“The day after the first episode aired, Utah state officials publicly denounced the Brown family as criminals and opened an investigation under the state’s anti-bigamy statute, which – unlike that of other states – prohibits not only the practice of polygamy, but also the mere practice of cohabitation by married persons. …Prosecutors later gave public interviews discussing the Brown family and their alleged crime of polygamy. …The Respondent, through his subordinate, publicly accused the Brown family of committing felonies every night on television and stated that ‘The Sister Wives’ television program would make their prosecution ‘easier.'”
As a formal “investigation” was initiated against them, the Browns fled Utah and moved to Nevada. Attorney Jonathan Turley filed the case, now identified as Brown v. Buhman, on July 13, 2011, asserting that Utah’s anti-bigamy law was unconstitutional. Prosecutors said the family’s emigration to another State would not stop their investigation to prosecute the Browns for polygamy in Utah, even as the Prosecutors filed a motion to get the case dismissed in early 2012.
After that motion was denied, the Prosecutors “conveniently” invented/declared a new “UCAO policy.” This new and deliberately non-binding policy proclaimed that the Utah County Attorney’s Office would no longer prosecute the Browns or other unrelated consenting adult polygamous families formed only on religious beliefs. With that new “UCAO policy,” the prosecutors filed yet another motion to dismiss the Brown v. Buhman case on May 31, 2012. As the Petition for a Writ of Certiorari explains to the Supreme Court,
“The district court again denied the motion, citing this Court’s instruction that ‘a defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice,’ …and that any assertion to the contrary faces the ‘heavy burden of persuading the court that the challenged conduct cannot reasonably be expected to start up again.’ …In this case, the district court noted that the government had not abandoned its constitutional defense of the [anti-bigamy] statute, …and that its new prosecution policy was ‘at most, an exercise of prosecutorial discretion that could be reversed at any time.'”
The courts of appeals are squarely divided over the extent to which the voluntary cessation doctrine permits the government to moot a constitutional challenge by changing its enforcement policy during the pendency of litigation, as well as whether a district court’s factual findings under the doctrine should be reviewed de novo or for clear error or abuse of discretion.
Essentially, the petition observes that among the separate federal Circuits (of Appeals courts), some have more permissive tests and standards of review regarding the “voluntary cessation doctrine” than others. This disparity among the Circuits creates a non-uniformity of the treatment of law around the country, whereas uniformity of “equal treatment under the law” is Constitutionally required.
Hence, in a different Circuit Court of Appeals (i.e., not the Tenth Circuit), in one that uses a less permissive test and standard of review regarding the “voluntary cessation doctrine,” the after-the-fact “UCAO policy” would not have been allowed to be applied to so-artificially moot the standing of the Brown family to thereby permissively reverse the lower court decisions of the Brown v. Buhman case.
Requesting that the Supreme Court use the Brown v. Buhman case as the vehicle to decide and establish that uniformity (once and for all) defines the technical premise of the Petition for a Writ of Certiorari. That is to say, the petition was not so much about polygamy itself, but about addressing the wrongness of the case being reversed due to the tyranny of such “convenient” exploitation of prosecutorial discretion, being identified as “voluntary cessation doctrine.”
So that, then, raises the question: will the actual merits of the case even be heard by the Supreme Court?
If SCOTUS decides that the conclusions made in the Brown family’s petition are valid, that type of decision will reverse the Tenth Circuit’s reversal, bringing the status of the case back to the prior positive results from the District Court decisions. Will SCOTUS then let that status stand as it was, or will they actually have a hearing of the actual merits of the case?
If SCOTUS rather-lazily refuses to even consider the case, the result will not only deny Brown v. Buhman from even achieving anything at all in the fight for rights and freedom for unrelated consenting adult polygamy, but it will also maintain the unconstitutional non-uniformity among the differing federal Circuit Appeals Courts too.
If SCOTUS actually affirms and establishes the Tenth Circuit’s rather permissive test and standard of review regarding the “voluntary cessation doctrine” to become the nationwide uniform application, the Brown v. Buhman case will effectively be finished, fully depriving unrelated consenting adult polygamists of the valid right to fight against provably unconstitutional law.
Whether or not one supports polygamy, anything but the first of those three possibilities will, undoubtedly, present a profound threat to the liberty of all citizens of the United States. Ergo, this “polygamy case” before the Court now has far broader impact than when it began.
As of this writing, what happens next is up to the Supreme Court of the United States.
Over the past year, two specific situations arose, giving unrelated consenting adult polygamy supporters (UCAPs) many reasons to celebrate as we ll as cause for concern.
The PolygamyDay.com web-site details the important events that have happened over the previous year, as it reports how August 19, 2016, is Polygamy Day ® 16
Rather than having me repeat them again here, please do be sure to read those links from both Pro-Polygamy.com and PolygamyDay.com.
No matter where you are or who you are, if you support freedom for UCAP (unrelated consenting adult polygamy), please do find some time today to contemplate, calibrate, and celebrate.
Former President Bill Clinton had a secret meeting with Attorney General Loretta Lynch. Hillary Clinton was given a careful “investigative interview” in the “emailgate” scandal. Lynch’s subordinate FBI Director James Comey recommended no charges for the crimes that he otherwise said he did find Hillary Clinton to have been “extremely careless” in committing. And then Attorney General Loretta Lynch (Comey’s boss) used her “Prosecutorial Discretion” to close the case, letting Hillary Clinton off all charges. From June 27 to July 6, 2016, all of that happened in less than ten days.
This is the first part of a series of posts pertaining to the tyranny of “Prosecutorial Discretion.” This tyranny protects Hillary Clinton from facing charges for proven crimes while it also prevents non-criminals’ fight for freedom in the “Sister Wives” polygamy case. If the former outrages you, the latter will terrify you even more.
At this initial point, you might be asking, how does the “Sister Wives” polygamy case (Brown v. Buhman) have anything to do with what has happened in the “emailgate” scandal case against Secretary of State, Democrat Presidential Candidate, and Bill Clinton’s wife, Hillary Clinton? You might even be asking, why should you care?
The singular answer to both questions is simple. Whether or not you support polygamy or support Clinton, the current states of both cases reflect and reveal the latest form of a repeated tyranny. This tyranny affects all of us – including you. Your, my, indeed our very liberty, is utterly threatened by this tyranny. It is the tyranny of “prosecutorial discretion.”
To provide an initial understanding of how this tyranny works, this exposition will detail the final events of Hillary Clinton’s “emailgate” scandal “investigation.” Therewith, this will expose how “prosecutorial discretion” protected her from facing charges and jailtime.
On Saturday, July 2, 2016, the FBI formally interviewed Hillary Clinton for the first time in this would-be “investigation.” As the NY Times then explained what most of the public believed at that point, “It could take weeks or longer to reach a decision.”
It only took 3 days.
On July 5, 2016, Loretta Lynch’s underling, FBI Director James Comey, held a press conference to publicly “conclude” that “no charges are appropriate,” despite his simultaneously declaring that Hillary Clinton was “extremely careless” with national and classified secrecy with her private email servers. Director Comey rationalized the following.
In looking back at our investigations into mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts. All the cases prosecuted involved some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice. We do not see those things here.
In the above quote, I added the emphasis to the words, on these facts, as it might be the most relevant part of the statement. I even tweeted this point.
Those three cleverly parsed words “subtly indicate” what they don’t directly say: the actual facts that were otherwise necessary to be obtained were not made available. When Clinton had her private email servers “wiped,” such evidence was removed before it could be seen.
But worse, Director Comey’s assessment effectively re-writes the law that was being broken. The law is clear, as seen in 18 USC 793(f).
(f) Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer—
Shall be fined under this title or imprisoned not more than ten years, or both.
Nothing in that specific part of the law suggests that “intent” has anything to do with determining guilt of breaking it. I made this point in another tweet.
Giuliani makes that case that when it comes to laws surrounding handling classified data, intent is irrelevant. “The definition of gross negligence under the law is extreme carelessness,” he said. The FBI “clearly found a direct violation of 18 United States code section 793 which does not require intent — it requires only gross negligence in the handling of anything relating to the national defense.”
“It’s the first definition that comes up in the law dictionary,” he said. “It’s the definition the judges give to juries when they charge injuries on gross negligence. Negligence equals carelessness. Gross negligence equals extreme carelessness. So that is a clear absolutely unassailable violation of 18 United States Code, section 793, which is not a minor statute, it carries ten years in prison.”
But the issue is clearly not over. A Congressional probe is being called to further investigate FBI Director Comey and the issue. After all, Comey actually listed out what is a crime and then decided that no prosecutorial discretion would prosecute.
REASON.TV put together this excellent mashup of what Hillary Clinton asserted and what Director Comey listed out as lies and crimes.
To be clear, this is not to suggest that in similar circumstances, a person who engaged in this activity would face no consequences.
Therewith do we see the exposition of how and why “prosecutorial discretion” is undeniably-outright tyranny. Prosecution of the law will not be applied to Hillary Clinton, but it will apply to anyone else who does the very same thing. Hence, “prosecutorial discretion” is the tool of selective prosecution – unconstitutional tyranny.
This is but one example of this specific form of tyranny, though. Not only is “prosecutorial discretion” the tool used by government prosecutors to protect government political elites like Hillary Clinton, but it is also used to prevent everyday US non-criminal citizens from being allowed to legally fight for our rights when truly-unconstitutional laws infringe the rights of individuals.
I will elucidate that overarching point in the upcoming post in this series. Are you outraged at the tyranny of “prosecutorial discretion” allowing Hillary Clinton to get away with crimes that no one else would equally be so treated under the law? If so, then you should find yourself even more outraged by the profound threat to Individual Liberty that this same tyranny of “prosecutorial discretion” has been applied in the “Sister Wives” polygamy case known as Brown v. Buhman.
A month ago, on Monday, April 11, 2016, a 3-judge panel of the 10th U.S. Circuit Court of Appeals had rendered the Brown v. Buhman decision as “moot.” Without even considering the merits of the case, but instead being based on the Utah prosecutors later proclaiming that they would not really go after the Brown family for polygamy, the three judges decided that the case was “moot” because the Browns supposedly had no more legal “standing” to even bring this to court. Immediately afterward, the Brown family requested a re-hearing by all of the judges in the entire Tenth Circuit Court of Appeals.
In opening that “order,” the decision additionally noted the following.
As no member of the original panel or the en banc court requested that a poll be called, the petition for en banc review is denied.
This latest text of the May 13 decision was mostly the same as that of the earlier April 11 decision (see: 2016-04-11 Tenth Circuit reverses Brown v Buhman. However, at end of the last word of the last paragraph of the last section before the Conclusion, the Court added one new additional footnote, Footnote #27.
The last paragraph that added that Footnote #27 declared the following.
The proper disposition of this appeal, therefore, is to remand to the district court with instructions to vacate its judgment in favor of the Browns and dismiss this suit without prejudice. 27
The text for that one additional Footnote #27 explained the following.
27 As explained above, the Browns’ move to Nevada eventually also rendered this case moot. Whether or not this basis for mootness took effect before commencement of this appeal, Mr. Buhman’s implementation of the UCAO Policy was independently sufficient to extinguish any live case or controversy as of May 2012, a year and a half before the district court granted summary judgment to the Browns and over two years before entry of final judgment. Because this case became moot “prior to final adjudication,” Rio Grande Silvery Minnow, 601 F.3d at 1128 n.19, vacatur and dismissal without prejudice are appropriate.
With that “explained” in the additional Footnote #27, the decision concluded with the following.
Assuming the Browns had standing to file suit in July 2011, this case became moot when Mr. Buhman announced the UCAO Policy in May 2012. That policy eliminated any credible threat that the Browns will be prosecuted. We therefore remand to the district court with instructions to vacate its judgment and dismiss this suit without prejudice.
As FOX 13 reported, Renowned Constitutional law professor and the attorney for the Brown family, Jonathan Turley, wrote the following email response.
“At issue is the most basic right in our legal system: the right to be heard in a federal court. The lower court found that the Browns left the state after months of abusive treatment by the government, which denied them basic protections under our Constitution. All families should have access to the courts when targeted by the government in this way. The panel decision leaves a chilling message for citizens in dealing with their government. The 10th Circuit panel ruled that a prosecutor can publicly declare a family to be felons, keep them under criminal investigation, and denounce them for their religious beliefs without fear of being held accountable in a court of law. The Tenth Circuit did not deny the violation of free speech and free exercise by Mr. Buhman – violations found by the trial court. Rather it barred the Brown family from challenging his actions in federal court. This country rests on the rule of law, which is reduced to a mere pretense if citizens are barred from the courthouse. The Browns respectfully disagree with the panel and will seek relief before the United States Supreme Court.”
So with that, the “Sister Wives” polygamy case now moves up to the final court of last resort, SCOTUS (Supreme Court of the United States).
On Wednesday, April 20, 2016, I was interviewed as a guest with locally-renouned host, Gary Sadlemyer, on The Good Morning Show, on KFAB in Omaha, Nebraska, that aired at 8:20am local time (9:20am ET).
Shortly afterward, KFAB’s website promoted the interview by writing the following:
Mark Henkel with National Polygamy Advocate says that a recent ruling that reinstated Utah’s laws against polygamy are unconstitutional . He explains how the constitution does not give the government the power to control marriage. Learn more at www.NationalPolygamyAdvocate.com
The purpose of this interview was for the breaking news cycle about polygamy from Monday, April 11, 2016: the 10th Circuit Reversed “Sister Wives” case as “moot.” Rather than even hear the merits of the case, the 10th Circuit Court determined that, since the Prosecutor had promised not to specifically prosecute the Brown Family, the Brown family’s legal “standing” to file suit was rendered moot.
On Monday, April 18, 2016, I was interviewed as a guest on The Jayne Carroll Show, on KUIK in Washington Country, Oregon, that aired at 4:35pm local time (7:pm ET).
This interview pertained to the breaking news cycle about polygamy from Monday, April 11, 2016: the 10th Circuit Reversed “Sister Wives” case as “moot.” Rather than even hear the merits of the case, the 10th Circuit Court determined that, since the Prosecutor had promised not to specifically prosecute the Brown Family, the Brown family’s legal “standing” to file suit was rendered moot.
On Wednesday, April 13, 2016, I was interviewed as a guest on The Christal Frost Show, on WTCM in Traverse City, Michigan, that aired at 11:30 am ET.
The purpose of this interview pertained to the breaking polygamy news cycle from Monday, April 11, 2016: the 10th Circuit Reversed “Sister Wives” case as “moot.” Rather than even hear the merits of the case, the 10th Circuit Court determined that, since the Prosecutor had promised not to specifically prosecute the Brown Family, the Brown family’s legal “standing” to file suit was rendered moot.
On Monday, April 11, 2016, the U.S. Circuit Court Appeals for the Tenth District, in Denver Colorado, formally reversed the lower court’s decision in the Brown v. Buhman case. This is the case of the Kody Brown polygamous family from the reality-TV series, “Sister Wives.”
Exercising jurisdiction under 28 U.S.C. § 1291, we hold this matter is moot. It is not a “Case” or “Controversy” under Article III of the U.S. Constitution. We remand to the district court with instructions to vacate the judgment and dismiss this action.