Exploiting pre-2010 environment of fear, prosecutors intimidated Browns to unwittingly moot their own “legal standing” to fight for their freedom when they moved to another State. Indeed, polygamy (as an issue) was on its way to being heard by the Supreme Court of the United States (SCOTUS). Brown v. Buhman, the case of the “Sister Wives” reality-TV show, made it that far until January, 2017. The Tenth Circuit Court of Appeals in Denver Colorado had reversed the gains the case had won in District Court, by allowing a way for government to deny the right of Individual citizens to fight for freedom against any unconstitutional law. Whether or not one supports polygamy, when SCOTUS declined to hear this case because of the Tenth Circuit’s “decision,” the right of all US citizens to fight for freedom for any issue was effectively thwarted.
This is the second part of a series of posts pertaining to the tyranny of “Prosecutorial Discretion.” The same tyranny that protected Hillary Clinton from facing charges for proven crimes was also used to stop non-criminals’ fight for freedom in the “Sister Wives” polygamy case. If Part 1 of this series outraged you, this Part 2 (and beyond) will terrify you even more.
Preface: Before “Sister Wives”
Few fellow law-abiding people in America have ever experienced the level of fear of their own government as experienced by Unrelated Consenting Adult Polygamists – UCAPs. For that reason, I must first write this post in this series to explain the context of how the political environment – created by the one-sided propaganda from manufactured-news media and academics – caused the real, immense, and rational fear in all normal polygamists prior to 2010. This is necessary in order to fully comprehend why, as their new reality-TV show began in the Fall of 2010, the Brown family in the Brown v. Buhman (“Sister Wives”) polygamy case were so fearfully threatened that they genuinely felt they had to move their family to another State.
Here is some background, prior to 2010.
When the modern polygamy rights movement for unrelated consenting adults began in 1994, there were no TV shows positive about polygamy. The only time that the media reported about “polygamy” was when it involved cults or criminals doing other actual crimes. This one-sided bigotry amounted to what could be called “hate speech” because it always incited people to wrongly think, say, and accuse that polygamy supposedly “always” means horrific criminality. Just saying the word, “polygamy,” to most people back then would cause instant angry reactions, albeit baseless.
At the turn of this new century, I was the only one who dared to be putting my neck up consistently and pro-actively pursuing the national media to inform the public about normal non-criminal polygamy. The focus of my work was (and still is) to educate the media to differentiate real criminals (from Tom Green at the start of that decade to Warren Jeffs at the end of it) as completely different from – and not having anything do with – normal Unrelated Consenting Adult Polygamy (UCAP).
I long exposed the concept of what is now being called #FakeNews for over a decade, long before President Trump’s 2016 campaign called it out. I simply called it, “manufactured-news outlets.” Such media do not actually report the news, they just get bits of information with which to manufacture into a product they “sell.”
Many of such media even went out of their way to intentionally invent and incite hostility against polygamy – even using imaginary stories by supposed “news journalists.” For example, John Quiñones Lies in “Unreality” on ABC-TV with a horrifying made-up story using paid actors and actresses on a would-be “reality” TV show!
Even so, the national UCAP polygamy movement continued, and I persisted to educate in the media where possible.
By the end of the 2000s decade, I had also been getting “circus act” requests from certain media for either my family or families in our organization to be in television shows. What they wanted, though, were things that raised alarm signals for our families. For our safety, I turned them down. When they went looking elsewhere, networks like TLC had a horrid history of manufacturing shows “about polygamy” to purposely make polygamy look bad. In those media-requests for “polygamous families,” they wanted families to be as nothing more than money-making “circus acts” for the networks. My turning down their “requests” were proven to be wise decisions more than once.
But prior to that new reality TV show in 2010, TLC’s programming in previous years had been bigotedly harmful against normal consenting adult polygamists.
On September 24, 2006, TLC aired a would-be “documentary” called, “My Husband’s 3 Wives.” While claiming to be “about polygamy,” the show centered on an egomaniacal man’s “polygamy by affair.” The national polygamy rights movement for consenting adults took note of TLC airing such a horrendously false “re-definition” of polygamy about which the movement so adamantly opposed. … Clearly, this 2006 show was never a legitimate example for learning “about polygamy.”
Two years later, on November 16, 2008, TLC aired another show, “Forbidden Love: Polygamy.” While claiming to be “about polygamy,” this would-be “documentary” was simply one attractive, young British lady’s anti-polygamous viewpoints about Mormon polygamists. The national polygamy rights movement for consenting adults again took note of TLC airing such a twisted anti-polygamy show. … Clearly, this 2008 show was never a legitimate example for learning “about polygamy,” either.
It is with and in that context of propaganda, manufactured-news media, and academics by the start of this decade (the 2010s) that many, many UCAP (unrelated consenting adult polygamous) families were rightly scared to be public or to trust networks to report about them. No matter how good such normal polygamous families were, the political environment was just too terrifyingly bias-incited by the false anti-polygamy propaganda.
The Brown Family on “Sister Wives”
One family, though, having been busy living their lives over the years (i.e, not active in the national UCAP movement), and thereby less aware of TLC’s past abuse toward polygamous families, was lured to trust TLC for a new “reality TV series.” To the surprise of the skeptical National Polygamy Rights Movement for Consenting Adults, that Fall 2010, the network premiered the very first polygamy-positive realty-TV show. It was called, “Sister Wives.” Admittedly, the national UCAP movement was very happily surprised to see that TLC’s ‘Sister Wives’ put the ‘L’ back in ‘The Learning Channel’.
This new show, “Sister Wives,” was, quite-simply, a reality show about Mormon polygamist Kody Brown, his one legally married wife, Meri, his two other non-licensed wives, Janelle and Christine, plus an incoming non-licensed wife joining the family named Robyn, and all of their dozen and a half children. This was the first time that such a non-fiction TV series aired – and it treated the family in a positive light! Kody and these wives were all unrelated consenting adults, no coercion, no underage issues, and no crime. Finally, polygamy was not being aired in line with the fearmongering, hate-inciting, and false propaganda!
What happened next is succinctly described on Page 5 of the April 11, 2016, reversal of Brown v. Buhman by the U.S. Court of Appeals for the Tenth Circuit.
Viewers of the [Sister Wives] show contacted the Lehi Police Department to “inquir[e] what the department intended to do” about the Browns. … The day after the first episode aired, the Department publicly announced it was investigating the Browns for violations of the Statute. In October 2010, the Lehi Police Department forwarded the results of its investigation to the UCAO. Following standard practice, the UCAO opened a case file on the Browns. Fearful they would be criminally prosecuted, the Browns moved to Nevada in January 2011. Mr. Buhman was quoted in a January 2011 media report as saying that despite the Browns’ move, his office would not rule out the possibility of prosecution.
The TV show later aired episodes showing the very real fear the family faced. Seeing police cars sitting outside their home “watching” them, the Browns rationally felt compelled to move out of Utah to Nevada “in the middle of the night” in the terrifying fear for their family of the intimidating government.
It is that very intimidation that would be later exploited as one part of the government’s two-part tool to moot the case. The fact that the understandably intimidated Brown family actually moved out of the State of Utah would be later exploited to assert that they had no more “legal standing” to bring Brown v. Buhman to court, so that the Utah prosecutors could thereby still use the anti-polygamy statute to threaten any other polygamous families.
By understanding the context of this fear and intimidation as it existed at the start of the 2010 decade, readers will be able to more comprehensively perceive the ramifications of the even larger tyranny of “prosecutorial discretion” used to moot the otherwise valid “legal standing” of the Brown family to fight for their freedom from tyranny.
I will elucidate the further details of these issues in the upcoming post in this series. Of course, if anyone is still wondering how this connects to Hillary Clinton and “emailgate” in 2016, then they will still need to read the Part 1 in this series, “Prosecutorial Discretion,” Emailgate, and Polygamy – Part 1
With Part 1 understood, and now with this Part 2 understood too, the outrage should likely begin boiling. Can you imagine the fear of government “watching” you to the point you feel compelled to move out of state? Can you see how tyrannical it is to then have that fear-caused “out-of-State move” later used against you in actually then denying you the “legal standing” to fight for your freedom to get such an anti-Constitutional tyranny overturned? If these matters outrage you (and they certainly should), then you will likely find yourself even more outraged by the profound threat to Individual Liberty that the overall tyranny of “prosecutorial discretion” was applied in the “Sister Wives” polygamy case known as Brown v. Buhman.
On January 19, 2017, the very last full day of the Obama Presidency, the Supreme Court of the United States (SCOTUS) will be “in CONFERENCE” regarding the “Sister Wives” polygamy case, Brown v. Buhman. Unfortunately, the issue of unrelated consenting adult polygamy (UCAP), itself, will not be the focus of the Supreme Court Justices. Rather, the SCOTUS Justices will only be conferring over whether or not to even hear the case due to the technicality of “legal standing” issues. As SCOTUSblog.com reports, only the following are at issue:
Whether the government can seek to moot a lawsuit challenging the constitutionality of a statute by adopting a new non-enforcement policy during the pendency of litigation;
whether the government can later moot by voluntary cessation a subsequently filed lawsuit challenging the constitutionality of a statute under which the government publicly threatened a party with prosecution; and
when a district court makes underlying findings of fact in the course of adjudicating a claim under the voluntary cessation doctrine, under what standard of review those findings should be examined on appeal.
On January 3, 2017, Lead Attorney for the Browns, Jonathan Turley, filed their rebuttal to UAGO’s brief in opposition. Noting that the UAGO was simply wrong (namely, that there is a “split” among the different US Circuits on the technicality issue), the rebuttal reply – more than once – indicated that the case should be remanded (sent back down) to the Tenth Circuit Court, stating that these issues
require at the very least a remand with instructions to apply the appropriate standard (Page 10)
require (at the very least) a remand with instructions to apply the appropriate rules of law (Page 13).
It is ironic that this will be held on the very last full day that US President Barack Obama is President, the day before the incoming President Donald Trump is inaugurated. Years ago, back on November 7, 2008, only three days after Barack Obama was first elected, an article was sent to the media by Pro-Polygamy.com, the national polygamy movement’s media-distribution site, titled, “Obama’s Historic Election Gives Hope to Polygamous Americans.” With the caveat of specific political views aside, the article concluded with the following:
Now that African Americans have successfully traveled that amazing road from oppression to president, then consenting-adult polygamous Americans can do it too.
The dream continues. God bless America indeed!
Indeed, that article took note of the famous, important “content of character” line from Martin Luther King, Jr.’s “I Have a Dream” speech. It continued that line with the following, directly quoting me:
National Polygamy Advocate, Mark Henkel, has long shared Martin Luther King’s dream. Content of character is really what matters indeed. Henkel has said, “I have a dream that one day a man will be judged, not based on the number of consenting-adult wives who willingly marry him, but, indeed, based only on the content of his character.” For polygamous Americans, the dream continues.
Yet now, on what will be the very last day of the presidency of the very first elected African American president, Barack Obama, January 19, 2017, unrelated consenting adult polygamous Americans are left with the disappointing reality that SCOTUS will only be conferring about whether or not to even hear the polygamy case of Brown v. Buhman.
On New Years Day this year, January 1, 2017, Pro-Polygamy.com, distributed another article to the media, titled, “Will Supreme Court Hear ‘Sister Wives’ Polygamy case in 2017?” The article ended with my direct quote, which succinctly sums up the frustrating “worry” that unrelated consenting adult polygamists (UCAP) now have regarding what SCOTUS could do (or rather, not do) with this important case.
Will the Supreme Court of the United States (SCOTUS) even hear the arguments of the “Sister Wives” polygamy case, Brown v. Buhman, in 2017? If the Utah Attorney General’s Office gets its way, the answer would be a resounding, “NO!”
In November, 2016, SCOTUS requested that the Utah Attorney General’s Office file their rationale for why they believe that SCOTUS should deny the petition. On December 27, 2016, the UAGO filed their formal brief in opposition. Therewith, the UAGO posited that there allegedly “is no split” between the differing U.S. Circuits around the country on the issue of voluntary cessation doctrine.
On Page 25 (i.e., PDF-pg35) of the brief, the Utah AG Office declared the following about the Petitioners (i.e., the Brown family) and “why” SCOTUS should “not” even hear the case.
For all their errors on the voluntary cessation question, Petitioners nail the most important score: They are, at best, “persons formerly threatened with prosecution under” the Statute. Id. at 21 (emphasis added). They face no current or continuing threat that Respondent will prosecute them in Utah, away from their new Nevada home. The case is moot for the reasons the Tenth Circuit correctly explained, based on legal rules that do not conflict with other circuits’ precedent. Certiorari should be denied.
The saddest irony of all this may also be found within the very words of the brief itself. On its Page 4 (i.e., PDF-pg14), the UAGO admitted the following about how evidently unnecessary the anti-polygamy law actually is.
Given that enforcement policy, just ten defendants were charged statewide under the Statute between 2001 and 2011. App. 10. Six of those ten “were also prosecuted for crimes other than bigamy, such as criminal non-support, unlawful sexual conduct with a minor, forcible sexual abuse, marriage license fraud, and insurance fraud.” Id. at 11. The Attorney General’s Office could not confirm whether charges besides bigamy were filed in the last four cases. But in three of those four, county prosecutors dismissed the bigamy charges, and in the fourth case the defendant was convicted of attempted bigamy in a county prosecution.
“The practice of polygamy, in particular, often coincides with crimes targeting women and children.”
“Crimes not unusually attendant to the practice of polygamy include incest, sexual assault, statutory rape, and failure to pay child support.”
If anything, by the Utah AG Office’s own admission, the evidence disproves that wild absurdity. Indeed, it demonstrates why still criminalizing unrelated consenting adult polygamy (UCAP) is wholly irrational.
However, SCOTUS could very well choose to deny the Brown family’s petition for a Writ of Certiorari. If that happens, then, alas, such an irrational anti-polygamy law still will remain on the books. And worse, the actual merits of Brown v. Buhman will not have even been heard by the Supreme Court.
As the year 2016 comes to a close, both sides are waiting to see whether SCOTUS will deny or allow the Brown v. Buhman case to go forward in 2017.
“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.
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 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.
In the Fall of 2010, TLC began airing “Sister Wives,” the first-ever polygamy-friendly reality-TV show. The focus of the series was upon Mormon polygamist Kody Brown, his three wives, and all of their children. By the end of the first season, a fourth wife (with three children of her own) was joining the family too. This family had no connection to crimes, underage marriage, or the FLDS. Indeed, the Browns are a committed family, of whom all 5 of the parents married as un-coerced consenting adults.
Moreover, as the national voice for UCAP polygamy rights the last 20+ years, I have repeatedly presented numerous sound-bites that instantly refute and discredit any such irrational attempt to connect UCAP to that criminal (or any such criminals). Here are two quick examples:
“Criminalizing all unrelated consenting adult polygamists (UCAPs) because of Warren Jeffs
Whether Appellees had standing and their claims against Appellant Buhman were ripe at the time of the complaint; and
If so, whether the prosecutorial policy announced in Appellant Buhman’s May 22, 2012 declaration, or any other matters, rendered Appellees’ claims against him moot.
These two odd questions are more about the issues of “standing” than they are about the case itself. This could either be worrisome (indicating bad intent) or positive (indicating pre-emptive problem-solving.) The Tenth District’s U.S. Circuit Court of Appeals is the last court to hear the case before possibly proceeding next up to the final court of the Supreme Court of the United States (SCOTUS). Hence, this “next to last court” might be having a recent Decision by SCOTUS “nagging” the back of their mind.
Namely, as recently as 2013, SCOTUS vacated the Hollingsworth v. Perry case (instead of deciding it) simply because of the lack of correct “standing” issue. For many, the hope of that decision based “on its merits” potentiated it as a possibly very big case too. Truly, if Hollingsworth had been decided “on its merits” rather than being vacated on the technicality of improper “standing,” it might even have had impact on this Brown v. Buhman case. Instead, Hollingsworth had no positive impact for UCAP polygamy.
As such, there is a possibility that the motive behind the Appeals Court asking these two questions is a positive one; it could be that they want to proverbially “dot all the i’s and cross all the t’s” so that SCOTUS will not subsequently vacate this decision too due to the “standing” issue. However, if that is not the intent, then those two questions are worrisome; the questions could otherwise seem to suggest that the court itself is pro-actively looking for ways to intentionally allow such bad law to stay on the books by purposely trying to find such technicalities with which to stop the case at this lower-level court.
Regardless of positive or worrisome intent, however, if the issue of “standing” is so positively addressed and resolved, then that will actually strengthen the eventual case for when/if it moves up to SCOTUS.