Case 1:15-cv-00083-SPW Document 23 Filed 12/08/15 Page 1 of 11

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
CHRISTINE COLLIER
(PARKINSON), VICTORIA
VICKI COLLIER, and NATHAN
COLLIER,
Plaintiffs,

CV 15-83-BLG-SPW-CSO
FINDINGS AND
RECOMMENDATION OF
U.S. MAGISTRATE JUDGE

v.
TIM FOX, in his official capacity
as Attorney General of Montana;
STEVE BULLOCK, in his official
capacity as Governor of Montana;
SCOTT TWITO, in his official
capacity as Yellowstone County
Attorney, and KRISTIE LEE
BOELTER in her official capacity
as Clerk of the Yellowstone County
District Court,
Defendants.
Plaintiffs Christine Collier Parkinson, Victoria Collier, and
Nathan Collier (collectively Colliers) bring this action against the
following persons in their official capacities: (1) Tim Fox, Attorney
General of Montana; (2) Steve Bullock, Governor of Montana; (3) Scott
Twito, Yellowstone County Attorney, and (4) Kristie Lee Boelter, Clerk
of the Yellowstone County District Court (collectively Defendants).
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The Colliers seek a declaration that Montanas bigamy statutes, M.C.A.

45-5-611 and M.C.A. 45-5-612, are unconstitutional and seek an
injunction preventing the Defendants from enforcing these statutes
against the Colliers. ECF 1 at 7, 26.1
Now pending is Defendants Joint Motion to Dismiss (ECF 20) for
lack of subject matter jurisdiction. Having reviewed the motion, the
Complaint, and the applicable law, the Court will recommend the
motion be granted.
I.

BACKGROUND
A.

PROCEDURAL BACKGROUND

The Colliers filed this action on August 27, 2015. On October 16,
2015, Defendants filed a motion to dismiss the Complaint for a lack of
subject matter jurisdiction under Rule 12(b)(1).2 Although the Colliers
response to the motion was due on November 6, 2015, no response has
been filed.

ECF refers to the document as numbered in the Courts

Electronic Case Files. See The Bluebook, A Uniform System of Citation,
10.8.3.
2 References to the rules are to the Federal Rules of Civil
Procedure unless otherwise noted.
1

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B.

FACTUAL BACKGROUND

In their Complaint, the Colliers allege as follows. Victoria Collier

and Nathan Collier are legally married. Id. at 9. Christine Collier
Parkinson desires also to legally marry Nathan Collier. Id. at 10
12. On June 30, 2015, the Colliers went to the Yellowstone County
Clerk of District Court Marriage License Division to apply for a
marriage license between Christine and Nathan. Id. at 128. The
Yellowstone County Attorneys office sent a letter to the Colliers on July
14, 2015, formally denying the request for a marriage license. Id. at
129. The letter informed the Colliers that their request for a marriage
license would violate Montana law, but the letter did not explicitly say
that the State of Montana would be prosecuting members of the Collier
family. Id. at 131.
II.

PARTIES ARGUMENTS
Defendants make two primary jurisdictional arguments. First,

they argue that the Colliers lack standing because they failed to show
an injury in fact. ECF 21 at 6. Defendants argue that to bring a preenforcement challenge to Montanas bigamy statutes, the Colliers must
show the laws present a credible threat to them by demonstrating a

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reasonable likelihood that Defendants will enforce the statutes against

them. Id. at 78. Defendants argue that the July, 14, 2015 letter
advised only that obtaining a second marriage license would be
considered bigamy. Id. at 9. Defendants note that even the Colliers
admit the letter did not explicitly say that the state would prosecute the
Collier family. Id. Defendants contend that this demonstrates that
prosecution is speculative at best, and not sufficient to establish a
credible threat of prosecution. Id. at 910. They also argue that the
Colliers have failed to show any history whatsoever of enforcement of
Montanas bigamy statues by the State or Yellowstone County officials.
Id. at 10.
Second, Defendants argue that the claims are not ripe. Id. at 10.
They argue that the appropriate time for the Colliers to raise their
arguments would be when they actually face prosecution, or a credible
threat of prosecution. Id. at 11.
III. LEGAL STANDARD
Federal courts are courts of limited jurisdiction. Article III, 2 of
the United States Constitution empowers them to hear only cases and
controversies. SEC v. Medical Committee for Human Rights, 404 U.S.

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403, 407 (1972). A justiciable controversy is thus distinguished from a

difference or dispute of a hypothetical or abstract character[.] Aetna
Life Ins. Co. of Hartford, Conn. v. Haworth, 300 U.S. 227, 240 (1937).
As a result, federal courts lack the power to issue an opinion advising
what the law would be upon a hypothetical state of facts. Id. at 241.
The party invoking federal jurisdiction bears the burden of
establishing the elements of standing. Susan B. Anthony List v.
Driehaus, 134 S. Ct. 2334, 2342, 189 L. Ed. 2d 246 (2014).
IV.

ANALYSIS
A.

STANDING

The case or controversy requirement of Article III of the United

States Constitution limits federal courts subject matter jurisdiction by
requiring that plaintiffs have standing and that claims be ripe for
adjudication. Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d
1115, 11211122 (9th Cir. 2010). Standing addresses whether the
plaintiff is the proper party to bring the matter to the court for
adjudication. Id. (citing Erwin Chemerinsky, Federal Jurisdiction
2.3.1, at 57 (5th ed.2007)).

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To establish standing, the Plaintiff must show three elements.

First, the plaintiff must have suffered an injury in factan invasion
of a legally protected interest which is (a) concrete and particularized;
and (b) actual or imminent, not conjectural or hypothetical[.] Lujan
v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) (internal citations omitted).
Second, the plaintiffs must establish a causal connection between the
injury and the conduct complained of by proving that their injury is
fairly traceable to the challenged conduct of the defendant and not the
result of an independent action of a third party not before the court. Id.
Third, the plaintiffs must show that their injury will likely be redressed
by a favorable decision. Id. at 561.
In asserting pre-enforcement challenges to a statute, plaintiffs
may meet constitutional standing requirements by demonstrating a
realistic danger of sustaining a direct injury as a result of the statutes
operation or enforcement. Babbitt v. United Farm Workers Nat. Union,
442 U.S. 289, 298 (1979). But when plaintiffs do not claim that they
have ever been threatened with prosecution, that a prosecution is likely,
or even that a prosecution is remotely possible, they do not allege a
dispute susceptible to resolution by a federal court. Id. at 298299

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(internal quotation omitted). Thus, despite the relaxed standing

analysis for pre-enforcement challenges, plaintiffs must still show an
actual or imminent injury to a legally protected interest. Lopez v.
Candaele, 630 F.3d 775, 785 (9th Cir. 2010). Neither the mere
existence of a statute nor a generalized threat of prosecution is
sufficient to satisfy plaintiffs obligation. Thomas v. Anchorage Equal
Rights Commn., 220 F.3d 1134, 1139 (9th Cir. 2000).
The Court considers three factors in determining the genuineness
of a claimed threat of prosecution: (1) whether the plaintiffs have
articulated a concrete plan to violate the law in question; (2) whether
the prosecuting authorities have communicated a specific warning or
threat to initiate proceedings; and (3) the history of past prosecution or
enforcement under the challenged statute. Humanitarian L. Project v.
U.S. Treas. Dept., 578 F.3d 1133, 1142 (9th Cir. 2009).
Defendants argue that the Colliers do not have standing because
they fail to show an injury in fact. Defendants contend that the Colliers
have not shown a reasonable likelihood that the Defendants will enforce
the bigamy statutes against them but rely only on the existence of the
statutes alone. ECF 21 at 6. 78.

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The Court agrees that the Colliers have failed to demonstrate

injury in fact. Although under the first factor, the Colliers do claim to
have a concrete plan to violate the laws in question, the other two
factors weigh strongly against finding a genuine threat of prosecution.
1.

THREAT OF PROSECUTION

The only suggested threat of prosecution asserted in the

Complaint is the July 14, 2015 letter to the Colliers. The letter
specifically states that the Clerks Office was correct to deny the license
because while both of you are lawfully married to each other, you seek
to engage in yet another state licensed marriage. That act, by either or
both of you, would be considered bigamy in Montana. ECF 22-1 at 1.
This statement does not threaten prosecution. The Colliers concede in
their Complaint that the letter does not explicitly say the State of
Montana would be prosecuting the Collier family. ECF 1 at 131.
Instead, the letter indicates a second marriage license could not be
issued because, if it were, that would constitute a second statesanctioned marriage, which would violate Montanas bigamy statutes.

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Aside from the letter, the Colliers present no other examples or

assertions of a specific threat or intent of Defendants to prosecute the
Colliers under Montanas bigamy statutes. Accordingly, this factor
weighs strongly against finding a genuine threat of prosecution.
2.

HISTORY OF ENFORCEMENT

Nor is there a history of enforcement to support standing here.

Despite the fact that the Colliers were not issued a second marriage
license, they point to a common law marriage statute, arguing that the
state could use the common law marriage statute to prosecute them for
bigamy. ECF 1 at 97. They state that Montana has not prosecuted
any polygamists under this theory but argue that it could do so. Id.
The Colliers Complaint points to no history of bigamy
prosecutions in Montana. The Colliers do not cite a single example of a
past prosecution. The lack of past prosecution under these statutes
weighs heavily against finding the Colliers face a genuine threat of
prosecution. See Susan B. Anthony List, 134 S. Ct. at 2345. The mere
existence of the challenged statutes is not enough to demonstrate the
constitutionally required standing necessary to bring a Complaint. See
Thomas, 220 F.3d at 1139.

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Accordingly, because the Colliers have failed to demonstrate

injury in fact, the Court recommends that the Complaint be dismissed
based on the Colliers lack of standing.
B.

RIPENESS

Ripeness inquiries are often considered under the rubric of

standing because many ripeness issues coincide squarely with
standings injury-in-fact prong. Thomas, 220 F.3d at 1138. This is
particularly true in this case. The Court concludes, however, that
because the Colliers lack standing to pursue their claims, it is
unnecessary to independently address the issue of ripeness.
V.

CONCLUSION
Accordingly, IT IS RECOMMENDED that the Motion to Dismiss

(ECF 20) be GRANTED and the Complaint be DISMISSED for lack of

subject matter jurisdiction.
NOW, THEREFORE, IT IS ORDERED that the Clerk shall serve
a copy of the Findings and Recommendations of the United States
Magistrate Judge upon the parties. The parties are advised that
pursuant to 28 U.S.C. 636, any objections to the findings and
recommendations must be filed with the Clerk of Court and copies

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served on opposing counsel within fourteen (14) days after entry hereof,
or objection is waived.
DATED this 8th day of December, 2015.
/s/ Carolyn S. Ostby
United States Magistrate Judge

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