FSC Petitions 10th Circuit for Full Panel Review in Utah Case

As explained in the FSC announcement, in an en banc review, “the legal challenge is heard by the all judges of the 10th Circuit, rather than just the original three-judge panel.”

In the 10th Circuit panel’s ruling issued earlier this month, there was an “impassioned and well-reasoned dissent by Judge Phillips, arguing that the court should have allowed the case to continue against Utah’s Commissioner of Public Safety,” FSC noted in their announcement.

“Judge Phillips’ dissent raised important constitutional issues that we believe merit review by the full 10th Circuit,” said FSC Executive Director, Alison Boden. “These laws are having a significant chilling effect on the rights of adult businesses and consumers, and the state has a significant role in enforcement.”

FSC added that neither the 10th Circuit Court of Appeal nor the District Court “have yet considered the merits of the underlying challenge to the constitutionality of Utah’s age-verification law, but rather have focused on a narrower issue as to whether state actors, such as the Commissioner, are responsible for the enforcement of the Utah law and should thus be made to defend the law in court.”

In upholding the District Court’s dismissal of the case, the 10th Circuit panel held that the Utah officials named in the lawsuit, Department of Public Safety Commissioner Jess Anderson and Utah Attorney General Sean Reyes, are entitled to “sovereign immunity” because neither official has a duty enforce the statute, which creates a private right of action.

“Because the plaintiffs have failed to show the requisite nexus between the Commissioner and the enforcement of the challenged statute, the Commissioner does not fall within the Ex parte Young exception and is entitled to sovereign immunity,” the panel wrote in its decision, issued on October 1.

With respect to the Attorney General, the court noted “we have explicitly held that Ex parte Young requires something ‘more than a mere general duty to enforce the law.’

“Just as the statute in Hendrickson vested enforcement authority in an independent board, the statute here places enforcement authority with private individuals,” the panel wrote. “Additionally, just as the governor in Hendrickson lacked the authority to remove members of that independent board at will, the Attorney General here lacks any power to direct the actions of private actors or prevent them from seeking enforcement of the Act.”

In his dissent, Judge Gregory Phillips wrote that while he agreed with the majority that the Attorney General “lacks a sufficient connection to the enforcement of (the challenged statute) to be a proper defendant under Ex parte Young,” he disagreed that “the Commissioner of the Utah Department of Public Safety similarly lacks such a connection.”

Phillips’ reasoning digs into the available mechanisms for websites to comply with the Utah law, agreeing with FSC that while the law presents options other accepting a Utah driver’s license or state-issued ID as a form of age-verification, the other options are, at least at present, unworkable.

“Given the vagueness of and technical difficulties with subsections (b) and (c), the Commissioner’s connection to SB 287’s enforcement through the mDL program referenced in subsection (a) becomes more obvious,” Phillips wrote. “As I see it, because the Commissioner oversees the mDL program—the only state-approved compliance mechanism available to the Plaintiffs—he has a sufficient nexus with SB 287’s enforcement to be a proper defendant under Ex parte Young.”

In petitioning the 10th Circuit for en banc review, FSC said the court should grant the petition because the decision to dismiss the case “conflicts with recent Supreme Court precedent, conflicts with prior decisions of this Court, and involves a question of exceptional importance that calls for clarity from the full Court.”

You can read the full FSC petition here.