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.