January 18th, 2017 by Mark Henkel

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:

  1. 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;
  2. 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
  3. 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.

Last year, on April 11, 2016, the United States Court of Appeals for the Tenth Circuit reversed the polygamy-positive decision of the lower court. A month later, on May 13, 2016, the same 10th Circuit Court refused the “en banc” request to re-hear the matter.

As I (Mark Henkel) had explained to FOX 10,

“It was not reversed on the merits of any arguments whatsoever.
They refused to hear any arguments at all.”

On September 12, 2016, attorneys for the Brown family petitioned SCOTUS for a Writ of Certiorari.

On December 27, 2016, Utah Attorney General’s Office (UAGO) filed their reply in opposition, asking SCOTUS to deny the petition.

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)

and

require (at the very least) a remand with instructions to apply the appropriate rules of law (Page 13).

That same day, January 3, 2017, the eventual date was determined on which the Justices of SCOTUS are scheduled to be “IN CONFERENCE” to determine whether or not to even hear the case: January 19, 2017.

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.

That polygamy-version “I Have Dream” quote has been repeatedly cited over the past decade. It has even become a polygamy meme.

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 Brown v. Buhman be our Hollingsworth?”

What will the Supreme Court do after January 19, 2017? We can only wait.

PDFs of the formal filings & decision

  1. Turley Rebuttal Reply Brief for Brown v BuhmanPDF (Jan. 03, 2017)
  2. Utah AG Office brief in oppositionPDF (Dec. 27, 2016)
  3. Brown v. Buhman petition for a Writ of CertiorariPDF (Sept. 12, 2016)
  4. Tenth Circuit Court Reverses Brown v. BuhmanPDF (Apr. 11, 2016)

   
For background on the case, please see:

  –   Will Supreme Court Hear ‘Sister Wives’ Polygamy case in 2017?
  –   Utah AG Office opposes “Sister Wives” petition of Supreme Court
  –   “Sister Wives” Family Petitions the Supreme Court
  –   Last Steps for Polygamy Heading to Supreme Court in 2017
  –   10th Circuit Refuses to Re-hear “Sister Wives” case
  –   * BREAKING NEWS * 10th Circuit Reverses “Sister Wives” case
  –   “Sister Wives” Appeal at 10th Circuit set for Jan. 2016
  –   Judge Awards Damages to Polygamists for Utah Violating Rights
  –   ‘De Facto’ Polygamy De-Criminalized in Utah by Federal Court

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September 14th, 2016 by Mark Henkel

On September 12, 2016, attorneys for the polygamous family of reality-TV series, “Sister Wives,” filed the formal Petition for a Writ of Certiorari (PDF), asking the Supreme Court of the United States (SCOTUS) to hear the Brown v. Buhman case, as announced by the family’s renowned attorney, Jonathan Turley.

As FOX 13 reported, “The petition, filed Monday, basically focuses on whether the Browns really faced a threat of prosecution from Utah County Attorney Jeff Buhman.”

In the Fall of 2010, the TLC network began airing a new reality-TV show, “Sister Wives.” As later re-explained by the newly filed Petition for a Writ of Certiorari,

“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.'”

Indeed, the permissiveness of allowing this tyranny of prosecutorial discretion is the central basis by which the Tenth Circuit Appeals Court reversed all parts of the lower District Court decision. Namely, while the lower court had de-criminalized “de facto” polygamy (12/13/2013) and awarded damages to the Brown family for Utah violating their rights (8/27/2014), all of that was wiped out by the Tenth Circuit Court’s reversal.

As I (Mark Henkel) had explained to FOX 10,

“It was not reversed on the merits of any arguments whatsoever.
They refused to hear any arguments at all.”

Jonathan Turley and his team of attorneys clearly had to focus and organize the Brown’s Petition for a Writ of Certiorari around the central issue of the Tenth Circuit’s reversal per this tyranny of prosecutorial discretion.

Opening its reasons for the petition to (hopefully) be granted by SCOTUS, the Petition for a Writ of Certiorari explains,

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.

   
For background on the case, please see:
  –   Last Steps for Polygamy Heading to Supreme Court in 2017
  –   10th Circuit Refuses to Re-hear “Sister Wives” case
  –   * BREAKING NEWS * 10th Circuit Reverses “Sister Wives” case
  –   “Sister Wives” Appeal at 10th Circuit set for Jan. 2016
  –   Judge Awards Damages to Polygamists for Utah Violating Rights
  –   ‘De Facto’ Polygamy De-Criminalized in Utah by Federal Court

sister-wives-petition-supreme-court

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May 15th, 2016 by Mark Henkel

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.

On Friday, May 13, 2016, the Tenth Circuit turned down that “en banc” request.

Here is a copy of the amended ruling:
2016-05-13 Brown v Buhman 10th Circuit ruling on en banc motion

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).

   
For background on the case, please see:
  –   * BREAKING NEWS * 10th Circuit Reverses “Sister Wives” case
  –   “Sister Wives” Appeal at 10th Circuit set for Jan. 2016
  –   Judge Awards Damages to Polygamists for Utah Violating Rights
  –   ‘De Facto’ Polygamy De-Criminalized in Utah by Federal Court

10th Circuit Court of Appeals Refuses to Re-Hear Sister Wives case - 700x400

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April 11th, 2016 by Mark Henkel

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.

According to the official decision, the Appeals Court determined:

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.

By holding the matter moot, the Court did not consider the case “on the merits” – something which I, myself, had worried could be the outcome.

According to their Attorney, Jonathan Turley, The Brown family now has three options:

  1. Request a Review of the Tenth Circuit
  2. Request a re-hearing from the Tenth Circuit
  3. File an Appeal up to the Supreme Court of the United States (SCOTUS)

   
For background on the case, please see:
  –   “Sister Wives” Appeal at 10th Circuit set for Jan. 2016
  –   Judge Awards Damages to Polygamists for Utah Violating Rights
  –   ‘De Facto’ Polygamy De-Criminalized in Utah by Federal Court

For the official decision, please see:
  –   2016-04-11 Tenth Circuit reverses Brown v Buhman

BREAKING NEWS Sister Wives case REVERSED at US Circuit Court of Appeals for the 10th District - 700x400

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December 12th, 2015 by Mark Henkel

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.

Soon after the TV series first began, an ominously terrifying “investigation” was announced by the Utah State authorities as a result of the family being publicly “out” as polygamists on television. For their safety, the Brown family quickly moved from Utah to the State of Nevada. Renowned Constitutional Law Professor Jonathan Turley, who had been publicly repeating my known arguments for years (even repeating my pro-polygamy media arguments since 2004) filed a lawsuit for the Brown Family in the Summer of 2011.

In December 2013, the first six of seven counts in the Brown v. Buhman case were decided in the U.S. Federal District Court in Utah. On that Friday the 13th, Judge Clark Waddoups

However, de jure polygamy (having more than one legal marriage license) remained illegal.

Eight months later, on August 27, 2014, Judge Waddoups handed down a Memorandum Decision to the Brown v. Buhman case, deciding the seventh and final count. The U.S. Federal District Court awarded damages to the Brown family for Utah violating their rights.

Subsequently, Utah appealed that decision at the US Court of Appeals for the Tenth Circuit, outrageously claiming that Warren Jeffs is supposedly “why” polygamy should remain illegal.

Such an assertion is beyond outrageous because the nationwide movement of UCAP (unrelated consenting adult polygamy) has vehemently declared how Warren Jeffs was Always Opposed by National Polygamy Movement and that his FLDS was Always Opposed by National Polygamy Movement.

Indeed, about 5 years ago, I presented a speech before a non-polygamous audience about this very matter, titled,
We Always Opposed All Criminals.

The video of that speech is embedded here below.

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

  • is like criminalizing all teachers because of May Kay Letourneau, and
  • it’s like criminalizing all football players/coaches because of Penn State’s Jerry Sandusky.”

Nevertheless, this past week, on Friday, December 11, 2015, directing the Appellant (Buhman) and the Appellees (Brown family), the Tenth U.S. Circuit Court of Appeals ordered both sides in this polygamy case appeal to file briefs to answer the following two questions:

  1. Whether Appellees had standing and their claims against Appellant Buhman were ripe at the time of the complaint; and
  2. 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.

With both sides currently preparing their briefs, the Brown v. Buhman case is scheduled for January 21, 2016, at the U.S. Circuit Court of Appeals for the Tenth District, in Denver, Colorado.

Sister Wives case Appealed at US Circuit Court of Appeals for the 10th District - 700x400

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