the Utah State Constitution as well. See arguments as to the 14 Reply at 13. Defendant cannot shift the burden of research and argument to the Court. She failed to develop any argument regarding the Utah Constitutional challenge, much less one suf?cient to carry her burden ot?pcrsuasion, and the Court declines to make one for her. See CORA USA LLC v. Quick Change Artist 20 7 UT App (56,3111 5?6, 397 P.3d 759, 761. CONCLUSION For all ofthe foregoing reasons, Defendant?s l/lotion to Declare Lewdness Statute Unconstitutional is DENIED. Dated this 19th day of January. 2020. 14 CERTIFICATE OF NOTIFICATION I certify that a copy of the attached document was sent to the following people for case 191901507 by the method and on the date specified. EMAIL: EMAIL: EMAIL: EMAIL: Date: JOSHUA BROTHERTON LEAH FARRELL lfarrell@acluutah.org RANDALL RICHARDS RYAN ROBINSON prosecutor?wvc?ut.gov 01/21/2020 TONI BIGLER Signature Printed: 01/21/20 08:13:11 Page 1 of 1