Utah AG Office opposes “Sister Wives” petition of Supreme Court

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!”

On April 11, 2016, the Tenth Circuit U.S. Court of Appeals in Denver Colorado reversed the lower court’s “de facto” polygamy de-criminalization decisions of 2013 and 2014.

On May 13, 2016, the same Tenth Circuit court denied the “en banc” request to re-hear the case.

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 August 10, 2016, Supreme Court Justice Sotomayor signed off on permitting the Brown family an additional month to file a petition for a Writ of Certiorari. On September 12, 2016, the Brown family’s attorneys filed their petition to be heard by the Supreme Court. Making the broader argument that the UAGO’s “voluntary cessation” as an after-the-fact “policy” to not go after the Brown family for polygamy (alone, with no other so-called “collateral crimes”) is a tyranny of “prosecutorial discretion,” the petition specifically posited that different Circuits have different standards for addressing the issue of such “voluntary cessation” doctrine.

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.

In the very next paragraph, the UAGO then made the wildly absurd assertion, citing the case of the always-despised Tom Green criminal and the long-discredited anti-polygamy propaganda given to the British Columbia Supreme Court’s Chief Justice Robert Bauman. Despite their previous admission disproving its next assertion, the UAGO’s brief unflinchingly still posited the following self-admittedly disproven propaganda.

“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.

PDFs of the two formal filings

  1. Utah AG Office brief in oppositionPDF (Dec. 27, 2016)
  2. Brown v. Buhman petition for a Writ of CertiorariPDF (Sept. 12, 2016)

For background on the case, please see:
  –   “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

December 29th, 2016 by