685 F.Supp.3d 1299
D. Utah2023Background
- Plaintiffs (Free Speech Coalition, D.S. Dawson, John Doe, Deep Connection Technologies, Charyn Pfeuffer, JFF Publications) challenge Utah S.B. 287, which requires commercial providers of pornography/materials "harmful to minors" to use "reasonable age verification" and creates a private right of action for violations.
- S.B. 287 lists three verification methods, including a "digitized identification card" (defined to permit download from a state agency via a state-approved app); plaintiffs allege the State’s Mobile Driver’s License (mDL) will be used for this purpose.
- Plaintiffs seek a declaratory judgment and a pre-enforcement injunction preventing the Commissioner of the Utah Department of Public Safety from permitting download/use of state data files for age verification and preventing the Utah Attorney General from enforcing the Act.
- Defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(1) (facial attack treated like a 12(b)(6) standard); the court considered Ex parte Young/Eleventh Amendment principles.
- The court held the Ex parte Young exception does not apply to the Attorney General because S.B. 287 vests enforcement in private litigants (not the AG) and his general enforcement duties are insufficient; claims against Commissioner Anderson fail because his connection to enforcement is too attenuated (he oversees mDL but mDL lacks online verification) and, even if arguable, those claims are unripe.
- The court granted the motion and dismissed the action without prejudice on August 1, 2023; plaintiffs may defend if privately sued under S.B. 287 but cannot obtain a pre-enforcement injunction against the two named state officials.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Ex parte Young permits suit against Utah Attorney General | AG has general duty to prosecute/defend state causes and provide legal opinions, so he is a proper enforcement defendant | S.B. 287 creates only a private right of action; AG lacks specific enforcement authority | Dismissed: AG protected by Eleventh Amendment; general duties insufficient for Ex parte Young |
| Whether Ex parte Young permits suit against Commissioner of Public Safety (Anderson) | Commissioner oversees mDL; mDL is the digitized ID method, so he is connected to enforcement | Commissioner has no power to enforce S.B. 287; mDL currently lacks online verification; connection is attenuated | Dismissed: Ex parte Young not satisfied because connection too attenuated |
| Ripeness of claims against Commissioner Anderson | Pre-enforcement relief needed because mDL could be used and harm is imminent | mDL currently does not provide online verification; any future online use is speculative | Dismissed (or unripe): Plaintiffs’ claims are premature until online verification exists or enforcement occurs |
| Whether injunctive relief against state officials would redress threat of private suits under S.B. 287 | Injunction would discourage private plaintiffs and prevent unconstitutional private enforcement | Federal courts cannot enjoin unnamed private parties; enjoining state officials does not bind all private litigants | Rejected: Speculative and insufficient; injunction against officials would not preclude private suits |
Key Cases Cited
- Ex parte Young, 209 U.S. 123 (1908) (creates exception to Eleventh Amendment for prospective relief against state officials who enforce unconstitutional laws)
- Will v. Michigan Dep’t of State Police, 491 U.S. 58 (1989) (suits against state officials in official capacity are suits against the state)
- Whole Woman’s Health v. Jackson, 142 S. Ct. 522 (2021) (Ex parte Young inapplicable where the named official lacks enforcement authority; federal injunction cannot bind unnamed private parties)
- Hendrickson v. AFSCME Council 18, 992 F.3d 950 (10th Cir. 2021) (general enforcement duties insufficient when statute vests enforcement in an independent body)
- Petrella v. Brownback, 697 F.3d 1285 (10th Cir. 2012) (permitting suit against governor and attorney general where they had enforcement responsibilities for challenged statute)
- Prairie Band Potawatomi Nation v. Wagnon, 476 F.3d 818 (10th Cir. 2007) (Ex parte Young applies when officials assist in giving effect to the law)
- Chamber of Commerce v. Edmondson, 594 F.3d 742 (10th Cir. 2010) (attorney general may be reachable where he has particular duty and demonstrated willingness to enforce a provision)
- Kitchen v. Herbert, 755 F.3d 1193 (10th Cir. 2014) (nexus established where officials exercised supervisory power to compel compliance)